M, R (on the application of) v Mental Health Review Team

The apparent-bias question is whether a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias. A judge who made hospital and restriction orders under the Mental Health Act 1983 is not thereby disqualified from sitting on a later review tribunal. The later tribunal considers the patient’s condition and the safety of discharge at the time of review and cannot reconsider the validity of the original sentence. An informed and unequivocal decision, made with legal advice, not to object to the tribunal’s composition may waive the right to object.

The claimant was made subject to a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983. On a later application for review under sections 72 and 73, the sentencing judge sat as the legal member of the Mental Health Review Tribunal. The tribunal refused discharge because the claimant’s illness remained such that continued detention was necessary and his recovery required further testing.

The claimant sought judicial review, alleging apparent bias under domestic law and Articles 5(4) and 6 of the Convention. The defendant relied on the different statutory functions of the sentencing court and review tribunal and on waiver.

1. Claim dismissed. The governing test was whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.
2. The sentencing decision and the review decision had different statutory purposes. Under sections 37 and 41 of the Mental Health Act 1983, the sentencing judge assessed the evidence and circumstances existing in 2003. Under sections 72 and 73, the tribunal considered whether the patient was then suffering from the relevant disorder, whether detention for treatment remained necessary, and whether discharge should be absolute or conditional.
3. Following Regina (Von Brandenburg) v East London and the City Mental Health NHS Trust [2004] 2 AC 280, the tribunal had no power to review the validity of the original sentence. Its inquiry concerned the patient’s condition at the time of review and the foreseeable consequences of discharge.
4. The relevant circumstances did not create a real possibility of bias. The original hearing had been entirely open. The judge had no recollection of the claimant or undisclosed information from the earlier proceedings. The issues were not the same, or substantially the same, and the tribunal received fresh medical and oral evidence. The fair-minded and informed observer would attribute to the judge an ability to change his mind in response to rational evidence and oral argument.
5. The claimant had also waived any objection. He knew the material facts, received legal advice that he could object, understood that an objection might require an adjournment, and unequivocally decided not to instruct his advocate to object.