Adjournment and recommendations The tribunal panel refused the s3 patient's adjournment request (which was on the basis of a lack of aftercare planning) though it indicated that it would be revisited if aftercare information proved necessary to decide on discharge. It refused to make a statutory recommendation but made an extra-statutory recommendation about transferring hospital and appropriate accommodation. Permission to appeal having been refused by the FTT and UT, the patient now renewed her application for permission. (1) The patient argued that the adjournment refusal was procedurally unfair, but the UT decided that: (a) in high-level terms, case management rulings should only be interfered with when "plainly wrong"; and (b) specifically, the panel's decision was consistent with caselaw in the mental health jurisdiction. (2) The patient also argued that the type of recommendation made undermined the purpose of the statute, given that a statutory recommendation was possible, but the Upper Tribunal decided that the panel had concisely explained a rational basis for its decision and was entitled to take the view that it should not get involved in the onward supervision of the patient's care. (3) The UT set out the test to be applied for permission to appeal: "I must find that the proposed grounds of appeal are arguable, in the sense that there is a realistic prospect of success in showing that the First-tier Tribunal went wrong in law in some way." [The Court of Appeal has expressed this differently: "The court will only
refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. ... The court can
grant the application even if it is not so satisfied. ... For example ... public interest ... or ... the law requires clarifying."] (4) The UT noted the courts' approach to expert tribunals' decisions: (a) it is probable that such a tribunal got the law right, decisions should be respected unless it is quite clear the tribunal misdirected itself on the law, and courts should not rush to find misdirections just because of the tribunal's conclusions on the facts (the UT judge christened this "the Lady Hale principle"); and (b) judicial restraint should be exercised when reasons are being examined, and the court should not assume a misdirection too readily just because not every step in its reasoning is fully set out (christened "the Lord Hope principle").
Thanks
Thanks to Ben Conroy (Conroys Solicitors, patient's representative) for providing the judgment.
Test for permission to appeal
See: Smith v Cosworth Casting Processes Ltd [1997] EWCA Civ 1099M.
1. The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word ‘realistic’ makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.
2. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying (emphasis in original).
