Category

MHT capacity cases


The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2018, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Public hearing and capacity AR v West London NHS Trust [2020] UKUT 273 (AAC)(1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points. 2020‑09‑29 22:47:26 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, MHT public hearing cases, Transcript, Upper Tribunal decisions


* Capacity to make tribunal application SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)(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. 2020‑07‑10 23:49:01


* Reviewing appointment of legal representative SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so. 2020‑02‑06 23:08:39 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Mind summary, Powers, Transcript, Upper Tribunal decisions


* Capacity to make tribunal application 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, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


* Covert medication and MHT M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC)The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision. 2018‑04‑20 20:33:54 2018 cases, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


* Fluctuating capacity to appoint/instruct representative PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC)"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, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


* Strike out - no capacity to make application R (OK) v FTT [2017] UKUT 22 (AAC)The 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. Detailed summary available on case page. 2017‑01‑27 23:58:57 Cases


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, Judgment available on Bailii, 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 (23/2/15). 2015‑02‑12 23:42:15 2015 cases, Judgment available on Bailii, MHT capacity cases, No summary, Transcript, Upper Tribunal decisions