Victims (MHT)

Since the decision in R (Maher) v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin), Victim Liaison Officers have been requesting decision summaries. The decision on what to send is made by a judge. In nearly all of the 40-50 cases so far, these requests have been granted, though the full decisions have not been supplied (information from Deputy Chamber President to MHLA Conference on 15/11/24).

The Victims and Prisoners Act 2024 will allow victim impact statements to be submitted to the Mental Health Tribunal. The tribunal may have regard to the statement in relation to conditional discharge and conditions.

It will also allow victims to read the statement to the tribunal unless it considers that there are good reasons against. From a practical point of view, the tribunal will need to consider representations from the parties about attendance, for example whether it should be in person, by video, or by telephone (perhaps it would be desirable for the victim not know where the patient resides, or for patient and victim not to see each other).

The tribunal's policy on victims was amended after the Maher case - Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23) - but will be amended again when the Act comes into force.

Tribunal victims guidance. Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23) — This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review.
Form T144: Victim's representations to the Tribunal (September 2023) — This form allows the victim to provide representations on: (1) the tribunal's decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim's attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests., This form allows the victim to provide representations on: (1) the tribunal's decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim's attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests.
Tribunals Service, 'Information for Victims' (November 2009). This is not a current form.
Failure to provide reasons to victim. R (Maher) v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin) — (1) The Mental Health Tribunal in its first decision, in which it had refused to provide the mother of a victim of manslaughter the reasons for the conditional discharge decision, or a gist of them, had unlawfully fettered its discretion by applying a blanket policy or practice. (2) Around a year later, after judicial review permission on the "blanket policy" ground had been granted, the Deputy Chamber President decided to make a further decision. The tribunal had power to make this decision under its case management powers, but the decision itself was unlawful: (a) instead of directing herself that departing from the open justice principle can only be justified in exceptional circumstances when strictly necessary to secure the proper administration of justice, the DCP jumped straight to the presumption of privacy contained in the tribunal's rules; as a consequence she did not engage with the purpose of the open justice principle which is to both assist in justice being done through transparency and also to enable the public to have confidence in the system; (b) her focus on the mother's motives, which should not have been given weight in the overall balance, clouded her consideration of other, more relevant issues; (c) she did not direct herself that the extent of the derogation from the principle of open justice should be no more than is strictly necessary to achieve the desired purpose, and did not consider providing the mother with a gist or summary of the reasons; (d) she did not explain why a redacted version of the conditional discharge decision could not meet the patient's privacy rights or why redacted reasons were "not possible"; (e) she did not adequately explain her reasons; (f) she did not engage sufficiently with the reasons that the mother had put forward. The court noted: "The direction of travel in the last 30 years or so has been towards openness and a more rigorous scrutiny of exceptions to the open justice principle and creative thinking about how conflicting rights can be reconciled." (3) The refusal to provide the gist of the reasons for the conditional discharge decision, when the Parole Board would have provided a gist of its reasons in similar circumstances, was unlawful discrimination under Article 14 in relation to the mother's Article 8 rights. (4) The tribunal's decision not to allow a Victim Personal Statement, and the inability of a victim to request a reconsideration, were not unlawful discrimination given the different functions of the PB and the MHT.

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Victims (MHT)

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