R (Mersey Care NHS Trust) v Mental Health Review Tribunal (Ian Brady & SS Home Department Interested Parties) [2004] EWHC (Admin) 1749

The Claimant (the Trust) sought judicial review of the decision of the Mental Health Review Tribunal (The Tribunal) to hold a hearing in public, following a request by one of its restricted patients (B) to that effect. The Trust challenged the decision contending that the Tribunal had:

(1) erred in law in relation to its powers to control the publicity of proceedings
(2) failed to consider relevant considerations i.e. security, public order, interests of other patients
(3) failed to consider whether its decision would be contrary to B’s best interests
(4) given inadequate reasons for its conclusions.

Rule 21 of Mental Health Review Tribunal Rules 1983 (the 1983 Rules) creates a presumption that hearings before a Tribunal should be in private unless the patient requested a hearing in public and the Tribunal was satisfied that this was not contrary to his ‘interests’.

At a previous hearing before the Tribunal, B had argued that the presumption in the1983 Rules was incompatible with both the Mental Health Act 1983 s.78 and with ECHR Article 6 as it offended the presumption in favour of open justice. The Tribunal had rejected that argument, being satisfied that rule 21 reflected what was intended by s.78 (2)(e) of the 1983 Act and represented a proper and proportionate departure from the principle of open justice, and did not offend Article 6.  An application for judicial review of that decision was dismissed.

The Tribunal then reconvened to hear B’s application that his hearing be heard in public. Granting B’s application, it had held that he had capacity to make a request, by which he effectively waived his right to confidentiality, and that the provisions of rule 21(5), reinforced by the contempt laws, enabled the Tribunal to control the extent to which information was made public applying Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2AC.  The decision did not refer to the wider security concerns raised by the hospital given the identity of the applicant and it was not apparent whether the Tribunal considered they could be met, or that they were not relevant to the exercise of its powers under rule 21(1).

On judicial review, the court held that (1) The Tribunal’s conclusion that a public hearing would not be contrary to B’s interests, necessarily depended on proper assessment of the powers it would have in controlling publicity. The Tribunal had based its assessment on the assumption that Pickering applied to a hearing requested to be in public. But  Pickering was concerned with a hearing that had been kept private, regarding the application of rule 21(1).  The Tribunal had therefore erred in law in arriving at its decision.   In view of its erroneous approach and the assumption that rule 21(5) applied in the same way, whether the hearing was in public or private, it was not possible to infer that the protection provided by the contempt laws included an assessment of the real difficulties identified in enforcing any restrictions, or that the tribunal had these difficulties in mind in reaching its decision. (2) In relation to security and safety concerns, the court found that the Tribunal had not fully considered these or the impact on B’s condition. It held that an exception under Article 6 ECHR applied in this case and that a departure from the normal requirements of a public hearing could be justified where there might be public order or security problem and if the requirement placed a disproportionate burden on the State.  (4) In view of the above findings the Tribunal’s decision was flawed and would be set aside and the matter remitted to the Tribunal for a re-hearing.

Leave a Reply

Your email address will not be published.