AM v Greater Manchester Mental Health NHS Foundation Trust & Anor

A tribunal may withhold information pending consideration of a restriction on disclosure under Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, rule 14(2), by using its general case-management power. A final restriction requires separate satisfaction that disclosure is likely to cause serious harm and that withholding it is proportionate in the interests of justice.

The tribunal must assess the person affected, the particular potential harm, its seriousness and its likelihood. It must also address the extent and form of disclosure. At a minimum, legal representatives should receive enough information to take instructions and obtain evidence relevant to the substantive issue, subject to their duty to comply with any restriction.

AM, a conditionally discharged restricted patient, applied to the First-tier Tribunal to vary the exclusion zone forming part of her discharge conditions under the Mental Health Act 1983. She sought to take up an offer of employment outside the permitted area. The zone protected V, whom AM had seriously attacked in 2015.

V made confidential representations about the application. The First-tier Tribunal disclosed them to AM’s legal representatives but withheld them from AM and the professional witnesses. It declined to vary the exclusion zone. AM appealed on the disclosure procedure and on the relevance of the zone’s effect on her ability to work.

The central issue was whether the disclosure restriction complied with rule 14(2) and, if it did not, whether the procedural errors were material.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the case was remitted for a rehearing before a differently constituted panel.

2. The interim order restricting disclosure pending consideration of rule 14(2) was capable of being made under rule 5 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. It preserved confidentiality until the statutory test could be determined; immediate disclosure would deprive rule 14(2) of practical effect.

3. Rule 14(2) contains two cumulative conditions. First, any serious harm must be caused by disclosure. The tribunal had to consider separately each person who might be harmed, each potential kind of harm, its seriousness, and the likelihood of it occurring. Its general reference to risk did not apply that test and was an error of law.

4. Secondly, proportionality in the interests of justice had to be assessed through the overriding objective. This included natural justice, meaningful participation, effective representation and the representatives’ duty to co-operate. The tribunal had to consider what information should be disclosed, to whom, and whether disclosure should be full, partial or by gist. It gave no structured or sufficient account of those matters. Its consideration of the proportionality criteria in Bank Mellat v Her Majesty’s Treasury [2014] AC 700 concerned the substantive application, not the rule 14(2) decision.

5. Following R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, a procedural irregularity is material where it was capable of making a material difference to the outcome or fairness of the proceedings. The disclosure errors met that test because they restricted AM’s representatives’ ability to obtain relevant evidence.

6. Although unnecessary to decide after ordering a rehearing, the Upper Tribunal stated that employment-dismissal authorities were not directly applicable to whether Article 8 was engaged. The practical extent to which the exclusion zone restricted AM’s ability to accept work was nevertheless a relevant consideration in deciding whether to vary her discharge conditions.

• Upper Tribunal (Administrative Appeals Chamber): Allowed AM’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing before a differently constituted panel: [2024] UKUT 438 (AAC).

• First-tier Tribunal (Health, Education and Social Care Chamber): On 22 May 2024, restricted disclosure of V’s representations and declined AM’s requested variation of the exclusion-zone condition.