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Remote hearings (MHT)

During the coronavirus pandemic all hearings should be held remotely where it is reasonably practicable and in accordance with the overriding objective: Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20).

In Re D [2020] MHLO 51 (FTT) (a non-binding First-tier Tribunal decision) the tribunal’s decision was set aside because it was not clear whether or not the patient had a reasonable opportunity to hear all the evidence that was given at the hearing: it was not possible to be sure that the patient had a fair hearing. The patient's microphone had been muted for much of the time after giving her evidence at the outset because she "would not stop talking", but this did not amount to exclusion under Tribunal rule 38.

In GL v Elysium Healthcare [2020] UKUT 308 (AAC)M the tribunal refused a patient’s adjournment request and proceeded with a telephone hearing in his absence. The Upper Tribunal decided that it was wrong for the tribunal to have proceeded with the telephone hearing because:

  1. The tribunal had, without investigation, assumed that the patient's flatmate (with whom he was self-isolating to avoid coronavirus) could not overhear.
  2. The tribunal had improperly dealt with the patient's anxiety: either it had concluded, without investigation, that the anxiety was without foundation (when he had in fact previously been assaulted because other patients discovered his history), or it had believed the same anxiety would arise at a future hearing (when in fact it arose from the specific circumstances that day); the tribunal should have considered whether his anxiety was genuine and, if so, the impact on his ability to participate.
  3. The tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (i.e. telephone) rather than the fear of being overheard that day.

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