Upper Tribunal (Administrative Appeals Chamber)

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/2012/25698, made on 11 September 2013, did not involve the making of an error on a point of law.

Reasons for Decision

A.         Introduction

1.          The issue in this case is whether the medical member of the tribunal who was listed to hear the patient’s application on 6 November 2013 is biased against the patient’s responsible clinician. For convenience, I refer to the latter as RC. I say was listed, because I have been told that the panel for 6 November has been changed. That was a pragmatic decision. If I had allowed the appeal, a new panel would have had to prepare the case at short notice.

2.          There has already been a hearing on 11 September 2013. At the start of the hearing, the tribunal decided that there was ‘no question of a conflict between’ the doctors. The hearing continued and RC gave evidence. The application is now adjourned to 6 November and the First-tier Tribunal has given the hospital permission to appeal to the Upper Tribunal on the issue of bias. The case has also been put in terms of the overriding objective, but in the circumstances of this case that seems to add nothing to the argument on bias.

3.          I am grateful to those representing the parties for their cooperation in ensuring that this appeal could be decided expeditiously. Neither the hospital nor the patient wanted an oral hearing. The patient’s solicitors made written submissions last Friday, 1 November, and I have been able to make my decision today, the following Monday. I have not given the hospital a chance to comment on the patient’s submission because it was essentially supportive of the application that the medical member should recuse himself on the ground of real possibility of bias. 

4.          Following a hearing in December 2010 concerning a different patient detained at a different hospital, both the presiding judge and the medical member expressed their concerns about RC. The judge wrote:

5.          The medical member reported RC to both the Care Quality Commission and the General Medical Council (GMC). I have a copy of the letter he wrote to the triage team of the GMC in February 2011 expressing his concerns in detail; they cover 1½ pages of A4. RC has pointed out that ‘no complaints are made around integrity, conduct or probity.’

6.          All I know is that the GMC took no disciplinary action against RC, but a letter was issued with his explanation of what had happened. I have not seen that letter. I assume that the GMC was satisfied by that explanation, at least to the extent that it was not necessary to take further action.

7.          The medical member was listed as part of the tribunal due to hear the patient’s appeal. The patient was detained at a different hospital from the one where the 2010 hearing took place, but it is part of the same group. RC had recently taken over responsibility for the patient’s care at this hospital.

8.          The hospital’s Mental Health Act Administrator warned the tribunal service before the hearing that there was a conflict between the two doctors. RC said that he had been advised by the Medical Protection Society not to attend the hearing to give evidence. The medical member did not recuse himself. The patient’s solicitor says that her counsel did not oppose the application that the medical member recuse himself.

9.          The tribunal decided that the issue had now been concluded and commented that the medical member ‘is acting in his professional capacity as a tribunal medical member.’ I take that to mean that he would be able to take a detached attitude to what had gone before and decide fairly and objectively on the evidence in the case. In the event, RC did attend and give his evidence.

10.       The patient’s solicitor says that the sole issue put to the tribunal was a request for formal recommendations in respect of leave or a community treatment order. The tribunal decided to adjourn for further information to be obtained and provided. RC had only taken over the patient’s care in mid-August, and there was no proposed treatment plan, no leave plan and no care plan. The patient’s solicitor says that RC was surprised that these plans did not exist and in essence agreed that the material would be helpful. It respectfully suggested that RC consider trying the patient on a low dose of a medication that she had tried before. It adjourned with directions for the required information to be provided, saying in conclusion:

11.       Bias comes in different forms. Two are relevant in this case: actual bias and the real possibility of bias. The test for actual bias is whether the tribunal member is partial in the sense of favouring one side or being hostile to another. The test for the real possibility of bias 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’: Lord Hope in Porter v Magill [2002] 2 AC 357 at [103].

12.       These categories are theoretically distinct, but more difficult to distinguish in practice. The reason lies in the realities of proof. A tribunal member is unlikely to admit to actual bias. It will often only be provable by inference from the circumstances. And the circumstances that might show actual bias are likely to be those that show a real possibility.

13.       Whether or not a member is biased depends on the facts of the individual case. Citation of authority can be dangerous: Lord Phillips MR in R (PD) v West Midlands and North West Mental Health Review tribunal [2004] EWCA Civ 311 at [8]. The courts have, though, given indications of the sort of factors that are relevant to the real possibility test.

14.       In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, the Court of Appeal said:

25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers … By contrast, a real danger of bias* might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind …; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

* This is the language of the former test. It now needs to be updated to a real possibility of bias.

15.       And in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416:

2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious … Her approach must not be confused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

E.         Analysis

16.       I have applied the law set out in those decisions and decided that in the circumstances of this case the medical member was not actually biased and there was no real possibility that he might be so. In coming to this decision, I have taken account of the following.

17.       The 2010 hearing from which this issue arose was nearly three years ago.

18.       The tribunal, including the medical member, confirmed the patient’s detention. In a sense, it decided in RC's favour. Any hostility that the medical member may have felt towards RC was not reflected in the decision.

19.       The concerns that the medical member expressed were not just his own. The presiding judge shared those concerns and was sufficiently troubled to put them into writing. There is also a reference to the possibility of the patient’s solicitor making a formal complaint, presumably to the hospital. 

20.       Both the judge and the medical member made similar criticisms of RC's performance at the hearing.

21.       There is no evidence to suggest that the medical member may have improperly influenced the judge in forming or expressing those criticisms.

22.       The judge’s criticisms were limited to RC's performance at the hearing, whereas the medical member extrapolated from that to RC's ability to undertake his medical duties. The ability to do so no doubt reflects the member’s experience and background.

23.       I have not been told what explanation RC gave to the GMC and it is not my role to investigate. But on the face of it, the criticisms of his performance at the tribunal were expressed moderately and explained by reference to his performance at the hearing. They were not wild allegations, intemperately expressed, and without supporting evidence.

24.       All doctors who have concerns about another doctor’s fitness to practice are entitled, even obliged, to draw that to the attention of the appropriate authorities. It does not matter in what capacity that information comes into their possession. All doctors should know that their performance is open to scrutiny in that way. They should accept that as part of the discipline of the profession in which they practice.

25.       I do not know who took the decision in 2011 that the medical member would not sit on cases at the hospital involved in the 2010 hearing. That was not the hospital involved in this case, although both are part of the same group. I assume that the decision was limited to the one hospital, as that was the one where RC was based. It may well have been a practical decision, as RC would (quite naturally) have felt some animosity towards the medical member, even if that was not reciprocated. However, the fact that different hospitals are involved is irrelevant. The issue is between RC and the medical member wherever they may be; it does not have a geographical limit.

26.       The information before me does not show that the medical member was actually biased against RC in 2010-2011. The only motive I can infer from the evidence is that the medical member was concerned about the patient involved in that case and other patients in RC's care. There is no basis in the information on which I could infer improper partiality or hostility. On that information, a fair-minded observer who understood how tribunals operate in the mental health jurisdiction and the role of a responsible clinician in those proceedings would not consider on the basis of the actions and words of the judge or the medical member that they were personally biased against RC. 

27.       However, I will now assume for the sake of analysis that, if I had the whole of the information about what happened in 2010 and 2011, it would indicate a real possibility of bias at that time. If there were, circumstances have now moved on.

28.       If a doctor has a concern about another doctor, the proper course is to report the matter to the GMC. That is what the medical member did. The matter is then a matter for the GMC alone. It did not consider that disciplinary action was required. It made a decision as the body entrusted to decide on the competence of doctors to practice. It was satisfied that RC could continue to do so and there was no reason why the medical member should not accept that as a decision of the appropriate body. He had discharged what he saw as his professional obligation to report the matter and he had a responsibility to accept the decision of the GMC.

29.       All members of tribunals are expected to be able to take a detached approach to a hearing and to recuse themselves if they cannot do so.  

30.       All three members who sat on 11 September were satisfied that the medical member would be able to take a detached approach to the evidence of RC. It is possible, although I cannot be sure, that the members have sat before and so did not form their opinions just on what the medical member said. The tribunal as a whole made the decision. It is my experience that members of tribunals are conscious of their individual responsibility and independence; they are not easily persuaded to agree to a decision or procedure they think is wrong.

31.       RC was sufficiently concerned about the presence of the medical member at the hearing that he consulted the Medical Protection Society and, he told the tribunal, was advised not to attend the hearing to give evidence. I accept that as an accurate report of what he was told, but do not know the reason behind it. On the face of it, this was strong advice to fail to provide evidence required in judicial proceedings, with potential detriment to the patient concerned. I note, however, that RC did attend and give his evidence. That is to his credit.

32.       I do not read anything in either the tribunal’s decision or in the reasons given for that decision that indicate criticism of RC. Quite the contrary, the tribunal recognised his difficulty as someone who had only taken over the care of the patient a month before the hearing. Its concern to have the information necessary to make a decision is sufficiently explained by its inquisitorial role. Not to mention the point made by the solicitor for the patient, that RC effectively agreed that this information was required.

33.       The information before me does not show that the medical member was actually biased against RC at the September 2013 hearing. The only motive I can infer from the tribunal’s decision is that the tribunal as a whole, in agreement with RC, was concerned to have all relevant information about the patient. There is no basis in the information on which I could infer improper partiality or hostility. On the information I have from the hospital, the patient’s solicitor and the tribunal’s decision, a fair-minded observer who understood how tribunals operate in the mental health jurisdiction and the role of a medical member in those proceedings would not consider that any possibility of bias that existed in 2011 continued into late 2013 or had arisen since 2011. That observer would know that tribunal members are selected for their ability to take a detached point of view and that doctors accept, as they have to, the decisions of the disciplinary body for their profession made after appropriate enquiries.

34.       I do not criticise the decision to give permission to appeal to the Upper Tribunal. It is possible that the judge thought that a decision of this tribunal would be helpful as a precedent for other cases. I would, though, say for the future that decisions on recusal are best challenged, if at all, after the proceedings are concluded. Concerns about bias regularly arise, but bias is fortunately rare. All too often the outcome of the case either disposes of the concern or the full circumstances of the case show that any remaining concerns are without foundation. In those rare cases when bias – usually the real possibility of bias –is established, there is an adequate remedy in setting aside the decision. This will, inevitably, result in delay for the patient’s decision. But this has to be set against the disruption to the listing arrangements if tribunal members have to be replaced, perhaps at the last minute. This can result in members not being properly prepared or the need for an adjournment, neither of which is desirable.

35.       I have no doubt that RC is bitterly resentful of what happened in 2010 and 2011. He feels himself vindicated by the GMC’s response. He is suspicious of the medical member and distrustful of his ability to take a detached and objective approach to his evidence. All that is natural and understandable. But that said, the legal issue on which I have to decide this case is bias and, for the reasons I have given, there is no evidence from which it would be permissible to infer actual bias and no grounds for finding that there is a real possibility of bias.