England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OFJUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th March 2004

Lord Phillips, MR :

This is the judgment of the court.

Introduction

1. The appellant, 'D', has been detained under section 3 of the Mental Health Act 1983 ('the Act') since 19 October 1994. He is presently detained in the Rathbone Hospital in Liverpool, which is part of the Mersey Care National Health Service Trust ('the Trust'). He applied to the respondent, the West Midlands and North West Mental Health Review Tribunal ('the Tribunal') to be discharged. The Tribunal met to hear his application on 16 October 2002. The medical member of the Tribunal was Dr Izmeth. Dr Izmeth was employed by the Trust as a consultant psychiatrist at the Hesketh Centre in Southport. The solicitor acting for D sought a preliminary ruling that Dr Izmeth should be disqualified from considering D's case as he was employed by the Trust. The Chair of the Tribunal ruled that Dr Izmeth was not disqualified.
2. The Tribunal went on to dismiss D's application to be discharged. They held that they were satisfied that D was suffering from schizophrenia and that the criteria necessary for detention under section 3 were established.
3. D commenced proceedings for judicial review, with permission granted by Gibbs J. He sought an order quashing the Tribunal's decision on the ground that there was an appearance that Dr Izmeth was biased. The application came before Silber J who, on 22 October 2003, gave a judgment dismissing it. Against that judgment D now appeals, with the permission of Hale LJ.

The facts

4. We will adopt the judge's summary of the material facts, which are not in dispute.

"4. The Trust 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.

5. The other Adult Mental Health Directorate of Mersey Care is in the geographical area of Sefton and Knowsley which … encompasses … the Hesketh Centre where Dr Izmeth worked."

"7. 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 the Trust, which has been established on 1 April 2001 to provide specialist mental health and learning disability services.

8. The services provided by the Trust 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.

9. 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.

10. Dr Izmeth stated in his witness statement that prior to the Tribunal hearing, he had never had any real practical connection with any hospital covered by the Trust 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 stated 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."

The law

5. Having set out the facts, the judge went on to summarise the relevant legal principles. He observed that both Article 6 of the European Convention on Human Rights and principles of natural justice recognised by our domestic public law are in play. The right to liberty is a civil right protected by Article 6 – Aerts v Belgium (1998) 29 EHRR 50 at paragraph 59. Article 6 requires 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…"

Our public law also requires that a Mental Health Review Tribunal should be composed of members who neither are, nor appear to be, biased. Under each system of law the test of apparent bias is the same – see Lawal v Northern Spirit Limited [2003] UKHL 35; [2004] 1 All ER 187 at paragraph 14 per Steyn LJ.

6. Silber J summarised the relevant principles to be deduced from recent authorities as follows:

"(a) in order to determine whether there was bias in a case where actual bias is not alleged "the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased" (per Lord hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494 [103]). It follows that this exercise entails consideration of all the relevant facts as "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased" (ibid [104]).

(b) "Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson [2000] 200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"" (per Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856, 862 [14]).

(c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situations. "One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem" (Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 [15]).

(d) the approach of the court is that "one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule" (per Lord Steyn in Lawal v Northern Spirit Limited (supra) 864-5 [20])

(e) the need for a Tribunal to be impartial and independent means that "it must also be impartial for an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect" (Findlay v United Kingdom (1997) 24 EHRR 221 at 224-245 and quoted with approval by Lord Bingham of Cornhill in R v Spear [2003] 1 AC 734 [8])."

7. Mr Timothy King QC, who appeared before us, leading Mr Southey, on behalf of D, accepted that the judge had correctly set out the relevant principles, subject to one reservation. He submitted that the judge had placed too much emphasis on the need for there to be "sufficient guarantees" of a tribunal's impartiality. This was not so much a criticism of the judge's formulation of the legal principles as a criticism of the manner in which he subsequently applied them in his judgment.
8. We would endorse the judge's summary of the relevant legal principles. We would add only this comment in relation to the judge's statement that one must consider a case where unconscious bias is alleged by examining "other similar analogous situations". Lord Steyn stated that these "may arguably throw light on the problem". The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focussing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window.
9. In the present case files containing no less than 21 authorities have been placed before us, despite the fact that the approach in law is not in dispute. We have not found this weight of authority necessary or helpful.
10. In the court below Miss Lieven, on behalf of the Trust, devoted detailed argument to the practical consequences that would follow if it is not lawful to appoint as a member of a Mental Health Review Tribunal a consultant who is employed by the Trust responsible for the area in which the patient is detained. The major part of the evidence advanced by the Trust related to these consequences. The judge held that those consequences were not relevant. They could not justify the appointment to the Tribunal of a member affected by apparent bias. He went on to add, however, that if he was not right about this those consequences constituted an additional ground for dismissing the claim.
11. The Strasbourg Court does not lose sight of practical realities when applying the Convention. In Piersack v Belgium (1982) 5 EHRR 169 the Court appears to have contemplated that the practical problems of finding properly qualified members of a Tribunal may be relevant when considering whether a member is disqualified on account of bias. We would not exclude the possibility that such considerations might be relevant in an extreme case where it was impossible, or virtually impossible, to assemble a Tribunal free of connections that might give rise to apprehension of apparent bias. We do not consider that this is such a case, and we will follow the judge's approach of ignoring the practical consequences of a decision adverse to the Trust.

The submissions below

12. Mr Southey made the following submissions to the judge on behalf of D. The Trust was a party to the proceedings before the Tribunal. Dr Izmeth was disqualified from sitting on the Tribunal because he was employed by the Trust. His relationship with the trust would lead a fair-minded member of the public to conclude that he might be biased in favour of the Trust. Furthermore Rule 8(2)(b) of the Mental Health Review Tribunal Rules 1983 (SI 1983/942) ('the 1983 Rules') expressly excluded Dr Izmeth from membership of the Tribunal.
13. For the Trust Miss Lieven challenged Mr Southey's interpretation of Rule 8(2)(b). As to Dr Izmeth's employment by the Trust, there were sufficient 'safeguards' to ensure that no appearance of bias on his part arose. In support of that submission Miss Lieven relied particularly on the decision of the House of Lords in R v Spear [2002] UKHL 31; [2003] 1 AC 734.

The Judge's conclusions

14. Spear was a case involving a court martial. The issue was whether a junior officer was disqualified by apparent bias from sitting on a court martial in that, as a member of the Army, he would be perceived to be predisposed to favour the prosecution. The House of Lords identified a number of factors which effectively protected the accused against any risk that the junior officer would be subject to "external Army influence". The judge found the analogy of this case helpful and identified a number of parallel 'safeguards' which applied in relation to Dr Izmeth's position.
15. The judge then considered four decisions of the Strasbourg Court, relied upon by Mr Southey, where unconscious bias had been held to exist. The judge held that each of these was radically different from the case before him as in each there was an absence of adequate safeguards. He then went on to consider the implications of the Mental Health Review Tribunal – Conflict of Interest Guidelines ('the Guidelines'). He did not find that these supported D's case.
16. The judge then turned to Rule 8(2) of the 1983 Rules. He rejected Dr Southey's submission that this rule disqualified Dr Izmeth from sitting on the Tribunal.
17. By way of conclusion the judge set out the following 13 reasons, which he did not place in order of importance, for concluding that the fair-minded observer would be satisfied that there was no real possibility that the Tribunal was biased:

"(a) Dr. Izmeth worked in a clinical directorate which was managed on a day-to-day basis independently of the directorate which was concerned with the claimant's hospital;

(b) he had had no previous dealings whatsoever with either any of the witnesses or the Rathbone Hospital, where he had never worked;

(c) there was nothing to suggest that he was liable to be disciplined by Mersey Care in respect of an decision that he had reached while sitting as a member of the Tribunal;

(d) as Mr Wright explained in his witness statement, the terms and conditions of Dr. Izmeth's employment on basic matters such as dismissal and pay were nationally agreed, thereby removing them from Mersey Care's sphere of influence;

(e) any organisation or person trying to influence Dr. Izmeth's decision would be at risk of being prosecuted for perverting or attempting to pervert the course of justice;

(f) Mersey Care was a large organisation which had many hospitals and there is nothing to suggest that it was a matter of great or any importance to Mersey Care if the claimant was or was not discharged;

(g) as a Consultant Psychiatrist, he was professionally obliged to act independently in the interests of his patients and not those of his employer;

(h) there was nothing to suggest that Dr. Izmeth was subject to any report to Mersey Care in respect of his decision-making activities while sitting as a member of the Tribunal;

(i) the guidance to members of Tribunals draws members' attention to potential conflicts of interest and that they "must raise any doubts with the regional chairman or President";

(j) there was no suggestion that Mersey Care could on or after 16 October 2002 take any step or make any decision, which would be beneficial to Dr. Izmeth in relation to his employment;

(k) it was not suggested nor was there any cogent evidence to show that Mersey Care could to might on or after 16 October 2002 make any decision detrimental to Dr. Izmeth in relation to his employment as a consultant;

(l) if any attempt was to be made by Mersey Care to dismiss Dr. Izmeth, he had a right of appeal to the Secretary of State. That factor would have meant that Dr.Izmeth would not have been at risk of or in fear of dismissal if Mersy Care became dissatisfied with any of the Tribunal's decisions, and

(m) although Mr Southey referred to Dr. Izmeth's promotion prospects as being an area in which Mersey Care could influence his career, there was no evidence that there was any promotion or demotion that Mersey Care could offer a consultant psychiatrist such as Dr. Izmeth. Indeed his terms of appointment confirm Dr. Izmeth's established rights as a consultant."

Grounds of appeal

18. Mr King attacked the Judge's construction of Rule 8(2) of the 1983 Rules. He argued that this Rule disqualified Dr Izmeth from serving on the Tribunal. He further argued that, had the judge properly applied the relevant principles, he would have concluded that Dr Izmeth was disqualified.
19. At the heart of Mr King's submissions was an argument that there would almost always be an appearance of bias if an employee of one of the parties sat on a tribunal. This position could not readily be altered by putting in place 'safeguards'. The only exception that could be identified in the Strasbourg jurisprudence arose in the case of a court martial. There it was essential that the decision of the tribunal should be informed by military expertise. This meant, inevitably, that its composition would have to include a member or members drawn from the armed service which was conducting the prosecution. Spear showed that in such a case, if adequate safeguards were put in place, the appearance of bias could be avoided. The judge had been wrong to adopt the approach of looking for safeguards in the present case where there was no necessity for an employee of one of the parties to be a member of the Tribunal.
20. Mr King placed particular significance on the Guidelines. He submitted that when these were analysed they 'gave the game away'. They distinguished between medical members of the Tribunal and other members, whether legal or lay. Employment by the Trust at any hospital precluded other members from sitting on the Tribunal. The same was not true of the medical members. The only reason for the distinction was pragmatic. It would be more difficult to find medical members if they had to be drawn from outside the Trust area. The approach to the other members was recognition that there would be a risk of bias if an employee sat on the Tribunal.
21. Mr King had another, more sophisticated, argument in respect of the Guidelines. Even if a fair-minded observer who was not aware of the Guidelines would not consider that there was any risk of bias where a medical member was an employee of the Trust, the Guidelines would suggest to him that there was such a risk. The treatment in the guidelines of other members of the Tribunal would lead him to conclude that there was good reason why no employee of the Trust of any description should sit on the Tribunal.

Rule 8(2) of the 1983 Rules

22. The 1983 Rules are made under the authority of section 78 of the Act. Rule 8(2)(b) provides:

"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"

It is accepted that Dr Izmeth did not classify as a 'member' of the Trust for the purpose of this Rule. Mr King submitted, however, that he classified as an 'officer'. This submission was largely based on the definition of an 'officer' in section 128 of the National Health Service Act 1977, namely that '"officer" includes servant'. That definition applies to the Act in which it is found and to Part 1 of the National Health Service and Community Care Act 1990, which established National Health Service Trusts. It does not apply to the 1983 Rules. Its effect is to extend the natural meaning of the word 'officer'. There can be no basis for applying that extended meaning in relation to the 1983 Rules unless the context so requires.

23. Silber J thought that the appropriate definition of "officer", in its context, was one to be found in the New Shorter Oxford Dictionary, namely "a person holding office and taking part in the management or direction of a society or institution". He was fortified in that view by the definition of an officer given by Lord Denning MR, with whom the other members of the Court of Appeal agreed, in Re a Company [1980] 1 CA 138. namely " a person in a managerial position in regard to the company's affairs".
24. The meaning of the word 'officer' will depend upon the context in which it is used. The present context is the composition of a Tribunal responsible for considering whether or not the criteria for detaining a patient in a mental hospital are demonstrated. The object of having a Tribunal hearing is that this question should be considered by a body that is independent of the authority that is detaining the patient. To that end it is natural to exclude from the Tribunal those who manage the affairs of the authority in question. Thus the context renders the definition adopted by the judge an appropriate one. If, however, the independence of the Tribunal requires that no one employed by the detaining authority, regardless of the nature or location of that employment, should sit on the Tribunal, it is arguable that the context requires that the meaning of 'officer' should be extended to embrace 'employee'.
25. Our conclusion is thus that the wording of Rule 8(2)(b) does not, of itself, lead to the conclusion that Dr Izmeth was disqualified from sitting on the Tribunal. We have to go on to consider whether Mr King is correct to submit that Dr Izmeth is disqualified because an employee of the Trust will necessarily not appear to be independent and impartial, if sitting as a member of the Tribunal. If so he will be disqualified regardless of the interpretation of Rule 8(2)(b). If not, there will be no reason to give that Rule the unnatural meaning for which Mr King contends.

Dr Izmeth's position as an employee of the Trust

26. The Strasbourg Court has recognised that:

"service tribunals could in principle determine criminal charges against service personnel consistently with Article 6.1, although such tribunals would only be tolerated as long as sufficient safeguards were in place to guarantee their independence and impartiality."

Cooper v United Kingdom (16 December 2003) at paragraph 106. We do not accept Mr King's suggestion that this is an exception bred of the necessity that a court martial should have military expertise. Spear was concerned with courts martial trying civil offences, in respect of which there is both civil and military criminal jurisdiction. As Lord Rodger of Earlsferry pointed out in Spear at paragraph 32, the mode of trial may depend upon the fortuity of how the offence comes to light. We consider that Spear demonstrates that there is no general rule that an employee can never sit on a tribunal that is adjudicating in proceedings in which his employer is a party. We have used the word 'party', because Mr King laid emphasis on the fact that the Trust is a party to the MHRT proceedings. In a case such as this it is necessary to give consideration to the reason why the term 'party' is appropriate to describe the status of the employer as well as to the nature and circumstances of the 'employment' of the Tribunal member.

27. The term 'party', in the context of court or tribunal proceedings, usually describes someone who is taking part in those proceedings and who has an interest in their outcome. There is no difficulty in identifying the parties to civil litigation, which is adversarial. It may not be so easy where the proceedings consist of an inquisitorial inquiry. It is sometimes said that there are no 'parties' to a public Inquiry, but it is none the less not uncommon to describe as 'parties' those taking part in an Inquiry who have a particular interest in the outcome.
28. The following matters were relied upon by D as demonstrating that the Trust was a party with an interest in the outcome of the Tribunal hearing:

"(i) The application for the Appellant's admission to hospital would have been made to the hospital managers (section 11(2) of the 1983 Act). In the case of a hospital that forms part of a trust, the managers are the trust (section 145(1) of the 1983 Act). As a consequence it is implicit that the trust is responsible for the decision to detain the Appellant;

(ii) At any stage during the Appellant's detention he can be discharged by the trust (section 2392) of the 1983 Act). As a consequence it is implicit that the trust is responsible for the continuing detention of the Appellant; and

(iii) This submission is consistent with rule 2 of the Mental Health Review Tribunal Rules 1983 (SI 1983/942) ('the 1983 Rules'), which expressly provides that a trust providing accommodation for a patient is the 'responsible authority' and hence a 'party' to proceedings. Rule 2 implicitly recognises the role that Mersey Care plays in detaining the Appellant. "

These factors demonstrate why the Trust was interested in the Tribunal hearing. They do not, however, demonstrate that the Trust had any particular interest in the outcome. Mr King advanced two arguments as to why the Trust might wish D's application to the Tribunal to be dismissed. The first was that the Trust might have a financial motive to retain D as a patient. The second was that the Trust might be concerned that, if the Tribunal ordered D to be discharged, this would demonstrate that D was being wrongfully detained and might result in D bringing a claim for damages.

29. We consider that both of these submissions are fanciful. The Code of Practice published in March 1999 pursuant to section 118 of the Act lays down the following Guiding Principles as to how those to whom the Act applies should be treated. They should:

- receive recognition of their basic human rights under the European Convention on Human Rights (ECHR);

- be given respect for their qualities, abilities and diverse backgrounds as individuals and be assured that account will be taken of their age, gender, sexual orientation, social, ethnic, cultural and religious background, but that of general assumption will not be made on the basis of any one of these characteristics;

- have their needs taken fully into account, though it is recognised that, within available resources, it may not always be practicable to meet them in full;

- be given any necessary treatment or care in the least controlled and segregated facilities compatible with ensuring their own health or safety or the safety of other people;

- be treated and cared for in such a way as to promote to the greatest practicable degree their self determination and personal responsibility, consistent with their own needs and wishes;

- be discharged from detention or other powers provided by the Act as soon as it is clear that their application is no longer justified.

These principles demonstrate, as one would expect, that the primary consideration of a Trust in relation to patients detained under the Act is the welfare of those patients. Trusts are not profit-making institutions. There is no reason to believe that a Trust will benefit financially by keeping a patient detained. Mr King did not join issue with the experience of this court that, in the field of mental health, the problem is not how to fill hospital beds but how to find beds for all those who need treatment. He submitted, however, that the position might change in the future. We have no hesitation in rejecting the suggestion that any reasonable and informed member of the public would suspect that a National Health Service Trust was anxious to keep in detention patients whose condition did not justify this in order to improve their cash flow.

30. The judge found paradoxical the suggestion that a Trust might wish a Tribunal to reject an application for the discharge of a patient because of the fear of being sued for wrongfully detaining him. We do not find the suggestion paradoxical. We can appreciate the argument that, by directing the discharge of a patient, a Tribunal might draw attention to the fact that a patient had been wrongfully detained. Once again, however, we regard as fanciful the suggestion that a Trust would hope for a Tribunal finding adverse to its patient for this reason.
31. We can envisage reasons why those responsible for the detention of a patient under the Act, such as the Responsible Medical Officer and the hospital managers, might hope that a Tribunal would not direct the patient's discharge. Having formed the view that the need for treatment justified the detention of the patient, self-esteem might make them wish to see their assessment upheld by the Tribunal. They might also believe that, if the Tribunal formed a different view, this would not be in the best interests of the patient and the public. In general, however, we do not consider that the reasonable and informed member of the public would expect the managers of a Trust to be overly concerned should a Tribunal decide to direct the discharge of a patient.
32. We are not, of course, directly concerned with the reaction of the managers of the Trust should the Tribunal direct the discharge of a patient. The question is whether the reasonable and informed member of the public might suspect that someone in the position of Dr Izmeth would be so concerned at the potential reaction of the managers of the Trust, and the implications of such reaction for his own position, that this might consciously or unconsciously affect his decision.
33. The 13 reasons for rejecting the application given by Silber J all bore on this issue. Mr King attacked three of them. He submitted that the fact that Dr Izmeth was required to act in an independent manner with respect to his patients was of little or no relevance when he was sitting on the Tribunal because the people applying to the Tribunal would not be his patients. We do not accept this submission, which, we consider, the reasonable and informed observer would view as 'legalistic'. We consider that that observer would expect a consultant psychiatrist to apply the same concerns for the welfare of a patient, whether that patient was the consultant's own, or a patient whose liberty depended upon the objective clinical judgment of the consultant in the context of a Tribunal hearing.
34. Next Mr King submitted that the absence of any evidence to show that the Trust was in a position to take decisions that were beneficial or detrimental to Dr Izmeth was not a relevant factor. The nature of all employment relationships was that they permitted an employer to take decisions that might be regarded as beneficial or detrimental by the employee. As a consequence it should be presumed that the Trust could take decisions that were beneficial or detrimental to Dr Izmeth.
35. Once again we do not agree with Mr King. An employer who decides on an employee's remuneration, location, conditions of service and promotion will be in a position to affect an employee beneficially or detrimentally. Positive evidence was adduced about Dr Izmeth's status and terms of employment as a consultant psychiatrist, which showed that he was not susceptible to beneficial or detrimental treatment in these matters at the whim of the Trust. We can see no way in which dissatisfaction with or approval of Dr Izmeth's decisions as a member of the Tribunal would or could lead to a difference in the way that he was treated by the Trust. Nor do we consider that the reasonably informed observer would have reached any different conclusion.
36. We question whether the considerations that we have been discussing are aptly to be described as 'safeguards'. None of them is a precaution put in place to ensure that Dr Izmeth can serve on a Tribunal without apprehension as to the consequences for him of the Tribunal's decision. They are no more than features of the particular circumstances of Dr Izmeth's employment, and of the nature of his employer, that render it impossible for a reasonable and informed observer to question his independence and impartiality as a member of the Tribunal. Subject to consideration of Mr King's arguments in relation to the Guidelines, we would reject the contention that an appearance of bias on his part arises simply from the fact that Dr Izmeth was employed by the Trust.

Contact with those responsible for D's detention

37. Before turning to the Guidelines it will be helpful to refer to a matter which might have given rise to an appearance of bias on the part of Dr Izmeth. Had he been employed at the Rathbone hospital where D is detained, there might have been reasonable apprehension that he would have come into contact with those actually responsible for D's detention – the Responsible Medical Officer, the social worker concerned and the hospital managers. In that event, there might also have been reasonable apprehension that, out of respect for, or friendship with, those concerned Dr Izmeth might have been reluctant to express a view which differed from that which they had reached. No suggestion of apparent bias on such grounds was, or could have been made, on the facts of this case. The possibility of this type of apparent bias is, however, something that has to be born in mind when considering the Guidelines.

The Guidelines

38. The Guidelines were originally drawn up in September 2000 following discussions between the Department for Health, the Lord Chancellor's Department, the National Assembly for Wales and the Regional Chairs. On 22 November 2001 the Guidelines were amended by the Regional Chairs in the light of the amalgamation of individual Trusts to form enlarged Trusts. We annexe to this judgment the relevant portion of the amended Guidelines. The amendments consist of the additions in italics.
39. In Lawal the issue was whether a lay member of the Employment Appeal Tribunal would be affected by apparent bias in favour of a party if that party was represented by counsel who had previously sat with the lay member in his capacity as a Recorder. The House of Lords drew assistance from regulations governing analogous circumstances in which Recorders were debarred from appearing as counsel. These were indicative of circumstances in which there would be an apprehension of bias. Lord Steyn, giving the opinion of the Appellate Committee, held that the informed observer would attach significance to the restrictions imposed in analogous circumstances. Mr King submitted that the Guidelines in the present case demonstrated, and would demonstrate to the informed observer, that there would be a risk of bias if any employee of the Trust, even a consultant psychiatrist, was a member of the Tribunal.
40. Mr King drew attention to the fact that, under the Guidelines legal members and lay members were precluded from sitting on a Tribunal not merely at a hospital where they had been employed or engaged but also at any other hospital within the same Trust. Medical members were only prohibited from sitting at a hospital where they had been employed or engaged or, after the amendment, where they had attended on a regular basis. He submitted that the only reason for the fact that medical members who had worked at one hospital were not prohibited from sitting at other hospitals within the Trust was the practical problem to which this would give rise. The Guidelines were permitting a situation to prevail where there was an appearance of bias simply in order to avoid the administrative difficulties that the creation of enlarged Trusts had created. This was not permissible.
41. This analysis cannot be right. The original Guidelines evidence the fact that, in September 2000, there were Trusts that covered more than one hospital. We were told, without objection, that this was not common and that, where it did occur, there were usually not more than two hospitals within the Trust. There is no suggestion that, at that time, there would have been any practical problem if medical members of Tribunals who were employed in one hospital were treated in the same way as legal members and lay members and precluded from sitting at any other hospital within the Trust. Yet the Guidelines did not prohibit medical members who were employed at one hospital from sitting on a Tribunal at another within the same Trust.
42. The deduction that we would draw from the September 2000 Guidelines is that those who drafted them were concerned that the fact of employment by a legal member or lay member at one hospital within a Trust might create an appearance of bias, but that the same was not true of a medical member. This suggests that, in the case of the medical member, the concern was not at the fact that the member was employed by the Trust but at the contacts that he might have had in the course of his work at a particular hospital.
43. The passage in italics inserted by the Regional Chairmen on 22 November 2001 confuses the picture. They appear to have concluded that the creation of enlarged Trusts would, unless they amended the Guidelines, have the effect that a medical member would be precluded from sitting on a Tribunal at any hospital within the enlarged Trust. This was not the case. Furthermore, the effect of the 'general guidance' given in the second sentence of the passage in italics was no more than to reduce from 5 years to 3 years the period of embargo provided for by paragraph 3.4. What does seem clear is that the Chairmen contemplated introducing guidelines that would have prevented medical members from sitting at any hospital of a Trust in which they were employed but were reluctant to introduce such guidelines because of the practical difficulties that they would create.
44. Mr John Wright, who was appointed Regional Chairman of the Tribunal in May 2000, provided two witness statements that dealt, to a degree, with the thinking behind the amended Guidelines. It is not apparent that he was involved in the drafting of the original Guidelines and he does not comment on that exercise. He was, however, involved in the drafting of the November 2001 amendment. We do not propose to refer in detail to his evidence about this for two reasons. The first is that it does not provide a coherent explanation for the amendment in question. Perhaps this is not surprising given the incoherence of the amendment itself. The second is that we think it very questionable whether such evidence has any bearing on the view of the overall situation that would be taken by the reasonably informed observer. We think it one step too far to include in the information reasonably assumed to be known by the observer the subjective reasoning of those who drafted the Guidelines.
45. Where regulations impose restrictions designed to prevent the risk of bias in analogous situations they can provide some assistance when considering whether the particular situation under review creates a risk of bias. The amendment to the Guidelines in the present case was designed to deal with the very situation under review. The Guidelines, both before and after amendment, permitted a medical consultant to sit on a Tribunal in the circumstances in which Dr Izmeth did so. We reject the submission that these Guidelines either demonstrated, or would have appeared to a reasonable observer to demonstrate, that there would be a risk that Dr Izmeth would be biased.
46. We have set out at some length our reasons for agreeing with the judge that Dr Izmeth was not disqualified in this case. It is right that we should record that the initial reaction of each member of the court to the facts of this case, was that the suggestion that Dr Izmeth might have been biased was absurd. In the course of debate Mr King made it clear not only that it was not suggested that Dr Izmeth had been biased, but that it was not suggested that he might have been biased. It seemed to us that this demonstrated that the argument that there was apparent bias in this case was founded on an analysis of case precedent rather than the apprehension of the reasonable observer. It also made us wonder why these proceedings had ever been brought.
47. For the reasons that we have given, this appeal is dismissed.




ANNEXE

MENTAL HEALTH REVIEW TRIBUNAL

CONFLICT OF INTERESTS

GUIDELINES

1.     INTRODUCTION
1.1     It is essential that the Tribunal at all times preserves its independence in the discharge of its duties and is at all times seen to be independent.
1.2     The aim of these Guidelines is to clarify the circumstances in which legal, medical, and lay members should not sit by reason of conflict of interest and to give general guidance in respect of circumstances not referred to specifically.
1.3     The list cannot be exhaustive and any member having any doubt whatsoever about a potential conflict of interests must raise it openly at the earliest possible opportunity with either the tribunal office or the President as circumstances permit or dictate.
1.4     The Regional Chairmen are available to help resolve any problems and they should be contacted if a fuller and more detailed explanation is required.
1.5     Advice can be obtained from the Lord Chancellor's Department (JAD 4) on the terms and conditions of part-time judicial appointments.
2.    WHEN THE LEGAL MEMBER MUST NOT SIT
2.1     If he or she has acted at any time for or against the patient.
2.2     If he or she has acted at any time for or against any member of the patient's family. The expression "family" includes, spouse, partner, parent, child, brother, sister, or spouse or partner of any of them.
2.3     If he or she has a close personal connection with the patient or any witness.
2.4     If the patient is represented by an advocate from a firm of solicitors to which the legal member belongs or with whom he or she is associated.
2.5     At any hospital at which he or she was employed, engaged, or for whom he or she acted during the period of 3 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 shall be 2 years.
2.6     If a member of the Mental Health Act Commission at any hospital or other place to which he or she is assigned responsibility.
2.7     At any venue contrary to the terms and conditions of his or her part-time judicial appointment or at any venue where he or she has agreed not to sit.
2.8     At any hospital where he or she represents patients in their applications to the tribunal or has represented patients in that capacity in the last two years.
3.     WHEN THE MEDICAL MEMBER MUST NOT SIT
3.1     If he or she has been at any time the patient's doctor.
3.2     If he or she has been at any time the doctor to any member of the patient's family.
3.3     If he or she has a close personal connection with the patient or any witness.
3.4     At any hospital at which he or she was employed or engaged during the period of 5 years commencing with the date of termination of the employment or engagement.

The Regional Chairmen have addressed the situation arising from the amalgamation of individual Trusts into enlarged Trusts and appreciate that to simply prevent a medical member from sitting at any hospital within the enlarged Trusts, whether remunerated or not, is not only impractical but also would render inoperative most of the medical membership. By way of general guidance, the 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. Members must be alert, however, to the potential conflict of interests inherent in the enlarged Trusts and must raise any doubts with the Regional Chairmen or President as circumstances permit or dictate. The Regional Chairmen will monitor the situation and issue further guidelines as necessary.

3.5     If he or she has prepared an independent report on the patient during the period of 5 years preceding the date of the application.
3.6     If he or she has given a "second opinion" on the patient during the period of 3 years preceding the date of the application.
3.7     If a member of the Mental Health Act Commission at any hospital or other place to which he or she is assigned responsibility.
4.     WHEN THE LAY MEMBER MUST NOT SIT
4.1     If he or she has acted in any professional (as opposed to judicial) capacity in respect of the patient.
4.2     If he or she has acted in any professional capacity in respect of any member of the patient's family.
4.3     If he or she has a close personal connection with the patient or any witness.
4.4     At any hospital at which he or she was employed or engaged during the period of the 3 years commencing with the date of termination of the employment or engagement. In respect of any other hospital within the same Trust or a non-remunerated position in a Trust, the period shall be 2 years.
4.5     if he or she has prepared any independent report on the patient during the period of 5 years preceding the date of application.
4.6     If a member of the Mental Health Act Commission at any hospital or place to which he or she is assigned responsibility.