IN v St Andrews Healthcare

Where a detained patient has asked for representation under Rule 11(7)(a), has capacity, and does not expressly instruct the representative but has not withdrawn the wish to be represented, the representative should not leave the patient unrepresented. The proper inference is that the representative is instructed to test the detaining authority’s case for continued detention.

A tribunal may proceed in a patient’s absence only where the procedural conditions are met and it is in the interests of justice. If both the patient and representative will be absent from a hearing concerning liberty, the tribunal must give specific and adequate reasons showing how it balanced participation, effective review, delay and the other relevant considerations. A bare assertion that proceeding is in the interests of justice is insufficient.

IN v St Andrews Healthcare concerned a hospital managers’ reference for review of the appellant’s detention under section 3 of the Mental Health Act 1983. The appellant had not made his own tribunal application. A representative was appointed under Rule 11(7)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, but the appellant did not engage to provide instructions.

The First-tier Tribunal refused an adjournment and determined the reference in the absence of both the appellant and his representative, deciding that the statutory conditions for detention remained met. The appellant challenged the refusal to adjourn and the adequacy of the tribunal’s reasons. The Upper Tribunal also considered the proper role of a Rule 11(7)(a) representative where a capacitous patient wants representation but gives no express instructions.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law. Its reasons did not adequately explain why it was in the interests of justice to proceed with a liberty-related hearing when the appellant would be neither present nor represented. The decision was set aside and remitted to a freshly constituted tribunal for an oral rehearing.

2. A Rule 11(7)(a) appointment is a retainer between the patient and the appointed representative. Where a patient with capacity sought representation, does not attend, gives no express instructions, and has not indicated that the appointment should end, the proper inference is that the patient prefers to remain represented. The representative must test the detaining authority’s case for continued detention. The representative should not withdraw merely because fuller instructions have not been obtained.

3. Capacity to give instructions is decision-specific and time-specific. It requires an ability to understand the consequences of refusing instructions, including the effect on the representative’s ability to present the case. Where capacity is in issue in active proceedings, it is ultimately for the tribunal to decide it on findings of fact and the applicable statutory test. It may consider evidence from the responsible clinician, the tribunal medical member and others, but must assess that evidence critically.

4. The tribunal had a broad case-management discretion. However, more intense appellate scrutiny is warranted where its exercise risks frustrating a detained patient’s rights under Article 5(4) of the Convention. The overriding objective requires a real balancing exercise. The tribunal was entitled to consider procedural history and delay, but those matters would ordinarily carry relatively little weight against the risk of an ineffective review of detention.

5. Although the tribunal recorded notice, capacity and the appellant’s stated willingness for the hearing to proceed, it did not sufficiently address the restricted opportunities to obtain instructions, the realistic prospect of engagement at a later face-to-face hearing, the absence of a medical examination, or why those matters were outweighed. Its conclusory statement that proceeding was fair, just and in the interests of justice was inadequate. That inadequacy was material because it prevented review of whether the correct tests had been applied.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remitted the reference to a fresh tribunal.
• First-tier Tribunal (Health, Education and Social Care Chamber): On 28 November 2022, refused an adjournment and upheld the appellant’s continued detention following a hospital managers’ reference.