Cameron v Southern Health NHS Foundation Trust & Anor

Factual and Procedural Background

The Appellant pleaded guilty in October 2016 to attempted murder and, in November 2016, was made subject to a restricted hospital order under sections 37 and 41 of the Mental Health Act 1983. The Appellant was treated in a medium secure hospital and was conditionally discharged in October 2021 under section 42(2) of the Act. In October 2023 the Appellant applied to the First-tier Tribunal (FTT) under section 75(2) seeking an absolute discharge.

In January 2024 the Appellant's behaviour in the community gave rise to concerns. On 1 March 2024 officials acting for the Secretary of State (referred to below as Company A) recalled the Appellant to hospital under section 42(3). The s.75(2) application had not been heard at the time of recall. Company A made the mandatory referral to the FTT under s.75(1); initially the referral and the outstanding s.75(2) application were to be listed together.

FTT Judge Chamberlain struck out the s.75(2) application on the basis that, following recall, the FTT no longer had jurisdiction to consider it. That decision was appealed to the Upper Tribunal (UT) where Judge Jacobs affirmed the strike-out, relying in part on the combined effect of the statutory scheme and the Court of Appeal authority in R (Rayner). Permission to seek further appeal to the Court of Appeal was granted. A recall referral was heard by the FTT in July 2024 and the FTT rejected the submission that the Appellant could be absolutely discharged; the s.75(2) application had been struck out and was not considered on its own merits at that hearing.

Legal Issues Presented

1. Whether an application by a conditionally discharged restricted patient under section 75(2) of the Mental Health Act 1983, which is pending when the patient is recalled to hospital under section 42(3), is extinguished or otherwise ousted by the recall so that the FTT no longer has jurisdiction to decide that application.
2. Whether the statutory scheme (in particular ss.70–75 and s.42 of the MHA), read with the Court of Appeal's decision in R (Rayner) v Company A, provides effective judicial oversight compatible with Article 5(4) ECHR in circumstances where a pre-existing s.75(2) application is affected by recall.
3. If a lacuna exists in FTT oversight in such circumstances, whether judicial review and related remedies provide an adequate fallback to satisfy Article 5(4) ECHR.

Arguments of the Parties

Appellant's Arguments (counsel: Attorney Pezzani and Attorney Persey)

• The FTT is Parliament's chosen primary judicial safeguard for detention under the MHA; Parliament did not intend for that safeguard to be curtailed by recall so as to create a lacuna that would be left to judicial review or habeas corpus.
• If an extant s.75(2) application can be struck out on recall, a realistic hypothetical arises in which repeated quick cycles of recall and conditional discharge could prevent the FTT ever exercising jurisdiction, denying effective judicial oversight.
• Statutory construction supports the survival of an extant FTT jurisdiction acquired prior to detention because the prohibition in s.70 on a restricted patient's own application arises only when the patient is detained; nothing in the scheme explicitly nullifies a jurisdiction properly acquired before detention.
• Although the wording of the statute is a weak point for the Appellant, the consequence of permitting the FTT to retain an extant jurisdiction is consistent with Parliament's intent and with Article 5 ECHR.

Respondent's Arguments (Company A, represented by Attorney Ailes; The Hospital took no part)

• The FTT and UT decisions were correct: the statutory language and purpose indicate that a s.75(2) application does not survive recall and the FTT loses jurisdiction over that separate application once the patient is recalled and the mandatory s.75(1) referral is engaged.
• No significant practical gap arises because the mandatory referral under s.75(1) following recall provides prompt judicial scrutiny (interpreted in light of Rayner to require referral within days), and in any event the particular s.75(2) application in this case could not have produced a different outcome from the referral hearing.
• The hypothetical scenario posited by the Appellant (recall followed by rapid re-discharge before the referral is adjudicated) is unlikely in practice; even if it occurred, short detentions that end quickly before judicial review can take place do not necessarily raise Article 5(4) issues.
• Irrespective of statutory construction, no Convention breach arises because the combined statutory referral mechanism and availability of judicial review provide effective judicial oversight.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Plaintiff) v Company A [2008] EWCA Civ 176; [2009] 1 WLR 310	The need for prompt referral to tribunal following recall under s.75(1) (interpreted as within days, normally a few days); and that the statutory scheme read with the availability of judicial review/habeas corpus can, in combination, satisfy Article 5(4) ECHR.	The court applied Rayner to interpret s.75(1) as requiring a prompt referral (here made within four days) and accepted that, in circumstances where the FTT does not have jurisdiction, judicial review provides an adequate fallback to secure Article 5(4) protection.
Plaintiff v The Hospital and Company A (DD) [2022] UKUT 166 (AAC)	A UT decision that, where a restricted patient applied to the FTT but was conditionally discharged before the hearing, the FTT retained jurisdiction; this was cited as addressing scenarios where repeated changes of status could otherwise deprive a patient of judicial oversight.	The court distinguished DD on its facts (the present case involved recall followed by a prompt referral to tribunal). The Court of Appeal accepted that in DD retained FTT jurisdiction provided oversight in that factual context, but held that where a prompt referral under s.75(1) occurs (as interpreted in Rayner) the s.75(1) process subsumes any outstanding s.75(2) application.

Court's Reasoning and Analysis

The lead judgment (Judge Bean) analysed the statutory scheme, the factual chronology and the relevant authority, in particular R (Plaintiff) v Company A and the UT decision in DD. The court noted that the appeal was academic in relation to the Appellant because the mandatory referral under s.75(1) was made promptly and the Appellant obtained a prompt hearing before the FTT.

The court emphasised that s.75(1)(a) imposes a mandatory obligation on Company A to refer a recalled restricted patient's case to the FTT within one month, and, following the interpretation in Rayner, that obligation is to be read as requiring referral within a few days. In the present case the referral was made four days after recall and priority is given in practice by the FTT to recall cases.

Given that practice and the prompt referral mechanism, the court concluded that an outstanding s.75(2) application pending at the time of recall is, in practical terms, subsumed into the recall hearing under s.75(1). The court observed that it was difficult to see any practical advantage to the Appellant of maintaining a separate s.75(2) application once recall had generated a s.75(1) referral, and that the FTT would in any event have to consider up-to-date evidence (including the circumstances leading to recall) in determining the referral. The court considered it unlikely that the referral process would produce a materially different outcome from the s.75(2) application except in irrational cases.

The court acknowledged the primary concern advanced by the Appellant and earlier by Judge Jacobs: a hypothetical sequence of rapid recalls and discharges could create a scenario in which the FTT never has the opportunity to hear a patient's own application. The court addressed that concern by distinguishing the present facts from DD and by relying on Rayner to hold that, even in such hypothetical or exceptional cases where FTT oversight is not available, judicial review (and related remedies) provide an adequate fallback to secure Article 5(4) rights.

On statutory construction, the court accepted that the Appellant's textual argument (that an extant jurisdiction survives recall) was the Appellant's weakest ground and that, read as a whole (and informed by Rayner), the statutory framework provides effective judicial oversight through the prompt s.75(1) referral and, if necessary, judicial review.

Holding and Implications

APPEAL DISMISSED.

Holding: The Court of Appeal dismissed the appeal and upheld the FTT and UT decisions that the outstanding s.75(2) application did not survive the Appellant's recall in the sense that the mandatory s.75(1) referral and hearing subsumed the pre-existing application.

Implications: The direct effect is that the Appellant's challenge to the strike-out was unsuccessful and the strike-out stands. The judgment explains that, when a prompt s.75(1) referral is made (as Rayner requires), the referral process provides the judicial oversight required by Article 5(4) ECHR and ordinarily subsumes any outstanding s.75(2) application. The court also confirmed that, in exceptional factual permutations where FTT oversight may not be available, judicial review remains an available and adequate fallback to protect Article 5(4) rights. The court treated the matter as largely academic in the Appellant's case but provided guidance for future cases; it did not identify a new principle displacing the authorities it applied.