AR v West London NHS Trust and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 10 September 2020 |
| Neutral Citation | [2020] UKUT 273 (AAC) |
| Docket Number | HM/0121/2020 |
| Year | 2020 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Neutral Citation: [2020] UKUT 273 (AAC)
Judge: UTJ Jacobs
HM/0121/2020
Court and Reference: Upper Tribunal (AAC);
Facts: AR, who was detained under ss37/41 Mental Health Act 1983, made an application to a Tribunal and sought a public hearing. The Tribunal, having asked itself whether AR had capacity to apply for a public hearing, found that he did not; it then determined that he was not entitled to a public hearing as he did not have the capacity to make an informed choice. The decision was appealed to the Upper Tribunal with the permission of the Tribunal, which asked that guidance be given.
Appearances: S Miles (instructed by Abbotstone Law) for AR; the Trust was not represented, but the Clinical Director and Associate Clinical Director of the hospital provided a joint written statement; the Secretary of State was not represented and did not appear.
As the decision of the First-tier Tribunal involved the making of an error in point of law, it is SET ASIDE under s12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.
1. The patient's current detention under ss37 and 41 of the Mental Health Act 1983 dates from 1993, although he had been detained previously. On 20 February 2019, he made an application under s66 of the Act to the First-tier Tribunal. Following a change of solicitor, he applied for his application to be heard at a public hearing. The Tribunal refused, but gave permission to appeal to the Upper Tribunal. The issues on the appeal are:
(a) the patient's capacity; and
(b) the relevance of incapacity to the application for a public hearing.
2. I held an oral hearing of the appeal. The patient and his legal representatives attended. The other parties did not attend, although the Clinical Director and Associate Clinical Director of Broadmoor had provided a joint written submission. I am grateful for the legal submissions and to the patient for his personal statement of his views. The Secretary of State took no part in the proceedings.
3. As this case concerns the patient's capacity, I need to say something about his capacity to conduct these proceedings. The First-tier Tribunal had decided that he lacked capacity to apply for a public hearing, but that is a different matter from an appeal to the Upper Tribunal on a point of law. He is assumed to have that capacity in relation to that matter by virtue of s1(2) of the Mental Capacity Act 2005 and his legal representatives had no concerns in that regard. I have accordingly proceeded with this case on the basis that he has capacity to initiate these proceedings, as well as to instruct his representatives and to conduct the proceedings through them. Neither the Trust nor the Secretary of State has argued that I should assess his capacity for this appeal. Proceedings in this tribunal are, in contrast to the First-tier Tribunal, public by default.
Article 6(1) of the European Convention on Human Rights
Article 6 — Right to a Fair Trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Section 3 of the Human Rights Act 1998
3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699)
2. Overriding objective and parties' obligation to co-operate with the Tribunal
(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.
11. Representatives
(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.
…
(2) If a party appoints a representative, that party (or the representative if the representative is a legal representative) must send or deliver to the Tribunal and to each other party written notice of the representative's name and address.
(3) Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except—
(a) signing a witness statement; or
(b) signing an application notice under rule 20 (the application notice) if the representative is not a legal representative.
(4) A person who receives due notice of the appointment of a representative—
(a) must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and
(b) may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.
(5) At a hearing a party may be accompanied by another person whose name and address has not been notified under paragraph (2) but who, subject to paragraph (8) and with the permission of the Tribunal, may act as a representative or otherwise assist in presenting the party's case at the hearing.
(6) Paragraphs (2) to (4) do not apply to a person who accompanies a party under paragraph (5).
(7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where—
(a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or
(b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient's best interests for the patient to be represented.
(8) In a mental health case a party may not appoint as a representative, or be represented or assisted at a hearing by—
(a) a person liable to be detained or subject to guardianship …, or who is a community patient, under the Mental Health Act 1983; or
(b) a person receiving treatment for mental disorder at the same hospital as the patient.
38. Public and private hearings
(1) All hearings must be held in private unless the Tribunal considers that it is in the interests of justice for the hearing to be held in public.
(2) If a hearing is held in public, the Tribunal may give a direction that part of the hearing is to be held in private.
(3) Where a hearing, or part of it, is to be held in...
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AR v West London NHS Trust and the Secretary of State for Justice
...UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) UPPER TRIBUNAL CASE NO: HM/0121/2020 [2020] UKUT 273 (AAC) AR V WEST LONDON NHS TRUST AND THE SECRETARY OF STATE FOR JUSTICE Decided following a public oral hearing on 9 September 2020 using the Cloud Video Platform. Representatives The patien......