Pre-Hearing Examinations - what is "exceptional"?

Good morning everyone,

I have a client at one of the high security hospitals and I am appointed under r.11(7)(b). Due to the client’s fluctuating capacity and the risk that he may not actually turn up for the hearing itself, I put in a request for a PHE.

I got a response back from STJ Bryer asking me to draft representations as to what makes the case exceptional such that a PHE is justified. I have looked through all the published guidance, but can’t find anything in relation to the factors which the Tribunal would consider tend towards a case being exceptional.

I have written back asking for guidance, but wondered if anyone has any experience of wringing a PHE out of the Tribunal and could share any insights into how they managed to wring blood from the stone!

Thanks a million


Hi Adam
There isnt any guidance on “exceptional circumstances”. You need to consider rule 34 and just outline why a PHE would enable the Tribunal to properly obtain a medical review of your client rather than a one sided view of that presented by the MDT.
If your client would engage in a PHE but not attend that needs to be stated.
Just put every point you can think of really…
Good luck
Ben Conroy.

1 Like

Arguably, the so-called “exceptional” circumstances are just the reasons that we would normally advise a PHE anyway!

Certainly the successful applications that I have seen have centred around:

  • rule 2 and the ability to participate fully (if not attending or the quality of the evidence would be better in a PHE setting, e.g. if your client is particularly anxious, LD and so on)

  • making use of having a psych on the panel (again, back to rule 2) and the medical issues engaged in the case and the need for a second opinion (on degree or on diagnosis in particular)

This is pretty much what the Upper Tribunal decided! They squared the circle by treating the word “exceptional” as effectively meaning “practicable”, i.e. just an exception to the PD’s deeming provision that PHEs are not practicable.

See EB v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 362 (AAC).