With hospital based references, I understand that as from December 2024, a paper hearing can be requested under Rule 35. I read the rule as not being relevant where the patient lacks capacity. I have been appointed under rule 11 (7) (B) for a client and amongst the paperwork the Tribunal Service has sent a Rule 35 form. Can this rule be used with 11 (7) (B) appointments?
Yes, it can be used with Rule 11(7)(b) appointments, provided the patient has the capacity to agree to a paper review. Capacity is decision-specific, so it’s entirely possible that a patient may lack the capacity to instruct a solicitor but still have the capacity to consent to a Rule 35 paper review.
If you’re asking whether we can request one in the patient’s best interests, I don’t believe that’s possible. The rule explicitly states:
“The patient’s representative has discussed with the patient the contents of any reports and any other documents […] and is satisfied that the patient has the capacity to decide whether or not to make that decision.”
I get the point being made, but I don’t think sending the R.35 form sends the wrong message as the capacity thresholds are likely to differ.
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Hello again! I just wanted to come back to this as it’s occurred to me that despite the capacity requirement at Rule 35(5), the Tribunal could technically waive this pursuant to Rule 7(2) TPR 2008 as long as it is “just” to do so. That might cover exceptional circumstances (for example, if the very idea of a hearing taking place is distressing to the client) although not for every-day cases.