[2024] UKUT 411 (AAC)

The guidance given by the Law Society in its note on ‘Representation before Mental Health Tribunals’, and reinforced by Ms Kelly at the hearing before the Upper Tribunal, is that advocates should assess the question of capacity for themselves, but in the event of difficulty they should seek the opinion of the patient’s responsible clinician and, failing that, the tribunal’s medical member:

“The question of whether the person is able to provide instructions is a judgment that in many cases an experienced mental health advocate will be able to make themselves. In the rare cases where you are unable to form an opinion you should obtain the opinion of the responsible clinician (RC) – either directly or via the mental health act administrator – as to the client’s litigation capacity by reference to the test in Masterman-Lister. You should also ask the RC for their opinion on the client’s capacity to appoint you.

You should consider the validity of the RC’s assessment; it is not automatic that the RC’s assessment is sufficient evidence. If still unsure, where appropriate, the Tribunal Medical Member can also be asked to provide a view.

Ultimately, within active Tribunal proceedings, it is for the tribunal to decide whether the patient has capacity to instruct a solicitor, or not, with reference to YA guidance found at paragraph 58 of YA.”

In the 27^th edition of his Mental Health Act Manual, Richard Jones criticises the Law Society’s guidance and counsels a different approach to assessing capacity:

“The tribunal should not require the patient’s responsible clinician (RC) to provide it with an assessment of the patient’s mental capacity to instruct a solicitor as this would involve the RC in a conflict of interest in that the tribunal would be asking the RC to give an opinion on the capacity of an individual who is on the opposite side of the dispute. For the same reason, the patient’s legal advocate should not follow the Law Society’s advice that where the advocate is unable to form an opinion on the patient’s mental capacity to provide instructions, the opinion of the patient’s RC should be sought … Conducting such an assessment might also be beyond the RC’s area of competence. It is suggested that if, during her examination of the patient, the medical member of the tribunal suspects that the patient lacks the required capacity, she should inform her colleagues of her assessment. Guided by this assessment, the tribunal should then decide, applying the best interests test, whether to appoint a solicitor to represent the patient. The principles and approach set out in the Mental Capacity Act 2005 (see in particular ss. 1 to 5) and its associated statutory guidance in the Code of Practice: Mental Capacity Act 2005 (see in particular Ch. 4) should be applied”

Yet another approach was proposed on behalf of IN: it was argued that not only was it inappropriate for a patient’s responsible clinician to assess the patient’s capacity to give instructions, neither was it appropriate for a tribunal medical member to do so. It was argued that the issue of a patient’s capacity to give instructions was a matter solely for the accredited representative to assess, and the question they had to answer was: “can the patient understand the issue and can they tell their representative about it in order for those instructions to be acted upon?”

I do not agree entirely with any of these approaches. Ultimately, where capacity is in issue at a hearing (as it was in this case when doubts were raised about IN’s capacity and the hearing was adjourned briefly to allow Dr Alikhan and the other members of the treating team to speak with IN to assess his current capacity), it is a matter that must be decided by the tribunal. It must be decided by the tribunal making of findings of fact based on evidence, and by applying the Mental Capacity Act and the authorities that were binding on it to those findings of fact.

A tribunal is not precluded from relying on the evidence of a patient’s responsible clinician and/or other witnesses, and it may also rely on evidence from the tribunal’s medical member or, indeed, any observations made by other panel members of the patient’s presentation during the hearing. The panel must assess all the relevant evidence regarding capacity critically, just as it must assess any other evidence critically. It must consider issues such as potential conflicts of interest and the witness’s understanding of the issues relevant to the assessment in question, when assessing the reliability of the evidence before it.