[2024] UKUT 411 (AAC)

Dr Alikhan gave evidence that IN had capacity to make the decisions relevant to the hearing (recorded in paragraph [9] of the Tribunal’s written reasons):

“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.”

The Tribunal accepted this evidence, but it is not clear from the Tribunal’s reasons for its decision to what extent IN’s ability to understand the consequences of such a decision was tested by Dr Alikhan when he assessed IN. It isn’t clear whether Dr Alikhan ascertained whether IN was aware how his refusal to give instructions might have affected his representative’s ability to present his case, and while it is reported that he didn’t mind that he would not be represented, it is not clear whether IN understood that the risk of not being represented at the hearing arose from his refusal to give instructions to his representative and if he were to give instructions. If Dr Alikhan explored such matters with IN and explained this to the Tribunal, the Tribunal’s reasons don’t say that.

The Tribunal appears to have accepted Dr Alikhan’s evidence at face value. In the circumstances, there wasn’t much else it could do, since Dr Alikhan and the other witnesses from the detaining authority were the only people who had had any degree of engagement from IN.

IN’s representative could form no opinion on IN’s capacity because he had refused to engage with her at all, and neither could the Tribunal’s medical member, who had not carried out any pre-hearing examination. Because the hearing was a remote hearing, it was not possible to send the medical member to perform a capacity assessment, and because IN chose not to participate in the hearing it was not possible even for the panel members to observe his interactions during the hearing. As such, the Tribunal had only Dr Alikhan’s assessment to go on, and the Mental Capacity Act presumption of capacity in the absence of evidence to the contrary.

In the circumstances, the Tribunal was entitled to decide that IN had capacity, but given the importance of that issue in the context of its decision, its reasons for doing so may be inadequate. I discuss the adequacy of the Tribunal’s reasons further under the heading ‘The adjournment application and the reasons for it’ below.