[2024] UKUT 411 (AAC)

The Law Society is the representative body for solicitors in England and Wales. It seeks to promote and protect the rule of law as well as to advance the interests of solicitors. The Law Society maintains a mental health accreditation scheme and publishes guidance to practitioners in the form of a practice note entitled ‘Representation before Mental Health Tribunals’, the most recent version of which is dated 23 February 2024. I joined the Law Society as an Interested Party because of its role described above, and because I considered that its input would assist.

While the Law Society took a neutral position on the facts of this appeal, it made a submission setting out its position on the issue I had highlighted in my grant of permission about the proper role of a legal representative appointed under Rule 11(7)(a) who is unable to elicit express instructions from their client.

It advocated the following approach in paragraph 21 of its skeleton argument:

“(a)

Steps must be taken to identify the reasons why the patient is not providing instructions and all practical steps must be taken to support the patient to do so. In the present case, the patient was in seclusion during the remote hearing and his responsible clinician’s view was that “if the hearing had been face to face it was possible that [the patient] might have provided instructions”.

(b)

If, despite practicable steps taken, a patient still does not engage, a review of their capacity to decide to appoint a representative and to conduct the proceedings is called for, since their lack of engagement calls for inquiry as to whether they are able to use or weigh up information about the need for representation, and the fact that a representative requires instructions on which to act, and as to whether they are now electing not to be represented despite previously having sought representation. There are two possible outcomes:

i.

patient has capacity to decide to appoint a representative and to conduct the proceedings, and has made a capacious decision that they do not want to be represented. In this case the Tribunal will need to decide whether to revoke the Rule 11(7)(a) appointment to enable the patient to conduct the proceedings themselves.; or

ii.

they now lack such capacity, in which case a Rule 11(7)(b) appointment must be made by the Tribunal.”

I endorse the approach of seeking to understand the reasons for the patient not providing instructions, taking an enabling approach to the patient’s engagement, and being alert to the possibility that the lack of instructions might be indicative of a lack of capacity. However, neither of the “two possible outcomes” which the Law Society posits is applicable to the circumstances of this case.

Here, the Tribunal assessed IN to have capacity to make relevant decisions and decided that the decision not to provide instructions was a capacitous one. While IN is reported as having said he was content for the hearing to proceed without him being represented, it remains that IN didn’t wish to conduct the proceedings for himself and he appears still to have preferred to be represented at the hearing. In these circumstances, the termination of the Rule 11(7)(a) appointment wouldn’t be appropriate, and IN didn’t lack capacity to make relevant decisions, so a Rule 11(7)(b) appointment would not have been available to the Tribunal.

Ms Tyrell , for IN, argued that the only way that a detained patient could appear before the mental health tribunal was if he had capacity to conduct proceedings and wished to conduct them for himself. She proposed that capacious patients who don’t wish to engage with their legal representative or the tribunal process should be afforded “similar safeguards” to those in place for incapacious patients who may be represented in their best interests. She argued that Rule 11(7)(b) appointments should be available not only to patients who lack the capacity to provide instructions, but also to those who have capacity to provide instructions but have failed to do so.

That isn’t what the HESC Rules provide for. For very good reason, patients are permitted to make decisions for themselves where they have capacity to do so, even if those decisions may be considered by some to be unwise. It would be contrary to the enabling principles of the Mental Capacity Act for patients to have decisions made for them if they have capacity to make the decisions for themselves.

Ms Tyrrell suggested that IN was unable to communicate his instructions, but there was no compelling evidence to support this. Patients who have the relevant understanding to make decisions but are truly unable to communicate their decisions would be assessed as not having capacity (see section 3(1)(d) of the Mental Capacity Act). IN was not in this situation. He was able to communicate his decisions, he just chose not to give any instructions. That was his right.

Ms Tyrrell’s proposed solution to her concern about capacious patients being left unrepresented before a tribunal because of their not having given instructions to their representative isn’t the only one. There is another way of looking at the situation.

The circumstances of this case are that IN had (capaciously):

The only proper inference to be drawn from the set of circumstances set out in the paragraph above is that was that IN preferred to be represented at the hearing by a legal representative (even if he had said that he would be content for the hearing to go ahead without his being represented).

It is not appropriate for such a patient to be left without representation, even if he has indicated that he is willing for the hearing to go ahead without representation.

So, what was the appointed representative to do, given that she was retained to act on IN’s instructions and he had refused to engage with her to provide any?

Given the nature of the proceedings in question – a hospital managers’ reference under section 68(2) of the Mental Health Act – it can (indeed it must) be inferred that IN wished his representative to test the detaining authority’s case for his continued detention, because that is the whole purpose of a hearing of a section 68(2) reference (and the finding of relevant capacity means that the Tribunal must have come to the view that IN understood that).

It would no doubt have assisted IN’s representative to have received more detailed instructions so she could make specific challenge to what was said in the reports produced on behalf of the responsible authority and so she could explain in more nuanced terms what IN wanted. However, it was sufficient for her to know that IN wanted her to put the case for his continued detention to the test. That would have achieved the purpose of a section 68(2) reference, which is to ensure that even if a patient does not exercise his right to make an application for a mental health tribunal, he still has “the lawfulness of his detention decided speedily by a court and his release ordered if the detention is not lawful” (per Article 5(4) of the Convention).

While it was perfectly appropriate for IN’s representative to have sought an adjournment, her saying that she would not represent her client at the hearing if her application for an adjournment was refused, put the Tribunal in a difficult position.

Although I have no doubt that IN’s representative sincerely believed she was unable to fulfil her professional obligations were she to continue with the hearing without express instructions from her client, it was not appropriate for her to withdraw (or to threaten to withdraw) representation at the hearing in those circumstances. Her telling the Tribunal that she would leave the hearing if the application was refused could be seen as an attempt to force the Tribunal’s hand and, in practical terms, to usurp the Tribunal’s role managing the proceedings.

There can be no question of a representative failing in her duty to act on instructions where the Tribunal has assessed the patient as having capacity to decide not to give instructions (a finding that the representative is bound to accept), the patient has said he wants to be represented but has not provided any express instructions, and the representative acts on inferred instructions that she is to test the detaining authority’s case for his continued detention. In such circumstances the representative must accept the decision of the Tribunal as to the patient’s capacity and represent him accordingly on the basis outlined above in paragraphs [87]-[91] above.