KH -v- Nottinghamshire Healthcare NHS Foundation Trust; AH -v- Avon & Wiltshire Mental Health Partnership NHS Trust (HM): [2025] UKUT 128 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Church on 10 April 2025.
Read the full decision in .
Judicial Summary
These appeals are about what a mental health tribunal must do when faced with a patient for whom a representative has been appointed under rule 11(7)(b) but where: a. there is conflicting evidence as to whether the patient has, since that appointment, regained capacity to appoint a representative, or b. the patient objects to the representative acting in his or her best interests, and refuses to engage with the representative. 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 against the imperative of maximising the patient’s meaningful participation in the proceedings and avoiding unnecessary delay. The Upper Tribunal gives guidance to participants in proceedings before mental health tribunals on: a. the proper approach to assessing mental capacity b. the tests of capacity applicable to proceedings before the mental health tribunal c. when mental capacity needs to be assessed d. the implications of fluctuations in capacity for a rule 11(7)(b) appointment e. the 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. It also gives guidance on what is required of a tribunal’s reasons for them to be adequate.