Judge: Charles J (sitting as President of the Upper Tribunal (AAC))
Citation:  UKUT 37 (AAC)
In a decision which is important not merely for practitioners before the First Tier Tribunal (Mental Health), but also for those acting for P (or protected parties) before the Court of Protection, Charles J in YA v CNWL NHS Trust & Ors has considered the appointment and duties of a legal representative appointed by the tribunal under Rule 11(7) of the Tribunal Procedure Rules at First-Tier Tribunal) (Health, Education and Social Care Chamber) 2008.
This note concentrates on the points of principle, rather than the facts giving rise to the questions put before him. It also concentrates on those aspects that are likely to be of wider application than before the MHT (and does not therefore in detail address the important questions of principle that Charles J determined in relation to when the Tribunal should appoint such a representative).
Charles J has confirmed that:
a. To have capacity to appoint a representative a patient needs to have more than solely an understanding that they can make an application to a mental health review tribunal or have someone else make it for them, and thus the limited capacity referred to in R(H) v SSH  1 AC 441. It also involves assessing their capacity to decide whether or not to appoint a representative in the first place.
b. A person’s capacity (a) to appoint a representative and (b) to conduct proceedings himself are not mutually exclusive concepts. Although there is a substantial overlap between the two, and the differences between them in the context of the MHT are theoretical rather than real because a relevant factor to be taken into account in deciding whether or not to appoint a representative is 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.
c. When the patient has capacity to give instructions on all relevant matters relating to the conduct of the proceedings, the position of a solicitor acting for a patient with capacity to instruct him to conduct the proceedings, whether appointed by the patient or the tribunal is 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. The retainer will 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.
d. When the patient does not have the capacity to instruct the solicitor on all relevant matters relating to the conduct of the proceedings, the position is more complicated. The best interests test in Rule 11(7)(b), and the general requirement to act in the best interests of a person who lacks relevant capacity, mean that the legal representative is 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).
As Charles J identified, the main problems in the context of the appointment of a representative on the basis of a lack of capacity are likely to arise when:
a. the legal representative’s views on what is in the patient’s best interests and those of the patient diverge in respect of issues where factors that the patient does not have capacity to give instructions on are relevant;
b. the patient wants the legal representative to advance an unarguable point and/or;
c. the patient maintains that he does not want to be represented.
Charles J placed weight on the decision of the Court of Appeal and of the ECtHR in RP v United Kingdom  ECHR 1796 in holding that:
a. withdrawal of representation or the advancement of unreasoned or hopeless argument may well not promote (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;
b. representation of a patient by another against the patient’s wishes as to any representation, or parts of it, is not contrary to Article 6 or Article 5(4), although the departure from the views and wishes of the patient should only be when this is necessary; and
c. the failure to provide assistance to a litigant who lacks capacity may itself result in a breach of procedural safeguards.
In the particular context of deprivation of liberty on the basis of Article 5(1)(e), with the accompanying requirement for the effective testing and review of the detention and its continuation, Charles J considered that a legal representative appointed to act on behalf of a patient on the basis of a lack of capacity should act as follows.
i) so far as is practicable do what a competent legal representative would do for a patient who has capacity to instruct him to represent him in the proceedings and thus for example (a) read the available material and seek such other relevant material as is likely to be or should be available, (b) discuss the proceedings with the patient and in so doing take all practicable steps to explain to the patient the issues, the nature of the proceedings, the possible results and what the legal representative proposes to do,
ii) seek to ascertain the views, wishes, feelings, beliefs and values of the patient,
iii) identify where and the extent to which there is disagreement between the patient and the legal representative,
iv) form a view on whether the patient has capacity to give instructions on all the relevant factors to the decisions that found the disagreement(s),
v) if the legal representative considers that the patient has capacity on all those factors and so to instruct the representative on the areas of disagreement the legal representative must follow those instructions or seek a discharge of his appointment,
vi) if the legal representative considers that the patient does not have or may not have capacity on all those issues, and the disagreements or other problems do not cause him to seek a discharge of his appointment, the legal representative should inform the patient and the tribunal that he intends to act as the patient’s appointed representative in the following way:
Importantly, Charles J emphasised that, in such circumstances:
“(17) […] the tribunal should not in my view delve into the areas of disagreement or why the legal representative is of the view he cannot properly draw matters to the attention of the tribunal or advance argument. These may be apparent from the account of the patient’s wishes or what they say directly to the tribunal but in my view the decisions on what the legal representative can and cannot argue are matters for the legal representative and not the tribunal who are charged with deciding whether the legal representative it has appointed should continue to act and not with how he should do so.”
Where there is no conflict between the wishes of the patient and his views:
“(18) […] the legal representative should still consider whether or not the patient has capacity to instruct him on all relevant factors and act on the patient’s instructions if he concludes that the patient has that capacity. But if the legal representative concludes that the patient does not or may not have such capacity generally he should advance all arguable points to test the bases for the detention in hospital. In those circumstances it may or may not be appropriate to invite the tribunal to hear directly from the patient.”
Although not addressed in detail here, Charles J’s analysis of when a representative should be appointed on the basis of a lack of capacity bears careful reading for his review of the Strasbourg case-law on Article 5(4) (at paragraphs 36-44) and its requirements (alongside those of the common law and the UNCRPD) as to when legal representation is required in the case of those with mental disabilities.
His Lordship held that where the person lacks such capacity, the most important guiding principles to be applied under the best interests test (and so in deciding whether to exercise the power to appoint a legal representative) are:
As we covered in our February Newsletter, the Law Society has recently issued a new Practice Note for those representing patients before the Tribunal. That Practice Note will have to be read subject to this judgment, although the two are essentially consistent as regards the core obligations of the representatives.
The decision is of wider importance because of Charles J’s observations as to the “close analogy” that can be made between a rule 11(7) representative, appointed on the basis of a lack of capacity, and a litigation friend appointed by a civil court to act for a party. As Charles J observed at paragraphs 81-2:
“81. […] the purpose and effect of Rule 11(7) is to provide in mental health cases an equivalent procedure to the appointment of a litigation friend by civil courts to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered in them. It follows that the cases on the approach to be taken by a litigation friend, who in the cases has instructed solicitors, provide applicable guidance.
82. I acknowledge that, as for example appears from some of the commentaries in Court Rules relating to the appointment of a litigation friend, relevant differences may exist in some circumstances in respect of the extent of the respective roles and duties of a litigation friend and a tribunal appointed representative (e.g. when a litigation friend has instructed a solicitor, the relationship between such a solicitor and (i) the litigation friend and (ii) the patient, the position of a litigation friend as a decision maker for or agent of the patient, the gathering of evidence, in respect of the professional duties of a legal representative (who has been appointed as such by the tribunal) to the patient (who is in the position of his client) and to the tribunal). But, in my view any differences should be addressed as and if they arise.” [the hope expressed in that paragraph that the role and duties of a litigation friend were to be considered by the Court of Appeal in Re X is, at present, to be unfulfilled]
The question of what – exactly – it means to act in the best interests of a patient (or P) and whether the system (both of 11(7) representatives and of litigation friends more generally) is, in fact, compatible with the ECHR and the CRPD is a project that is exercising Alex in particular at present. However, we would respectfully agree that the analogy that Charles J draws at paragraph 81 is, indeed, a close one.
We would further suggest that in cases involving deprivation of liberty, those acting as litigation friends in cases before the CoP (whether s.21A MCA 2005 applications or otherwise) would be very well advised to follow the steps outlined above when determining how to proceed, especially where their view as to the best interests of P differ from P’s wishes and feelings. After all, a deprivation of liberty justified on the basis of unsoundness of mind is a deprivation of liberty for purposes of Article 5(1)(e), no matter where it takes place and the individual subject to such deprivation of liberty enjoys – or should enjoy – equivalent procedural protections, including, crucially, the protection of effective representation. This point is reinforced, we suggest, by the decision in MS v Croatia (2).
We note, finally, that the decision in YA is also likely in due course to be of even wider importance because, as was made public before the Court of Appeal in the Re X appeal heard on 17-18 February, a rule change is under consideration in relation to the participation of P in CoP proceedings which would, inter alia, allow – in an appropriate case – for the appointment of an ‘accredited legal representative’ by the Court to represent P directly. We hope to be in a position to provide more details of this potentially extremely important rule change in short order. If and when the Court is in a position to consider appointing such representatives, the consideration by Charles J as to when Rule 11(7) representatives should be appointed and their duties upon appointment are likely to be of no little importance by analogy for judges of and practitioners before the Court of Protection.