[2024] UKUT 411 (AAC)

Insofar as relevant to this appeal, the Tribunal explained its decision-making as follows:

“3.

This was a reference which was made by the hospital under s.68(2) of the MHA after a period of detention under s.3 during which [IN] did not appeal to the Tribunal. More details are set out below but the information in the reports provided to the panel prior to the hearing showed that [IN]’s transition from seclusion to the open ward had begun in April 2022 but had stopped in July 2022 after a serious assault on staff. Since that time the evidence showed that he had been in seclusion with at least three staff present whenever his door was opened. He had consistently refused to engage with staff during this period including refusing medication. There had been further incidents of aggression during October 2022. The Tribunal bore this context in mind when deciding whether to proceed with the hearing.

4.

The Tribunal also noted that an earlier hearing listed for 23 November 2022 had been postponed at the request of the patient’s representative. The postponement of a previous hearing date also formed part of the context that the Tribunal bore in mind when deciding to proceed with the hearing on 28 November 2022.

5.

Prior to the hearing [IN] asked the Tribunal to provide him with a legal representative and Ms Tyrrell was appointed under Rule 11(7)(a). At the hearing she informed the Tribunal that after being instructed she wrote to [IN] on many occasions, advised him of the change of date of the hearing, went to the ward to see him in order to take his instructions and offered to re-attend the ward to take instructions. He did not respond to any of her correspondence and did not provide instructions when she went to the ward.

6.

Ms Tyrrell told the Tribunal that when she went to the hospital to take instructions the ward nurses had been clear that [IN] had capacity to provide instructions but was choosing not to do so. Dr Alikhan, the Responsible Clinician (RC), also confirmed at the hearing that it was his assessment that [IN] had capacity to make decisions about the Tribunal, about whether he wanted to have a representative, whether he wanted to represent himself and whether he wanted to attend the hearing. Dr Alikhan considered that [IN] had made a capacitous decision not to provide Ms Tyrrell with instructions. {IN] had said that he did not want to attend the hearing and had capacity to make that decision. Dr Alikhan stated that his experience of [IN] was that he had capacity to make decisions and chose to do some things and chose to not do others. Dr Alikhan’s view, based on his experience working with [IN], was that he wanted the hearing to go ahead and was not concerned as to who represented him.

7.

Ms Tyrrell informed the Tribunal that although she had been appointed to act for [IN] she did not consider that she could represent him at the hearing without any instructions. She submitted that [IN] being unconcerned as to who represented him at the hearing was not the same as [IN] indicating that he did [sic] want to be represented at all. She maintained that the hearing should be adjourned in order for him to have an opportunity to provide instructions to a representative.

8.

Dr Alikhan, Ms Faulkner and Nurse Oppong suggested that they speak to [IN] to establish that he retained capacity regarding the Tribunal and to establish his contemporaneous views on whether he wished to provide instructions, to represent himself, to attend the hearing at all and whether he still wanted the hearing to proceed if he did not attend and was not represented, The Tribunal granted a short adjournment to allow them to do so

9.

When the hearing resumed the hospital team confirmed that [IN] had said that he wanted the hearing to go ahead and that he did not mind that he would not be represented. He had also said that he wanted the Tribunal to allow him to leave hospital and go home. Dr Alikhan confirmed his opinion that [IN] had capacity to make those decisions. Dr Alikhan also added that if the hearing had been face to face it was possible that [IN] might have provided instructions.

10.

Ms Tyrrell remained of the view that she could not represent [IN] as she did not have instructions and would not remain if the hearing proceeded. The Tribunal indicated that she could remain to observe the hearing on behalf of [IN]. Ms Tyrrell stated that she did not wish to observe the hearing and that in her view it would not be legally correct to do so. She maintained that it would be unfair and unjust and therefore a breach of the overriding objective set out in Rule 2 for the Tribunal to proceed with the hearing if [IN] was not represented. The Tribunal should adjourn in order for him to have a further opportunity to provide instructions.

11.

The Tribunal considered whether to proceed with the hearing given that [IN] had chosen not to be present and also would not be represented. After referring to the Procedure Rules, in particular Rules 2, 11 and 39, the Tribunal concluded that it was appropriate to proceed to hear the reference.

12.

There were a number of reasons for reaching this conclusion. There was clear evidence that [IN] had been informed about the hearing. This had occurred prior to the hearing and included Ms Tyrrell writing to him on a number of occasions and going to the ward to see him in connection with the hearing as well as staff talking to him about the Tribunal.

13.

There was also clear evidence that [IN] had capacity to decide not to provide instructions, not to represent himself and not to attend the hearing. He had been assessed as having capacity in those regards both before and at the time of the hearing. Ms Tyrrell had been told by staff that he had capacity to decide not to provide instructions when she had visited the ward. Dr Alikhan’s view prior to the hearing was that [IN] had capacity to make decisions about the Tribunal. He reassessed capacity on the day of the hearing and indicated specifically that [IN] had capacity to decide not to provide instructions, not to represent himself, not to attend, and to agree to the hearing proceeding in his absence even if he was not represented.

14.

The Tribunal noted that Dr Alikhan had stated that if the hearing had been face to face then [IN] might have provided Ms Tyrrell with instructions on the day. The Tribunal accepted that might be so but did not consider that possibility to be sufficient to justify an adjournment when considered against the evidence as a whole. Ms Tyrrell had made repeated efforts to take instructions prior to the hearing but [IN] made a capacious decision not to provide instructions. He also made a capacious decision that he wanted the hearing to proceed, did not want to attend and that he accepted that the hearing could proceed without him being represented or present. The Tribunal did not consider that it was proportionate to adjourn in case [IN] changed his mind on any of these matters in future. He had been afforded a proper opportunity to provide instructions to a legal representative. He confirmed on the day of the hearing that he was content for the hearing to proceed even if he was not represented The Tribunal appreciated the concern that arose from the apparent contradiction of [IN] asking for a legal representative to be appointed and then not providing instructions but his interests had to be weighed together with other aspects to be taken into account when seeking to apply the overriding objective and decision [sic] to adjourn which included cost, resources and avoiding delay.

15.

Further, the Tribunal noted the evidence in the report as to [IN]’s general presentation since July 2022 and considered that it was difficult to estimate whether on another occasion [IN] might take a different view of how he wanted the reference to be conducted, whether he might provide instructions and when this might occur. It was therefore unclear that an adjournment would lead to a material change of circumstances as regards the conduct of the hearing within a reasonable time frame.

16.

For all of these reasons, the Tribunal concluded that the hearing could proceed fairly and justly in the absence of a legal representative and that it was not appropriate to adjourn on that basis.

17.

Essentially the same evidence and reasons led the Tribunal to conclude that the hearing could proceed in the absence of [IN], after considering the provisions of Rule 39. As above, it was clear that he had been given notice and had made a capacious decision not to attend. He confirmed that decision on the day of the hearing having also indicated on the day of the hearing that he was also content not to be represented. He was clear that he wanted the hearing on 28 November 2022 to proceed. No pre-hearing examination was indicated in the Rules. [IN] had capacity to make decisions about the Tribunal and had not asked for a preliminary examination. The Tribunal did not consider that a pre-hearing examination was necessary in these circumstances and it was not suggested by Ms Tyrrell that this was a reason for adjourning. The Tribunal found that it was in the interests of justice to proceed in [IN]’s absence where he had decided not to attend and it was not necessary for there to be an examination under Rule 34.

18.

The Tribunal announced that the hearing would proceed. Ms Tyrrell confirmed that she would not remain to observe the proceedings and that she would appeal against the decision to proceed as it was her position that it was not fair and just to do so.”