Open justice

The Upper Tribunal recently made a landmark decision by ordering that the First-tier Tribunal hold a public hearing of a patient’s application for discharge from hospital. Rob Tobin examines the case.

In the case of AH v West London Mental Health Trust [2011], the applicant, AH, has been continuously detained under the Mental Health Act 1983 for over 20 years, residing at Broadmoor Hospital since January 2008. In September 2008 the classification of his mental disorder was changed from having a mental illness and psychopathic disorder to having a psychopathic disorder only. He is judged to have mental capacity to make his own decisions.

AH applied to the First-tier Tribunal for a public hearing of his discharge. The principal reasons for seeking a public hearing included frustration about the lack of progress with his mental health and the perceived failings in the system of care, including the question of his diagnosis, which he wished to have a public airing.

The First-tier Tribunal (15 October 2009)

The First-tier Tribunal held that the hearing should be in private - the “general principle” of open justice was not justified in the interests of justice. The main reasons relied upon included:

• The patient’s primary intention was to air his subjective grievances about the system
• His evidence would not be “objectively sensible”
• He would be more difficult to control and the public would be unlikely to be accurately informed
• The cost and management problems of a public hearing were disproportionate to any benefit to the patient, public or administration of justice
• The patient’s health, behaviour and progress were likely to be adversely affected by a public hearing (and by adverse or no publicity afterwards).

AH appealed.

Appeal

On 29 July 2010, the Upper Tribunal accepted that the underlying assumption is that the interests of justice will normally require a hearing in private in mental health cases. However, the Tribunal emphasised that the principal consideration remains the protection of the interests of the patient. It held that the fundamental principle to open justice is a right under common law and specifically, under Article 6 of the European Convention on Human Rights (the Convention). It is the exceptions which need to be justified, as opposed to the right per se. Senior President of Tribunals, Lord Justice Carnwath, said: “The European Convention on Human Rights requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person.”

Specifically, the threshold test which the Upper Tribunal held as requiring consideration in an application for an open hearing is:

• Is it consistent with the subjective and informed wishes of the (competent) applicant?
• Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him?
• Are there any other special factors for or against a public hearing?
• Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

With regard to the issue of “special factors”, the Tribunal recognised the need for a careful balance between speculation and clinical judgment. Nevertheless, the views of the patient himself were highlighted as carrying considerable weight (in the absence of other countervailing factors).

The Upper Tribunal set aside the decision of the First-tier Tribunal and directed a further hearing on 31 January 2011 to consider the practicalities and potential costs of providing a public hearing. The Tribunal concluded that how the right to a public hearing can practically and proportionately be achieved will depend on the individual case and will include the facilities available. In this case, arrangements were recommended for relaying the on-site hearing to a public arena, with use of video facilities. With regard to cost, the Tribunal held that “considerations of cost must reach a high threshold before they can be regarded as sufficiently disproportionate to permit a restriction of a public hearing.”

Comment

As accepted by the Upper Tribunal, this case was “out of the ordinary”. Indeed, the Tribunal heard evidence that over the last seven years, there had been 10 applications for tribunal hearings in public out of approximately 100,000 hearings. Of those, only one application was granted (which was subsequently withdrawn).

Private hearings are generally favoured by all interested parties. Patients tend to prefer them as they provide protection against details of their personal health being publicised. A patient’s mental state will be closely scrutinised at a tribunal hearing, where the main consideration will be their mental health and whether or not they ought to remain detained under the Mental Health Act. This supports the general principle that such hearings will be held in private, to protect such vulnerable individuals, unless an application is made to the contrary.

It is, therefore, not surprising that a tiny proportion of applications for public hearings have been made.

As a result of this case, though, there may be a slightly faster flow of applications for public hearings and trusts and managers of other secure facilities should be prepared to consider the feasibility of organising one, should it be ordered.

It is likely that, when an application is made, the detaining organisations will be asked the following:

• Does the patient have the required mental capacity to apply for a public hearing?
• Will a public hearing have an advsere effect on the patient’s mental health in the short or long term? (A statement from the responsible clinician should be provided).
• What are the patient’s reasons for wanting a public hearing and how do those weigh against the opposing factors?
• What facilities are available to hold a hearing in public and what practical hurdles, if any, will need to be surmounted? Cost and technological matters to facilitate the hearing should be considered.

Whether the decision will open the doors to the previously private setting of first-tier mental health tribunals remains to be seen. However, the significant implications for the way mental health tribunals function are apparent.

Rob Tobin is a partner at Kennedys (www.kennedys-law.com). He can be contacted on 020 7667 9305 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..