Mersey Care NHS Trust, R (on the Application of) v Mental Health Review Tribunal & Ors

Under rule 21 of the Mental Health Review Tribunal Rules 1983, a patient’s valid request and the tribunal’s satisfaction that a public hearing would not be contrary to the patient’s interests are jurisdictional preconditions. Their fulfilment does not remove the tribunal’s discretion. The tribunal must consider relevant matters raised by the parties, including the practical limits on controlling publicity, the patient’s understanding of the likely consequences, and relevant security or public-order concerns. A separate best-interests test is not required. Rule 21(5) applies to public as well as private hearings, but the protection available after disclosure in open proceedings is materially more limited. Reasons must show that the tribunal has grappled with substantial evidence and explain why material concerns have been accepted or rejected.

Mersey Care NHS Trust sought judicial review of the Mental Health Review Tribunal’s decision of 4 September 2003 to hold in public the statutory review hearing of Ian Stuart Brady, a restricted patient detained at Ashworth Hospital. The tribunal had concluded that Mr Brady had capacity to request a public hearing and that such a hearing would not be contrary to his interests.

The Trust challenged the decision on the grounds that the tribunal misunderstood its powers to control publicity, failed to consider relevant matters including security and the effect of publicity on the patient, and gave inadequate reasons concerning capacity and the patient’s interests. The central issues were the proper construction of rule 21 of the 1983 Rules and the adequacy of the tribunal’s reasoning.

1. Decision set aside. The tribunal’s decision of 4 September 2003 was flawed and was set aside. The matter was remitted to the tribunal for rehearing.
2. Publicity. The tribunal had materially relied on its understanding of Pickering v Liverpool Daily Post & Echo Newspapers plc [1991] 2 AC 370. Pickering concerned a private hearing and the operation of rule 21(5) with the per se contempt protection in section 12 of the Administration of Justice Act 1960. It did not establish equivalent protection for information disclosed during a public hearing. Rule 21(5) does apply to public and private hearings, but the strict-liability regime under section 2 of the Contempt of Court Act 1981 is narrower and more difficult to enforce after information has been disclosed openly.
3. Relevant considerations. The two express conditions in rule 21(1) do not exhaust the matters relevant to the tribunal’s discretion. Once relevant matters are raised, the tribunal must consider them lawfully. These included the practical limits on restricting publicity, the patient’s understanding of the likely impact and ramifications of publicity, risks to the patient’s safety and condition, and public-order or security considerations. A separate requirement to determine the patient’s best interests was rejected as artificial and confusing.
4. Reasons. The tribunal’s reasons did not address the Trust’s substantial security concerns or explain how it evaluated the evidence that publicity could adversely affect Mr Brady’s clinical condition. The discussion of understanding addressed capacity only and did not show that the tribunal had considered the consequences of a public hearing. A mere recital of evidence or submissions is not a substitute for reasons. The reasons on capacity itself were adequate because the limited evidence enabled the tribunal to explain succinctly why it was not satisfied that Mr Brady’s decision was not a true one.
5. Further consideration. At the rehearing, the tribunal should consider whether a purportedly public hearing would in substance be largely private or produce a misleadingly partial picture. It should also reconsider the issue in light of Mr Brady’s clarified position that he did not wish to waive confidentiality in medical or clinical information.

This was a first-instance judicial review in the Administrative Court. The challenged decision of the Mental Health Review Tribunal dated 4 September 2003 was set aside and remitted for rehearing.