The case highlights the tension between victim rights, against the rights of the individual, in this case a restricted patient. Hundred Families have sought to gain parity between MHRT and Parole Boards where victims have a greater say in the decision making process. It could be argued that this judgement is a step towards this. However, I think that the errors in this case were one of process, that the FTT had not effectively considered the request of the victim.
My other impression is that the judgement appeared to try and remedy, make better, the poor response the victim had from the Victim Contact Service and also the understandable concern that the victim had for future risk. Both the victim and restricted patient resided in supported accommodation, and the inquest highlighted a number of serious failings in care. I think it understandable that the victim was seeking reassurance when it was evident that there were missed opportunities to intervene. Unfortunately, it is the case that users of mental health services and the wider community are regularly let down by services that are set up to support and protect.
The first criticism is that the FTT did not consider it’s discretionary powers when a request was made for a summary/gist of the decision to grant a Conditional Discharge. I do wonder if the FTT had directly considered the request, citing the potential impact upon the CD patient, potential breaches in his Article 8 rights, non-compliance with GPDR, that this would have satisfied the High Court.
When the request was considered a second time, it was accepted that there was no blanket refusal. Judge Johnson considered the privacy of the CD patient, but did not engage in the open justice principle.
- The reasons for and against rebutting the presumption of privacy in mental health cases needed to be weighed against the open justice principle as a proportionality exercise for the FTT to undertake when considering whether to exercise its discretion. Without having set out the rationale for the open justice principle the exercise becomes unbalanced.
Judge Johnson is criticised for focusing on the motivations of the victim, such as the information may have been requested to launch a legal challenge, and have the discharge set aside.
- The judge did not direct herself that the extent of the derogation should be no more than is strictly necessary to achieve the desired purpose. She did not consider providing Ms Maher with a gist or summary of the reasons in a way that would protect Mr Wilson-Michael’s privacy and provide the reassurance and solace she craved from understanding more about the Conditional Discharge Decision.
I think what is missing in this judgement is the consideration of the privacy of the CD patient, it is referred to in the FTT, but not in the judgement. It does not consider the implications of providing a summary.
What if the victim then shared this information on social media? What impact could this have upon the rehabilitation of the CD patient? What impact would it have on his Article 8 rights?
What was also missing was the application of the Public Sector Equality Duty in this case, though I suspect that when the Tribunal rules are reviewed in light of this case, this will need to considered. Any changes to the rules will likely require an Equality Impact Assessment, where the potential of direct or indirect discrimination would need close scrutiny.