I think the Upper Tribunal is wrong on a couple of points. The first is that an appointment creates a retainer. This is really important.
This is perhaps somewhat understandable because they were under the impression that solicitors can get paid for attending a hearing without the client signing a legal aid form. We can’t and, unless the Tribunal are agreeing to meet our fees, we can not be there. My understanding, as pointed out by Karen Wolton, is that we can only claim a level 1 fee if the client will not engage at least to the extent of signing the paperwork, and that is a relatively new development.
A retainer is a legal contract between a solicitor and client and no one, whatever their rules might say, can create a contract on behalf of someone with capacity and without specific authority and it is particularly surprising that anyone would think they could when the client says they do not want representation. I do not consider a tick-box which may or may not have been filled in or understood by the client on an application form to be anything like proper legal authority. In any event, I can not see how acting for a client who does not want you to act for them and has the capacity to say so is not a conflict of interests.
The Tribunal would, in effect, be assuming the authority of the Court of Protection for clients with capacity. I can’t imagine circumstances in which it would happen, but they are purporting to make the client responsible for the solicitor’s fees if there is not a third-party indemnity from the LAA. There is no suggestion the client was incapable of signing a form, just unwilling.
This leads to the second and, even more surprising point that there was a dispute over what had been said in the Tribunal about the client’s wishes and, rather than turning to the recording, which is already in the hands of the Tribunal, a decision was made on the basis of who is more likely to have the best note. What is the point of recording hearings if they are never going to be used, even where the precise content is of vital importance?
There is an interesting subsidiary point if the Tribunal does think that it is creating a retainer, in that would come with quite a heavy burden on them to comply with GDPR. I don’t think they should even be sending out reports or requiring hospitals to do so until there is confirmation from a solicitor that they are acting. It is quite an egregious breach of confidentiality. They are probably also making themselves party to the contract or at least liable in law to be joined as a defendant if something goes wrong.
As to the decision itself, on the basis of the evidence they accepted, that the client had capacity, had communicated that they did not want to be represented and wanted the matter to proceed in their absence, I do not see how there is a problem with Rule 39 and the First Tier Tribunal were well within their rights to proceed, and the solicitor to leave. We’ve just got paper hearings for detained patients so they would never ever take place if the Upper Tribunal were right and there has to be some sort of ‘adequacy’ test. That comes, I suppose, from a representative having to confirm they have given advice and received instructions that the client does not want to proceed, but I don’t think the same safeguard applies with community patients. Might have to check that.
I think the whole issue of capacity in respect of giving instructions needs looking at and the approach that has been adopted is far too simplistic and often not well understood even by Responsible Clinicians but that is probably a discussion that could be held elsewhere.