Staying out of the Wilderness of Single Instances: Some Thoughts on Context and Procedural Fairness

At the centre of R. (L.) v. West London Mental Health NHS Trust, [2014] EWCA Civ 47 was a man with significant mental health challenges. In a learned judgment, Beatson L.J. analyzed the requirements of the common law of procedural fairness and made some interesting observations about the challenges the common law poses for reviewing courts.

While in detention at a medium security psychiatric hospital, L threatened to attack a fellow patient and made makeshift weapons from his glasses and a pen. Alarmed by L's behaviour, his doctor referred him to a high security facility. A doctor from the high-security facility interviewed L. Reports from the two doctors -- and other reports from L's past -- were considered by an admissions panel at the high security facility. L was not given a copy of these reports. Neither he nor his legal representative was permitted to attend the hearing held by the panel. The panel ultimately decided to admit L, a decision he contested, claiming in part that his right to procedural fairness was breached.

Beatson L.J. started (at para. 67) from the "commonplace orthodoxy" that procedural fairness "is acutely sensitive to context" (a position which, he noted at para. 68, has been criticized) but identified two dangers "in concentrating on a flexible notion of overarching fairness" (at para. 69). The first is that the distinct concepts of procedural and substantive fairness -- a fair procedure and a fair result -- may collapse into one another. The second is worth quoting at length:

1. A second danger of emphasising flexibility and saying no more is that to do so may lead to a modern version of Sir William Wade's nightmare of a Tennysonian "wilderness of single instances" in which all the contextual factors will be relevant in considering what the requirements of procedural fairness are in a given situation without any factor or group of factors having decisive weight in shaping what is in practice required. The consequence may either risk obscuring the overarching principle or stating it at a level of generality which is not of use as a practical tool to decision-making. The result could be undue uncertainty and unpredictability. There is a need for principled guidance which is practical and does not constitute either a procedural straitjacket, a "safe harbour" for longstanding ways of doing things in a particular context, or operate with centripetal force towards an adversarial adjudicative process.

On the facts, L had fortuitously been able to put his side of story before the decision-maker (at para. 95). Nonetheless, Beatson L.J. held that the framework for handling transfers from medium- to high-security facilities was deficient. At a minimum, the individual should be given the "gist" of the concerns motivating the proposed transfer and an opportunity to respond:

1. I have concluded that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the "gists" of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital should be provided to the patient and/or his or her representative...In cases where this is not precluded by considerations of urgency, a clinical reason, or because of the risks I have mentioned, and the "gists" should be sent, this can be done by enclosing them with a largely pro forma communication informing the patient and/or his representatives that, if they disagree with the factual or clinical triggers for the reference or assessment, they can make submissions in writing which will be considered by the Panel. This does not, of course, preclude the hospital providing copies of the letter of reference and the assessment rather than the "gist" of those documents, but that is not, in my judgment a requirement of fairness in this context.

Part of the difficulty with the common law of procedural fairness is that several distinct issues are often conflated. Let me try to unpack them, purely as a descriptive exercise:

1. Scope. There are some decisions which do not attract a duty of procedural fairness at all. Often these are categorized as "administrative" decisions which do not affect rights and interests. But there are other categories: "legislative" and "commercial" decisions are often said not to attract a duty of procedural fairness. Decisions in "emergency" situations may represent another category. It would be fair to say that these categories have largely replaced the right/privilege and judicial/quasi-judicial/administrative categories that traditionally determined the scope of the duty of procedural fairness (or natural justice, as it was once known).

2.  Rights. Once it is determined that the decision attracts a duty of procedural fairness it must then be determined whether the individual is entitled to the particular right claimed, e.g. right to counsel, right to cross-examine witnesses, right to notice, right to make oral submissions. Usually there will be a specific test to determine whether the particular right should be granted. For example, the right to make oral submissions depends on whether viva voce testimony is necessary to establish the individual's credibility or resolve some factual disagreement.

3. Content. Once a right has been accorded, it might then be necessary to determine the content of the right. For example, a right to representation need not necessarily include the right to legal representation, perhaps because the decision-making body is supposed to act in a non-judicial, non-adversarial manner. Or an individual might be allowed to make submissions or call witnesses, but their extent may be limited by reference to the decision-maker's resources or other considerations.

4. Exclusions. After all this, however, the right claimed may simply be excluded by clear legislative provisions. Or a reviewing court might exercise its discretion to refuse a remedy, perhaps because the individual 'well knew' the basis for decision or because any procedural flaws did not affect the decision or were 'cured' on appeal.

Some might quibble with how I have unpacked the issues. Issue 4. is especially vulnerable because depending on one's view of the normative basis of procedural fairness the "exclusions" might have to be tied into "scope", "rights" or "content". I welcome comments. But I think the exercise is useful in explaining why this case caused Beatson L.J. so much angst.

L's case  was difficult, in my view, not because procedural fairness is "contextual" but because all four of these issues arose. Urgency militated against any right of procedural fairness (e.g. para. 76). L claimed rights to notice, disclosure and to make submissions. The appropriateness and content of any such rights was contested (e.g. paras. 78-79). And there was controversy as to whether the statutory and regulatory framework gave the reviewing court any room to impose additional procedural requirements (e.g. para. 77) and as to whether the court should have exercised its discretion to grant L a remedy (e.g. para. 95).

Beyond describing the four distinct issues, important and difficult questions arise:

• Is it appropriate to use categories at all in determining the "scope" of procedural fairness? I would say that a focus on context is a more effective means of identifying situations in which procedural fairness is required.
• Should deference be afforded to decision-makers in respect of any of these issues? It is difficult to see why deference should be refused on questions of "content". However, one difficulty is that decision-makers will often not have explained why they refused a particular procedural claim, something that makes it difficult to apply a deferential approach. But where a decision-maker has provided a reasoned decision deference is much easier to justify.
• What factors ought to be taken into account in evaluating whether an "exclusion" applies? As I indicated above, the answer may depend on one's view of the basis of procedural fairness.

Beatson L.J.'s scholarly judgment provides an excellent means of grappling with these important and difficult questions.

H/T Mark Elliott -- and also to Eddie Clark for much discussion on procedural fairness matters.