Ss37/41 Patient C-D Prior to Tribunal - Application Close?


I have a client who is currently detained in prison on a recall warrant.

He was also subject to a 37/41 hospital order and made an application to the Tribunal to appeal that. He was discharged from the s37 and now remains subject to the s41 restrictions.

I can’t lay my hands on the information as to when an application is closed (e.g. when a patient goes from s3 detention to s7 Guardianship), or when it carries on and the FtT considers the new criteria (e.g. s2 to s3).

If anyone has this particular golden nugget of information tucked away in their desk drawer and feels inclined to point me in the right direction I’d be really grateful - I know it will be bugging me all weekend otherwise!

Thanks a million :slightly_smiling_face:


I vaguely remember (but can’t find this afternoon) a case where the MOJ conditionally discharged a patient purely because it was anticipated that the forthcoming tribunal would grant an absolute discharge. In that case it was taken for granted that the conditional discharge would end the tribunal proceedings. It’s easy to see the other side of the argument (that it is merely a change in status and the tribunal retains jurisdiction) but I’m not aware of any case in which it has been argued. Maybe you should have a go!

The cases I know about are on the Change in status during tribunal proceedings page (incidentally s3 to s7 would carry on).

I think I might be misreading your original post Adam but are you saying he’s in prison in relation to a criminal matter but was subject to conditional discharge at the time of his imprisonment?

I’m a bit lost by the discharged from s37 but subject to s41 restrictions - it’s been a long week though so perhaps my brain isnt working properly.

His case is a really complex one Rob… I had to sit down and draw a sketch of the provisions he is detained under (there are multiple), when they ceased to have effect and when his SLED was.

I’m going to guess that he had been released on licence for one offence when he was given a restricted hospital order for a second offence, then made an application to the tribunal, then breached his licence conditions in hospital so was recalled to prison and conditionally discharged by the MOJ (you described it as “discharged from the s37 and now remains subject to the s41 restrictions”). Is that close?

The tribunal secretariat will likely say that the tribunal no longer has jurisdiction now that your patient has been conditionally discharged. But he has “remained throughout a restricted patient”, which seems to have been the deciding factor in CS v Elysium Healthcare [2021] UKUT 186 (AAC). Argue the toss and see what the Upper Tribunal think. I’ve not thought this through fully so might be barking up the wrong tree here!


If your client was conditionally discharged after he had appealed to the tribunal as a restricted patient, I think it may be considered that his application lapsed because appeals by restricted patients are governed by S70 whereas conditionally discharged applicants apply under S75.

A similar rationale was applied in R (SR) v MHRT [2005] EWHC 2923 (Admin) - an application by a guardianship patient lapses if, prior to the hearing, he is detained under S3 because S3 applications come within S72(1) and guardianship applications come under S72(4) - this is an explanation from Jones under S66.

Not sure if that helps.

I agree that the orthodox view is that once the patient is conditionally discharged by the MOJ the tribunal proceedings will end. That’s what I would have said until Adam asked his question. But…

I don’t think the Upper Tribunal would buy arguments based on different sections or sub-sections conferring separate rights to apply, or conferring different powers, in different circumstances, or arguments which conflate jurisdiction with powers. It would have to be that the subject matter – the status of being a restricted patient who is detained in hospital compared with the status of being a restricted patient who is conditionally discharged – is so fundamentally different as to undermine entirely the tribunal’s jurisdiction. Maybe that would depend partly on how big the difference is between conditional discharge and Community Treatment Order.

Incidentally, SR wasn’t about guardianship. It decided that an application under s3 would lapse when Supervised Community Treatment (aftercare under supervision) began under the (now repealed) s25A. However, the Upper Tribunal subsequently in AD’A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC) stated: “Its general reasoning is defective for the reasons I have given, and it should not be applied beyond its immediate context, which no longer obtains.” In AD’A it was decided that the tribunal retains jurisdiction after transfer from s3 detention to s7 guardianship.

Yes, SR wasn’t about guardianship. The comment I put there is from The Jones, that’s another example he gave - 20th ed, p.403.

1 Like

Thanks for the clarification :+1:

I can’t find that commentary in the 24th edition. I don’t know of any reported case where the patient moved from s7 to s3, but I imagine the s3 to s7 AD’A approach would be adopted now.

Just as an update on this, I submitted the UT appeal this week, so I guess we’ll see where it goes

1 Like

Following an appeal to the Upper Tribunal after the FtT decided that it did not retain jurisdiction to consider an application made by a ss37/41 if they were conditionally discharged prior to the hearing, the Upper Tribunal handed down the decision on the 9th July 2022

UT Jacobs decided that the Tribunal does retain jurisdiction to consider such applications following the change in status from ss37/41 to s41 before the hearing.

The case citation is DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice, MIND intervening [2022] UKUT 166 (AAC).

I instructed Roger Pezzani from Garden Court, and Rheian Davies from MIND (an Intervener) instructed Stephen Simblet QC.

1 Like

Well done. A Saturday judgment! I’m sure it’ll appear on BAILII soon, but if you were to send it to me I would put it on MHLO straight away.

Thanks @AdamMarley for emailing the judgment. It’s now on MHLO at DD v Sussex Partnership NHS Foundation Trust [2022] UKUT 166 (AAC), and I’ve added it to the list on the Change in status during tribunal proceedings page.