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The permission stage
The permission stage
Permission having been refused by the First-tier Tribunal and by Judge Jacobs of the Upper Tribunal on the papers, IN applied for the matter of permission to be reconsidered at an oral hearing and it came before me. Having heard oral argument from IN’s representative, I was persuaded that the application raised issues of wider application about how the tribunal should proceed when faced with a patient who has chosen not to give instructions to his representative, and that it was appropriate for me to give guidance to the First-tier Tribunal and to participants in tribunal proceedings on issues relating to capacity and the proper application of the HESC Rules to avoid procedural unfairness. I decided that this warranted a grant of permission to appeal. I did not restrict my grant of permission.
I made Case Management Directions, joined the Law Society of England and Wales (the “Law Society”) as an Interested Party, and directed an oral hearing of the substantive appeal. I directed the Law Society to provide representations.
- 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