Category:Other Tribunal cases

|Date=2024-11-10 |NCN=[2024] UKUT 411 (AAC)^M |Essex issue=147 |Essex page=16 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=IN, West London NHS Trust, Law Society |Sentence=Rule 11(7)(a) and lack of express instructions |Summary=The patient had not appointed a representative but did not wish to conduct his own case, so a representative was appointed under rule 11(7)(a). The patient refused to engage or provide instructions. The solicitor sought an adjournment and said she would not remain as an observer if it were refused, but the tribunal refused to adjourn. The Upper Tribunal said that: (1) Such appointments operate as a retainer (citing a previous case which did not say that). The solicitor should have acted upon inferred instructions to test the detaining authority’s case for his continued detention, because that is the whole purpose of a hearing of a s68(2) reference and the patient preferred to be represented. It was appropriate to seek an adjournment but inappropriate to leave or threaten to leave. (2) When capacity to provide instructions is in issue, the tribunal is not precluded from relying on evidence from the RC or other witnesses, but must consider potential conflicts of interest and the witness's understanding of the relevant issues. (3) The Tribunal’s failure to explain (a) how it balanced the competing factors for and against granting an adjournment, and (b) why it was in the interests of justice to proceed with the hearing in the absence of both the patient and his representative, rendered its reasons for refusing the adjournment application inadequate. The Legal Aid implications were not mentioned. |Detail===Judicial summary==

|Date=2023-08-16 |NCN=[2023] UKUT 205 (AAC)^M |ICLR=[2023] WLR(D) 438^B |ICLR ID=2023005387 |Essex issue=134 |Essex page=48 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=SF, Avon and Wiltshire Mental Health Partnership NHS Trust, RB |Sentence=Appropriate medical treatment |Summary=The First-tier Tribunal erred in law in deciding that "appropriate medical treatment" was available because its decision was based on two misunderstandings: (a) that interventions which had the purpose merely of containing risk of physical harm were capable of amounting to "medical treatment"; and (b) that medical treatment may be "appropriate" even where it is "not tailored to [the patient's] diagnosis", and where treatment that is "essential" is not available. |Detail===Thanks== Thanks to Angela Wall (Butler Solicitors, solicitor for SF) for providing the judgment.

|Date=2023/03/02 |NCN=[2023] UKUT 64 (AAC)^M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=PC, Cornwall Partnership NHS Foundation Trust |Sentence=Hearing in patient's absence |Summary=The tribunal panel refused an adjournment request and proceeded in the patient's absence. (1) The panel found, under rule 39(1)(a) and (b) respectively, that reasonable steps had been taken to notify the patient of the hearing and that it was in the interests of justice to proceed. However, it made no findings, under rule 39(2)(a)(i) and (ii) respectively, in relation to whether the patient had decided not to attend the hearing or was unable to attend for reasons of ill health, and it was not self-evident that either requirement was satisfied. Proceeding in the patient's absence was therefore an error of law. (2) The First-tier Tribunal judge refusing the appeal had used an out-of-date version of the rules (though this did not affect her reasoning) and had misunderstood the rules, confusing rule 39(1)(a) and rule 39(2)(a). (3) The Upper Tribunal concluded: "A tribunal must always operate within its rules of procedure and that is particularly important when liberty is at stake. This is why I have dealt not only with the tribunal’s reasoning but also with the reasoning in the refusal of permission." |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors, patient's representative) for providing the judgment.

|Date=2020/10/15 |Court=First-tier Tribunal |Judges=Jo Briggs |Parties=D |Sentence=Video tribunal hearing set aside |Summary=(1) The decision in this case 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. (2) 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. [First-tier tribunal decisions are useful but not binding.] |Detail===Note== The Deputy Chamber President has asked for this statement to be published: "Permission has been granted by the First Tier Tribunal to publish this case on the MHLO website. This is not a reported judgement. The decision is only made in relation to this case and as a decision of the FTT, there is no obligation on any other FTT judge or panel to follow this."

|Date=2020-02-10 |Other citations=[2020] MHLO 14 (FTT) |Court=First-tier Tribunal |Judges=Callcott |Parties=A |Judicial history=* Re A (publication of MHT decision) [2023] MHLO 3 (FTT)

• Re A (all-female panel) [2020] MHLO 14 (FTT)

|Sentence=Direction for all-female panel |Summary=In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut. |Detail===Notes== The Deputy Chamber President has asked for this statement to be published: "Permission has been granted by the FTT to publish this case on the MHLO website. This is not a reported judgement. The decision is only made in relation to this case and as a decision of the First-tier Tribunal, there is no obligation on any other FTT judge or panel to follow this."

This is only an interlocutory decision (given on Form STJ2, "Interlocutory Decision Before Hearing") and is not in any way binding; however, it is an interesting illustration of the tribunal's approach to such a case. All information about the patient's case has been removed from the following extract from the decision.

|Date=2011/11/23 |NCN=[2011] EWCA Civ 1359^M |ICLR=[2011] WLR(D) 340^{Not on Bailii!} |ICLR ID=2011202154 |Court=Court of Appeal (Civil Division) |Judges=Mummery, Richards, Black |Parties=Elham Modaresi, Secretary of State for Health |Judicial history first case=R (Modaresi) v SSH [2011] EWHC 417 (Admin) |Sentence=Section 2 tribunal deadline |Summary=The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles. |Detail===Other== Hearing: 15/11/11

Judgment: 23/11/11

Before: Mummery, Richards, Black LJJ

Mr Richard Gordon QC & Mr Matthew Stoekweli (instructed by Peter Edwards Law) for the Appellant

Mr Paul Greatorex (instructed by DWP/DH Legal Services) for the 1st Respondent

Mr Owain Thomas (instructed by Capsticks Solicitors LLP) for the 3rd Respondent

|Date=2021/03/03 |NCN=[2011] EWHC 417 (Admin)^M |Other citations=[2011] All ER (D) 52 (Mar) |Court=High Court (Administrative Court) |Judges=Edwards-Stuart |Parties=Elham Modaresi, Secretary of State for Health, First-tier Tribunal (Mental Health), West London Mental Health NHS Trust |Judicial history=* R (Modaresi) v SSH [2013] UKSC 53

• R (Modaresi) v SSH [2011] EWCA Civ 1359
• R (Modaresi) v SSH [2011] EWHC 417 (Admin)

|Sentence=Section 2 tribunal deadline |Summary=The claimant missed the 14-day deadline for submission of a s2 Tribunal application because of oversight/neglect on the part of Trust employees. Judicial review claims against the Tribunal (for deciding that the application was invalid), the Secretary of State for Health (for refusing to make a reference) and the Trust (for their actions) were all unsuccessful. [Caution - see later decisions.] |Detail===Summary== On Friday 31/12/10 the Claimant, on the 12th day of detention under s2, gave a Tribunal application to a nurse, who faxed it to the MHA office, where it went unnoticed that day but was faxed to the Tribunal office on Tuesday 4/1/11. On 5/1/11 the Tribunal rejected it as out of time. On 6/1/11 the Claimant was detained under s3. On 7/1/11 the Secretary of State for Health refused to make a s67 reference; however, following the grant of permission to apply for judicial review, a reference was made on 1/2/11 and the hearing listed for 11/3/11. On 18/2/11 the Claimant was released on a CTO.

The claims were against (1) the Tribunal's refusal to accept the application (Second Defendant), (2) The Health Secretary's refusal to refer (First Defendant), and (3) The Trust's actions (Third Defendant).

(1) The application was out of time:

(a) Tribunal rule 12 (providing for the Rules' deadlines to be extended if they end on non-working days) has no application to the statutory 14-day deadline.

(b) Since delivery is effective almost instantaneously by fax, even when the Tribunal office is closed, there is no need to extend the deadline.

(2) The refusal to refer was lawful:

(a) There was no Article 5(4) delay because by 7/1/11 the Claimant was detained under s3, so a reference would have taken as long as an application.

(b) Although the Claimant would be forced to use her s3 application early (instead of her s2 application) for so long as she had a right of application there was no Article 5(4) breach of the right to take proceedings.

(c) It was reasonable to decline to refer for so long as she had the right to make an application herself; the Health Secretary had agreed to consider a reference following any unsuccessful Tribunal application.

(3) The judicial review claim against the Trust failed:

(a) It was conceded that an isolated failure by an employee (as opposed to an unreasonable system) would not given rise to a remedy by way of judicial review.

(b) The Trust wrongly believed that eligibility was calculated by reference to the date of the patient's signature, rather than the date of receipt by the Tribunal; given this, it was not unreasonable to have a system which did not provide for applications to be transmitted without delay outside working hours.

(c) Even if there were no reasonable grounds for their belief, the system would have been reasonable if patients had been told they must make applications during normal working hours.

(d) In any event, a system to deal with out-of-hours applications would have been unlikely to have made any difference in this case, the application having been given to the nurse during working hours.

(e) For these reasons, the JR claim failed; however, there may be a private law claim in contract or negligence.