SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)

Capacity to make tribunal application (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.

Subsequent tribunal guidance

Tribunal guidance on references. Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) — The DHSC has agreed to make an urgent reference on the day of a hearing when the tribunal find that the patient lacked capacity to make the application but the hearing should go ahead.

Official Judicial Summary

In the majority view, the decision in VS v St Andrew’s Healthcare [2018] UKUT 250; [2019] AACR 4Not on Bailii! 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.


Published on BAILII on 11/7/20.


File:Essex newsletter 107.pdf

This case has been summarised on page 9 of 39 Essex Chambers, 'Mental Capacity Report' (issue 107, September 2020).


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

The WLR Daily case summaries

[2020] WLR(D) 511B

Upper Tribunal

SM v Livewell Southwest

[2020] UKUT 191 (AAC)B

2020 May 15; June 12

Nicol J, Upper Tribunal Judge Ward, First-tier Tribunal Judge Johnston sitting as an Upper Tribunal judge

Mental disorder— Mental health tribunal— Application— Patient with mental health issues admitted to hospital for assessment and thereafter detained— Patient applying for review of admission— First-tier Tribunal declining jurisdiction on grounds of patient’s lack of capacity to make application— Whether applying correct test of capacity— Mental Health Act 1983 (c 20) (as amended by Mental Health Act 2007 (c 12), s 4, Sch 1, para 1, Sch 11, para 1 and Transfer of Tribunal Functions Order 2008 (SI 2008/2833), Sch 3, para 46), ss 2, 3, 66(1)(a)

Following a deterioration in her mental health the patient was admitted for assessment pursuant to section 2 of the Mental Health Act 1983 at a hospital run by the respondent and was thereafter detained there. She applied to the First-tier Tribunal pursuant to section 66(1)(a) of the Mental Health Act 1983 for review of her admission. By the time the application was considered, she was being detained for treatment pursuant to section 3, which, while not affecting the power of the tribunal to consider her application, meant that the justification for detention would fall to be considered against the section 3 conditions. In preparing for the tribunal hearing the patient had the support of an independent mental health advocate appointed under the 1983 Act and was represented by counsel. After conducting a pre-hearing examination of the patient, the medical member of the tribunal panel reported that the patient did not, either then or at any point during her admission, have the ability to understand what a mental health review tribunal meant, in that she did not fully understand what detention meant, and did not understand that a tribunal could discharge her. Based on the report of the medical member, the tribunal found that the patient had lacked capacity to make the application at the time when she made it and struck out the application pursuant to rule 8(3) of the Tribunal Procedure (Health Education and Social Chamber) Rules 2008 on the ground of lack of jurisdiction.

On the patient’s appeal—

Held, appeal allowed. (1) The legislative structure did not require an automatic review of every decision to detain a mental patient as soon as, or shortly after, it came into effect. The patient could choose to apply or the Secretary of State might refer a case to the tribunal. Although there might come a time when the hospital managers were obliged to refer the case to the tribunal, where the patient took the initiative it was her application which founded the tribunal’s jurisdiction. Accordingly, once the tribunal’s concerns over the patient’s capacity were raised, and irrespective of whether the respondent took the point, that matter could not be ignored since it went to the tribunal’s jurisdiction. While the legislation contained no express requirement for the person who made such an application to have capacity, such a requirement was to be implied. What mattered was the patient’s capacity at the time when the application was made (paras 60–62, 68, 77).

MH v United Kingdom (2013) 58 EHRR 35 considered.

(2) (First-tier Tribunal Judge Johnston dissenting), the test for capacity to initiate an application was deliberately couched at a low level and was a lesser one than the demanding test for capacity to conduct tribunal proceedings. However, it was insufficient that the patient simply wished to leave the hospital. There had to be a decision to make an application to the tribunal, for which purposes the patient had to understand both that she was being detained against her wishes and that the First-tier Tribunal had the power to discharge her. The first part of the test asked whether the patient realised that she was not free to leave the hospital, while the second part did not require a sophisticated understanding of the nature of the tribunal’s powers but required only an understanding that the tribunal could authorise her to leave the hospital. The test for capacity to make an application was the same for both an application under section 66(1)(a) of the Mental Health Act 1983, where the issue was whether the patient could be detained under section 2, and an application under section 66(1)(b), where the issue was whether the patient could be detained for treatment under section 3. Applying that test, there was no error of law in the tribunal’s decision in the present case (paras 51, 53, 71–73, 77, 84).

VS v St Andrew’s Health Care [2018] MHLR 337, UT applied.

Per curiam. (i) The forensic difficulty of reaching a determination as to someone’s mental capacity in the past may be eased if, at the time the application form is submitted, a contemporary record is made as to the medical and nursing staff’s opinion of the patient’s ability to understand that she was detained and the ability of the tribunal to direct her release. Form T132, which must be completed by the Mental Health Act administrator, contains a question going to capacity for other purposes and could perhaps it could be modified also to address capacity to apply to the tribunal. There may also be scope for hospitals to review the other necessary paperwork relating to admission so that it can carry greater evidential value on the issue (paras 18, 66).

(ii) Wherever possible the patient and their representatives should be alerted that the patient’s capacity to make the application may be an issue. In a future case, if the tribunal believes that the patient has attained capacity by the time of the hearing which they lacked when the original application was made, it is entitled to invite the patient to complete and deliver a fresh application and abridge any notice for the new application to be heard there and then (paras 63, 68, 86).

(iii) Where the patient lacks capacity to make an application there are alternative means by which the tribunal can have jurisdiction to consider the legality of detention. Either the independent mental health advocate or the hospital managers may raise the matter with the Secretary of State to consider referring the case to the tribunal. As a third alternative, in circumstances such as those of the present case the tribunal may itself raise with the Secretary of State the possibility of making a referral (paras 77, 80, 81, 88).

Christopher Cuddihee (instructed by Alan Harris Mental Health Solicitors Ltd, Plymouth) for the patient.

Neil Allen (instructed by Enable Law, Truro) for the respondent.

Sally Dobson, Barrister

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