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Capacity to make decisions about applying to the mental health tribunal
Capacity to make decisions about applying to the mental health tribunal
There is clear Upper Tribunal authority on the test to be applied in respect of a decision whether to make an application to the mental health tribunal.: “The patient must understand that they are being detained against their wishes and that the First-tier Tribunal is a body that will be able to decide whether they should be released” (VS v St Andrew’s Health Care [2018] UKUT 250 (AAC), confirmed by the majority of a three judge panel of the Upper Tribunal in SM v Livewell Southwest CIC [2020] UKUT 191 (AAC).
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2) (a), (b)(i) and (3) of the Tribunals, Courts and Enforc
- This appeal is about the Appellant, who is a patient detained at Broadmoor ( a secure psychiatric hospital). It is about his right to have his detention reviewed by a tribunal (even where he makes no
- 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 i
- Background
- The Hearing before the First-tier Tribunal
- Legal framework
- The Mental Capacity Act 2005
- The HESC Rules
- The Convention
- The First-tier Tribunal’s decision
- The permission stage
- Discussion
- Rule 11(7) appointments
- Capacity
- Capacity to make decisions about applying to the mental health tribunal
- Capacity to decide whether to appoint a representative
- Who is to assess capacity to make decisions about providing instructions?
- The Tribunal’s decision re IN’s capacity to make decisions about giving instructions
- What is a Rule 11(7)(a) appointed legal representative to do in the absence of express instructions?
- Was the representative’s appointment terminated?
- The adjournment application and the reasons for it
- Materiality
- Conclusions