Continuing the discussion from Potential reduction in paper hearings for CTO patients:
I now think that “the Tribunal is satisfied that the patient has the capacity to make that decision” is probably part of rule 35(3)(b) rather than rule 35(3) as a whole, which means that it never applies to CTO patients. Maybe that’s another drafting oversight.
I’m with you Jonathan. I’m reading that the “capacity” requirement is only present for detained inpatients. The Tribunal could now consent to a paper hearing from a patient who has signed a document stating they want one, despite not having capacity to make that decision. And that’s not an unlikely situation - I’ve had the occasional pushy care coordinator convince patients to sign paper hearing requests when they don’t know what they’re signing.
I think you’re right that the whole thing is a mess and needs redrafting entirely. That or it’s a discretionary power given to judges, who will have yet more case management requests to sort through.
The drafting on capacity is all over the shop, and every time I look at it I think something different. It’s structured like this:
The tribunal may make a decision without a hearing if the patient is 18 or over and
(a) some community patient procedural safeguards are met, or
(b) some detained patient procedural safeguards are met, and
the tribunal is satisfied that the patient has capacity.
My initial approach was effectively to read the final “and” as if it were at the beginning of the new line, so that it would apply equally to (a) or (b).
My second thoughts today were effectively to read it as if there were no line return after “and”, with the final line just being the continuation of limb (b).
At the minute I’m 50/50 on it, maybe even leaning towards the original approach!
I keep flipping between the two, but now I think the line-break after (b)(ii) makes it more likely that the capacity requirement applies to both.