Re F [2021] MHLO 6 (FTT)

Order of evidence The tribunal, without first consulting the patient's representative, directed that the patient give evidence first in a video hearing, and rejected a submission that the responsible authority should be heard first. The representative stated that the judge had referred to a policy which required this order of evidence in CVP hearings (the panel judge accepted it was possible she used the term 'policy'). On review, the STJ decided that there was a clear error of law: if the justification for the direction on the order of evidence included reference to a policy, whether that was intended to convey a tribunal wide policy or a policy specific to this judge it would constitute an unlawful fetter of the tribunal's discretionary powers. There is no policy that patients must give evidence first in CVP hearings.

Note

The Deputy Chamber President has asked for this statement to be published: "Permission has been granted by the First Tier Tribunal to publish this case on the MHLO website. This is not a reported judgement. The decision is only made in relation to this case and as a decision of the FTT, there is no obligation on any other FTT judge or panel to follow this."

Thanks

Thanks to Ben Conroy (Conroys Solicitors) for providing this decision.

He also provided the following comment on the case:

It is extremely important that the legal representative confirms with the client whether and when the client wishes to give evidence, and advice on this issue is essential. It can potentially make a difference as to whether the patient remains detained or not. The tribunal should not, as it did in this case, make a decision on the order of evidence without consultation, or summarily dismiss submissions on the order of evidence made by the patient’s legal representative - remembering that the burden of proof, save in guardianship cases, is on the Responsible Authority and they should not automatically get to hear the patient’s or, indeed, the nearest relatives evidence, before providing their own.

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Subject(s):

First-tier Tribunal decisions🔍

Date: 4/12/21🔍

Court: First-tier Tribunal🔍

Judge(s):

Birrell🔍

Parties:

F🔍

Citation number(s):

What links here:

Published: 17/10/22 21:30

Cached: 2024-11-04 22:55:17