EB v Dorset Healthcare NHS Trust
| Jurisdiction | UK Non-devolved |
| Judge | Farbey J,UTJ Jacobs,UTJ Ramshaw |
| Judgment Date | 16 December 2020 |
| Neutral Citation | [2020] UKUT 362 (AAC) |
| Docket Number | HM/1456/2020 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
and
Neutral Citation: [2020] UKUT 362 (AAC)
Judges: Farbey J (Chamber President), UTJ Jacobs, UTJ Ramshaw
HM/1456/2020
Court and Reference: Upper Tribunal (AAC);
Facts: Under s22 and Sched 5 Tribunals, Courts and Enforcement Act 2007, Tribunal Procedure Rules are made by the relevant committee, subject to approval by the Lord Chancellor, and issued through a Statutory Instrument that may be annulled by either House of Parliament. Under s23 of the 2007 Act, the Senior President of Tribunals may issue Practice Directions as to matters of practice and procedure, which are subject to approval by the Lord Chancellor.
ED, who was detained under s3 Mental Health Act 1983, applied for a Tribunal to order her release; it was scheduled to meet on 2 October 2020. Under r34 Tribunal Procedure Rules 2008, a pre-hearing examination (PHE) of the patient must be carried out by the medical member of the Tribunal “so far as practicable” (subject to the patient not wishing one), in order to form a view of the patient's condition. Under r2 of the 2008 Rules, the Tribunal must exercise powers and interpret rules or practice directions in accordance with the overriding objective of dealing with cases fairly and justly. A Pilot Practice Direction issued in March 2020 set out that PHEs were not practicable during the COVID-19 pandemic because of the health risk they posed. An Amended Pilot Practice Direction of September 2020 (APPD) indicated that PHEs were not practicable unless a full-time Tribunal judge directed that “in the exceptional circumstances of a particular case it shall be practicable for such a pre hearing examination to take place, having regard to the overriding objective and any health and safety concerns”.
ED's solicitor requested a PHE, noting her anxiety and difficulty in speaking, which might cause her to leave the hearing prematurely, and suggesting that a PHE would assist her participation. This was rejected on the basis that a PHE was not designed to facilitate her participation, that her anxiety could be addressed in other ways, given the flexibility permitted by the Rules, that PHEs were exceptional and the overriding objective did not require a PHE for a fair hearing. The central issue raised on appeal was the proper interpretation of “exceptional circumstances”.
Representatives: S Waters (of the Mental Health Practice) for EB; J Holborn (instructed by the Government Legal Department) for the Lord Chancellor; the Trust did not appear.
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. This is the decision of a 3-judge panel of the Administrative Appeals Chamber appointed by its President to deal with an urgent and important issue of the conditions that have to be satisfied before the consultant member of a panel of the First-tier Tribunal in a mental health case must conduct a Pre-Hearing Examination (PHE from now on) of the patient.
2. We are grateful to the parties for their co-operation in ensuring that this case was heard so quickly and to Mr Waters and Mr Holborn for their clear and practical arguments.
3. The Senior President of Tribunals has given 2 practice directions dealing with PHEs. We call the first direction of 19 March 2020 PPD and the amended direction of 14 September 2020 APPD. They are set out in the Appendix to this decision. They were made against the practical difficulties of conducting a PHE which suddenly arose at the beginning of the COVID-19 pandemic. PPD provided that it would not be practicable to carry out a PHE:
8. During the COVID-19 pandemic it will not be ‘practicable’ under rule 34 of the 2008 Rules for any PHE examinations to take place, due to the health risk such examinations present.
That direction is not in issue before us. This case concerns APPD, which provides:
8. For the duration of this Pilot Practice Direction it shall be deemed not practicable under rule 34 of the 2008 Rules for any pre-hearing examinations to take place, unless the Chamber President, Deputy Chamber President or an authorised salaried Judge direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre hearing examination to take place, having regard to the overriding objective and any health and safety concerns.
The issue for us is the interpretation of that paragraph and, in particular, whether the reference to exceptional circumstances introduces a new element into r34.
4. EB was liable to be detained under s3 of the Mental Health Act 1983. She has now been discharged, which is why we have not set aside the tribunal's decision despite it being made in error of law.
5. EB applied to the First-tier Tribunal on 10 August 2020 and the hearing was fixed for 2 October 2020. Her solicitor applied for a PHE on 17 September 2020:
Details of the request with reasons: Permission is sought for a Prehearing examination.
The reason for the application is —
1. Ms B… is only 19 years of age.
2. She is very keen to have a Tribunal hearing but also is very anxious about the hearing.
3. She finds it particularly difficult to speak to, and put her point across to, a group of people even on a video link.
4. Ms B… fears that her nerves may get the better of her at the Tribunal and that she will have to leave the hearing prematurely without being able to give evidence to the Panel.
5. She finds it much easier to communicate on a 1:1 basis and so if she has a Prehearing examination she is confident that she would be able to participate in the Tribunal to the best of her ability and so she is more likely to have a fair hearing.
6. The application was refused by Judge Holdsworth on 18 September 2020 on these grounds:
2. The Amended Pilot Practice Direction applies; this highlights the purpose of a PHE. I also note the background factors that are listed in this Direction.
3. There is no identified disputed issue in the proceedings about the patient's mental condition that, if resolved in the patient's favour, would tend towards her discharge from section (and even if there is one, independent medical evidence would be sufficient to ventilate the issue at the hearing and provide sufficient information for the panel to resolve the dispute).
4. In essence, the argument here is that a PHE will...
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EB v Dorset Healthcare NHS Trust and the Lord Chancellor
...TRIBUNAL CASE NO: HM/1456/2020 [2020] UKUT 362 (AAC) EB V DORSET HEALTHCARE NHS TRUST AND THE LORD CHANCELLOR THE UPPER TRIBUNAL ORDERS THAT: (a) No one shall publish or reveal the name or address of the Appellant who is the subject of these proceedings or publish or reveal any information ......