Cameron v Southern Health NHS Foundation Trust: Subsuming Pending Section 75(2) Tribunal Applications on Recall under the Mental Health Act 1983

Cameron v Southern Health NHS Foundation Trust & Anor [2025] EWCA Civ 1574:
Subsuming Pending Section 75(2) Tribunal Applications on Recall and the Scope of Judicial Oversight under the Mental Health Act 1983

1. Introduction

This Court of Appeal decision addresses an important and previously unsettled question in mental health law: what happens to a conditionally discharged restricted patient’s outstanding application to the First-tier Tribunal (“FTT”) under section 75(2) of the Mental Health Act 1983 (“MHA”) when that patient is recalled to hospital by the Secretary of State for Justice under section 42(3)?

The core holding is that once a conditionally discharged restricted patient is recalled to hospital, any existing section 75(2) application is “subsumed” by, and effectively extinguished in favour of, the mandatory section 75(1) recall reference. The FTT’s jurisdiction thereafter is exercised under section 75(1), not under the earlier application. The Court also reconfirms, by reliance on R (Rayner) v Secretary of State for Justice [2009] 1 WLR 310, that judicial review and habeas corpus remain a sufficient “fallback” form of judicial oversight to satisfy Article 5(4) ECHR where, in unusual circumstances, the statutory Tribunal mechanisms might not lead to a hearing.

Although the appeal was “academic” in relation to Mr Cameron himself—because he did receive a prompt Tribunal hearing after recall—the Court accepted that the jurisdictional question was of systemic importance to the operation of the MHA and of the FTT. The judgment therefore provides authoritative guidance on:

  • the interaction between sections 70, 73 and 75 MHA when a patient’s status changes;
  • the fate of a section 75(2) application once recall under section 42(3) occurs;
  • the continuing significance of Rayner in the Article 5(4) landscape; and
  • the relationship between Tribunal jurisdiction and the role of judicial review.

2. Factual and Procedural Background

2.1 The index offence and initial detention

In October 2016, Mr Cameron pleaded guilty in the Crown Court at Winchester to attempted murder, after attempting to kill his neighbour. He had a diagnosis of paranoid schizophrenia and was seriously unwell at the time, having stopped his antipsychotic medication for some months.

On 16 November 2016 he received:

  • a hospital order under section 37 MHA; and
  • a restriction order under section 41 MHA, on the basis that it was necessary for the protection of the public from serious harm.

This made him a “restricted patient”, subject to special restrictions including liability to continued detention and recall until absolute discharge.

2.2 Conditional discharge and subsequent application

After treatment in a medium secure hospital, to which he responded well, Mr Cameron was conditionally discharged in October 2021 under section 42(2) MHA. As a conditionally discharged restricted patient in the community, he remained liable to recall but was not detained in hospital.

In October 2023, exercising the right conferred by section 75(2) MHA, he applied to the FTT for absolute discharge. This is the specific route Parliament provides for conditionally discharged restricted patients who have not been recalled to seek either variation of their conditions or complete release from the restriction order.

2.3 Deterioration in the community and recall

In early 2024, difficulties arose in the care home where Mr Cameron lived as part of his conditional discharge arrangements. In January 2024 he began to object to another resident’s behaviour and devised a plan to “do thirty things to annoy” that resident.

On 1 March 2024, officials acting for the Secretary of State for Justice (“SSJ”) exercised the recall power in section 42(3) MHA and recalled Mr Cameron to hospital. He was initially placed in a psychiatric intensive care unit. Critically, his section 75(2) application for absolute discharge was still outstanding at this point and had not yet been heard.

2.4 Mandatory recall reference and the FTT strike-out

Section 75(1)(a) mandates that where a restricted patient is recalled to hospital after conditional discharge, the SSJ “shall, within one month” refer the case to the Tribunal. In light of Rayner, this “one month” period must be read as requiring a reference “within days, not weeks” and “normally within a few days” of return to hospital.

In Mr Cameron’s case, the SSJ complied with that duty within four days, and the resulting section 75(1) reference was initially listed to be heard together with his pre-existing section 75(2) application.

On 10 April 2024, however, FTT Judge Chamberlain:

  • struck out the section 75(2) application, concluding that the Tribunal no longer had jurisdiction over it once Mr Cameron had been recalled; but
  • kept in place the listing of the SSJ’s compulsory recall reference under section 75(1).

The judge’s essential reasoning was that:

“since the recall automatically generated the referral to the FTT, that gave the judicial oversight over the Appellant’s detention which the law required.”

Permission to appeal to the Upper Tribunal (“UT”) was granted, there being no direct authority on whether a section 75(2) application “survives” recall.

2.5 Upper Tribunal decision

The appeal came before Upper Tribunal Judge (“UTJ”) Jacobs in September 2024. Neither the SSJ nor the NHS Trust took part. UTJ Jacobs considered how changes in a patient’s status under the MHA can affect Tribunal jurisdiction, and distilled some general principles:

  • the provisions of the MHA are primary;
  • the analysis always depends on the particular sections involved;
  • a change of status does not necessarily deprive the Tribunal of jurisdiction; and
  • the patient must be protected by “judicial oversight”.

Applying those principles, he concluded that:

  • Mr Cameron’s recall, and the resulting automatic section 75(1) reference, provided the necessary judicial oversight;
  • in consequence, the FTT had been right to decide it had no further jurisdiction to proceed with the original section 75(2) application and to strike it out.

UTJ Jacobs considered himself bound by the Court of Appeal’s decision in Rayner as to the adequacy of judicial review as a fallback form of oversight and expressly encouraged the Court of Appeal to revisit the issue if it thought fit.

2.6 The Court of Appeal hearing

Permission to appeal was granted by Dingemans LJ, who identified a “compelling reason” to consider:

  • the FTT’s jurisdiction to proceed with a section 75(2) application after recall;
  • whether there is a “lacuna” in Tribunal oversight; and
  • the impact of Rayner on these issues.

By the time the appeal was heard, the FTT had already conducted a substantive hearing on the section 75(1) reference (July 2024) and refused to discharge Mr Cameron. The appeal was therefore academic to his personal liberty, but was pursued (and heard) as a matter of systemic importance.

3. The Legal Issue

The central question was narrowly framed:

Whether an application made under section 75(2) MHA by a conditionally discharged restricted patient is extinguished or survives when that patient is subsequently recalled to hospital under section 42(3), and, if extinguished, whether the resulting structure of judicial oversight is compatible with Article 5(4) ECHR.

Put differently: does the FTT retain jurisdiction over a section 75(2) application after recall, or is that jurisdiction replaced by, and limited to, the mandatory section 75(1) recall reference?

4. Summary of the Court of Appeal’s Decision

  1. Effect of recall on section 75(2) applications On a straightforward construction of the statutory scheme and in light of usual Tribunal practice, the Court held that any outstanding section 75(2) application is “subsumed in the recall hearing” initiated under section 75(1) once recall occurs. The FTT’s jurisdiction thereafter is exercised through that recall reference. It was therefore correct for the FTT to strike out Mr Cameron’s section 75(2) application.
  2. Article 5(4) and “judicial oversight” The Court reaffirmed Rayner, holding that the combination of:
    • the statutory requirement for a prompt section 75(1) reference (“within a few days”);
    • the practice of prioritising recall cases; and
    • the availability of judicial review and habeas corpus
    provides effective judicial oversight compatible with Article 5(4), even if in some highly unusual scenarios the Tribunal might never actually hear a recall case before the patient is re-discharged.
  3. Hypothetical “lacuna” scenarios The Court recognised that a patient might theoretically be:
    • conditionally discharged,
    • then recalled (triggering a mandatory reference),
    • then re-discharged before the Tribunal can hold a hearing,
    • with this pattern repeating such that the Tribunal never sits.
    It nevertheless found:
    • such scenarios are unlikely in practice;
    • in DD v Sussex Partnership NHS Foundation Trust [2022] UKUT 166 (AAC), the UT correctly preserved Tribunal jurisdiction in a different “change of status” setting (discharge before a first hearing); and
    • in any case where Tribunal jurisdiction does not arise or is lost, Rayner confirms that judicial review can provide sufficient judicial oversight.
  4. Outcome The Court of Appeal (Bean, Baker and Males LJJ) unanimously dismissed the appeal. The FTT and UT were right to treat the recall reference as the exclusive route of Tribunal oversight once recall occurred.

5. Statutory Framework and Key Concepts

5.1 Hospital orders and restriction orders (sections 37 and 41 MHA)

Under section 37, a Crown Court judge may, instead of imposing a prison sentence, order that a mentally disordered offender be detained in hospital for treatment. Section 41 permits the Court to attach a restriction order where it is “necessary for the protection of the public from serious harm” that additional controls apply.

A restricted patient:

  • cannot be absolutely discharged without Tribunal or SSJ decision;
  • remains liable to recall until absolutely discharged; and
  • is subject to closer oversight by the SSJ and by the Tribunal.

5.2 Conditional discharge and recall (section 42 MHA)

Section 42 empowers the SSJ to:

  • discharge a restricted patient from hospital either absolutely or conditionally (section 42(2)); and
  • recall a conditionally discharged patient to hospital “at any time” while the restriction order remains in force (section 42(3)).

A conditional discharge means the person lives in the community under supervision and specified conditions, but remains liable to recall.

5.3 Tribunal applications and references for restricted patients

5.3.1 Section 70: Applications by detained restricted patients

Section 70 allows a restricted patient detained in hospital to apply to the Tribunal:

  • between six and twelve months after the relevant hospital order/direction; and
  • once in every subsequent 12-month period.

Section 70 therefore does not apply to conditionally discharged patients who are in the community. It applies when the patient is “detained in a hospital”.

5.3.2 Section 71: References by the Secretary of State

Under section 71, the SSJ:

  • may refer any restricted patient’s case to the Tribunal at any time (subsection (1)); and
  • must refer the case of a restricted patient detained in hospital if there has been no Tribunal consideration within the last three years (subsection (2)).

Section 71(4) specifies that where a patient has been conditionally discharged and not recalled, any such reference goes to the Tribunal region where the patient resides.

5.3.3 Section 73: Tribunal’s power to discharge restricted patients

Section 73 governs what the Tribunal can do when:

  • a restricted patient applies (e.g. under section 70), or
  • the patient’s case is referred (under sections 71 or 75(1)).

Broadly:

  • if the Tribunal is no longer satisfied that the statutory criteria for detention are met and finds it is not appropriate for the patient to remain liable to recall, it must order absolute discharge (section 73(1));
  • if criteria for detention fail but liability to recall should continue, the Tribunal must order conditional discharge (section 73(2)).

5.3.4 Section 75: Conditioned discharge, recall and applications

Section 75 is crucial in this case. It deals with:

  • section 75(1): the position where a conditionally discharged restricted patient is recalled to hospital; and
  • section 75(2)-(3): the position where such a patient remains in the community and applies for Tribunal intervention.

Under section 75(1):

  • on recall, the SSJ must refer the case to the Tribunal within one month (read in light of Rayner as “within a few days”); and
  • section 70 then applies “as if” the hospital order had been made on the day of recall.

Under section 75(2)-(3), a conditionally discharged patient who has not been recalled may:

  • apply to the Tribunal between 12 months and two years after conditional discharge, and every two years thereafter (section 75(2));
  • seek:
    • variation or addition of conditions (section 75(3)(a)); or
    • termination of the restriction order (section 75(3)(b)), which would amount to an absolute discharge in effect.

The question in Cameron is how this “community-based” application route (section 75(2)) interacts with the “recall-based” compulsory reference route (section 75(1)), when both could potentially be in play.

6. The Parties’ Submissions

6.1 The Appellant’s submissions

6.1.1 The primary role of the FTT and Article 5(4)

Mr Cameron argued that Parliament designed the MHA so that the FTT is the primary vehicle of judicial oversight for mental health detention, intended to secure compliance with Article 5(4) ECHR, which guarantees the right to a speedy judicial review of the lawfulness of detention.

On that premise, counsel submitted:

  • it would be contrary to Parliamentary intention to allow a “gap” where a patient has no access to the Tribunal, especially given the intrusive nature of mental health detention; and
  • it would be wrong to treat judicial review and habeas corpus as substitutes for the specialised and patient-oriented Tribunal procedure, unless the statutory text makes that unavoidable.

6.1.2 The “lacuna” scenario

The Appellant’s core concern was illustrated by a hypothetical repeating pattern:

  1. the patient, in the community on conditional discharge, applies under section 75(2);
  2. before that application is determined, the patient is recalled; the section 75(2) application is struck out;
  3. before the mandatory section 75(1) reference can be heard, the patient is again conditionally discharged by the SSJ;
  4. the patient is now a conditionally discharged patient who (under section 75(2)(a)) cannot apply again for 12 months;
  5. the cycle can, in theory, repeat indefinitely, so that the Tribunal never hears any application or reference.

In such circumstances, they argued, there is a real “lacuna” in FTT oversight, effectively dependent on executive will and timing, inconsistent with the structural safeguards Article 5(4) requires.

6.1.3 Construction of section 75(1)-(2) and section 70

The Appellant acknowledged that the statutory wording was “the weakest ground” in their favour but advanced a nuanced interpretation:

  • Section 70’s preconditions are that the patient is (a) restricted, and (b) “detained in a hospital”.
  • The patient’s ability to make a new application under section 70 is limited by those timing rules, but nothing in the text expressly nullifies a Tribunal jurisdiction already validly acquired before the patient re-entered detention.
  • The issue is the survival of existing jurisdiction, not the creation of new jurisdiction.
  • Accordingly, a section 75(2) application, made while the patient is in the community and valid when made, should continue despite later recall; the recall should not retrospectively invalidate or extinguish it.

This reading, they said, best fits:

  • Parliament’s intention to provide meaningful access to the Tribunal;
  • Article 5(4)’s requirement for effective judicial oversight; and
  • the Upper Tribunal’s earlier approach in DD to preserving jurisdiction in dynamic “change of status” situations.

6.2 The Secretary of State’s submissions

6.2.1 Statutory structure and purpose

For the SSJ, Ms Ailes argued that the statutory scheme and purpose point clearly the other way:

  • Section 75(2) is a specialised route for conditionally discharged patients not currently recalled, focused on varying conditions or ending the restriction order.
  • Section 75(1), by contrast, is a mandatory and automatic safeguard specific to recall, expressly designed to ensure that a patient’s return to detention is subject to rapid Tribunal review.
  • On recall, the patient’s relevant “status” is “restricted patient detained in a hospital”: the normal machinery of section 70 (as applied via 75(1)(b)) and section 73 is engaged.

The natural inference is that the recall reference is the operative mechanism and that any earlier section 75(2) process is displaced as redundant.

6.2.2 The Appellant’s position and the alleged lacuna

Ms Ailes emphasised that:

  • Mr Cameron himself was not left without access to the Tribunal: he had a full recall hearing under section 75(1), with extensive evidence and representation.
  • His earlier section 75(2) application would not have expanded the Tribunal’s powers or changed the outcome; the same evidence and legal framework would have applied.

As to the hypothetical “repeated recall and re-discharge” scenario, she argued:

  • it is “striking” that this alleged gap has not been identified in the four decades since the MHA 1983 was enacted;
  • the scenario is “unlikely in practice”, and in any event a Tribunal is highly unlikely to grant absolute discharge immediately after an SSJ recall unless that recall was irrational; and
  • in the rare case of very short detention, Strasbourg case-law indicates that Article 5(4) is not breached where the person is freed before judicial review could practicably occur at all.

6.2.3 Convention compatibility

Relying on Rayner, Ms Ailes submitted that:

  • Article 5(4) is satisfied by the combination of:
    • the SSJ’s duty to refer recall cases “within a few days”; and
    • the patient’s right to enforce that duty, or challenge detention directly, by judicial review or habeas corpus;
  • there is no Convention requirement that oversight come solely, or even primarily, via the FTT as opposed to the High Court.

7. The Court of Appeal’s Legal Reasoning

7.1 The “academic” nature of the appeal and reason to decide it

Bean LJ accepted that the appeal was “academic for Mr Cameron”, because he had in fact received a prompt and full recall hearing. Nonetheless, both parties agreed that the jurisdictional question was of general importance. The Court therefore proceeded to provide guidance, recognising that:

  • the FTT and UT had already had to make decisions in this area without clear appellate authority; and
  • further uncertainty could compromise the consistent operation of Tribunal oversight under the MHA.

7.2 The mandatory and unqualified nature of section 75(1)

The Court stressed that section 75(1)(a) imposes a mandatory, unqualified duty on the SSJ to refer a recalled patient’s case to the Tribunal within one month of return to hospital. On the face of the statute, therefore, even without Convention-based interpretation, there is a guaranteed reference.

In Rayner, however, the Court of Appeal held that to satisfy Article 5(4):

a reference “should be made ‘within days, not weeks of the return of the patient to hospital and normally within a few days’.”

Thus, the duty is strengthened by human rights principles and is consistently interpreted to require very prompt action. In Mr Cameron’s case, the referral was actually made four days after recall, consistent with this standard.

7.3 Subsuming the section 75(2) application

Against that background, Bean LJ reasoned that:

“it is in my view clear that any outstanding application by the patient under s 75(2) is subsumed in the recall hearing.”

This conclusion rests on several interconnected points:

  • FTT practice and priority: recall cases are (rightly) prioritised. No-one suggested that a section 75(2) application must be heard before the recall reference; at best, the Appellant’s position was that it should be kept on the list to be heard alongside the recall hearing.
  • Identical or overlapping issues and powers: whether proceeding under section 75(1) (recall reference) or section 75(2)-(3) (community application), the Tribunal’s eventual question is: should the patient be:
    • kept in hospital under the restriction order;
    • conditionally discharged; or
    • absolutely discharged (i.e. restriction order terminated)?
    The Tribunal’s critical powers under section 73 and section 75(3) are therefore available in either procedural setting.
  • Use of up-to-date evidence: it was common ground that, even if Mr Cameron’s section 75(2) application had survived as a separate proceeding, the Tribunal would have had to determine it by reference to the up-to-date evidence available at the hearing date, including the circumstances that led to recall. There is therefore no advantage in “preserving” an application premised on earlier community circumstances.
  • Remote likelihood of absolute discharge on recall: Bean LJ noted that, save where recall was irrational, it would be “highly unlikely” for the Tribunal to order absolute discharge in the face of a very recent recall by the SSJ. The practical interest for the patient lies in the recall reference itself, not in insisting on a separate paper trail of jurisdiction.

In short, the Court treated the section 75(1) recall reference as the natural and sufficient focus for Tribunal oversight once recall occurs, rendering any separate section 75(2) jurisdiction unnecessary and duplicative.

7.4 Addressing the “lacuna” and the decision in DD

Bean LJ then turned to the real concern animating the Appellant’s submissions: not Mr Cameron’s situation, but the hypothetical case where:

  • a patient is recalled;
  • the SSJ discharges the patient before the recall reference is heard; and
  • this pattern arguably deprives the patient of any effective Tribunal review.

He linked this to UTJ Jacobs’s earlier decision in DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice [2022] UKUT 166 (AAC):

  • In DD, a patient applied to the Tribunal while detained;
  • before the hearing, the SSJ conditionally discharged him (with the condition that he remain in prison);
  • UTJ Jacobs held the FTT retained jurisdiction over the original application, partly to avoid the risk of a series of discharges and recalls preventing the Tribunal ever hearing the case.

Bean LJ agreed that DD was correctly decided on its facts. There, preserving Tribunal jurisdiction was a rational way to ensure judicial oversight in a status-change scenario where release (conditional discharge) came before the first Tribunal hearing.

By contrast, in Cameron:

  • a recall had already occurred;
  • a section 75(1) reference had been made and adjudicated upon; and
  • the concern was not whether the Tribunal would hear a case, but which jurisdictional route (section 75(1) or 75(2)) it should properly use.

Bean LJ endorsed UTJ Jacobs’s distinction between these different “status change” fact-patterns and agreed that:

“even in the case of a patient whose status changes repeatedly, the legislative provisions governing the recall of a conditionally discharged patient, as interpreted in Rayner, provide effective judicial oversight.”

7.5 The role of judicial review and the reaffirmation of Rayner

The Court’s most significant constitutional statement is the reaffirmation of Rayner. Keene LJ’s analysis in that case was quoted and adopted:

“while section 75 of the 1983 Act, if it stood alone, might now not be regarded as sufficient to achieve the protection of article 5(4) rights… the combination of that statutory mechanism, the right of the patient to enforce the Secretary of State's statutory duty… by way of judicial review, and the right of the patient to challenge the lawfulness of his detention directly in the courts on its substantive merits by judicial review and/or habeas corpus does suffice to comply with article 5(4).”

In Cameron, Bean LJ explicitly relies on this holding to resolve any residual concern about theoretical “gaps”:

  • In Cameron itself, there was no gap: the section 75(1) recall reference was both made promptly and heard promptly.
  • In DD, any potential gap was closed by the UT preserving jurisdiction over an already-initiated application.
  • In an “even more hypothetical” case where the FTT truly had no jurisdiction at all (for example, because recall and re-discharge occurred so quickly that no hearing could be arranged), judicial review provides an adequate fallback.

The Court therefore declined the implicit invitation to revisit or dilute Rayner. Rather, it confirmed that the combination of:

  • mandatory recall references within days;
  • Tribunal priority for such cases; and
  • the availability of urgent judicial review/habeas corpus;

satisfies Article 5(4) even if not every recall results in an actual Tribunal hearing.

8. Precedents and Their Influence

8.1 R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176; [2009] 1 WLR 310

Rayner is the cornerstone of the Court’s human rights analysis. The claimant there challenged the compatibility of sections 70 and 75 MHA with Article 5(4), focusing on:

  • the fact that a recalled patient cannot themselves apply to the Tribunal until six months after return (section 70(a)); and
  • the one-month window allowed to the SSJ for making a section 75(1) reference.

The Court in Rayner concluded:

  • a Convention-compliant interpretation required the words “within one month” in section 75(1) to be read as “within days, not weeks… and normally within a few days”; and
  • even though section 75 alone might not suffice, the combined safeguards of:
    • the statutory framework;
    • the enforceability of SSJ’s duties by judicial review; and
    • direct challenges to detention by judicial review/habeas corpus;
    met the standards of Article 5(4).

In Cameron, UTJ Jacobs candidly indicated that, but for Rayner, he would have “hesitated (to say the least)” to regard judicial review as sufficient protection in circumstances like Mr Cameron’s. He treated himself, however, as bound.

The Court of Appeal accepted that it too was bound by Rayner unless a recognised exception applied, and it chose not to depart from it. Instead, it:

  • reaffirmed the compatibility logic in Rayner;
  • applied its “within days” interpretation to section 75(1); and
  • used Rayner as the key answer to the alleged “lacuna” in oversight.

8.2 DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice [2022] UKUT 166 (AAC)

Although not a Court of Appeal authority, DD significantly influenced the reasoning. In DD:

  • the patient applied to the Tribunal while detained;
  • before that application was determined, he was conditionally discharged by the SSJ, but with a condition that he remain in prison;
  • UTJ Jacobs held that the Tribunal retained jurisdiction over the original application despite the change in status.

His reasoning emphasised that:

“It is possible to construct scenarios in which a series of conditional discharges and recalls would operate to prevent the tribunal ever having jurisdiction to hear an application. That would remove any guarantee of judicial oversight. These scenarios are not fanciful. They are realistic ones for a patient with a fluctuating condition.”

Bean LJ did not cast doubt on DD. Instead, he:

  • treated it as valid authority for the proposition that Tribunal jurisdiction may survive certain status changes (e.g. discharge before a first hearing); but
  • distinguished the situation in Cameron, where recall had already triggered a distinct statutory route for oversight (section 75(1)).

The two cases are thus read as complementary:

  • DD: Tribunal jurisdiction can persist through certain changes of status (from detained to conditionally discharged) to prevent the SSJ from “dodging” oversight by sequencing decisions.
  • Cameron: where recall has already engaged an automatic oversight mechanism (section 75(1)), it is legitimate—indeed, correct—to treat any prior section 75(2) application as superseded.

9. Complex Concepts Simplified

9.1 Restricted patient

A restricted patient is someone:

  • made subject to a hospital order (detention in hospital for treatment), and
  • also made subject to a restriction order under section 41 MHA.

They are under tighter control than ordinary detained patients, because:

  • they cannot be absolutely discharged without the SSJ’s or Tribunal’s decision;
  • they remain liable to recall even after conditional discharge;
  • decisions about leave, transfer and discharge are more tightly regulated.

9.2 Conditional discharge vs absolute discharge

A restricted patient can leave hospital in two main ways:

  • Conditional discharge:
    • the person lives in the community but must comply with conditions (e.g. residence, treatment, supervision);
    • they can be recalled back to hospital any time the SSJ considers it necessary.
  • Absolute discharge:
    • the person is fully discharged;
    • the restriction order ends;
    • they are no longer liable to be recalled under that order.

9.3 Tribunal applications vs Tribunal references

The MHA distinguishes between:

  • Applications: made by the patient (e.g. section 70 or 75(2)); they are patient-initiated.
  • References: made by the SSJ (e.g. sections 71 and 75(1)); they are state-initiated and sometimes mandatory.

In Cameron, the key contrast was between:

  • a section 75(2) application (community-based, patient-initiated); and
  • a section 75(1) reference (recall-based, SSJ-initiated and compulsory).

9.4 Article 5(4) ECHR and “judicial oversight”

Article 5(4) of the European Convention on Human Rights provides that:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court…”

In the mental health context, this means:

  • there must be a practical and effective way to obtain a judicial decision on whether detention is lawful;
  • that review must be reasonably prompt, although what counts as “speedy” depends on context;
  • the review need not always be by a specialist Tribunal; ordinary courts via judicial review or habeas corpus can satisfy the requirement.

“Judicial oversight” is therefore a broad concept, covering:

  • Tribunal hearings under the MHA; and/or
  • High Court proceedings challenging the legality of detention or delay.

9.5 Judicial review and habeas corpus as “fallback” remedies

Judicial review is a High Court procedure to challenge the lawfulness of decisions by public authorities (e.g. the SSJ’s failure to refer a case promptly to the Tribunal). It can lead to orders requiring the authority to act (e.g. make the section 75(1) reference without delay).

Habeas corpus is an ancient remedy seeking the immediate release of a person unlawfully detained. Though rare in modern mental health practice, it remains available.

In both Rayner and Cameron, the Court of Appeal emphasised that these remedies:

  • are directly accessible to patients;
  • can be expedited in urgent cases; and
  • form part of the overall system by which Article 5(4) is satisfied, especially when the statutory Tribunal timetable is not met or cannot be met.

10. Practical Impact and Future Implications

10.1 For the First-tier Tribunal and Upper Tribunal

The decision provides clear operational guidance:

  • Where a conditionnally discharged restricted patient is recalled, the FTT should treat any pending section 75(2) application as subsumed by the recall reference under section 75(1).
  • It is permissible, and indeed correct, for the FTT to strike out the 75(2) application while retaining and prioritising the section 75(1) reference.
  • Tribunal lists and case management should therefore focus on ensuring that the recall reference is heard promptly, in line with Rayner.
  • In contrast, in a DD-type scenario (discharge before a first hearing), the Tribunal may, and sometimes must, preserve jurisdiction to avoid a loss of oversight.

10.2 For practitioners representing patients

Lawyers advising restricted patients should note:

  • If a client has a pending section 75(2) application and is recalled, the practical focus shifts immediately to the recall reference.
  • The Tribunal’s powers on a recall reference are sufficiently broad to consider:
    • continued detention;
    • conditional discharge; and
    • absolute discharge, if appropriate.
  • If the SSJ delays in making the recall reference, or if the Tribunal listing is unreasonably slow, an urgent judicial review to enforce the statutory duty (or to challenge ongoing detention) may be faster and more effective than waiting on the Tribunal system.
  • If a client is repeatedly recalled and re-discharged such that the Tribunal never hears the case, a strategic judicial review may be needed to address systemic issues and ensure Article 5(4) compliance.

10.3 For the Secretary of State and NHS providers

The decision underlines:

  • the continuing force of Rayner: recall references must be made “within days, not weeks” and “normally within a few days”;
  • the importance of close liaison between the SSJ and hospital trusts to ensure the Tribunal is provided with up-to-date evidence quickly;
  • that managing a patient through repeated short-term recalls and discharges in a way that avoids Tribunal oversight may be vulnerable to judicial review, even if the Court found such scenarios unlikely.

10.4 On the broader mental health law landscape

Cameron fits into a line of authority that:

  • accepts that the MHA is complex and does not foresee every possible sequence of events; but
  • expects the combination of:
    • Tribunal review mechanisms;
    • SSJ references; and
    • judicial review/habeas corpus;
    to operate together to prevent genuine absence of judicial oversight.

It also reinforces a pragmatic approach to “change of status” questions: not every change strips or preserves Tribunal jurisdiction automatically; the answer depends on:

  • the precise statutory pathway engaged (discharge vs recall);
  • the existence of alternative statutory oversight mechanisms; and
  • the necessity of ensuring that, in the round, the patient’s Article 5(4) rights are respected.

11. Conclusion

Cameron v Southern Health NHS Foundation Trust & Anor clarifies an important gap in the case law on the Mental Health Act 1983. The Court of Appeal holds that:

  • Once a conditionally discharged restricted patient is recalled under section 42(3), any pending section 75(2) Tribunal application is subsumed by the mandatory section 75(1) recall reference. The FTT is not required—and indeed not entitled—to maintain parallel jurisdiction on the community-based application route.
  • The recall reference, combined with urgent judicial review where necessary, provides the required “judicial oversight” for Article 5(4) purposes, as previously recognised in Rayner.
  • Apparent “lacunae” in oversight must be analysed in light of the combined statutory and constitutional safeguards, including the courts’ power to compel compliance with referral duties and to review the lawfulness of detention directly.

The decision thus:

  • gives concrete guidance to the FTT and UT on handling overlapping section 75(1) and 75(2) proceedings;
  • reaffirms the centrality of prompt recall references and the continuing relevance of Rayner to Article 5(4) compliance; and
  • illustrates a principled, status-sensitive approach to the Tribunal’s jurisdiction in a fluid clinical and legal context.

For mental health law practitioners, Cameron stands as the leading authority on the extinguishment (or “subsumption”) of section 75(2) applications upon recall, and on the sufficiency of the existing mix of statutory and judicial remedies to safeguard the liberty of restricted patients.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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