[2024] UKUT 411 (AAC)

At the outset of the hearing before the panel of the First-tier Tribunal that convened to hear the reference (the “Tribunal”), IN’s representative explained the difficulties she had had with engagement. She told the Tribunal that, while she had been appointed under Rule 11(7)(a) of the HESC Rules to act for IN, she couldn’t represent him as she had no instructions.

IN’s responsible clinician reported to the hearing that IN had capacity to make decisions about:

It was reported that IN didn’t want to attend the hearing, didn’t care who represented him, and wanted the hearing to go ahead.

IN’s representative argued that IN not wishing to attend the hearing and not caring who represented him was very different from his not wishing to attend the hearing and not caring whether he was represented at the hearing at all. IN’s representative applied for an adjournment of the hearing to another date so she could make a further attempt to take instructions from her client.

The Tribunal adjourned very briefly to allow the witnesses from the treating team to visit IN and for Dr Alikhan (IN’s responsible clinician) to assess whether IN continued to have capacity to make the relevant decisions about the hearing and to ascertain whether his views on the matters set out above had changed.

The Tribunal has given an account in its written reasons of what the witnesses from the treating team said when the hearing resumed after the brief adjournment. That account differs in some important respects from the account which IN’s representative has given.

In particular, the Tribunal’s reasons state that the evidence of the witnesses from the treating team after the brief adjournment was that IN continued to be capacious in the relevant domains and had said:

IN’s representative, on the other hand, says the evidence of the witnesses from the treating team, having spoken to IN, remained that:

IN’s representative also maintains that she was ‘dismissed’ from the hearing by Judge Pitt after she declined Judge Pitt’s suggestion that she might remain as an observer. The written reasons do not record any ‘dismissal’ of IN’s representative from the hearing.

I have not been provided with any recording of the hearing. Without having heard the evidence at the hearing myself it is difficult for me to resolve the conflict of evidence about what was said. On the basis that the judge appears to have taken a detailed note and produced the Tribunal’s written reasons only the day after the hearing, I consider it likely to be a reliable and accurate account of what was said. I have therefore proceeded on the basis that the evidence given at the hearing was as Judge Pitt has recorded it to be in the Tribunal’s written reasons.

Following the evidence from the treating team as to IN’s capacity and his decisions, IN’s representative told the Tribunal she felt unable to represent IN without instructions. She said she would leave the hearing should the Tribunal refuse to adjourn.

The Tribunal refused the adjournment application and invited IN’s representative to remain in the hearing as an observer, which she declined, saying that to be an observer would be inappropriate.

IN’s representative left the hearing and the Tribunal proceeded to determine the reference in the absence of both IN and his representative.

The Tribunal decided that each of the statutory conditions to detention was met and that IN should not be discharged from liability to be detained.