MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC) (25 February 2013)
Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
Save for the cover sheet, this decision may be made public
(rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No
2698)). That sheet is not formally part of the decision and identifies the
patient by name.
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2012/00941
and dated 13 January 2012 did not involve the making of an error on a point of
law.
Reasons
for Decision
A.
Introduction
1.
Mr M is a patient detained at Rampton Hospital under section 37 of the Mental
Health Act 1983. On 10 January 2012, he applied to the First-tier Tribunal. In
December 2012 and January 2013, a panel heard legal argument. On 13 January
2013, they decided that there were no reasonable grounds for them to recuse
themselves from the substantive hearing. A salaried judge gave Mr M permission
to appeal against that decision on 10 February 2013. The hearing of the
substantive application was listed for hearing over three days beginning on 20
February 2013. I directed an urgent oral hearing of the appeal, which was held
on 18 February 2013. Mr M attended by video link. He was represented by Roger
Pezzani of counsel and the hospital by Steven Kovats QC. I am grateful to all
concerned for their co-operation in ensuring that the hearing could take place
promptly.
2.
I announced my decision with a summary of reasons at 9 am on 19 February
2013. These are my full reasons.
B.
The issues and how they arose
3.
The tribunal’s decision was formally presented in terms of recusal. The
arguments on that issue ranged over issues of privilege, confidentiality,
privacy, property in a witness, adverse inferences and a patient’s Convention
rights under Articles 6 and 8.
4.
The issues arose from the skeleton argument of counsel for the hospital
(not Mr Kovats). Unpacking her argument, it came to this: (i) Dr G had visited
Mr M; (ii) he had been instructed to prepare an independent report; (iii) Mr M
was not relying on that report; (iv) the tribunal should infer that the report
was not favourable to Mr M; and (v) that Dr G had concurred with the clinical
team’s diagnosis and conclusions. Counsel also invited the tribunal to consider
ordering disclosure of Dr G’s report. These arguments led to the other issues
that I have listed.
5.
Mr Pezzani argued that the panel should have recused themselves. He did
not argue that the panel should recuse themselves for bias or because they knew
of Dr G’s visit. Tribunals will, as he admitted, often know that an independent
expert visited a patient, because the medical member will have seen the
patient’s notes. He argued that the panel should recuse themselves in this case
because Mr M would not receive a fair hearing in view these factors: (a) the
way in which the case had been presented to them, (b) the fact that Mr M and
his legal team could not respond to the argument, (c) the manner in which the
panel engaged with the argument in their decision and (d) their failure to rule
out the argument as a matter of principle.
C.
Waiver
6.
Just for the record, Mr Pezzani accepted that Dr G had visited Mr M, but
he made no admission that he had prepared a report or as to the contents of any
report. Nothing that he said could be taken as waiving Mr M’s privilege in any
report that may exist.
D.
The practical answer
7.
It is unnecessary to resolve all the fascinating issues that were
discussed in argument, because there is a practical answer to this case, and I
suspect to almost every other case in which the same argument might be
presented. The answer is that it would not be proper for the tribunal to draw
inferences like those set out in counsel’s argument.
8.
As a matter of practical reasoning, the argument could never succeed in
the form presented by counsel. The only thing known for certain is that Dr G
visited Mr M. He might have done so for a number of reasons. It is only
possible to draw more specific inferences by adding in the fact that Mr M has
not given any explanation for the visit. If (say) Dr G was a personal friend,
it would have been easy to say so. By putting together the visit with the lack
of an explanation, it is possible to infer that Dr G came to interview Mr M for
the purposes of some legal proceedings, possibly (perhaps probably) his
application to the tribunal. It may even be possible to infer that his report
did not support Mr M’s application. But simply as a matter of reasoning it is
not possible to infer that Dr G agreed with the diagnosis and conclusions of
the clinical team. That is too precise an inference to be drawn from the
earlier steps in the reasoning.
9.
As a matter of law, counsel’s argument may not be permissible as a
matter of law. It required inferences to be drawn from other inferences and there
is some authority that this is not permissible in legal proceedings: Lord
Hodson in Rubber Investment Ltd v Daily Telegraph Ltd [1964] AC 234 at
274.
10. Most
fundamentally, the argument presented failed to take account of the context in
which the issue would arise. The First-tier Tribunal always has medical
evidence from the clinical team. The medical member of the panel will have
interviewed the patient. And the patient may have produced medical evidence in
support of the application. I cannot imagine any realistic circumstances in
which a tribunal, having such evidence, could properly rely on the failure by a
patient to produce a report as a basis for drawing inferences that would affect
the outcome. The tribunal’s duty, and the only proper course, would be to decide
on the evidence available rather than speculate on possible explanations of why
the report was not produced.
E.
Mr Pezzani’s arguments for recusal
11. I
now analyse Mr Pezzani’s arguments and explain why I reject them.
The panel should have recused
themselves on account of the way the argument was presented to them
12. I
begin with the proposition that it is a judicial skill that judges should be
able to disregard things that they have heard. In the Court of Appeal, a judge
who has refused permission to appeal on the papers is allowed to sit with other
judges if the application is renewed at an oral hearing: Khreino v Khreino
[2000] 1 FLR 578. The judge is also allowed to sit on the appeal if permission
is given: Mahomed v Morris reported in The Times for 3 February 2000. The
judge is allowed to sit, despite having made a decision against the applicant.
There can be no clearer illustration of the recognition that judges are able to
keep an open mind than that. In this respect at least, there is nothing special
about the judges of the Court of Appeal.
13. This
ability is recognised by the rules of procedure that apply in the First-tier
Tribunal. Rule 15 of the Tribunal Procedure (First-tier Tribunal) (Health,
Education and Social Care) Chamber 2008 allows tribunals to rule on the admissibility
of evidence and on issues that may be presented. That will almost certainly
involve the panel knowing at least something of that evidence or those issues.
And the circumstances in which the panel has to make its ruling means that it
may well have to be made by the same panel that hears the substantive case.
14. My
reasoning so far relates only to the judge. The other panel members come from
different professional backgrounds and may be less experienced in putting
matters out of their minds. Even if that is so, there is always a judge present
and it is one of the duties of that judge to ensure that the other members of
the panel disregard evidence that is not properly before them.
15. The
detail in which, or the persistence with which, the argument is presented does
not undermine a panel’s ability to exercise this skill.
16. There
is also this practical consideration. Parties cannot choose the panel that
hears their case. If a party could force a panel to recuse themselves by
presenting arguments like this, they would effectively have that power. That
cannot be allowed. Not that I am attributing any such motive in this case.
The panel should have recused
themselves on account of the fact that it was not possible for Mr M and his
representatives to respond to the argument
17. As
I put to Mr Pezzani, counsel in a criminal trial whose client admits guilt can
still properly engage in arguing whether the evidence presented by the
prosecution is sufficient to prove guilt. It is not permissible to argue that the
client is innocent, but it is permissible to argue that the client has not been
proved guilty.
18. In
the same way, Mr Pezzani could have engaged in a discussion about what
inferences could properly be drawn from the information before the tribunal. He
would not have waived any privilege that might exist by doing so.
The panel should have recused
themselves on account of the way that they had engaged with the argument in
their decision
19. There
are two answers to this argument.
20. The
first answer is that if a panel is entitled to hear an argument without
recusing themselves, they must be allowed to explain their decision on that
argument without recusing themselves.
21. The
second answer is that Mr Pezzani’s argument is based on a misreading of the
panel’s reasoning. My reading of what the panel said is that they were not
engaging with the argument; rather they were explaining why they did not agree
with it. I think that that is the only fair reading of the tribunal’s reasons.
The panel should have recused
themselves on account of their failure to rule out the argument as a matter of
principle
22. The
panel did not rule out the argument in principle. It is important to understand
what they did. Their reasons have to be read fairly and as a whole. On my
reading, the reasons show two things. They show that the panel were scrupulous
in leaving to the panel that ultimately heard Mr M’s application the right to
make a decision on the argument that was appropriate in the context of the case
as it finally came before the tribunal for decision. The reasons also show
that, to put it at its lowest, the panel were sceptical that the argument
presented could succeed.
23. I
am not going to embark on an analysis of all the issues that were canvassed in
argument. Time did not allow me to read and consider all the authorities and
arguments that were presented by counsel, especially in a skeleton argument dated
14 February 2013 and written by Rex Tedd QC and Nageen Khalique. It did not
reach me until the morning of the hearing and Mr Pezzani had only a few minutes
to study it before the hearing began. I am not sure that Mr Kovats accepted
that skeleton in every particular.
24. Mr
Pezzani’s argument was that: (i) if there was a report, it was privileged; and
(ii) it was, therefore, improper to draw any inferences from the fact that it
had not been produced. Mr Kovats accepted that the report (if there was one)
was privileged, but argued that the position was not so simple as Mr Pezzani’s
argument suggested. He argued that:
·
There was no property in a witness, so the hospital or the
tribunal itself could call Dr G as a witness: Harmony Shipping Co SA v Saudi
Europe Line Ltd [1979] 1 WLR 1380 at 1385.
·
The expert could produce a separate report, which could be used
in evidence: W v Egdell [1990] 1 Ch 359.
·
These propositions were subject to the possibility of
confidentiality in what passed between Mr M and Dr G.
25. As
I have said, I am not going to come to a final decision on issues that were not
adequately explored at such short notice. I do, though, accept Mr Kovats’
argument to this extent: it would be dangerous to lay down a hard and fast
proposition that would apply regardless of the circumstances. For that reason, the
tribunal was right to express itself cautiously.
26. It
is, though, also right to record that I have some sympathy with Mr Pezzani’s
argument. The Court of Appeal has said that it is not permissible to draw
adverse inferences from a refusal to waive privilege: Sayers v Clarke Walker
[2002] EWCA Civ 910 at [16]. The argument in the skeleton written by Rex Tedd QC and Nageen Khalique comes perilously close to depriving that principle of any
effective substance. It may be that the principles relied on by Mr Kovats
require some modification to protect a party’s privilege.
F.
Conclusion
27. I
have dismissed this appeal, because there is no legitimate basis on which
anyone could suspect that Mr M might, let alone would, not receive a fair
hearing from the panel listed to hear the case.
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Signed on original
on 25 February 2013
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Edward Jacobs
Upper Tribunal Judge
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