The modern principles in Rules 14(7) and 38(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 state that all hearings must be held in private unless the Tribunal considers that it is in the interests of justice for the hearing to be held in public.
If a mental health patient is seeking a public hearing then they may apply to the Upper Tribunal for the privacy – and sometimes anonymity – protections to be lifted. Lord Justice Capwarth, in AH v West London Mental Health Trust  UKUT 264 (AAC);  M.H.L.R 326, established four key questions to be considered by the Tribunal when deciding whether to grant a public hearing;
- Whether the informed and subjective wish of the applicant was for there to be a public hearing;
- Whether a public hearing would have an adverse effect on the applicants mental health and the views of those responsible for his treatment;
- Whether there are any special factors, such as human rights considerations, for or against a public hearing; and
- Whether it would be practical or a disproportionate burden to hold a public hearing in the case.
The Tribunal will also consider whether it is in the public interest for the case to be heard openly. In exercising this discretion the Tribunal will usually consider the nature and extent of the patient’s understanding about the likely impact and ramifications of the hearing being in public, the patient’s safety at the hearing and the likely impact that upholding the security of the patient.
In part, the rationale for separating the treatment and care of mental health patients from the open administration of justice is that removing this protection could lead to further alienation or stigma when patients are reintroduced into society, after or whilst receiving treatment, which could impede their recovery. For this reason, the Tribunal also has the power to ensure that parts of an otherwise public hearing are held in private in order to safeguard the patients’ interests, for example when dealing with particularly sensitive evidence.
There are a few exceptions to this rule. The Domestic Violence, Crime and Victims Act 2004, for example, allows for the disclosure of information that may reassure the victim(s) where the local parole board considers it appropriate in all the circumstances of the case. But not all victims are treated in the same way and, even then, disclosure is only granted of strictly relevant information and should not lead to the disclosure of medically sensitive/confidential information.
There is also no presumption of anonymity in proceedings which are about the compulsory powers of detention, care and treatment under the 1983 Act, as was held in R (C) v SSJ  UKSC 2,  MHLO 2 — (1). In these circumstances a Judge must decide whether or not anonymity is necessary in the interests of the patient in each individual case and the circumstances and needs of that particular patient.
These rules and considerations are subject to change with new legal landmark decisions being made recently in R (on the application of C) (Appellant) v Secretary of State for Justice (Respondent)  UKSC 2. The decision in this case acknowledged the presumption of anonymity in mental health cases, and held that it was wrong that the presumption be applied in a blanket manner. Instead a balance should be struck between the rights of the public to be informed, the interests of the patient and the real progress that the patient could make if their anonymity is preserved by order or by private Tribunal.
Rhea Taylor-Broughton, Paralegal
Posted on Thursday, 8th March 2018