To date mental health tribunal hearings in England have been held in private. Claire Bentley and Simon Lindsay report on the landmark decision of AH v West London MHT [2011] UKUT 74 (AAC) allowing a mental health patient to have a public hearing of his application for discharge from hospital with members of the press and the public present.

The background

AH was convicted of attempted wounding in September 1986 and detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983. His mental disorder was classified as mental illness and psychopathic disorder but was reclassified as psychopathic disorder alone in September 2008.

In April 2009 AH applied to the tribunal for discharge and applied at the same time for his appeal to be heard in public. AH’s application for a public hearing was refused by the First-tier Tribunal and he appealed to the Upper Tribunal. In March 2010 a further Direction was issued stating that the appeal involved an important point of principle and practice and should be decided by three judges which took place in July 2010.

Tribunal Hearing in July 2010

Rule 38(1) of the Tribunal Procedure (First–tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provides that all hearings must be held in private unless the Tribunal considers that it is in the interests of justice for the hearing to be held in public.

The Upper Tribunal set aside the decision of the First–tier Tribunal not to grant a public hearing and said that Rule 38(1) is not incompatible with Article 6 ECHR which protects the right to a fair and public hearing but said that the following four factors (“the threshold test”) must be considered in deciding whether to direct a public hearing:

  • Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? - It was not in dispute that AH was able to make an informed choice and that he recognised that by having a public hearing he was waiving his right to privacy.
  • Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? - In relation to AH the Tribunal said that although the arguments for both sides were finely balanced, the views of the patient should carry considerable weight in the absence of other countervailing factors.
  • Are there any other special factors for or against a public hearing? - Despite the fact that the experts for both sides agreed that the patients detention in Broadmoor remained the only realistic option and that discharge was unlikely, the Tribunal considered that this particular case had some heightened public significance with wider potential implications. This was because the patient has been detained at public expense for over 23 years, often in conditions of high security, and recently there had been a change in his diagnosis.
  • Can practical arrangements be made for an open hearing without disproportionate burden on the authority? - The Tribunal said that mental health patients should have the same right of access to a public hearing as any other citizen. This can only be refused if it imposed a truly disproportionate burden on the state.

The Tribunal did not make a decision as to whether a public hearing could take place and directed instead that a further hearing should take place at which additional evidence should be presented in relation to the potential cost of public hearings, practicalities of public hearings to include the use of video links, frequency of applications at other hospitals and the practice in other countries.

Tribunal Hearing in February 2011

The Upper Tribunal decided:

  • When determining whether a hearing should be in public the threshold test or the four factors should be taken into account.
  • If the threshold test has been satisfied, Article 6 of the ECHR (re-enforced by Article 13 of the Convention on the Rights of Persons with Disabilities) requires that a patient should have the same or substantially equivalent right of access to a public hearing as any other citizen who has been deprived of their liberty.
  • Considerations of cost must reach a high threshold before they can be regarded as sufficiently disproportionate to permit a restriction of a public hearing.
  • In order to avoid delay in the present case the First Tier Tribunal should hold a public hearing of AH’s appeal with the press, public, AH and his representatives present in person in the same hearing room. The hearing was not to take place in Broadmoor Hospital and the parties were to arrange for an appropriate secure facility. This individual hearing would not cause a disproportionate burden on the hospital.
  • If similar cases arise in the future, it may be possible for mental health hospitals to make arrangements for a video link to suitable off site premises where interested members of the press/public can view the proceedings.

Public Hearings in other jurisdictions

In Scotland, Northern Ireland and Wales public hearings are permitted but have not taken place. The occasional requests that have been made in Wales have been refused on the ground that it would not be in the patients best interests. In the Republic of Ireland and Hungary hearings are in private. In the Czech Republic, Russia and Bulgaria hearings are held in public.

Cost of a public hearing

The cost of a usual half-day review hearing in private was estimated by the Clinical Director of Broadmoor Hospital to be £967. Figures relating to the additional costs per day for the different formats of public hearing were estimated by him as follows:

  • (a) public hearing within Broadmoor: £792
  • (b) public hearing outside Broadmoor at a court building or tribunal office (with the court or tribunal providing its usual services): £1,739
  • (c) patient remaining within Broadmoor giving video link evidence with the public elsewhere (and the court or tribunal service meeting the costs of the public venue): £400.

In total he estimated that the additional costs to Broadmoor could be in the region of £150,000 per year (based on 170 tribunals per year) and that the costs to the NHS would be significant.

What are the implications of this case?

Broadmoor may seek leave to appeal this decision. If they are not successful, all decisions in relation to whether or not a hearing is public will be made on a case by case basis. 

Patients

This decision confirms that mental health patients are entitled to the same right of access to a public hearing as any other citizen if the threshold test is met. Nevertheless it is likely that only a small minority of patients will want a public hearing and the Upper Tribunal believe that it is unlikely that a public hearing will be ordered other than in a relatively few cases. However there are likely to be more applications now made by patients who do wish to have their tribunal hearings in public.

It is likely that the threshold for assessing capacity to decide on a public hearing will be set quite high bearing in mind the second limb of the test. It is significant that AH's diagnosis was amended from mental illness and personality disorder to personality disorder alone. For detained patients suffering from active mental illness, it may be difficult to find that they are able to make an informed choice and that a public hearing will not in the short or long term have an adverse effect on a patient's mental health.

Victims of Mentally Disordered Ofenders

No direct consideration during the course of the Tribunal was given to the position of the victims of mentally disordered offenders. Some victims may fear renewed public curiosity and comment and be too anxious to make any representations at all, if it is possible they may end up in the public arena. This would of course impact on the broad range of information that a Tribunal might have before it in relation to risk. However when considering an application for a public hearing, if there are relevant victims, the Tribunal could take into account their views under the third of the threshold tests.

Mental Health Services

Staff need to be aware of the test to be applied, ensure that an appropriate capacity assessment has occurred and that consideration is given to the issues before a hearing. Otherwise there will be a risk of adjournment whilst such issues are explored.

Mental health services need to think about how they are going to facilitate public hearings where necessary.

It is likely that the costs would have to be very much greater than those put forward by Broadmoor before they would be considered disproportionate. Nevertheless, this decision potentially has significant implications for mental health services in terms of cost.