KH & Anor v Nottinghamshire Healthcare NHS Foundation Trust & Anor

A mental health tribunal must assess capacity by reference to the particular decision or activity in issue. It must presume capacity, take practicable steps to support decision-making, and not equate an unwise, anxious or agitated response with incapacity. Capacity to appoint a representative may require capacity to conduct the proceedings.

A Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 rule 11(7)(b) appointment remains discretionary. The tribunal must give clear reasons on capacity, best interests and exercise of discretion, while keeping those matters under review. Where unwanted representation impairs meaningful participation, it must balance fair-hearing rights against the need for a speedy detention review and consider proportionate case management, including adjournment.

KH and AH were detained patients whose cases were referred to the First-tier Tribunal for review. Each had a solicitor appointed under rule 11(7)(b) because of a lack of capacity to appoint a representative.

KH objected to the appointment and would not engage with his representative. His tribunal maintained the appointment, proceeded with the hearing and confirmed his detention. AH also firmly objected. His tribunal rescinded the appointment, proceeded without representation and confirmed his detention.

The Upper Tribunal heard the appeals together. It considered the capacity test, the continuing effect of a rule 11(7)(b) appointment, the representative’s duties, adequate reasons, and whether a tribunal should consider adjournment to enable meaningful participation.

1. Both appeals were allowed. KH’s First-tier Tribunal decision was set aside and remitted to a fresh tribunal. AH’s decision involved a material error of law, but was not set aside because AH had since been conditionally discharged.

2. Capacity is decision-specific. In applying rule 11(7)(b), the tribunal must determine whether the patient lacks capacity to appoint a representative. That assessment may encompass capacity to conduct the proceedings, because a decision whether to appoint a representative entails understanding the consequences of proceeding without one. The tribunal must apply the statutory presumption of capacity and provide practicable support before finding incapacity.

3. The rule 11(7) power is discretionary. The tribunal must decide whether the patient lacks capacity to appoint a representative; if so, whether representation is in the patient’s best interests; and whether to exercise the discretion to appoint or continue the appointment. Capacity and the suitability of representation must be kept under review, especially where capacity fluctuates or the patient objects.

4. Unwanted representation may cause distress and frustrate effective participation. A representative who considers continued appointment inappropriate must explain why, while also presenting the patient’s contrary wishes where appropriate. The tribunal must balance meaningful participation and fairness against the need for a speedy review under article 5(4). An adjournment to facilitate participation is not necessarily precluded.

5. KH’s tribunal gave no intelligible reasons for resolving conflicting capacity evidence, finding representation to be in his best interests, or exercising its discretion despite his objection. The error materially affected the fairness and possible outcome of the hearing.

6. AH’s tribunal failed either to consider relevant participation and adjournment factors, or to give adequate reasons showing that it had done so. That was material, although no further substantive order was justified.

• Upper Tribunal (Administrative Appeals Chamber): allowed both appeals in [2025] UKUT 128 (AAC). KH’s decision was set aside and remitted; AH’s error of law was recorded but the decision was retained.
• First-tier Tribunal (HESC) (Mental Health), KH: on 27 July 2023, continued the rule 11(7)(b) appointment, heard the reference and upheld detention.
• First-tier Tribunal (HESC) (Mental Health), AH: on 20 June 2024, rescinded the rule 11(7)(b) appointment, heard the reference without a representative and confirmed detention.