Mental health tribunals and 11(7) representatives

What appears to be a narrow issue affecting a small number of patients at a tribunal, the case of KH -v- Nottinghamshire Healthcare NHS Foundation Trust; AH -v- Avon & Wiltshire Mental Health Partnership NHS Trust (HM): [2025] UKUT 128 (AAC) – GOV.UK raises issues of general importance. Especially as the Law Society was an interested party.

4. These appeals are of importance not only to the appellants themselves: they raise issues of general application and importance about how a patient’s rights to effective representation and to a fair trial must be balanced with the imperative of maximising the patient’s meaningful participation in proceedings and avoiding unnecessary delay.

The case clearly demonstrates that for those whose work involves an understanding the Mental Health Act, a good understanding of the Mental Capacity Act is also required.

Upper Tribunal Judge Church clarifies the steps that a tribunal should take where a representative has been appointed under rule 11(7)(b) but there is conflicting evidence about whether they have, since that appointment, regained capacity to appoint a representative.

In addition, what should be the consequences of the patient objecting to the representative acting in their best interests and refuses to engage.

In doing so, he thorough reviewed all the relevant law. This is essential reading.

The Upper Tribunal gives guidance on:

• the proper approach to assessing mental capacity
• tests of capacity applicable to proceedings before the tribunal
• when capacity needs to be assessed
• implications of fluctuations in capacity for a rule 11(7)(b) appointment
• duties of the rule 11(7)(b) representative who considers the continuation of their appointment not to be in the patient’s best interests or otherwise inappropriate.
• what required of a tribunal’s reasons for them to be adequate.

Professional duty of representatives

56. Even if the tribunal representative possesses evidence suggesting that the patient lacks capacity to conduct the proceedings, the tribunal representative has a duty to satisfy him or herself as to the client patient’s capacity to make relevant decisions. Because capacity is decision specific, and because a patient’s capacity may fluctuate, the duty to assess the client’s capacity is necessarily an ongoing one.

As there is a similar duty imposed on ALR’s in Court of Protection proceedings to act in best interest, those words must similarly apply.

60. The tribunal must address its determination of the capacity issue in an orderly manner….. This duty applies not only to the patient’s representative, but to anyone involved in assessing capacity, including the tribunal and the patient’s responsible clinician

Continuing to act on a best interest basis for client with capacity

61. If a representative has been appointed under rule 11(7)(b) on the basis that the patient lacks capacity to appoint a representative, the patient’s capacity may yet fluctuate. If it does, the appointment continues unless and until the representative. This may mean that they continue to act even where, at times, the patient could be considered to have a sufficient level of capacity to conduct the proceedings.

This important principle clearly also affects the role of the ALR.

62. This may mean that they continue to act even where, at times, the patient could be considered to have a sufficient level of capacity to conduct the proceedings.

Who conducts the capacity assessment

The Judge reminds us of the fundamental principle about the assessment of capacity. Clearly in any matter before a court, the responsibility lies with the Judge.

However, up to the time the court must address this, the representative (whether 11(7)(b) or ALR) is responsible for forming a preliminary view in order to decide whether to make an application to the tribunal /court.

UTJ Church also reminds us:

69. As Charles J observed in YA at §114: “it is important to remember that the decision on capacity is one for the tribunal and not the medical member”.

For those seeking to apply the MCA, a strong reminder from the Court that psychiatrists have no magic qualities when it comes to assessing capacity. The notion I frequently hear is that when, in everyday practice, an arbiter of capacity is required, send for the psychiatrist.

73. Indeed, the tribunal’s decision as to capacity should take into account all relevant evidence. It should not be assumed that a psychiatrist is necessarily any better placed to assess the patient’s capacity than an Approved Mental Health Professional (AMHP) or a care co-ordinator (who is often an experienced psychiatric nurse or social worker), whose views may help the tribunal make a holistic assessment. Those with a social care background may well be more experienced in applying the Mental Capacity Act test than many psychiatrists. For the same reason, it may well be that the tribunal specialist member is as well equipped to assess the patient’s capacity as the tribunal medical member

This raises two important issues:

How often does the front-line decision maker forget that the buck stops with them when it comes to capacity and the best interest decisions. Whilst they make want to seek advice from someone else, this does not absolve them of the duty to make the decisions.

Choose the most appropriate person to advise and record your reasons for doing so.

Plenty to reflect upon.

Peter Edwards is Director of Peter Edwards Law.