Judge: Judge Knowles QC
Citation:  UKUT 66 (AAC)
How should the First-tier Tribunal (Mental Health) react when, during the course of a tribunal hearing, it appears that the patient no longer has capacity to appoint or instruct his solicitor? The patient, detained under MHA s.3 with schizophrenia, had become more unsettled two weeks before the hearing but had the capacity to instruct. However, the day before, the responsible clinician told his legal representative that the patient lacked capacity to instruct a legal representative. The medical member of the panel was similarly concerned when conducting the pre-hearing examination when the patient told him that he had not made an application for discharge and did not want to attend the hearing.
On the morning of the hearing, the tribunal was informed that the patient was now considered to have capacity and the evidence was heard. However, during the course of the responsible clinician’s evidence, the patient appeared to be responding to auditory stimuli unheard by others and was distressed. So his evidence was interposed, after which he left the hearing. As a result of his evidence, his legal representative asked the tribunal to review the capacity issue. For if he lacked capacity to instruct, the tribunal could appoint his representative who could then act in his best interests which might have led to an application to withdraw the challenge. The tribunal considered it unnecessary to do so.
Following YA v Central and North West London NHS Trust and others  UKUT 0037 (AAC), the Upper Tribunal agreed that “the issue of a patient’s capacity to appoint a representative, to give instructions and to participate in proceedings before the tribunal should be kept under review by all those involved, not least the tribunal itself.” This may be thought to give effect not just to the patient’s best interests but also to the procedural safeguards required by Article 5 ECHR (para 34).
The need for such ongoing review did not sit easily with rule 11(7)(b) of the Tribunal Procedure (First-tier) (Health, Education and Social Care Chamber) Rules 2008. But a broader reading was required. On the facts, the tribunal should have had a short pause in the proceedings to:
However, the error of law did not affect the outcome. The legal representative was content to act for the patient on the basis of earlier instructions and was content to proceed in his absence. All the relevant submissions were made and it was difficult to see how the patient’s participation in the proceedings was significantly compromised. Moreover, there was no unfairness.
As to best interests and applying to withdraw the challenge, Judge Knowles QC repeated the guidance given in YA as to how legal representatives ought to proceed where their patient lacks the relevant capacity. Such guidance provided a process of engagement with the tribunal. Applying to withdraw the application may allow the patient another challenge in the nearer future but would also deprive them of the opportunity to test the basis for detention at that point in time: “In my view it is particularly important that the detention of a person who lacks capacity to instruct in relation to the proceedings is challenged without delay” (para 50).
So, in conclusion, the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However, that decision was not aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity.
This decision develops the reasoning of YA and tackles the issue of incapacity arising during the course of a hearing. The substantive guidance as to the salient details of the decision to appoint a representative (which includes the capacity to conduct proceedings) was given in YA. It is not commonplace for Ps in the Court of Protection to have litigation capacity, bearing in mind mere ‘reason to believe’ incapacity is required for the interim powers under in s.48 MCA 2005. And it is interesting to note that this lower evidential threshold for incapacity is not applicable to First-tier tribunal proceedings. But if P was thought to have litigation capacity and such capacity deteriorated during the course of a hearing, the essence of this decision would be applicable by analogy. The decision also serves to provide useful guidance for those appearing in and on tribunals.