UK Court Victory

28 February 2010, London (UK) and Budapest (Hungary). MDAC welcomes a 17 February decision of the United Kingdom’s Upper Tribunal in the case of AH v. West London Health Trust. The judgment grants the request of AH, the appellant, to have a Mental Health Review Tribunal hearing held in public. Such hearings are normally held in psychiatric hospitals and are not open to the public.

Commenting on the significance of the case, Lycette Nelson, MDAC’s Litigation Director, said, “Drawing on international law, the Upper Tribunal recognises the right to a public hearing as an equality issue that cannot be denied to people with disabilities, including those detained in psychiatric hospitals.”

AH is currently detained at Broadmoor Hospital and has been detained in various hospitals since 1986. In a decision of 29 July 2010, the Upper Tribunal set aside the decision of the First-tier Tribunal not to grant AH a public hearing. The Court requested information regarding the practice in other jurisdictions regarding whether mental health review hearings were private or public.

The Mental Disability Advocacy Center provided the Upper Tribunal with a report on laws and practices in European jurisdictions as well as laws in Australia, Canada and the United States. In addition, MDAC’s report framed the right to a public hearing in terms of the UN Convention on the Rights of Persons with Disabilities (CRPD), in particular Article 13 which ensures people with disabilities access to justice on an equal basis with others. In its decision, the Upper Tribunal referred to MDAC’s report,  and also referred to the European Court of Human Rights’ judgment in the case of Alajos Kiss v. Hungary regarding the need for States to pay particular attention to violations of the rights of groups which have faced historical discrimination, such as people with mental disabilities.

The Upper Tribunal held that, if certain threshold conditions are met, “… article 6 of the European Convention on Human Rights (re-enforced by Article 13 of the CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his or her liberty, if this article 6 right to a public hearing is to be given proper effect. Such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state.”

AH was represented by Ms. Aswini Weereratne of Doughty Street Chambers, instructed by Duncan Lewis and Co., Solicitors. The Respondent West London Mental Health Trust has one month to appeal the decision.

Click here to read The Independent's article.

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