AD'A v Cornwall Partnership NHS Trust
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 30 March 2020 |
| Neutral Citation | [2020] UKUT 110 (AAC) |
| Docket Number | HM/2447/2019 |
| Year | 2020 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Neutral Citation: [2020] UKUT 110 (AAC)
Judge: UTJ Jacobs
HM/2447/2019
Court and Reference: Upper Tribunal (AAC),
Facts: On 16 May 2019, AD'A was detained under s3 Mental Health Act 1983; on 22 May 2019, she applied under s66 to a Tribunal; on 14 June 2019, she moved to a care home on leave under s17; on 27 June 2019, she was placed under guardianship under s7. The Tribunal struck out the application, finding that it no longer had jurisdiction in light of the placement under guardianship. This was appealed to the Upper Tribunal. In the meantime, AD'A made a further application to a Tribunal pursuant to the guardianship placement and a hearing was held as a result.
Appearances: S Simblet QC and R Pezzani (instructed by Conroys Solicitors) for AD'A; the Trust did not appear and was not represented.
Although the decision of the First-tier Tribunal involved the making of an error on a point of law, it is NOT SET ASIDE under s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
1. As I said at the hearing, I am grateful to all those representing the patient for acting pro bono in this appeal. They have done a service to the patient, to the Upper Tribunal, and to the clarification of the law on the issue that arises.
2. The patient, as I will call her, became subject to s3 of the Mental Health Act 1983 on 16 May 2019. She applied to the First-tier Tribunal under s66 on 22 May 2019. She was sent to a care home on s17 leave on 14 June 2019 and was received into guardianship under s7 on 27 June 2019.
3. That sequence of dates raises the issue whether the tribunal had jurisdiction over the application after the guardianship came into effect. It decided that it did not and therefore struck out the proceedings under r8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). I have decided that that was wrong, as the tribunal retained jurisdiction.
4. The patient has since been moved to another care home and made another application to the tribunal, which has been decided.
5. There are circumstances in which the tribunal retains jurisdiction despite a change in the patient's status after the date of their application but before it is heard and decided. The Upper Tribunal decisions are:
• Detention changed from s2 to s3: KF v Birmingham and Solihull Mental Health Foundation Trust[2010] MHLR 201.
• Detention under s3 changed to a community treatment order: AA v Cheshire and Wirral Partnership NHS Foundation Trust[2009] MHLR 308.
• Detention under s3 (after a community treatment order had been revoked) changed to a new community treatment: PS v Camden and Islington NHS Foundation Trust[2011] MHLR 159.
6. I am also considering at the moment the position when a patient who was detained under s3 is made the subject of a hospital order without a restriction order while a reference to the tribunal is pending: GM v Dorset Healthcare NHS Trust and the Secretary of State for Justice[2021] MHLR 107.
7. A tribunal has authority only to operate within the jurisdiction conferred on it by statute. If it has no jurisdiction, it is under a duty to strike out the proceedings. In the case of the First-tier Tribunal's mental health jurisdiction, that duty is imposed by r8(3)(a).
8. The nature of jurisdiction was defined by Diplock LJ in Garthwaite v Garthwaite[1964] P 356 at 387:
In its narrow and strict sense, the ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed on its power to hear and determine issues between persons seeking to avail themselves of its process by reference
(i) to the subject-matter of the issue, or
(ii) to the persons between whom the issue is joined, or
(iii) to the kind of relief sought, or any combination of these factors.
9. This does not mean that a tribunal necessarily loses jurisdiction if 1 of those 3 factors is wrong or changes. Thinking of a typical civil proceeding, like a personal injury claim:
(i) the pleadings may need to be amended – for example, to add an additional head of claim;
(ii) a party may need to be removed or added – for example, the defendant may be changed from a doctor to the Trust for whom the doctor worked; and
(iii) the relief sought may be altered – for example, to add a claim for interim relief.
The rules under which these changes are permitted cover 2 possibilities:
(a) they allow mistakes to be corrected in the way that the proceedings were originally constituted; and
(b) they allow changes to be made in the light of developments. In other words, once a tribunal has acquired jurisdiction, it may be possible under its rules of procedure to make changes that allow it to retain jurisdiction.
10. A tribunal's jurisdiction is different from the powers it has within that jurisdiction. These may change if the law changes or if the circumstances of the case change.
11. These general points translate to the context of this case like this: as the proceedings were originally properly constituted, the rules of procedure may allow the parties to be changed and the substantive powers and duties available to the tribunal may change to reflect the change in the patient's status. The issue therefore becomes whether those results would be consistent with the Mental Health Act 1983.
12. These are the relevant provisions of the Mental Health Act 1983:
3. Admission for treatment
(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that—
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
…
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical...
To continue reading
Request your trial
-
AD'A v Cornwall Partnership Trust
...Cornwall Partnership NHS Trust [2020] UKUT 110 (AAC) THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL CASE NO: HM/2447/2019 AD’A V CORNWALL PARTNERSHIP NHS TRUST Decided following an oral hearing on 23 March 2020 by telephone Representatives Patient Stephen Simblet QC and ......