AH v West London MHT [2010] UKUT 264 (AAC)

UKUT-AAC

AH v West London MHT

[2010] UKUT 264 (AAC) · 2010-07-29

For the Applicant: Miss Aswini Weereratne of counsel, instructed by Duncan Lewis and Co, Solicitors.

For the Respondent: Mr Vikram Sachdeva of counsel, instructed by Capsticks, Solicitors.

The Secretary of State did not appear and was not represented.

Order

The Upper Tribunal in exercise of its powers under s12(2)(a) Tribunals, Courts and Enforcement Act 2007 sets aside the decision of the First–tier Tribunal dated 15 October 2009 not to grant AH a public hearing, and directs that the question be considered and determined by the Upper Tribunal following a further hearing (at which we invite the Department of Health to appear) for the purpose of considering further evidence as to:

the practicalities and potential cost of providing a public hearing (including by use of video facilities);

how often public hearings have been applied for in the last five years, the number of occasions on which they have in practice been held, and how they have been managed?;

(so far as readily available) practices elsewhere in the United Kingdom, in Europe, and in other common law countries.

REASONS FOR DECISION

Introduction

The applicant AH is detained at Broadmoor Hospital pursuant to sections 37 and 41 of the Mental Health Act 1983. Broadmoor Hospital is a high security hospital in Berkshire, one of only 3 such institutions in the country.

On 9 April 2009, AH applied to the First-tier Tribunal (mental health) (“the tribunal”) for his discharge from section. At the same time he requested that the hearing should be held in public, pursuant to rule 38(1) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the Rules”).

Rule 38 (1) states as follows:

Public and private hearings

38 ( 1) 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.

On 15 October 2009, the tribunal heard AH’s application for a public hearing as a preliminary matter. The tribunal determined that the substantive hearing of AH’s application for discharge should be held in private, before a new panel. On 24 November 2009 Judge Wright, Principal Judge of the First-tier Tribunal (mental health), reviewed this decision, pursuant to rule 47(1) of the Rules, and a) concluded that the decision contained no error of law; b) refused permission for AH to appeal the decision to the Upper Tribunal.

On 25 February 2010 Judge Levenson, Judge of the Upper Tribunal, gave permission to AH to appeal to the Upper Tribunal against the decision of the tribunal of 15 October on the grounds that the case raises issues that the Upper Tribunal should address as follows:

Whether the Upper Tribunal has jurisdiction to consider this as an appeal?

How rule 38 should be understood in the light of the provisions of

Article 6 of the European Convention on Human Rights

Whether the First-tier Tribunal gave adequate consideration to the matters to be taken into account, for the purposes of Article 6(1)?

On 21 March 2010 Judge Rowland, Judge of the Upper Tribunal, issued a further Direction that the appeal involves an important point of principle and practice and should be decided by three judges.

The Facts

The applicant AH, aged 51, has a very long history of engagement with mental health services. He has been continuously detained under the Mental Health Act 1983 Act (‘the Act’) for over 23 years.

Following his conviction in September 1986 on 2 counts of attempted wounding he was made subject to the provisions of ss. 37 and 41 of the Act and in October 1986 was admitted to Broadmoor Hospital. Thereafter he was detained in Broadmoor Hospital for 6 years, at St Bernard’s Regional Secure Unit for about 16 years, and was transferred back to Broadmoor Hospital in January 2008, where he currently resides.

AH has a mental disorder classified since September 2008 as a psychopathic disorder. Prior to that date his mental disorder had been classified as mental illness and psychopathic disorder. AH has had a number of tribunal hearings in private over the years of his detention. His principal reasons for seeking a public hearing for his next tribunal are in summary: He has been a detained patient for over 23 years, and is still held in conditions of high security. He is frustrated by his lack of progress and the perceived failings in the system of care as he has experienced them, including the question of his diagnosis. He wishes the public to know what it is like to be a patient at Broadmoor Hospital and to redress the negative publicity that patients usually receive.

Broadmoor Hospital opposes AH’s wish for a public hearing for a number of reasons. Publicity may have an adverse effect upon his mental health, whatever the outcome of the hearing. A public hearing may render him and therefore the proceedings difficult to manage. AH may be misusing the tribunal as an attempt to air his wider grievances about the hospital inappropriately in a public forum. The experts on both sides agree that there is no prospect of AH being discharged, so it would be a disproportionate exercise to hold a public hearing. Finally, there would be significant administrative difficulty and associated cost in organising a public hearing disproportionate to the benefits.

The Law

Jurisdiction

As already noted, one of the issues raised by Judge Levenson when granting permission to appeal was whether the Upper Tribunal has jurisdiction to consider this as an appeal. In the event, it has been common ground that the Upper Tribunal does have jurisdiction. We make some brief comments only, acknowledging that we have not heard argument on the point.

We should emphasise that we treat this as an appeal against the decision of the First-tier Tribunal of 15 October 2009, not against the refusal of permission to appeal on 24 November 2009. The latter would be an “excluded decision” under s11 Tribunal Courts and Enforcement Act 2007, and therefore not susceptible to appeal under that section. However, that does not affect the right to appeal, subject to permission, against the original decision.

Nor do we see any reason why the interlocutory nature of the decision should be material. It is none the less a “decision” within section 11. Indeed the expertise of the Upper Tribunal is particularly well suited to providing guidance on such procedural issues. The Upper Tribunal has accepted jurisdiction in cases involving interlocutory orders in relation to disclosure of evidence ( Dorset Healthcare NHS Foundation Trust v MH

[2009] UKUT 4 (AAC)

, LM v LBL

[2009] UKUT 204 (AAC)

), refusal to reinstate a struck out appeal ( Synergy Child Services Ltd v OFSTED

[2009] UKUT 125 (AAC)

), decisions to strike out a case ( AW v Essex County Council

[2010] UKUT 74 (AAC)

, KC v LBN

[2010] UKUT 96 (AAC)

) and a refusal to set aside a decision ( Patterson v SSWP

[2010] UKUT 103 (AAC)

Accordingly, we see no reason to go behind the agreement between the parties in this case. However, we understand that a three-judge panel of the Administrative Appeal Chamber (presided over by the Chamber President) is currently considering a case where the First-tier Tribunal declined jurisdiction because an appeal to it was out of time ( S v LB Lambeth CH/1758/2009 & JR/2204/2009). Nothing we say is intended to pre-empt the arguments in that case.

Rule 38 and Article 6 of the ECHR

Article 6(1) of the Convention

confers the right to a “fair and public hearing” in the determination of civil rights, subject to a power to exclude the press and public from all or part of the trial –

“... in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

A tribunal’s determination of a patient’s right to liberty is a determination of a ‘civil right’ ( Aerts v Belgium

[1998] 21 EHRR 55

at 59).

The importance of the principle of open justice has been emphasised by the European Court of Human Rights on many occasions. For example, in Diennet v France

[1996] 21 EHRR 554

at 33, it said:

“This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.”

It follows that any exceptions must be clearly justified.

In providing such a general presumption in favour of open justice, Article 6 accords with the position long taken by the common law (see the classic exposition in Scott v Scott

[1913] AC 417

). More recently, Lord Woolf explained some of the reasons underpinning the principle in R v Legal Aid Board ex parte Kaim Todner (a firm)

[1999] QB 966

, 976-7:

“The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely … . Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary.”

At first sight, rule 38 (cited above), which sets the presumption in favour of hearings in private, might be thought to conflict with this principle. However, the Strasbourg case law recognises that the presumption may be reversed for categories of case where this is justified under the exceptions. In B v The United Kingdom

[2001] ECHR 298

the court confirmed the validity of a rule that hearings relating to children should be in chambers, unless the court otherwise directs. Two fathers had applied for proceedings relating to residence orders for their children to be heard in open court. The judge had refused because he did not think it in the interests of the children. The Strasbourg court confirmed that approach as consistent with Article 6:

“38. … The Court considers that such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment.

39. The applicants submit that the presumption in favour of a private hearing in cases under the Children Act 1989 should be reversed. However, while the Court agrees that Art 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule where 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 (see Campbell and Fell v United Kingdom

(1984) 7 EHRR 165

, paras 86-87), although the need for such a measure must always be subject to the Court's control (see, for example, Riepan v Austria (Case 35115/97) (unreported) 14 November 2000). The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Art 6(1).” (applied in Clibbery v Allan

[2002] Fam 261

[2002] EWCA Civ 45

, para 81)

It is true that mental health cases are not expressly mentioned as a special category under Article 6. However, it was not in dispute before us that similar principles should apply. In domestic law it has long been accepted that the protection of the interests of mental health patients, as of those of children, justify an exception to the open justice principle (see Scott v Scott

[1913] AC 417

at p 437). The Mental Health Act 1983 s 78(2)(e) specifically allows rules for excluding members of the public from proceedings of the tribunal. Similarly, CPR Part 39.2 permits a private hearing where it is necessary “to protect the interests of any child or protected party”.

The only reported case in which such rules appear to have arisen directly for consideration, since the Human Rights Act, seems to be R (Mersey Care NHS Trust) v Mental Health Review Tribunal

[2004] EWHC 1749 (Admin)

;

[2005] 2 All ER 820

. The relevant rule, under the Mental Health Review Tribunal Rules 1983, provided:

“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.”

The patient wanted a public hearing to air his complaints about his treatment at the hospital, and to further his wish to be moved. On its facts, the case is of little assistance in resolving the issues in the present case, although it is notable that his motives for wanting a public hearing were not in themselves put forward as a material factor. The tribunal had ordered a public hearing, but it was held by the court that it had misdirected itself as to its ability in law in such a high-profile case to control subsequent publicity. It was also held that in certain respects the tribunal had failed to give adequate reasons for its decision. The case was accordingly remitted to the tribunal for rehearing. Unlike the Upper Tribunal, the court had no power to decide the issue for itself on the merits.

The decision is, however, a useful confirmation both of the importance of the general principle, and of the acceptability of the mental health exception and the reasons for it. There was no dissent before the court from the tribunal’s view that the rule in its then form represented “a proper and proportionate departure from the principle of open justice”, because:

“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 … .” (quoted by Beatson J at para 14).

Such considerations in our view are sufficient to bring the generality of such cases into the exception for the protection of private life of the parties, or “other special circumstances”. The practice is indeed very well established. As we understand, it is very rare for applications to be made for public hearings. At Ashworth Hospital, the subject of the Mersey Trust case, the evidence was that of 600 hearings held there between 2000 and 2003 only one “at most” had been held in public. This accords with the general experience of this tribunal. The present rule is made under the Tribunals Courts and Enforcement Act 2007 (“the TCEA”: see Sch 5 para 7, which enables rules to make provision for hearings “in private”), but the justification is in our view the same.

The differences between rule 21 in its then form and the present rule 38 (quoted above) do not in our view materially alter the general effect of the rule, save that they mark a slight shift of emphasis from the wishes of the patient as the starting point, to the interests of justice more generally. The underlying assumption is that the interests of justice will normally require a hearing in private. However, even under the new rule, in our view, having regard to the reasons for the exception under Article 6, the principal consideration remains the protection of the interests of the patient.

We note, further, that in the Mersey Trust case, Beatson J accepted that it is relevant also to consider whether requiring a public hearing would impose “a disproportionate burden on the state” (para 64). This followed Campbell and Fell v UK (cited in the above quotation from B v UK ), in which the Strasbourg court was concerned with disciplinary proceedings before the Board of Visitors in a high security prison. The government argued that the practice of holding such proceedings in private was legitimate on the grounds of public order, protection of private life, or prejudice to the interests of justice:

“Security problems, the possible propagation of malicious allegations by a prisoner and the latter's own wishes for privacy were cited in support of this submission.” (para 86)

The court accepted the argument:

“87 It is true that ordinary criminal proceedings - which may well concern dangerous individuals or necessitate the production of a prisoner before the court - nearly always take place in public, notwithstanding the attendant security problems, the possible propagation of malicious allegations and the wishes of the accused.

However, the Court cannot disregard the factors cited by the Government, notably the considerations of public order and the security problems that would be involved if prison disciplinary proceedings were conducted in public. Such a course would undoubtedly occasion difficulties of greater magnitude than those that arise in ordinary criminal proceedings. A Board's adjudications are, as befits the character of disciplinary proceedings of this kind, habitually held within the prison precincts and the difficulties over admitting the public to those precincts are obvious. If they were held outside, similar problems would arise as regards the prisoner's transportation to and attendance at the hearing. To require that disciplinary proceedings concerning convicted prisoners should be held in public would impose a disproportionate burden on the authorities of the State.”

Although the context was very different, similar security issues in relation to sittings in a hospital such as Broadmoor are described by Dr Murray’s evidence. Furthermore, the fact that arrangements are routinely made to enable dangerous individual to appear in public in criminal proceedings (as Dr Murray accepts) does not necessarily justify the “disproportionate burden” of requiring special arrangements for categories of case which are normally and for legitimate reasons held in private.

To summarise, it seems to us that the principal issues for the tribunal considering an application for an open hearing in a case such as the present are:

Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)?

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?

Are there any other special factors for or against a public hearing?

Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

The proceedings below

The evidence

The tribunal had written and oral evidence on both sides. AH himself gave oral evidence and was supported by Dr Exworthy, a consultant psychiatrist who had previously worked at Broadmoor. For the hospital the main evidence was given by Dr Murray, Clinical Director at Broadmoor Hospital, and Dr Owoso, Consultant Psychiatrist at the Hospital, who had had direct responsibility for AH since May 2009. There was also a written report from the previous consultant, Dr Vermeulen. It is important to note that, contrary to AH’s own aspirations, Dr Exworthy, agreed with the hospital consultants that detention in Broadmoor remained the only realistic option.

The effect of their evidence can, we think, be adequately represented by a few references to their written statements. In fact the differences between the two consultants, Dr Exworthy and Dr Owoso, were relatively narrow. Both considered that AH had sufficient capacity to make valid decisions regarding his private life,that he understood that he would be giving up his right to confidentiality, and that he realised that the publicity might be negative rather than positive as he hoped.

Where they differed was as to the potential consequences for his longer term progress. Dr Exworthy thought that –

“…there is the possibility that a hearing in public, with whatever publicity it may attract, will assist AH by satisfying his wish to make known his concerns to a wider audience and that would permit him to focus on and engage in his future treatment and rehabilitation. However, in my opinion, that possibility, if it happens, will not have a significant or sustained impact on his overall progress.

It is also my opinion that if AH was not granted a public hearing this would be more likely to have a negative impact on his mental health than having adverse publicity following a hearing in public. In such a scenario, AH is likely to come to view the Tribunals Service as part of the system that has kept him in hospital rather than an independent organisation to safeguard him from inappropriate or arbitrary attention.”

Dr Owoso did not share Dr Exworthy’s belief that publicity might help him to engage better in his future treatment, other than possibly in the short term. There was no certainty that the case would receive any publicity, and “those who have committed a criminal offence rarely receive positive coverage in the press”. Accordingly, he was concerned that there might be “no end or control” to the reporting which would be almost certainly negative, and that, given his “history and susceptibility” –

“…, in the long run the loss of confidentiality and negative reporting would have a negative impact on his mental health.”

Dr Owoso agreed with Dr Exworthy that not granting him a public hearing was also likely to have a negative impact, but stated “again whatever benefits derived from a public hearing would be short-lived”. Further, although there was a risk of him reacting “explosively” in either a public or a private hearing, “it could be argued” that the risk was more in a public hearing “as he is more likely to be sensitive to what may be said and given a tendency to his impulsivity”.

Dr Murray spoke of the practicalities of arranging a public hearing. He considered four possible alternatives;(a) existing tribunal facilities on the secure site;

(b) other buildings on the secure and non-secure site;

(d) video link. As to (a) and (b), he enumerated the problems of providing space and security for visitors within the secure site, and the “significant burden on the normal workings of the hospital”. He was concerned that this request, if granted, would inevitably be followed by others, and “the safe and secure running of the hospital will be compromised by it being turned into an ongoing media circus ... .” There were no suitable buildings on site outside the secure perimeter.

As to (c), the hospital had extensive experience of accompanying patients to court, but not in relation to tribunals. That would incur “a significant cost” in terms of escorting staff and the extra time needed for clinicians giving evidence, as compared to a hearing in the tribunal. As to (d) the hospital had some experience of using video link facilities, but not to conduct an entire case. They would be willing to explore this if required.

The decision

The tribunal (chaired by HH Judge Laurie) gave a carefully reasoned decision. They noted that under rule 38 the “general principles” which require a public hearing for proceedings relating to the liberty of the subject do not apply “in the absence of some particular aspect of the patient’s case which require them to do so in the interests of justice”. They had been reminded by Ms Weereratne as to the “relevant principles”:

“The public hearing nature of the proceedings deters inappropriate behaviour on the part of the tribunal, maintains public confidence in the administration of justice by enabling the public to know that justice is being administered impartially, and can result in evidence becoming available which would otherwise be unknown evidence. There are others such as that the media can help over time to expose incompetent or dishonest witnesses or arguments. Also not having a public hearing can be justified if, in the opinion of the court, publicity would in the particular case protect [sic] the private life of a party or would otherwise prejudice the interests of justice. It is clear that these are objective principles”.

We summarise the main points of their reasoning:

They started by emphasising that the purpose of the hearing would be to inquire into the patient’s mental disorder and its consequences and possible treatment, not to enable patients to air their grievances in public, for which other avenues were available.

Under “management problems”, they accepted Dr Murray’s evidence that the venue for a public hearing should be an outside court building, but that the arrangements would “probably be complex, demanding in time and personnel, and costly”.

Although Dr Exworthy supported the application for a public hearing, they considered that given his agreement with the hospital (contrary to AH’s case) that continued detention was necessary, the “trouble and expense” of a public hearing were not justified.

Also, Dr Exworthy had not sufficiently taken into account that –

“the patient clearly has no insight and that any evidence by him is likely to be affected by his animus against MH Services and not likely to be objectively sensible.”

Under “the patient’s presentation at a public hearing”, they noted that AH had been unable to relax at the hearing, and they thought that a public hearing would be “far more stressful”, and they accepted the evidence that there would be “a far greater chance that he may become difficult to control in the presence of any media”.

A public hearing was likely to be “a disagreeable and uninformative experience for any right-thinking member of the public present”. Further the hospital would be unable to call evidence to rebut “irrelevant and amateur matters” put forward by AH.

Under “confidentiality”, the tribunal accepted that he had the capacity to waive confidentiality, but there was an issue as to whether he was able to form an objective judgment about how publicity about central clinical aspects of his disorder might affect him later. The tribunal’s judgment was that such publicity was more likely than not to affect him badly.

Under “attendance” and “publicity”, they found that a public hearing would be unlikely to attract much if any media or other interest. They agreed with Dr Owoso that adverse or no publicity were likely to be a serious disappointment to the patient in the longer term. They regarded as “highly unlikely” Dr Exworthy’s suggestion that he would be enabled “to focus better on treatment and rehabilitation”.

Reverting to the “principles” set out at the beginning, they did not accept that a public hearing was needed for the purpose of “deterring inappropriate behaviour by the tribunal and impartiality”; there was no suggestion that “unknown evidence” might become available, and there was no reason to suspect that any or the witnesses were dishonest or incompetent, or that questioning at a public hearing would reveal them as such.

They concluded by summarising the reasons for thinking a public hearing was not justified in the interests of justice:

· The patient’s primary intention was to air his subjective grievances about the system.

· His evidence would not be “objectively sensible” or sufficiently relevant to the criteria.

· He would be more difficult to control, and the public would be unlikely to be accurately informed, and there was unlikely to be much public interest.

· The cost and problems of managing a public hearing were disproportionate to any benefit to the patient, the public, or the administration of justice.

· The patient’s health, behaviour and progress were likely to be adversely affected by the hearing, and by “adverse or no publicity afterwards”.

Submissions

On behalf of AH Miss Weereratne made the following main submissions:

The tribunal’s decision of 15 October 2009 failed to give adequate consideration to the wider public interest and the need for public confidence to be maintained in the administration of justice. This was an important part of his case due to the fact that he had been kept in detention at public expense for over 23 years, often in conditions of high security; that there had been a very recent change in his diagnosis from mental illness and personality disorder to personality disorder (he had always denied having a mental illness); and that the justification for his continued detention and in conditions of high security demanded public scrutiny.

In ruling that “it is not the function of a hearing to enable patients to air their grievance in public about the law or the tribunal process not bearing on their jurisdiction” the tribunal fell into error because one role of the tribunal is periodically to identify whether the reasons which initially justified his detention continue to exist: R v East London and City Mental Health NHS Trust ex parte Brandenburg [2001] EWCAA at 503. This includes questioning professionals’ opinions, diagnoses and care plans. A review does not depend upon there being any chance of success in obtaining release: Waite v United Kingdom [2003] 36 EHRR at 59.

The tribunal placed a disproportionate and paternalistic emphasis on the health of the patient in the event of a public hearing and his ability to understand the same and the tribunal’s assessment that AH evidence was not likely to be “objectively sensible” was wrong and irrelevant.

There were no proper concerns on public order or security that could not be dealt with by the tribunal’s powers under the Rules.

On behalf of Broadmoor Hospital Mr Sachdeva submitted :

The decision of the tribunal was clearly in conformity with Article 6 and no case for applying the exception to the presumption of privacy in mental health cases had been established.

The tribunal had expressly considered all the factors submitted by the parties which they said were relevant to the interests of justice and decided not to order a public hearing. The hospital’s evidence and submissions had expressly addressed both the potential benefits and the potential disadvantages of a public hearing and in particular the likely negative effect a public hearing might have upon AH’s mental state. It was a legitimate concern for the tribunal to consider the likely negative effect of publicity on AH and his subsequent progress in hospital.

Waiving confidentiality in this case would be neither in the interests of AH, nor in the interests of justice.

The cost and administrative inconvenience to Broadmoor Hospital of arranging a public hearing would be disproportionate to any benefits that might accrue to AH from a public hearing, especially when balanced against the likely adverse effect upon his health.

Conclusions

The First-tier Tribunal’s decision

The decision whether to direct a public hearing was a matter for the First-tier Tribunal in the first instance. It is only if we find an error of law in their decision that we can intervene. If we so find, it is open to us to remit the case to the First-tier Tribunal for reconsideration, or make the decision ourselves and make such findings of fact as we think appropriate for that purpose (TCEA s 12).

In our view, the tribunal started from the wrong point. Rather than directing attention to Article 6 and its exceptions, they relied on “relevant principles”, which were not so much principles, as reasons given by eminent judges to justify the general principle of open justice (see e.g. Lord Woolf MR in R v Legal Aid Board ex p Kaim Todner

[1999] QB 966

, 976-7, cited above).They were not designed as criteria for deciding individual cases. Thus for example, while open justice may help in general to deter “inappropriate behaviour” by a tribunal, it was not a useful question to ask whether such an allegation was likely to be made in this case, and hardly one for the tribunal itself to answer.

Their approach also seems to have diverted their attention from the fundamental principle that open justice is a right, which does not require justification on a case by case basis. On the contrary it is the exceptions which need to be justified. Thus, the motives of the applicant in seeking a public hearing, and the fact that his evidence might be “amateurish” or not “objectively sensible” could not in themselves detract from that right. Even less relevant was the possibility that some visiting members of the public might find the hearing “disagreeable and uninformative”. Even in 1913, at the time of Scott v Scott (above at p 435, 438), neither the judge’s desire to protect “public decency” nor the “unsavoury character” of the evidence was a sufficient reason for excluding the public.

In our view, these considerations should not have been given weight in the overall balance. They infected the tribunal’s consideration of the other more relevant issues, such as the effect of the proceedings on the future mental health of the patient. It seems to us therefore, with respect, that the tribunal’s reasoning was legally flawed. It is open to us therefore to form our own view. We think it right to do so, rather than simply remitting the case, so that we can take the opportunity to look at the issues in a wider context, and offer some guidance for future cases.

The Upper Tribunal’s view

As already explained, we consider that the relevant factors in deciding whether to direct a hearing in public are:

Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)?

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?

Are there any other special factors for or against a public hearing?

Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

The first factor concerns the patient’s own right to privacy, and in particular his right to protection for personal and clinical information. In this case, that issue does not arise because AH has waived his right to privacy. There is no dispute that he was able to make an informed choice.

The second issue is more difficult. The tribunal found, relying on the evidence of Dr Owoso, that a public hearing would be likely to have an adverse effect on the patient’s “health, behaviour and progress”. We have noted above the relevant parts of the evidence of Dr Owoso and Dr Exworthy. As we have said, the differences between them are narrow. Dr Owoso’s view of the possibly adverse effect of a public hearing are expressed in relatively tentative terms. They are based to a large extent on his concerns as to the difficulty of controlling negative publicity in the longer term. The tribunal put it slightly differently. They found that a public hearing would be unlikely to attract much if any media interest, but they thought “adverse or no publicity” would be a serious disappointment, and hinder the patient’s progress in the longer term. Dr Exworthy thought that these considerations were on balance outweighed by the negative impact of refusing a public hearing.

On any view, the arguments under this head are finely balanced, and reflect a degree of speculation rather than clinical judgment. In such a situation, it seems to us that the views of the patient himself, supported by his own expert, should carry considerable weight, in the absence of other countervailing factors. The only other specific factor mentioned by the tribunal was that the problem of managing a public hearing should be a major factor. They purported to “accept evidence” that at a public hearing there was “a far greater chance” of the patient becoming difficult to control. However, this seems to overstate the effect of Dr Owoso’s evidence, which we have noted above. In any event, as he accepted, it is a risk which will need to be addressed whether the hearing is in private or in public.

As to other special factors, we see force in Miss Weereratne’s submission that this case is out of the ordinary, and for that reason merits special consideration. The patient has been kept in detention at public expense for over 23 years, often in conditions of high security, and it is only recently that there has been a change in his diagnosis from mental illness and personality disorder to personality disorder. We agree that this potentially gives the case some heightened public significance, although whether it will attract public attention is a matter of speculation.

Finally, we come to the question of practicalities and proportionality. We have referred to the evidence of Dr Murray on this issue. The tribunal dealt with it shortly, saying that a public hearing would need to be held off-site, and that the security and safety arrangements would “probably” be complex, demanding in time, and costly. They did not consider Dr Murray’s suggestion that the use of video facilities might be investigated.

This seems to us an important issue of principle, with potential implications going beyond this case and this hospital. For the reasons already given, we see no difficulty in justifying the normal practice for such hearings to be held in private. A departure from this practice will almost inevitably involve additional administrative burdens and cost. We do not think it possible to reach a final view on this issue without further evidence on the practicalities. On the basis of Dr Murray’s evidence, we are inclined to the view that it would not be practical to hold a public hearing at the hospital itself, and that organising it elsewhere might involve a disproportionate burden in terms of staff time and cost although the detailed costs and possible inconvenience of arranging a hearing elsewhere, including at a neutral venue, were not explored by Dr Murray in any depth.

In addition we would find it useful to have further evidence on the potential use of video facilities. He suggested a public hearing off-site, where the patient could participate via a video-link from the hospital, although in such circumstances the additional cost of transporting AH to the venue might not be burdensome. A possible alternative might be for the full hearing to be held at the hospital, but with a video-link to an off-site location to which the public might have access. We would also find it useful to have evidence and submissions from the Department of Health as to the potential implications of a ruling in this case for other hospitals faced with similar issues, including if possible evidence as to how often in recent years (say five years) public hearings have been applied for, the number of occasions on which they have in practice been held, and how they have been managed? It would also be useful to be provided with any readily available information as to how this problem is dealt with elsewhere in the United Kingdom, in Europe, and in other common law countries.

We therefore propose to adjourn consideration of this case, for a further hearing to be arranged to hear further evidence limited to the points mentioned in the previous two paragraphs, and for further submissions on the whole case in the light of this judgment and such further evidence.

Decision

The Upper Tribunal in exercise of its powers under s 12 (2) Tribunals, Courts and Enforcement Act 2007 sets aside the decision of the First–tier Tribunal dated 15 October 2010 not to grant AH a public hearing, and directs the question be considered and determined by the Upper Tribunal following a further hearing (at which we invite the Department of Health to appear) for the purpose of considering further evidence as to: