Bias – Detention – Hearings – High-security psychiatric hospitals – Mental health review tribunals

R (on the application Brown) v South Region Mental Health Review Tribunal: QBD (Admin) (Mrs Justice Dobbs): 13 August 2008

The claimant (B) applied for judicial review of a decision of a mental health review tribunal not to release him from a maximum security hospital.

B had been convicted of the rape and false imprisonment of a deaf and dumb girl and had been sent to the hospital for an assessment. He was diagnosed with schizophrenia and was detained for treatment. The tribunal concluded that although B did not have strong symptoms he had unusual expectations that indicated an underlying mental illness. It also concluded that, although his symptoms were elevated by medication, detention was required for treatment. The tribunal ordered a nurse to be present during the hearing. B submitted that: (1) there had been procedural impropriety in the form of bias that had resulted in unfairness or apparent unfairness; (2) the risk that he posed if he was released could have been controlled via conditional discharge and that the tribunal had given inadequate reasons for its decision.

Held: (1) The tribunal did have power either under rules 21 or 22 of the Mental Health Review Tribunal Rules 1983 to allow a nurse to hear B’s evidence. Those rules gave the tribunal a very wide discretion in the way it conducted the trial. B had been able to make submissions against the measure and the tribunal had noted that he had objected to it. There was no argument that the presence of the nurse resulted in procedural unfairness. It was also normal practice for a nurse to be present during hearings such as in the instant case. The tribunal had given substantial reasons for the nurse being present and neither actual nor apparent bias was present in the tribunal’s decision. Whatever the outcome of the case, an up-to-date assessment of B by a nurse would have been helpful. The hearing had been held in private and B had the opportunity to address the tribunal without the nurse being present, but had failed to avail of it. Nothing gave rise to the argument that the nurse affected the overall decision of the tribunal and a fair-minded observer would not have considered the tribunal to have been biased. The case in front of the tribunal was complex and it could not be criticised for forming a provisional view of the case as long as it was willing to change it, Steadman-Byrne v Amjad [2007] EWCA Civ 625, [2007]1 WLR 2484 applied. It was clear from its reasoned decision that it had taken all the evidence into account.

(2) The tribunal had considered the possibility of a conditional discharge and had been entitled to conclude that it would not be appropriate because B and others would be put at risk if he failed to continue with his medication programme. The tribunal was best placed to decide which evidence to accept and, as there was an expert on the panel, a court should be slow to intervene in its decision. The tribunal’s decision was not outside the range of reasonable responses.Application refused.

Laura Davidson (instructed by Kaim Todner) for the claimant; Matthew Barnes (instructed by in-house ­solicitor) for the defendant.