EB v Dorset Healthcare University NHS Foundation Trust  UKUT 362 (AAC)
PHEs: "exceptional" merely refers to an exception to the deeming provision The Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) (APPD) deems that PHEs are not "practicable" within the meaning of rule 34, unless an authorised judge directs that "in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". EB appealed against a refusal to allow a PHE. The Upper Tribunal held that: (1) the APPD cannot override the terms of the rule, and has to be interpreted, if possible, so as to be valid; (2) circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable [in other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34]; (3) health and safety concerns would be relevant to practicability even if there had been no pandemic; (4) the overriding objective is relevant but does not allow the tribunal to refuse a PHE for any reason not related to practicability (in particular, it does not include participation in the hearing, and it can make no change to the rule 34 duty, the cases to which it applies or the purpose of the examination); (5) the availability of the requisite technology for PHEs is relevant to the overriding objective and "[w]here that exists, a PHE need not necessarily have (and may well not have) any material impact on the tribunal’s resources" [the decision does not state that the current practice of holding PHEs via CVP and on the hearing day is necessary]; (6) on the facts, the FTT had unlawfully misinterpreted the APPD by considering reasons unrelated to practicability; were EB still detained the decision would have been set aside.
Judicial summary from Gov.uk website
Practice Directions cannot override or amend a rule of procedure and must be interpreted if possible to be valid and consistent with the rules.
Paragraph 8 of the Senior President of Tribunals’ Amended Pilot Practice Direction: Health, Education and Social Care Chamber (Mental Health) is valid and relates only to the practicability of a pre-hearing examination by a panel member.
The first respondent is called "Dorset Healthcare NHS Trust" in the judgment. The second respondent was the Lord Chancellor.
Extract from Lewis Carroll’s Through the Looking Glass:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”