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

The test for apparent bias is whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. Employment by a party does not invariably disqualify a tribunal member. The nature of the employer, the employment relationship, the employer’s interest in the proceedings and the member’s professional and personal connections must be assessed objectively.

A consultant psychiatrist employed by the NHS trust responsible for a detained patient did not appear biased where he worked in a separate clinical area, had no connection with the patient or those responsible for the detention, and was not susceptible to employment consequences arising from the tribunal’s decision. Conflict-of-interest guidance may inform the assessment but does not determine it.

The appellant was detained for treatment under Section 3 of the Mental Health Act 1983. A Mental Health Review Tribunal dismissed his application for discharge. Its medical member was a consultant psychiatrist employed by the NHS trust responsible for the appellant’s hospital, although he worked in a separate clinical directorate and had no connection with the appellant, the hospital or the witnesses.

The appellant sought judicial review on the ground of apparent bias and also contended that Rule 8(2)(b) of the Mental Health Review Tribunal Rules 1983 disqualified the medical member as an officer of the trust. Silber J dismissed the claim. The appellant appealed with permission from Hale LJ.

The central issues were whether Rule 8(2)(b) disqualified the medical member and whether his employment created a real possibility of bias in the eyes of a fair-minded and informed observer.

1. Appeal dismissed. The Court of Appeal endorsed the test that apparent bias exists where the fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility that the tribunal was biased. The observer adopts a balanced approach and is neither complacent nor unduly sensitive or suspicious. Comparable authorities may assist, but precedent must not displace an objective, common-sense assessment of the facts.

2. Rule 8(2)(b) of the Mental Health Review Tribunal Rules 1983 did not itself disqualify the medical member. The extended definition of “officer” in Section 128 of the National Health Service Act 1977 did not apply to the Rules. In context, “officer” naturally referred to a person participating in the management or direction of the relevant authority. The medical member was an employee, but not an officer in that sense.

3. There is no general rule that an employee can never sit on a tribunal adjudicating in proceedings to which the employer is a party. The court must examine the nature of the employer’s participation and interest, the circumstances of the employment and any realistic means by which the employer could influence the member. The trust had no credible financial or defensive interest in preventing the appellant’s discharge. The medical member’s nationally regulated employment conditions also left no realistic scope for favourable or detrimental treatment resulting from his tribunal decisions.

4. The medical member worked in a separate geographical clinical area. He had no connection with the appellant, the hospital, the responsible medical officer or the witnesses. His professional responsibilities supported an expectation that he would exercise an objective clinical judgment. A different question might arise where a medical member worked at the patient’s hospital and had professional or personal contact with those responsible for detention.

5. The conflict-of-interest Guidelines did not demonstrate an appearance of bias. They permitted a medical member to sit at another hospital within the same trust and reflected concern about working contacts at a particular hospital rather than employment by the trust alone. Accordingly, the medical member was not disqualified and the tribunal’s decision stood.

1. Court of Appeal (Civil Division): By judgment reported at [2004] EWCA Civ 311, dismissed the appeal and upheld the rejection of the apparent-bias and statutory-disqualification grounds.

2. High Court, Queen’s Bench Division (Administrative Court): Silber J dismissed the application for judicial review on 22 October 2003. No citation is stated in the judgment.

3. West Midlands and North West Mental Health Review Tribunal: Dismissed the appellant’s application for discharge after rejecting the preliminary objection to its medical member.