“The principles 1. - (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that I less restrictive of the person’s right and freedom of action.”
“Inability to make decisions 3. - (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable- (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or by any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) the information relevant to a decision includes information about the reasonably foreseeable consequences of – (a) deciding one way or another, or (b) failing to make the decision.” (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or by any other means). (a) deciding one way or another, or (b) failing to make the decision.”
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
“Overriding objective and parties’ obligation to co-operate with the Tribunal 2.- (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes- (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (3) The Tribunal must seek to give effect to the overriding objective when it- (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (4) Parties must- (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally.” (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally.”
“Case management powers 5.- (1) Subject to the provisions of the [Tribunals, Courts and Enforcement Act 2007 ] and any other enactment, the Tribunal may regulate its own procedure. (2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction. (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may- [...] (d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party; (e) deal with an issue in the proceedings as a preliminary issue; (f) hold a hearing to consider any matter, including a case management issue; (g) decide the form of any hearing; (h) adjourn or postpone a hearing; [...]” (d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party; (e) deal with an issue in the proceedings as a preliminary issue; (f) hold a hearing to consider any matter, including a case management issue; (g) decide the form of any hearing; (h) adjourn or postpone a hearing; [...]”
“Representatives 11. … (7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where – (a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or (b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented…” (a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or (b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented…”
“Medical examination of the patient 34.- (1) Where paragraph (2) applies, an appropriate member of the Tribunal must, so far as practicable, examine the patient in order to form an opinion of the patient’s mental condition, and may do so in private. (2) This paragraph applies- (a) in proceedings undersection 66(1)(a) of the Mental Health Act 1983 (application in respect of an admission for assessment) ,unless the Tribunal is satisfied that the patient does not want such an examination; (b) in any other case, if the patient or the patient’s representative has informed the Tribunal in writing, not less than 14 days before the hearing, that – (i) the patient; or (ii) if the patient lacks the capacity to make such a decision, the patient’s representative, wishes there to be such an examination; or (c) if the Tribunal has directed that there be such an examination.” (a) in proceedings undersection 66(1)(a) of the Mental Health Act 1983 (application in respect of an admission for assessment) ,unless the Tribunal is satisfied that the patient does not want such an examination; (b) in any other case, if the patient or the patient’s representative has informed the Tribunal in writing, not less than 14 days before the hearing, that – (i) the patient; or (ii) if the patient lacks the capacity to make such a decision, the patient’s representative, wishes there to be such an examination; or (c) if the Tribunal has directed that there be such an examination.”
“Jurisdiction, Preliminary and Procedural Matters 1. The tribunal is satisfied that it has jurisdiction to consider this reference. 2. This case had a protracted history and had been adjourned a number of times. The patient had previously indicated that he wished to represent himself and did not wish to be legally represented, Nevertheless, it was apparent from previous directions that a legal representative had been appointed under Rule 11(7)(b) and that representative had previously applied to withdraw as firstly, it was advanced by them that the patient was in fact capacitous, and secondly, the patient would not engage with them. That application had been refused. 3. We decided that we needed to establish whether the patient had capacity to represent himself in the proceedings on the day of the hearing as a starting point. In making our decision, we had in mind Dr Swamy’s (Responsible Clinician) view that […] although the patient’s capacity fluctuated, he did not have capacity. We also had the opinion of the Tribunal Doctor. The Tribunal Doctor had attended on the patient on the morning of the hearing to carry out a pre-hearing examination and within an hour of the hearing commencing. It was also the Tribunal Doctor[‘]s opinion that the patient did not have capacity. As such, we concluded that the patient did not have capacity to deal with the hearing and that it was in the patient’s interests for the patient to be represented. We therefore informed the legal representative, Mr Lawlor, that their role continued under Rule 11(7)(b). 4. At the commencement of the hearing, the patient was informed of our decision, that […] Mr Lawlor remained appointed, that it would be Mr Lawlor who was permitted to question the professional witnesses and it was Mr Lawlor’s role to act in his best interests. The patient was not happy with our decision. Prior to the cross-examination of the first professional witness, the patient was given a break to put forward his concerns to Mr Lawlor, however, although the patient took the break, it was our understanding that the patient refused to engage with Mr Lawlor. As such, we proceeded with the hearing.”
“Patient: Not represented (Mr Markham was present initially but the Patient very firmly did not wish to be represented and the Tribunal decided it would not be in his best interests to be represented. Accordingly the Rule 11(7)(b) appointment was rescinded and Mr Markham withdrew.” […] “As set out above, Mr Markham was present initially but the Patient very firmly did not wish to be represented. Dr McIntyre confirmed that in his view the patient did not have capacity as per the MH3. He also lent support to the notion that it would not assist [AH] to have representation essentially forced upon him. [AH] would be more likely to be unable to cope with the hearing with a solicitor present. Mr Markham said he agreed and he was happy to withdraw. The Tribunal decided it would not be in [AH]’s interests or in the interests of justice for [AH] to have a representative appointed under Rule 11(7)(b) and therefore the Rule 11(7)(b) appointment was rescinded and Mr Markham withdrew.”
“The identification of the specific decision, issue or activity that is the subject of the capacity assessment is important because it identifies the matters that have to be sufficiently understood, taken into account and weighed by the decision maker.”
“An assessment of a person’s capacity to appoint a representative must involve an assessment of their capacity to decide whether or not to appoint one, and it is this choice that identifies the specific decision that is the subject of the capacity assessment set as the trigger to the power conferred by in Rule 11(7)(b). To have the capacity to make that choice the decision maker has to be able to sufficiently understand, retain, use and weigh the reasons for and against the rival decisions and thus their advantages, disadvantages and consequences. So to have capacity to appoint a representative a patient needs to have more than only 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[2006] 1 AC 441 .”
“I accept Dr Barker’s characterisation of legal proceedings as not being simply a question of providing instruction to a lawyer and then sitting back and observing the litigation, but rather a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop.”
“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 the 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: • he will provide the tribunal with an account of the patient’s views, wishes, feelings, beliefs and values (including the fact but not the detail 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); • 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); • 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; • he will not advance any other arguments.” • he will provide the tribunal with an account of the patient’s views, wishes, feelings, beliefs and values (including the fact but not the detail 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); • 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); • 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; • he will not advance any other arguments.”
“i. the underlying purpose and importance of the review and so the need to fairly and thoroughly assess the reason 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). […] (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.”
“This may be appropriate where: - Attempting to represent the client would cause them distress or interfere with their ability to participate in proceedings - The client’s hostility is such that you cannot fulfil your professional obligations to them - Continuing to attempt to represent the client puts your safety at risk and the risk cannot be managed using local policies at the unit where the client is detained.”
“On balance, my view is that this case is very nuanced as [KH] appears to have a reasonable understanding of the tribunal and the procedural powers, but has also demonstrated, this can fluctuate with him becoming anxious, hostile and agitated at times which then negatively impacts his ability to understand, weigh and use the relevant information, the rival decisions that the Tribunal can make, their advantages, disadvantages and consequences. It is likely that his anxiety levels leading up to the tribunal could well impede his understanding of the relevant information further. On balance, my view is that due to the deterioration in his mental state as the Tribunal approaches, [KH] now lacks the capacity to appoint a solicitor or to present his case effectively himself. In my view he will become even more likely to struggle to conduct himself in an appropriate manner as the hearing date approaches and could become anxious, obstructive, or agitated which could lead to a further deterioration of his mental health.”
“As such, we concluded that the patient did not have capacity to deal with the hearing and that it was in the patient’s interests for the patient to be represented.”
“As such, we proceeded with the hearing.”
“It not infrequently happens that [...] those who have apparently hopeless cases turn out after a full and fair hearing to be in the right.”