AR v West London NHS Trust and the Secretary of State for Justice

AR had been detained under ss.37/41 MHA 1983 since 1993. The tribunal refused his application for the hearing to be in public. The issues were (a) AR's capacity; and (b) the relevance of incapacity to the application for a public hearing in light of the decision in AH v West London Mental Health Trust [2010] UKUT 264 (AAC); [2011] UKUT 74 (AAC).

The Upper Tribunal decided that the tribunal erred in law in two respects:

1. The 'matter' for MCA 2005 purposes was not to decide to apply for a public hearing. Instead the matter was the patient's ability to conduct proceedings;
2. That the patient does not have capacity to conduct the proceedings does not mean the hearing cannot be held in public. The starting point is Article 6 ECHR which confers a qualified right to a public hearing and the best interests of the patient should be considered as part of the application.

So a patient does not need to have litigation capacity to apply for a public hearing. UTJ Jacobs then gave some guidance at paragraph 20 as to the salient features of a public hearing which were not intended to be comprehensive:

• The tribunal's powers of disposal are the same, regardless of whether or not the hearing is held in public. Those powers will vary according to the nature of the case. Having the hearing in public will not affect the decision that the tribunal makes within the scope of its jurisdiction under the Mental Health Act 1983. It does not acquire power at a public hearing to deal with any issue that is outside its jurisdiction.
• The tribunal's procedural powers are also the same regardless of the form of the hearing. They include the power to exclude people from all or part of the hearing. The nature of the hearing will not affect the way that the hearing is conducted, the evidence that is relevant, what the patient is allowed to say, or the outcome of the case.
• Members of the public, including the press, are allowed to observe and may wish to do so, although they may not. They not allowed to take any part in the proceedings.
• A public hearing is no guarantee of publicity, even if members of the public do observe. The tribunal's power to limit disclosure remain the same as for a private hearing.
• A hearing may adversely affect the patient's health, for example as a result of receiving adverse publicity or realising that no one is interested in the case.
• Although the patient may want publicity, this may have a detrimental effect on others, such as his family or any victim.

Accordingly, the case was remitted to a different tribunal.

Comment

This decision avoids the decisional salami-slicing of litigation capacity, which might otherwise lead to an impractical approach when conducting proceedings, whilst equally ensuring that the voice of the person is not lost when considering issues arising in the course of proceedings. It reflects the increasing role of the MCA 2005 to issues arising under the MHA 1983 and the fleshing out of the tribunal rules.