Mental health – human rights – article 5 – independent and impartial determination
S sought judicial review of the tribunal’s decision to order his continued detention on the ground that the mandatory requirement under rule 11 of the Mental Health Review Tribunal Rules 1983, for the medical member to examine the patient prior to the hearing, in order to form an opinion of his mental condition, was inconsistent with the article 5.4 requirement of a fair and impartial judicial hearing, given that the medical member was then effectively both judge and witness, who could not be cross-examined.
The judge held that it was clear that care was required if rule 11 was not to result in unfairness. However, rule 11 did not expressly require the medical member to form an opinion; rather it required him to take the necessary steps to be able to form his opinion. It was obvious that the medical member must not form a concluded opinion until the conclusion of the hearing, since otherwise the outcome of the hearing would be pre-judged. There could be no objection to the expression of a provisional opinion by the medical member to his colleagues before the hearing, provided that it was not given undue weight – ie provided that the other members understood that it was only a provisional opinion and that they were free to disagree with it if the evidence and submissions before them led to a different conclusion. If during the course of a hearing there was a dispute as to facts between the medical member and the patient, the tribunal must consider whether it could properly continue to hear the patient’s application.
The judge further pointed out that the MHRT’s Member’s Handbook emphasised the sensitivity of the medical member’s dual role, and the tribunals’ regional chairmen had been issued with a detailed guidance note underlining that the medical member had to retain an open and judicial mind on the question of discharge until all the evidence had been heard. Provided that the guidance was observed, there should be no conflict between rule 11 and the requirements of art 5.4.
The judge noted that the Mental Health Bill appears to envisage the abolition of rule 11 in that it requires a medical expert to be appointed whose report will be made available to the patient and the parties appearing before the tribunal so that they can address evidence and submissions to it.