Judge: UT Judge Jacobs
Citation:  UKUT 273 (AAC)
AR had been detained under ss.37/41 MHA 1983 since 1993. The tribunal refused his application for the hearing to be in public. The issues were (a) AR’s capacity; and (b) the relevance of incapacity to the application for a public hearing in light of the decision in AH v West London Mental Health Trust  UKUT 264 (AAC);  UKUT 74 (AAC).
The Upper Tribunal decided that the tribunal erred in law in two respects:
So a patient does not need to have litigation capacity to apply for a public hearing. UTJ Jacobs then gave some guidance at paragraph 20 as to the salient features of a public hearing which were not intended to be comprehensive:
Accordingly, the case was remitted to a different tribunal.
This decision avoids the decisional salami-slicing of litigation capacity, which might otherwise lead to an impractical approach when conducting proceedings, whilst equally ensuring that the voice of the person is not lost when considering issues arising in the course of proceedings. It reflects the increasing role of the MCA 2005 to issues arising under the MHA 1983 and the fleshing out of the tribunal rules.