KH v Nottinghamshire Healthcare NHS Foundation Trust [2025] UKUT 128 (AAC)
Thanks
Thanks to Amy Romero (Bisons Solicitors) for providing the judgment.
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.
Upper Tribunal
KH v Nottinghamshire Healthcare NHS Foundation Trust
AH v Avon & Wiltshire Mental Health Partnership NHS Trust
2025 Feb 10; April 10
Upper Tribunal Judge Church
Mental capacity— Incapable person— Capacity to conduct litigation— Patients subject to hospital orders with restrictions referred for review with legal representatives appointed— Patients objecting to being represented— Conflicting evidence as to patient’s capacity to appoint representative— Patient refusing to engage with representative whilst lacking capacity— Approach to appointing representative— Approach to assessing capacity to appoint representative— Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 5(4), 6(1) — Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699), r 11(7)(b)
In each case the patient was detained in a psychiatric hospital, having been made subject to a hospital order with a restriction order under sections 37 and 41 of the Mental Health Act 1983. Each patient was referred to the First-tier Tribunal (Mental Health) to review their detention, with a legal representative appointed for them under rule 11(7)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. In the first case, prior to the hearing of the reference, the patient’s representative applied to withdraw from the appointment on the grounds that he assessed the patient as having the relevant capacity and the patient objected to being represented. Relying on evidence from the patient’s responsible clinician and the tribunal’s medical member, the tribunal decided that the patient did not have capacity to deal with the hearing and that it remained in his best interests to be represented. The hearing proceeded with the representative continuing to be appointed, while the patient refused to engage with the representative. In the second case, at the time of the hearing before the tribunal, the patient lacked capacity to make the decision required of him in the context of his involvement in the proceedings, including capacity to appoint a representative, but strongly objected to being represented. On the basis of the patient’s clear wish not to be represented and the responsible clinician’s opinion that having legal representation forced upon him would cause him distress, the tribunal decided that it would not be in his best interests to have a representative appointed under rule 11(7)(b) of the 2008 Rules, and terminated the appointment. The hearing proceeded with the patient representing himself. In both cases the First-tier Tribunal upheld the hospital orders with restrictions. The patients appealed to the Upper Tribunal, the patient in the second case contending that the tribunal had failed to take into account, inter alia, whether, if the hearing were delayed by way of an adjournment, he might regain capacity or achieve a greater ability to participate in the decision-making about his representation.
On the appeals—
Held, appeals allowed. (1) Whenever a tribunal considered exercising its discretionary power to appoint a representative for a patient under rule 11(7)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, it had to ask itself the following three questions: (i) whether the patient lacked capacity to appoint a representative; (ii) if so, whether it was in the patient’s best interests to be represented; (iii) whether the discretion ought to be exercised in favour of the appointment. It followed that in any case where a tribunal was making a determination of capacity to appoint a representative or to conduct proceedings, or was deciding whether the continued appointment of a representative was in the best interests of an incapacitous patient, it had to address each of those questions and give adequate and intelligible reasons for what it decided. When assessing the capacity to appoint a representative, the nature of the proceedings and the demands they made on participants had to be considered, and as such the assessment might include an assessment of the patient’s capacity to conduct proceedings. Since capacity was decision specific and a patient’s capacity might fluctuate, the tribunal was required to keep capacity under review throughout the proceedings. Where capacity arose as an issue, the tribunal had to take into account all relevant evidence, including evidence from the responsible clinician whom the legal representative ought to have the opportunity to question as well as witnesses who had known the patient for a sustained period of time, and determine the capacity issue on the balance of probabilities, subject to the presumption of capacity under section 1 of the Mental Capacity Act 2005 (paras 51, 54, 55, 57–60, 68, 72–74, 82).
YA v Central and North West London NHS Trust [2015] AACR 31Not on Bailii!, UT applied.
(2) In the first case, notwithstanding the conflicting evidence from the appointed representative, the responsible clinician and the tribunal medical member as to whether the patient had the capacity to appoint a representative under rule 11(7)(b) of the 2008 Rules, the First-tier Tribunal had failed to give any reason or explanation as to what the tribunal made of the evidence or how the conflicting evidence was resolved, or why it would be in the patient’s best interests to be represented. The tribunal had also failed to address the potential distress caused to the patient by imposing an unwanted representative on him. Despite the patient’s lack of engagement with the representative, which might limit the patient’s ability to participate effectively in the proceedings concerning his liberty and might have a serious impact on the fairness of the proceedings, the tribunal had failed to review the representative’s appointment or address the basis on which the hearing was proceeded with. By reason of the inadequacy of reasons, it was unclear how the tribunal had come to the conclusion that the patient lacked capacity and that it was in his best interests to be represented, and that amounted to an error of law. The matter would be remitted to the First-tier Tribunal for an expert panel to hear evidence and make expert findings (paras 92, 95–97, 100–104, 109).
(3) Whether a patient might regain capacity or achieve a greater ability to participate in the decision-making about their representation if the hearing were delayed by way of an adjournment were potentially relevant considerations in cases where the tribunal in its case management was required to strike a balance between the patient’s right to a fair hearing and the need for a swift and effect review of the detention under articles 6(1) and 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms respectively. While a mental health tribunal could not properly adjourn a hearing on the basis that the patient’s symptoms of mental disorder might have improved by the date of the adjourned hearing, thereby increasing the patient’s chances of discharge, an adjournment in order to facilitate a patient’s ability to participate meaningfully in the proceedings was not necessarily precluded. In the second case, the tribunal, in rescinding the appointment of the representative and proceeding with the hearing, had failed to address in its reasons whether the interests of justice favoured proceeding to hear the reference or whether an adjournment would further the tribunal’s overriding objective to ensure that the patient would be able to participate fully in the proceedings for his case to be dealt with fairly and justly. It followed that the tribunal had erred in failing to consider the relevant factors or to give adequate reasons for its decisions (paras 113–117).
Per curiam. (i) Because capacity is decision specific and a patient’s capacity may fluctuate, a representative appointed under rule 11(7)(b) of the 2008 Rules has an ongoing duty to assess the client’s capacity to conduct the proceedings and to make relevant decisions, notwithstanding any evidence at hand suggesting that the patient lacks such capacity. In cases where the patient’s capacity to appoint a representative fluctuates, the appointment continues unless and until the representative is discharged from the appointment by the tribunal. If the patient has regained sufficient capacity to conduct the proceedings in person, the representative should apply to the tribunal for the appointment under rule 11(7)(b) to be discharged. Anyone involved in assessing capacity, including the tribunal and the patient’s responsible clinician, has the duty to take all practicable steps, including using simple language or visual aids, to help the patient to understand the decision required of them, in compliance with section 3(2) of the Mental Capacity Act 2005 (paras 56, 60, 61).
(ii) If the representative considers that their continued appointment is not in the best interests of the patient, or alternatively, notwithstanding the patient’s objection, their appointment is in the patient’s best interests, they should make submissions to the tribunal setting out their reasons, and if applicable, the patient’s reasons for taking the contrary view (para 81).
Further guidance on the duties of the representative in cases where the patient asserts that they have capacity or if the representative considers that the patient may have the relevant capacity for the purposes of rule 11 of the 2008 Rules (paras 63–67).
Roger Pezzani (instructed by Bison Solicitors, Aldershot) for the patient in the first case.
Ollie Persey (instructed by GN Law) for the patient in the second case.
Neil Allen (instructed by Bindmans LLP) for the Law Society,as interested party.
The NHS trusts were not represented.
Sze Pui Ng, Solicitor
Referenced Legislation
Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 5(4), 6(1)
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699), r 11(7)(b)