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Bias cases

The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Non-legal research by judge JG v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 187 (AAC)Judicial summary from website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair." 2019‑08‑01 23:25:11

* COP bias Re M: A v Z [2018] EWCOP 4"This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests." 2018‑03‑12 22:55:33 2018 cases, Bias cases, Cases, Judgment available on Bailii, Other capacity cases

Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded. 2013‑11‑27 22:42:05 2013 cases, Bias cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions

* Medical member not biased Bernard v SW London and St George's MH NHS Trust [2013] UKUT 58 (AAC), [2013] MHLO 26The medical member, questioning the RC, had stated 'I have no issues with the nature; it is chronic, relapsing, etcetera' but he had not formed a preconceived and concluded view (actual bias) or expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias). 2013‑03‑27 23:01:32 Cases, Bias cases

RN v Curo Care [2011] UKUT 263 (AAC)(1) If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a CTO recommendation, then reaching that firm conclusion (as opposed to an provisional opinion), and preventing the patient from arguing to the contrary, was a breach of natural justice and the ECHR right to a fair hearing. (2) In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. (3) There would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future: the Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. (4) The decision was set aside and remitted to a differently-constituted panel for reconsideration. 2011‑05‑04 22:08:21 2011 cases, Bias cases, Brief summary, CTO cases, Judgment available on Bailii, Transcript, Upper Tribunal decisions

Shulepova v Russia 34449/03 [2008] ECHR 1666(1) Violation of Article 5(4): Applicant not detained in accordance with a procedure prescribed by domestic law. (2) Violation of Article 6(1): By appointing the hospital's employees as psychiatric experts, the domestic courts placed the applicant at a substantial disadvantage, in breach of the principle of equality of arms. 2009‑04‑10 21:39:13 2008 cases, Bias cases, Brief summary, ECHR, Judgment available on Bailii, Transcript

McGrady, Re Application for Judicial Review [2003] NIQB 15(1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 [2001] ECHR 235 distinguished. 2008‑11‑27 17:32:08 2003 cases, Bias cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Northern Irish cases, Transcript

DN v Switzerland 27154/95 [2001] ECHR 235The psychiatrist who sat as judge rapporteur on the Administrative Appeals Commission had, before the hearing, concluded that the patient should not be released; the patient had legitimate fears that the doctor had a preconceived opinion and was not acting impartially; this was reinforced because he was sole the psychiatric expert and the only person who had interviewed her; Article 5(4) having been breached, damages and costs were awarded 2008‑11‑27 16:59:00 2001 cases, Bias cases, Brief summary, ECHR, Judgment available on Bailii, Transcript

R (B) v South Region MHRT [2008] EWHC 2356 (Admin) — Unsuccessful challenge to Tribunal's decision not to discharge from Broadmoor hospital. 2008‑10‑23 01:05:56 2008 cases, Bias cases, Judgment available on Bailii, No summary, Reasons, Transcript

* Medical member's role and Article 5 R (S) v MHRT [2002] EWHC 2522 (Admin)The patient unsuccessfully argued that the requirement in old Rule 11 that a tribunal member "shall examine the patient... to form an opinion of the patient's mental condition" prior to the tribunal hearing, and the medical member's role in proceedings, was incompatible with Article 5(4). The judge concluded that "[i]f 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." 2008‑09‑12 16:36:24 Cases

* Medical member's preliminary view R (RD) v MHRT [2007] EWHC 781 (Admin)(1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate. 2007‑04‑18 22:08:05

R (M) v MHRT [2005] EWHC 2791 (Admin)There was no appearance of bias where the sentencing judge, who had imposed the hospital order with restrictions, heard the subsequent MHRT appeal; the patient knew the relevant facts and unequivocally decided not to object at the time, so had waived his right to object 2006‑12‑27 12:24:56 2005 cases, Bias cases, Detailed summary, Judgment available on Bailii, Transcript

R (PD) v West Midlands and North West MHRT [2003] EWHC 2469 (Admin)No appearance of bias just becuase MHRT medical member was employed by same Trust as detained the patient. 2006‑04‑16 11:30:50 2003 cases, Bias cases, Detailed summary, Judgment available on Bailii, Transcript

R (PD) v West Midlands and North West MHRT [2004] EWCA Civ 311No appearance of bias when Tribunal medical member was employed by same Trust. 2006‑04‑15 19:44:26 2004 cases, Bias cases, Brief summary, Judgment available on Bailii, Transcript