View source for SM v Livewell Southwest CIC (2020) UKUT 191 (AAC)

{{Case
|Date=2020/06/12
|NCN=[2020] UKUT 191 (AAC)
|ICLR=[2020] 1 WLR 5171
|Essex issue=107
|Essex page=9
|Other citations=[2020] 1 WLR 5171, [2020] AACR 20
|Court=Upper Tribunal (Administrative Appeals Chamber)
|Judges=Nicol, Christopher Ward, Sarah Johnston
|Parties=SM, Livewell Southwest CIC
|Cites=VS v St Andrew's Healthcare (2018) UKUT 250 (AAC)
|Sentence=Capacity to make tribunal application
|Summary=(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including: (a) if a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any procedural obligations, proceed to hear the case; (b) anyone can request that the Secretary of State make a reference, including when a patient lacks capacity and wishes to leave hospital: this includes not only the hospital managers and IMHA, but also the tribunal itself, which could adjourn for this purpose instead of immediately striking out the case.
|Detail===Subsequent tribunal guidance==
{{rsum|Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21)}}

==Official Judicial Summary==
<div class="perm">
In the majority view, the decision in VS v St Andrew’s Healthcare [2018] UKUT 250; [2019] AACR 4 remains good law as to the capacity a patient requires in order to make an application to the First-tier Tribunal. In the view of the minority, VS sets the bar too high in requiring an understanding that the FtT has power to discharge the patient. The panel offered guidance on a number of issues which may arise where a patient’s capacity is in doubt, including (a) encouraging readier use of the ability to raise the matter with the Secretary of State with a view to him/her referring the patient’s case to the FtT under MHA s.67 and (b) identifying areas in patient records and other documentation where changes might facilitate the FtT’s task.
</div>

==Note==
Published on BAILII on 11/7/20.
|External links=*[https://www.gov.uk/administrative-appeals-tribunal-decisions/sm-v-livewell-southwest-cic-2020-ukut-191-aac Judgment on Gov.uk website]
*[https://www.iclr.co.uk/ic/2020005556 ICLR]
|Subject=MHT capacity cases,Upper Tribunal decisions
|News=Yes
|RSS pubdate=2020/07/10 11:10:36 PM
}}