Mental Health - September
Disclosure in mental health tribunal proceedings
In its first mental health decision,
the new appeals tribunal has given important guidance
Wherever possible, hospitals, patients and
their solicitors should try to agree on what documents are to be
disclosed in mental health proceedings. That is the view of a new
appeals tribunal in its first ever mental health decision.
The new, ‘second-tier’ tribunal will hear a
wide variety of health, education and social care appeals. In
Dorset Healthcare NHS Foundation Trust v
MH [2009] UKUT 4 (AAC) a detained mental health patient
wanted access to his medical records. The ‘first-tier’ tribunal
gave him that access but the hospital in which the patient was
detained challenged the decision.
The appeals tribunal criticised many of those
involved in the case: the hospital, for making the challenge in the
first place; the patient’s solicitors, for involving the tribunal
prematurely; and the tribunal itself, for making its decisions too
timidly. But the appeals tribunal also gave valuable guidance on
how disclosure disputes should be resolved in the course of mental
health proceedings:
- All parties should be flexible, seek to avoid
formality and do all they can to avoid applying to the
tribunal.
- Where a direction is required, the tribunal
has broad powers.
- The starting point is full disclosure, and
the burden will be on the hospital to show why it should not be
given.
- If there is confidential information
concerning a third-party, he or she should be invited to consent to
its disclosure.
- Even without consent, it might still be
possible for a hospital to disclose third-party information to a
patient’s solicitors, subject to their undertaking not to disclose
that information to their client.
- If agreement still cannot be reached, the
parties should commit their respective arguments to writing.
- Ultimately, it might be necessary for the
party seeking an order to apply to the tribunal. If so, all parties
should identify issues on which they have been able to agree.
- Ordinarily, it is the first-tier tribunal
that will consider such an application.
- The tribunal might wish to obtain the
third-party’s views on disclosure. If so, those views should be
solicited by the hospital. A third-party should not have any direct
involvement in the tribunals’ procedures.
There is something else this case reveals: the
tribunal has far stronger disclosure powers now than ever before.
Under the rules that used to apply, the tribunal could itself
disclose documents, but only if it had already received them. And
it couldn’t compel one party to give disclosure to another. Under
its shiny new rules, however, a tribunal can direct anyone to
disclose documents to anyone else, even if it has not received
those documents and regardless of whether it even wishes to see
them. This power might not be widely understood.
David Hewitt,
Partner
Weightmans LLP
david.hewitt@weightmans.com