OO v Central and North West London NHS Foundation Trust & Anor

In mental health tribunal proceedings, fairness may require an adjournment where a detaining authority changes its expert case shortly before the hearing. The patient must have an effective opportunity to challenge the evidence relied upon against them. This may require time to obtain independent expert evidence and an opportunity to question experts whose opinions underpin the detaining authority’s case. The principle of equality of arms does not require identical procedural powers, but the patient must not be placed at a net disadvantage. Although the First-tier Tribunal has broad powers to manage its procedure, the Upper Tribunal may intervene where refusal of an adjournment causes significant procedural unfairness and an error of law. A later application concerning another detention order does not necessarily cure the failure to provide a lawful and effective determination at the earlier stage.

OO was detained under restricted hospital orders made under the Mental Health Act 1983. Following a Secretary of State reference after his recall to hospital, the First-tier Tribunal initially heard evidence supporting conditional discharge. OO therefore reasonably decided not to instruct an independent psychiatrist.

Shortly before the resumed hearing, his new responsible clinician changed position and opposed discharge, relying on reports and views from two forensic psychiatrists who were not present to give evidence or be questioned. The First-tier Tribunal refused applications for postponement and adjournment and upheld the detention. OO appealed, arguing that the procedure was unfair because he lacked both independent expert evidence and an effective opportunity to test the opposing expert evidence.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for error of law and the matter was remitted for rehearing before a differently constituted panel.
2. OO had reasonably declined to instruct an independent psychiatrist when the available clinical evidence supported conditional discharge. Patients are not entitled to assume that clinicians will maintain their earlier recommendations, but a late and significant change in the expert case may create a need for further procedural safeguards.
3. The principle of equality of arms requires that differences between the parties’ evidential powers must not place the patient at a net disadvantage. In a case involving clinical criteria for detention, fairness may require an effective opportunity to obtain independent expert evidence.
4. The First-tier Tribunal also relied substantially on the opinions of Dr Brown and Dr Baruah, although neither attended the hearing. Questioning the witnesses who deferred to them was of limited value. OO therefore lacked an effective opportunity to test the evidence underpinning the case for continued detention.
5. The First-tier Tribunal had broad case-management powers under rule 5 of the FtT Rules, and the Upper Tribunal is generally slow to interfere with an adjournment decision. Intervention was justified because refusal of the applications caused significant procedural unfairness.
6. OO’s later rights to apply for review of concurrent restricted hospital orders did not remedy the earlier failure to provide the effective judicial determination required by the Mental Health Act 1983 and Article 6 of the Convention. The matter was remitted under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

• First-tier Tribunal (Health, Education and Social Care Chamber): On 29 November 2022, under number MM/2022/06325, upheld the Secretary of State’s reference and found that the statutory conditions for continued detention were satisfied.
• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the matter for rehearing.