OO v Central and North West London NHS Foundation Trust & Anor

This case is about the issue of “equality of arms” in terms of expert evidence at mental health tribunals, and in what circumstances fairness might necessitate adjourning to give a patient an effective opportunity to challenge the detaining authority’s case.

OO is a detained patient with a diagnosis of paranoid schizophrenia and a long history of compulsory detention in psychiatric hospitals, convictions for sexual offences and recalls from conditional discharge.

He is currently detained at The Riverside Centre under the terms of a hospital order (under section 37 of the Mental Health Act 1983 (“MHA 1983”)) with a restriction order (under section 41 MHA 1983) made on 11 January 2010.

On 12 November 2021, while subject to a conditional discharge, OO was arrested for a sexual offence. On 26 February 2022 he was admitted to hospital under section 2 MHA 1983. On 8 March 2022 the Secretary of State recalled OO to detention in hospital pursuant to his discretion under section 42(3) MHA 1983.

Since OO had not exercised his right to apply to the mental health tribunal to have his section reviewed, on 9 March 2022 the Secretary of State made a referral to the First-tier Tribunal pursuant to his duty under section 75(1)(a) MHA 1983. These proceedings arise from that reference.

On 31 May 2022 OO was convicted following a trial of an offence of sexual assault on a female contrary to section 3 of the Sexual Offences Act 2003 and was made subject to a restricted hospital order under sections 37 and 41 MHA 1983.

This means that OO is now subject to two separate restricted hospital orders. Each such order gives rise to a right for OO to apply to the First-tier Tribunal for a review of his detention.

The hearing of the reference was adjourned or postponed several times for various reasons. The two most important decisions made by the First-tier Tribunal in relation to this reference were those made by the three-member panel of the First-tier Tribunal which convened to hear the reference on 13 July 2022, adjourned part-heard, and reconvened on 29 November 2022 (the “Tribunal”).

The decisions made by the Tribunal on those two dates comprise the decision on the reference (the “FtT Decision”). The upshot of the FtT Decision was that the statutory conditions to OO’s continued detention were satisfied and OO should remain in hospital.

The Tribunal recorded Dr Padayatchi,, OO’s then responsible clinician, as having said that she was in agreement with the assessment of Dr Kottalgi (a consultant forensic psychiatrist) that OO could be conditionally discharged. She was “confident that it will be possible to put in place a suitable care package in the community which will permit safe management of the risks” and she “did not think that testing by unescorted leave” was a necessary preliminary to discharge”. However, three obstacles lay in the way of an immediate conditional discharge:

Rather than order a deferred conditional discharge, the Tribunal decided to adjourn the matter and make directions for the provision of further information because it could see that “with further information and clarification an immediate or deferred conditional discharge might be appropriate, which is what the care team suggest” (see paragraph [6] of the 13 July 2022 decision notice).

The matter was listed for hearing on 29 November 2022. In the reports prepared for that hearing, the team caring for OO indicated their continued support for the grant of a conditional discharge, albeit that it was considered that the discharge may need to be deferred due to matters related to OO’s sentencing for the 31 May 2022 conviction (see paragraph [2] of the 5 December 2022 decision notice).

Given the in-patient team’s apparent support for his being granted an immediate or deferred conditional discharge, OO decided on advice from his solicitor not to instruct an independent expert psychiatrist.

However, in the days immediately preceding the scheduled hearing there was a series of significant developments:

On Tuesday 29 November 2022 the Tribunal reconvened.

OO attended the hearing, represented by Mr Nicholas, and he and his sister gave evidence. Dr Nyein and Nurse Patrick Iwu attended and gave evidence on behalf of the responsible authority. Dami Solamin (a forensic social worker from Brent’s adult social care team) also attended and gave evidence.

At the beginning of the hearing the responsible authority applied for an adjournment on the same basis as its earlier applications for postponement, and this application was gain supported by Mr Nicholas on behalf of OO, with additional reasons. This application for an adjournment was also refused.

Mr Nicholas then made an application for an adjournment on OO’s behalf at the end of the hearing, but this too was refused. The Tribunal went on to make its decision on the Secretary of State’s reference. The Tribunal recorded the reasons for its decision in a decision with reasons dated 5 December 2022 (the “FtT Decision Notice”).

From what it says in the FtT Decision Notice, it appears that the Tribunal was under the misapprehension that all the applications for postponement/adjournment were made on behalf of OO. However, it is apparent from the documents in the bundle that all but the final adjournment application (made by Mr Nicholas on behalf of OO at the end of the hearing) were in fact made by the responsible authority. I am satisfied that, to the extent that the Tribunal did indeed labour under this misapprehension and in doing so it was in error of law, such error was not material. I mention this only to avoid confusion.

The Tribunal explained its decision making on the adjournment applications as follows:

The upshot of the FtT Decision was that the Tribunal upheld OO’s section.

OO applied for permission to appeal the FtT Decision to the Upper Tribunal. Having been unsuccessful in his application to the First-tier Tribunal, he renewed his application to the Upper Tribunal and the matter came before me.

I directed an oral hearing of the permission application, at which Mr Pezzani represented OO. Neither Respondent was represented at the hearing.

I decided to allow the application. In my grant of permission, I explained my reasons as follows:

I directed a remote oral hearing of the substantive appeal, which took place on the Cloud Video Platform. Mr Pezzani represented OO. Neither Respondent was represented at the hearing, although each produced a brief written submission.

By the date of the hearing OO had been sentenced in respect of the sexual offence of which he had been convicted on 31 May 2022. For that conviction he received another hospital order with a restriction order (section 37/41).

Following the hearing, I directed the parties to make written submissions on the issue of relief (should I decide to allow the appeal), which they duly did.

Mr Pezzani, on behalf of OO, argued for the setting aside of the FtT Decision and the remittal of the matter to the First-tier Tribunal for re-hearing on the basis that OO had not yet had the lawful judicial consideration of his detention to which he was entitled, and any other result would not be just. He did not argue for the remaking of the FtT Decision by the Upper Tribunal.

Weightmans LLP, on behalf of the First Respondent, took a neutral position on the appeal.

Ms Munley of the Mental Health Casework Section of the Ministry of Justice, for the Second Respondent, made a written submission to the effect that should the appeal be allowed and the matter remitted to the First-tier Tribunal for re-hearing, the Secretary of State was willing to make a discretionary referral in relation to the second detention authority.

Mr Pezzani acknowledged that, as a practical matter, the First-tier Tribunal could be expected to consolidate multiple applications/references under rule 5(3)(b) (see paragraph [33] below).

MHA 1983 provides, so far as is relevant for the purposes of this appeal:

Proceedings in the First-tier Tribunal are governed by the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the “FtT Rules”), made pursuant to the Tribunals, Courts and Enforcement Act 2007 (the “TCEA 2007”). The FtT Rules provide, in so far as relevant to the issues in this appeal:

A reference made by the Secretary of State under section 75(1)(a) MHA 1983 has two consequences:

After his recall, OO had a statutory and Convention right to an effective judicial determination of his right to liberty. In this context, ‘effective’ must equate to lawful (or free of material error).

Believing that the entire care team supported his conditional discharge, OO decided not to instruct an independent psychiatrist to provide evidence to the Tribunal. That was a perfectly reasonable position for him to take given the contents of the reports that had been produced by consultant forensic psychiatrist Dr Kottalgi (report dated 12 May 2022) and OO’s then responsible clinician, Dr Padayatchi (report dated 9 September 2022), recommending conditional discharge. Generally, the courts discourage a proliferation of experts and reports, and indeed the overriding objective requires cases to be dealt with in ways that are proportionate (rule 2(2)(a) of the FtT Rules). No criticism can be made of OO’s decision not to instruct an independent expert.

However, just because the members of the team caring for OO had previously indicated their support for his discharge doesn’t mean they were bound to maintain that position: they were entitled to change their recommendations, whether due to a deterioration in OO’s mental disorder (and attendant change in his risk profile), or because it is discovered that the aftercare that would be available to OO in the community is less comprehensive than previously assumed, or simply because they changed their mind.

In this case there was no deterioration in OO’s mental state, and there were no reports of significant incidents giving rise to concerns about OO’s health or safety, or about the safety of other persons (as confirmed in paragraph [6] of the Tribunal’s reasons). Rather, the change in position was prompted by OO’s new responsible clinician, Dr Nyein, being influenced by the opinions of two other experts: Dr Brown (a consultant forensic psychiatrist in the West London Forensic Team) and Dr Baruah (another psychiatrist in the community forensic team).

On 20 November 2022 Dr Brown issued a report in connection with OO’s Crown Court proceedings (“Dr Brown’s Report”), which opined that OO was not suitable for a community placement.

This precipitated the issue of an addendum psychiatric report by Dr Nyein, which relied upon Dr Brown’s Report and opposed OO’s discharge. As explained above, there was a flurry of applications to postpone or adjourn the hearing of the reference in the light of the change in the responsible clinician’s position, but these were all refused.

The very significant change in the responsible clinician’s position so close to the hearing of the reference (Dr Nyein’s addendum report was received by OO’s representative only one working day prior to the hearing), coupled with the refusal of the applications for postponement or adjournment of the hearing, meant that OO was hindered in his ability to mount an effective challenge to the case for his continued detention.

There are two aspects to the challenge facing OO: first, the issue of “equality of arms” in terms of expert evidence, and second, the lack of opportunity to challenge the evidence of some of the experts upon whom the detaining authority (and the Tribunal) relied. I shall deal with these aspects in turn.

The importance of the principle of parity inter partes in matters of forensic science is almost as old as modern science itself. This aspect of procedural fairness was given judicial recognition by Lord Mansfield CJ in Folkes v Chadd (1782) 3 Doug 157 at [159]:

MHA 1983 also makes express provision for the exercise of a patient’s right to independent medical advice in section 76 MHA 1983 (see paragraph [31] above), as well as providing in section 129 MHA 1983 for criminal sanctions for those who obstruct the exercise of those rights (see paragraph [31] above).

In Matytsina v Russia [2014] ECHR 334 the European Court of Human Rights considered this issue in the context of the Article 6 right to a fair trial, and concluded in similar terms:

In the context of MHA 1983 this principle has particular importance because the statutory criteria to continued detention of patients set out in section 72(1)(b) (see paragraph [31] above) relate to clinical matters: diagnosis, prognosis, nature and degree, necessity of medical treatment, and whether such treatment is available in the hospital where the patient is detained.

It is clear from the Tribunal’s reasons that significant reliance was placed upon the evidence of Dr Brown and of Dr Baruah, both by the witnesses at the hearing who argued for OO’s continued detention (Dr Nyein and Mr Solarin), as well as the Tribunal itself. Indeed, reference is made not only to “reliance” but also to “deference”. In paragraph [11] of the Tribunal’s reasons it is stated:

Reliance was also placed on an email written by Dr Baruah to Dr Nyein on 7 November 2022. The only mention of Mr Solarin’s evidence in the FtT Decision is a reference to his having “relied upon views expressed by Dr Baruah” (see paragraph [13] of the Tribunal’s reasons).

However, neither Dr Brown nor Dr Baruah was present at the 29 November 2022 hearing.

Even putting to one side the question whether OO should have been given the opportunity to instruct an independent forensic psychiatrist so that he would enjoy “equality of arms” with the detaining authority, this raises the issue whether a hearing at which neither Dr Brown nor Dr Baruah were present and available for questioning gave OO an adequate opportunity to test the expert evidence that underpinned the decision to uphold his section.

Because Dr Nyein and Mr Solarin, the two witnesses who spoke in favour of continued detention, deferred to the evidence of other experts who were not present, the opportunity that the hearing gave for Mr Nicholas to probe their evidence was of limited value. What fairness required was for Mr Nicholas to have the opportunity to question Dr Brown and Dr Baruah, as their evidence underpinned the evidence of Dr Nyein and Mr Solarin. However, neither was made available. This meant OO was denied an effective opportunity to test the case for continued detention.

Under rule 5 of the FtT Rules, the Tribunal had very broad case management powers, including a broad discretion as to how to determine applications for postponements and adjournments. Generally, the Upper Tribunal is slow to interfere with a tribunal’s exercise of its discretion in such matters. However, such decisions can sometimes give rise to significant procedural unfairness, and in such circumstances intervention by the Upper Tribunal may be appropriate.

I am satisfied that this is such a case because 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 (a ‘man/woman of science’) whose opinion may have differed from the opinions of Dr Brown and Dr Baruah, and because it also denied him the opportunity to question those key witnesses. This meant that there was an imbalance in favour of the detaining authority, and this imbalance rendered the proceedings unfair.

OO is subject to two restricted hospital orders. Each of those restricted hospital orders brings a right to apply to the First-tier Tribunal for a review. OO has not exercised his right to apply to the First-tier Tribunal pending the outcome of this appeal.

Given OO’s right to apply to the First-tier Tribunal for review of his section, this appeal against the determination of the Secretary of State’s reference could be characterised as somewhat academic. However, the principle raised by the appeal is an important one. Because of the deficiencies identified above, OO was denied an effective judicial determination of his right to liberty following the 8th March 2022 recall which the MHA 1983 (and Article 6 of the Convention) requires. This may well have implications in respect of Article 5(4) of the Convention, because the right of appeal to the First-tier Tribunal forms part of a detained patient’s network of effective access to the courts, which was what Keene LJ found made s.75(1) MHA 1983 compliant with Article 5(4) of the Convention in Secretary of State for Justice v Rayner [2008] EWCA Civ 176 (see paragraphs [45] and [46]).

OO has a right to apply to the FTT in relation to both the 2010 and the 2023 restricted hospital orders (the s.70(1)(a) 6-month period having now passed in both), but those rights to apply do not provide a remedy to an error of law in the decision that this appeal concerns. In R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 WLR 123, Singh LJ rejected an approach that “assumes that fairness is not required at an earlier decision-making stage simply because fairness is required at a later decision-making stage”:

Where a patient is subject to concurrent restricted hospital orders, and so has multiple rights to apply and/or have his case referred to the Tribunal, there is always a Gordian knot of potential procedural complications. But the First-tier Tribunal and the Secretary of State for Justice have the procedural tools to deal with anything that arises.

The First-tier Tribunal has a discretion to consolidate multiple sets of proceedings under r.5(3)(b) of the FtT Rules, and the Secretary of State has discretions in s.42(1) and (2) MHA to discharge a patient from liability to detention under a restricted hospital order, whether conditionally or absolutely.

It is unlikely that the First-tier Tribunal would end up making a decision in relation to only one of the two restricted hospital orders, but even if it did, and it decided that OO was entitled to discharge, the Secretary of State would have a discretion to discharge in relation to the other restriction order.

I presume that all those discretions will be exercised rationally and in accordance with OO's fundamental rights.

The appropriate remedy is set aside and remittal under s.12(2)(b)(i) of the TCEA 2007, which will result in OO having the hearing that the MHA 1983 requires him to have, albeit late.