— (1) In KH's case the representative asked for the rule 11(7)(b) appointment to be discharged on the basis that the patient had capacity and objected. The tribunal's reasons for refusing were inadequate: it was not clear that the RC or the tribunal had applied the appropriate capacity test; 2. using the words "As such..." following a recitation of the conflicting evidence on capacity was insufficient in the absence of any analysis or evaluation; no reasons were given on best interests; no thought was given to the potential for causing distress by imposing an unwanted representative; there was no indication that the matter was kept under review. The decision had the unintended effect of reducing the effective participation of the patient, as he could not cross-examine and it appeared that neither did the representative. (2) In AH's case the tribunal did discharge the appointment, on the basis of objection and distress, but its reasons were inadequate because it failed to consider whether the patient might regain capacity with support and whether an adjournment might achieve greater participation. An adjournment cannot be used to see whether improvement will increase chances of discharge, but can be to facilitate ability to participate meaningfully. (3) In each case it could not be said with confidence that the outcome would otherwise have been the same, so the error was material and the appeal allowed.
Full details available at: https://www.mentalhealthlaw.co.uk/KH_v_Nottinghamshire_Healthcare_NHS_Foundation_Trust_(2025)_UKUT_128_(AAC)?id=150525-1203