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Mental health law briefing 173 – Avoiding pre-judging applications

Hospital managers and tribunal members will have read case papers before any hearing. It is inevitable that they will have formed some impression of the strength of the case that they have to hear. Clearly it is important that they nevertheless approach the hearing with an open mind as to pre-judge the decision would be unlawful.

The Upper Tribunal has recently had to consider the issue of pre-judgment where it was alleged that the First Tier Tribunal judge went “too far” in his apparent pre-judgment (see footnote 1).


A restricted patient applied to the FTT for discharge. This was opposed by his clinical team who felt that he was not yet ready for conditional discharge and needed more testing in a community setting as part of a planned programme of leave.

During the hearing, after the responsible clinician had given evidence, but before the patient had put his case, the tribunal judge told the patient’s solicitor that he may wish to put in a withdrawal application. It would seem that the judge was hinting that the patient may wish to “save” his right to apply under Section 70 Mental Health Act to make one tribunal application in any six month period and that that would more properly be utilised once further community leave had been successfully undertaken.

The patient duly withdrew his application but then appealed to the Upper Tribunal on the basis that the comments from the FTT judge showed that he had pre-judged the case.


The Upper Tribunal held that the FTT judge had “expressed himself in such a way as to give rise to reasonable apprehension that he had formed a pre-conceived concluded opinion”. Whilst the judge may have a provisional view, in this case the Upper Tribunal felt he had overstepped the mark and in effect told the patient to give up on his application before the judge had heard all the evidence and submissions.


It is obviously important that both the FTT and hospital managers are very careful in the way they express their views on any application before they reach their decision. It is particularly important that views on the merits are not expressed in any way that suggests a pre-judged outcome before all the evidence and submissions are heard.

Although this was a case relating to an FTT, it is likely that similar principles would apply to a hospital managers hearing.

Andrew Parsons
© RadcliffesLeBrasseur
February 2012


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.