The Upper Tribunal has decided in AD’A v Cornwall Partnership NHS Trust [2020] UKUT 110 (AAC) that a patient’s application to the First Tier Tribunal ( Mental health) can still proceed even if the patient has been transferred into Guardianship (under section 7 Mental Health Act 1983 (“MHA)”).
The background was that AD’A had made an application to the First Tier Tribunal while detained in hospital under section 3 MHA but had been transferred into Guardianship (section 7 MHA) before the First Tier Tribunal hearing. The First Tier Tribunal decided in August 2019 that it did not have jurisdiction to hear the application and struck out the application.
The Upper Tribunal have now (March 2020) allowed an appeal and decided that the First Tier Tribunal was wrong to strike out the application.
The Upper Tribunal 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.
The Upper Tribunal judge decided that :
- The change of status itself does not affect jurisdiction unless it affects the constituent elements;
- The existence of a new right to apply to the Tribunal does not necessarily undermine the survival of an existing right;
- The jurisdiction remains the same, to decide whether to discharge the patient;
- The change on the parties from hospital Trust to local services authority can be done by substitution of the new party.
The Upper Tribunal 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. The Upper Tribunal judge stated that SR could be distinguished (and so not followed) because it did not relate to Guardianship, but he also went further and stated that the reasoning in the SR case was defective.
This Upper Tribunal case of A D’A v Cornwall Partnership NHS Trust sets an important precedent in relation to enabling applications to proceed where there is a change of status. It was already established law that cases could be heard on a change from section 2 MHA to section 3 MHA, and from section 3 MHA to Community Treatment Order, but this now takes this further.
The court thanked Stephen Simblet QC and Robert Pezzani of Garden Court Chambers, and Conroys Solicitors LLP for all acting pro bono.
Conroys Solicitors LLP can advise on any detention under the Mental Health Act. Please feel free to contact us on 01872 272 457 for a free initial legal advice consultation.