RB v Nottinghamshire Healthcare NHS Trust  UKUT 73 (AAC)
(1) The Tribunal's reasons for not reconvening following non-implementation of its statutory recommendation were inadequate. (2) A decision had clearly been made not to transfer so there would be no point in requiring the Tribunal to reconvene or reconsider whether or not to do so; the decision was therefore not set aside.
In relation to recommendations, the judge said:
- 12. The power to make statutory recommendations is discretionary for the tribunal, but it must be exercised, like all a tribunal’s discretions, judicially. And once begun, it must be followed through fairly. It is obviously designed to assist in identifying the best way forward for the patient. But it operates by moral pressure and moral authority, not by order. The tribunal must be mindful of that limitation when deciding whether to make a recommendation in the first place. If it does so, it must carry the process through judicially, although the exercise of its powers will be tempered by the reality that it has no power to coerce.
- 16. I make no criticism of the tribunal’s original decision to make a recommendation. I am sure it was made for the best of reasons and I have no information on the thinking that led to it. The experience of this case may, though, provide a useful lesson for the future. It is surely undesirable to give a patient false hope. The first question is whether to make a recommendation at all. The more obvious the recommendation, the more likely it is that the authority will consider it anyway. So recommendations are likely to be made in those cases where the authority has not considered the possibility or would be unlikely to do so. If the tribunal does make a recommendation, it has to take account of the tenuous nature of its control. This makes it essential to consider very carefully the timescale and the directions that the tribunal might give in order (i) to apply its moral pressure on the authority and (ii) to be fully informed by the time it has to decide whether to reconvene. It may, for example, be appropriate for the tribunal to direct that a progress report be provided shortly before a specified date so that it can decide if there is any practical purpose in reconvening. Finally, the tribunal has to decide whether to reconvene. In making that decision, it has to decide what practical value this would serve. It has no power to enforce the recommendation and is not reconvening for that purpose. It has the power to embarrass the authority into explaining its thinking or, possibly, into compliance. But it has to make a judgment on what it can practically achieve, if anything. That is where the issue of proportionality comes in. It may be that that is what the tribunal had in mind in its reference to proportionality.
Case no: HM/0840/2010