YA v Central and NW London NHS Trusts and Others (Mental health : All) [2015] UKUT 37 (AAC)
UKUT-AAC
YA v Central and NW London NHS Trusts and Others (Mental health : All)
[2015] UKUT 37 (AAC) · 2015-02-04
[18]Nonetheless, rule 11(7)(b) plainly contemplates the possibility of a solicitor being appointed to represent a patient who does not have the capacity to give any instructions at all. In such a case, the rule must, as the Law Society's guidance plainly expects, anticipate that the solicitor will ascertain any relevant wishes that the patient may be able to express, will inform the tribunal of such wishes, make such points in support of them as can properly be made and generally ensure that the tribunal has all the relevant material before it and does not overlook any statutory provision. However, in the absence of the patient's capacity to give valid instructions, the rule must, in my view, also anticipate that the solicitor will exercise his or her judgment and advance any argument that he or she considers to be in the patient's "best interests", which, as the Law Society's guidance recognises, will not necessarily involve arguing for the patient's discharge. In those circumstances, it seems to me that the solicitor has the same freedom of action as a litigation friend in the courts.[19]What, then, is the position if the patient does have the capacity to give instructions on some matters but not others? The Law Society's guidance is unequivocal: a solicitor is bound to act in accordance with the instructions that have been given. Therefore, the more a patient has the capacity to give detailed instructions, the less the solicitor has complete freedom of action.[20]However, even where a patient has full capacity, a solicitor may be entitled, and in some circumstances may be under a duty, to draw a tribunal's attention to significant matters – particularly points of law – that appear to be in the patient's best interests despite his or her instructions and which it appears the tribunal might otherwise overlook. A solicitor has a duty not just to his or her client but also to the tribunal or, perhaps more accurately, to the administration of justice. A distinction is to be drawn between merely drawing a matter to a tribunal's attention and fully arguing it. 69 I agree that Rule 11(7)(b) envisages and provides that if an appointment of a legal representative for a patient is made under it that patient will or may(a) not have capacity to give any instructions, or(b) the capacity to give instructions on all relevant matters relating to the conduct of the proceedings. 70 Also, in my view, Rule 11(7)(a) envisages and provides for the same thing, although in many cases such an appointment will relate to a patient who has capacity to give instructions on all relevant matters. 71 The position when the patient has capacity to give instruction to the legal representative on all matters relating to the conduct of the proceedings. The Law Society submits (as it asserts in its Practice Note) that paragraph 20 of the decision in AA is incorrect in suggesting that even when the patient has full capacity and despite their instructions a solicitor may be under a duty to draw the tribunal’s attention to particular matters that appear to be in the patient’s best interests. I agree that that is incorrect and is inconsistent with the judge’s correct comment at paragraph 15 that: A patient may be capable of giving valid instructions and, where valid instructions are given, a solicitor must act in accordance with them. 72 As the Law Society points out exceptions to that are that: i) a solicitor must refuse to advance an argument that is not properly arguable (see Buxton v Mills-Owens [2010] EWCA 122 at paragraph 43). And, in this context it is also important to remember that as the Court of Appeal confirm at paragraph 45 that a solicitor should not advance a point using coded language to indicate that he thinks it is weak or hopeless, and ii) a solicitor can withdraw from a case on grounds of professional embarrassment, if for example he is instructed to take steps that are in his view contrary to the patient’s best interests, or on an appointment under Rule 11(7)(a) by a patient with capacity to conduct the proceedings if the patient no longer wants the solicitor to act. 73 In my view, the point that coded language should not be used applies to arguments and submissions including those on the relevance of evidence and thus an account of the patient’s wishes and feelings. However, it is likely that a simple account of those wishes and feelings can be introduced without the need for any code or signal. 74 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 in my view 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. Generally, in such a case the appointment by the tribunal would have been under Rule 11(7)(a) and so based on the wish or request of the patient and so in my view the patient effectively has the right to terminate the appointment even if formally the tribunal has to end it. Exceptionally, after an appointment under Rule 11(7)(b) it may be found as a result of change or an initial error that the patient has capacity to instruct the solicitor to conduct the proceedings and in such a case the patient would also effectively have a right of termination because the original basis for the appointment would have gone even if formally the tribunal has to end it. 75 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. 76 The position when patient does not have capacity to give the solicitor instructions on all relevant issues that arise in the proceedings . I say “all” because it may well be that within the changing and developing issues described by Baroness Hale the patient, with the assistance of the solicitor, will have the capacity to make decisions and so give instructions on “some” of them. 77 As I have already indicated, this lack of capacity and the difficulties relating to it is not confined to appointments under Rule 11(7)(b). 78 At this stage (i.e. after the solicitor has been appointed) the decision, issue or activity specific approach focuses on the capacity to give instructions on the conduct of the proceedings to the solicitor rather than on the capacity of the patient to conduct the proceedings themselves. So the focus of the capacity issue is whether the patient is capable of sufficiently understanding, retaining, using and weighing with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which the patient’s instructions on the case (he or she actually has) are or are likely to be necessary in the course of the proceedings (see for example RP in the ECtHR at paragraph 68 to which I have added the phrase in brackets to reflect Dunhill ) . 79 As appears above, I have concluded that Rule 11(7) gives a power to the tribunal to appoint a legal representative for a patient who lacks capacity to instruct him on all relevant matters relating to the conduct of the proceedings and, that when the tribunal makes such an appointment it authorises that legal representative to act for, and so seek instructions from, that patient. Further, it is clear from 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 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). 80 Rule 11(3) makes provision on what a representative can do. But the primary and secondary legislation is silent on how a tribunal appointed legal representative under Rule 11(7)(b) is (i) to take instructions from a patient who does not have the capacity to give them, and (ii) to represent and so conduct the proceedings on behalf of such a patient. 81 I agree with Upper Tribunal Judge Rowland that a close analogy can be made between a legal representative appointed under Rule 11(7) for a patient who lacks capacity to give instructions on all relevant matters and that of a litigation friend appointed by the civil courts for a party. This is because, albeit that their roles are differently described both are appointed pursuant to rules to perform functions on behalf of and in the best interests of a party to proceedings who lacks capacity to conduct them. In my view, 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. As I have already mentioned, the role, status and duties of a litigation friend are shortly to be the subject of consideration by the Court of Appeal in Re X. 83 Cases on litigation friends. In Re E [1984] 1 WLR 320 at 324 D to H Megarry VC by reference to commentaries on practice and procedure says that the main function of a next friend appears to be (my emphasis) to carry on litigation on behalf of the plaintiff and in his best interests and for that purpose he must make all decisions that the plaintiff would have made, had he been able (my emphasis). He may do anything on behalf of the plaintiff which the rules require or authorise, he does not become a litigant himself, his functions are essentially vicarious and under RSC 80 Rule 2 he must act by a solicitor. The decision of the Court of Appeal in that case (see [1985] 1 WLR 245) does not address these views. In Masterman - Lister Chadwick LJ at paragraphs 63 to 66 describes the role of a litigation friend by reference to the RSC, which at Order 80 Rule 2(2) contained a provision equivalent to Rule 11(3) of the Rules. 84 In RP v Nottingham CC [2008] 2 FLR 1516 the Court of Appeal consider the position of the Official Solicitor as the litigation friend of a mother whose child was the subject of proceedings in which a care and placement order was made. The court concluded that the evidence was overwhelmingly in favour of both orders being made and that the Official Solicitor as litigation friend had acted rightly in: i) not advancing an unarguable case on the mother’s behalf, ii) in conceding that (a) the threshold criteria for a care order were met (b) a placement order was in the best interests of the chid and(c) the mother was not in a position to give informed consent to it, and iii) in putting before the court the mother’s manifestly unrealistic views. 85 The Court of Appeal also approved the opinion of counsel obtained by the Official Solicitor and his submissions (see paragraphs 134 to 142). They attach that opinion to the judgment together with the Official Solicitor’s statement which covers his role as a litigation friend (see paragraphs 18 to 21). That statement and opinion do not in this context rely on the common law or Re E or Masterman-Lister. Rather, they refer to the relevant rules and counsel borrows from the Practice Direction to CPR Part 21 at that time in stating that: It is the duty of a litigation friend fairly and competently to conduct proceedings on behalf of the non-subject child patient and all steps and decisions he takes in the proceedings must be taken for the benefit of the non-subject child or patient He goes on to say: The meaning of "conduct proceedings on behalf of" is not further defined, but the statement encapsulates the two magnetic influences upon the conduct of the litigation friend. The prime motivating factor is beneficence - acting for the parent’s benefit. The second is competence - acting according to proper professional standards. and the Official Solicitor is not obliged to withdraw simply because he is unable to act as a parent would wish. Nor can he put up an unreasoned opposition simply because the parent might approve. Neither stance would be to a parent’s true benefit, nor would they amount to fair and competent conduct of the litigation nor would they serve the interests of justice. I believe that in the absence of any special features calling for distinctive treatment, the correct course for the Official Solicitor to take is to present any realistic arguments and relevant evidence that may be available on behalf of (i.e. in support of) the parent in relation to the issues before the court, The criterion should be whether the point is reasonably arguable, not whether it is likely to succeed. 86 The present Practice Direction to CPR Pt 21 no longer contains a definition of the duty of a litigation friend but the notes to it assert that having regard in particular to Rule 21.4(3)(a) the duty must be to fairly and competently conduct the proceedings. I agree. The notes also state that there is no requirement that a litigation friend must act by a solicitor in High Court proceedings. The terms of the CPR Part 21, the FPR Part 15 and the Court of Protection Rules Part 17 on the appointment of a litigation friend all differ but they all refer to a litigation friend being appointed to conduct proceedings on behalf of the protected party and do not further elaborate or define what that means. They do not replicate all of RSC Order 80 or contain an equivalent provision to Rule 11(3) of the Rules. 87 The notes to the Court of Protection Rules assert that there is a difference between the roles of a litigation friend and a solicitor but do not give reasons for this view. They also refer to the potential for tension between the duty not to take hopeless points that the party wishes to be fully argued, referring to RP. The opinion attached to the judgment in RP refers to this in the context of a parent who lacks litigation capacity but has the capacity to give or refuse consent to a placement order and adoption. Counsel’s approved submissions are at paragraphs 138 to 140 which accord with his approved opinion where he said: The requirement that a person under a juristic disability should have a litigation friend does not in itself breach that person's rights under Article 6 of the European Convention: see for example Stewart Brady v UK (1997) 24 EHRR CD 38 . Nevertheless, there can be no doubt that to avoid such a breach, the litigation friend must act properly and with due regard to the person's rights and wishes. This in my view translates into an obligation, when departing from the person's wishes, to oppose, frustrate or negate them to the least necessary extent. 88 I have already referred to and cited part of the judgment of the ECtHR in RP. Later in that judgment the court found (with my emphasis): 68. It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity ( Shtukaturov v. Russia , cited above, § 68).[75]With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention.[76]Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s - or in any party’s - best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself. 89 This confirms the approach taken by the Court of Appeal and although in that case the test related to the best interests of the child (KP) that where a conflict arises between a best interests test and the views, wishes and feelings of a party who lacks capacity to make decisions on matters to be taken into account the person appointed to represent that party because of their lack of capacity does not have to and indeed should not argue the unarguable but should put that party’s views, wishes and feelings before the court or tribunal. 90 Conclusions under this heading. The position is different depending on whether the patient has or does not have capacity to give instructions on all relevant matters relating to the conduct of the proceedings. 91 When the patient has capacity to give instructions on all relevant matters relating to the conduct of the proceedings. My conclusions are: i) 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. Generally, in such a case the appointment by the tribunal would have been under Rule 11(7)(a) and so based on the wish or request of the patient and so in my view the patient effectively has the right to terminate the appointment even if formally the tribunal has to end it. Exceptionally, after an appointment under Rule 11(7)(b) it may be found as a result of change or an initial error that the patient has capacity to instruct the solicitor to conduct the proceedings and in such a case the patient would also effectively have a right of termination because the original basis for the appointment would have gone even if formally the tribunal has to end it. ii) 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. 92 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. 93 The appointment enables the solicitor to act for the patient in the proceedings and so seek his instructions and ascertain his views, wishes, feelings, beliefs and values. 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). 94 Unsurprisingly, it can be seen that there is a considerable overlap between many of the points raised and decided in the cases relating to the role and duties of a litigation friend (e.g. a duty to act fairly and competently and in the patient’s best interests) and the duties of a legal representative. Also, the approach taken by the Court of Appeal and the ECtHR in RP to the approach to be taken by a litigation friend has considerable overlap with that to be taken by a solicitor acting for a patient who has capacity (see paragraphs 72 to 74 above). Both cannot advance unarguable points but both can (without using coded language) put that party’s views, wishes, feelings, beliefs and values before the court or tribunal. However, a solicitor acting for a party with capacity cannot contrary to instructions make concessions and may have to cease to act if he is professionally embarrassed by his instructions. 95 In RP points were conceded by the litigation friend. To my mind, there are in practice qualitative albeit fine differences between the impact of a concession, an express non-objection and a stance that argument is not advanced on a point. In my view: i) the appointment of a legal representative by the tribunal does not mean that the representative is acting for the tribunal and is thus in a different position to a legal representative appointed by a party, and so ii) a legal representative appointed by the tribunal should not concede points if the party he represents objects to that or does not have the capacity to consent to a concession. Rather, such a representative should inform the tribunal that he is only advancing arguable points. 96 The informality of a tribunal and its investigative function enables it to hear directly from the patient as well as from a tribunal or party appointed representative. This provides flexibility and perhaps greater flexibility than in some or all courts. 97 The main problems 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 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. 98 In all of those situations it is to be noted that as approved by the Court of Appeal and found by the ECtHR in RP : i) 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, ii) 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 in my view Article 5(4), although the departure from the views and wishes of the patient should only be when this is necessary, and iii) the failure to provide assistance to a litigant who lacks capacity may itself result in a breach of procedural safeguards. 99 As mentioned later there will be some cases in which the distress and harm caused to a patient will mean that it is not in their best interests for a legal representative to be appointed for them. Equally, in such a situation and potentially others the judgmental or balancing act involved could found a decision to terminate such an appointment and thus an application by the legal representative for such a termination. If such a situation exists the legal representative should raise it with the tribunal. 100 However, even if such a situation exists the force in the points that: i) the grounds for the detention and its continuation should be tested and reviewed as effectively as is practicable, and ii) in many cases this can be done effectively by reference to the relevant statutory provisions and existing reports (and evidence from their authors and others) strongly supports the view that the appointment of the legal representative should continue and they should act as set out in the next paragraph. 101 The legal representative: i) should 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: a) he will provide the tribunal with an account of the patient’s views, wishes, feelings, beliefs and values (including the fact of any wish that the legal representative should act in a different way to the way in which he proposes to act, or should be discharged), b) he will invite the tribunal to hear evidence from the patient and/or to allow the patient to address the tribunal (issues on competence to give evidence are in my view unlikely to arise but if they did they should be addressed before the tribunal), c) he will draw the tribunal’s attention to such matters and advance such arguments as he properly can in support of the patient’s expressed views, wishes, feelings, beliefs and values, and d) he will not advance any other arguments. 102 In such circumstances, 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. 103 Where there is no conflict between the wishes of the patient and his views the legal representative should still consider whether or not the patient has capacity to instruct him on all relevant factors and act on instructions if he concludes that the patient has that capacity. But if he 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. What procedure should be adopted where the First-tier Tribunal identifies a case in which there is an issue relating to the patient’s capacity to appoint a representative: whether and if so when the Tribunal should direct of its own motion a capacity assessment; if so, who should be responsible for conducting that assessment, and how should it be funded 104 This heading is not directed to an appointment by a member of the tribunal’s staff but to the position of the tribunal and so to issues that may arise after an appointment by a member of staff (or the tribunal) or in a case where no appointment has been made. 105 This capacity issue should be considered and kept under review by all involved and so the responsible clinician, the hospital managers, a tribunal appointed representative, any representative who has been or has purportedly been appointed by the patient and the tribunal itself. 106 Rule 37(1) provides that the hearing of an application under s. 66(1)(a) MHA (a s. 2 case) must start within 7 days of the receipt of the application and subject as provided by s. 2 a detention thereunder is for 28 days. This is an example of cases that need to be dealt with more quickly than others and in all cases the relevant timeframe needs to be taken into account. 107 As explained above, the capacity test has a diagnostic cause but if a patient has such a diagnosis as, for example, Chadwick LJ explains at paragraph 66 of his judgment in Masterman - Lister the test needs to be (and I add is) one that an experienced solicitor can apply. 108 If and when anyone involved considers that a relevant issue relating to the capacity of the patient (a) to appoint a representative, or (b) to give instructions to a representative arises they should as soon as is practicable draw it to the attention of the tribunal. I say relevant because if the appointment has been made under Rule 11(7) it is likely that the issue can be dealt with in the manner set out above 109 Once raised or identified by the tribunal it must deal with it as soon as is practicable. In a case where the patient wants to be represented it may well be that the issue need not be resolved and upset in dealing with it can be avoided by an appointment being made under Rule 11(7)(a) in place of an earlier appointment by the patient. 110 If, as here, the patient is objecting to the appointment his or her capacity to do so and the continuation of the appointment must be addressed by the tribunal, and I deal with this under the next heading. What factors should the First-tier Tribunal take into account in determining whether to exercise the power under Rule 11(7)(b) to appoint or to discharge the appointment of a legal representative when the patient is objecting to the appointment 111 The power only arises if the patient lacks capacity to make the appointment and in the case of an objecting patient it is unlikely that it would be safe to proceed on the hypothesis that he or she lacks that capacity because (a) the patient is unlikely to agree to that hypothetical approach and there would be doubt as to his or her capacity to do so and (b) the reasons why the patient lacks capacity are likely to be relevant to the “best interests” test. 112 However, the “best interests” second limb of the test, together with the need for speed is likely to inform the approach to be taken to the determination of the capacity issue and whether an appointment should be made or discharged on the basis of the existing or immediately available evidence relating to whether the patient lacks capacity to appoint a representative. 113 If a conclusion can be based on that evidence, it is likely that the tribunal will be able to address the central issues in the case, namely the application of the relevant tests under the MHA, more quickly. This will promote the stringency in respect of speed required by Article 5(4). 114 The existing evidence is likely to include views from the treating team (including managers) and in a section 2 case the medical member. In other cases, and perhaps in section 2 cases, the tribunal should determine whether the medical member should consider or further consider the issue of capacity to appoint a representative. When the medical member has carried out such an assessment it is important to remember that the decision on capacity is one for the tribunal and not the medical member and so those involved must be informed of the views of the medical member and the reasons for them and thereby be given the opportunity to address them. This is a basic requirement of a fair procedure namely that the parties must know the case they have to meet and so matters that the tribunal will or may be giving weight to. 115 Subject to legal professional privilege, the legal representative may also be in a position to assist the tribunal without conflict with the patient if he has formed the view that the patient has capacity to conduct the proceedings without help. 116 It seems to me unlikely that a need for independent expert evidence of capacity to appoint a representative will arise in many cases and so I agree that the Law Society should as it intends review paragraph 4.1 of the present guidance relating to obtaining independent expert opinion. 117 In a case where a legal representative has formed the view that the patient does not have capacity to give instructions on all relevant matters, the approach set out above will apply. 118 Having determined that the patient lacks capacity to appoint a representative the best interests test has to be applied. 119 In my view, the most important guiding principles on the application of that test are set out in paragraph 45 above, namely: i) the underlying purpose and importance of the review and so the need to fairly and thoroughly assess the reasons for the detention, ii) the vulnerability of the person who is its subject and what is at stake for that person (i.e. a continuation of a detention for an identified purpose), iii) the need for flexibility and appropriate speed, iv) whether, without representation (but with all other available assistance and the prospect of further reviews), the patient will practically and effectively be able to conduct their case, and if not whether nonetheless v) the tribunal is 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). 120 To those I add (a) the nature and degree of the objections and of the distress caused to a patient if his or her wishes are 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 is appointed or not discharged that legal representative will seek a discharge of the appointment. The errors of law in this case 121 The FtT was faced with a difficult situation. I have sympathy with them and can see that their solution had pragmatic force, avoided upset to YA and enabled the hearing to continue in a way that accorded with YA’s expressed wishes. However, in my view it created a situation in which the FtT failed to address or failed to explain how they had addressed relevant issues relating to the conduct of the hearing, namely: i) YA’s capacity to appoint a representative, ii) if she lacked that capacity, whether it was in YA’s best interests to be represented, iii) the role of the representative, and iv) whether it had any power to suggest or direct how a representative appointed under Rule 11(7)(b) should take part in the hearing. 122 The pragmatic approach taken effectively sought to dictate how the legal representative should act and in my view the tribunal is not empowered to do that and it should have either continued the appointment or discharged it. It seems to me highly likely that if they had addressed this choice the tribunal would have discharged the appointment applying the approach I have set out above and so the result would have been effectively the same, namely that YA represented herself. Remedy 123 I acknowledge that that view on the outcome is not one that I can say a FtT would be bound to have reached. But I agree with the common ground before me that I should not in the exercise of my discretion set aside the decision because there is now no point in doing so. Dated 4 February 2015 Mr Justice Charles (Signed on the original)