Held, appeal allowed. (1) Where was no evidence that the patient’s capacity was fluctuating, the relevant “matter” in relation to which the patient’s capacity had to be assessed was his ability to conduct proceedings and the First-tier Tribunal ought to have assessed the patient’s capacity on that basis. For that purpose, the capacity to appoint a representative and the capacity to conduct proceedings were inextricably interrelated. To the extent that the tribunal had identified the relevant “matter” as being the application for a public hearing, it had erred in law. A patient did not need to have capacity to litigate in order to apply for a public hearing. To the extent that the tribunal had regarded the patient’s capacity in relation to the public hearing as part of his capacity to conduct the proceedings generally, with a lack of capacity in relation to the application for a public hearing making it inevitable that he lacked capacity to conduct all aspects of those proceedings, then rule 11(7)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 was engaged and the tribunal ought to have appointed a representative for the patient. There was no reason in principle why patients who lacked capacity should not be entitled to have their best interests put to the tribunal and taken into account in support of an application for a public hearing, just as patients who had capacity were entitled to have their views considered. The limited exceptions to the right to a public hearing under article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms did not necessarily exclude the possibility of a hearing being in public just because a party lacked capacity to apply for one. Moreover, the right to apply for a public hearing might also be a factor in the overriding objective set out in rule 2 of the 2008 Rules, in relation to those who lacked capacity, in so far as it included “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” (paras 5, 13–16, 19).

(2) As the case law made clear, in relation to the test of capacity competence was to be assessed with the benefit of any advice or explanation that the patient was likely to receive. The issue was the patient’s capacity, not the wisdom of the decision that was made. A patient with capacity had the capacity to make a bad decision or a decision for bad reasons, hence the importance of the requirement that capacity was specific to the matter in relation to which a decision had to be made. The quality of the decision was only relevant in two ways: first, as possible evidence that the patient’s decision-making was affected by “an impairment of, or a disturbance in the functioning of, the mind or brain” for the purposes of section 2(1) of the Mental Capacity Act 2005, and second, as a factor that might to be taken into account, once the issue of competence had been decided, when applying rule 38 of the 2008 Rules as part of its assessment of whether a public hearing was in the interests of justice. Thus, while a patient did not have to have capacity in order to be allowed a public hearing, the wisdom of the patient’s wishes was relevant to the application of the rule (paras 19, 21–23).

(3) The test under rule 38 of the 2008 Rules was whether a public hearing was in the interests of justice, although the case law established that factors relevant to that matter would include (i) whether a public hearing was consistent with the subjective and informed wishes of the applicant (assuming he was competent to make an informed choice), (ii) whether it would have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views, (iii) whether there were any other special factors for or against a public hearing, and (iv) whether practical arrangements could be made for an open hearing without disproportionate burden on the authority. Having answered those questions, the tribunal had to exercise its judgment as to the overall significance of its analysis to the interests of justice (para 23).