Mersey Care NHS Trust, R (on the Application of) v Mental Health Review Tribunal & Ors [2004] EWHC 1749 (Admin)

Case No CO/5681/2003[2004] EWHC 1749 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 22 July 2004
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE BEATSON
Between
R (MERSEY CARE NHS TRUST)Claimant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Eleanor Grey (instructed by Messrs Capstick Solicitors) for ClaimantMs Anneli Howard (instructed by the Treasury Solicitor) for DefendantMr Kris Gledhill(instructed by Roberts Moore Nicholas Jones) for First Interested Party
Judgment
[1]Rule 21 of the Mental Health Review Tribunal Rules 1983 SI 1983 No 942 creates a presumption that hearings before mental health review tribunals are in private. The vast majority of hearings are in private. Thus, the evidence in the present case is that, in the case of Ashworth Hospital, of some 600 tribunal hearings between January 2000 and January 2003, only one at most may have been held in public. In this case the Claimant, the Mersey Care NHS Trust, which is responsible for Ian Stuart Brady, a restricted patient at Ashworth Hospital, challenges the decision of the Mental Health Review Tribunal made on 4 September 2003 to hold his statutory review hearing in public, following a request by Mr Brady. The Claimant argues that the Tribunal’s decision is flawed by reason of errors of law as to its powers to control the publicity given to the proceedings, its failure to take account of considerations other than whether Mr Brady had made a “valid” request for a public hearing and whether such a hearing would be contrary to the patient’s interests, and the inadequacy of the reasons it gave for its decision.[2]It appears that Mr Brady, who has not taken part in previous reviews of his detention by the tribunal, wishes a public hearing in order to air his complaints against Ashworth Hospital and his desire to be moved from there. Four years ago Mr Brady unsuccessfully challenged the hospital’s decision to feed him forcibly after he had started a hunger strike. In R v Collins & Ashworth Hospital Authority, ex parte Brady [2000] Lloyds Medical Reports 355 Maurice Kay J, as he then was, held that Mr Brady lacked capacity in relation to all his decisions about food refusal and force feeding.[3]These proceedings were launched on 27 October 2003. Ian Stewart Brady and the Home Secretary are named as interested parties. Neither the tribunal nor the Home Secretary have taken part in the proceedings. However, on behalf of the tribunal Miss Anneli Howard was present in court during the hearing before me and took a note. On 4 November 2003 Maurice Kay J, as he then was, made an order that neither Mr Brady’s name nor any information likely to lead to his identification be published or otherwise disclosed. Permission was given on 2 December 2003 by Munby J who ordered expedition.[4]On 7 April 2004, Leveson J sitting in private, refused an application by Mr Brady that he be permitted to attend the hearing of this application. He also discharged the injunction granted by Maurice Kay J restraining the publication of Mr Brady’s name or information likely to lead to his identification but ordered that the injunction restraining any person from inspecting documents filed in the matter save by application be continued and be extended to the claim form. Leveson J ordered the hearing of the application for judicial review to be held in public in so far as it concerned issues of law alone but to be held in private in so far as it concerned the application of those issues of law to the facts of the case or otherwise raising matters relating to Mr Brady’s medical condition or any other issues of fact. He directed that the skeleton arguments to be lodged be drafted in two parts, reflecting this division. Accordingly Miss Grey, who represented the Claimant, and Mr Gledhill, who represented Mr Brady, each served two full and very helpful skeleton arguments. The public part of the hearing took place on the morning of 28 June. The private part took place on that afternoon and on the following day.[5]In view of the way the hearing was conducted, this judgment refers to the facts in as brief a way as is consistent with my duty to explain my decision.

The Legal Framework (a) Legislation

(a) Legislation

[6]The Mental Health Act 1983 (hereafter “the 1983 Act”) is a consolidating act. By section 71(2) the Secretary of State is required to refer the case of any restricted patient detained in a hospital whose case has not been considered by a mental health review tribunal within the last three years to such a tribunal. Where a patient who has been transferred from prison to hospital under section 47 Act is referred to a mental health review tribunal, by section 74(1) the tribunal: “(a) Shall notify the Secretary of State, whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged… and (b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he could continue to be detained in hospital.”

and

[7]If the Tribunal consider that the patient is entitled to be conditionally or absolutely discharged because he is no longer suffering from a mental disorder which requires treatment in hospital, unless the Secretary of State gives notice that the patient may be discharged he will be transferred back to prison to resume serving his sentence unless the Tribunal has recommended that in the event the patient is not discharged he should be allowed to remain in hospital.[8]By section 78 of the 1983 Act:
“(1) The Lord Chancellor may make rules with respect to the making of applications to mental health review tribunals and with respect to the proceedings of such tribunals and matters incidental to or consequential on such proceedings. (2) Rules made under this section may in particular make provision - ….. (e) for enabling a tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the names of any persons concerned in such proceedings; ….. (5) Rules under this section my be so framed as to apply to all applications or references or to applications or references of any specified class and may make different provision in relation to different cases.”
[9]The Mental Health Review Tribunal Rules 1983 SI 1983 No 942 (hereafter “the 1983 Rules”), made pursuant to section 78(1) provide:
“Privacy of proceedings 21-(1) The tribunal shall sit in private unless the patient requests a hearing in public and the tribunal is satisfied that a hearing in public would not be contrary to the interests of the patient. (2) Where the tribunal refuses a request for a public hearing or directs that a hearing which has begun in public shall continue in private the tribunal shall record its reasons in writing and shall inform the patient of those reasons. (3) When the tribunal sits in private it may admit to the hearing such persons on such terms and conditions as it considers appropriate. (4) The tribunal may exclude from any hearing or part of a hearing any person or class of persons, other than a representative of the applicant or of the patient to whom documents would be disclosed in accordance with rule 12(3), and in any case where the tribunal decides to exclude the applicant or the patient or their representatives or a representative of the responsible authority, it shall inform the person excluded of its reasons and record those reasons in writing. (5) Except in so far as the tribunal may direct, information about proceedings before the tribunal and the names of any persons concerned in the proceedings shall not be made public. (6) Nothing in this rule shall prevent a member of the Council on Tribunals from attending the proceedings of a tribunal in his capacity as such provided that he takes no part in those proceedings or in the deliberations of the tribunal”
[10]The 1983 Tribunal Rules replaced the Mental Health Tribunal Rules 1960 SI (1960) No. 1139. Rule 24 of the 1960 Rules is headed “Privacy of Proceedings”. Rule 24(4) and (5) of the 1960 Rules are reproduced in Rules 21(5) and (6) of the 1983 Rules. Rule 21(3) of the 1983 Rules substantially reproduces Rule 24(2) of the 1960 Rules. There are, however, differences between Rules 21(1) and (4) of the 1983 Rules and their equivalents; Rules 24(1) and (3) of the 1960 Rules.[11]A mental health review tribunal is a “court” within section 19 of the Contempt of Court Act 1981 to which the law of contempt applies: Pickering v Liverpool Daily Post & Echo Newspapers plc [1991] 2 AC 370, 417. Accordingly the High Court has jurisdiction to commit for the contempt of an order of a mental health review tribunal. Where a “court” sits in private section 12 of the Administration of Justice Act 1960 (hereafter “the 1960 Act”) sets out the extent to which the publication of its proceedings is contempt. This provides: “12. Publication of information relating to proceedings in private(1) The publication of information relating to proceedings for any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say – ….. (b) where the proceedings are brought under Part VIII of the Mental Health Act 1959 [now Part VII of the 1983 Act] or under any provision of that Act authorising an application or reference to be made to a mental health review tribunal or to a county court… ….. (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be a contempt of court except where the court (having power to do so) expressly prohibits the publication.(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and all references to a court sitting in private include references to a court sitting in camera or in chambers.(4) Nothing in this section shall be construed as implying any publications is punishable as contempt of court which would not be so punishable apart from this section. ” ….. (b) where the proceedings are brought under Part VIII of the Mental Health Act 1959 [now Part VII of the 1983 Act] or under any provision of that Act authorising an application or reference to be made to a mental health review tribunal or to a county court… ….. (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.[12]In the case of a public hearing the control over publicity is by means of the “strict liability” rule in section 2 of the Contempt of Court Act 1981 (hereafter “the 1981 Act”). The material provisions of the 1981 Act are:
“1. The strict liability rule In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. 2. Limitation of scope of strict liability (1) The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any speech, writing, [programme included in a service] or other communication in whatever form, which is addressed to the public at large or any section of the public. (2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. (3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication. ….. 4. Contemporary reports of proceedings (1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. ….. 11. Publication of matters exempted from disclosure in court In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

The Legal Framework (b) The Principles in the Cases

[13]It is also convenient to set out a number of propositions concerning the interrelation of the statutory provisions and the principles under domestic case law and the European Convention which were not the subject of dispute at the hearing.(1) The importance of judicial hearings being held in public as a general rule, under both domestic law and Article 6 of the European Convention on Human Rights, is based not only on the benefit of the individual litigants but to serve the wider public interest: Schuler-Zgraggen v Switzerland (1994) 16 EHRR 405, paragraph 66; Campbell and Fell v UK [1985] 7 EHRR 165; Ex parte Guardian Newspapers [1999] 1 WLR 2130, 2144, 2148, Clibbery v Allan [2002] EWCA Civ 45, Fam 261; Scott v Scott [1913] AC 417, 437.(2) Proceedings are required to be subjected to the full glare of a public hearing for a number of reasons. The public nature of proceedings; (a) deters inappropriate behaviour on the part of the court; (b) maintains the public’s confidence in the administration of justice by enabling the public to know that justice is being administered impartially; and (c) can result in evidence becoming available which would not be available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed: R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966, 976, 977, per Lord Woolf MR.(3) In the context of Article 6 the role of the wider public interest is illustrated by the fact that although it is possible to waive the right to a public hearing, any such waiver “must not run counter to any important public interest”: Schuler-Zgraggen v Switzerland (1994) 16 EHRR 405.(4) “Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However, Parliament has recognised that there are situations where interference is necessary”: Lord Woolf MR in R v Legal Aid Board, ex p. Kaim Todner [1999] QB 966, 977. His Lordship saw the specific identification in section 12 of the 1960 Act of proceedings relating to minors, proceedings under the Mental Health Act and the other proceedings dealt with as an example of such recognition by Parliament. In the context of mental health, section 78 of the 1983 Act enables statutory rules to empower a mental health review tribunal to exclude the public from proceedings.(5) The exceptions to the rule that proceedings should be in public “are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done”: Scott v Scott [1913] AC 417, 437.(6) Considerations of public order and security problems may justify an exception from the requirement in Article 6 of a public hearing. Article 6 does not require proceedings to be held in public where this would impose a disproportionate burden on the State: Campbell and Fell v UK [1985] 7 EHRR 165 at paragraphs 86-88.(7) A presumption in favour of hearings in private, such as that in Rule 21 of the 1983 Rules, may be justified under Article 6 where it is considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties: B and P v UK (2002) 34 EHRR 529 at paragraph 39. In such cases it is therefore for a person who desires a public hearing to demonstrate why the “normal” rules should not be followed: Clibbery v Allan [2002] EWCA Civ 45, Fam 261 at paragraphs 81-82, and 123.(8) Although the general rule in section 12 of the 1960 Act is that the publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court, proceedings in mental health review tribunals are one of the exceptions so that publication of such information is, save as set out in proposition (10) below, itself a contempt: section 12(1)(b) of the 1960 Act. “[S]ection 12 of the Act of 1960 and the Mental Health Tribunal Rules operate in conjunction to secure the essential privacy of proceedings before the tribunal ” and the only sanction necessary to protect the privacy of the proceedings from a breach of what is now Rule 21(5) or from any other unauthorised publication, is afforded by the law of contempt pursuant to section 12(1)(b) of the 1960 Act: Pickering v Liverpool Daily Post & Echo Newspapers plc [1991] 2 AC 370, per Lord Bridge at page 417.(9) Even where the proceedings are held in private, there are limits on a court’s power to prohibit the reporting of proceedings: Re S, a Child (identification: restriction on publication) [2003] EWCA Civ 936, per Lord Phillips MR. This is also evident from section 12(1)(e) of the 1960 Act since the exception in it, which contemplates that the publication of information relating to proceedings may of itself be contempt where the court expressly prohibits the publication of all information relating to the proceedings, is expressly stated to be applicable only where the court has power to do so.(10) Where a mental health review tribunal sits in private the fact that a named patient has made an application to the tribunal for his discharge, information as to the date, time or place at which the tribunal hearing had occurred or was to occur, and the fact that a patient has been released from detention can be published. Other information, for example the recorded reasons for the decision, to the extent that they disclose the evidential and other material on which it was based, and any conditions imposed by the tribunal on the patient’s discharge might not be published: Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370 per Lord Bridge, at pages 423-424.(11) Where a mental health review tribunal holds a public hearing, the control over publicity is by means of the “strict liability” rule in section 2 of the Contempt of Court Act 1981, and the High Court has jurisdiction to commit for the contempt of an order of a mental health review tribunal.(12) Any restrictions on the right to “impart information and ideas” gained by attendance at a public hearing held by a mental health review tribunal would prima facie require justification under Article 10(2) of the European Convention.

The Decisions of the Tribunal

[14]The decision of the tribunal now under challenge was preceded by a decision on 16 May 2003, following a hearing on 17 April. It had then been argued on Mr Brady’s behalf that the presumption in Rule 21 of the 1983 Rules that hearings be in private is incompatible both with sections 78 of the 1983 Act and with Article 6(1) of the European Convention on Human Rights as it offends the presumption in favour of open justice. The tribunal rejected this argument, stating inter alia:
“18. By definition the issues which the mental health review tribunal has to deal with involve personal and clinical confidential information affecting individuals who are very often vulnerable and not always in a position to make an informed decision as to what may or may not be in their best interests. Questions of capacity may frequently arise and clinical progress may be affected by the consequences of publicity. In some cases (for example references under section 71 of the Act) the patient will not have actively requested a review of his detention. By definition the tribunal convenes at the hospital where the patient is detained. We are satisfied, given that the Article 6(1) rights are not absolute, that Rule 21 properly reflects what was intended by section 78(2)(e) and represents a proper and proportionate departure from the principle of open justice.” ….. “22. Rule 21(1) provides a mechanism which recognises that whilst for the majority of patients a private hearing is appropriate those who seek a public hearing are entitled to one provided that the preconditions are fulfilled. Given the nature and vulnerability of patients, whose interests are paramount in this context, it seems to us to be entirely appropriate for the tribunal to be satisfied in a particular case that a public hearing would not be contrary to the patient’s interests. In our view, that does not offend either the enabling provisions or Article 6(1).”
[15]An application for permission to apply for judicial review of this decision was made by Mr Brady and dismissed by Collins J following an oral hearing in August 2003.[16]The tribunal reconvened to hear Mr Brady’s application that his tribunal hearing be in public on 1 September 2003. It had before it two reports, dated 9 September 2002 and 2 January 2003, and a letter dated 11 October 2002 from Dr Collins, Mr Brady’s responsible medical officer (the “RMO”); a statement dated 13 February 2003 from the hospital’s Director of Security; a letter from Mr Brady; and written submissions on behalf of Mr Brady. Those were before it at the earlier hearing. The tribunal also had before it a letter dated 19 May 2003 from Dr Grounds, a consultant psychiatrist instructed by Mr Brady; written submissions on behalf of the hospital; and the judgment of Maurice Kay J, as he then was, in R v Collins & Ashworth Hospital Authority, ex parte Brady [2000] Lloyds Medical Reports 355, given on 10 March 2000, to which I have referred.[17]On behalf of the Claimant it was argued that Mr Brady did not have the capacity to make the request, and that there should not be a public hearing in view of the impact of such a hearing and of publicity upon clinical matters and wider security issues. On behalf of Mr Brady, Mr Gledhill submitted that security issues had no relevance in the context of Rule 21 but in any event could be met by appropriate arrangements. He stated that Mr Brady recognised that by seeking a public hearing he potentially waived his confidentiality. He referred to the position of clinical notes where issues of medical negligence were litigated. The tribunal summarised the submissions of the parties in paragraphs 6 – 10 of its decision.[18]In paragraph 5 of the decision the tribunal stated (as it had done in its earlier decision) that Rule 21(1) requires it to sit in private unless the patient requests a public hearing, and it is satisfied that a public hearing would not be contrary to the interests of the patient. It stated “[t]here are no other preconditions”. In paragraph 6 it set out the view of the RMO who had referred to the decision of Maurice Kay J that Mr Brady did not have capacity in relation to his decision to refuse food, and stated he was concerned that this may still be the case. The tribunal stated it was not concerned with the issue of force feeding but with Mr Brady’s “present capacity to make a request by which he would effectively seek to waive his confidentiality in the context of his application for a public hearing.” After considering the test of capacity laid down in Re C (adult: refusal of medical treatment) [1994] 1 All ER 819, the tribunal stated (in paragraph 8) that it was “not satisfied that it had been demonstrated that the patient lacked the requisite capacity” to make a request that the tribunal hearing be in public. It stated that while there was evidence of distortion of the thought process, it “was not satisfied that the thinking is so dominated that the decision to make the request was not a true one” and for this reason it rejected the hospital authority’s argument in respect of capacity.[19]It then turned to consider whether a public hearing would be contrary to Mr Brady’s interests. In paragraph 13 of its decision it stated that, in all the circumstances, it was satisfied that Mr Brady, having made a valid request for a hearing in public, such a hearing would not be contrary to his interests. It is clear that it considered the concerns of the Claimant about the impact of a public hearing and publicity upon Mr Brady’s medical condition and the difficulties facing doctors in relation to evidence about confidential clinical matters could be met.[20]First, it stated that it could, if appropriate, open the proceedings in public and then, as envisaged in Rule 21(2), exercise its power under Rule 21(4) to exclude everybody, other than the parties, for the whole of the period during which evidence is heard and then readmit the public on announcement of the decision (see paragraphs 4, 12B and 14(a) of its decision). Paragraph 14(a) states that the concerns expressed by the responsible authority can be adequately met by the application, if appropriate, of Rule 21(4), which would enable it, if it was satisfied that it was appropriate, “to exclude the public and the press from the whole or any part of the hearing”. Secondly, it stated that the provisions of Rule 21(5) which are reinforced by the contempt laws as determined by the House of Lords in Pickering v Liverpool Daily Post & Echo Newspapers plc [1991] 2 AC 370 enabled it to control the extent to which information is made public (see paragraphs 4, 12C, and 14(b) of its decision). The paragraphs containing the decision of the tribunal do not refer to the security concerns raised by the hospital and it is not apparent whether the tribunal considered they could be met in similar ways or whether it accepted the submission that they were not relevant to the exercise of its power under Rule 21(1) of the 1983 Rules.[21]The tribunal’s conclusion, in paragraph 15, was that “in the circumstances we grant the patient’s application for a public hearing, in the knowledge of the existence of the safeguards to which we have already made reference”.[22]Paragraphs 12C and 14(b) of the tribunal’s decision are central to the Claimant’s challenge. The former states:
“C. The tribunal can control the extent to which information is made public (Rule 21(5)). In Pickering v Liverpool Daily Post and Echo Newspapers plc the House of Lords held that the combined effect of Rule 21(5) and section 12 of the Administration of Justice Act is that: (a) The following information may be published (i) the fact that the tribunal application has been made by a named patient (ii) the fact that an application or reference to a tribunal will sit, is sitting, or has sat at a certain date time or place (iii) a direction made by a tribunal that the patient be discharged either absolutely or conditionally. (b) The following information may not be published (i) the recorded reasons for the tribunal’s decision to the extent that they disclosed the evidential and other material on which it is based (ii) any conditions imposed by the tribunal This applies regardless of whether the hearing is in private or public.” (a) The following information may be published (i) the fact that the tribunal application has been made by a named patient (ii) the fact that an application or reference to a tribunal will sit, is sitting, or has sat at a certain date time or place (iii) a direction made by a tribunal that the patient be discharged either absolutely or conditionally. (b) The following information may not be published (i) the recorded reasons for the tribunal’s decision to the extent that they disclosed the evidential and other material on which it is based (ii) any conditions imposed by the tribunal This applies regardless of whether the hearing is in private or public.”
[23]With the exception of the last sentence, paragraph 12C reproduces the summary contained in Jones’s Mental Health Manual 8th edition, pages 645-6. The Claimant argues that in adding the last sentence the tribunal fell into error because the Pickering case and section 12 are concerned solely with private hearings.[24]Paragraph 14(b) of the decision states:
“(b) So far as press reporting and publicity is concerned the limited information which can be published (see Pickering v Liverpool Daily Post and Echo Newspapers plc above) is information which can be published whether the hearing is in public or in private and in any event Rule 21(5) enables the tribunal in its discretion to control the extent to which information can be made public, in the knowledge that it is underpinned by the contempt laws.”
The Claimant argues that the tribunal also erred in this paragraph. First, it repeated the error about the Pickering case made in paragraph 12C. Secondly, it either erred as to the effectiveness of the contempt laws to control information that emerges in a public hearing or failed to take into account the difficulties in so doing.

The Grounds Upon Which the Decision is Challenged

[25]It is convenient to set out the grounds of challenge in the order they were developed in the skeleton arguments and in oral submissions rather than in the order they appear in the claim form. They are: 1. Error of law as to the tribunal’s powers to control the publicity given to the proceedings (ground 5). 2. Failure to consider relevant considerations: a) Security, public order and the interests of other patients (ground 4); and b) The best interests of the patient (grounds 2 and 3). Miss Grey’s skeleton argument on the application of the law deals with the second of these under the heading of “‘Not contrary’ to the interests of the patient - irrationality” but at the hearing the point was developed as a failure to consider relevant matters that had been brought to the tribunal’s attention by the Claimant. 3. Inadequacy of the tribunal’s reasons for its conclusions: a) as to Mr Brady’s capacity (ground 1); b) that a public hearing was not contrary to Mr Brady’s interests (ground 2); c) as to how the Claimant’s concerns about security and public order were regarded by the tribunal, and how it weighed these in the balance (ground 4).

The Submissions

(A) The tribunal’s powers to control the publicity given to the proceedings

[26]The differences between the parties concern the applicability and the effect of rule 21(5) in relation to public hearings, the efficacy of the enforcement of any orders made by a mental health review tribunal sitting in public restricting the publication of information which comes out during those public proceedings, and the rationality of deciding to hold a public hearing in the recognition that it might be necessary to exclude the public and the press from the whole of the hearing.[27]Miss Grey submitted that, while a mental health review tribunal sitting in private has clear and effective powers to prevent publicity attaching to proceedings pursuant to section 12 of the Administration of Justice Act 1960 in conjunction with Rule 21(5) of the 1983 Rules, to the extent that it holds a hearing in public and information comes out at a public part of the hearing, it has no effective means of controlling publicity and publication. This is because neither Rule 21(5) nor the law of contempt can be invoked. Publication will not in itself be contempt, but will depend on the “strict liability” rule in section 2 of the Contempt of Court Act 1981 which requires proof that the publicity will create a substantial risk that the administration of justice will be seriously impeded or prejudiced and, in any event, only applies where the proceedings in question are “active”. Where information has in fact been revealed at a public hearing she relies on Attorney-General v Leveller Magazine Ltd. [1979] 1 AC 450 for the proposition that its publication cannot be contempt and will not be restrained.[28]Miss Grey submitted that the tribunal’s decision to grant Mr Brady’s application was based on an assumption that it could effectively control publicity and publication where the hearing is public and that in making this assumption it erred in law. She relied on the last sentence of paragraph 12C and on paragraph 14(b) of the decision. The last sentence of paragraph 12C states that the remainder of that paragraph, which reproduces the summary of the decision in Pickering v Liverpool Daily Post & Echo Newspapers plc [1991] 2 AC 370 contained in Jones’s Mental Health Manual, applied, “regardless of whether the hearing is in public or private”. She submitted that paragraph 14(b) of the decision also shows the tribunal considered that the decision in on Pickering v Liverpool Daily Post & Echo Newspapers plc meant that no further information could be published even following a public hearing. These were errors of law because the rules developed in Pickering v Liverpool Daily Post and Echo Newspapers plc concerned private hearings and the per se contempt rule contained in section 12 of the 1960 Act. She also submitted that the general reference to the contempt laws in paragraph 14(b) is either another manifestation of this error or a failure to appreciate and grapple with the difficulties of restricting the dissemination of the substance of the evidence given by or about a known individual at a public hearing.[29]Within this ground there is also a challenge based on irrationality or unreasonableness, which although not put as a separate ground, is distinct from the complaint that the tribunal erred as to its power to restrict publicity of a public hearing. In paragraphs 40-43 of her skeleton argument on the application of the law, Miss Grey argues that insofar as the tribunal contemplated a “public hearing without publicity” (in the sense that the dissemination of the substance of the evidence given by or about a known individual would be restricted or prohibited, or that the opening of the hearing) in public would immediately be followed by applications to exclude the press and public from the whole of the hearing, this was irrational or unreasonable.[30]Mr Gledhill argued that the tribunal did not err as to its powers to restrict publicity. Its decision proceeded on the basis that, even if the hearing started as a public hearing, it might need to continue as a private hearing, and that Rule 21(2) empowered it to do. If a tribunal holding an otherwise public hearing moves into private for part of the hearing, publication of information will of itself fall within section 12(1) of the 1960 Act, and per se a contempt of court. Moreover, he argued that the effect of Rule 21(4) together with Rule 12(3) is that the tribunal may exclude anyone from any hearing apart from the patient’s representative provided that representative is a lawyer or a doctor. The power to exclude anyone includes the patient. The language of Rule 21(4) is sufficient to cover both private and public hearings so that the tribunal can control who is allowed into a public hearing. The reference to Rule 21(3) in paragraph 6(vi) of Mr Gledhill’s skeleton argument on the Law is clearly mistaken. I have noted that in paragraph 14(a) of its decision the tribunal envisaged that it would be able, if it was satisfied that it was appropriate, to exclude the public and the press from the whole or any part of the hearing.[31]The second limb of Mr Gledhill’s submission on this point is that the mere fact that a hearing is held in public does not “equate to a blank cheque in relation to the publicity given to/reporting of proceedings”. Contrary to Miss Grey’s argument, Rule 21(5) enables the tribunal to restrict publicity where the hearing is held in public. He argued that there is nothing in the wording of Rule 21(5) which suggests that it only applies to private hearings. It would, he argued, be superfluous if it only applied to private hearings.[32]Mr Gledhill submitted that the entirety of the reasoning of the tribunal shows it has correctly noted that it retains powers of control even if it allows a public hearing, and that was central to the decision to grant a public hearing. He argued that the paragraphs 12 and 14(b) of the decision do not state that the control the tribunal retains by virtue of Rule 21(5) is underpinned by the per se rule of contempt in section 12 of the 1960 Act. Paragraph 12C simply states that various matters can be published even if the matter is private; and that publicity can be controlled by virtue of Rule 21(5), which is something underpinned by contempt, as is the case with any court order.[33]It was clear, he submitted, that the tribunal was not making a final decision about the form of the hearing. It recognised that, even if the hearing started as a public hearing, it might need either to continue as a private hearing, pursuant to Rule 21(2), or to exclude the public and the press from the whole or any part of the hearing, as Rule 21(4) empowered it to. It was, he argued, entitled to decide to proceed in this way. In respect of matters disclosed to the public and the press during a public hearing, Rule 21(5) makes it plain that information about the proceedings remains private unless the tribunal so directs and the tribunal’s decision stating that the rule is underpinned by the laws of contempt showed no error.

(B) Matters to be Considered Under Rule 21(1) of the 1983 Rules

[34]The express preconditions in rule 21(1) for a public hearing are a request by the patient for a public hearing, and the tribunal’s satisfaction that such a hearing would not be contrary to the patient’s interests. Miss Grey submitted that these preconditions establish a threshold test only: even if they are satisfied, a tribunal is required to consider further matters before making its decision.[35]The first of these matters is to consider the nature and extent of the patient’s understanding about the likely impact and ramifications of the hearing being in public. In the present case, although the RMO had initially raised no objections from a clinical perspective, his report dated 2 January 2003 expressed concerns about the interrelationship of Mr Brady’s request for a public hearing and his mental disorder, and the effect on that disorder of such a hearing at which clinical matters not previously in the public domain might enter the public domain. The RMO referred to the fact that Mr Brady had in the past been distressed by disclosures that he had not authorised and unwarranted publicity, and cited the opinion of a colleague which is set out in paragraph 42 of the judgment of Maurice Kay J in R v Collins & Ashworth Hospital Authority, ex parte Brady [2000] Lloyds Medical Reports 355. He stated:
“Like many people with his sort of personality features, he seems to thrive on the actual battles and such is the intensity of his involvement in them that in his efforts to win the battles he does not give proper regard to the risks which he runs.”
The RMO considered that because of this Mr Brady may regret allowing the public the level of access to his personal affairs that would result from a public hearing. Miss Grey stated that Mr Brady’s attitude to unwanted publicity could be seen from his support of Ashworth Hospital’s litigation in Ashworth Hospital v MGN Ltd. [2002] 1 WLR 2033. A newspaper had published verbatim extracts from his medical records and the hospital, with Mr Brady’s support, brought proceedings to discover the source of the information.[36]Miss Grey submitted that the nature and extent of the patient’s understanding about the likely impact and ramifications of the hearing being in public needs to be considered because the threshold test for capacity is a low one: see R (Wilkinson) v RMO, Broadmoor Hospital [2001] EWCA Civ 1545; [2003] 1 WLR 419, per Hale LJ, as she then was, at paragraph 80. As a result the request by the patient who, may be very vulnerable, does not need to be a “sensible” or “wise” one.[37]Secondly, Miss Grey submitted that a tribunal should consider what the “best interests” of the patient would require. She suggested that there may be little difference in practice between asking whether a hearing would be in the patient’s interests or best interests, and asking whether it would be contrary to the patient’s interests. Whether this is so or not, she submitted that a “best interests” approach is the correct approach in a tribunal system that is part of the state’s system for the protection of those deprived of their liberty, given that the state has positive obligations to such persons.[38]Thirdly, Miss Grey submitted that a tribunal should consider the nature and weight of any other considerations, relevant to the other exceptions to the principle of public justice permitted by Article 6(1). Article 6(1) itself refers to “…the interests of morals, public order or national security in a democratic society … the interests of juveniles or the protection of the private life of the parties [and] … the interests of justice”. Moreover, the decision in Campbell and Fell v UK (see proposition (6) in paragraph 13 of this judgment) is an example of the interests of public order and security being held to outweigh the arguments of a party in favour of a public hearing. Miss Grey submitted that a tribunal considering holding a public hearing should also consider the interests of other patients. She argued that to apply rule 21(1) literally without having regard to such wider considerations would place the tribunal in breach of Article 6(1).[39]Mr Gledhill submitted that rule 21(1) should be applied without regard to such wider considerations. Rule 21, he argued, specifies the test for determining when a public hearing is possible and limits the features that are relevant for the tribunal to take into account in determining whether or not there should be a public hearing. It should only take into account the two matters expressly specified in rule 21(1); that is the patient’s request for a public hearing, and the tribunal’s satisfaction that such a hearing would not be contrary to the patient’s interests.[40]His argument is that the provisions of Rule 21 reflect what is required by Article 6 of the European Convention and should be applied as they are. There is no need to read anything extra into Rule 21 or to interpret as setting merely a threshold, which it clearly does not purport to do. Parliament has enacted what the requirements of Article 6 in the context of hearings before mental health review tribunals are to be in the plain language of Rule 21. It is perfectly proper for Parliament to make the decision as to which of the elements which might properly form part of an Article 6 decision making process should be assessed by the court or tribunal in the particular situation. Parliament has done this in the language of Rule 21 and there is simply no warrant for reading anything more into Rule 21. Mr Gledhill argues this is particularly so since making Rule 21(1) a threshold rather than the complete test would have the effect of moving further away from the basic proposition that hearings should be in public which is supported by the language of Article 6 and the principles underpinning domestic law.[41]Mr Gledhill argued that it follows that the Claimant’s submission that the tribunal erred in not taking into account security, public order, the interests of other patients, and the best interests of the patient making the request is flawed. The factors the Claimant submits should have been taken into account, he argued, are not relevant to the decision as to whether a hearing is to be in public. Moreover, he submitted that, to the extent they have any relevance, they can be taken into account in determining where the public hearing should take place, which members of the public should be allowed access, and in the controls on the publicity to be allowed to the proceedings. Additionally, Mr Gledhill submitted that the Claimant’s argument that a mental health review tribunal considering whether to hold a hearing in public is required to consider the patient’s “best interests” is wholly misconceived in view of the use of the words “contrary to the interests of the patient” in Rule 21(1).

(C) The reasons given by the tribunal

[42]In the present case the dispute as to reasons concerns the application of the principles by the tribunal rather than the principles themselves. Miss Grey submitted that the tribunal gave no or no adequate reasons for discounting the concerns expressed by the RMO and preferring the documents and submissions on behalf of Mr Brady on the issue of capacity. She also submitted that its reasons for concluding that that a public hearing was not contrary to Mr Brady’s interests were inadequate. The reasons expressed in paragraphs 13 and 14 of its decision did not address the concerns expressed by the Claimant about Mr Brady’s clinical and other interests. These were contained in two reports by his RMO, a substantial medical one for the review and a shorter one setting out the hospital’s views on the possibility of his having a public hearing before the tribunal. She submitted they also did not address the Claimant’s security concerns. These included risks to Mr Brady and that it would be difficult and very expensive to put in place sufficient security contained in a statement by the hospital’s Director of Security. Alternatively, she submitted that the reasons given by the tribunal were inadequate in not demonstrating how these matters were regarded by the tribunal, and how it weighed them in the balance in the way R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 stated a tribunal had to.[43]Mr Gledhill submitted that the tribunal answered the central arguments put to it, set out the law in summary fashion, and explained the basis on which they rejected the hospital’s arguments. This was suitable in the context of the limited evidence before it and the fact that the issue before the tribunal was more limited than in R (H) v Ashworth Hospital Authority, where the tribunal was concerned with the patient’s release. In such a case, it was important for a professional later involved in considering whether the patient should be detained again to know the details of the tribunal’s decision, and in that case the tribunal had rejected the majority of the clinical evidence before it, preferring the view of the one doctor who had a different opinion. With regard to capacity, the Claimant had not sought to adduce oral evidence on the point and there had been no such evidence. The tribunal decision on capacity that it was not satisfied that it had been demonstrated that the patient lacked the requisite capacity. This was a conclusion was that it was not satisfied as to the requisite standard of proof, a preference for the evidence of one expert rather than another. Conclusions (A). The tribunal’s powers to control the publicity given to the proceedings[44]The tribunal considered that it could meet the Claimant’s concerns and protect Mr Brady’s interests either by excluding the public and the press from all or part of the hearing pursuant to Rule 21(4) or by exercising its powers under rule 21(5). This part of the Claimant’s challenge to the decision is concerned with the second of these. Miss Grey also argues that the tribunal’s contemplation of a “public hearing without publicity” was irrational or unreasonable. I deal with this argument later in this judgment. The key issues are;(a) did the tribunal consider that the regime laid down in Pickering v Liverpool Daily Post and Echo Newspapers plc applied to a public hearing, and(b) does rule 21(5) apply to a public hearing and, if it does, whether it enables the tribunal to prohibit the publication of evidence and other information revealed at the public hearing and the reasons for the tribunal’s decision to the extent that they disclose the evidential and other material on which it is based.[45]Mr Gledhill’s submission is that neither paragraph 12C nor 14(b) of the decision state that the control the tribunal retains by virtue of rule 21(5) of the 1983 rules is underpinned by section 12 of the 1960 Act. While this is indeed not expressly stated, it is clear from paragraphs 12C and 14(b) of its decision (set out in paragraphs 22-24 of this judgment) that the tribunal considered that the controls dealt with in Pickering v Liverpool Daily Post and Echo Newspapers plc applied to a public hearing.[46]The tribunal’s conclusion that the holding of a public hearing would not be contrary to Mr Brady’s interests depended on its assessment of the powers it would have to prohibit or restrict press reporting or publicity should the hearing be a public hearing. Since this assessment was based on the tribunal’s assumption that Pickering v Liverpool Daily Post and Echo Newspapers plc applied to a public hearing, it fell into error. It is clear that the Pickering case was concerned with media coverage of a private hearing and the application of rule 21(5) of the 1983 rules to such a hearing. In that case the tribunal was sitting in private and had indeed drawn the attention of the media to this and to the fact that such privacy is the result of statutory rules which only allow for media coverage to the extent permitted by the tribunal: see [1991] 2 AC 371, 413. Lord Bridge of Harwich stated at page 423 that the protected privacy “attaches to the substance of the matters which the court has closed its door to consider…” (emphasis added).[47]Mr Gledhill argued that, even if this was so, it was clear from the decision that what the tribunal was contemplating was the control of publicity by virtue of rule 21(5), which rule applies to both public and private hearings. In the second part of paragraph 14(b) of its decision the tribunal states “rule 21(5) enables the tribunal in its discretion to control the extent to which information can be made public, in the knowledge that it is underpinned by the contempt laws”. Two questions arise. First, does Rule 21(5) apply to a public hearing and authorise a tribunal to restrict the publicity afforded to what occurs at such a hearing. Miss Grey submitted that it does not. Secondly, if Rule 21(5) applies to a public hearing, did the tribunal in this case fall into error in its assessment of the extent of the control that was possible and the means of enforcing any restrictions. Miss Grey submitted that the tribunal’s assumptions as to the effectiveness of its powers to limit press reporting and publicity were unjustified and erroneous as a matter of law.[48]In support of her submission that Rule 21(5) enables the tribunal to relax the rules relating to privacy but does not authorise it to restrict the publicity afforded to a public hearing Miss Grey relies on the speech of Lord Bridge in Pickering v Liverpool Daily Post and Echo Newspapers plc. [1991] 2 AC 370, 418. After observing that Rule 24(4) of the 1960 Rules is in identical terms to Rule 21(5) of the 1983 Rules, his Lordship stated:
“In the context of the rules of 1960 I find it quite impossible to suppose that Rule 24(4) was intended to impose a prohibition which would operate independently of the general protection secured to the privacy of proceedings before a mental health review tribunal by section 12(1)(b) of the Act of 1960”
. At page 419 his Lordship stated:
“The draftsman of the Rules contemplated that the only sanction necessary to protect the privacy of the proceedings, not only from a breach of rule 24(4) but also from any other unauthorised publication, was that afforded by the law of contempt to which section 12(1)(b) of the Act of 1960 had made the proceedings subject.”
Miss Grey submitted that this shows that Rule 21(5) of the 1983 Rules is framed to enable the relaxation of the rules relating to the publication of information at a private hearing where the tribunal so wishes but does not enable a tribunal to restrict the publicity afforded to a public hearing.[49]On her submission, a tribunal that decided to hold a public hearing following a request by a patient would then have no power to direct that the names of any persons concerned in the proceedings shall not be made public, except by requiring that the names be not disclosed during the hearing. That would be a surprising result in view of the nature of this tribunal, and in the absence, as Mr Gledhill argued, of any indication in the wording of Rule 21(5) that it only applies to private hearings. It would give the tribunal less power than is given to the Youth Court by section 49 of the Children and Young Person’s Act 1933. Support for the position taken by Mr Gledhill is also to be found in the difference between Rule 21(5) and Rule 21(3). Rule 21(3) expressly states it applies “when the tribunal sits in private”. It is significant that, where the draftsman of these Rules has wished to confine the scope of a rule to a private hearing, he has done so expressly.[50]It is, moreover, important to remember that Pickering v Liverpool Daily Post and Echo Newspapers plc. involved a private hearing and their Lordships were concerned with what publication constitutes contempt under section 12 of the 1960 Act. What Lord Bridge said must be seen in that context. It is significant that, although that was his primary concern, later in his speech Lord Bridge also referred to the strict liability rule under the 1981 Act. In the absence of the Attorney-General he made no any decision as to whether what the Liverpool Post wished to publish in that case would have constituted a contempt under the strict liability rule, but he contemplated (at p. 425) that publication contrary to what is now Rule 21(5) might constitute a such a contempt. For these reasons I accept Mr Gledhill’s submission that Rule 21(5) covers both public and private hearings.[51]I should add that the submission that Rule 21(5) does not authorise the restriction of publicity afforded to a public hearing also sits uncomfortably with Miss Grey’s acceptance that as a result of, in particular, Attorney-General v Leveller Magazine Ltd. [1979] 1 AC 440, 451, 471, a tribunal with power to sit in private, will in general also have power to take the lesser step of imposing restrictions on the information released to the public. That proposition must now be qualified in the light of the recent decision in Independent Publishing Co. Ltd. v Attorney-General of Trinidad and Tobago [2004] UKPC 26 which was not considered at the hearing of this case. The Judicial Committee of the Privy Council held that there is no common law power on a court to impose such restrictions on the information released to the public in open court proceedings. Since the basis of a mental health review tribunal’s power is a rule enacted in a statutory instrument made pursuant to statutory authority, the decision of the Judicial Committee does not, however, directly impact on the matters before me.[52]I turn to the question whether, given that Rule 21(5) does enable a mental health review tribunal to exercise some control where the hearing is a public hearing, this tribunal’s assumptions as to the effectiveness of its powers to limit press reporting and publicity were unjustified and erroneous. The tribunal addressed the issue in general terms in paragraph 14(b) of its decision. Its conclusion that rule 21(5) enabled it to control the extent to which information could be made public was stated to be “in the knowledge that it is underpinned by the contempt laws”.[53]The decision does not address the limitations of those laws, an omission on which Miss Grey relied. She relied in particular on the need under section 2(2) of the Contempt of Court Act 1981 for proof that publicity will create a substantial risk that the administration of justice will be seriously impeded or prejudiced, the difficulty in showing this, and the fact that under section 2(3) that the strict liability rule only applies where the proceedings are “active”. She also relied on the difficulties of enforcing any restriction on the publication of information that has emerged at the public hearing. She submitted the potential need to justify any prohibition or restriction under Article 10(2) of the European Convention increased the difficulty of enforcing a prohibition in respect of information that emerged at the public hearing.[54]Mr Gledhill accepted that it is easier to prove contempt if the hearing is in private but submitted that, even if there is a public hearing, there is significant coverage from the law of contempt. The fact that the protection afforded by the strict liability rule would be for only a limited period coupled with the difficulty of determining in advance what kind of public comment about proceedings will create a substantial risk that the course of justice will be seriously impeded or prejudiced, however, mean that the tribunal’s powers if the hearing is in public are significantly more limited than they are if it is in private. Mr Gledhill did not, moreover, have an answer to the difficulties identified by Miss Grey in enforcing a prohibition in respect of information that emerged at the public hearing. With regard to such information, the state of the domestic authorities is summed up in Arlidge, Eady and Smith on Contempt, 2nd ed 1999, paragraph 7.56 as follows: “It seems clear, however, that once information is released to those present in court the wider public also has a right to be informed. If something is mentioned in open court it will not normally be appropriate to restrain its publication in the media outside”.[55]In considering whether a public hearing would be contrary to the interests of a patient, it is necessary for the tribunal to consider not only the patient’s immediate and short-term interests but also those in the medium and longer term after the conclusion of the tribunal proceedings. The media interest in Mr Brady is well known. The proceedings in Ashworth Hospital v MGN Ltd. [2002] 1 WLR 2033, followed the unauthorised disclosure and publication of verbatim extracts from Mr Brady’s medical records and, following the tribunal’s decision, there have been numerous press requests to be allowed to attend any hearing. The tribunal’s decision shows that an important component in its decision to grant Mr Brady’s application was that it considered its powers to limit press reporting and publicity if the hearing is held in public would afford the necessary protection. In view of its erroneous approach to the decision in Pickering v Liverpool Daily Post and Echo Newspapers plc, and the assumption in paragraph 12C of the decision that Rule 21(5) applies in the same way whether the hearing is public or private, I have concluded that it is not possible to infer that the general reference to the protection of the contempt laws encompassed an assessment by the tribunal of the real difficulties identified by Miss Grey in enforcing any restrictions, or that the tribunal had these difficulties in mind in reaching its decision.[56]The general reference to the contempt laws means that it is not clear whether in this part of its decision the tribunal erred in law or failed to take into account relevant considerations to the exercise of its power under Rule 21(1). If the tribunal assumed that the strict liability contempt rule would give the same protection as the per se rule in section 12, it fell into error. If the tribunal did not take into account the difficulties in enforcing any prohibition or restriction as to the publication of information given at a public hearing in concluding that to hold a public hearing was not contrary to Mr Brady’s interests, it failed to take account of relevant considerations on a matter which its decision shows was central to its conclusion. Although there are analytical differences between the two, whichever is the case, this part of the Claimant’s challenge to the decision succeeds.[57]In view of this conclusion, it is not necessary for me to decide whether, the tribunal’s contemplation of what Miss Grey described as a “public hearing without publicity” was, as she submitted, irrational or unreasonable. Mr Gledhill argued it was legitimate for the tribunal to contemplate that difficulties, for example with regard to the disclosure of sensitive clinical matters, could, as paragraph 14(a) of the decision indicates, be addressed by the use of its power under Rule 21(4) to exclude the public and the press. I observe that paragraph 14(a) refers to the tribunal’s power “to exclude the public and press from the whole or any part of the hearing”. If the tribunal is in fact contemplating excluding the public and the press from the whole of the hearing, I consider that Miss Grey’s submission has considerable force. What is the point of a public hearing from which the public and the press are excluded?[58]If what the tribunal is contemplating is the exclusion of the public and the press from part of the hearing, the force of Miss Grey’s submission depends on a number of factors. First, it will depend on the proportion of the “public” hearing that will in fact take place in private. Taking the example given in paragraph 14(a) of the decision of excluding the public and the press the parts when evidence of sensitive clinical matters is being given, in view of the centrality of such evidence at such a hearing and the likelihood of there being a conflict between the evidence on behalf of the hospital and that on behalf of Mr Brady, this may also involve their exclusion for much of the proceedings. A decision to hold a public hearing where it is contemplated that it may be necessary to protect the evidence as to the fundamental issue before the tribunal in this way needs careful justification.[59]The other factors affecting the force of Miss Grey’s submission are related to the first. Is it in fact possible to divide the hearing into “truly public” sections and sections from which the public is excluded without undue artificiality, and would the “truly public” part of the proceedings give a misleading impression of the nature of the proceedings as a whole? I have referred to paragraph 6 of the tribunal’s decision in which (albeit in the context of capacity) it stated that by Mr Brady’s request he effectively sought to waive his confidentiality. Its decision about how to deal with the hospital’s concerns was made with that consideration in mind. In paragraph 14(a) it was specifically addressing the constraints on evidence the RMO could give in a public hearing. By the time of the hearing before me it was, however, clear that Mr Brady does not wish to waive confidence in any medical or clinical information relating to him. The consequence might be that, while it might be possible to hear his evidence-in-chief in public, any cross-examination would, to the extent that it touched on his clinical condition, have to be heard either in private (pursuant to Rule 21(2)) or with the press and public excluded (pursuant to Rule 21(4)). Mr Brady might also seek to waive confidentiality in relation to the medical evidence adduced on his behalf. A decision to hold a “public” hearing where a partial and misleading picture of the nature of the proceedings as a whole may be created because of the way the “truly public” and the “in fact private” parts of the hearing are divided also needs careful justification. Since the purpose of the tribunal hearing is the determination of whether Mr Brady should be discharged from hospital and transferred back to prison, a hearing where the public is there to hear Mr Brady’s complaints against the hospital but is excluded from the consideration of whether he suffers from a mental disorder which requires treatment in hospital would also require careful justification. The decision of the tribunal, perhaps because of its understanding that by his request for a public hearing Mr Brady was effectively waiving his confidentiality, does not address these issues.

(B) Matters to be Considered Under Rule 21(1) of the 1983 Rules

[60]It was common ground that in deciding whether holding a public hearing is contrary to the interests of a patient, a mental health review tribunal is required to take into account its powers to prohibit or restrict publication of what occurs at that hearing. To the extent that this tribunal erred as to its powers to prevent or restrict the publication of evidence and information disclosed at a public hearing, as I have concluded it did, this error affected its assessment of whether holding such a hearing would be contrary to Mr Brady’s interests.[61]I turn to the submission that the tribunal erred in failing to consider security, public order, the interest of other patients, the nature and extent of Mr Brady’s understanding about the likely impact and ramifications of the hearing being in public, and his best interests. Miss Grey submitted that the failure of the tribunal in its conclusions in paragraphs 13 and 14 of its decision to refer to these considerations and to make findings upon them meant that it either accepted the argument put by Mr Gledhill that they were irrelevant, which was an error of law, or failed to have regard to what were material considerations. Mr Gledhill’s argument is that the literal words of rule 21(1) reflect what is required by Article 6 and domestic law and nothing more should be read into the rule. To do so would have the effect of moving further away from the basic proposition that hearings should be in public.[62]Additional support for Mr Gledhill’s argument can be found in comparing the terms of rule 21(1) with those of rule 24(1) of the 1960 rules. Rule 24(1) provided:
“The tribunal shall sit in private unless the applicant requests a hearing in public and the tribunal are satisfied that a hearing in public would not be detrimental to the interests of the patient and would not for any other reason be undesirable.”
The 1960 rules, accordingly, contained 3 conditions, the third being that the tribunal is satisfied that a public hearing would not “for any other reason be undesirable”.[63]The fact that the 1983 rules do not contain the third condition undoubtedly suggests that under the present rules the tribunal is required to consider only the interests of the patient. It does not, however, follow from the omission of an express requirement that the tribunal be satisfied that a public hearing would not “for any other reason” be “undesirable”, that it is not required to take account of wider considerations. Mr Gledhill accepted that where the two preconditions in the 1983 rules are satisfied the tribunal is not required to grant a public hearing. He accepted that a tribunal considering, for instance, the case of a person detained under the Terrorism Act who had become a patient might, where the police or the security service raise the point, be required to take into account considerations of national security in determining whether there should be a public hearing. If the tribunal is not necessarily required to sit in public where the two prerequisites in rule 21(1) are satisfied, it follows that it has some discretion as to whether it should do so in any particular case. Any discretion it has must be exercised in accordance with the law and the well known public law principles of propriety of purpose and relevance. Moreover, once the matter has been raised by either a party or an appropriate interested person, the tribunal cannot refuse to exercise its discretion. In the exercise of its discretion it must be right to take into account such relevant matters as are brought to the tribunal’s attention.[64]Support for this approach can also be found in the Strasbourg jurisprudence. Campbell and Fell v UK [1985] 7 EHRR 165 shows that in considering a departure from the principle favouring a public hearing account can be taken of considerations of public order and security, and whether requiring a public hearing would impose a disproportionate burden on the state. The role of wider considerations of public policy in this context is also seen in Schuler-Zgraggen v Switzerland (1994) 16 EHRR 405 in which it was stated that the entitlement to waive the right to a public hearing must be assessed with regard to the wider public interest. Miss Grey argued that, just as the entitlement to waive the right to a public hearing must be assessed with regard to the wider public interest, so in judging whether a hearing should be held in private against the desires of a litigant, the wider public interest must also be borne in mind and, not just the interests of the individual litigant, in the present case the patient who made an application that the hearing be in public. To do this it is necessary for the tribunal to be able to consider the wider interest at the discretionary stage of its inquiry. For these reasons I reject Mr Gledhill’s broad submission.[65]I turn to the specific matters Miss Grey submitted the tribunal should have considered. Are they relevant considerations to the exercise of the discretion I have concluded the tribunal has even where it is satisfied that the two preconditions in Rule 21(1) have been met? The first matter is that she argues the nature and extent of a patient’s understanding about the likely impact and ramifications of the hearing being in public needs to be considered because the threshold test for capacity is low. Mr Gledhill submits that capacity plays a limited role in the Mental Health Act 1983, that rule 21(1) does not refer to capacity, and that capacity is not mentioned in relation to applications or references to tribunals. The tribunal’s conclusion that it was not satisfied that Mr Brady lacked the requisite capacity to make the request and therefore rejected the Claimant’s argument in respect of capacity involves the conclusion that the third part of the test enunciated in Re C [1994] 1 WLR 290, that for a patient to have capacity he must be able to weigh that information in the balance and to arrive at a choice, was satisfied.[66]A possible difficulty with Miss Grey’s argument is that, for the tribunal, having concluded that a patient is able to make a choice, to then assess the quality of that choice seems to involve double counting. Satisfaction of the test for capacity, however, goes to the question whether there is a valid request, one of the two jurisdictional preconditions to the tribunal considering holding a public hearing. It does not follow that the nature and extent of a patient’s understanding about the likely impact and ramifications of the hearing being in public cannot be considered where the patient has capacity. The threshold for capacity is, as Miss Grey argued, low and where concerns as the nature and extent of a patient’s understanding about the likely impact of his request are raised (as they were in this case: see paragraph 35 of this judgment) they are clearly relevant to the determination of whether a hearing would be contrary to the interests of that patient, a determination which the tribunal is required to make. This is, accordingly a factor the tribunal should have considered.[67]The tribunal had before it evidence by the Claimant as to its concerns about the risks to Mr Brady should there be a public hearing. The decision refers to the concerns relating “to the impact of a public hearing and publicity in relation to the patient’s ongoing treatment and condition as a result of matters which have not previously been in the public domain entering the public domain” and that “any publicity would be detrimental so far as the patient was concerned” (paragraph 9). In the part of its decision dealing with whether a public hearing would be contrary to Mr Brady’s interests, the tribunal makes no reference to the nature and extent of Mr Brady’s understanding about the likely impact and ramifications of the hearing being in public or the Claimant’s concerns. It appears only to have considered Mr Brady’s understanding in the context of its determination as to his capacity to make the request for a public hearing. Miss Grey submitted that the tribunal either accepted Mr Gledhill’s submission that this was irrelevant, which was an error of law, or failed to have regard to a material consideration, and in any event, it failed to give adequate reasons for its decision. It is convenient to consider the effect of the tribunal’s failure to refer to these considerations and make findings on them when I deal with the tribunal’s reasons.[68]Miss Grey next submitted that in the exercise of its discretion, the tribunal should consider the patient’s “best interests”. Paragraph 48 of her skeleton argument on the legal issues states that, although it may only be in a limited number of cases that there will be a different outcome if a Tribunal asks itself whether a public hearing would be in the patient’s interests or best interests, rather than if it will be contrary to the interests of the patient, the Tribunal’s role in the protection of a vulnerable group deprived of their liberty means that it should be satisfied that a departure from the normal practice of holding hearings in private is the course of action that will best further the patient’s interests. She argues that not to do something that was in the patient’s best interests would probably be contrary to his interests.[69]The double counting point is a much stronger objection to this argument. The argument involves a tribunal first determining that a public hearing is not “contrary to the interests of the patient” and then considering whether it is in his “best interests”. Mr Gledhill submitted it is wholly misconceived because Rule 21(1) expressly requires a finding that a public hearing would not be “contrary to the interests of the patient”. The use of those words, and not “best interests” he argued is significant because “best interests” allows of only one answer whereas “contrary to the interests” does not. The “contrary to the interests of the patient” test in the regulations should not be replaced by a “best interests of the patient” test.[70]Analytically Mr Gledhill’s argument could also be answered by reference to the difference between the jurisdictional and the discretionary questions the tribunal has to address. To permit a tribunal to take into account the “best interests” of a patient as one factor in resolving the balance as between the public hearing which Article 6 and domestic law favour and the special position of mental health review tribunals recognised in statute and regulations is not necessarily inconsistent with rule 21(1), because the test of “contrary to the interests of the patient” is a threshold question and conclusive if not satisfied, whereas the “best interests” of the patient is simply one of several factors to be taken into account in the exercise of a broad discretion. To require a tribunal to consider this would, however, be artificial and confusing, particularly if the tribunal has already considered whether not to do something that is in the patient’s best interests is contrary to his interests. This is especially so since Miss Grey accepts that there will be a different outcome in only in a limited number of cases. For these reasons I reject Miss Grey’s submissions on this point.[71]The Claimant’s evidence before the tribunal also raised concerns about public order and security. The tribunal, while noting Mr Gledhill’s submission that such considerations had no relevance in the context of the rule and that, in any event, if appropriate, arrangements could be made for the hearing to take place at other more suitable and more secure accommodation, neither referred to these considerations in its conclusions nor made findings upon them. The tribunal recognised in its earlier decision rejecting Mr Brady’s challenge to the lawfulness of the presumption contained in rule 21(1) that “by definition” the tribunal convenes at the hospital where the patient is detained. The concerns raised in the statement before the tribunal related both to Mr Brady’s safety and to the extent and cost of the security arrangements that would be required because of Mr Brady’s high profile and the extent of media interest in him.[72]I have concluded that two aspects of the security concerns are relevant to the determination of whether such a hearing would be contrary to his interests, which determination the tribunal is required to make. These are the concerns about Mr Brady’s safety at such a hearing, and, although indirectly and through the clinical concerns, the impact on Mr Brady’s condition of the considerable security that it was stated would be required. These should, accordingly have been considered by the tribunal. It is possible that it did consider them and concluded that it was possible for arrangements to be put in place to meet these concerns but that is not apparent from the decision. Irrespective of the relevance of some security issues to the determination of whether a public hearing would be contrary to Mr Brady’s interests, the decision in Campbell and Fell v UK [1985] 7 EHRR 165 at paragraphs 86-88, to which I have referred, also shows that considerations of public order and security problems may also justify an exception from the requirement in Article 6 of a public hearing, and that Article 6 does not require proceedings to be held in public where this would impose a disproportionate burden on the State. Once raised by the Claimant, the tribunal should have taken these into account. Again, it is convenient to consider the effect of the tribunal’s failure to refer to these considerations and make findings on them when I deal with the tribunal’s reasons.[73]Miss Grey also submitted that the tribunal erred in failing to consider the interests of other patients which were relevant considerations pursuant to Article 6(1) of the European Convention. This argument was not developed separately from security and public order. It appears to be primarily based on the concern of the Director of Security that mentioning Mr Brady’s name in press reports will by association affect other patients within the hospital and make the work of the hospital more difficult in terms of its ability to provide an appropriate treatment regime. These concerns, accordingly, primarily relate to publicity and publication in the media of what transpires at the tribunal hearing. The tribunal’s conclusion that it would be able to prevent inappropriate publicity would, but for the errors I have found it made, have met these objections. In the circumstances, there was no need specifically to address this concern. It is not necessary for me to make a decision on this but I consider it doubtful that the interests of other patients if taken independently of security, public order and general publicity issues are relevant in the tribunal’s determination under rule 21(1).

(C) The reasons given by the tribunal

[74]The submissions of the parties are set out in paragraphs 42-43 of this judgment. It is common ground that the relevant principles are set out in the decision of the Court of Appeal in R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, [2003] 1 WLR 127. What is at issue is the application of the principles by the tribunal.[75]In R (H) v Ashworth Hospital Authority a mental health review tribunal ordered the discharge of a patient from detention, although a majority of doctors opposed the decision, no after-care arrangements were in place for him, and previous releases had been unsuccessful. The headnote to the Weekly Law Report states that the tribunal did not fully address those issues in its reasons, although it stated that it preferred the minority medical opinion. Miss Grey’s skeleton argument summarises the principles stated in the judgment of Dyson LJ in that case as follows: “1. Reasons must enable the parties to understand why a decision maker has reached his decision. Both the detained person and members of the public are entitled to adequate reasons” (paragraph 76). “2. If there is a conflict of expert evidence, there must be an explanation as to why the evidence of one expert is preferred to another, and the court must “enter into the issues” canvassed before it” (paragraphs 70-70). “3. Reasons should demonstrate the tribunal “grappled” with [the] major issues” (paragraph 74, quoting [Stanley Burnton J], the judge below). “4. There should be no reliance on the argument that a mental health review tribunal decision is addressed to “an informed audience”, to justify, for example, the failure to set out material oral evidence or arguments made during the hearing. Dyson LJ pointed out that an approved social worker, for example, might have to make a decision on readmission without knowledge of the hearing. He or she must know the “facts and circumstances” which the tribunal took into account when reaching its decision, and the reasons for it.” (paragraph 79).[76]Mr Gledhill, while not taking issue with these, adds that the obligation to give reasons must be interpreted in its context. Dyson LJ stated at paragraph 76 that “the adequacy of reasons must be judged by reference to what is demanded by the issues which caused the decision”. In that case the reasons were very brief, amounting to one paragraph. The issue was one of the release of the patient. In that context, the issue might arise as to whether a released patient should be detained again. A professional involved in this potential further detention of a patient might need to know the details of the tribunal decision so as to avoid the risk of breaching Article 5(4) be defeating a decision of the tribunal as to liberty. In the present case, by contrast, there were five pages of reasons.[77]I have concluded that, in respect of the Claimant’s concerns about security and its view supported by the evidence of the RMO that, given Mr Brady’s aversion to publicity in the past, his clinical condition, and the impact of a public hearing on that, such a hearing would be contrary to his interests, the tribunal’s reasons do not comply with the principles derived from R (H) v Ashworth Hospital Authority. In addition to the list set out above, it should be said that the mere recitation of evidence or submissions is no substitute for giving reasons: L v Devon County Council [2001] EWHC Admin. 958. The Claimant’s concerns about security are mentioned in the summary of the Claimant’s submissions but are simply not addressed in the tribunal’s decision. The tribunal’s decision does not enable the Claimant, which will have to make the necessary arrangements for the hearing, whether it is to be at the hospital or, exceptionally, elsewhere, liasing with police and, if the hearing is to be in a court, the Court Service, to understandwhy its concerns have been set aside or what security arrangements the tribunal envisages. It does not display that it has “grappled” with the issue, which, in view of Mr Brady’s profile, is a serious and substantial one.[78]Similarly, although paragraph 8 of the decision addresses the nature of Mr Brady’s thought-process and understanding, it does so only in the context of the tribunal’s conclusion on his capacity. The tribunal also had to satisfy itself that a public hearing was not contrary to his interests. Because the threshold test for capacity is low, notwithstanding the tribunal’s finding on capacity, in determining whether a public hearing was contrary to Mr Brady’s interests the nature and extent of his understanding about the likely impact and ramifications of the hearing being in public needed to be considered. It is possible that, in concluding that Mr Brady had capacity, the tribunal also rejected the Claimant’s evidence given by the RMO that, given Mr Brady’s aversion to publicity in the past, his clinical condition, and the impact of a public hearing on that, such a hearing would be contrary to his interests, but this is not discernible from the decision. It is also possible that the tribunal preferred the evidence contained in the letter from the psychiatrist instructed by Mr Brady. It had, however, said that was of limited assistance because that letter contained only the psychiatrist’s conclusions. Although the RMO was hampered by the fact that Mr Brady would not discuss matters with him, his long involvement with Mr Brady’s treatment means that particular weight should be given to his views (see e.g. R(N) v Dr M [2003] 1 WLR 562, paragraph 39) and that where they are rejected there is a particular need for reasons to be given.[79]I turn to the complaint that the tribunal gave no or no adequate reasons for discounting the concerns expressed by the RMO and preferring the documents and submissions on behalf of Mr Brady on the issue of capacity. The position differs here because the tribunal gave reasons in paragraph 8 of its decision (which is summarised in paragraph 18 of this judgment). Mr Gledhill argues that those reasons were adequate because this was not a case of the tribunal preferring the evidence of one expert rather than another but a decision that the Claimant had not demonstrated to the required standard of proof that the patient lacked the requisite capacity. The fact that a decision is made as a result of a failure by a party to satisfy the required standard of proof does not, however, in itself mean that reasons that do not satisfy the principles derived from R (H) v Ashworth Hospital Authority will suffice. If the specialised tribunal uses its expertise to decide an issue, including one as to the capacity of a patient, it should explain the basis for its decision: see the reasoning in R v Mental Health Review Tribunal, ex p. Clatworthy [1985] 3 All ER 699, although that concerned the need to give the parties an opportunity to comment on the tribunal’s thinking before making a decision. In the present case in my judgment the reasons given on capacity meet the standards identified in R (H) v Ashworth Hospital Authority. To see why,it is necessary to set them in the context of the material put before the tribunal.[80]The RMO’s first report, dated 9 September 2002, prepared for the review by the tribunal, contains an extensive consideration of Mr Brady’s clinical condition but does not address the question of his capacity to request that the hearing be a public hearing. The only evidence before the tribunal that questioned his capacity to make the request was that in the RMO’s second report dated 2 January 2003, which is primarily concerned with the question whether it is in Mr Brady’s interests to have a public hearing. The RMO considered that it is not in his interests. In relation to capacity, the RMO stated that, as Mr Brady had refused to discuss his reasons for wanting a public hearing with him, he was unable to comment on his motivation and its possible relationship to his disorders with any certainty, but he cited the opinion of a colleague which is set out in paragraph 42 of the judgment of Maurice Kay J in R v Collins & Ashworth Hospital Authority, ex parte Brady [2000] Lloyds Medical Reports 355, the force feeding case, decided on 10 March 2000, that is in paragraph 35 of this judgment. The RMO then stated that at the time of the judicial review it was his view “that Mr Brady did not have capacity in relation to his decision to refuse food and I am concerned that this may still be the case.” (emphasis added).[81]That statement, which is paraphrased in paragraph 6 of the tribunal’s decision (which is summarised in paragraph 18 of this judgment), is the high point of the evidence as to lack of capacity. There was no oral evidence, and significant reliance was placed by the Claimant on the decision of Maurice Kay J as to Mr Brady’s capacity on a different issue four years ago. I have concluded that the tribunal’s statement in paragraph 8 of its decision that notwithstanding the evidence of distortion of the thought process, it was not satisfied that Mr Brady’s thinking “is so dominated that the decision to make the request was not a true one” addresses the issue raised by the RMO as to whether Mr Brady gives proper regard to the risks which he runs and enables the Claimant to understand why the decision was reached. The limited evidence before the tribunal meant that it was possible for it to demonstrate that it had “grappled” with the issue succinctly.[82]It follows that in my judgment the decision of the tribunal is flawed for the reasons I have given in paragraphs 46, 55-56, 63-64, 66-67, 72, and 77-78 and must be set aside. The decision of 4 September 2003 will be set aside and the matter remitted to the tribunal for a rehearing.[83]Insofar as the decision of the tribunal assumed that by Mr Brady’s request he effectively sought to waive his confidentiality and its decision to hold a public hearing was made on this assumption, since it is now clear that Mr Brady does not wish to waive confidence in any medical or clinical information relating to him, the decision would in any event have required some reconsideration. This issue should also be explored at the rehearing.

Cited in 3 later judgments