R (PD) v West Midlands and North Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judgment Date | 17 March 2004 |
| Neutral Citation | [2004] EWCA Civ 311 |
| Docket Number | Case No: C3/2003/2401 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2004 |
[2004] EWCA Civ 311
Lord Phillips of Worth Matravers, Mr
Lord Justice May and
Lord Justice Jonathan Parker
Case No: C3/2003/2401
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OFJUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Timothy King QC & Hugh Southey (instructed by Peter Edwards Law) for the Appellant
Nathalie Lieven (instructed by Treasury Solicitor) for the Respondent
Lord Phillips, MR:
This is the judgment of the court.
Introduction
1. The appellant, ‘D’, has been detained under section 3 of the Mental Health Act 1983 (‘the Act’) since 19 October 1994. He is presently detained in the Rathbone Hospital in Liverpool, which is part of the Mersey Care National Health Service Trust (‘the Trust’) . He applied to the respondent, the West Midlands and North West Mental Health Review Tribunal (‘the Tribunal’) to be discharged. The Tribunal met to hear his application on 16 October 2002. The medical member of the Tribunal was Dr Izmeth. Dr Izmeth was employed by the Trust as a consultant psychiatrist at the Hesketh Centre in Southport. The solicitor acting for D sought a preliminary ruling that Dr Izmeth should be disqualified from considering D's case as he was employed by the Trust. The Chair of the Tribunal ruled that Dr Izmeth was not disqualified.
2. The Tribunal went on to dismiss D's application to be discharged. They held that they were satisfied that D was suffering from schizophrenia and that the criteria necessary for detention under section 3 were established.
3. D commenced proceedings for judicial review, with permission granted by Gibbs J. He sought an order quashing the Tribunal's decision on the ground that there was an appearance that Dr Izmeth was biased. The application came before Silber J who, on 22 October 2003, gave a judgment dismissing it. Against that judgment D now appeals, with the permission of Hale LJ.
The facts
4. We will adopt the judge's summary of the material facts, which are not in dispute.
“4. The Trust provides services and staff in thirty-three premises in the Merseyside region and it is described as an “enlarged Trust” because it controls not one but a very significant number of hospitals. Mersey Care provides its service through clinical directorates which are each led by the Clinical Director and the service manager. The Rathbone Hospital where the claimant is detained forms part of the Liverpool area of the Adult Mental Health Directorate.
5. The other Adult Mental Health Directorate of Mersey Care is in the geographical area of Sefton and Knowsley which … encompasses … the Hesketh Centre where Dr Izmeth worked.”
“7. Dr Izmeth has been a medical member of the Tribunal since 1995 and he was appointed as a “fee paid part-time member”. He has also been a Consultant Psychiatrist since 1980. From 1980 to 1990, he was employed by the Mersey Regional Health Authority, during which time he was based at Greaves Hall Hospital, but he also visited Ormskirk & Southport District General Hospital. In 1991, he worked for Southport and Formby Community NHS Trust remaining at Greaves Hall until his move to the Hesketh Centre in 1992. He was then employed by North Sefton & West Lancashire NHS Trust following its creation in 1998. Between April 2001 and his retirement on 31 March 2003, Dr Izmeth was employed by the Trust, which has been established on 1 April 2001 to provide specialist mental health and learning disability services.
8. The services provided by the Trust are managed and delivered through clinical directorates which are and were managed independently of each other on a day-to-day basis with the psychiatrists only working for one specific directorate. It is noteworthy that in the field of work in which Dr Izmeth worked, namely Adult Mental Health, the directorate has been divided into two geographical areas and the psychiatrists work in one area only.
9. Although the Directorate has an overall director, each of the two geographical areas has its own Clinical Director and its own Service Manager. Liverpool City area is one such area with the Rathbone Hospital being one of the three main hospitals there. The other area is Sefton and Knowsley in which the main hospitals include the Hesketh Centre and it was that area to which Dr Izmeth was attached. It was explained that he was never expected to be on call for the Liverpool area which included the Rathbone Hospital at which the claimant was being treated.
10. Dr Izmeth stated in his witness statement that prior to the Tribunal hearing, he had never had any real practical connection with any hospital covered by the Trust other than the Hesketh Centre. He points out that he had never visited Rathbone Hospital other than as a medical member of the Tribunal. Dr Izmeth also stated that he did not know the claimant or his responsible medical officer (“RMO”) or any of the witnesses who gave evidence in front of the Tribunal, either professionally or personally.”
The law
5. Having set out the facts, the judge went on to summarise the relevant legal principles. He observed that both Article 6 of the European Convention on Human Rights and principles of natural justice recognised by our domestic public law are in play. The right to liberty is a civil right protected by Article 6 – Aerts v Belgium (1998) 29 EHRR 50 at paragraph 59. Article 6 requires that:
“In the determination of his civil rights…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
Our public law also requires that a Mental Health Review Tribunal should be composed of members who neither are, nor appear to be, biased. Under each system of law the test of apparent bias is the same – see Lawal v Northern Spirit Limited [2003] UKHL 35; [2004] 1 All ER 187 at paragraph 14 per Steyn LJ.
6. Silber J summarised the relevant principles to be deduced from recent authorities as follows:
“(a) in order to determine whether there was bias in a case where actual bias is not alleged “the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased” (per Lord hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494 [103]) . It follows that this exercise entails consideration of all the relevant facts as “the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased” (ibid [104]) .
(b) “Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson [2000] 200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”” (per Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856, 862 [14]) .
(c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situations. “One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem” (Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 [15]) .
(d) the approach of the court is that “one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule” (per Lord Steyn in Lawal v Northern Spirit Limited (supra) 864–5 [20])
(e) the need for a Tribunal to be impartial and independent means that “it must also be impartial for an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect” ( Findlay v United Kingdom (1997) 24 EHRR 221 at 224–245 and quoted with approval by Lord Bingham of Cornhill in R v Spear [2003] 1 AC 734 [8]) .”
7. Mr Timothy King QC, who appeared before us, leading Mr Southey, on behalf of D, accepted that the judge had correctly set out the relevant principles, subject to one reservation. He submitted that the judge had placed too much emphasis on the need for there to be “sufficient guarantees” of a tribunal's impartiality. This was not so much a criticism of the judge's formulation of the legal principles as a criticism of the manner in which he subsequently applied them in his judgment.
8. We would endorse the judge's summary of the relevant legal principles. We would add only this comment in relation to the judge's statement that one must consider a case where unconscious bias is alleged by examining “other similar analogous situations”. Lord Steyn stated that these “may arguably throw light on the problem”. The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focussing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to...
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