Perhaps the OO case needs discussion from separate perspectives: clinical and risk evaluation. I am fully aware that the UTT was seized of a legal issue stated as “This case is about the issue of “equality of arms” in terms of expert evidence at mental health tribunals, and in what circumstances fairness might necessitate adjourning to give a patient an effective opportunity to challenge the detaining authority’s case. ” That was a specific point of law.
Caution: Nothing that follows is a direct or implied criticism of clinicians or Tribunals.
The following is to be part of my evidence of reading, for CPD purposes.
Introduction to the case
OO, a man with paranoid schizophrenia and a history of sexual offences, found himself entangled in a complex legal and medical battle after reoffending in November 2021 while on conditional discharge—a form of supervised release. His case, now before the Upper Tribunal, exposed critical tensions between procedural fairness in mental health tribunals and the clinical realities of risk assessment.
Initially, OO’s discharge seemed imminent. His care team, including his responsible clinician Dr Padayatchi and forensic psychiatrist Dr Kottalgi, supported conditional discharge, citing his clinical stability and confidence in community safeguards. Trusting this consensus, OO chose not to involve an independent expert, a decision the Upper Tribunal later deemed reasonable. However, days before a pivotal hearing, the care team reversed its stance. Dr Nyein, OO’s new responsible clinician, abruptly opposed discharge after reviewing reports from forensic psychiatrists Dr Brown and Dr Baruah, who deemed OO “unsuitable for community placement.”
The timing of this reversal left OO in a precarious position. With no opportunity to secure his own expert or cross-examine Dr Brown and Dr Baruah—whose evidence heavily influenced the decision—OO faced a stark imbalance. The First-tier Tribunal upheld his detention, relying on unchallenged forensic opinions. The Upper Tribunal ruled this process unfair, emphasising the “equality of arms” principle: OO was denied a meaningful chance to contest evidence central to his loss of liberty.
Reflective practice
Clinically, the case raises salient issues for reflective practice. OO’s 2021 reoffending —a sexual assault committed while conditionally discharged - would normally have been a focal point for risk evaluation. It probably was but that was not a focal point for the Tribunals’ legal consideration of a narrow but important point of law. We are left unaware as to why did Dr Brown and Dr Baruah conclude OO posed an elevated risk (due to the nature of the case before the UTT). It would be interesting to learn if assessments addressed his mental state, treatment adherence, or the specifics of the Nov 2021 offence. This does not mean that clinicians or the Tribunals were at fault.
The proposed “community care package” was cited as “pending” but never finalised. No unescorted leave had been trialed to test OO’s readiness, and the forensic team’s late objections highlighted unresolved concerns about community supervision.
Understanding the Upper Tribunal’s focus
The Upper Tribunal’s decision centred on procedural fairness, specifically the principle of “equality of arms,” which ensures both parties have a fair chance to present their case. The Tribunal did not scrutinise the specifics of OO’s November 2021 offence. Instead, it focused on whether OO was denied a fair opportunity to challenge expert evidence used to justify his continued detention. The First-tier Tribunal (FTT) had refused multiple adjournment requests, even after OO’s care team reversed its position on his discharge days before the hearing. This left OO unable to secure independent expert evidence or cross-examine key witnesses, creating an imbalance that violated procedural fairness.
The illusion of consensus among clinicians
Initially, OO’s discharge seemed supported by his care team. Dr Kottalgi (forensic psychiatrist) and Dr Padayatchi (responsible clinician) recommended conditional discharge, citing manageable risks. However, days before the November 2022 hearing, Dr Nyein (new responsible clinician) reversed this stance after reviewing reports from Dr Brown and Dr Baruah, who opposed discharge. The community forensic team also raised concerns. This shift left OO unprepared, as he had relied on the initial consensus and opted not to hire an independent expert. The Upper Tribunal noted this reversal was based on forensic expertise OO could not challenge, thus violating fairness.
Unexplained shifts in clinical opinion
The judgment did not explore clinical rationale for why experts like Dr Brown and Dr Baruah deemed OO unsuitable for discharge (bearing in mind always the UTT’s legal focus). Their reports influenced the care team’s reversal, but the Tribunal did not (or need not) explore whether their conclusions addressed OO’s mental state, risk factors, or offence details (because of their specific legal focus). The Upper Tribunal emphasised the procedural unfairness of relying on unchallenged expert evidence and therefore did not need to dissect clinical merits.
My Takeaway Points
When managing patients with severe mental illness and a history of serious offending, clinical teams must integrate forensic expertise with day-to-day care. Discharge decisions often hinge on a fragile consensus among clinicians. Those can unravel when new evidence emerges. Late-stage shifts in expert opinions—particularly when based on forensic risk assessments not fully communicated to the patient or their representatives—risk undermining trust in the process.
Reoffending while under conditional discharge is a critical indicator of unaddressed risk-management. By dissecting new information I would further tailor interventions to address dynamic risks like impulsivity, loss of insight, or lack of empathy. If I do not address forensic history there would be a risk of premature discharge decisions.
Managing symptoms of mental illness is essential. Stability alone does not guarantee safety. My risk assessments must weigh static factors (e.g., prior offences) against dynamic ones (e.g., coping skills, insight). I should avoid over-reliance on clinical stability in the short term.
Discharge plans sometimes assume idealised community support. I should pay greater attention to practical challenges—like securing funding or trialling independence through gradual leave.