I’ve just had a s37/41 recall hearing where the Judge has insisted on adjourning.
The reason for this is because the RC has changed her mind in the last few days and now supports conditional discharge but the MOJ haven’t specifically been able to comment on this and should be able to do so.
Obviously, I argued the point that the MOJ comments at Section G are now largely standardised and offer no recommendation on the clinical assessment however it fell on deaf ears as usual with this particular Judge.
I’ve never come across a Tribunal being so keen to adjourn from the outset and wonder if anyone is aware of any cases where MHT decisions have been challenged by the MOJ on this particular point?
Anyone aware of any case law on this particularly odd point?
Over the years I have had several occasions where the MOJ have taken issue with not being informed that there was new evidence before the MHT on the day, that they had not seen or commented upon. Given they are a party, they have a right to see and comment on evidence, even if they might just use their standardised responses. The real issue here is the significance of the evidence. In your case, a very significant change of opinion and the increased likelihood of discharge as a consequence. If the evidence doesn’t alter the opinions of the professional witnesses then it is probably not necessary to adjourn. It is a balance.
I think the judge was absolutely right to adjourn in your case to allow the MOJ to consider the RS’ change of opinion, even if they may have had some ulterior motive!
Thanks Ben, gone are the days it seems of tribunals saying ‘the moj comments are always the same let’s crack on’
I don’t disagree that as a party they should be able to comment. Just wondered if anyone had any creative counter arguments
The protocol between the MOJ and MHT (HMCTS and MOJ, ‘Guidance for the conduct of cases before the restricted patient panel’ (29/3/16)) still appears on the Gov.uk website and contains the following:
No notice evidence
2.20 The approach to ‘no notice’ oral evidence which directly contradicts the written evidence previously presented, for example where the Responsible Clinician now supports discharge contrary to their previously expressed opinion, is a matter for the exercise of reasonable judicial discretion at the hearing. The Tribunal will consider each case on its facts in the context of the relevant law, having regard to the power to adjourn and give directions if this is considered to be necessary, and to the interests of justice and fairness overall.
The 2009 version was similar:
2.20 The approach to ‘no notice’ oral evidence which directly contradicts the written evidence previously presented e.g. the Responsible Clinician now supporting discharge counter to his/her previous written reports is a matter for the exercise of judicial discretion. The Tribunal will consider each case on its facts bearing in mind the overriding objective, relevant case law and the power to set aside decisions contained in Rule 45.
Did your tribunal see it as a hard-and-fast rule that lack of comments should always lead to adjournment, fettering its discretion and jumping to a knee-jerk decision? Or did it consider the factors listed above, exercise its discretion “judicially” and give reasons for its decision?
From a practical point of view, the tribunal used to be quite predictable about adjourning for want of comments, and I vaguely remember phoning the Home Office/Ministry of Justice on the day of hearings to get them to confirm verbally or by fax that they had no comments on late evidence. Maybe the tribunal should have at least tried that in your case, to avoid delay. It might have been be possible. In a similar context, there is an agreement with the Department of Health for unrestricted references to be made on the day of a hearing (Mental Health Tribunal, ‘SM v Livewell Southwest - new process for references’ (30/6/21)).
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