PD, R (on the application of) v West Midlands and North West Mental Health

A medical member of a Mental Health Review Tribunal is not necessarily disqualified merely because the detaining NHS trust is also the member’s employer. The question is whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there was a real possibility of bias. Where the member is subordinate to a party, the court must examine the safeguards supporting independence and impartiality. Relevant safeguards may include organisational separation, professional duties, protection from employment consequences, and conflict-of-interest guidance. The word “officer” in rule 8(2)(b) of the Mental Health Review Tribunal Rules 1983 means a person performing a managerial function; employment alone is insufficient. The practical consequences of a finding of bias are not relevant to applying the bias test.

The claimant was detained under section 3 of the Mental Health Act 1983 at Rathbone Hospital, operated by Mersey Care NHS Trust. Dr Izmeth, a medical member of the Tribunal, was employed by Mersey Care as a consultant psychiatrist at a different hospital and in a separate clinical directorate. He had no professional or personal connection with the claimant, the witnesses or Rathbone Hospital.

The claimant challenged the Tribunal’s refusal to disqualify Dr Izmeth and sought to quash the Tribunal’s decision not to discharge him. The issues were whether Dr Izmeth’s employment created apparent or unconscious bias contrary to common law and Article 6 of the Convention, and whether he was an “officer” disqualified under rule 8(2)(b) of the Mental Health Review Tribunal Rules 1983.

1. Claim dismissed. The Tribunal’s determination was not vitiated by apparent bias or by a breach of Article 6.
2. The common-law test and Article 6 required the court to ask whether the fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. The observer is balanced, neither complacent nor unduly sensitive or suspicious.
3. Where a judicial figure is subordinate to one of the parties, safeguards must be examined carefully to determine whether independence and impartiality are sufficiently secured. The reasoning in R v Spear [2003] 1 AC 734 was materially analogous.
4. The safeguards here included Dr Izmeth’s work in a separate, independently managed directorate; his lack of connection with Rathbone Hospital, the claimant and the witnesses; the absence of evidence that Mersey Care could discipline, report on, or materially influence him because of Tribunal decisions; his professional obligations to act independently; and applicable Tribunal conflict-of-interest guidance.
5. Those matters, individually and collectively, meant that the fair-minded observer would not conclude that there was a real possibility of bias. The Strasbourg decisions relied on by the claimant involved materially weaker safeguards and were distinguishable.
6. Rule 8(2)(b) of the Mental Health Review Tribunal Rules 1983 did not disqualify Dr Izmeth. In context, “officer” meant a person holding a managerial or office-holding function. An employee was not automatically an officer.
7. The consequences for Tribunal administration of accepting the claimant’s argument were not relevant to deciding whether the Porter test was satisfied. In any event, those consequences would have provided an additional ground for dismissal if they were admissible.