Public hearing (MHT)
The rule is that ‘All hearings must be held in private unless the Tribunal considers that it is in the interests of justice for the hearing to be held in public’ (Rule 38). Also, Rule 14 deals with publication and disclosure of information.
The issue is dealt with in Albert Haines v West London MH NHS Trust [2011] UKUT 74 (AAC)M where the Upper Tribunal decided that once the ‘threshold tests’ for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state.
The threshold tests are:
- (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)?
- (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views?
- (c) are there any other special factors for or against a public hearing?
- (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority?
How the right to a public hearing can be practically and proportionately be achieved will depend on the facts of each individual case, including the hospital’s facilities.
The Tribunal directed that Haines was to have a public hearing, not within Broadmoor hospital, with the press, public, Haines and his representatives enabled to attend in person in the same hearing room. But the tribunal considered it likely that in future cases, if detailed evidence of how video-link and public-notification arrangements would work in practice is provided, that a video-link to off-site premises would suffice.
Following this case, Ian Brady won the right to a public Tribunal hearing (Re Ian Brady (2011) First-tier Tribunal 17/10/11). The case was heard in Ashworth in June 2013 (Re Ian Brady [2013] MHLO 89 (FTT)) and broadcast to Manchester’s civil justice centre. As widely reported, he was unsuccessful (Re Ian Brady [2013] MHLO 89 (FTT)).
The first known public hearing was held in Broadmoor in 1975: see Stewart Tendler, '‘Public before press’ move backfires at Broadmoor tribunal' (The Times, 5/3/75) and The Times, 'Broadmoor man fails in freedom plea' (7/3/75).
In AR v West London NHS Trust [2020] UKUT 273 (AAC) the Upper Tribunal noted that the four factors above are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice, and that the first factor (“whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice”) does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38.