PD, R (on the application of) v West Midlands and North West Mental Health

This case raises an important and potentially a far reaching issue of whether a determination of the West Midlands and North West Region Mental Health Review Tribunal (“the Tribunal”) made on 16 October 2002 was compatible with Article 6 of the European Convention on Human Rights (“the Convention”) and with natural justice and in particular, the common law test of bias. This issue is of very considerable importance because it is alleged that a medical member of the Tribunal, namely Dr. Ahmed Izmeth was insufficiently independent as he was employed as a Consultant Psychiatrist by Mersey Care NHS Trust (“Mersey Care”), which was the National Health Service Trust that was responsible for detaining the claimant even though first, he had never worked in the hospital in which the claimant was detained and second, he did not know the claimant or any of the medically qualified or other witnesses at the hearing. It is not suggested that there was any actual bias on the part of the medical member.

The more precise issue raised on this application is therefore whether in the view of a fair-minded and informed observer, having considered the facts there was a real possibility of sub-conscious bias on the part of that medical member of the Tribunal. The issue is of importance because the current practice is for the medical members of Tribunals who are appointed by the Lord Chancellor to sit as member of Tribunals where the detaining authority is his or her employer and very many doctors act as medical members in those circumstances but not in relation to detention in a hospital with which they have connections. There is, however, a Protocol which, for example, precludes medical members from hearing cases where they work in the detaining hospital or have prior knowledge of the claimant on his case.

Mersey Care was served with the proceedings as an Interested Party but it has not played any part in the proceedings.

The claimant has at all material times been detained under section 3 of the Mental Health Act 1983 (“the 1983 Act”) in Rathbone Hospital, which falls within the authority of Mersey Care. That authority provides services and staff in thirty-three premises in the Merseyside region and it is described as an “enlarged Trust” because it controls not one but a very significant number of hospitals. Mersey Care provides its service through clinical directorates which are each led by the Clinical Director and the service manager. The Rathbone Hospital where the claimant is detained forms part of the Liverpool area of the Adult Mental Health Directorate.

The other Adult Mental Health Directorate of Mersey Care is in the geographical area of Sefton and Knowsley which, as I will explain, encompasses the place of work of Dr. Izmeth, which was the Hesketh Centre. The basis of the claimant’s complaint in the present proceedings and in front of the Tribunal is that at the time of the hearing, Dr. Izmeth was not only a medical member of the Tribunal in which Mersey Care was a party, but he was also then employed by Mersey Care as a Consultant Psychiatrist working at the Hesketh Centre, which forms part of the Sefton and Knowsley area of the Adult Mental Health Directorate, which is, as I have explained, a separate area from the Liverpool area.

At the outset of the hearing of the claimant’s application before the Tribunal on 16 October 2002, his solicitor applied unsuccessfully for a ruling from the chairman of the Tribunal that Dr. Izmeth should be disqualified for considering the claimant’s case because of his employment with Mersey Care. The Tribunal subsequently declined to discharge the claimant and it is that decision which the claimant is now seeking to quash because of Dr. Izmeth’s presence on the Tribunal. Gibbs J gave permission to pursue this application. So it now becomes necessary to explain the relationship between Dr. Izmeth, with first the Trust and second the Tribunal.

Dr. Izmeth has been a medical member of the Tribunal since 1995 and he was appointed as a “fee paid part-time member”. He has also been a Consultant Psychiatrist since 1980. From 1980 to 1990, he was employed by the Mersey Regional Health Authority, during which time he was based at Greaves Hall Hospital, but he also visited Ormskirk & Southport District General Hospital. In 1991, he worked for Southport and Formby Community NHS Trust remaining at Greaves Hall until his move to the Hesketh Centre in 1992. He was then employed by North Sefton & West Lancashire NHS Trust following its creation in 1998. Between April 2001 and his retirement on 31 March 2003, Dr. Izmeth was employed by Mersey Care, which had been established on 1 April 2001 to provide specialist mental health and learning disability services.

The services provided by Mersey Care are managed and delivered through clinical directorates which are and were managed independently of each other on a day-to-day basis with the psychiatrists only working for one specific directorate. It is noteworthy that in the field of work in which Dr. Izmeth worked, namely Adult Mental Health, the directorate has been divided into two geographical areas and the psychiatrists work in one area only.

Although the Directorate has an overall director, each of the two geographical areas has its own Clinical Director and its own Service Manager. Liverpool City area is one such area with the Rathbone Hospital being one of the three main hospitals there. The other area is Sefton and Knowsley in which the main hospitals include the Hesketh Centre and it was that area to which Dr. Izmeth was attached. It was explained that he was never expected to be on call for the Liverpool area which included the Rathbone Hospital at which the claimant was being treated.

Dr. Izmeth states in his witness statement that prior to the Tribunal hearing, he had never had any real practical connection with any hospital covered by Mersey Care other than the Hesketh Centre. He points out that he had never visited Rathbone Hospital other than as a medical member of the Tribunal. Dr. Izmeth also says that he did not know the claimant or his responsible medical officer (“RMO”) or any of the witnesses who gave evidence in front of the Tribunal, either professionally or personally. None of these allegations have been challenged by the claimant.

I should add that at the time of the hearing, Dr. Izmeth was under six months away from retirement. This could be a relevant factor but both counsel asked me to ignore this issue and I will do so. Dr. Izmeth says that he thinks that it is absurd to think he was influenced by common Directorate. The issue however, as I have explained, is not whether Dr. Izmeth was actually biased which is not what is alleged but whether, as is alleged by Mr. Hugh Southey for the claimant in the view of a fair-minded and informed observer there was a real possibility of sub-conscious bias on the part of Dr. Izmeth.

In order to understand the rival contentions, it is now appropriate for me to explain the legal principles, which govern the present claim which is based on common law bias and on breaches of Article 6 of the Convention.

Article 6 of the Convention is engaged by the Tribunal’s review of the claimant’s detention as the right to liberty is a civil right (Aerts v. Belgium (1998) 29 EHRR 50 at paragraph 59).

Article 6(1) of the Convention provides, insofar as is material to this case, that:-

“In the determination of his civil rights .. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law ..” (my emphasis added).

The House of Lords has explained that “there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial Tribunal, the latter being the operative requirement in the present context” (Lawal v. Northern Spirit Limited [2003] ICR 856, 862 per Lord Steyn [14]).

As a result of a number of recent decisions, it is possible to state a number of legal principles relating to the test for bias which are not in dispute in this case. They form the background against which this claim has to be considered. Those undisputed principles are that:-

Thus, I have to consider the case through the eyes of the fair-minded and informed observer who is neither complacent nor unduly sensitive or suspicious who I will refer to as “the fair-minded observer”. I will have to consider whether such a person would conclude that there was a real possibility that the Tribunal was biased when it made the decision under challenge.

I now turn to consider the rival submissions, which depend on the correct application of these established principles to the situation which arose when Dr. Izmeth sat as part of the Tribunal in Rathbone Hospital when a party to the proceedings was the detaining authority, Mersey Care, which was also Dr. Izmeth’s employer. As I will explain, a fundamental dispute between the parties is whether in this case, there were sufficient guarantees to “exclude any legitimate doubt” on the independence and impartiality of Dr. Izmeth. Both counsel have been of great assistance to me in their oral and written submissions for which I am grateful and to which I now turn.

Mr. Southey contends that the determination of the Tribunal was flawed because Dr. Izmeth was not sufficiently independent as he was employed by the National Health Service Trust that was responsible for the detention of the claimant. He contends that the background to this claim is that Rule 2 of the Mental Health Review Tribunal Rules 1983 (SI 1983/942) (“the 1983 Rules”) provides that the Trust, such as the defendant, provided accommodation for a patient is the “responsible authority” and so it is a “party” to the proceedings. At any stage during his detention, the claimant could be discharged by Mersey Care (Section 23(2) of the 1983 Act). Thus, Mr. Southey contends that Dr. Izmeth was in a subordinate position to his employer, who was a party to the proceedings, namely Mersey Care. He submits that it had an interest adverse to that of the claimant and this would lead a fair-minded member of the public to conclude that there was a real risk of bias on the part of Dr. Izmeth in favour of Mersey Care, his employers.

Mr. Southey submits that this contention is supported by Rule 8(2)(b) of the 1983 Rules, which provides, insofar as is relevant and with my emphasis added, that:-

“A person shall not be qualified to serve as a member of a Tribunal for the purpose of any proceedings where … (b) he is a member or officer of a health authority which has the right to discharge the patient under Section 23(3) of the Act”.

Mr. Southey accepts that Dr. Izmeth was not a “member” of the health authority but he contends that he was an “officer” and that is an issue that I will have to consider in paragraphs 58 to 64 below as it is strongly contested by Miss. Natalie Lieven for the defendant.

Miss. Lieven contends that the authorities show that the central question in the present case is whether there were at the time of the hearing sufficient safeguards in place to guarantee that the Tribunal with Dr. Izmeth as its medical member would be regarded by the fair-minded and informed observer whom I have described as being suitably independent and impartial. She submits that the answer is in the affirmative because in this case there were sufficient safeguards in place effecting Dr. Izmeth with the result that there was no apparent bias nor a breach of Article 6. Thus, Miss. Lieven argues that the decision of the Tribunal cannot be impugned for either of these reasons.

It was suggested by Miss. Lieven that Dr. Izmeth’s position when sitting on a Tribunal in which his employer was a party was similar to the position of a judge who has to deal with a case in which the Department of Constitutional Affairs or the Lord Chancellor is a party. She points out that there are no objections to a judge sitting in such a case and that shows that the claimant’s complaint is unjustified.

She contends that there is nothing in Rule 8(2) of the 1983 Rules, to which I referred in paragraph 20 above, which would stop medical members in the position of Dr. Izmeth sitting on a Tribunal and I will return to consider this in paragraphs 58 to 64 below. She also submits that it is relevant to consider the consequences of a finding of apparent bias or of a breach of Article 6 in this case. Miss. Lieven points to the evidence adduced by the Tribunal which shows that there will be very serious detrimental consequences if there was to be a decision that medical members cannot sit on Tribunals where they are employed by the Trust, which is actually responsible for detaining an applicant at Tribunal proceedings, albeit at a hospital with which the medical member has had no connections. Miss. Lieven further argues that these consequences would have a major adverse effect on the Tribunal’s ability to hear applications by detained patients “speedily” as is required by Article 5(4) of the Convention. Mr. Southey contends that none of this evidence on the consequence of upholding the claimant’s case is admissible. I propose to consider the claim first without considering the evidence of the consequences of upholding the claimant’s case and then to turn to decide whether evidence of these consequences is admissible. Before doing so, it is convenient now to deal with two preliminary points.

First, Mr. Southey contends rightly in my view that the fact that Dr. Izmeth has stated that he is not biased is not of any importance because as Lord Hope of Craighead explained in Porter v. Magill (supra) “looking at the matter from the standpoint of a fair-minded and informed observer protestation [made by the person who is said to have been biased that he was not biased] are unlikely to be helpful” (at page 495 [104]). By the same token, any fears of the party complaining who, in this case was the claimant, are also of little importance because “what is decisive is whether any fears expressed by the complainer are objectively justified” (ibid). I will therefore disregard Dr. Izmeth’s protestations in determining the issue before me.

Second, I bear in mind that my approach must be, as Lord Steyn explained in the passage which I have set out in paragraph 16(e) above, that any court when faced with the present challenge “starts by identifying the circumstances which give rise to bias” (per Lord Steyn in Lawal v. Northern Spirit Limited (supra) [20]). It was said on behalf of the claimant at one stage that the interest of Mersey Care was to detain patients so as to obtain more revenue. In answer to Miss. Lieven’s point that there is no evidence on this point, Mr. Southey says that the onus is on the defendant to produce evidence that the financial interests are not significant because the claimant is not a party to the NHS contracts and so he cannot produce any evidence. There has, however, been no credible allegation to indicate how, if at all, Mersey Care will be affected financially either by a decision to detain or by a determination to discharge the claimant. I therefore reject Mr. Southey’s submission based on the alleged revenue considerations of Mersey Care.

A further submission made by Mr. Southey is that the potential financial interests of Mersey Care are not limited to the potential income from an NHS contract. He says that those financial interests would include the possibility that the Trust might be liable in damages for the unlawful detention of a patient. I regret that I am unable to understand the potency of that point because if the Trust is at financial risk on the grounds that it would be liable for damages for not releasing the claimant, then it would also be in its interest and that of the claimant to order the discharge of the claimant. In other words, there would be no conflict and no room for alleging assumed bias by the medical member of the basis that he was too closely connected with the Trust.

A more cogent alternative reason put forward by Mr. Southey is that Dr. Izmeth, as an employee, is in a subordinate position to Mersey Care, which is party to the proceedings in which he is the decision-maker. I agree with Mr. Southey that contrary to the defendant’s submissions, there is no need for there to be a specific known individual who can be said to be the superior of the judge; indeed as I will explain in Belios v. Switzerland (1988) 10 EHRR 466, there was no suggestion of a known individual holding a superior position. It is sufficient for the present purposes in order to show the possibility of bias for a claimant to allege that the judge was an inferior or employee of a party to the proceedings as that would lead the fair-minded observer to conclude that there was a real possibility of sub-conscious bias. As I will explain, the potency of this conflict depends on the power that Mersey Care has over Dr. Izmeth and the adequacy of the safeguards to which I now turn.

As I have already explained, in order to be impartial a Tribunal “must offer sufficient guarantees to exclude any legitimate doubt in this respect” in the words of the Strasbourg Court in Findlay and which were quoted with approval by Lord Bingham of Cornhill as I have explained in paragraph 16(e) above.

It now becomes necessary to consider in some detail the cases relied upon by both counsel. Miss. Lieven relies on the decision of the House of Lords in R v. Spear [2003] 1 A.C. 734 to show that there were by analogy adequate safeguards in this case and I will start by looking at it before considering the four Strasbourg Court cases relied on by Mr. Southey.

The appeals were dismissed by the House of Lords as it was considered that the appellants had received a fair hearing by an independent and impartial Tribunal in the form of a court-martial, whose members performed a role described by Lord Bingham of Cornhill as being “closely analogous to that of jurors” ([7] page 748). In that case, the convicted service personnel contended that there were trials by a court-martial incompatible with Article 6(1) of the Convention on the basis that the courts-martial lacked the required independence or impartiality.

The Appellate Committee considered adequate the safeguards designed to ensure the independence and impartiality of the members of the courts-martial, including the oaths taken by them and their obligation to observe the directions of the Judge Advocate. In addition, the Appellate Committee decided that the independence and impartiality of courts-martial was not compromised by the Permanent President or by the members of the courts-martial being subject to annual reports. In response to the contention that the junior officers who served on courts-martial lacked the necessary qualities of independence, being as they were of a lower rank than people who appeared in front of them, Lord Bingham of Cornhill in his speech (with which all the other members of the Appellate Committee agreed) explained that:-

“It is also true that the junior officers who sit on courts-martial have very little legal training, but that is also true of the Permanent President court-martial whose presence was accepted … as a guarantee of the rights of the accused. It is also true that junior officers sitting on courts-martial remain subject to Army discipline and reports. But there is nothing to suggest that any report ever is or ever has been made on any junior officer’s decision-making as a member of a court-martial, and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members. There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. It is true that there is no statutory bar on an officer being made subject to external Army influence when sitting on the case. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the Army Act 1955. The officer members are drawn from a different command from the accused. Briefing notes sent to officer members of courts-martial before they sit enjoin them not to “speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator”. They are instructed in writing not to talk to anyone about the case (other than the other members of the court-martial, when all are together) for as long as the trial continues, and this instruction is routinely emphasised by the judge advocate. The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid “local unit influences”. They are instructed “not to associate with formation or unit personnel either professionally or socially until the trial is over”. At the outset of the hearing the officers take an oath in terms quoted by the European Court at p 1265, para 27 of its judgment in Morris, swearing to try the accused “according to the evidence” and to “administer justice according to the Army Act 1955 without partiality, favour or affection”. In considering the independence and impartiality of the [Permanent President of Courts-Martial] both the Court of Appeal in its judgment in R v. Spear [2001] QB 804, 818-819, paras 33 and 35 and the European Court in Morris 34 EHRR 1253, 1276-1277, paras 68-69 attached weight to established convention and practice. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to “external Army influence”, as I feel sure the European Court would have appreciated had the position been more fully explained” ([12] pages 750-751).

The safeguards in that case were adequate, even though the members of the court-martial were subordinates to the prosecutor. Miss. Lieven attaches importance to the fact that the safeguards present in that case showed the requisite level of independence and impartiality in that:-

Miss. Lieven contends that the application of those principles to the present case means that the present claim must fail as there are safeguards in the present case which are at least similarly effective. Although there are some special features of a court-martial, it is instructive to see how analogous reasoning to that in the Spear case would apply in this case. Dr. Izmeth’s position on (a) is the same as that of a junior officer sitting on a court-martial in the sense that there is nothing to suggest that any report is or ever has been made on a doctor’s decision-making activities while acting as a member of a Tribunal. Thus, he would not be subject to disciplinary action by Mersey Care for any decision that he took. Turning to (b), there is no basis for believing that medical members of the Tribunal would be subject to discipline by Mersey Care in relation to their judicial decision-making.

In addition, a medical member of the Tribunal is in the same position as a member of a court-martial in respect of (c) because if anybody sought to influence his decision, he or she would be at risk of prosecution for perverting or attempting to pervert the course of justice. It is true that there could not be a prosecution of such a person under Section 69 of the Army Act 1955 for seeking to influence the decision of a member of the Tribunal, but that does not appear to me to be of any significance because the common law offences could be used against any such wrongdoer and they would provide an equivalent safeguard to that afforded to members of a court-martial in the eyes of a fair-minded observer.

Turning to (d), Dr. Izmeth has had no connection with any hospital run by Mersey Care other than the Hesketh Centre and more specifically he had no relationship whatsoever with the Rathbone Hospital, which was where the claimant was detained. As I have explained, Dr. Izmeth was in a Directorate, which was managed independently from hospitals under a different Directorate, such as the Rathbone Hospital. This significant matter would have been apparent to any fair-minded observer. On (e), there is no oath taken by any Tribunal member but there are clear and relevant obligations to be found in different sources imposed on Dr. Izmeth, as a Consultant Psychiatrist to act fairly and impartially and above all, to exercise independent and impartial judgment.

First, Dr. Izmeth is a trained and qualified doctor and a member of the Royal College of Psychiatrists. He explains in his witness statement that “the duty on a doctor to be independent and impartial is pervasive through his or her medical training”. Second, he also points out that the General Medical Council produces guidance on the matter and its booklet on Conflicts of Interest states “you must act in your patient’s best interest when making referrals and providing and arranging treatment or cover”. Third, as a member of the Royal College of Psychiatrists, Dr. Izmeth states that part of the Core Curriculum relates to conflict of interests, which would have ensured that he would have been perceived by the fair-minded observer to be independent. It is significant that although there is evidence that consultant psychiatrists frequently sit on Tribunals in which their employers are a party and have done so for many years, there has been no allegation or evidence put forward to show that any of their decisions have been reached other than in accordance with their professional obligation to act independently or impartially or more particularly that any of their decisions are partial to their employer.

Fourth, the regional chairman sets out in a witness statement the Protocol and guidelines, which I consider in greater detail later, but which focus the attention of members of Tribunals on the potential conflicts of interest and that members “must raise any doubts with the regional chairman or President as circumstances permit or dictate”. These points establish that there were clear obligations on Dr. Izmeth to act impartially.

I have considered the submission of Mr. Southey that the position in the Spear case is not analogous to the present case. His reasoning is that the prosecuting officials at the court-martial are not superior to and not in the same line of command to the members of the court-martial. The reason why I cannot accept Mr. Southey’s submission is that the factor which gave rise to the allegation of bias in the court-martial cases is that the members of the court-martial were subject in general to what the Strasbourg Court in Morris v. United Kingdom (2002) 34 EHRR 1253 called “the risk of outside pressure .. and that there was no statutory or other bar to their being made subject to external Army influence when sitting on the case” (page 1278 [72]). In other words, in the court-martial cases, the risk of perceived bias was because of pressure on the decision-maker not to make a decision of which his employer would disapprove. This was an allegation common to this case and to Spear’s case and it is the treatment of that allegation in Spear’s case which I find helpful.

I therefore conclude that applying the approach in Spear, the position of the medical member of the Tribunal has many of the attributes relating to independence that are possessed by a member of the courts-martial. There are also additional safeguards in this case which at least appear similar to those in Spear.

Mr. Southey refers to four Strasbourg Court cases, in which that court has held that Article 6 has been violated by the involvement of the judicial decision-maker, who has a perceived interest in the outcome of the proceedings, which gives rise to a risk of unconscious bias in the eyes of the fair-minded observer. Miss. Lieven says that each of these decisions can be distinguished from the present case and are therefore of no value. It is therefore necessary for me to consider in detail each of the four cases relied on by Mr. Southey.

He first relies on the Strasbourg Court decision in Langborgor v. Sweden (1990) 12 EHRR 416 where that court held that the involvement of two lay assessors, who were appointed by the Landlord’s Association and by the Tenant’s Association violated Article 6 as both those two bodies had interests in the outcome of the applicant’s case, which were contrary to the interests of the applicant.

In that case, the applicant had sought the deletion from the lease of a certain proviso but both the Tenant’s Association and the Landlord’s Association “had an interest in the continuing existence of the negotiation clause [so that the applicant] could legitimately fear that the lay assessors had a common interest common to his own” (at page 426 [35]). This position is different from that prevailing in the present case and in Spear’s case as there were no safeguards of the kind mentioned in Spear to ensure that the representatives of the Tenant’s and Landlord’s Associations acted impartially or were perceived to act impartially and independently.

The next case relied upon by Mr. Southey is Sramek v. Austria (1984) 7 EHRR 351, in which the Strasbourg Court held that the appointment of a judicial figure, who was in a subordinate position to one of the parties to the litigation, might lead litigants to entertain legitimate doubts regarding the independence of that judicial figure. It was not suggested in that case that there were any safeguards of the kind referred to in Spear and that again is a crucial factor distinguishing Sramek’s case from the present case.

Mr. Southey’s third Strasbourg Court case is Belilos v. Switzerland (1988) 10 EHRR 466, in which an applicant had been convicted for having participated in an unauthorised demonstration. He complained that the procedure before the Police Board and the higher courts, which heard her appeal did not conform with the requirements of Article 6(1) because the Police Board had as its single member a lawyer from the police headquarters. Although that appointed member could not be dismissed during his term of office and his personal impartiality had not been called into question, the Strasbourg Court considered that:-

“the ordinary citizen will tend to see [the member of the Police Board] as a member of the police force subordinate to his superiors and loyal to his colleagues. A stipulation of this kind may undermine the confidence which must be inspired by the courts in a democratic society” [67].

An important feature of that case was that in that case there were no safeguards given to ensure that the appointed member acted independently and impartially, other than his limited security of tenure and that he took a different oath from that taken by policemen, but the requirement of independence did not appear in the text of the oath. None of the other Spear safeguards were present.

The last case relied upon by Mr. Southey is Findlay v. United Kingdom (1997) 24 EHRR 222, in which a trial by British Army court-martial (which was constituted under a scheme which was later amended and did not apply at the time of the Spear case) was held not to comply with Article 6. The Strasbourg Court considered it important that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had the power in prescribed circumstances to dissolve the court-martial either before or during the trial. The Strasbourg Court noted that all members of the court-martial fell within the chain of command of the Convening Officer with the result that the applicant’s doubts about the Tribunal’s independence and impartiality could be objectively justified.

This was another case in which the absence of safeguards led to the decision to uphold the complaint. That was the factor which explains why the convicted servicemen were successful in Findlay but failed in Spear. As I have explained, the four Strasbourg Court cases relied upon by Mr. Southey are radically different from the present case as there were no adequate safeguards, which would ensure the independence and impartiality of the decision-maker whose position was being challenged. I must now turn to the consider the House of Lords’ decision in Lawal v. Northern Spirit, which is a decision on which Mr. Southey also places reliance.

In this case, the House of Lords quashed a decision of the Employment Appeal Tribunal because counsel for one of the in front of that Tribunal was also a part-time member of that Tribunal and in that capacity he had previously sat as the legally-qualified member of the Tribunal with two lay members who while subsequently sitting on the Tribunal had made the decision under challenge.

The House of Lords considered that any fair-minded observer would consider that it was reasonably possible that the lay members, who had previously sat with counsel for one of the parties, might be subconsciously biased because of their association with that counsel. The Appellate Committee considered that this observer would be quite likely to approach the matter on the basis that the lay members looked to the judge (namely the part-time Chairman who was later counsel for one of the parties) for guidance on the law and that they could be expected to develop a fairly close relationship of trust and confidence with him. The basis of the Appellate Committee’s reasoning is that first such an observer would be likely to attach importance to the analogous practice in the Employment Tribunals forbidding part-time judges from appearing as counsel before an Employment Tribunal, which included lay members with whom they had previously sat and then second such an observer would also take the view that the same principle ought also to apply to the Employment Appeal Tribunal.

Mr. Southey accepts correctly that the facts in Lawal are not particularly relevant to the present case because, I assume, he accepts that Lawal was not dealing with the situation in the present case where a decision-maker was employed by one of the parties. Nevertheless, he submits that the approach in Lawal is instructive because of the conflict of interest rules which apply to other members of the Tribunal. In particular, he is referring to the provisions in the Mental Health Review Tribunal – Conflicts of Interest Guidelines, which relate to the position of a legal member sitting on a Tribunal and they state that a legal member must not sit:-

“2.5

at any hospital which he or she was employed, engaged or for whom he or she acted during the period of three years commencing with the date of termination of the employment or engagement or on ceasing to act. In respect of any other hospital within the same Trust and for any non-remunerated position in a Trust, the appropriate period should be two years”.

The position in respect of medical members, such as Dr. Izmeth, is different because these guidelines provide that he must not sit:-

“3.4

at any hospital in which he or she was employed or engaged during the period of five years commencing with the date of termination of the employment or engagement”.

Mr. Southey points to the last sentence of paragraph 2.5 and says that it is significant that a medical member, unlike a legal member, is not prevented for a period of two years from sitting in proceedings concerning any hospital within the same Trust and in respect of which he holds a “non-remunerated position”.

In response, Miss. Lieven points out that as a matter of general guidance to Tribunal members, it is provided that a medical member “shall not sit for a period of three years at any hospital within the Enlarged Trust at which he or she attends or has attended on a regular basis in a remunerated or non-remunerated position”.

She also explains that therefore there is no relevant difference between the position of medical and legal members employed by a Trust that is a party to a Tribunal hearing because the limitation for legal members in respect of any other hospital within the Trust only applies “for any non-remunerated position in a Trust”. The use of the words “non-remunerated position” are significant as, according to Miss. Lieven, they would cover a solicitor in private practice retained for a case, but they would not include somebody like Dr. Izmeth who was a consultant who held a remunerated position and not a “non-remunerated position” in the Trust.

Furthermore, as a result of an inquiry made by me, further information was provided by Mr. John Wright, a Regional Chairman of the Tribunal and which was subsequently contained in a witness statement signed by him in which he explained that the Trust would often instruct a solicitor to act for it to represent a hospital’s interest at a Tribunal and if such a person was subsequently a member of a subsequent Tribunal, an informed observer might think that this solicitor had an interest in accepting the Trust’s case “because of his or her perceived interest in whishing to remain instructed”. That explains the need for the inclusion of the last sentence in paragraph 2.5 for legal members but not for medical members.

I conclude that any fair-minded and informed person would take the view that insofar as there is difference between the treatment of medical members and legal members of the Tribunal, there was a good reason for it.

As I have already explained in paragraph 20 above, Rule 8 (2)(b) of the 1983 Rules provides that a person shall not be qualified to serve as a member of a Tribunal. Neither counsel is aware of any provision in the 1983 Rules or elsewhere that specifically defines the word “officer” in Rule 8(2)(b).

Mr. Southey argues by analogy that assistance can be found from Section 128 of the National Health Service Act 1977, which contains provisions regarding the interpretation of Part 1 of the National Health Service and Community Care Act 1990, which established National Health Service Trusts. Section 128 states that the word “officer includes servants” but that provision only relates to the Act in which it appears and it is not suggested that it applies expressly or impliedly to the 1983 Rules.

So Mr. Southey contends that in order to be an “officer”, there is no need for a person to hold an executive management position as was suggested by the Tribunal in its reasoning because the term “officer” includes a person with less responsibility and freedom to make decisions. So, he says, that Rule 8(2)(b) prohibits any employee of a Trust sitting on a Tribunal which is considering the case of a patient detained by the Trust or, at least, it provides a strong indication that an employee should not sit as it recognises that employees who have been classified as a “servant” should not sit.

Miss. Lieven disagrees and she contends that “officer” denotes clearly somebody who performs a managerial function. Indeed, she says that the word “officer” denotes somebody who gives instructions to others as to what they should do. A Consultant Psychiatrist employed by an NHS Trust would not fall within that definition of “officer”.

Miss. Lieven also contends that the purpose of Rule 8(2) is to prevent a breach of the rule against bias, which is now encapsulated in Article 6 of the Convention. It is correct that at the time when Rule 8(2) was enacted, enlarged trusts did not exist and so the assumption would have been that any NHS Trust would have only controlled one or possibly occasionally two hospitals.

She therefore says that Rule 8(2)(b) should now be interpreted, taking into account its purpose and the changing factual situation that has arisen so its ambit should be the same as Article 6. So Miss. Lieven contends that it would be illogical to construe Rule 8(2)(b) so that it would preclude members in the position of Dr. Izmeth from sitting on the Tribunal in cases where the court had found there had been no breach of Article 6. So she says that if there is a finding of no breach of Article 6, that is the end of the matter because the word “officer” should therefore be construed to mean somebody in the position of the executive management position with the Trust. She contends that achieves the purpose of Rule 8 in the light of Article 6. I accept that contention but a more potent point in her favour is the actual construction of the rules.

The starting point must be that the word “officer” in Rule 8 means a person who fulfils a managerial function. The New Shorter Oxford Dictionary defines an “officer”, amongst other things, as “a person holding office and taking part in the management or direction of a society or institution, especially one holding the office of President, Treasurer or Secretary” (Volume 2 page 1984). Thus an employee is not automatically an “officer” unless he or she is also a manager or office holder. The context of the word “officer” in Rule 8 does not suggest a different construction. I am fortified in coming to that conclusion by the approach of the Court of Appeal in Re A Company [1980] 1 CA 138, when it considered that even when not narrowly construing the word “officer” in the statute which it was construing, that word meant, in the context of that statute, “a person in a managerial position in regard to the company’s affairs” (per Lord Denning MR at page 143G with whom Shaw and Templeman LJJ agreed at pages 144D and 145B respectively). So Rule 8(2)(b) does not assist the claimant as Dr. Izmeth was not performing a managerial function and so he was not an “officer” within the meaning of that rule.

Obviously, any decision on whether there would be a real possibility of bias would depend on the particular facts of each case. The spectrum of facts are very great as is the extent of the potency of the safeguards to ensure the actual and perceived independence of the decision-maker.

All the authorities are by their nature fact-sensitive but it is possible to derive some principles from the decisions in the cases to which I have referred, which are that:-

In the light of those authorities, I must now stand back and consider whether the fair-minded and informed observer, who in the light of the authorities to which I have referred is neither complacent nor unduly sensitive nor suspicious would, having considered the facts of this case, conclude that there was a real possibility of bias. The observer’s starting point will be that there will have to be safeguards to show the independence of the judicial figure. I bear in mind Lord Hope’s instruction “to bear in mind the circumstances which have a bearing on the suggestion of bias”. I have concluded that the fair-minded observer would be satisfied that there was no real possibility that the Tribunal was biased for the following reasons, which individually or collectively compel me to reach that decision. Those reasons, which I do not place in order of importance, are that:-

Thus, to my mind the fair-minded and independent observer would conclude that there was no real possibility of bias on Dr. Izmeth’s part. Indeed, it is not easy to conceive of many cases in which there are more indicators of absence of bias than when a medical member of a Tribunal hears a case in which his or her employer is a party.

As I have explained, Miss. Lieven contends that in considering whether there is a breach of Article 6, I ought to take into account the consequences of finding such a breach. In support of that contention, she points out that in Piersach v. Belgium (1982) 5 EHRR 169, the Strasbourg Court considered the consequences of changing the system under challenge, which concerned the way in which judges were selected in Belgium in order to determine whether that system was fair. In that case, the applicant had been convicted of murder by a court presided over by a judge who when Senior Deputy Procurer had been in charge of the department which had decided to prosecute the applicant. The court referred to “the upheaval” that would be caused by changing the system. So Miss. Lieven says that I ought to look at all the consequences of allowing the claim.

In response, Mr. Southey points out that in Lawal v. Northern Spirit (supra), Lord Steyn pointed out that if the appeal was to be allowed in Lawal, it had been submitted that Employment Appeal Tribunal might lose the service of part-time judges who were experts in the field of employment law. He did not consider that consequence of his decision to be a relevant factor in reaching that decision because as counsel accepted in that case if “the present practice is in breach of the principle laid down in Porter v. Magill, it cannot continue” (at page 864[19]).

Lord Steyn was there saying that the task of a court is to see whether the Porter test has been satisfied to show bias and if it had, a court should not concern itself with the consequences. Indeed, it would be strange if the position were different, bearing in mind that the Porter test entails looking at matters through the eyes of an observer to see if there is a suspicion of bias. Thus, the consequences of that decision are not relevant and it is noteworthy that Miss. Lieven could not point to any case in which it was held that the consequences of a decision on bias were regarded as relevant by a court. In those circumstances, I do not propose to attach any importance to those consequences, but in case I am wrong, I must now explain that a significant consequence of medical members not being eligible to sit on Tribunals where their employing NHS Trust is responsible for detaining the patient would seriously and adversely effect the Tribunal’s ability to hear cases “speedily” as is required by Article 5(4) of the Convention.

In her witness statement, Mrs. Margaret Burn, the Head of the Mental Health Review Tribunal Secretariat at the Department of Health explained the pressures under which the Tribunal system now operates and the difficulties that would be caused by a ruling adverse to the Tribunal in this case. She points out that Article 5(4) imposes very onerous requirements on the Tribunal as it requires them to list cases quickly. Cases under Section 2 of the 1983 Act have to be heard within 7 days. In a series of cases, Stanley Burnton J found that there had been a breach of Article 5(4) because of delays in listing Tribunal hearings (R (KB, MK and Others) v. Mental Health Review Trust (2002) 5 CCLR 458). He subsequently assessed and awarded damages against the Tribunal (see R (KB) v. South London Mental Health Review Trust [2003] 3 WLR 185).

As a consequence of those decisions, Mrs. Burn explains that the Tribunal has done everything it can to streamline and expedite listing. The Tribunal hears an average of 24,000 cases a year and there has been an increase in applications of between 5% and 10% per year. More than 50% of the applications are withdrawn, adjourned, abandoned or the patient is released by the RMO. Therefore, late changes to the list are a daily problem. Mrs. Burn highlights a particular problem of running the Tribunals, which since 1998 is that of recruiting sufficient medical members. The Tribunal has been unable to recruit the required number of medical members to meet the rising workload. In 2001-03, London North and South had a 45% shortage of medical members which resulted in hundreds of hearings being delayed. In order to solve this problem, the Tribunal launched a co-ordinated recruitment drive. They also increased the fees payable to medical members so that the level of fees payable to medical members exceeded the BMA recommended fees in their latest increase.

As Mrs. Burn points out, there is a limit to the number of psychiatrists who can be recruited to be medical members and in her view, a plateau of potential doctors has now been reached. There are three significant restrictions on the availability of medical members. First, they are unwilling to travel considerable distances to reach Tribunal hearings and second, many have limited time available. Third, the pool of retired medical members is limited because many will not have undertaken the requisite post qualification training because after retirement, they will not have troubled themselves to go on the required courses.

Miss. Lieven in her skeleton argument submits rightly in my view, that it follows from Mrs. Burn’s evidence that the Tribunal system is operating either at or very near the edge of its capacity with the most important factor causing delays being the lack of medical members. It also follows that even with efforts being made to increase the number of medical members and to improve the listing, there is still a limit as to how much this can achieve.

It also seems that large regional NHS Trusts would have particular problems because if a breach of Article 6 is found in this case, the pool of available medical members for any Tribunal would diminish and in many cases, very significantly. Although it is clear that it is not the defendant’s case that there will be no medical members to sit, the consequence of a decision adverse to the Trust on this application is that members would consequently have to travel further so as to avoid sitting in the area in which they work and this would reduce their availability. It would also follow that more cases would have to be adjourned because no medical members are available. Therefore, I agree with Mr. John Wright, the Regional Chair, that an adverse ruling to the Tribunal in this case would have very serious adverse results for the system and it would make the Tribunals less capable of meeting their Article 5(4) requirements.

I agree with Miss. Lieven that it follows from Mrs. Burn’s evidence that the shortfall of medical members on the Tribunal is not simply a consequence of inadequate pay, but rather the result of the absence of adequate numbers of psychiatrists ready, willing and able to sit on Tribunals to cover the cases. This shortfall would be aggravated if members cannot sit on a case within the enlarged Trust which employs them. So if, contrary to my view, this evidence relating to the consequence of upholding the claimant’s complaint is admissible, these matters constitute an additional ground for dismissing the claim.

Thus, notwithstanding Mr. Southey’s able submissions, this application must be dismissed.