[2024] UKUT 411 (AAC)

Balancing the interests of open justice with the need to avoid a disproportionate infringement of the Appellant’s right to respect for his private and family life, I have decided not to use his name in this judgment, and I have made an Order under rule 14(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the “HESC Rules”), which is set out at the top of this judgment. In this judgment I will refer to the Appellant sometimes as “IN” and sometimes as “the patient”. However I have ordered that my judgment may be made public.

This case is about whether the tribunal erred in law when it decided not to adjourn the hearing of the reference and instead to determine the reference as it did, notwithstanding the absence both of IN and his representative from the hearing. It is also about whether the tribunal explained its decision making with adequate clarity.

Although the reference itself was about whether IN should continue to be detained under the Mental Health Act 1983 (the “Mental Health Act”), this decision is largely about the proper application of the HESC Rules, as well as issues relating to mental capacity under the Mental Capacity Act 2005 (the “Mental Capacity Act”).

This case raises an issue of wider application about the proper role of a legal representative appointed to act for a patient under rule 11(7)(a) of the HESC Rules when the patient wants to be represented at the hearing but declines to provide express instructions. I give guidance to the First-tier Tribunal, and to parties and representatives, on the proper approach to be taken.