[2024] UKUT 190 (AAC)

A reference made by the Secretary of State under section 75(1)(a) MHA 1983 has two consequences:

After his recall, OO had a statutory and Convention right to an effective judicial determination of his right to liberty. In this context, ‘effective’ must equate to lawful (or free of material error).

Believing that the entire care team supported his conditional discharge, OO decided not to instruct an independent psychiatrist to provide evidence to the Tribunal. That was a perfectly reasonable position for him to take given the contents of the reports that had been produced by consultant forensic psychiatrist Dr Kottalgi (report dated 12 May 2022) and OO’s then responsible clinician, Dr Padayatchi (report dated 9 September 2022), recommending conditional discharge. Generally, the courts discourage a proliferation of experts and reports, and indeed the overriding objective requires cases to be dealt with in ways that are proportionate (rule 2(2)(a) of the FtT Rules). No criticism can be made of OO’s decision not to instruct an independent expert.

However, just because the members of the team caring for OO had previously indicated their support for his discharge doesn’t mean they were bound to maintain that position: they were entitled to change their recommendations, whether due to a deterioration in OO’s mental disorder (and attendant change in his risk profile), or because it is discovered that the aftercare that would be available to OO in the community is less comprehensive than previously assumed, or simply because they changed their mind.

In this case there was no deterioration in OO’s mental state, and there were no reports of significant incidents giving rise to concerns about OO’s health or safety, or about the safety of other persons (as confirmed in paragraph [6] of the Tribunal’s reasons). Rather, the change in position was prompted by OO’s new responsible clinician, Dr Nyein, being influenced by the opinions of two other experts: Dr Brown (a consultant forensic psychiatrist in the West London Forensic Team) and Dr Baruah (another psychiatrist in the community forensic team).

On 20 November 2022 Dr Brown issued a report in connection with OO’s Crown Court proceedings (“Dr Brown’s Report”), which opined that OO was not suitable for a community placement.

This precipitated the issue of an addendum psychiatric report by Dr Nyein, which relied upon Dr Brown’s Report and opposed OO’s discharge. As explained above, there was a flurry of applications to postpone or adjourn the hearing of the reference in the light of the change in the responsible clinician’s position, but these were all refused.

The very significant change in the responsible clinician’s position so close to the hearing of the reference (Dr Nyein’s addendum report was received by OO’s representative only one working day prior to the hearing), coupled with the refusal of the applications for postponement or adjournment of the hearing, meant that OO was hindered in his ability to mount an effective challenge to the case for his continued detention.

There are two aspects to the challenge facing OO: first, the issue of “equality of arms” in terms of expert evidence, and second, the lack of opportunity to challenge the evidence of some of the experts upon whom the detaining authority (and the Tribunal) relied. I shall deal with these aspects in turn.