HK v Llanarth Court Hospital  UKUT 410 (AAC),  MHLO 95
(1) Guidance for tribunals on writing reasons. (2) First-tier Tribunal decision set aside for inadequate reasons.
10. By way of context, both the tribunal and the parties will have knowledge of the written and the oral evidence before the tribunal. Second, both the tribunal and the parties are very likely to be informed about the relevant law. The only exception to this may be when the patient is not legally represented. Finally, to quote the Court of Appeal in English v Emery Reimbold & Strick LimitedB at paragraph 16, justice will not be done if it is not apparent from the tribunal’s reasons to the parties why one has won and the other has lost. That latter factor is of particular importance for patients who are detained under the Mental Health Act 1983, such detention being a serious interference with their right to liberty pursuant to Article 5 of the European Convention on Human Rights (now incorporated into English and Welsh law by the Human Rights Act 1998).
11. What follows is intended to be of assistance to tribunals composing reasons in mental health cases. It is not an exhaustive or novel treatise on the art of reason writing but merely an aide memoire of those matters, pertinent to this appeal, which may assist in the production of adequate and intelligible reasons.
12. First, it would be helpful if tribunals were to set out their reasons by reference to the relevant criteria for detention. As Upper Tribunal Judge Jacobs observed in paragraph 9 of JL v Managers of Llanarth Court and SOS for JusticeM, it might be better if tribunals were to set out their reasons under the headings provided by the legal questions they have to determine. I agree. Using headings within the statement of reasons makes it easier to show that the tribunal has dealt with each of the legal criteria it has to address. I note that the First-tier Tribunal (Mental Health) in England has made template decisions using appropriate headings available to tribunal judges to assist them in reason writing.
13. Second, the tribunal’s reasons should address how the tribunal dealt with any disputes as to either the law or the evidence. If this is not done, the unsuccessful party might believe that the tribunal has ignored important issues. In particular, failing to address explicitly any applications made by one or other of the parties may render a set of reasons inadequate. Such an omission certainly makes it more difficult for a party to know why they have been unsuccessful and additionally raises doubt as to whether the tribunal has dealt fairly with that party’s case. However, it is not necessary for a set of reasons to resolve evidential matters which are irrelevant to the legal issues that the tribunal has to determine; a prudent tribunal though may wish to explain briefly why it has not resolved a factual dispute.
14. Third, the reasons themselves must be clear and unambiguous. It is not for a party to deduce the reasons for a decision.
15. Fourth, rehearsing what each witness told the tribunal is, without more liable to render a set of reasons erroneous in law. What is required is to explain (i) what facts the tribunal found as a result of that evidence and (ii) what conclusions on those facts the tribunal reached.
16. Fifth, it is not necessary for the tribunal’s reasons to mention all of the evidence in a case. It is entitled to be selective in its references to evidence in its reasons though it should, as I have indicated in paragraph 13 above, identify and resolve evidence and applications which are in dispute.