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.