B, R (on the application of) v South Region Mental Health Review Tribunal & Ors

A Mental Health Review Tribunal has a wide discretion to regulate its hearing. It may admit a member of the patient’s clinical team during the patient’s evidence where the attendance has a proper clinical purpose and the hearing remains private. A tribunal may form provisional views as evidence unfolds, provided it considers all the evidence with an open mind and remains willing to change its view. Judicial review does not permit the court to re-evaluate competing expert evidence. Intervention requires irrationality, perversity, lack of evidential foundation or unsustainable reasons.

The claimant sought judicial review of the decision of the South Region Mental Health Review Tribunal dated 23 September 2007, which refused to discharge him from Broadmoor. He challenged the Tribunal’s admission of a nurse during part of his evidence, alleging procedural unfairness and apparent bias. He also challenged the Tribunal’s handling of its deliberations, its consideration of conditional discharge and earlier tribunal material, its assessment of witnesses and its findings of mental illness and risk under section 72 of the Mental Health Act 1983.

The central issues were whether the Tribunal had acted unlawfully or irrationally and whether its reasons and decision-making process were adequate.

1. Application dismissed. The Tribunal had power under Rules 21 and 22 to admit a nurse from the clinical team despite the claimant’s objection. The hearing remained private, the nurse attended for a proper clinical purpose, the claimant had been heard on the objection and he later had the opportunity to address the Tribunal without the nurse present. The reasons given were sustainable. There was no actual or apparent bias and no failure to maintain separation between the Tribunal and the hospital.
2. A tribunal may prepare for a complex hearing, discuss and analyse evidence as it emerges, and form provisional views. That is legitimate case management if the tribunal considers all the evidence with an open mind and remains ready to revise its conclusions. The Tribunal’s decision not to announce its conclusion on the final day, followed by a decision shortly after submissions, did not establish misleading conduct or bias.
3. The Tribunal had considered conditional discharge, although its reasoning was implicit. The absence of detailed discussion was understandable because the claimant sought absolute discharge, no conditions were proposed and the accepted evidence supported continued detention.
4. The earlier tribunal decision was used only as narrative background. The Tribunal expressly made a fresh and independent assessment. It was entitled to prefer some witnesses over others where it gave intelligible reasons.
5. The Tribunal’s findings of mental illness, the need for treatment and the risks arising from non-compliance with medication were supported by the evidence. Mere disagreement between experts did not justify intervention. A court should be slow to interfere with an expert tribunal’s evaluation of evidence.
6. Leave to add a late challenge to the form of the Tribunal’s decision was refused. The point was raised too late, caused prejudice and had no apparent merit. Costs submissions were directed to be made in writing.

This was a first-instance judicial review application. Permission had been granted for an oral hearing on 2 May 2008, and the claim was dismissed by the Administrative Court.