YA v Central and NW London NHS Trusts and Others (Mental health : All)

Factual and Procedural Background

This opinion concerns an appeal heard by the Upper Tribunal (Administrative Appeals Chamber) involving the Appellant and multiple Respondents, including Company A (Central and North West London NHS Trust). The case pertains to the representation and procedural rights of a protected party in mental health and childcare proceedings. The First-tier Tribunal made a decision which was challenged on grounds of legal error. The Upper Tribunal reviewed the matter, focusing on the role and appointment of representatives, specifically the Official Solicitor, in the context of a protected party with limited capacity to give instructions.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law in its handling of the representation of a protected party lacking full capacity in legal proceedings.
2. Whether the appointment of the Official Solicitor was a proportionate measure that did not impair the protected party's right of access to a court under Article 6(1) of the European Convention on Human Rights.
3. The scope and limits of a solicitor’s duties when representing a protected party who lacks capacity to give instructions or has partial capacity.
4. The compatibility of procedural arrangements and limitations with the right to a fair trial and effective participation in proceedings, especially for persons with disabilities.

Arguments of the Parties

Appellant's Arguments

• The Appellant raised concerns about the Official Solicitor’s focus, suggesting it was more aligned with the interests of the child rather than the protected party herself.
• Argued that the Official Solicitor should have advanced arguments fully reflecting the protected party’s views and instructions.

Respondents' Arguments

• Respondents emphasized the necessity of appointing a solicitor to represent the protected party’s best interests, especially where capacity to instruct was lacking.
• Asserted that the Official Solicitor’s role was to ensure the tribunal had all relevant material and to protect the interests of the protected party within the framework of the law.
• Highlighted that acting in the best interests did not require advancing unarguable cases or delaying proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the fundamental importance of the right of access to courts and the right to a fair trial under Article 6(1) of the European Convention on Human Rights. It recognized that while these rights are not absolute, any limitations must not impair their essence and must be proportionate to the legitimate aims pursued.

The Court examined the procedural rules governing representation of parties, particularly in mental health cases where a patient may lack capacity to give instructions. It emphasized that a solicitor appointed to represent such a party must act in the party’s best interests, which may include advancing arguments the party cannot articulate themselves. The solicitor’s role includes ensuring the tribunal is fully informed and that relevant statutory provisions are not overlooked.

In assessing the appointment of the Official Solicitor in the present case, the Court considered the complexity and importance of the proceedings, which involved significant expert evidence and the potential loss of custody and access to a child. It was held that appropriate accommodations, including appointing the Official Solicitor, were necessary and proportionate to safeguard the protected party’s rights.

The Court rejected the Appellant’s contention that the Official Solicitor’s focus on the child’s best interests violated the protected party’s rights, noting that the child’s best interests were the legal touchstone for the domestic courts. It was further held that the Official Solicitor was not required to advance every argument the protected party wished, particularly unarguable ones, as doing so could delay proceedings and harm all parties involved.

Finally, the Court found that the protected party’s views were adequately represented and made known to the tribunal, both through the Official Solicitor’s statement and the protected party’s counsel, thereby safeguarding the protected party’s Article 6(1) rights.

Holding and Implications

The Upper Tribunal held that although the First-tier Tribunal erred in law, in the exercise of its discretion under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, it would not set aside the First-tier Tribunal’s decision.

DISPOSED OF

The decision confirms that the appointment of a legal representative such as the Official Solicitor for a protected party lacking capacity is a proportionate measure that does not violate the right of access to a court under Article 6(1). It clarifies the solicitor’s role in balancing the protected party’s expressed wishes with their best interests and the broader interests of justice. No new precedent was established beyond affirming the application of existing principles on representation and fair trial rights in mental health and childcare proceedings.