Category

MHT capacity cases

Case and summary Date added Categories
VS v St Andrew's Healthcare [2018] UKUT 250 (AAC) — (1) The capacity that a patient must have in order to make a valid MHT application is that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released. This is a lower threshold than the capacity to conduct proceedings. (2) (Obiter) a solicitor appointed under rule 11(7)(b) can request to withdraw an application in the best interests of the patient, but on the facts the tribunal had been entitled to give effect to the patient's own desire to come before a tribunal. (3) When a tribunal lacks jurisdiction it should strike out the proceedings but (obiter) if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law. 2018‑08‑25 22:22:47 2018 cases, 39 Essex Chambers summary, Brief summary, MHT capacity cases, Transcript, Upper Tribunal decisions


PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity." The Tribunal panel must keep the patient’s capacity in relation to Tribunal rule 11 under review during the hearing, and an appointment may be made for a patient with fluctuating capacity who had previously appointed his own representative. 2017‑02‑23 21:49:05 2017 cases, MHT capacity cases, No summary, Transcript, Upper Tribunal decisions


R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have jurisdiction", but only after "giving the applicant an opportunity to make representations in relation to the proposed striking out". (3) The solicitor accepted that the patient had lacked capacity to make the application, but argued: (a) that R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 (in which the House of Lords had decided that the MHA scheme was Convention compliant) was distinguishable, as MH related to section 2 where different timescales applied; and, therefore, (b) that s66 (Applications to tribunals), in order to be Convention compliant, should be read as applying to a patient "with the assistance of a litigation friend if needed". (4) The First-tier Tribunal judge's subsequent decision "that the matter may be closed as an invalid application", which was effectively a rule 8 strike-out decision, was the decision considered by the Upper Tribunal. (5) The challenge was made by way of judicial review, but there was a right of appeal so that route would have been more appropriate. (6) UTJ Jacobs, dismissing the JR application, decided that MH could not be distinguished (the timescales in the MH case were not significant, still less decisive) and there was no Convention breach: any apparent gap in the Tribunal rules (in the protection of a patient's right to bring his case to the Tribunal) disappeared when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. In conclusion, he stated that "[a]n application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review". (6) The Upper Tribunal decision makes no reference to the later ECHR decision in the MH case (MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94), which found that, during part of MH's detention, neither the Secretary of State referral process nor habeas corpus were adequate remedies ..→ 2017‑01‑27 23:58:57 2017 cases, Brief summary, MHT capacity cases, Powers, Transcript, Upper Tribunal decisions


YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed (and generally) if the representative forms the view that the patient does have capacity, he should inform the Tribunal and take instructions as normal, and act on those instructions. 2015‑02‑12 23:49:18 2015 cases, Detailed summary, MHT capacity cases, Transcript, Upper Tribunal decisions


AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC), [2015] MHLO 17A 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. 2015‑02‑12 23:42:15 2015 cases, MHT capacity cases, No summary, Transcript, Upper Tribunal decisions