Case preparation

Legal Aid Agency - Peer review

See Peer review in the Legal Aid category.

Law Society's MHT practice note

See Law Society, 'Practice note: Representation before mental health tribunals' (12/12/19).

First meeting

See also: Peer Review guidance chapter 2 (Were the advisers selected to be involved in the matter appropriate?), 3 (Was the initial contact with the client timely?) and 7 (Has the client been advised about the powers and the procedure of the Tribunal?)

Obtain as clear and detailed instructions as possible at the first meeting.

It is often a good idea to use a questionnaire-type form for this purpose, so that you do not forget important details. The ‘transaction criteria’, while no longer used for audits, contain useful ideas for what a questionnaire could contain. There is a detailed example in Eldergill’s book (available at Eldergill).

You need to find out what the client wants to achieve, and what his approach will be. For instance, if he is a s2 or s3 patient it is likely that he will want to be discharged from section; if he is a restricted patient in a high-secure hospital he may want an informal recommendation that he be transferred to conditions of medium security. Other matters on which to take instructions are whether he would be willing to remain in hospital informally, whether he has accommodation available which he would return to, whether he would agree to continue medication, and whether he would agree to home visits or out-patient appointments.

Throughout the interview you should provide relevant legal advice, for instance about the prospects of achieving what the client wants.

The client will need advice about the terms of the particular section, his routes to discharge and Tribunal eligibility periods for applications (and also about references) and when would be best to apply to the Tribunal.

Where you are instructed at the last minute, for example in section 2 cases, the reports may already have been written when you first meet the client. Obtain these from the Mental Health Administrator or from the authors so that they can be discussed and any problems explored.

Ask the client to sign a form of authority so that you can obtain permission to view his medical records. See Evidence (MHT) for details of Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20).

Ensure that the Legal Aid form CW1&2MH is signed. During the coronavirus pandemic the guidance (Legal Aid Agency, 'Coronavirus (COVID-19): working with clients' (14/4/20) - last updated 6/8/21) states:

In situations where it is not possible to directly obtain a client signature, you should make a note on the file explaining why, countersigned by a supervisor.

You should also make a note on the relevant form itself, explaining the specific reason why a signature cannot be obtained. Simply referring to COVID-19 will be insufficient.

In these circumstances, you will also be required to provide express evidence. For example, email exchanges or telephone attendance notes. The evidence needs to demonstrate one of the following:

  • the client formed the appropriate intention to sign and submit the application form, or
  • you have been directly appointed by a court or tribunal to act for the client

In order to avoid delays or issues with processing, you should seek a signature at the earliest possible opportunity.

You may still submit a claim if you are unable to secure a client signature, including a digital signature, where:

  • it is clear reasonable attempts have been made to secure the client’s signature and you have provided evidence of the client’s intention to sign the form, or
  • you have been appointed to act for a client by a court or tribunal

In s2, s3 and other relevant cases, obtain contact details for the nearest relative, so that you can explore this avenue towards discharge. You can often get useful background information from family and friends, which can, for instance, corroborate the client’s side of a story.

If you feel that you will get any useful information, then consider speaking to the nursing staff on the ward. Only do this after having spoken to the client, and with his permission.

Considering capacity

Capacity to make an application

If the Tribunal finds that the patient lacked capacity to make the application then it will strike it out under rule 8 (as happened in R (OK) v FTT [2017] UKUT 22 (AAC)M, [2017] MHLO 3).

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 (VS v St Andrew's Healthcare [2018] UKUT 250 (AAC)M).

This test was confirmed in SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)M (though a dissenting judgment stated that the test should be: “Does the patient want to be free to leave?”). The SM case also gave guidance, including:

  • 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.
  • 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.

Subsequently, the tribunal issued the following guidance (Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21)):

If the Tribunal finds the patient did not have the capacity to apply to the Tribunal but the Tribunal decides it is the interests of justice to continue with a hearing after hearing submissions from the parties, the Department of Health has agreed to make an urgent reference on behalf of the Secretary of State for Health under Section 67 of the Mental Health Act 1983 so that the case can continue as listed that day.

Capacity to appoint a representative and to give instructions

See also: Law Society practice note heading 4 (Taking instructions).

You should assess whether your client has the capacity to instruct you in connection with the application. The starting point is that the patient (like anyone else) has capacity in relation to the relevant matters. It is the solicitor who decides on capacity and best interests, although advice may be sought from others.

If you conclude that a patient lacks the relevant capacity you should ask the Tribunal to appoint you under rule 11(7). Having been appointed (whether at your request or otherwise) if you form the view that the patient does have capacity, you should inform the Tribunal and take instructions as normal, and act on those instructions.

The Law Society Practice Note and YA v Central and NW London NHSFT [2015] UKUT 37 (AAC)M deal in great detail with capacity and Tribunal proceedings. The following is some guidance extracted from the YA case:

Assessing whether the patient has the relevant capacity

The principles and approach set out in the MCA and its Code of Practice should be applied to the determination of capacity for the purposes of rule 11(7).

Rule 11(7)(b) involves an assessment of a person’s capacity to appoint a representative. This involves being able to understand and weigh the advantages, disadvantages and consequences of each option. This is more than the very limited capacity required to make an application to the tribunal or have someone help to make it (see R (MH) v Secretary of State for the Department of Health [2005] UKHL 60M). Factors that the patient will have to be able to sufficiently understand, retain, use and weigh will be likely to include the following:

  1. the detention, and so the reasons for it, can be challenged in proceedings before the tribunal who, on that challenge, will consider whether the detention in justified by the provisions of the MHA,
  2. in doing that, the tribunal will investigate and invite and consider questions and argument on the issues, the medical and other evidence and the legal issues,
  3. the tribunal can discharge the section and so bring the detention to an end,
  4. representation would be free,
  5. discussion can take place with the patient and the representative before and so without the pressure of a hearing,
  6. having regard to that discussion a representative would be able to question witnesses and argue the case on the facts and the law, and thereby assist in ensuring that the tribunal took all relevant factual and legal issues into account,
  7. he or she may not be able to do this so well because of their personal involvement and the nature and complication of some of the issues (e.g. when they are finely balanced or depend on the likelihood of the patient’s compliance with assessment or treatment or relate to what is the least restrictive available way of best achieving the proposed assessment or treatment),
  8. having regard to the issues of fact and law his or her ability to conduct the proceedings without help, and so
  9. the impact of these factors on the choice to be made.”

Charles J decided that an inability to appreciate a lack of capacity to conduct proceedings without help (as opposed to making an unwise decision to represent oneself) is effectively determinative of the question of capacity of that person to appoint a representative.

Patients with capacity

A patient with capacity has the right to terminate the appointment of a representative, even if formally the tribunal has to end it. Usually this would be following appointment under rule 11(7)(a) but, exceptionally, it may follow appointment under rule 11(7)(b) where there is a change or an initial error.

Patients lacking capacity

After appointment under rule 11(7)(b) the relevant issue becomes capacity to give instructions on the conduct of the proceedings to the solicitor (rather than capacity to conduct proceedings unrepresented), so the focus is on whether the patient is capable of sufficiently understanding, retaining, using and weighing with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which the patient’s instructions on the case are or are likely to be necessary in the course of the proceedings (see Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889M and Dunhill v Burgin [2014] UKSC 18B [16]-[18]).

The appointment authorises the legal representative to act for and attempt to obtain instructions from the patient and to ascertain his views, wishes feelings, beliefs and values. The best interests test in rule 11(7)(b) and the general requirement to act in the best interests of a person who lacks relevant capacity mean that the legal representative is not only appointed in the patient’s best interests but must also seek to promote them.

The purpose and effect of Rule 11(7)(b) is to provide in mental health cases an equivalent procedure to the appointment of a litigation friend by civil courts to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered in them.

A legal representative appointed by the tribunal should not concede points if the patient objects to that or does not have the capacity to consent to a concession. Rather, he should inform the tribunal that he is only advancing arguable points.

The main problems are likely to arise when (a) the legal representative and patient disagree on best interests, (b) the patient wants to advance an unarguable point, or (c) the patient does not want to be represented. In relation to these, withdrawal of representation or the advancement of unreasoned or hopeless argument may well not promote the patient’s best interests or an effective and practical review of the deprivation of liberty, and representation provided against the patient’s wishes not to be represented is not contrary to Article 5(4) or 6 if it is necessary to depart from the patient’s wishes.

There will be some cases in which the distress and harm caused to a patient will mean that it is in the patient’s best interests for there to be no appointment or the termination of the appointment of a representative. Even in these cases, the need to test the grounds for detention as effectively as is practicable and the ability often to do this by reference to the statute and evidence from report writers strongly supports the view that the appointment should continue.

In these circumstances the legal representative should (a) so far as is practicable, do what a competent legal representative would do for a patient who has capacity to instruct him to represent him in the proceedings, (b) seek to ascertain the views, wishes, feelings, beliefs and values of the patient, and (c) identify any areas of disagreement with the patient.

If there are disagreements then:

  1. If the patient has capacity in relation to those then the representative must follow instructions or seek discharge of his appointment.
  2. If the patient lacks the relevant capacity and the representative does not seek discharge of his appointment, the representative should inform the patient and tribunal that he will:

a. “provide the tribunal with an account of the patient’s views, wishes, feelings, beliefs and values (including the fact of any wish that the legal representative should act in a different way to the way in which he proposes to act, or should be discharged),

b. invite the tribunal to hear evidence from the patient and/or to allow the patient to address the tribunal (issues on competence to give evidence are in my view unlikely to arise but if they did they should be addressed before the tribunal),

c. draw the tribunal’s attention to such matters and advance such arguments as he properly can in support of the patient’s expressed views, wishes, feelings, beliefs and values, and

d. not advance any other arguments.”

  1. The tribunal should not delve into the areas of disagreement or why the legal representative is of the view that he cannot properly draw matters to the attention to the tribunal or advance argument.

If there are no disagreements then the representative should advance all arguable points to test the bases for the detention in hospital. It may or may not be appropriate to invite the tribunal to hear directly from the patient.

When the tribunal is considering making an appointment, having found that the patient lacks capacity to appoint a legal representative, the most important guiding principles on the application of the best interests test are:

  1. The underlying purpose and importance of the review and so the need to fairly and thoroughly assess the reasons for the detention.
  2. The vulnerability of the person who is its subject and what is at stake for that person.
  3. The need for flexibility and appropriate speed.
  4. Whether, without representation, the patient will practically and effectively be able to conduct his case and, if not, whether the tribunal is likely to be sufficiently informed to be able to carry out an effective review (as to this the tribunal should when deciding the case review this prediction).

Litigation friends

The First-tier Tribunal’s rules probably do allow the appointment of a litigation friend, despite not explicitly mentioning the possibility (see AM (Afghanistan) v SSHD [2017] EWCA Civ 1123M, an immigration tribunal case, and Jhuti v Royal Mail Group Ltd (Practice and Procedure) [2017] UKEAT 0062/17, an employment tribunal case). However, it is unheard of in practice, probably because of the rule 11 appointment procedure.

Checking section papers

See also: Peer Review guidance chapter 11 (Have the necessary nursing, medical and, if appropriate, Social Services or Community Health Team, records been obtained and considered?)

In civil cases it is important to check the section papers as soon as possible (and to make a file note in relation to this). The Mental Health Act Administrator should allow you to view (or maybe copy) the section papers immediately after your first visit with the client. You should also obtain the hospital order or transfer warrant in criminal cases. If you notice that detention is unlawful then you will need to take appropriate action to obtain the client’s discharge and, possibly, compensation for unlawful detention.

The following are examples of what you should be looking for in civil cases, although different considerations apply to different sections:

  • Correct forms used
  • All forms signed
  • Check hospital name on all forms
  • If neither doctor has previous acquaintance, check AMHP explanation
  • At least one doctor must be s12 approved (s2/3)
  • No more than 5 clear days between medical examinations
  • AMHP application within 14 days of seeing patient
  • Admission within 14 days of AMHP application
  • Check NR identity, whether consulted (s3) etc
  • Renewal procedure within 2 months of previous eligibility period ending

Some errors can be rectified with 14 days (s15) but others indicate unlawful detention. Often the Trust will be the defendant in a claim for unlawful detention, as it is the body detaining the patient. However, it may have the defence that the application for detention ‘appears to be duly made’ (s6(3)). This could be the case, for instance, if inadequate consultation with a nearest relative was not apparent from the paperwork. In such circumstances the local authority, although not actually detaining, can be held liable in damages for false imprisonment if its unlawful application directly causes detention (TTM v LB Hackney [2011] EWCA Civ 4M).

In Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79M the Court of Appeal held that ‘once it is clear that the appellant sustained no loss, because he would in fact have been lawfully detained anyway whether or not the breach had occurred, it is hard to see how an award of anything more than nominal damages could be justified’.

There is still scope for obtaining damages. For instance, in PB v Priory Group Ltd [2018] MHLO 74 a Part 36 offer of £11,500 plus legal costs was accepted in a claim brought for unlawful detention and breach of Article 5. The patient had been detained under s5(2) when not an in-patient, and this section had lapsed for nearly seven hours before detention under s2 began.

Initial letters and contact with others

See also: Peer Review guidance chapters 6 (Are letters and information sheets used appropriately?) and 10 (Has communication been established with third parties who may be able to assist the client?)

You will need to:

  • Write to your client, to summarise the instructions received and advice given, and the steps which you agreed to take on his behalf. If the client does not want letters then write an attendance note explaining this. Different clients will require different correspondence so do not rely too heavily on standard letters.
  • Send an application to the Tribunal secretariat if the patient has instructed you to do so.
  • Write to the hospital Mental Health Act Administrator to inform him of (as appropriate):
    • The Tribunal application;
    • That the client wants to appeal to the hospital managers;
    • That you wish to obtain access to records and a copy of the section papers.
  • Write to the Responsible Clinician about (as appropriate):
    • Asking to be invited to any forthcoming CPA meeting;
    • Informing him of the Tribunal/hospital managers application;
    • Asking for a brief outline of current opinions and plans.
  • Write to the nearest relative (if one exists, and the client consents):
    • Setting out his functions as nearest relative;
    • Seeking views on exercising the right to request discharge.
  • Contact anyone else who may have information necessary to prepare the case, e.g. criminal solicitors or community mental health team.

Medical records

See also: Peer Review guidance chapter 11 (Have the necessary nursing, medical and, if appropriate, Social Services or Community Health Team, records been obtained and considered?)

Chase (if necessary) permission to view medical records. Take careful notes of the salient points, perhaps by building up a chronology of events. Reading medical records is key to understanding the case and obtaining a fuller picture than will be in the reports.

Responsible authority’s reports

See also: Peer Review guidance chapter 12 (Have the client’s Tribunal reports and statements been considered promptly on receipt?)

Obtain the reports:

  • There must at least be (a) an RC’s report, (b) a nursing report and (c) a social circumstances report.
  • Check they conform with the Reports Practice Direction.
  • They often do not arrive within the timeframe envisaged in the rules, so make a note of when they are due so that you can seek directions immediately.
  • You may have to deal with non-disclosure issues.

Independent reports

See also: Peer Review guidance chapter 9 (Has the adviser promptly considered the use of independent experts to assist the client’s case?)

Consider the instruction of an independent expert.

  • This is easier to justify if based on what you have read in the reports or records. Make a careful note of your reasons for LAA purposes, ideally on a proforma which reminds you of the relevant considerations.
  • It is possible to instruct an independent psychiatrist, psychologist, or social worker, depending on the nature of the case. For instance, psychiatric evidence can challenge the RC’s opinion on the statutory criteria and/or diagnosis, or a social worker could investigate accommodation options and/or set out a plan for living in the community.
  • In MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC)M the responsible authority asked the First-tier Tribunal to draw an adverse inference from the fact that a doctor had visited the patient but no independent report had been filed. The Upper Tribunal stated that the tribunal’s duty, and the only proper course, was to decide on the evidence available rather than speculate on possible explanations of why the report was not produced.
  • For Peer Review purposes, if you do not instruct an independent expert, write a note to explain your reasons.
  • Note that an independent psychiatrist has a right to see the patient and the notes, and the offence of obstruction is relevant here (see s76 and s129).

Further visits with client

See also: Peer Review guidance chapters 4 (Are clients who are detained in hospital visited sufficiently regularly to obtain instructions and inform them of progress?), 5 (Has the client been advised of the merits of their case?), 8 (Have the fundamental issues of the case been analysed appropriately as the case progresses?), 14 (Have all necessary referrals been made in an appropriate way?) and 15 (Have the necessary steps been taken to represent children under 18 years at the Tribunal?)

You may need to visit the client several times before the Tribunal. It depends on the complexity and volume of evidence, the nature of the client, and when the evidence arrives.

You will need carefully to consider the medical records, then take instructions. Most hospitals allow you to view the records on the ward and take notes on them. Especially with computerised records, some now will allow you to print out much of them while you are there. Some hospitals, for instance the high secure ones, will provide photocopies with third-party information and other information redacted.

In s2 cases in particular, reports often arrive very near the hearing but are closely based on medical records. If you have discussed the medical records soon after seeing the client then the reports will not take long to take instructions on.

You need to take instructions on the reports. Even if the client does not want to go through the reports with a fine-tooth comb you can still discuss the themes in the reports during conversation.

The client needs to be given clear information about the merits of his case, orally and in writing during the case. By this stage you will have a fair idea of his prospects of obtaining the result he seeks.

Near the hearing the client, unless well versed in the system, will need to have the Tribunal procedure explained in detail. Explain:

  • the role of each Tribunal member, in particular the medical member – and whether the client should have a preliminary medical examination;
  • the likely order of proceedings (usually medical evidence first, then social work and nursing, then other witnesses, then patient, then legal submissions);
  • the areas of evidence in which the Tribunal will be most interested; and
  • the kind of questions the client will be asked (but do not ‘coach’ him).

Preparation for the hearing

See also: Peer Review guidance chapter 13 (Has there been thorough preparation for Tribunal hearings?)

Before the hearing you will need to review the correspondence, chronology, attendance notes, reports, and your notes of the medical records.

Remind yourself of the relevant statutory criteria – nature or degree, health or safety or others, etc. These should be your focus when preparing the case, and in submissions. The commentary in Jones contains useful pointers – e.g. in relation to necessity: the standard ‘is one of necessity, not desirability’ (Reid v Secretary of State for Scotland [1998] UKHL 43M).

Decide what the main positive points are in the case. Decide how to deal with the negative points. Decide how to deal with factual disputes. In a complex case where the issues are known by all parties, you may consider drafting a skeleton argument. If you are seeking a conditional discharge, prepare proposed wording for the conditions.

With the client’s agreement, you may need to prepare alternative submissions, for example:

  • addressing ‘nature’ and ‘degree’, and ‘necessity’, even if the client does not accept that he has a mental disorder at all; or
  • seeking a recommendation as an alternative to discharge.

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