DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.

The decision of the First-tier Tribunal (Health, Education and Social Care) dated 1 November 2011 under case reference MP/2011/09169 does not involve an error on a point of law.  The decision of the tribunal stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

Introduction
1.	This is an appeal against a decision of the First-tier Tribunal (FTT) of the Health, Education and Social Care (HESC) Chamber in the mental health jurisdiction. The appeal is brought on the ground of an alleged breach of natural justice. It is argued that certain comments of the FTT’s psychiatrist member in the course of the hearing demonstrated bias. This is said to be on the basis either that the panel doctor had a preconceived and concluded view (actual bias) on a live issue in the appeal or that he had expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias).

2.	For the reasons that follow, I have decided that there was no breach of natural justice and so no error of law in the FTT’s decision. It follows that the tribunal’s decision stands.

3.	The final FTT hearing took place on 1 November 2011. It is unfortunate that the appeal at this level has taken so long to resolve, but that is through no fault of the parties. I originally gave permission to appeal in January 2012. In May 2012 I directed an oral hearing of the appeal, at the Appellant’s request. In July 2012 the Appellant’s solicitors indicated that due to difficulties with public funding a hearing on the papers was preferred. Since then an increase in the Upper Tribunal’s caseload has led to a backlog in dealing with appeals. I am sorry for the delay and inconvenience caused.

The grant of permission to appeal
4.	I gave permission to appeal in the following terms:

“1. The appellant’s sole ground of appeal, now confined to the alleged breach of natural justice, is arguable and merits exploration.

2. Before determining the appeal proper, it would be helpful for me to have a clearer picture of the proceedings that took place at the hearing on 1 November 2011 and in particular the exchange between the medical member of the First-tier Tribunal (FTT) and the responsible clinician (RC), along with the intervention by the applicant’s solicitor. I accordingly make the directions below, directing the production of a copy of the Judge’s notes or record of proceedings and in addition a statement setting out his recollection of events.  

3. According to the grounds of appeal (at paragraph [13]), the FTT medical member addressed the statutory criteria with the RC (Dr M) briefly and then examined her in more detail:

‘…After discussing the diagnosis of Schizoaffective Disorder in some detail, the questioning moved onto the criterion of “nature”.  The Medical Member then asked, rhetorically, “you say you are relying on nature?” and then went on to say:

	“I have no issues with the nature; it is chronic, relapsing, etcetera.”

The solicitor representing the Appellant, Mr Keith Clarke, waited until the Tribunal’s examination of Dr M has concluded, then requested that the medical member clarify his statement, particularly whether he had already formed a view on this issue.  The Tribunal Judge advised Mr Clarke that he “would not permit cross-examination of the Medical Member”…’

4. There may be an issue here as to whether the point should have been pursued further either then or later in the hearing (e.g. in closing submissions), as the grounds of appeal anticipate (see further on this point e.g. Stansbury v Datapulse plc [2004] ICR 523 at [23]-[24], Birmingham CC v Yardley [2004] EWCA Civ 1756 at [27]-[31] and Steadman-Byrne v Amjad [2007] EWCA Civ 625 at [17]).”

What actually happened at the FTT hearing?
5.	The Appellant was a patient liable to be detained under section 37 of the Mental Health Act 1983 and subject to a restriction order under section 41. The FTT was hearing the Appellant’s application that he be absolutely discharged (or, in the alternative, conditionally discharged). The FTT decided that he should not be so discharged.

6.	When I gave permission to appeal, I anticipated that there might be some disagreement as to what had actually happened at the hearing, and particularly as regards the exchange concerned with the psychiatrist member, Dr Hussain. I therefore asked the FTT Judge (Judge Pulman QC) to provide a statement as to his recollection of events. Judge Pulman’s very helpful statement included as annexes his note of the evidence of the Responsible Clinician (the RC, Dr Mezey), the written submission by the Appellant’s solicitor (Mr Clarke) and the report by the independent expert (Dr Azuonye) who had been instructed by the Appellant. The Judge also explained that the hearing took place over three days: 3 October 2011, 17 October 2011 and 1 November 2011. Dr Mezey had given evidence on 3 October 2011 and her evidence had concluded on 17 October 2011. The Appellant had left the hearing on the second day and had declined to attend on the final day (1 November 2011), although the FTT had his solicitor’s written submissions.

7.	The Judge explained that the exchange in question took place on the first day that the FTT sat. The Judge’s statement describes the incident as follows:

	“3. My note of the evidence is deficient because I have not noted Mr Clarke’s attempt to question Dr Hussain. But Mr Clarke’s note accords with my memory of an unusual application. Dr Hussain did say something like ‘I have no issue with nature; it is chronic, relapsing etc.’.

4. Mr Clarke is right that I said ‘I will not permit cross-examination of Dr Hussain’; and that this was during the evidence of Dr Mezey at the end of the questions by the tribunal and before he had started his cross-examination of Dr Mezey.

5. Mr Clarke was wrong to interrupt the evidence of the RC Dr Mezey by starting to cross-examine Dr Hussain. That is why I stopped him, before Dr Hussain could answer. Mr Clarke should have finished his cross-examination of Dr Mezey. Only after Dr Mezey had completed her evidence should he then, or later, have raised the issue with me as Tribunal judge, seeking my direction as to how the matter should be resolved.”

8.	Dr Mezey has also helpfully written to the Upper Tribunal, but explaining that she has no real recollection of the exchange. She adds:

“I certainly do not recall any untoward inappropriate comments being made by the independent mental health professional on the panel with respect to implying that he had pre-judged the case before hearing the evidence. He had obviously formed an opinion as one would expect from a professional member which was within his area of expertise. However, there was no indication that this opinion was fixed and flexible.”

9.	Given the Tribunal Judge’s comments at paragraphs 3 and 4 of his statement (see paragraph 7 above), it appears that there is actually no real factual dispute over what was said. The issue on this appeal is the legal consequences, if any, that flow from that exchange.

The Appellant’s case 
10.	The Appellant’s case is straightforward. It is argued that the comment of Dr Hussain represented a concluded view, or at the very least gave rise to a reasonable apprehension that he had formed a concluded view, as to the criterion of “nature” under section 72(1)(b)(i) of the Mental Health Act 1983. Mr Clarke argues that this was more than simply a provisional view – the RC had not finished giving her evidence, let alone been cross-examined, and yet the medical member had effectively foreclosed coming to any conclusion other than that the issue of “nature” was satisfied. As such, it is argued, there was an obvious breach of natural justice. In doing so, Mr Clarke relies on the decisions of Stanley Burnton J in R on the application of S v MHRT and the Department of Health [2002] EWHC 2522 (Admin) (especially at [22], [23] and [32]) and of Judge Levenson in MB v BEH MH NHST and Secretary of State for Justice [2011] UKUT 328 (AAC).

The Respondents’ case
11.	The Respondents have not really made any case before the Upper Tribunal. Dr Mezey, the RC for the First Respondent, has given her own personal account of what took place, to the best of her ability. The Ministry of Justice, acting for the Second Respondent, has taken the view that the particular issue arising on appeal now does not require its input. The Third Respondent has only become involved because the Appellant has been transferred to a different hospital, and so had no involvement at the time concerned. This is, however, an inquisitorial jurisdiction. The argument against the Appellant’s case can best be divined from the FTT’s refusal of the application for permission to appeal.

The First-tier Tribunal’s refusal of permission to appeal
12.	FTT Judge Chamberlain dealt with the original application for permission to appeal. Very sensibly he did not seek at that stage to delay matters by investigating whether or not the Appellant’s account of the exchange was agreed. Instead, he simply assumed that the record was accurate. He referred to the two authorities cited by Mr Clarke and then continued:

“I consider that the remarks said to have been made by the medical member are not objectionable, according to the criteria set out in the 2002 case; even if they do express a view as to ‘nature’, there is nothing to suggest that it is not a provisional view, ‘liable to be challenged by the evidence produced and the submissions of the parties’; it is not a view as to discharge, but merely as to a single element within the criteria; many patients are discharged even if ‘nature’ is found to exist; the comment of the medical member was made at an early stage of the proceedings, and the reliance by the RC on ‘nature’ was challenged by the patient’s expert, as is apparent from paragraph 5 of the decision; it is further apparent from paragraphs 5 and 12 of the decision that the Tribunal gave the most careful consideration to the issue of ‘nature’.”

The Upper Tribunal’s analysis
The waiver point
13.	The Appellant’s further submissions on the appeal are for the most part concerned with challenging the argument that the Appellant had in some way waived the right to raise a ground of appeal based on apparent bias. This is entirely understandable given that the point was referred to by me in the grant of permission to appeal (at paragraph [4]; see paragraph 4 above). In addition, the Tribunal Judge, in his statement, notes that in his view there were several opportunities later on in the proceedings for the matter to have been raised, and that it would be unusual to permit a point to be raised on appeal when it could have been argued below. Mr Clarke, by way of reply, argues that (i) the matter was in any event raised with the FTT; (ii) the FTT Judge gave the very clear impression the matter would not be entertained; and (iii) the FTT Judge’s statement now makes it plain that had the point been taken, he would have dismissed it as being without merit.

14.	I do not think I need to resolve this matter. I bear in mind that this is an inquisitorial jurisdiction. In all the circumstances it is better to deal with the natural justice challenge on its merits rather than for it possibly to be determined by a side-wind on a technical question of waiver.

The submissions on behalf of the Appellant
15.	The Appellant’s case is outlined at paragraph 10 above. I also take into account the three main points made by Mr Clarke in dealing with the matters raised by Tribunal Judge Chamberlain when refusing permission to appeal on behalf of the FTT. 

16.	First, Mr Clarke argues that the FTT Judge has interpreted the test in R on the application of S v MHRT and the Department of Health too narrowly, in that even if the medical member did not in fact express a concluded view, his comments gave rise to a reasonable apprehension that he had a preconceived concluded opinion.

17.	Second, it is argued that the FTT Judge refusing permission was wrong to dismiss the challenge as being “merely” as to one constituent element in the overall test, rather than as to the final decision on discharge. Thus “nature” was a fundamental aspect of the Appellant’s case – and indeed the FTT panel itself had accepted that “degree” was not established (paragraph [11] of its reasons).

18.	Third, it is said that Tribunal Judge Chamberlain was wrong to place any weight on the fact that the comment occurred at an early stage of the proceedings and that the question of “nature” was in any event later challenged in the evidence of the independent psychiatrist.

The case law
19.	According to Stanley Burnton J in R on the application of S v MHRT and the Department of Health [2002] EWHC 2522 (Admin), “the forming of an opinion before the hearing is normally objectionable only if it is not provisional, liable to be changed by the evidence adduced and the submissions of the parties, but is firm and concluded: in which case the hearing is an ineffective charade” (at paragraph 22). Stanley Burnton J concluded (at paragraph 32) as follows:

“In my judgment, ‘due impartiality’ in the present context requires a member of a tribunal not to have a preconceived concluded opinion on the merits of the applicant's case. The European Court did not suggest that a provisional view formed before the commencement of the hearing is objectionable. If an otherwise impartial and independent member of a tribunal has a preconceived concluded opinion, or if he expresses himself in such a way as to give rise to reasonable apprehension that he has a preconceived concluded opinion, he lacks the necessary impartiality, but not otherwise.”

20.	As Judge Levenson has explained more recently in MB v BEH MH NHST and Secretary of State for Justice [2011] UKUT 328 (AAC), the presiding Judge at the FTT hearing in that case had “clearly indicated that the application for discharge had no prospect of success” (paragraph 15; see also paragraph 8 where the FTT judge was reported as saying “Having heard the evidence of the responsible clinician, it is unlikely that we would discharge the patient today” and inviting the patient to withdraw the application). On those facts, Judge Levenson found that there was a breach of natural justice, agreeing with counsel for the appellant that the presiding Judge had

“... ‘expressed himself in such a way as to give rise to reasonable apprehension that he had formed a preconceived concluded opinion … [the appellant] was effectively told that he should give up. It was an indication by the tribunal that he had no possibility of success’. In my opinion this did amount to a breach of the rules of natural justice and fair procedure in that (albeit for reasonable motives) the appellant was effectively denied a proper opportunity to put his case” (at paragraph 18).

21.	Although not referred to in the submissions on this appeal, I note that the High Court in Northern Ireland has helpfully reviewed the earlier authorities in MW, Re Application for Judicial Review [2008] NIQB 75. Dismissing that application for judicial review, Weatherup J summarised the position in this way:

“[24] It is inevitable in a decision-making process by a single decision-maker or a panel of decision-makers that some views may be formed on a preliminary basis as to the issues in the particular case. What is important is that such views as are formed must be preliminary and a concluded view must not be reached. The view is preliminary to whatever emerges in the course of the hearing and the decision maker must retain an open mind until the conclusion of the hearing. In that event a decision maker cannot be faulted if it is disclosed that a preliminary view has been formed and the nature of that preliminary view is revealed. Indeed, it is not uncommon for a Judge to disclose that he or she is minded to take a specified course and await the response of the representatives of the parties: of course the Judge may be persuaded otherwise and while remaining open to persuasion cannot be faulted for having formed what must be a preliminary view. It would be artificial to require any Tribunal member, including a medical member of a Tribunal, not to consider a preliminary view on the issues before the Tribunal, including the ultimate issue for decision. There may be cases where the decision maker is unable to form a preliminary view, but if the decision maker feels able to do so they cannot be criticised, provided they do not reach a concluded view in advance of the conclusion of the hearing.”

The natural justice challenge on the facts of this case
22.	In his submissions Mr Clarke rightly accepted that the facts of the present case were not as “emphatic” as those in MB v BEH MH NHST, but argued that the effect was the same, namely to tell the Appellant that he could not succeed on the “nature” criterion and that the issue was effectively closed. Tribunal Judge Chamberlain distinguished that case as “wholly different in kind and degree from the comment said to have been made by the medical member in the current case”. I agree with both the conclusion and reasoning of Tribunal Judge Chamberlain.

23.	My main reason for so doing is that I accept the further explanation provided by the FTT Judge who presided at the hearing. Judge Pulman points out that at that stage in the proceedings, Dr Azuonye had not actually put “nature” squarely in issue. Dr Hussain’s comments involved reading almost word for word what Dr Azuonye had said in his own report, in particular the statement there that “Chronicity of the mental disorder: His illness is enduring, severe and relapsing” (p.12 of 22 at para.13.2.b). It is true that later in the same report Dr Azuonye asserted that the Appellant’s mental disorder was “not now of a nature or degree making it appropriate for him to be detained in hospital”, but that is not an accurate portrayal of the relevant statutory test.

24.	A natural justice challenge has to be assessed in the light of all the circumstances of the case. It is fact- and context-specific. A tribunal hearing is not static – this was a case that went part heard over three days over the course of a month. Dr Hussain’s comment was made on the first day and was entirely justified on the evidence as it then stood. Mr Clarke argues that the proceedings are inquisitorial, not adversarial, and so the issue of “nature” was live even at this stage, whatever the terms of Dr Azuonye’s written report. I do not agree. Certainly the FTT in its mental health jurisdiction exercises an inquisitorial function. However, this was a case in which the Appellant had both professional legal representation and an independently commissioned medical report. The FTT panel, and Dr Hussain in particular, were entitled to proceed on the basis that they did at that time.

25.	It therefore follows that I am not persuaded by any of Mr Clarke’s three arguments (at paragraphs 16-18 above).  As to the first, for reason given above, I am satisfied that there was neither actual nor apparent bias. As to the second, that ground necessarily falls away in the light of the explanation above. The third argument also takes the Appellant’s case no further forward.

26.	My conclusion is that I am satisfied that the fair minded and informed observer would not consider that there was a real possibility of bias. Dr Hussain had not reached, and there was no real possibility that the fair minded and informed observer would consider that he had reached, a concluded view on either the nature of the Appellant’s mental health condition or the ultimate question of discharge at this stage of the hearing. He was simply exploring the evidence. That conclusion is also supported by Dr Mezey’s recollection that there were no untoward comments.

27.	The real issue in this case was the clear conflict between the evidence of Dr Mezey (who said that the Appellant remained unfit to be discharged) and the evidence of Dr Azuonye (who said that he should be absolutely discharged). The FTT, of course, did not hear oral evidence from the Appellant himself, as he had elected not to attend the last day. It was the FTT’s task to resolve that conflict of evidence and to say which expert they believed and why. The FTT devoted at least 3 pages of its decision, giving instances, to explaining why they preferred the evidence of Dr Mezey, concluding that they found the evidence of Dr Azuonye “unconvincing ... partial and unsatisfactory”. As Tribunal Judge Chamberlain noted, the reasons are “given in forthright detail”. This appeal is, in effect, an attempt to go behind that comprehensively and cogently reasoned decision. It fails for the reasons identified above.

Conclusion
28.		The decision of the First-tier Tribunal does not involve any material error of law. I must therefore dismiss the appeal (Tribunals, Courts and Enforcement Act 2007, section 11).  

29.	I note from the correspondence on file that the Appellant has a further FTT hearing on a new application for discharge scheduled for 25 February 2013. That hearing can now take place in the knowledge that the previous FTT decision stands.

Signed on the original				Nicholas Wikeley
on 28 January 2013					Judge of the Upper Tribunal