[2024] UKUT 411 (AAC)

Although there is no dispute in this case that IN’s representative was validly appointed under Rule 11(7)(a) of the HESC Rules, in order to make this decision as helpful as it can be to those navigating the issues surrounding such appointments I set out below my understanding of the purpose and background of such appointments.

Appointments under Rule 11(7)(a) are regularly made by members of tribunal staff pursuant to Rule 4 of the HESC Rules for “sensible pragmatic reasons” (see AMA v Greater Manchester West Mental Health NHS Foundation Trust [2015] UKUT 36 (AAC); [2015] M.H.L.R. 133 at [28]. Such appointments operate as a retainer as between the patient and the legal representative appointed by the tribunal to advise the patient on, and to conduct, the tribunal proceedings pursuant to the patient’s instructions and subject to the solicitor’s professional obligations and duties (see YA v Central and North West London NHS Trust [2015] UKUT 37 (“YA”) at [74]-[75]).

Rule 11(7)(a) allows capacious patients who wish to be represented but, for whatever reason, haven’t appointed a representative to be represented in tribunal proceedings. This reflects one aspect of the overriding objective of the HESC Rules, namely that set out in Rule 2(2)(c) (“ensuring, so far as practicable, that the parties are able to participate fully in proceedings”).

That provision is a reflection of Strasbourg caselaw concerning the effective participation of those with mental disorders. Proceedings must provide effective guarantees against arbitrariness given the vulnerability of individuals suffering from mental disorders and the need to adduce weighty reasons to justify restrictions on their rights (see MS v Croatia (no. 2) [2015] ECHR 196 at [147] (“MS v Croatia (no. 2)”).

Article 5(4) of the Convention requires that a patient has the opportunity to be heard in person or through some form of representation. They should, absent special circumstances, receive legal assistance in the proceedings (see MS v Croatia (no. 2) at [153] and MH v United Kingdom [2013] ECHR 1008 at [77c]).

Special procedural safeguards may be called for to protect the interests of those who, on account of their mental disabilities, are not fully capable of acting for themselves (see Winterwerp v Netherlands (1979-80) 2 EHRR 387 at [60]).

Merely appointing a lawyer, without that lawyer actually providing practical legal assistance in the proceedings, cannot satisfy the requirements of necessary “legal assistance” for persons confined who are of “unsound mind”.

In its submissions on the role of a Rule 11(7) appointed representative, the Law Society submitted that in all cases an MH3 form should be completed before any administrative decision is made as to a patient’s involvement or representation, and that form should then be part of the information that is reviewed by a tribunal considering whether the patient’s relevant capacity and/or expressed wishes has changed.

I agree wholeheartedly with that submission as a statement of good practice, but there is no strict procedural requirement for the completion of such a form. It appears that no MH3 form was completed in this case, but that omission doesn’t invalidate or otherwise impugn her Rule 11(7) appointment.