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Tribunal’s refusal of hearing overturned by Upper Tribunal - Detained patients entitled to hearing when detention circumstances change

Thursday 9 April 2020

Stephen Simblet QC and Roger Pezzani of the Garden Court Chambers Civil Liberties Team represented the appellant, instructed by Conroys Solicitors.

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Following arguments from Stephen Simblet QC and Roger Pezzani in AD’A v Cornwall NHS Partnership NHS Trust [2020] UKUT 110 (AAC) , Upper Tribunal Judge Jacobs allowed an appeal against a patient’s tribunal application being struck out.

UT Judge Jacobs decided that a patient who had applied for a tribunal hearing, when she had been detained under section 3 MHA, should have still been able to pursue that hearing after her transfer into guardianship under section 7 MHA.

He accepted arguments that the tribunal still had jurisdiction, since jurisdiction was conferred by the application had been validly made, and what had changed was the way in which that jurisdiction would fall to be exercised.

He considered that a previous case, R (SR) v Mental Health Review Tribunal had been wrongly decided and should not have led the first tier tribunal to strike out the tribunal application. UT Judge Jacobs accepted the argument that to hold otherwise could mean that patients whose detained status changed several times could, through the unavailability of a tribunal hearing, be deprived of the judicial oversight that is so important to the proper operation of the Mental Health Act 1983.

The case is likely to have implications for other patients whose status changes.

The court thanked Stephen Simblet QC and Robert Pezzani of Garden Court Chambers, and Conroys Solicitors, Truro, for all acting pro bono.

Stephen Simblet QC and Roger Pezzani are members of Garden Court’s Civil Liberties Team.

A link to the judgment is here.

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