Key Facts
- •OO, a detained patient with paranoid schizophrenia, had two concurrent restricted hospital orders (under sections 37 and 41 of the Mental Health Act 1983).
- •His responsible clinician initially supported conditional discharge, but changed their position days before a hearing.
- •The First-tier Tribunal (FtT) refused adjournment applications, leading to OO being unable to present counter expert evidence.
- •The FtT decision upheld OO's detention.
- •OO appealed to the Upper Tribunal (UT) arguing procedural unfairness due to lack of ‘equality of arms’.
Legal Principles
Equality of arms in mental health tribunals regarding expert evidence; fairness necessitates adjournment to allow effective challenge to the detaining authority's case.
Folkes v Chadd (1782) 3 Doug 157, Matytsina v Russia [2014] ECHR 334, Khodorkovskiy and Lebedev v Russia
Mental Health Act 1983 (MHA 1983) sections 72, 73, 75, 76 and 129 regarding tribunal powers, discharge of patients, recall references, independent medical advice, and obstruction.
MHA 1983
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (FtT Rules) overriding objective of fairness and just dealing of cases, including proportionality and cooperation.
FtT Rules
Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) section 12(2)(a) and (b)(i) regarding setting aside decisions and remittal.
TCEA 2007
Article 6 ECHR right to a fair trial, and Article 5(4) ECHR right to effective remedy.
ECHR
Outcomes
The Upper Tribunal allowed the appeal.
The FtT's refusal of adjournment applications resulted in procedural unfairness, denying OO equality of arms and an effective opportunity to challenge expert evidence.
The FtT decision was set aside and the matter remitted for rehearing before a differently constituted panel.
OO was denied an effective judicial determination of his right to liberty due to procedural errors; remittal ensures a fair hearing in accordance with MHA 1983 and Article 6 ECHR.