Upper Tribunal provides important guidance on proceeding without aftercare evidence

The circumstances in which the Mental Health Tribunal must adjourn to obtain evidence regarding aftercare have long troubled the higher courts and tribunals. The leading authority AM v West London Mental Health NHS Trust and Secretary of State for Justice [2012] UKUT 382 (AAC) (approved by the Court of Appeal in AM v West London Mental Health NHS Trust [2013] EWCA Civ 1010; [2013] MHLO 73) had been interpreted by some Tribunals as providing an almost unlimited discretion to proceed without aftercare evidence.

Now the Upper Tribunal has provided important guidance constraining the circumstances in which the Tribunal may proceed without aftercare evidence:

1. The Tribunal should adjourn to obtain aftercare evidence where it is capable of affecting the the outcome of the hearing. AM was a relatively unusual case where aftercare evidence was not capable of affecting the outcome.
2. It is procedurally unfair to refuse an adjournment request from a patient where the detaining authority has failed to provide relevant evidence such as that addressing aftercare.
3. The Tribunal must not 'kick the can down the road' and leave matters to be resolved by a future Tribunal. Procedural fairness applies at each stage of the process and an unfair Tribunal hearing cannot be cured by the possibility of a future hearing.