— The patient, who was in long-term seclusion, had asked for a face-to-face hearing so that he could at least participate through a pre-hearing examination (PHE). The afternoon before the hearing the format was changed to video because of panel unavailability. On the day, the tribunal refused to adjourn. (1) Its decision was unlawful because: (a) proceeding in the patient's absence and without a PHE, when he had expressed his wish to participate, breached rule 2 (Overriding objective); (b) the tribunal had refused to adjourn before considering rule 39 (Hearings in a party’s absence) and in applying rule 39 did not consider rule 2. In particular: (i) a PHE was not impractical (under rule 39(2)(b)(ii)) because it could happen if the medical member attended the hospital in person (whether or not the hearing was face-to-face or video); (ii) the tribunal was wrong to think a PHE would involve risk, as it could be conducted through the seclusion room hatch in the same way as the representative had recently taken instructions; and (iii) it was not in the interests of justice (under rule 39(1)(b)) to proceed without participation when some participation could be facilitated. Procedural fairness is important to improve the chances of reaching the right result (even in seemingly "open and shut" cases) and to protect the value of human dignity by avoiding the feelings of resentment which arise if a person is unable to participate effectively: this case was about the patient's liberty, he ought to have been able to participate via a PHE, and he felt that he had been "stitched up". The fact that it was a three-year reference made the need for procedural fairness even more acute. (2) The previous day's interlocutory decision to direct a video hearing rather than postpone was not unlawful, despite a factual misunderstanding, as it was an urgent interim decision which was clearly not binding on the panel and should have made no material difference.
Full details available at: https://www.mentalhealthlaw.co.uk/DB_v_Lancashire_and_South_Cumbria_NHS_Foundation_Trust_(2026)_UKUT_28_(AAC)?id=120326-1342