AR v West London NHS Trust  MHLO 49 (UT)
Public hearing and capacity (1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both both points.
Thanks to Kate Luscombe of Abbotstone Law (solicitor for the patient) for sending the judgment.
The following notes have been provided by Kate Luscombe:
In deciding AR’s appeal, Judge Jacobs held that the Tribunal was right to apply the MCA 2005, but applying Section 2(1) of the MCA misdirected itself, and fell into error by identifying ‘the matter’ as being the application for a public hearing.
Following the Court of Appeal judgments in Masterman- Lister v Brutton & Co [ 2003] & Bailey v Warren  EWCA; Dunhill v BurginB ‘the matter’ in question here was AR’s was ability to conduct litigation proceedings, not just the capacity to request a public hearing: it cannot be judged piecemeal and the FTT should have assessed AR’s capacity on that basis. Having found that AR did not have capacity in relation to his request for a public hearing, it was inevitable that it had to find that he lacked capacity to conduct ‘all aspects of those proceedings’ in which case rule 11 (7)(b) was engaged and the FTT should have appointed a representative, as applying YA v Central and North West London NHS Trust M the capacity to appoint a legal representative and capacity to conduct proceedings are inextricably linked.
Judge Jacobs found that the patient’s capacity was not an essential requirement for a public hearing, and that AR did not need capacity to litigate in order to apply for a public hearing. He could find no reason why in principle (taking into account AR’s Convention rights under article 6(1) and any qualifications) patients who lack capacity should not be entitled to have their best interests put to the Tribunal and taken into account in support of an application for a public hearing, as even persons who lack capacity may nonetheless be entitled to have their personal views taken into account. Following on from this, a finding of incapacity does not necessarily exclude a person from all participation in decision making.
In providing ‘guidance’ Judge Jacobs stated that the test is set out in section 3(1) of the MCA 2005, and is consistent with caselaw which makes clear that competence is assessed with the benefit of any advice or explanation that the person is likely to receive (this is embodied in section 3(2) of the MCA 2005). Beyond this Judge Jacobs considered that the more obvious salient factors of a public hearing are:
- The Tribunals powers of disposal are the same, regardless of whether or not the hearing is held in public. These powers will vary according to the nature of the case. Having the hearing in public will not affect the decision that the Tribunal makes within the scope of its jurisdiction under the MHA 1983. It does not acquire power at a public hearing to deal with any issue that is outside its jurisdiction.
- The Tribunals procedural powers are also the same regardless of the form of the hearing. They include the power to exclude people from all or part of the hearing. The nature of the hearing will not affect the way that the hearing is conducted, the evidence that is relevant, what the patient is allowed to say, or the outcome of the case.
- Members of the public, including the press, are allowed to observe and may wish to do so, although they may not. They are not allowed to take part in the proceedings.
- A public hearing is no guarantee of publicity, even if the members of the public do observe. The tribunal’s powers to limit disclosure remain the same as a private hearing.
- A hearing may adversely affect the patients’ health, for example as a result of receiving adverse publicity or realising that no one is interested in the case.
- Although the patient may want publicity, this may have a detrimental effect on others, such as family or any victim.
Judge Jacobs held that it is essential for the Tribunal to remember that the issue is the patient’s capacity, not the wisdom of the decision that is made. A patient with capacity has the capacity to make a bad decision or a decision for bad reasons. The quality of the decision is relevant to the extent that it may be evidence that the patient’s decision making is affected by ‘an impairment of, or a disturbance in the function of, the mind or brain’ for the purposes of section 2(1) of the MCA 2005. Second, it may be a factor to be taken into account, once the issue of competence has been decided, when applying the test under rule 38 TPR 2008 as part its assessment of the ultimate issue which is whether a public hearing is in the interests of justice.
Judge Jacobs considered that the Tribunal’s approach in AH v West London MH TrustM and M which set out the four relevant factors in deciding whether to direct a public hearing may have acquired a significance that is not justified. AH did not decide that a patient must have capacity in order to be allowed a public hearing.
In determining the appeal Judge Jacobs directed that the decision of the Tribunal should be set aside and the case remitted to the Tribunal for re-hearing by a differently-constituted panel: (1) in re-hearing the matter the Tribunal should obtain evidence on AR’s capacity taking into account the guidance provided on the salient factors that should be taken into account; (2) the constitution of the Tribunal makes it better suited to assess that evidence; (3) if the Tribunal finds that AR lacks capacity a legal representative should be appointed under rule 11(7)(b).