[2024] UKUT 411 (AAC)

While VS v St Andrew’s Health Care sets the bar for the test for capacity to decide whether or not to make an application to the mental health tribunal very low, the leading authority on the test for a patient’s capacity to decide whether to appoint a legal representative to conduct mental health tribunal proceedings sets the bar for that decision much higher: in YA Charles J held that the capacity to make a decision about whether to appoint a representative was inextricably related to the capacity to conduct the proceedings, making the distinction between them “theoretical rather than real” (see YA at [57]-[60]). This makes the test for capacity to decide whether to appoint a representative a relatively demanding one.

Charles J said that the making of a decision whether or not to appoint a representative requires the ability to “sufficiently understand and weigh the reasons for and against the rival decisions and thus their advantages, disadvantages and consequences.” (YA at [58]). To do so the patient “has to be able to sufficiently understand, retain, use and weigh the assistance a representative will or may be able to give on the issues in the proceedings having regard to their nature and complexity”. The relevant factors listed in YA at [58] include “the ability to conduct the proceedings without help”.

“58.

Accordingly, the distinction between the capacity to appoint a representative and the capacity to conduct proceedings narrows. This is because, to assess the advantages, disadvantages and consequences of choosing whether or not to appoint a representative, the decision maker has to be able to sufficiently understand, retain, use and weigh the assistance a representative will or may be able to give on the issues in the proceedings having regard to their nature and complexity. So factors that the patient will have to be able to sufficiently understand, retain, use and weigh will be likely to include the following:

i)

the detention, and so the reasons for it, can be challenged in proceedings before the tribunal who on that challenge, will consider whether the detention is justified by the provisions of the [Mental Health Act],

ii)

in doing that, the tribunal will investigate and invite and consider questions and argument on the issues, the medical and other evidence and the legal issues,

iii)

the tribunal can discharge the section and so bring the detention to an end,

iv)

representation would be free,

v)

discussion can take place with the patient and the representative before and so without the pressure of a hearing,

vi)

having regard to that discussion a representative would be able to question witnesses and argue the case on the facts and the law, and thereby assist in ensuring that the tribunal took all relevant factual and legal issues in t account,

vii)

he or she may not be able to do this so well because of their personal involvement and the nature and complication of some of the issues (e.g. when they are finely balanced or depend on the likelihood of the patient’s compliance with assessment or treatment or relate to what is the least restrictive available way of best achieving the proposed assessment or treatment).

viii)

having regard to the issues of fact and law his or her ability to conduct the proceedings without help, and so

ix)

the impact of these factors on the choice to be made.”

There are three principal aspects of capacity that are relevant to patients involved in proceedings before the mental health tribunal:

I won’t say anything further about a. because that issue does not arise where, as here, the proceedings were initiated not by application but rather by a referral by the hospital managers pursuant to section 68(2) of the Mental Health Act.

As far as b. is concerned, in this appeal there is no dispute that IN had capacity to decide to ask the tribunal to appoint a legal representative to act for him under Rule 11(7)(a), and the validity of that appointment is not in question.

However, YA is still relevant to this case (seeparagraphs [59]-[60] above) because the appointment of a representative isn’t the end of the story: having appointed a representative (or had one appointed on their behalf) a patient must make decisions about the conduct of the proceedings through their representative, including decisions around instructing their representative. The same approach must apply to those decisions.

Capacity to conduct proceedings involves understanding the issues on which the patient’s consent or decision is likely to be necessary in the course of those proceedings. This requires the ability to recognise a problem, to obtain, receive and understand relevant information, including advice, and the ability to communicate that decision (see Masterman-Lister v Brutton & Co [2003] 3 All ER 162 (“Masterman-Lister”) (cited with approval by the Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] 1 WLR 933).

Following the logic in YA and Masterman-Lister, for IN to be able to make a capacious decision not to provide instructions he had to be able to understand the consequences of the exercise of that choice in terms of his representative’s ability to present his case and indeed the potential that she might feel professionally unable to continue to act for him.

It is sometimes said that a “longitudinal approach” is required in respect of issues of capacity. This is just a clever way of saying that the issue must be kept under review by all parties and by the tribunal because mental capacity is not only decision-specific but time-specific too, and sometimes subject to considerable fluctuation. If a review shows that the patient has lost relevant capacity, the tribunal should terminate a Rule 11(7)(a) appointment and make a Rule 11(7)(b) appointment in its place (under which the representative acts in the patient’s best interests rather than on their instructions). Similarly, should a patient with a Rule 11(7)(b) representative regain capacity the tribunal should terminate that appointment and make a Rule 11(7)(a) appointment in its place.