SB v South London and Maudsley NHS Foundation Trust  UKUT 33 (AAC)
Reviewing appointment of legal representative The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so.
The following case report was kindly provided by Matthew Seligman of Campbell Taylor Solicitors (solicitor for the claimant):
Keywords: Mental Capacity Act 2005 – Rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care) Rules 2008 – appointment of a representative by the Tribunal – Form MH6b – R (oao H) v. SSH! – VS v St. Andrews Healthcare  UKUT 250 (ACC) – Senior President’s Practice Statement on the Delegation of Functions – presumption of capacity remains relevant after appointment
The Appellant was deemed to lack capacity and a representative appointed by the Tribunal under Rule 11(7)(b) – Subsequently he and his mother, who was his Nearest Relative, wished to change the appointed representative and contacted the Tribunal – The Tribunal did not re-consider or rescind the original appointment, giving the reason that the appointed representative objected – That was unlawful – Even after a patient is deemed to lack capacity and a representative appointed under Rule 11(7)(b), he is entitled to have his expressed wish to change the appointed representative lawfully considered – The presumption of capacity in s1(2) MCA 2005 remains relevant, even after the appointment – Further the Form MH6b communicating the appointment decision failed to advise of a right to apply within 14 days for the decision to be considered afresh, which undermined both the process and the decision.
The Appellant SB was detained under s3 of the Mental Health Act 1983 at the Respondent’s Dennis Hill Unit at The Royal Bethlem Hospital in October 2018. At the end of his initial 6 months of detention, on 1 April, 2019, the Respondent referred SB’s case to the Tribunal and stated that they considered he lacked capacity to appoint a representative. On 16 April, the Tribunal therefore issued Form MH3 for an assessment of the Appellant’s capacity and contacted a firm to see if they would be prepared to be appointed to represent SB. On receipt of the completed form, and confirmation of the firm’s availability, the Tribunal the next day appointed a representative for SB under Rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care) Rules 2008 (“the HESC Rules”) and subsequently listed the matter to be heard on 15 May, 2019.
Prior to the hearing, SB decided he would prefer his former solicitors to represent him. However, the Tribunal refused on 10 May, 2019 to rescind the appointment, on the basis that the newly appointed solicitors objected to the change. At that point, three working days before the hearing, the former solicitors withdrew to avoid further disruption. The hearing went ahead with SB represented by the appointed solicitors and he was not discharged. The former solicitors then entered an appeal on SB’s behalf.
The Appellant contended that it had been unlawful of the Tribunal to refuse to rescind the appointment simply because the appointed solicitor objected. His former solicitors, whom SB wished to appoint, had visited SB in hospital and on the basis of the lower test for capacity to instruct a representative set out in VS v St. Andrews Healthcare  UKUT 250 (ACC) considered him to have the relevant capacity to do so. He had completed a ‘Change of Solicitor’ form and further his mother, who was both his nearest relative under the Mental Health Act 1983 and his carer and attorney for the purposes of s4(7) of the Mental Capacity Act 2005, had counter-signed and actioned the request. The presumption of capacity in s1(2) of the Mental Capacity Act 2005 also applied. The Tribunal’s failure to take these matters properly into account simply on the basis of an objection by the appointed solicitor was unlawful.
In granting permission to appeal, Judge Gledhill also ordered disclosure and this led to Supplementary Grounds of Appeal being entered, based on criticisms of the Form MH3 which had been completed when SB was initially deemed incapacitous.
In giving Directions in the appeal, Judge Wikeley allowed the Supplementary Grounds and held that the matters complained of did fall within the Upper Tribunal’s appellate jurisdiction, notwithstanding that they related almost entirely to pre-hearing case management decisions by the Tribunal Office. (NOTE 1: Judge Wikely’s exposition in the substantive decision (paras 13-15, 24-25) of the source of Tribunal Officers’ powers under Rule 11(7), which originated from a delegation under Rule 4 of the HESC Rules and the Senior President’s Practice Statement on the Delegation of Functions, sets this in context. Accordingly, a mistaken operation of delegated judicial powers by a Tribunal Officer could amount to a legal error capable of being appealed.) The Respondent took no part in the appeal. In deciding the appeal on the papers, and allowing it in part, Judge Wikeley held:-
- 1. Form MH6b, 17 April, 2019: It was not necessary for the Court to deal with the criticisms of the Form MH3 on this occasion. However, Form MH6b was defective; in failing to notify the relevant 14-day time-limit it “failed to impress on the Appellant the urgency of mounting a challenge to the Rule 11(7)(b) appointment.” That was a material omission as a result of which the decision to appoint a representative was unlawful. (NOTE 2: It would seem to follow from this that appointed solicitors should ensure that the Form MH6b notifying the appointment decision is given to the incapacitous patient and/or his Nearest Relative, so that there is effective notice of the right to apply for a reconsideration within 14 days);
- 2. Tribunal decision of 10 May, 2019: In the absence of oral argument, the Court would not deal with matters raised under the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities on this occasion. However, the Tribunal’s refusal to rescind the appointment was held to be unlawful because:-
- The failure properly to notify the right to a review under Rule 4(3) of the HESCR Rules was material, and indicated a lack of due process;
- There was a failure to accord sufficient weight to the presumption of capacity in s1(2) of the Mental Capacity Act 2005;
- The Tribunal’s approach appeared to fail to apply the lower test of capacity set out in the authorities – see R (oao H) v. SSH ! and VS v St. Andrews Healthcare  UKUT 250 (ACC);
- The reason given by the Tribunal, that the appointed solicitors objected, was insufficient. “It cannot be right that a prior appointment under Rule 11(7)(b) necessarily trumps any other consideration.” Other important considerations included having regard to the patient’s wishes and feelings and those of his nearest relative under s4 of the Mental Capacity Act 2005 and the requirements of the overriding objective in Rule 2(2)(c) of the HESC Rules: “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.” Judge Wikeley held that:
- “The effect of the Tribunal’s decision was to abdicate decision-making responsibility and to accept the default position based on the existing solicitors’ assessment of the Appellant’s capacity – the very issue which should have been determinative of the question as to whether the rule 11(7)(b) appointment should remain in place.”
- The cumulative effect of the above was that the Tribunal decision of 10 May, 2019 was tainted by fundamental unfairness.
- 3. Tribunal decision of 15 May, 2019: None of the above rendered the Tribunal’s decision at the hearing on 15 May, 2019 unlawful.
The Appellant SB had subsequently been discharged and returned to live with his mother. It was not therefore necessary as a matter of discretion to set any of the above decisions aside, events long since having overtaken them.
Finally, the Upper Tribunal has no power to award damages. Such a remedy would have to be sought elsewhere.
Case-Report: Matthew Seligman
Appellant’s Solicitors: Campbell-Taylor Solicitors, London
Incident Dates: 17 April, 10 May, 15 May, 2019
Judgment Date: 30 January, 2020