[2024] UKUT 411 (AAC)

Between:

IN

Appellant

- v -

St Andrews Healthcare

Respondent

West London NHS Trust

First Interested Party

The Law Society of England and Wales

Second Interested Party

Before: Upper Tribunal Judge Church

Hearing date(s): 13 August 2024

Mode of hearing: Remote hearing via CVP

Representation:

Appellant: Ms Kate Tyrell of Gledhill Gill Solicitors

Respondent: Not represented and did not participate

First Interested Party: Not represented and did not participate

Second Interested Party: Ms Arianna Kelly of counsel, instructed by The Law Society of England and Wales

On appeal from:

Tribunal: First-tier Tribunal (Health, Education and Social Care Chamber)

Tribunal Case No: MH/2022/25432

Tribunal Venue: Remote hearing via CVP

Decision Date: 28 November 2022

SUMMARY OF DECISION

MENTAL HEALTH (80)

TRIBUNAL PRACTICE AND PROCEDURE (34)

(fair hearing 34.2; representatives 34.6; statement of reasons 34.9)

The right of a detained psychiatric patient to have their detention reviewed timeously is a very important right, as is the right to a fair hearing. The Mental Health Act 1983 and the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 contain important safeguards to protect those rights. This case demonstrates how tensions can arise between them.

This decision concerns a tribunal’s decision making around whether to adjourn or to proceed with a hearing from which both the patient and the patient’s appointed representative are absent, as well as what the tribunal must say in its reasons to clear the required hurdle of ‘adequacy’.

I give guidance to the First-tier Tribunal, and to parties and representatives in the First-tier Tribunal, about what to do when a patient with a representative appointed under Rule 11(7)(a) of the first-tier tribunal rules makes a capacious decision not to engage with their representative to provide instructions. I say that the patient should not be left unrepresented and the representative should conduct the hearing on the basis that their implicit instructions are to test the legal test for the patient’s continued detention.

I decide that where a patient’s liberty is at stake, and where the patient will be neither present nor represented at the hearing, there is a significant risk that the disposal of the proceedings will involve an unlawful interference with the patient’s Article 5(4) rights. In such circumstances, if a tribunal is to proceed to dispose of the appeal, it must explain specifically how and why it concluded that doing so was in the interests of justice. It is not enough to simply state that it decided that it was so.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION