[2024] UKUT 411 (AAC)

The Tribunal had extensive case management powers under Rule 5 of the HESC Rules and it had a broad discretion how to exercise them. Appellate courts or tribunals should be slow to interfere with case management decisions of first-instance courts or tribunals.

However, where a tribunal’s management of proceedings has the consequence that a detained patient is neither present nor represented at a hearing to review his detention, whether on the basis of capacious instructions or on a ‘best interests’ basis where the patient is in capacious, and where there is therefore a risk that the patient’s Article 5(4) rights might be frustrated, it must be appropriate for the Upper Tribunal to apply more intense scrutiny.

Judge Jacobs has highlighted that following procedure rules is particularly important in mental health cases where a patient’s liberty is at stake (see PC v Cornwall Partnership NHS Trust [2023] UKUT 64 (AAC) at [14]).

Rule 35(1) sets out the default position that the tribunal must hold a hearing before making any decision which disposes of mental health proceedings (although Rule 35(3) allows an adult community patient to opt to have their reference dealt with on the papers in certain circumstances).

Rule 39 sets out the circumstances in which a hearing can proceed in the absence of the patient. Proceeding with a hearing in the absence of the patient is prohibited unless the tribunal is satisfied that proceeding is in the interests of justice and:

Ms Tyrrell, for IN, argued that Rule 39 of the HESC Rules needed to be “strengthened” to provide greater “protection” to patients who have capacity but who refuse to engage. She argued that Rule 39(2)(b)(ii) should be deleted so that a tribunal is prohibited from proceeding with a hearing in accordance with Rule 39(1) and (2)(a) unless a Rule 34 medical examination has been carried out.

The making of amendments to the HESC Rules is clearly beyond the jurisdiction of the Upper Tribunal, so I shall not express a view on it. I must review the Tribunal’s decision in terms of whether it is in accordance with the law and the procedure rules as they are, not as a party thinks they should be.

One element of the overriding objective dealing with cases fairly and justly (see Rule 2 of the HESC Rules) is “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” although, as discussed below, dealing with cases fairly and justly is multifaceted.

IN’s representative applied for an adjournment. She told the Tribunal she felt professionally embarrassed by her lack of instructions and would be unable to represent IN at the hearing, should the hearing proceed without her having the opportunity to take instructions from IN.

If a patient does not attend a hearing and the patient’s representative leaves during the course of the hearing, but after the tribunal has decided to refuse to adjourn and to proceed with the hearing in the patient’s absence, the tribunal must make a fresh assessment as to whether it is in the interests of justice to proceed taking this new factual development into account (see DA v Kent and Medway NHS & Social Care Trust [2019] UKUT 348 (AAC); [2020] M.H.L.R. 178).

In the ‘Preliminary and Procedural Matters’ section of the Tribunal’s written reasons the judge refers to the HESC Rules and specifically references Rules 2, 11, 34 and 39. It is adequately clear from its written reasons that when the Tribunal decided to proceed it did so in the knowledge that the patient wouldn’t be represented (even if it preceded her actually leaving). The judge says that the Tribunal concluded that the hearing could proceed “fairly and justly” in the absence of both IN and his representative, and no adjournment was necessary for the following reasons:

The Tribunal appears to have placed weight on its finding that IN’s representative had had a “proper opportunity” to take instructions but IN had chosen not to provide any instructions. The phrase “proper opportunity” sits uncomfortably with the Tribunal’s description of the factual background to the hearing: during the period leading up to the hearing IN was detained in conditions of seclusion, was refusing medication, and was exhibiting significant degree of mental disorder. On the sole occasion when IN’s representative attended the hospital in person, her attempts to take instructions from IN were made from outside the locked door of the seclusion room. This is, to say the least, a less than ideal setting for such a sensitive task, and it is perhaps not surprising that she was unsuccessful.

Further, because no pre-hearing examination had been requested and the hearing was in the form of a remote hearing, neither IN’s representative nor any of the panel had had an opportunity to engage with IN on the day. These factors should have led the Tribunal to consider in greater depth whether IN’s representative could really be said to have had a “proper opportunity” to take instructions, and whether an adjournment was required to facilitate more meaningful participation from IN. Similarly, while no pre-hearing examination had been requested, and the Tribunal has stated baldly that it didn’t consider that one was necessary, the Tribunal has not explained why it decided that it was unnecessary to hold one, given the circumstances that the Tribunal found itself in. Given that the hearing was a remote hearing, it is likely that conducting a medical examination before conducting the hearing would be impracticable due to the medical member not being at the hospital where IN was detained, but if it was appropriate to hold one that could be rendered practicable by adjourning the hearing to another date.

Dr Alikhan (whose evidence the Tribunal accepted on the issue of IN’s capacity to decide whether to provide instructions tohis representative) told the Tribunal that “if the hearing had been face to face it was possible that [IN] might have provided instructions”. While I agree with the Tribunal that this falls very far short of establishing that an adjournment would necessarily have achieved greater participation from IN, the fact that Dr Alikhan appears to have been able to engage with IN when he and the other witnesses from the treating team visited him during the hearing tends to suggest that there was a realistic prospect that IN might engage sufficiently to allow him to give meaningful input into his representation, and given the importance of the legal case for IN’s continued detention being tested robustly, the Tribunal should have considered, or explained, in greater depth whether proceeding with the hearing really was in the interests of justice.

In explaining its decision to refuse to adjourn the Tribunal noted that the matter had previously been listed for 22 November 2022 (six days prior to the hearing) but that had been postponed at the request of the patient’s representative. Judge Pitt says that postponement “formed part of the context that the Tribunal bore in mind when deciding to proceed with the hearing on 28 November 2022 (see paragraph 4 of its written reasons).

IN’s representative has criticised the Tribunal for taking that postponement into account, even though it had nothing to do with the patient refusing to provide instructions, and indeed that hearing had been listed before Ms Tyrrell was appointed by the First-tier Tribunal.

The overriding objective of the HESC Rules is multifaceted, requiring a tribunal to factor all aspects of dealing with cases “fairly and justly”, and the different facets can sometimes pull in different directions. Rule 2(2) provides a list of aspects which dealing with a case fairly and justly is said to “include”. The list includes not only “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” (Rule 2(2)(c)), but also more practical considerations such as “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” (Rule 2(2)(a)) and “avoiding delay, so far as compatible with proper consideration of the issues” (Rule 2(2)(e)).

Even the issue of how to protect a patient’s Article 5 rights itself involves competing considerations: on the one hand it is important to maximise the patient’s participation in the proceedings but on the other hand adjournments may jeopardise the ability to achieve an adequately speedy determination.

I am not persuaded that it was an error of law for the Tribunal to have taken the procedural history of the matter into account as part of the context of its decision whether to adjourn, but I would expect such a factor to carry relatively little weight compared to the risk that IN’s Article 5(4) rights might be infringed by the reference being determined without his being present or represented. From the Tribunal’s reasons it is not at all clear what weight it gave to the different competing factors.

At this point I pause to remind myself of the guidance that the Supreme Court gave in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, on the level of intensity of review that is appropriate when considering a challenge to the decision of a first instance tribunal. At [25] Lord Hope said that it was:

“well-established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it”

It may be that the Tribunal thought that the concerns about IN being denied an effective hearing carried less weight because the patient had an opportunity to make his own application for his detention to be reviewed by a mental health tribunal, but the reason for s68(2) is that some patients don’t make applications, and their detention still needs to be tested and a hearing of a reference should be conducted on the basis that the patient might never exercise any right to make an application. Such a patient could be waiting another 3 years before his case is referred again.

The Tribunal had an inquisitorial jurisdiction, so it is not necessarily the case that the patient being absent from and unrepresented at the hearing meant that his detention would not be reviewed effectively, but while the Tribunal “noted” the contradiction between IN asking for a representative and his refusing to engage with her, it didn’t explain in sufficient depth why it was in the interests of justice to proceed.

It is not enough for the Tribunal simply to state that it was in the interests of justice to proceed. Despite taking the restrained approach commended by Lord Hope in R(Jones) v SSWP, I find that the Tribunal’s failure to explain (a) how it balanced the competing factors for and against granting an adjournment, and (b) why it was in the interests of justice to proceed with the hearing in the absence of both the patient and his representative, renders its reasons for refusing the adjournment application inadequate. That inadequacy amounts to an error of law.