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Cite as: [2013] UKUT 107 (AAC)

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MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC) (25 February 2013)
Mental health

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.


This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference MP/2012/00941 and dated 13 January 2012 did not involve the making of an error on a point of law.

Reasons for Decision

A.         Introduction

1.          Mr M is a patient detained at Rampton Hospital under section 37 of the Mental Health Act 1983. On 10 January 2012, he applied to the First-tier Tribunal. In December 2012 and January 2013, a panel heard legal argument. On 13 January 2013, they decided that there were no reasonable grounds for them to recuse themselves from the substantive hearing. A salaried judge gave Mr M permission to appeal against that decision on 10 February 2013. The hearing of the substantive application was listed for hearing over three days beginning on 20 February 2013. I directed an urgent oral hearing of the appeal, which was held on 18 February 2013. Mr M attended by video link. He was represented by Roger Pezzani of counsel and the hospital by Steven Kovats QC. I am grateful to all concerned for their co-operation in ensuring that the hearing could take place promptly.

2.          I announced my decision with a summary of reasons at 9 am on 19 February 2013. These are my full reasons.

B.         The issues and how they arose

3.          The tribunalís decision was formally presented in terms of recusal. The arguments on that issue ranged over issues of privilege, confidentiality, privacy, property in a witness, adverse inferences and a patientís Convention rights under Articles 6 and 8.

4.          The issues arose from the skeleton argument of counsel for the hospital (not Mr Kovats). Unpacking her argument, it came to this: (i) Dr G had visited Mr M; (ii) he had been instructed to prepare an independent report; (iii) Mr M was not relying on that report; (iv) the tribunal should infer that the report was not favourable to Mr M; and (v) that Dr G had concurred with the clinical teamís diagnosis and conclusions. Counsel also invited the tribunal to consider ordering disclosure of Dr Gís report. These arguments led to the other issues that I have listed.

5.          Mr Pezzani argued that the panel should have recused themselves. He did not argue that the panel should recuse themselves for bias or because they knew of Dr Gís visit. Tribunals will, as he admitted, often know that an independent expert visited a patient, because the medical member will have seen the patientís notes. He argued that the panel should recuse themselves in this case because Mr M would not receive a fair hearing in view these factors: (a) the way in which the case had been presented to them, (b) the fact that Mr M and his legal team could not respond to the argument, (c) the manner in which the panel engaged with the argument in their decision and (d) their failure to rule out the argument as a matter of principle.

C.         Waiver

6.          Just for the record, Mr Pezzani accepted that Dr G had visited Mr M, but he made no admission that he had prepared a report or as to the contents of any report. Nothing that he said could be taken as waiving Mr Mís privilege in any report that may exist.

D.        The practical answer

7.          It is unnecessary to resolve all the fascinating issues that were discussed in argument, because there is a practical answer to this case, and I suspect to almost every other case in which the same argument might be presented. The answer is that it would not be proper for the tribunal to draw inferences like those set out in counselís argument.

8.          As a matter of practical reasoning, the argument could never succeed in the form presented by counsel. The only thing known for certain is that Dr G visited Mr M. He might have done so for a number of reasons. It is only possible to draw more specific inferences by adding in the fact that Mr M has not given any explanation for the visit. If (say) Dr G was a personal friend, it would have been easy to say so. By putting together the visit with the lack of an explanation, it is possible to infer that Dr G came to interview Mr M for the purposes of some legal proceedings, possibly (perhaps probably) his application to the tribunal. It may even be possible to infer that his report did not support Mr Mís application. But simply as a matter of reasoning it is not possible to infer that Dr G agreed with the diagnosis and conclusions of the clinical team. That is too precise an inference to be drawn from the earlier steps in the reasoning.

9.          As a matter of law, counselís argument may not be permissible as a matter of law. It required inferences to be drawn from other inferences and there is some authority that this is not permissible in legal proceedings: Lord Hodson in Rubber Investment Ltd v Daily Telegraph Ltd [1964] AC 234 at 274.

10.       Most fundamentally, the argument presented failed to take account of the context in which the issue would arise. The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine any realistic circumstances in which a tribunal, having such evidence, could properly rely on the failure by a patient to produce a report as a basis for drawing inferences that would affect the outcome. The tribunalís duty, and the only proper course, would be to decide on the evidence available rather than speculate on possible explanations of why the report was not produced.

E.         Mr Pezzaniís arguments for recusal

11.       I now analyse Mr Pezzaniís arguments and explain why I reject them.

The panel should have recused themselves on account of the way the argument was presented to them

12.       I begin with the proposition that it is a judicial skill that judges should be able to disregard things that they have heard. In the Court of Appeal, a judge who has refused permission to appeal on the papers is allowed to sit with other judges if the application is renewed at an oral hearing: Khreino v Khreino [2000] 1 FLR 578. The judge is also allowed to sit on the appeal if permission is given: Mahomed v Morris reported in The Times for 3 February 2000. The judge is allowed to sit, despite having made a decision against the applicant. There can be no clearer illustration of the recognition that judges are able to keep an open mind than that. In this respect at least, there is nothing special about the judges of the Court of Appeal.

13.       This ability is recognised by the rules of procedure that apply in the First-tier Tribunal. Rule 15 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Chamber 2008 allows tribunals to rule on the admissibility of evidence and on issues that may be presented. That will almost certainly involve the panel knowing at least something of that evidence or those issues. And the circumstances in which the panel has to make its ruling means that it may well have to be made by the same panel that hears the substantive case.

14.       My reasoning so far relates only to the judge. The other panel members come from different professional backgrounds and may be less experienced in putting matters out of their minds. Even if that is so, there is always a judge present and it is one of the duties of that judge to ensure that the other members of the panel disregard evidence that is not properly before them.

15.       The detail in which, or the persistence with which, the argument is presented does not undermine a panelís ability to exercise this skill.

16.       There is also this practical consideration. Parties cannot choose the panel that hears their case. If a party could force a panel to recuse themselves by presenting arguments like this, they would effectively have that power. That cannot be allowed. Not that I am attributing any such motive in this case.

The panel should have recused themselves on account of the fact that it was not possible for Mr M and his representatives to respond to the argument

17.       As I put to Mr Pezzani, counsel in a criminal trial whose client admits guilt can still properly engage in arguing whether the evidence presented by the prosecution is sufficient to prove guilt. It is not permissible to argue that the client is innocent, but it is permissible to argue that the client has not been proved guilty.

18.       In the same way, Mr Pezzani could have engaged in a discussion about what inferences could properly be drawn from the information before the tribunal. He would not have waived any privilege that might exist by doing so.

The panel should have recused themselves on account of the way that they had engaged with the argument in their decision

19.       There are two answers to this argument.

20.       The first answer is that if a panel is entitled to hear an argument without recusing themselves, they must be allowed to explain their decision on that argument without recusing themselves.

21.       The second answer is that Mr Pezzaniís argument is based on a misreading of the panelís reasoning. My reading of what the panel said is that they were not engaging with the argument; rather they were explaining why they did not agree with it. I think that that is the only fair reading of the tribunalís reasons.

The panel should have recused themselves on account of their failure to rule out the argument as a matter of principle

22.       The panel did not rule out the argument in principle. It is important to understand what they did. Their reasons have to be read fairly and as a whole. On my reading, the reasons show two things. They show that the panel were scrupulous in leaving to the panel that ultimately heard Mr Mís application the right to make a decision on the argument that was appropriate in the context of the case as it finally came before the tribunal for decision. The reasons also show that, to put it at its lowest, the panel were sceptical that the argument presented could succeed.

23.       I am not going to embark on an analysis of all the issues that were canvassed in argument. Time did not allow me to read and consider all the authorities and arguments that were presented by counsel, especially in a skeleton argument dated 14 February 2013 and written by Rex Tedd QC and Nageen Khalique. It did not reach me until the morning of the hearing and Mr Pezzani had only a few minutes to study it before the hearing began. I am not sure that Mr Kovats accepted that skeleton in every particular.

24.       Mr Pezzaniís argument was that: (i) if there was a report, it was privileged; and (ii) it was, therefore, improper to draw any inferences from the fact that it had not been produced. Mr Kovats accepted that the report (if there was one) was privileged, but argued that the position was not so simple as Mr Pezzaniís argument suggested. He argued that:

             There was no property in a witness, so the hospital or the tribunal itself could call Dr G as a witness: Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1385.

             The expert could produce a separate report, which could be used in evidence: W v Egdell [1990] 1 Ch 359.

             These propositions were subject to the possibility of confidentiality in what passed between Mr M and Dr G.

25.       As I have said, I am not going to come to a final decision on issues that were not adequately explored at such short notice. I do, though, accept Mr Kovatsí argument to this extent: it would be dangerous to lay down a hard and fast proposition that would apply regardless of the circumstances. For that reason, the tribunal was right to express itself cautiously.

26.       It is, though, also right to record that I have some sympathy with Mr Pezzaniís argument. The Court of Appeal has said that it is not permissible to draw adverse inferences from a refusal to waive privilege: Sayers v Clarke Walker [2002] EWCA Civ 910 at [16]. The argument in the skeleton written by Rex Tedd QC and Nageen Khalique comes perilously close to depriving that principle of any effective substance. It may be that the principles relied on by Mr Kovats require some modification to protect a partyís privilege.

F.         Conclusion

27.       I have dismissed this appeal, because there is no legitimate basis on which anyone could suspect that Mr M might, let alone would, not receive a fair hearing from the panel listed to hear the case.


Signed on original
on 25 February 2013

Edward Jacobs
Upper Tribunal Judge


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