“71 References by Secretary of State concerning restricted patients. (1) The Secretary of State may at any time refer the case of a restricted patient to the appropriate tribunal. (2) The Secretary of State shall refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years. …” (1) The Secretary of State may at any time refer the case of a restricted patient to the appropriate tribunal. (2) The Secretary of State shall refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years. …”
“Pre-Hearing Medical Examination of the Patient A pre-hearing examination of the patient was indicated under the Rules. However, an interview with the patient did not take place because the patient is in seclusion and has been for some time. When our medical member contacted the hospital to try and arrange the pre-hearing examination, she was told by the staff on the ward that it was not practicable to do so or safe to do so. Our medical member was told that the patient is in such an agitated state that the staff do not even open the door of his room for medication to be supplied and the risk assessment was such that it was deemed to be a clinical risk to take a laptop into the seclusion room so that [the medical member] could interview the patient on the laptop. In any event, according to the staff, when [DB] condition was last reviewed, he was in such a state of mind that it is very unlikely, according to the staff, that he would talk to the medical member. He was said to be laughing to himself incongruously and probably hallucinating. In the circumstances, [the medical member] considered that it was not practicable or safe to conduct a pre-hearing examination even though one had been requested and she was therefore unable to do so. … Jurisdiction, Preliminary and Procedural Matters … 3. As stated above, the patient did not attend the hearing. The reason for this is, as stated in relation to the PHE, that he was in seclusion and in such a mental state, according to the evidence we were given by the staff, that not only would it not have been safe for him to come to the room where the hearing was being conducted on a laptop in the hospital but it would not have been safe for a member of staff to go into his room with a laptop so that he could participate in the hearing. It was the view of the Treating Team that this would have exposed that member of staff to an unacceptable risk to his or her safety. 4. In the circumstances, Mr Batterbee, the patient’s representative, applied for the hearing to be adjourned. Mr Batterbee accepted that [DB] would not be able to attend the hearing either by coming into the room where the hospital witnesses were giving evidence or, for safety and practicality reasons, by using a laptop taken into his room. Mr Batterbee told the hearing that [DB] had been accepted by a maximum security hospital, …, last September. The staff at this hospital were “trying to get the transfer over the line.”
“10. The FtT erred in that:- a. On20 March 2025 Judge Allen erroneously acceded to the Responsible Authority’s application to convert the face to face FtT hearing listed on21 March 2025 to a video hearing, contrary to [DB’s] request for a face to face hearing having been previously granted, by i. The imposition of a remote video hearing in place of a face to face hearing which removed the possibility of the medical member conducting a pre-hearing examination, the request for which had been granted; ii. Giving undue weight to the contents of the Responsible Authority’s application that the proposed transfer, accepted on30 September 2024 , was urgently required and a postponement of the hearing would result in delay in the transfer; iii. Failing to seek a response from [DB’s] solicitor as to the Responsible Authority’s application; iv. Disregarding [DB’s] right to a fair hearing; b. On21 March 2025 the FtT unreasonably refused the application for an adjournment in the circumstances of this case where, i. Procedural and administrative logistics had operated unfairly to exclude [DB] from effective participation in his hearing by the imposition of a remote video hearing less than 24 hours before the listed face to face hearing was due to take place ii. The imposition of the video hearing prevented the pre-hearing examination taking place contrary to the arrangements and expectation of [DB] and the FtT erroneously found r39 to be satisfied on the basis [DB] was unable to attend for reasons of ill-health and the pre-hearing examination was impractical without appreciating the difference a face to face hearing would have made iii. Failed to have any or any adequate regard to [DB’s] right to participate in his hearing such that it would be fair iv. Fettered its own discretion by appearing to consider itself bound by Judge Allen’s decision made the previous afternoon to conduct the hearing via video c. Failed to seek to give effect to article 6(1) and the principle of equality of arms.”
“5. Rule 39 is in two parts. The first part in paragraph (1) is positive. It sets out conditions that allow a tribunal to proceed in the patient’s absence. The second part in paragraph (2) is negative. It set out circumstances in which a tribunal must not proceed. The rule uses the same word – ‘may’ – in both paragraphs, but it has a different meaning in each. In paragraph (1), it authorises the tribunal to proceed without requiring it to do so. In paragraph (2) with the addition of ‘not’, it is a prohibition. To put it another way, paragraph (2) contains condition precedents that must be satisfied before the power in paragraph (1) arises. I come back later to the importance of keeping the paragraphs separate. 6. Paragraph (2) contains two conditions. Both must be satisfied before the power to proceed arises. Paragraph (2)(a) deals with non-attendance. A tribunal may not proceed unless it is satisfied as a matter of fact that either the patient had decided not to attend or was unable to attend for reasons of ill health. If the tribunal is not so satisfied, it must not proceed, regardless of whether the conditions in paragraph (1) are satisfied. Paragraph (2)(b) deals with medical examinations.”
“We accept that this is unfortunate in that we have not heard [DB’s] views either in his evidence to the hearing or through the PHE but it would not be right or appropriate in our view to expose our medical member to any unacceptable level of risk nor any member of staff.”
“[29] There are at least two fundamental reasons why procedural fairness is important. The first is that it helps to improve the chances of reaching the right result. In John v Rees[1970] Ch 345 , at 402, Megarry J noted that there are some who would say that, when the outcome of a case is obvious, why force everybody to go through the tiresome waste of time involved in framing charges against a person and giving them an opportunity to be heard? Megarry J eloquently answered that question in the following way: “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.” [30] This leads to the second reason why fairness is important. The last point made by Megarry J in that passage in John v Rees was one also noted by Lord Reed JSC in Osborn [R (Osborn) v Parole Board[2013] UKSC 61 ;[2014] AC 1115 ] at paragraphs 68-70. When setting out the values which underlie the concept of procedural fairness, Lord Reed pointed out that the purpose of a fair hearing is not only that it improves the chances of reaching the right decision. Those values also include the avoidance of the feelings of resentment which will arise if a person is unable to participate effectively in a decision-making process which affects them. In this way the law seeks to protect the value of human dignity. [31] As Lord Reed put it at paragraph 68: “… justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. 32. These principles apply to all litigation, including in the protective jurisdictions in the family courts and the Court of Protection. The fact that the welfare of a child is the paramount consideration in proceedings under theChildren Act 1989 and the inherent jurisdiction relating to children, and that any act done, or decision made, under theMental Capacity Act 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests does not obviate the requirement for a procedure which pays due respect to persons whose rights are significantly affected by such decisions. The specific procedural requirements will, however, be tailored to take into account the nature of the protective jurisdiction and the extent to which such persons are permitted to participate will depend on the specific circumstances of the case.”