SB v South London and Maudsley NHS Foundation Trust
| Jurisdiction | UK Non-devolved |
| Judge | Wikeley |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] UKUT 33 (AAC) |
| Docket Number | HM/1592/2019 1 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 30 January 2020 |
Neutral Citation: [2020] UKUT 33 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Wikeley
HM/1592/2019 1
Facts: Under r11(7)(b) Tribunal Procedure Rules 2008, a Tribunal sitting on a mental health case may appoint a legal representative for a patient who lacks capacity and whose best interests are served by having a lawyer. Under r4, decisions which are delegated to Tribunal staff may be appealed to a judge within 14 days. Under the Practice Statement of the Senior President of Tribunals as to delegated functions, the power to make appointments under r11(7)(b) may be delegated.
The case of SB, who was detained under s3 Mental Health Act 1983, was referred to a Tribunal by the Hospital Managers; they suggested that he was without capacity to instruct a legal representative and, on relevant evidence of that being supplied, a member of staff appointed Firm A to act for SB. The set form for this purpose records that the appointment can be challenged by seeking a fresh direction. Some 3 weeks later, a week before the hearing, Firm B sought to go on record as representing SB and supplied evidence that this was SB's wish. However, Firm A declined to come off the record in light of having been appointed under r11(7)(b); Tribunal staff did not rescind the appointment of Firm A in light of their objection, noting that a new capacity statement would be required for any action to be taken. Firm A represented SB at the Tribunal hearing, at which detention was upheld. Before the Upper Tribunal, there were challenges to (i) the decision to appoint Firm A, (ii) the failure to rescind the appointment and (iii) the decision to uphold detention.
The decision of the Upper Tribunal is that:
(i) the First-tier Tribunal's decision on 17 April 2019 to make a r11(7)(b) appointment involved a material error of law. However, I exercise my discretion under s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the appointment;
(ii) the First-tier Tribunal's decision on 10 May 2019 not to rescind the r11(7)(b) appointment involved a material error of law. However, I exercise my discretion under s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the decision;
(iii) the First-tier Tribunal's decision on 15 May 2019 not to discharge the Appellant does not involve a material error of law.
This decision is given under ss11 and 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
1. This appeal turns on the operation of r11(7)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008 (SI 2008/2699), which provides that the Tribunal may appoint a legal representative for a mental health appellant. This applies where “the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient's best interests for the patient to be represented”. The issue that arises in this appeal concerns the situation where a r11(7)(b) appointment has been properly made by the Tribunal but the patient subsequently wishes to change his legal representative in circumstances where there may be a question mark over his capacity.
2. The Appellant SB is a man aged 43 who has suffered from enduring mental health problems since childhood; at various times he has received diagnoses of ADHD, OCD and ASD. In October 2018 he was detained at one of the Respondent's hospitals for treatment under s3 of the Mental Health Act 1983. This detention was followed by 22 sessions of ECT. On 1 April 2019, in accordance with the regime of the 1983 Act, the Hospital Manager made a reference to the Tribunal at the end of that first period (at least for present purposes) of detention. The Respondent also referred the Appellant to the Tribunal for appointment of a representative under r11(7).
3. On 16 April 2019 the Tribunal both (i) issued the Respondent with Form MH3 (the ‘Direction for Capacity Evidence’ form (which was swiftly completed and returned by the Respondent's Ward Social Worker); and (ii) contacted ADJ Law Solicitors to enquire whether they would be prepared to accept appointment to act for the Appellant under r11(7). Later the same day ADJ Law indicated their willingness to act as such.
4. The following day (17 April 2019) the Tribunal issued a Direction in the standard form (Form MH6b), appointing ADJ Law as the Appellant's legal representative, the ‘free text’ part of which read as follows:
“The tribunal has received evidence, which it accepts, that the patient lacks the capacity to appoint a representative, and the tribunal believes it is in the patient's best interests to be represented.
Therefore, in the exercise of powers delegated to tribunal staff under the Senior President's Practice Direction in relation to the Delegation of Functions, the tribunal directs that a legal representative (who is a member of the Law Society's Mental Health Tribunal Accreditation Scheme) is to be appointed for this patient under r11(7)(b).”
5. Three weeks later (on 7 May 2019), and about a week before the hearing, the Appellant's mother (and his nearest relative under the 1983 Act) helped him to contact the Tribunal office to request that he be represented by Campbell-Taylor Solicitors. This firm had represented the Appellant previously in the course of 2006, 2009 and 2016. The Tribunal promptly contacted ADJ Law by e-mail and asked as follows: “I note that you are currently acting for this patient on our system. Do you object to authority being transferred?” ADJ Law replied the following day (8 May 2019) in these terms:
“Thank you for your email. I confirm I object to the authority being transferred. Please be informed I have been appointed under r11(7)(b) as my client lacks capacity to instruct solicitors. I further confirm I met with [SB] on Thursday, 2 May 2019 and he continues to lack capacity to instruct solicitors.”
6. The next day (9 May 2019) Campbell-Taylor Solicitors e-mailed the Tribunal (1) a Consent Form signed by the Appellant, declaring that he wished to be represented by that firm, and in addition (2) a Change of Solicitor Authority Form, again signed by the Appellant but also counter-signed by his mother. The e-mail added the information that:
“We met the client today on the ward, and understand that the client's mother has been in touch with the Tribunal, and we would appreciate confirmation that we are now on the record as the Solicitor.”
This was followed up the same day by the new solicitors making a telephone call to the Tribunal, “checking if we are on the record”, with their file note including the Tribunal's response that “we have to check if other solicitor consents”. The Tribunal's own clerical...
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