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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (on the application of) v Department of Health [2002] EWHC 2522 (Admin) (27 November 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2522.html Cite as: [2002] EWHC 2522 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 November 2002

Mr Justice Stanley Burnton:

Introduction

1. In these proceedings the Claimant challenges the compatibility of Rule 11 of the Mental Health Review Tribunal Rules 1983 with the requirements of the European Convention on Human Rights, and in particular Article 5.4.
2. S was a restricted patient, having been detained under sections 37 and 41 of the Mental Health Act ("the Act") by an order of the Wood Green Crown Court on 11 November 1999. On 20 November 2001, he made an application to the Mental Health Review Tribunal pursuant to the provisions of Part V of the Act for the review of his detention.
3. A Mental Health Review Tribunal normally consists of three persons, the chairman, who is a legally qualified member "having such legal experience as the Lord Chancellor considers suitable" (paragraph 1(a) to Schedule 2 to the Act), a registered medical practitioner appointed by the Lord Chancellor after consultation with the Home Secretary and a lay member "having such experience in administration, such knowledge of social services or such other qualifications or experience as the Lord Chancellor considers suitable" (paragraph 1(c) to Schedule 2). The medically qualified member is normally a consultant psychiatrist or a retired consultant.
4. Section 72(1)(b) of the Act is as follows:

"The tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied –

(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself."

5. Section 73(1) and (2) provide:

"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if –

(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and

(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) above

(a) paragraph (a) of that subsection applies; but

(b) paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient."

6. Rule 11 is as follows:

"Medical Examination

11. At any time before the hearing of the application, the medical member or, where the tribunal includes more than one, at least one of them shall examine the patient and take such other steps as he considers necessary to form an opinion of the patient's mental condition; and for this purpose the patient may be seen in private and all his medical records may be examined by the medical member, who my take such notes and copies of them as he may require, for use in connection with the application and in the case of Appeal Panel subject to after-care under supervision this rule shall also apply to such other records relating to any after-care services provided under section 117 of the Act."

7. S believed that all psychiatrists view him unfavourably. Initially, he refused to agree to his solicitors obtaining an independent psychiatric report for the purposes of his application. For the same reason, he instructed his solicitors to inform the Regional Chairman of the Mental Health Review Tribunal, Mr Michael Christie, that he objected to being seen by the medical member of the tribunal that would consider his application in advance of the hearing. His solicitors' letter to Mr Christie dated 10 April 2002 therefore asked that Rule 11 should not be applied. Mr Christie responded to the effect that Rule 11 is mandatory, and that S's refusal to be seen by the medical member of the tribunal would prevent his application from being heard. In consequence, on 11 April 2002, S's solicitors informed Mr Christie that S preferred to be seen by the medical member than not to have a his application heard by the tribunal. However, these proceedings were begun to challenge the mandatory requirement of an examination by the medical member before the hearing.
8. S was subsequently seen by the medical member of the tribunal that considered his case, and by the time of the hearing before me the tribunal had ordered his conditional discharge pursuant to section 73(2). The decision of the court on this application is therefore academic in his case. It is, however, of general importance, and for that reason his application for judicial review was heard.

The contentions of the parties

9. S contends that the requirement in Rule 11 that he be seen by the medical member of the tribunal before the hearing of his application was incompatible with his right under Article 5.4 of the Convention to an independent and impartial judicial determination of his detention; that, by section 6(1) of the Human Rights Act, but subject to section 6(2), the enforcement of Rule 11 is therefore unlawful; that, in relation to section 6(2), neither the Act nor any other primary legislation required the making of Rule 11 or requires its enforcement; and that enforcement of Rule 11 is therefore unlawful. On this basis, the medical member might examine a patient with his or her informed consent, but not otherwise.
10. Mr Gledhill submitted that these conclusions follow from the decision of the European Court of Human Rights in DN v Switzerland [2001] ECHR 27154/95. He submitted that Rule 11 requires the medical member to form an opinion of the patient's mental condition before the hearing; that the medical member becomes both witness who cannot be cross-examined and judge; and that a situation in which a member of the tribunal forms an opinion before the hearing is inconsistent with the requirement of a fair and impartial judicial hearing.
11. The Mental Health Review Tribunal and the Department of Health dispute these contentions: they contend that Rule 11 is compatible with the Convention, and that an examination by the medical member of a tribunal does not prevent the hearing of a patient's application to the tribunal being independent and impartial.
12. In his claim form, S relied on Article 6 of the Convention as well as Article 5. However, Mr Gledhill did not pursue the claim under Article 6.

Discussion

13. It is common ground that Mr Christie correctly interpreted Rule 11 as mandatory. Its requirements are unique in English practice, and are arguably anomalous. Other tribunals with the same or similar functions do not have the equivalent of Rule 11. In Scotland, the functions of a Mental Health Review Tribunal are carried out by a sheriff. The Discretionary Lifer Panel of the Parole Board may include a medically qualified member, but he or she does not conduct a separate assessment of a prisoner: the prisoner's case is considered entirely on the material before the Board. The recently published draft Mental Health Bill appears to envisage the abolition of Rule 11. It requires a tribunal to appoint a medical expert who must prepare a report for the tribunal dealing with the merits of the application, and that he may for that purpose interview and examine the patient in private and require the production of his medical records. Thus the medical expert will be a tribunal-appointed expert whose report will be made available to the patient and to the parties appearing before the tribunal so that they can address evidence and submissions to it.
14. As long ago as 1983, the Council on Tribunals expressed its concern that the medical member is:

"… effectively a witness and a member of the tribunal deciding the validity of his own evidence, and that the applicant should have an opportunity of knowing what evidence he has given and commenting on it. Under the present system a medical member examines an applicant before the hearing and then (generally in the course of the hearing) raises any material factors which in his view should be open for comment; he then advises the tribunal in private. While this is not ideal, it is probably the best that can be devised."

15. It is clear that care is required if Rule 11 is not to result in unfairness. In R (on the application of H) v Ashworth Hospital Authority [2002] EWCA Civ 923 Dyson LJ cited what I had said in that case at first instance at paragraph 86 of my judgment:

"86. … it appears …. that at no stage of the hearing before the Tribunal announced their decision were the parties before the Tribunal informed of the findings of Dr Cashman as a result of his interview with H. The parties should be given the opportunity to address and to comment on any significant findings of the medical member, both because fairness so requires and because they may have comments or evidence to put before the Tribunal that may lead it to depart from the provisional opinion formed by the medical member. That this should be the practice is supported by the guidance from Regional Chairmen of Mental Health Review Tribunals referred to at page 159 of the Leggatt Report on Tribunals and in paragraph 57 of the judgment of Crane J in The Queen on the application of H v Mental Health Review Tribunal (Case number CO/2120/2000, unreported, 15 September 2000)."

Dyson LJ said at paragraph [84] of his judgment (with which in this respect the other members of the court were in agreement):

"I cannot see anything objectionable in paragraph 86. It seems to me both fair and sensible that, if the medical member of the tribunal has formed any views on the basis of his or her interview with the patient, the substance of those views should be communicated to the patient and/or those who are representing him. I cannot think of any good reason why this should not be a requirement, although I would not wish to rule out the possibility of exceptional cases where such a course may not be practicable."

16. Incidentally, I do not think that the Court of Appeal were intending to distinguish the obligation in fairness for the medical member's views to be communicated to the patient or those representing him from the obligation to make a similar disclosure to the other party or parties before the tribunal. In practice, of course, the communication of the medical member's view will be made during the hearing, and all parties will receive it.
17. It is also clear from the guidance given to tribunal members that Rule 11 gives rise to sensitivity. The Members' Handbook of the Mental Health Review Tribunals in England and Wales describes the principal functions of the medical member as including the following:

"5. To report to the other members of the Tribunal, when requested, on his preliminary examination and to advise on and explain medical terminology and technicalities as necessary.

6. To meet the other members of the Tribunal approximately half an hour before the commencement of the actual hearing in order to discuss and agree preliminary matters, the order in which witnesses should give evidence and, if appropriate, which of the Tribunal members should lead the questioning of particular witnesses. This period also provides an opportunity for the Tribunal to identify the likely issues and the medical member, having already seen the patient, will probably have a good idea of what they are likely to be and of any difficulties which might affect the patient's ability to give evidence. It is usually inappropriate for medical member to give his opinion of the patient's mental condition at this stage.

7. To put such questions to each of the witnesses who give evidence at the hearing as he considers relevant. In particular, the medical member may consider it appropriate to question the RMO in relation to the patient's history, progress, treatment, prognosis and future care although he must bear in mind that the hearing is neither a seminar nor a case conference. In appropriate cases, he may lead the questioning of the RMO if this had been agreed beforehand with the other members of the Tribunal. However, he must appreciate that he performs a dual role at the Tribunal as a fact-finder and as a decision-maker and it is therefore essential that his opinion of the patient's mental condition, if it differs significantly from that of RMO, should have been disclosed to the patient and the representative at the outset of the hearing. Thus, a situation will be avoided where the members of the Tribunal are acting on the basis of evidence known only to themselves which would, of course, be a breach both of a fundamental principle of natural justice and also of a Human Rights principle, and likely to invalidate the decision."

The italics are mine.

18. The Mental Health Review Tribunal Regional Chairmen have issued guidance for tribunals on human rights law. Paragraph 1.13 is as follows:

"Oliver Thorold in his valuable article 'The implications of the European Convention on Human Rights for UK Mental Health Legislation' extracts the following principles from the important decisions in Winterwerp v Netherlands (1979) and X v UK (1981):

(a) valid detention requires prior objective medical expertise,

(b) the disorder must be of a nature or degree warranting detention,

(c) detention must last no longer than the disorder of this quality persists,

(d) the patient must have access to a judicial body independent of the executive, and with "court-like" attributes,

(e) the judicial hearing must be attended by certain basic guarantees, such as:

(i) speed of access

(ii) legal aid and representation

(iii) fair hearing."

19. Section 4 of the guidance addresses the issues raised by the decision of the European Court of Human Rights in DN v Switzerland:

"4.05 The European Court of Human Rights decision largely turns upon the fact that the Medical Member had, to all intents and purposes not only formed his opinion prior to the hearing, he had also disclosed it to the parties and other Tribunal members before the hearing. The Court accordingly concluded that the 'circumstances taken as a whole serve objectively to justify the applicant's apprehension that [the Medical Member] lacked the necessary impartiality'.

4.06 Medical Members must therefore be very careful not to disclose in the preview their own opinion as to discharge of the patient and must retain an open and judicial mind on the question of discharge until all the evidence has been heard.

4.07 Tribunals must make absolutely sure that any significant findings by the medical member and any factual differences between what the RMO says and what the medical member has found, are laid open for the patient's representative to explore. This must be done at the start of the Tribunal hearing. It should normally be done by the President, but could be done by the Medical Member. The President should not allow 'cross examination' of the Medical Member but should ensure that any differences or additional information are fairly and fully laid open in the hearing at the outset.

It is recommended that representatives should not be invited into the Preview to hear the Medical Member's report."

20. The evidence of the Tribunal is that the above guidance is complied with in practice. However, the lawfulness and compatibility with the Convention of Rule 11 do not depend on whether such guidance is or is not complied with. The Claimant's case is that compliance with Rule 11 is necessarily unlawful under the Convention.
21. Rule 11 does not expressly require the medical member to form an opinion of the patient's mental condition: it requires him to take the steps necessary to form his opinion. Quite apart from the requirements of the Convention, I would not interpret it as requiring the medical member to form an opinion before the conclusion of the hearing. To the contrary, it is 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 prejudged. It is implicit in the above citations from the judgments in H that both I and the Court of Appeal read Rule 11 as requiring only a provisional opinion to be formed by the medical member: hence the requirement that the parties be given an opportunity to address it. It is obvious that neither I nor the Court of Appeal thought that the forming and expression of a provisional opinion by the medical member gave rise to unfairness.
22. As a matter of our domestic law (by which I mean English law apart from the Human Rights Act), there can normally be no objection to members of a tribunal or court forming or discussing their provisional views of a case before the hearing. Judges and tribunal members are human, and cannot be prevented from forming an initial view of a case when they read the papers. The forming of an opinion before the hearing is normally objectionable only if it is not provisional, liable to be changed by the evidence adduced and the submissions of the parties, but is firm and concluded: in which case the hearing is an ineffective charade. The business of multi-member courts could not be carried on efficiently if their members were not able to discuss the issues and exchange provisional views before the hearing. It is common-place for the Criminal Division of the Court of Appeal, when dealing with appeals against sentence, in a case where it has formed the provisional view that a reduction in sentence is appropriate, to put its provisional view to counsel for the appellant at as early a stage as possible, so that he can decide whether he should make submissions that any further reduction is appropriate.
23. The general prohibition on the disclosure of the medical member's opinion before the hearing in the last sentence of paragraph 6 of the Handbook cited above suggests a concern that the communication of the opinion of the medical member to the other members of the tribunal will unduly influence his colleagues. On the other hand, it may be difficult to manage the placing before the parties of the provisional view of the medical member if he has not communicated it at least in outline to his colleagues. In my judgment, as a matter of domestic law, there can be no objection to the expression of a provisional opinion by a medical member of a tribunal to his colleagues before the hearing, provided the other members are aware that it is only a provisional opinion and treat it as such, and provided that they understand that they are free to disagree with it if the evidence and submissions before them lead them to a different conclusion.
24. While the role of the medical member of a Mental Health Review Tribunal is unique in our public law, an analogous role is performed by arbitrators in straightforward quality disputes, where the arbitrator inspects the goods in question and forms his own view as to their compliance with the contract. The arbitrator cannot be cross-examined as to his findings; yet the parties to such arbitrations do not consider the arbitrator's role as productive of unfairness. Admittedly, however, in such arbitrations it is unusual for there to be any expert evidence: the parties rely on the expertise of the arbitrator. There is some analogy too with the role of a judge who is invited to view a site or premises. In argument, I gave the example of a judge who viewed accommodation alleged to be suitable alternative accommodation for a residential tenant. Expert evidence may be called as to the suitability of the accommodation; but the judge is entitled to take account of the opinion he forms as a result of his view, and it may be decisive. These examples differ from the position of a medical member of a Mental Health Review Tribunal in two essential respects: he is only one of the members of the tribunal, and there is potential for a disagreement between the patient and the medical member as to the facts concerning his examination of the patient. The scope for a factual issue arising is increased by the facts that the examination may be, and normally is, in private, and that there is no transcript or other objective evidence of their conversation. But such factual disputes are far from being a necessary incident of Rule 11.
25. I turn, therefore, to consider the jurisprudence of the European Court of Human Rights. In Johnson v UK (1999) 27 EHRR 296, the Court considered whether a Mental Health Review Tribunal had acted lawfully in refusing to order the immediate and unconditional discharge of a patient. The patient had been seen by the medical member. No issue was taken as to the lawfulness of Rule 11, but it is noteworthy that in paragraph 64 of its judgment the court referred to the tribunal positively as "an expert review body which included a doctor who had interviewed the applicant". Clearly, the Court did not consider the interview of the patient by the medical member as obviously unfair or inconsistent with the requirements of Article 5.
26. I turn to DN, which is the foundation of the Claimant's case. It concerned the proceedings of a Swiss Administrative Appeals Commission, which performed the functions of an English Mental Health Review Tribunal. The applicant complained under Article 5.4 of the Convention of the lack of impartiality of one of the members of the Commission, R.W., a doctor who specialised in psychiatry and psychotherapy, and who acted as judge rapporteur. The applicant had applied to the Commission for release from the psychiatric clinic where she was compulsorily detained. R.W. interviewed her at the clinic in the presence of a court registrar. According to the verbatim record of the interview prepared by the registrar, R.W. concluded the interview as follows:

"W. explains the further procedure and that the hearing will take place on 28 December 1994.

W: I shall propose to the court to dismiss the action.

N: Pity."

27. Following the interview, R.W. submitted his expert opinion. He diagnosed a schizophrenic mental illness and found that the applicant could not be released in view of the required high dosage of medication. The report concluded:

"If the applicant's situation does not clearly improve until the date of the hearing, I recommend dismissal of the action. The applicant may consult this report."

28. The hearing took place on 28 December 1994 at the psychiatric clinic. The bench of the Administrative Appeals Commission consisted of the President, who was a professional judge, and four other judges, of whom only R.W. was medically qualified. The Commission heard two doctors of the clinic and the applicant. The Commission dismissed the applicant's action, and in their decision referred to R.W.'s expert opinion. The applicant appealed to the Federal Court. She complained that R.W., the expert, had acted as specialised judge and rapporteur. The Federal Court held that the combined role of expert and judge-rapporteur had not invalidated the Appeal Commission's decision. It said:

"… It has not been called in question that experts within the meaning of Article 397e paragraph 5 of the Civil Code will also act as members of the deciding body…, to the extent that their position can at all be compared with that of a regular expert who is consulted in evidence proceedings… It is true that the Federal Court has recently described the combination of expert and judicial functions as being 'not entirely unobjectionable'… However, no change of case-law can be seen in that decision, and the applicant has not shown…in what respect such a change would be called for… ."

Parenthetically, the phrase "not entirely unobjectionable" indicates some concern at the role of the expert judge-rapporteur in such cases.

29. The European Court of Human Rights upheld the applicant's complaint. Under the heading "The Court's Assessment", it stated:

"39. It is not in dispute between the parties that the Administrative Appeals Commission, deciding on the applicant's request for release from the psychiatric clinic, constituted in principle a "court" within the meaning of Article 5 § 4 of the Convention which had the competence to "decide" the "lawfulness" of the applicant's detention and to order release if the detention was unlawful (see the Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 144. p. 30, § 61). It is true that the Administrative Appeals Commission consisted in the present case, in addition to the two lawyers, of three specialised judges, including the psychiatrist R.W. who also acted as rapporteur in the applicant's case. However, under Article 5 § 4 of the Convention, States are granted a certain freedom to choose the most appropriate system for judicial review, and it is not within the province of the Court to inquire what would be the best or most appropriate system in such matters (see the X v. the United Kingdom judgment cited above, p 23, § 53).

40. In the present case, however, the applicant called in question the impartiality of R.W. who, as judge rapporteur, had been asked to prepare an expert opinion on her state of health. The Government maintained that the requirements under Article 5 § 4 of the Convention had been fully met in that the procedures before the Administrative Appeals Commission had been adapted to the particular form of detention at issue.

41. According to the Court's case-law, although it is not always necessary for proceedings under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 for criminal or civil litigation, they must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see Niedbala v. Poland, no. 27915/95, § 66, 4 July 2000, unreported).

42. It is true that Article 5 § 4 of the Convention, which enshrines the right "to take proceedings…by a court", does not stipulate the requirement of that court's independence and impartiality and thus differs from Article 6 § 1 which refers, inter alia, to an "independent and impartial tribunal". However, the Court has held that independence is one of the most important constitutive elements of the notion of a "court", as referred to in several articles of the Convention (see the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1970, Series A no. 12, pp. 41-42, § 78). In the Court's opinion, it would be inconceivable that Article 5 § 4 of the Convention, relating, inter alia, to such a sensitive issue as the deprivation of liberty of "persons of unsound mind" within the meaning of Article 5 § 1 (e), should not equally envisage, as a fundamental requisite, the impartiality of that court.

43. In the present case, the applicant contended that R.W. had had a preconceived opinion when deciding as one of five members of the Administrative Appeals Commission on her request for release from psychiatric detention. The applicant pointed out in particular that R.W. had interviewed her and expressed himself before the hearing on her state of health and on his proposal to the Commission about her release."

30. The court referred to the functions of R.W, and distinguished his position from that of an expert called upon to assist a court with pertinent advice without having adjudicative functions. It continued:

"53. …An issue will arise as to the impartiality of the court under the objective test (of impartiality) if it is called upon to assess evidence which had previously been given by one of its judges in the form of expert advice. The Court must accordingly examine the apprehension which arose for the applicant in the course of these proceedings.

54. When the applicant attended the hearing before the Administrative Appeals Commission on 28 December 1994, R.W. had already twice formulated his conclusion – orally during the interview on 15 December, and in writing in his report of 23 December – that, as a result of the psychiatric examination, he would propose to the Administrative Appeals Commission to dismiss her request for release from detention. In the Court's opinion, this situation raised legitimate fears in the applicant that, as a result of R.W.'s position in these proceedings, he had a preconceived opinion as to her request for release from detention and that he was not, therefore, approaching her case with due impartiality (see, mutatis mutandis, the de Haan v. the Netherlands judgment of 26 August 1997, Reports 1997-IV, pp. 1392-93, § 51).

55. The applicant's fears would have been reinforced by R.W.'s position on the bench of the Administrative Appeals Commission where he was the sole psychiatric expert among the judges as well as the only person who had interviewed her. The applicant could legitimately fear that R.W.'s opinion carried particular weight in taking the decision.

56. In the Court's view, these circumstances taken as a whole serve objectively to justify the applicant's apprehension that R.W., sitting as a judge in the Administrative Appeals Commission, lacked the necessary impartiality.

57. Consequently, there has been a violation of Article 5 § 4 of the Convention in present case."

Again, the italics are mine.

31. In my judgment, the Court did not disapprove of the constitution of the Administrative Appeals Commission, or the role of the medically qualified judge-rapporteur R.W., as such. Had it done so, it would have been unnecessary for it to "examine the apprehensions which arose for the applicant in the course of these proceedings". As the Court mentioned in paragraph 54 of its judgment, before the hearing R.W. had already twice expressed his conclusion that the Commission should dismiss her request for release from detention. The crucial passage in the judgment of the European Court is the sentence in paragraph 54 of its judgment that is italicised above.
32. In my judgment, "due impartiality" in the present context requires a member of a tribunal not to have a preconceived concluded opinion on the merits of the applicant's case. The European Court did not suggest that a provisional view formed before the commencement of the hearing is objectionable. If an otherwise impartial and independent member of a tribunal has a preconceived concluded opinion, or if he expresses himself in such a way as to give rise to reasonable apprehension that he has a preconceived concluded opinion, he lacks the necessary impartiality, but not otherwise.
33. It follows that I reject Mr Gledhill's submission that Rule 11 is inconsistent with the requirements of Article 5.4 as interpreted by the European Court in D.N..
34. Rule 11 clearly raises issues which must be handled sensitively. It is imperative that the medical member of the tribunal keeps an open mind until the conclusion of the hearing, and is seen to do so. The guidance cited above at paragraph 7 of the Members' Handbook must be observed. Furthermore, if during the course of the hearing, it appears that there is a factual conflict between the medical member and the patient, for example, as to what was said by the patient to the medical member, and that conflict may be material to the decision of the tribunal, the tribunal must consider whether it can properly continue to hear the patient's application. I do not think that I should express a view in the present case as to any general rule of practice in such circumstances: it would be better for the issue to be considered on the facts of a particular case, if and when one arises.
35. However, for the reasons set out above, I hold that the provisions of Rule 11 are not incompatible with the requirements of Article 5.