# Does "the Tribunal is satisfied that the patient has the capacity to make that decision" apply to CTO paper hearings? **URL:** \ **Category:** Mental Health Tribunal\ **Created:** [28 June 2025 08:53 UTC](https://forum.mentalhealthlaw.co.uk/t/does-the-tribunal-is-satisfied-that-the-patient-has-the-capacity-to-make-that-decision-apply-to-cto-paper-hearings/3798 "2025-06-28T08:53:07Z")\ **Posts on this page:** 5\ **Page:** 1
**Author:** ![Jonathan](https://forum.mentalhealthlaw.co.uk/user_avatar/forum.mentalhealthlaw.co.uk/jonathan/32/88_2.png) [@Jonathan](https://forum.mentalhealthlaw.co.uk/u/Jonathan)\ **Post date:** [28 June 2025 08:53 UTC](https://forum.mentalhealthlaw.co.uk/t/does-the-tribunal-is-satisfied-that-the-patient-has-the-capacity-to-make-that-decision-apply-to-cto-paper-hearings/3798/1 "2025-06-28T08:53:07Z")
Continuing the discussion from [Potential reduction in paper hearings for CTO patients](https://forum.mentalhealthlaw.co.uk/t/potential-reduction-in-paper-hearings-for-cto-patients/3628/10): > [@Potential reduction in paper hearings for CTO patients](https://forum.mentalhealthlaw.co.uk/t/potential-reduction-in-paper-hearings-for-cto-patients/3628/1): > > It used to be that capacity was only considered by the tribunal if an unrepresented patient asked for a paper hearing – but now the tribunal has to be satisfied that the patient has capacity to decide in relation not only to detention cases but also CTO cases, whether the patient is represented or not. 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. ---
**Author:** ![ZacSussex](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/z/e8c25b/32.png) [@ZacSussex](https://forum.mentalhealthlaw.co.uk/u/ZacSussex)\ **Post date:** [27 June 2025 17:02 UTC](https://forum.mentalhealthlaw.co.uk/t/does-the-tribunal-is-satisfied-that-the-patient-has-the-capacity-to-make-that-decision-apply-to-cto-paper-hearings/3798/2 "2025-06-27T17:02:27Z")
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. ---
**Author:** ![Jonathan](https://forum.mentalhealthlaw.co.uk/user_avatar/forum.mentalhealthlaw.co.uk/jonathan/32/88_2.png) [@Jonathan](https://forum.mentalhealthlaw.co.uk/u/Jonathan)\ **Post date:** [27 June 2025 17:16 UTC](https://forum.mentalhealthlaw.co.uk/t/does-the-tribunal-is-satisfied-that-the-patient-has-the-capacity-to-make-that-decision-apply-to-cto-paper-hearings/3798/3 "2025-06-27T17:16:30Z")
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! ---
**Author:** ![ZacSussex](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/z/e8c25b/32.png) [@ZacSussex](https://forum.mentalhealthlaw.co.uk/u/ZacSussex)\ **Post date:** [28 June 2025 23:39 UTC](https://forum.mentalhealthlaw.co.uk/t/does-the-tribunal-is-satisfied-that-the-patient-has-the-capacity-to-make-that-decision-apply-to-cto-paper-hearings/3798/4 "2025-06-28T23:39:07Z")
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. ---
**Author:** ![Karen](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/k/7feea3/32.png) [@Karen](https://forum.mentalhealthlaw.co.uk/u/Karen)\ **Post date:** [2 July 2025 21:26 UTC](https://forum.mentalhealthlaw.co.uk/t/does-the-tribunal-is-satisfied-that-the-patient-has-the-capacity-to-make-that-decision-apply-to-cto-paper-hearings/3798/5 "2025-07-02T21:26:00Z")
No safeguards at all for CTO patients to have a paper review-they don’t even need to have capacity -so a solicitor could ask for a paper review with CTO if appointed under rule 11 (7) (b) but could not ask for a paper review for an incapacitous patient if not appointed.