PC v Cornwall Partnership NHS Trust

Before a mental-health tribunal may proceed in a patient’s absence, it must satisfy the conditions in rule 39(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. It must find that the patient either decided not to attend or was unable to attend because of ill health, and that the required medical examination was carried out, impractical or unnecessary. These are conditions precedent to the discretionary power in rule 39(1). Notification of the hearing and the interests of justice do not replace those findings. A patient’s poor engagement or previous non-attendance does not, without analysis, establish a decision not to attend or inability through ill health.

The claimant was subject to a Community Treatment Order and was recalled. His case was referred to the First-tier Tribunal, whose hearing was postponed and then relisted. A social circumstances report was filed the day before the hearing. The claimant’s solicitor sought a postponement, and then an adjournment, but the First-tier Tribunal proceeded in his absence.

The Upper Tribunal considered whether the First-tier Tribunal had made the findings required by rule 39 before proceeding, and also addressed errors in the separate reasons given by a First-tier Tribunal judge refusing permission to appeal.

1. The appeal was allowed. The decision of the First-tier Tribunal was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted for rehearing by a differently constituted panel.
2. Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 has two distinct parts. Rule 39(1) confers a discretion to proceed where the notification and interests-of-justice conditions are met. Rule 39(2) prohibits proceeding with a patient’s absence unless its separate conditions are satisfied. The requirements in rule 39(2) are conditions precedent to the power in rule 39(1).
3. The First-tier Tribunal had addressed notification and the interests of justice, but had made no finding under rule 39(2)(a)(i) or (ii). The evidence of poor engagement, difficulty making contact and previous non-attendance did not itself establish that the patient had decided not to attend. His absence might instead have resulted from his mental condition. The tribunal therefore erred in law by proceeding without determining either statutory possibility.
4. The Upper Tribunal does not review reasons given by a First-tier Tribunal judge for refusing permission to appeal. Such reasons do not form part of the First-tier Tribunal’s decision and cannot themselves establish an error of law: CIS/4772/2000 at [2]–[11]; Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [67]. The permission judge had also referred to the earlier version of rule 39, which did not contain the substituted paragraph (2).
5. Actual knowledge of the hearing is not required under rule 39(1)(a), but knowledge may form part of the factual basis for an inference under rule 39(2)(a)(i). It is not sufficient by itself. The procedural safeguards are particularly important in mental-health cases because the patient’s liberty may be at stake.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal’s decision of 3 November 2022 was set aside for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted for rehearing by a differently constituted panel.
• First-tier Tribunal (Health, Education and Social Care Chamber): Proceeded with the claimant’s mental-health case in his absence and made the decision appealed to the Upper Tribunal.