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Mental health law briefing 169 – Public hearings in the Mental Health Tribunal

In the first case of its kind, the Upper Tribunal ordered the First Tier Tribunal to hold a public hearing of a patient’s application for discharge from hospital[1]. The Applicant, AH had been continuously detained under sections 37 and 41 of the Mental Health Act 1983 (MHA) for a period of over 20 years at Broadmoor Hospital. In September 2008 the classification of his mental disorder was changed from having a mental illness and psychopathic disorder to having a psychopathic disorder only. The Applicant was assessed to have mental capacity to make his own decisions.

The Applicant applied to the First Tier Tribunal for a public hearing of his discharge. One of the main reasons for making this application was due to his frustrations about the progress of the treatment of his mental health.

Rule 38(1) of the Tribunal Procedure Rules 2008 provides that:

All hearings must be held in private unless the Tribunal considers that it is in the interests of justice for the hearing to be held in public.

The First Tier Tribunal had held, on the original application, that the hearing should be held in private on the basis that a public hearing was not justified in the interests of justice. The Tribunal in reaching the conclusion that the hearing should not be held in public considered that the cost and management problems of a public hearing was disproportionate to any benefit to the patient and that the patient’s health, behaviour and progress were likely to be adversely affected by a public hearing.

On appeal to the Upper Tribunal, the original decision was set aside. The Upper ribunal found that this case was an exception to the general principle that a public hearing was not justified in the interests of justice. The Tribunal stated:

“As to the other special factors, we see force in [Counsel for the Appellant’s] submission that this case is out of the ordinary and for that reason merits special consideration. The patient has been kept in detention at public expense for over 23 years, often in conditions of high security, and it is only recently that there has been a change in his diagnosis for mental illness and personality disorder to personality disorder. We agree that this potentially gives the case some heightened public significance”… 

The Upper Tribunal stated that in considering whether a Tribunal hearing should be held in public the following factors must be considered:

  1. Whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice)
  2. Whether it will 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
  3. Whether there are any other special factors for or against a public hearing
  4. Whether practical arrangements can be made for an open hearing without disproportionate burden on the hospital or relevant authority

It is likely that in future the patient’s Responsible Clinician will be asked to assist in addressing some of these issues if the patient seeks a public tribunal hearing.

The Upper Tribunal were conscious that as a result of their decision there might be more such applications but the factors referred to above would still have to be taken into account in deciding whether to grantany particular application. It considered that a public hearing would be ordered only in a relatively few cases.


The Upper Tribunal referred to the fact that there had only been a very limited number of applications made for Tribunal hearings to be in public (only ten applications being made in the last seven years). It is questionable whether this case will result in a substantial increase in such applications being made in future, although there will still be a large number of patients who would prefer their Tribunal hearing to be kept private for reasons of confidentiality.

Subject to the comments  above, the Upper Tribunal’s decision certainly gives potential for a large number of public Tribunal hearings; although the Upper Tribunal stated that there were particular “special factors” in this case, it is very doubtful that a change in diagnosis will often amount to exceptional circumstances, even where a patient has been detained under the MHA for a lengthy period.

Alexandra Johnstone
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[1] AH v West London MHT [2011] UKUT 264 (AAC) 

Corporate Manslaughter now to apply to deaths in custody

Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 1 September 2011 and applies to all entities responsible for detaining individuals in custody. This will apply to the police, the prison service and mental health units where the patient is detained under the Mental Health Act.


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.

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