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IN v St Andrew's Healthcare [2024] UKUT 411 (AAC)

Rule 11(7)(a) and lack of express instructions The patient had not appointed a representative but did not wish to conduct his own case, so a representative was appointed under rule 11(7)(a). The patient refused to engage or provide instructions. The solicitor sought an adjournment and said she would not remain as an observer if it were refused, but the tribunal refused to adjourn. The Upper Tribunal said that: (1) Such appointments operate as a retainer (citing a previous case which did not say that). The solicitor should have acted upon inferred instructions to test the detaining authority’s case for his continued detention, because that is the whole purpose of a hearing of a s68(2) reference and the patient preferred to be represented. It was appropriate to seek an adjournment but inappropriate to leave or threaten to leave. (2) When capacity to provide instructions is in issue, the tribunal is not precluded from relying on evidence from the RC or other witnesses, but must consider potential conflicts of interest and the witness's understanding of the relevant issues. (3) The Tribunal’s failure to explain (a) how it balanced the competing factors for and against granting an adjournment, and (b) why it was in the interests of justice to proceed with the hearing in the absence of both the patient and his representative, rendered its reasons for refusing the adjournment application inadequate. The Legal Aid implications were not mentioned.

Judicial summary

Judicial Summary

The right of a detained psychiatric patient to have their detention reviewed timeously is a very important right, as is the right to a fair hearing. The Mental Health Act 1983 and the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 contain important safeguards to protect those rights. This case demonstrates how tensions can arise between them.

This decision concerns a tribunal’s decision making around whether to adjourn or to proceed with a hearing from which both the patient and the patient’s appointed representative are absent, as well as what the tribunal must say in its reasons to clear the required hurdle of ‘adequacy’.

I give guidance to the First-tier Tribunal, and to parties and representatives in the First-tier Tribunal, about what to do when a patient with a representative appointed under Rule 11(7)(a) of the first-tier tribunal rules makes a capacious decision not to engage with their representative to provide instructions. I say that the patient should not be left unrepresented and the representative should conduct the hearing on the basis that their implicit instructions are to test the legal test for the patient’s continued detention.

I decide that where a patient’s liberty is at stake, and where the patient will be neither present nor represented at the hearing, there is a significant risk that the disposal of the proceedings will involve an unlawful interference with the patient’s Article 5(4) rights. In such circumstances, if a tribunal is to proceed to dispose of the appeal, it must explain specifically how and why it concluded that doing so was in the interests of justice. It is not enough to simply state that it decided that it was so.

See also

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Subject(s):

  • MHT capacity cases🔍
  • Other Tribunal cases🔍
  • Upper Tribunal decisions🔍

Date: 10/11/24🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍

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Published: 5/2/25 02:41

Cached: 2025-03-29 21:41:51

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