AH v West London Mental Health Trust and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judgment Date | 17 February 2011 |
| Neutral Citation | [2011] UKUT 74 (AAC) |
| Date | 17 February 2011 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2011] UKUT 74 (AAC)
Upper Tribunal (AAC), HM/84/2010
Carnwath LJ SPT, UTJ Levenson, UTJ Cooper
A Weereratne (instructed by Duncan Lewis and Co) for AH; V Sachdeva (instructed by Capsticks) for the Trust; the Secretary of State did not appear and was not represented.
Whether a request for a public hearing in a mental health case before a Tribunal should be allowed.
In 1986, AH was ordered to be detained under ss37 and 41 Mental Health Act 1983, having been convicted of attempted wounding; since then he had been detained in hospital and was currently in high secure conditions at Broadmoor Hospital. He was diagnosed as having psychopathic disorder; until 2008, he had been diagnosed as having mental illness and psychopathic disorder. In April 2009, he made an application to a Tribunal and sought a public hearing under r38(1) Tribunal Procedure Rules 2008, which provides that a hearing must be in private unless the interests of justice support a public hearing. His reasons centred on his perceptions of the failings of the system, including in relation to his diagnosis. The First-tier Tribunal rejected the application, but this decision was set aside by the Upper Tribunal ([2010] MHLR 326), which concluded that, whilst the presumption of a private hearing did not breach Art 6 ECHR, various factors should be considered in determining whether to allow a public hearing (namely whether it was consistent with the informed wishes of the patient, if he or she was competent, whether it would have an adverse effect on the mental health of the patient, any special factors and whether the practical arrangements could be made without a disproportionate burden). The Upper Tribunal also held that there were special factors in favour of a public hearing in light of the length of detention and the recent change in diagnosis; it then adjourned for further information on the practicalities and costs of a public hearing, the number that had been held in the past, and the practices in other common law jurisdictions and Europe.
The information provided was that only a very small number of public hearings had been sought in England in the last decade, only 1 granted (and the application was later withdrawn); only a few had been sought in Wales and none granted; and none had been held in Scotland or Northern Ireland. None could be sought in the Republic of Ireland; practice in other jurisdictions in Europe and Canada varied. As to costs, the evidence was that a half-day hearing at
Broadmoor Hospital cost £967, and that the additional costs involved in different formats of public hearing would be £400 for a video-link hearing to a public venue, £792 for a public hearing in Broadmoor Hospital and £1,739 for a hearing in a court building outside Broadmoor Hospital.
For AH, it was accepted that a public hearing inside Broadmoor Hospital would be impractical and undesirable, in light of its high secure nature. As to whether he should participate by video-link or be present off-site, it was submitted that the presumption was that he should be entitled to the full protection of Art 6 ECHR, that allowing public observation by video-link would be stigmatising and discriminatory and would increase the social isolation of AH, and the costs of a proper public hearing were not disproportionate. For the Hospital, it was suggested that particular weight should be attached to the costs in mental health cases; it was noted that prison disciplinary hearings could be held in private because of the burden on the state despite affecting the liberty of the subject.
Order:
1. Having, on 29 July 2010, in exercise of its power under s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 set aside the decision of the First-tier Tribunal dated 15 October 2010 not to grant AH ("the appellant" or "the patient") a public hearing, the Upper Tribunal now re-makes the decision in exercise of its powers under s12(2)(b)(ii).
2. The Upper Tribunal directs as follows:
- the First-tier Tribunal is to hold a public hearing of AH's appeal
- the press and public, as well as AH and his representatives, are to be enabled to attend in person in the same hearing room as the hearing takes place
- the First-tier Tribunal is to liaise with the parties to arrange appropriately secure facilities for the hearing, it being agreed that the hearing will not take place in Broadmoor Hospital, where AH is currently detained
- the matter is to...
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