PD v West Midlands and North West Mental Health Review Tribunal (QBD) (22 October 2003)

Mental Health Review Tribunal – Human Rights – independent and impartial – bias


P, a mental health patient, alleged that a determination by the West Midlands and North West Mental Health Review Tribunal was incompatible with article 6 European Convention on Human Rights and with natural justice and the common law test of bias because a medical member of the tribunal, Dr A, was insufficiently independent. Dr A was employed as a consultant psychiatrist by Mersey Care NHS Trust, which was the Trust responsible for detaining P under section 3 Mental Health Act 1983. Dr A had never worked at the hospital in which P was detained and did not know P or any of medically qualified or other witnesses at the hearing. The tribunal declined to discharge P and P sought to quash the decision because of Dr A’s presence on the tribunal. There was no suggestion of any actual bias on Dr A’s part.


The question for the court was whether in the view of a fair-minded and informed observer there was a real possibility of sub-conscious bias on Dr A’s part.


The judge held that in light of the decision in R v Spear & ors, which concerned the impartiality of members of a court-martial,  the position of Dr A in the tribunal had many of the same attributes relating to independence and impartiality in that there were sufficient safeguards in place to exclude any legitimate doubt as to bias. Dr A was not an “officer” of the relevant health authority under r 8(2) Mental Health Review Tribunal Rules 1983 and was therefore not exempt from sitting on the tribunal. A fair-minded and informed observer would be satisfied that there was no real possibility that the tribunal, or Dr A, were biased as: (i) Dr A worked in a clinical directorate which was separately managed from P’s hospital; (ii) as a consultant psychiatrist he was professionally obliged to act independently in the interests of his patients and not those of his employer; (iii) the guidance to members of tribunals drew members’ attention to potential conflicts of interest which they must raise with the chairman; and (iv) there was no suggestion that Mersey Care NHS Trust could take any beneficial or detrimental step in relation to Dr A’s employment. Further, the requirement imposed by art 5(4) of the Convention, for tribunals to hear cases speedily, would be seriously and adversely affected if medical members were not eligible to sit on tribunals where their employing NHS trust was responsible for detaining the patient.

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