GL v Elysium Healthcare Hospital
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Markus |
| Judgment Date | 09 November 2020 |
| Neutral Citation | [2020] UKUT 308 (AAC) |
| Docket Number | HM/915/2020 |
| Year | 2020 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
and
Neutral Citation: [2020] UKUT 308 (AAC)
Judge: UTJ Markus QC
HM/915/2020
Court and Reference: Upper Tribunal (AAC);
Facts: GL, who was detained under ss37/41 Mental Health Act 1983, resided with another patient in a self-contained flat adjacent to a hospital ward. His case was referred to a Tribunal, and, in accordance with a Practice Direction issued because of the COVID-19 pandemic, a telephone hearing was listed for 2 April 2020. On the morning of the hearing, GL and his flatmate were advised to self-isolate as a patient on the ward had tested positive for COVID-19. The Tribunal requested that a nurse take a telephone to GL. GL's legal representative raised concerns that this had breached the isolation requirements, and, after consultation, indicated that GL did not wish to participate in the hearing because of concerns about being overheard by his flat-mate (who was in his bedroom), in particular about his offending. A request for an adjournment was refused on the basis that the hearing was still fair and GL's failure to participate was largely based on his anxiety. The Tribunal upheld detention. The Upper Tribunal granted permission to appeal and determined the matter on the papers.
Under r39 Tribunal Procedure Rules 2008, the Tribunal may proceed in the absence of a party who has been given notice if that is in the interests of justice; if the absent party is a patient, the Tribunal must be satisfied that non-attendance is for health reasons and he or she has been seen by the medical member of the Tribunal or such an examination is impractical or unnecessary. A further Practice Direction indicated that pre-hearing medical examinations were impractical during the pandemic.
Representatives: Wolton and Co for GL; the Respondents did not appear.
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 2 April 2020 under number MM/2020/00689 was made in error of law. Under s12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a differently constituted panel.
1. The Appellant (GL) was at all relevant times detained under the Mental Health Act 1983 (MHA) pursuant to a hospital order with restrictions. His case was referred to the First-tier Tribunal (FTT) by the Secretary of State for Justice on 17 December 2019 under s71(2) MHA. A telephone hearing was listed for 2 April 2020.
2. At the date of the hearing GL resided in a self-contained flat, adjacent to the ward, with another patient. On the morning of the hearing...
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GL v 1. Elysium Healthcare Hospital; 2. Secretary of State for Justice (HM)
...requested an adjournment. The tribunal refused. 1 GL v 1. Elysium Healthcare Hospital; 2. Secretary of State for Justice (HM) [2020] UKUT 308 (AAC) HM/915/2020 3. In the decision notice, the FTT set out the relevant facts and addressed the adjournment application as “Initially the Tribunal ......