MHT public hearing cases: Difference between revisions

|Date=2020/09/10 |NCN=[2020] UKUT 273 (AAC)^M |Essex issue=109 |Essex page=38 |Other citations=[2021] PTSR 405, [2020] MHLO 49 (UT) |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=AR, West London NHS Trust |Cites=AH v West London MH NHS Trust [2010] UKUT 264 (AAC)# AH v West London MH NHS Trust [2011] UKUT 74 (AAC) |Sentence=Public hearing and capacity |Summary=(1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. 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. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points. |Detail===Thanks== Thanks to Kate Luscombe (Abbotstone Law) for providing the judgment.

|Date=2011/02/17 |NCN=[2011] UKUT 74 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Carnwath, Levenson, Cooper |Parties=AH, West London Mental Health NHS Trust |Judicial history first case=AH v West London MH NHS Trust [2010] UKUT 264 (AAC) |Sentence=Public hearing |Summary=(1) 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. (2) 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? (3) 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. (4) The Tribunal directed that AH was to have a public hearing, not within Broadmoor hospital, with the press, public, AH and his representatives enabled to attend in person in the same hearing room. (5) It was 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. |Detail===Notes== The CRPD is the Convention on the Rights of Persons with Disabilities.

The relevant rule is Tribunal rule 38.