As a Solicitor in the Mental Health field, I have noticed an increasing amount of scrutiny for requests sought later in Mental Health tribunal proceedings. This occurs even if the timing of those requests is constrained by factors outside of the patient’s control.

As a matter of course, directions for expert evidence are waved through if requested early on in a case – usually by legal officers exercising the Tribunal’s devolved powers. When requests are submitted later, however, I have had postponements declined and Judges at oral hearings carefully questioning the basis on which evidence was sought, the likelihood of support, and whether it would be of any utility to the patient. It therefore comes as no surprise that the UKUT has now handed-down a judgment concerning a panel who refused to adjourn for independent psychiatric evidence.

In the novel case of OO v Central and North West London NHS Foundation Trust & SSJ [2024] UKUT 190 (AAC), the Upper Tribunal delivered a crucial judgment striking down a panel’s refusal to adjourn for independent expert evidence sought by the patient later in proceedings.

Late Requests for Independent Expert Evidence: The OO Case

OO’s Tribunal was applied for in March 2022, following recall from his conditional discharge. His team immediately supported his discharge back into the community, so OO sensibly did not seek independent psychiatric evidence.

Four days before the hearing, in November 2022, the Responsible Authority (RA) reversed its position in light of new evidence from OO’s criminal trial. Both parties sought an adjournment; the RA to reassess and consult OO’s community team, and OO to seek independent expert evidence. Additionally, the report writers were absent from the hearing, with the witnesses deferring to the opinions expressed in the reports. This deprived OOs legal representative from cross-examining the actual decision-makers who thought OO needed to remain in hospital.

The Tribunal decided to proceed with the case as it stood, concluding that an adjournment would not benefit their decision-making. The First-tier Tribunal then denied permission to appeal. At the permission hearing to the Upper Tribunal, Mr Pezzani of Garden Court Chambers argued that the decision was procedurally unfair as OO was denied the opportunity to seek expert evidence to support his case for conditional discharge, leading to his case for discharge being refused.

OO was successful in his appeal.

UKUT’s Decision in OO’s Case

With regards to the refusal to adjourn for expert evidence, the UKUT concluded that:

[53] “The refusal of the applications to postpone or adjourn the hearing resulted in OO being denied the opportunity to seek to instruct a consultant forensic psychiatrist … whose opinion may have differed from the opinions [of the other witnesses] and denied him the opportunity to question those witnesses. This meant that there was an imbalance in favour of the detaining authority, and this imbalance rendered the proceedings unfair.”

Equally, OO was also denied the opportunity to cross-examine witnesses that the Responsible Authority relied upon to make their case for his continued detention. The witnesses present had not only relied upon this evidence but had ‘deferred’ to the ‘greater expertise’ of the original writer’s opinion. Thereby denying OO an ‘effective opportunity to test the case for continued detention’ and, by extension, a fair hearing.

Legal Principles in Mental Health Law

The principle of “equality of arms” is crucial in legal proceedings, affording both parties an equal opportunity and standing on which to present their case. This is a fundamental component of English law and solidified as a jurisprudential principle under Article 6 of the European Convention of Human Rights.

English law has recognised the need for independent expert evidence in litigation dating back to the “Wells Harbour Case” – Folkes v Chadd (1782) (referred to in the judgment) – “in matters of science the reasoning of men of science can only be answered by men of science”. In this same way, conflicts arising in the Mental Health Tribunal will be between a patient detained by the state and their ‘Responsible Clinician’.

The case of Matytsina v Russia is cited in Paragraph 45 of the judgment, referencing Khodorkovskiy and Lebedev v Russia (no. 2). It notes that “it may be hard to challenge a report by an expert without the assistance of another expert in the relevant field… To realise that right effectively, the defence must have the same opportunity to introduce their own ‘expert’ evidence.”

Within the context of appeals under the Mental Health Act 1983 – this right is enshrined in statute. S.76 MHA 1983 ensures that any registered practitioner authorised by the patient may (a) visit to examine the patient in private, and (b) inspect records relating to their detention, treatment, or after-care plans.

S.129 MHA 1983 goes further, making it a criminal offence to obstruct such visits. Parliament anticipated that the instruction of independent medical experts would be integral to patients seeking to challenge their detention in hospital and made express provisions for this (rather than leaving it to the case-management powers of the Tribunal).

The Importance of Fairness in Mental Health Tribunals

Unfortunately, UTJ Church’s decision conflates two critical issues. The refusal to adjourn was deemed unfair both due to the refusal of expert evidence and because OO was not allowed to cross examine the original report writers¹. Despite the positive judgment, it lacks clear guidance, potentially leading to future re-litigation of this issue.

However, in the Author’s opinion, it would be troubling if a person detained by a public body must argue against their detention using only the evidence provided by that authority. Given the emphasis on the principle of equality of arms and Article 6 ECHR in this judgment, it is likely that declining a reasonable request to seek independent evidence at any stage in proceedings would be judged procedurally unfair on appeal. This is consistent with the case of R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812, referred to in the judgment but in a different context – recognising that “a person is entitled to be treated fairly at all relevant decision-making stages”.

OO also rightly emphasizes a low threshold for when a refusal will impact the fairness of proceedings – if the expert’s opinion ‘may’ differ from other professionals.

This should allow the Tribunal to exercise a common-sense approach to refuse requests in “cut-and-dry” cases but ensuring that any doubts are resolved in favour of the patient. Although, given that lawyers are restricted in the instruction of experts for public-funded appeals via rigorous oversight by the Legal Aid Agency, I would wager that any justification for expert evidence put forward by a legal representative is unlikely to be refused post-OO.

Equally, this decision should serve as a reminder to Responsible Authorities in Mental Health Tribunals to ensure witnesses are able to sufficiently opine on the patient’s detention. Although “reliance” on another doctor’s report may suffice if this is the initial basis on which the witness’s opinion is formed, complete “deference” to an absent report-writer’s opinion would deny the patient a chance to effectively cross-examine the basis for their detention.

OO’s Impact on Adjournment Decisions

It is difficult not to sympathise with the position that the First-tier Tribunal find themselves in. Legal Representatives will be acutely aware of the pressure that panels are facing in recent times to conclude protracted appeals, no doubt influencing decisions like this one.

In the climate of social care shortages for patients ‘clinically ready for discharge’, the UKUT in SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC) corrected a similar issue where a Tribunal Panel unlawfully concluded a deadlocked case. For more information, please read Garden Court Chambers snappy blog-post on the topic.

OO appears to strike down another such unlawful decision made by a panel potentially facing pressure to conserve judicial resources. However, when people’s liberty is at stake, this serves as a stark reminder that the First-tier Tribunal must remain flexible and fair-minded in their case-management decisions.

Going forward – although this decision does not provide certainty to appellants that a request for expert evidence later in a case will be accepted, it does provide a highly effective boilerplate for submissions and appeals if refused. Time will tell how Judges are directed to manage similar requests in the future.

¹ In the [Judicial Summary](OO v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Justice: [2024] UKUT 190 (AAC) – GOV.UK, however, UTJ Church does state that this was an “and/or” decision – fairness may have required the tribunal to adjourn for either issue alone.