Southerns Solicitors Succeed Before the Upper Tribunal to Ensure Their Mental Health Law Client Receives a Fair Hearing.
A basic requirement of a fair hearing is that a person gets to participate in the proceedings. In this First Tier (Mental Health) Tribunal, our client, DB was not given that opportunity.
DB is a long term segregation patient and physical attendance at the hearing was always going to be a challenge. To ensure that DB would have the opportunity to participate in his Mental Health Tribunal, we requested a face-to-face hearing and a pre-hearing examination by the Tribunal doctor.
Because of a lack of availability for a face-to-face Panel, the Tribunal decided 24 hours before the hearing, to impose a video hearing in DBs case. This meant DB lost the opportunity to have his pre hearing assessment with the Tribunal Doctor, as there was no option in his case for a video pre hearing assessment.
We opposed the decision to change the Tribunal hearing from face to face to video and opposed the decision that the Tribunal should go ahead in DB’s absence, without his participation in any form and without his knowledge. The last point was particularly troubling as in the 24 hours before his Tribunal, the hospital told us that it was not possible to facilitate a call with DB. So, he was left in the dark as to what was happening.
Thankfully, the Upper Tribunal agreed that the First-Tier Tribunal’s approach was procedurally unfair and amounted to an error of law. They accepted our argument, that excluding DB from having any participation in his Mental Health Tribunal was unacceptable. His case has been remitted back for another First Tier Tribunal.
When liberty and treatment decisions are being made, every patient has the right to be heard.
This is an important decision reinstating first principles about what a fair hearing should look like and is an important reminder that administrative convenience cannot prevail over a patient’s right to participate in decisions relating to their liberty.
The decision can be read here: https://www.gov.uk/administrative-appeals-tribunal-decisions/db-v-1-lancashire-and-south-cumbria-nhs-foundation-trust-2-secretary-of-state-for-justice-2026-ukut-28-aac
The solicitor acting for DB in this case was Tom Battarbee, Solicitor & Accredited Mental Health Representative. Counsel instructed in the case was Helen Curtis of Garden Court Chambers, whom we thank for their assistance.
If you or someone you know needs advice or representation at a Mental Health Tribunal, please contact the Mental Health Law Team here at Southerns on 01282 422711
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