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AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC), [2015] MHLO 17

A personal welfare deputy cannot appoint himself (or anyone else) as a representative unless the order appointing him expressly provides for this. This case related to the withdrawal of a tribunal application, and was followed up by Tribunal Policy: Withdrawals (23 Feb 2015) [2015] MHLO 19.

AACR summary

The following is the summary from [2015] AACR 31Not on Bailii!, available from the OSSCSC link below.

Mr Justice Charles CP

HM/1885/2014

4 February 2015

Mental health – assessment of capacity – whether a welfare deputy had power to withdraw an appeal

The appellant suffered serious brain damage following an accident, which affected his behaviour, memory and executive functioning. If unable to remember past events he would confabulate, making his recollection of them unreliable. The appellant had been admitted to hospital on numerous occasions on mental health grounds. His mother was his full time carer and, by order of the Court of Protection, his deputy for personal welfare decisions. On 27 January 2014 he was taken to hospital for treatment following a fight with his brother. He returned to hospital the next day and was admitted at first voluntarily but then detained under the Mental Health Act – initially under section 5(2) but later section 2. After the appellant told nurses that he wanted to leave hospital, an application was submitted on his behalf to the First-tier Tribunal (F-tT) in accordance with standard practice. Before the hearing his mother asked for the appeal to be withdrawn but it was unclear what the appellant wanted as he had expressed different views to his solicitor, mother and social worker. Among the issues before the F tT was whether the appellant had capacity to instruct a solicitor, whether he wanted to withdraw and whether his mother had power to withdraw her son’s appeal. The F-tT consented to the withdrawal of the application, holding that the appellant did not have capacity and that his mother had the right to withdraw the application on his behalf under the welfare deputyship order. The appellant was subsequently discharged from hospital. Permission to appeal was granted and among the issues before the Upper Tribunal (UT) was how a tribunal should proceed when faced with a dispute over capacity and the powers of a welfare deputy in relation to tribunal proceedings.

Held, allowing the appeal but not setting aside the F-tT’s decision, that:

1. the submission that the threshold for capacity in the F-tT was extremely low was rejected: YA v Central and NW London NHS Trust and Others [2015] UKUT 37 (AAC)!. Any assessment of capacity started with the presumption of capacity and then had to address whether the relevant person had the relevant capacity, which involved a case- and fact-specific exercise. The capacity simply to instruct a solicitor to challenge a continuation of a detention on all available grounds was very low or limited. Different and more complex factors were involved when a best interests approach arose, including those cases concerning compliance with a voluntary admission, applications to withdraw and where the patient and their representative disagreed about the patient’s best interests. In such cases a sufficient appreciation by the patient of their impairment, or disturbance in functioning, was likely to be required if they were to have capacity to make the relevant decisions (paragraphs 38 to 42);

2. unless the order appointing a welfare deputy expressly so provided, the deputy was not appointed to act as the patient’s representative in proceedings under the Mental Health Act. General powers to make personal welfare decisions (even if not cut down by specific provisions as to the authority of the deputy contained in the order) cannot be relied on by a personal welfare deputy to appoint themselves or anyone else as such a representative (paragraph 50);

3. the F-tT erred in law, in the absence of any express provision within the order of the Court of Protection, by proceeding on the basis that the appellant’s mother had a right to withdraw the proceedings (paragraphs 51 to 55).

The judge did not set aside the decision of the F-tT as the effective result would have been the same in the absence of the error.

External links

BAILII!

Transcript on OSSCSC website

Transcript (PDF)

Odonnells Solicitors, 'Capacity, the role of a welfare deputy and an effective remedy for patients detained under the MHA' (February 2015)