YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18

This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed (and generally) if the representative forms the view that the patient does have capacity, he should inform the Tribunal and take instructions as normal, and act on those instructions.

AACR summary

The following is the summary from [2015] AACR 31Not on Bailii!, available from the OSSCSC link below.

Mr Justice Charles CP


4 February 2015

Mental health – tribunal procedure – appointment of legal representative – role of legal representatives appointed under rule 11(7) of Tribunal Procedure Rules

The appellant appealed against her detention under section 2 of the Mental Health Act 1983. A legal representative was appointed after a psychiatrist concluded that she lacked the capacity to refuse representation. The First-tier Tribunal (F-tT) hearing initially proceeded in the representative’s absence after the appellant told members she did not wish to be represented. The representative interrupted the hearing and requested the F-tT to clarify the issue of capacity. Following a short adjournment the hearing recommenced with the representative present. The F tT’s decisions about the appellant’s capacity and the representative’s status were unclear: the appellant conducted her own case without reference to the legal representative. The F-tT eventually decided that the appellant’s illness was sufficient to warrant her detention in hospital for assessment. The appellant appealed to the Upper Tribunal (UT) against that decision and instructed the legal representative. The appeal before the UT concerned the proper approach to be taken by a tribunal to the appointment of a legal representative in mental health cases under the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 including the following issues: the role of the representative, the conduct of the hearing following an appointment, the proper approach when a patient refuses representation and the patient’s capacity.

Held, allowing the appeal, but not setting aside the decision of the tribunal, that:

1. a patient’s capacity should be assessed by applying the approach within the Mental Capacity Act 2005 on the presumption that the patient had relevant capacity. The specific decision, issue or activity that was the subject of the capacity assessment was important as it identified the matters that had to taken into account by the decision-maker (paragraphs 30 to 34);

2. the assessment of a person’s capacity to appoint a representative involved an assessment of their capacity to decide whether or not to appoint one. It was this choice that was the subject of the capacity assessment under rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. The capacity to appoint a representative required the ability to understand the reasons for and against the rival decisions, and required more than an understanding that they, or someone on their behalf, could make an application to a mental health review tribunal – the limited capacity referred to in R (H) v Secretary of State for Health [2005] UKHL 60M; [2006] 1 AC 441B (paragraph 57);

3. there was a substantial overlap between a person’s capacity (a) to appoint a representative and (b) to conduct proceedings but they were not mutually exclusive. In this context a relevant factor to be taken into account in deciding whether or not to appoint a representative was the capacity of the patient to conduct the proceedings, and an inability by the patient to appreciate that he or she lacks the capacity to conduct the proceedings themselves effectively determines that he or she does not have the capacity to make that choice. A distinction between these two issues of capacity would found an argument that rule 11 does not provide a procedure that complies with Article 5(4) of the European Convention on Human Rights (ECHR) (paragraph 64);

4. rule 11(7)(a) and (b) envisaged and provided that if an appointment of a legal representative for a patient was made under rule 11 that patient would, or might not have (a) the capacity to give any instructions, or (b) the capacity to give instructions on all relevant matters relating to the conduct of the proceedings (paragraph 69);

5. the position of a solicitor acting for a patient with capacity to instruct them on all relevant matters relating to the conduct of the proceedings was effectively the same as that under any other retainer for the purposes of proceedings, including the consideration of the capacity of the client to give and terminate instructions for that purpose. Such a retainer would be to advise on and conduct the tribunal proceedings pursuant to the patient’s instructions and subject to the solicitor’s professional obligations and duties. Generally, the appointment by an F-tT would be under rule 11(7)(a) and so based on the wish or request of the patient, who therefore effectively had the right to terminate the appointment, even if formally the F-tT had to end it. Exceptionally, after an appointment under rule 11(7)(b), it might be found, as a result of change or an initial error, that the patient had capacity to instruct the solicitor to conduct the proceedings. In such a case the patient would effectively have a right of termination because the original basis for the appointment would have gone, even if formally the tribunal had to end it (paragraphs 74 to 75);

6. where the patient lacked the relevant capacity to instruct a solicitor on all relevant issues, matters were more complicated. When a F-tT makes an appointment it authorises the legal representative to act for the patient, and so seek their instructions from the patient. The best interests test in rule 11(7)(b), and the general requirement to act in the best interests of the patient, meant that the legal representative was not only appointed in the patient’s best interests but must also seek to promote them (having regard to the relevant issues of fact and law that are relevant in the proceedings) (paragraph 79);

7. the main problems were likely to arise when the views of the legal representative and the patient diverged about what was in the patient’s best interests regarding issues where the patient lacks capacity, or where the patient wanted an unarguable point advanced, or where they maintained that they did not want to be represented. In all these situations it was noted, as approved by the Court of Appeal and found by the European Court of Human Rights in RP [2012] ECHR 1796M; [2013] 2 FCR 77, that (1) withdrawal of representation or the advancement of unreasoned or hopeless argument may well not promote either (a) the patient’s best interests, or (b) an effective and practical review of a deprivation of liberty, and thus the underlying purposes of Article 5 and its procedural safeguards; (2) representation of a patient by another against the patient’s wishes, as to any representation, or parts of it, was not contrary to Article 6 (or in the UT judge’s view Article 5(4) – although any departure from the patient’s views and wishes of the patient should only be made when necessary), and (3) the failure to provide assistance to a litigant who lacked capacity might itself result in a breach of procedural safeguards. In such circumstance the grounds for the detention and its continuation should be tested and reviewed as effectively as was practicable, which strongly supported the view that the appointment of the legal representative should continue. The judge set out detailed guidance as to how the tribunal should act (paragraphs 97 to 101);

8. the tribunal should not delve into the areas of disagreement or why the legal representative was of the view that he could not properly draw matters to the attention of the tribunal or advance argument. Decisions on what the legal representative can and cannot argue are matters for the legal representative and not the tribunal which was charged with deciding whether the legal representative it had appointed should continue to act (not with how they should do so) (paragraph 102);

9. where there was no conflict between the wishes of the patient and his views, the legal representative should still consider whether or not the patient had capacity to instruct him on all relevant factors and act on the patient’s instructions if he concluded that the patient had that capacity. If the legal representative concluded that the patient did not, or might not have, such capacity he should advance all arguable points to test the basis for the detention in hospital. In those circumstances it might or might not be appropriate to invite the tribunal to hear directly from the patient (paragraph 103);

10. having determined the capacity test set by rule 11(7)(b), the most important guiding principles to be applied under the best interests test (and so in deciding whether to exercise the power) were: (a) the underlying purpose and importance of the review and so the need to assess fairly and thoroughly the reasons for the detention, (b) the vulnerability of the person who was its subject and what was at stake for that person (ie a continuation of a detention for an identified purpose), (c) the need for flexibility and appropriate speed, (d) whether, without representation (but with all other available assistance and the prospect of further reviews), the patient would practically and effectively be able to conduct their case, and if not, whether nonetheless (e) the tribunal was likely to be properly and sufficiently informed of the competing factors relating to the case before it and so be able to carry out an effective review. (As to this, the tribunal should, when deciding the case, review this prediction.) The tribunal would also need to consider: (a) the nature and degree of the objections and of the distress caused to a patient if his or her wishes were not followed, (b) the likely impact of that distress on his or her well being generally and (c) the prospects that if a legal representative were appointed or not discharged, that legal representative would seek a discharge of the appointment (paragraphs 119 to 120);

11. the F-tT failed to address, or failed to explain how it had addressed, relevant issues relating to the conduct of the hearing, namely the appellant’s capacity to appoint a representative, whether the appellant lacked that capacity, whether it was in the appellant’s best interests to be represented, the role of the representative, and whether the tribunal had any power to suggest or direct how a representative appointed under rule 11(7)(b) should take part in the hearing. The pragmatic approach taken effectively sought to dictate how the legal representative should act and the F-tT was not empowered to do that and it should have either continued the appointment or discharged it. If it had addressed this choice, the F tT would have discharged the appointment and so the result would have been effectively the same, namely that the appellant represented herself (paragraphs 121 to 122).

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