In the recent case of AH v West London MH NHS Trust, a patient who had been detained in Broadmoor Hospital for 23 years under the Mental Health Act 1983 won the right to have a public hearing at the Mental Health Tribunal. On 17 February 2011, in the first decision of this kind, the tribunal ruled that the case could be heard in open court.
The tribunal found that once the threshold tests, set out below, for establishing a right to a public hearing have been satisfied, Article 6 European Convention on Human Rights requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty. Such a right can only be denied if enabling that right imposes a truly disproportionate burden on the state.
The threshold tests are as follows:
- Is it consistent with the subjective and informed wishes of the applicant (assuming he has capacity to make an informed choice)?
- Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views?
- Are there any other special factors for or against a public hearing?
- Can practical arrangements be made for an open hearing without disproportionate burden on the authority?
How the right to a public hearing can be practically and proportionately achieved will depend on the facts of each individual case, including the hospital's facilities.
The tribunal in this case directed that AH was to have a public hearing, not within Broadmoor Hospital, with the press, the public, AH and his representatives enabled to attend in person in the same hearing room.
It is likely that in future cases, if detailed evidence of how a video link would work in practice is provided, that a video link to off-site premises would suffice.