Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HMW/1676/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: E A L BANO

Decision:  My decision is that the decision of the Mental Health Review Tribunal for Wales involved the making of an error on a point of law.  However, in exercise of the power conferred by section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 I do not set aside the decision of the tribunal since no useful purpose would now be served by doing so.

REASONS FOR DECISION

1. This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal.  There can now be no doubt that a right of appeal lies to the Upper Tribunal against such a refusal-see LS v LB Lambeth (HB) [2010] UKUT 461 (AAC).  Neither the respondent health authority nor the Secretary of State for Justice has taken any part in the proceedings.

2. The patient was detained under sections 37 and 41 of the Mental Health Act 1983, although I have been informed by the tribunal that he has since been conditionally discharged as a result of a further appeal.  His original appeal was listed for hearing on 20 and 23 April 2012, but on 17 April 2012 the patient’s solicitors applied for the hearing to be adjourned to a date after the last week of May 2012.  The application stated that the patient had come to accept that a conditional, rather than an absolute, discharge might be appropriate, but that at the time of the application it was not known whether the care plan which a conditional discharge would require could be arranged.  The application, which was supported by the responsible clinician and consented to by the respondent authority, stated:

“In these circumstances, there is neither utility or fairness in proceeding with the hearing of this application on 20 and 23 April 2012.  Utility because the tribunal and the parties will lack vital information which goes directly to whether the statutory criteria for detention are satisfied, and whether discharge should be ordered.  Fairness because, as stated above, [the patient] in particular ill be unable to know how to put his case, or whether to call evidence, and will thereby be prejudiced in proceedings which concern his liberty."

In the alternative, the application sought an adjournment so that an appeal could be made to the Upper Tribunal against a refusal to postpone the substantive hearing.  Failing that, the patient gave notice withdrawing his appeal, on the ground that he would be prejudiced if the hearing proceeded on the dates on which it had been listed. (Although the application requested an 'adjournment' I consider that the term 'postponement' would have been better because the hearing had not yet commenced.  I shall treat the application as having been for a postponement from now on.)

3. The tribunal’s response to the application was set out in an email dated 17 April to the patient’s solicitor, as follows:

“It is not our policy to postpone hearings other than to a fixed date.  I note from [the responsible clinician’s] email to [the patient’s solicitors] that 10^th May is a provisional date for a meeting to discuss ‘management and care plans and funding arrangements for a future CD’.  This suggests that there is an element of uncertainty as to the date of the meeting.  It is also unlikely that all the necessary elements will be finalised at the meeting, and in any event further reports will then need to be prepared for the tribunal and circulated.  We are not therefore in a position to postpone to a fixed date and the appropriate course of action is to accept the application to withdraw.  Again, in accordance with policy, we will list the hearing for the earliest possible date when the application is renewed.  By that time, depending on the content of the revised reports, it should be possible to complete the hearing in one day.”

4. On 19 April the patient’s solicitors wrote to the tribunal seeking permission to appeal to the Upper Tribunal, on the ground that there was no legal justification for the policy referred to in the email.  The application drew attention to the tribunal’s powers of adjournment under rule 21 of the Mental Health Review Tribunal for Wales Rules 2008 (“the MHRT Wales Rules”), which provides:

“21.—(1) The Tribunal may at any time postpone or adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate.

(2) Before postponing or adjourning any hearing, the Tribunal may give such direction as it thinks fit for ensuring the prompt consideration of the application at a postponed or adjourned hearing.

(3) Where a party requests that a hearing postponed or adjourned in accordance with this rule be reconvened, the hearing must be reconvened if the Tribunal is satisfied that reconvening would be in the interests of the patient.

(4) Save in respect of an application under section 66(1)(a) of the Act, before the Tribunal reconvenes any hearing which has been adjourned without a further hearing date being fixed, it must give to all parties not less than 14 days’ notice (or such shorter notice as all parties may consent to) of the date, time and place of the reconvened hearing.”

5. In a letter dated 21 May refusing the application for permission to appeal, the tribunal chairman asserted that the powers under rule 21 applied only when the tribunal was considering whether to postpone or adjourn a hearing of its own motion, and not when a party applied for a case to be re-listed.  The letter then elaborated on the reasons which had led the chairman to conclude that the application could not be postponed to a fixed date:

“Your application of 17^th April quoted a private email apparently sent by the [responsible clinician] to your firm, a document not seen by the tribunal. In [it] he mentions enabling ‘all professionals involved in [the patient’s] current and future care, including [the patient] and his representatives(s) to meet and finalise the required management and care plans and funding arrangements for a future CD’. He also refers to a ‘provisional meeting date scheduled for 10^th May’. In his report for the tribunal, [the responsible clinician] states within his opinion that [the patient] might benefit from a CD with a ‘carefully thought through aftercare package’.  I am aware of [the patient’s] long history of unsuccessful CDs and formed the opinion that such a carefully thought through package was unlikely to completed in every detail in the course of one meeting.  Your own application says (at para 8) ‘it is not yet known whether the comprehensive care plan which is now proposed can actually be arranged’. There was certainly no confirmation from [the responsible clinician] to indicate a timescale for preparing such a plan.  As I indicated at the time, in addition to the planning work, addendum reports would have to be prepared and circulated, including to the Ministry of Justice. You also said in your application (at para 10) ‘until it is known whether the proposed comprehensive care package is in fact available, [the patient] cannot know how to put his case, nor whether there is a need to call independent witnesses’. In view of the number and complexity of the unknown factors to be resolved before your client would apparently feel ready to pursue his application, I decided that postponement was not the appropriate course of action.  I expect you are aware that since I made that decision, your client has lodged a fresh application in which he states that he is applying to the tribunal for Absolute Discharge. It therefore appears that the grounds for application for the postponement have in any event fallen away.  Your client also makes it clear in that letter that he was only considering accepting a CD as a result of being ‘pressurised’ by [the responsible clinician] and that he now regrets departing from his original stance, describing himself as ‘the victim of deception’ by [the responsible clinician]. In your application of 17^th April you indicated that he was content to follow the recommendation of his responsible clinician.  All this would appear to give weight to my scepticism about your client agreeing to the conditions which the care team might suggest we impose in the event of his discharge.”

The letter continued by stating that the policy referred to in the email of 17 April was a default position which the chairman considered should be adopted unless there were good grounds to deviate from it.  The chairman stated that every case was considered on its merits, but in this case there was not sufficient certainty about the timeframe in which the case would be ready to be heard to justify deviating from the tribunal’s standard procedure.  Having given reasons for generally adjourning hearings to fixed dates, the letter continued:

“Your use of the term “unlawful” suggests that my decision was not within the range of decisions open to me.  I do not agree with that interpretation.  Rule 21(1) is permissive not prescriptive and a number of options are available to in applying the rule in interlocutory situations.  It is for me to use my judgment in selecting the most appropriate, balancing the interests of justice to the applicant with the efficient use of resources and good judicial case management.  Every jurisdiction has a number of internal default policies to assist in such situations.  The fact that they may be unwritten does not render them unlawful.  In this case, for the reasons stated, I decided that accepting withdrawal was the appropriate route. I consider that decision to have been entirely reasonable and in accordance with the principles of good judicial management.”

6.  Although this appeal is now of no practical benefit to the patient, it has in my view very properly been brought in order to challenge the approach taken by the tribunal to postponements and adjournments revealed by this case.  The grounds of appeal argue that the postponement application, for the purposes of obtaining further information, fell expressly within rule 21(1), and ought to have been granted in accordance with the overriding objective in rule 3.  The policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted.

7.  Although the chairman appeared to have accepted in the later part of her letter of 21 May 2012 that the postponement application was governed by rule 21, in the earlier part she drew a distinction between an application to postpone or adjourn and “an applicant’s request for a re-listing.”  I consider that there is no warrant for that distinction.  An application by a party for a case to be re-listed is an application for a postponement.  It is true that under the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 which apply in England the power to postpone or adjourn is conferred by rule 5(3)(h), and that by rule 6(1) of those rules a direction under rule 5 can be given on the application of one or more of the parties or by the tribunal of its own initiative.  However, in B v Mental Health Review Tribunal and Secretary of State for the Home Department [2002] EWHC 1533 (Admin), in which the Administrative Court was concerned with the lawfulness of an adjournment sought by the Secretary of State under provisions identical to those in this case, there was no suggestion that those provisions only apply if the tribunal is considering whether to postpone or adjourn a hearing of its own motion. It cannot have been intended that postponements or adjournments of a tribunal’s own motion should be subject to detailed regulation by rule 21, but that no provision whatever should be made for applications for a postponement or adjournment made by one of the parties.  Accordingly, I am satisfied that rule 21 applies whether a postponement or adjournment is being considered by a tribunal on its own initiative, or at the request of one or more of the parties.

8.  In B Scott Baker J. (as he then was) accepted the undesirability in mental health cases of adjourning a case without any indication of when the case will be heard.  However, regulation 21 does not require any adjournment to be to a fixed date and as Scott Baker pointed out in B [para. 21] it is open to a tribunal to avoid an open-ended adjournment by directing that the adjourned hearing take place before a certain date, rather than on a date fixed in advance.  Since a public authority cannot lawfully fetter the exercise of its discretionary powers by a fixed rule of policy, I agree with the submission in the grounds of appeal that the tribunal acted unlawfully if it had a policy or practice by which it confined itself to exercising its powers of postponement and adjournment under rule 21 to a fixed date alone

9. However, I also agree with the appellant’s submission that the case could in fact have been postponed to a fixed date if the tribunal had made proper use of its case management powers.  Rule 3 of the MHRT Wales Rules sets out the overriding objective as follows:

“3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly, justly, efficiently and expeditiously.

(2) Dealing with a case in accordance with paragraph (1) includes—

(a) avoiding unnecessary formality and seeking flexibility in the proceedings;

(b) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(c) using any special expertise of the Tribunal effectively; and

(d) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule.”

Rule 21(2) of the MHRT Wales Rules specifically links the power to postpone or adjourn a hearing with a power to give directions for the purpose of “ensuring the prompt consideration of the application at a postponed or adjourned hearing”.  Even if the rule conferring the power to postpone or adjourn a hearing did not also refer specifically to a power to give directions to ensure that the appeal was heard promptly, as is now the case in England under the Tribunal Procedure First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008), I consider that the overriding objective in rule 3 would achieve the same effect.  Since 2008, mental health tribunals in both England and Wales have possessed extensive and flexible case management powers which can be exercised by the tribunal of its own initiative (see rule 6(2)(b) of the MHRT Wales Rules).  Those provisions give the tribunal a proactive role in using their powers to further the overriding objective in rule 3, including “avoiding delay, so far as compatible with proper consideration of the issues” (rule 3(2)(d)).

10.  Although there could of course be no guarantee that the meeting provisionally planned for 10 May to consider aftercare arrangements would in fact take place on that date, I consider that there was nothing to prevent the tribunal from giving case management directions with a view to the appeal being postponed to a fixed date, or at any rate to the first available date after the necessary preparations for the resumed hearing had been completed.  Bearing in mind that it was for the tribunal and not for the parties to control the progress of the case, the chairman could have decided on a time frame within which she expected the initial meeting and any possible follow-up meeting to take place.  That would then form the starting point of a timetable for the completion of the remaining steps needed before the hearing. Although it might have been necessary to give further directions altering the timetable if for some reason it proved impracticable, the proper exercise by the tribunal of its case management powers would have enabled it to set a date for a postponed hearing on the basis of what it considered to be a reasonable and sensible timetable, rather than forcing the patient to apply to withdraw his appeal because of uncertainty about the time needed by those involved in the case to complete their preparations for the hearing.  The tribunal’s failure to exercise its case management powers so as to ensure a speedy hearing of the appeal, thereby in effect forcing the patient to withdraw the appeal, was in my judgment a breach of the duty under rule 3(1) of the overriding objective of dealing with cases “fairly, justly, efficiently and expeditiously”.

11.  The discretion to postpone or adjourn a hearing must be exercised judicially and for the purposes for which it is conferred.  In exercising its discretion, a tribunal may take into account the impact of a postponement on the tribunal and on other tribunal users-see, for example, Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5 (Practice Note) [2008] 1 WLR 2380, but the discretion must be exercised in relation to the facts of each individual case-see Evans v Bartlam [1937 AC 473.  A fixed rule of policy by a tribunal in relation to the grant of postponements or adjournments would constitute an unlawful fetter of its discretionary powers, but even if such a policy is no more than a ‘starting point’ it carries the danger that it will be given too much weight in evaluating the competing factors in any particular case. It was therefore proper for the tribunal to have regard to the efficient use of resources and the interests of other tribunal users, but they were better dealt with as matters to be weighed in the balance in deciding whether to postpone or adjourn in the particular circumstances of each individual case, rather than as giving rise to a default position.

12.  Although most tribunals actively discourage unnecessary adjournments, I am not aware of any that have internal default procedures to assist in exercising their powers of postponement and adjournment, as asserted by the chairman in her letter of 20 April 2012.  Quite apart from offending against the most fundamental and basic principles of open and transparent justice, any such unpublished policy would prevent applicants from knowing what matters the tribunal would take into account when deciding whether to adjourn or postpone a hearing and would therefore prevent them from taking a full part in the proceedings, as required by rule 3(2)(b) of the overriding objective.  However, since I have concluded that the tribunal’s failure to consider exercising its case management powers before deciding to refuse the postponement application and to accept instead the patient’s application to withdraw his appeal were unlawful for the reasons set out above, I do not consider it necessary to decide whether the tribunal was in fact improperly influenced by any internal policy or practice relating to postponements and adjournments. 

13.  The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences.  Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal.  Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been the case.  However, since any practical benefit of this appeal has now been overtaken by events, I follow the course taken in BB v South London and Maudsely NHS Trust [2009] UKUT 157 (AAC) and simply declare the tribunal’s refusal of a postponement to have been in error of law.

14.  Rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies to this case.  Save for the cover sheet, which does not form part of the formal decision, this decision may be made public.

(Signed) E A L BANO

Judge of the Upper Tribunal

(Dated) 2 April 2013