I’ve got a case where a victim of a mentally disordered offender who committed a very serious offence asked for their submission not to be shared with the patient as it could potentially pose a serious risk to the victim’s safety.
The tribunal initially agreed not to disclose the information - and subsequently (& unrelatedly) the patient asked for the Tribunal hearing to be cancelled.
For reasons which have never been explained the Tribunal appears to have gone ahead anyway in the patient’s (and presumably their lawyer’s) absence, and then decided to release the victim’s submission to the patient anyway. Clearly the panel did not have all the risk information to make this decision safely.
They didn’t talk to the victim or even let them know of their decision. (The patient told them).
I understand Tribunal Rule 14 allows submissions to be withheld if there is the potential for harm to the patient or others - which the victim argues is the case here.
I’m also being told that the Judge’s decision cannot be challenged by the victim (& as they’re not a party obviously they can’t appeal).
So what are the options to find out what happened, why the panel took this potentially dangerous decision, and how can it be stopped happening again?
This is an odd situation which I am still getting my head around. Hopefully others will chip in to fill the gaps and correct my mistakes!
The first unusual thing is that the hearing proceeded without the patient (although not unheard of, certainly at the moment, with cases that have been referred to the Tribunal - which would explain why they didn’t cancel at his request).
With regards to rule 14, the test isn’t quite as simple as you have put it. There are two limbs to the test: there must be a risk in disclosing the information, but it must also be in the interests of justice to withhold it. What this means in practice is that information can be disclosed to the patient, even if serious harm is likely, if disclosure is required to allow them to effectively challenge their detention. This is best explained in RM v St Andrew’s [2010] UKUT 119 (AAC). The reality is that quite often the FTT will order disclosure on the basis that although there is a risk of harm, it isn’t likely or the harm wouldn’t be serious.
Ordinarily the FTT / patient would receive the victim’s representations through the VLO (I am presuming that the patient is a restricted patient). The information that they would get would be very limited, as it is restricted to evidence submissions regarding the conditions to which the patient should be subject if discharged.
The victim may have standing for Judicial Review if there was a procedural or legal irregularity which has placed them at risk. However, it is hard to see what the remedy is if that is the case - the patient now has the information that the victim is concerned about.
I would suggest, firstly, that the victim speaks to the VLO. They can request certain (albeit limited) information regarding the outcome of the Tribunal, and may be able to get some clarity as to what was disclosed to the patient, and why.
Hope this is helpful
The victim probably would have standing (sufficient interest) to apply for judicial review - and could seek a declaration that the decision was unlawful, and argue that it’s not academic as it could happen again. I’d get advice from counsel.
Charlie mentioned the temporary coronavirus power to dispose of proceedings without a hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so, which the MHT have been using, probably unlawfully, for uncontested reference cases: see Mental Health Tribunal and coronavirus. It would be interesting if the victim could show that, had there been a hearing with the opportunity to hear evidence on risk, the tribunal would not have made the decision it did.
Of course, it may be that the tribunal judge made the right decision!
Thanks very much for the replies. A couple of points of clarification. The tribunal hearing was for a Restricted patient and took place before the lockdown. The hearing was to supposed to determine whether a conditional discharge should become an absolute one.
The family has spoken to the VLO but the answers to date have not been very illuminating and failed to answer all the questions.
Is the only remedy Judicial Review - and as you say is there an effective remedy now the patient has the submission?
Realistically as not a lawyer, how much does counsel’s opinion for a JR cost?
And it’s a bit concerning Tribunals are taking decisions about risk to others - even when serious harm to others may occur without informing potential victims. Surely ‘the interests of justice’ must apply to victims as well as patients?
The account seems odd. If the patient was conditionally discharged it is very unlikely that the case was referred to the Tribunal. If a patient who has applied then wants to withdraw this is usually allowed. The patient could have been unrepresented and not had a solicitor but this makes it harder to understand why the hearing went ahead in his or her absence or how the information in question was communicated. It is possible that an order against disclosure was made on an interlocutory basis and then reviewed at the hearing. As Jonathan Wilson has said disclosure could have been ordered in the interests of justice even though there was a risk of harm, but this is harder to see if here as no patient at the hearing and no representative either. So one question would be how confident are you about the facts that you have? Second question is what the outcome of the Tribunal was. If the patient was absolutely discharged it will not be an issue again. One option would be not to make representations in any future case. Finally, in a restricted case the MoJ is a party and would have a right of appeal although it would now be out of time. The VLO would be the best likely avenue.
I’ve been reliably informed that this could be about £1000.
She might be eligible for Legal Aid though.
It would be good to hear how this pans out.
I’ve been back to check with the victim - it seems they were told that the Tribunal did not actually meet after the patient requested the cancellation, but that a decision was still taken to disclose the victim submission to the patient and their solicitor.
Can such decisions be made independently when the Tribunal is not sitting? How can we be assured such decisions are lawful?
Where is the victim’s information coming from? I wonder whether it is accurate, especially to the extent that it is coming from the patient. It would be good to get it from the horse’s mouth. The tribunal might answer simple questions sent directly from the victim - “Was my statement disclosed to the patient?” and “If so, why?”
It’s normal for the tribunal to send not-to-be-disclosed documents to the patient’s representative on condition that they not be disclosed to the patient (see rule 14(5) and (6)). I’ve never seen a “super injunction”-type order, so the representative can decide whether or not to tell the patient that a document has been received. It may be that this has happened and the patient has correctly guessed the source and/or contents.
As Jonathan says if a request is made to the Tribunal not to disclose information and/or documents it is not uncommon for the Tribunal to make an interlocutory decision itself to direct non disclosure but send the information to to the patient’s rep who should not disclose the information or that an order has been made. The rep (or any other party) is at liberty to make an interlocutory application for disclosure ahead of the hearing and the Tribunal would reconsider the matter on the day in any event. The information you are getting still does not really seem to stack up. If the patient seeks to withdraw and the Tribunal agrees it cannot then review the not to disclose decision. It is also hard to conceive of circumstances where, on receiving a withdrawal request the Tribunal would before considering that request, of its own motion reconsider the not to disclose information within proceedings that it as about to end. There would be no reason to do so.