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

Capacity to make tribunal application (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.

Judicial Summary

Reported as [2019] AACR 4Not on Bailii!

Mental health – capacity to bring proceedings – adequate reasons

On 23 October 2017 the appellant signed a form applying to the First-tier Tribunal, exercising its mental health jurisdiction, for discharge from his detention as an inpatient. When he completed the form, he was not represented and his responsible clinician subsequently wrote that although he did not have insight into his mental health difficulties, he had demonstrated on multiple occasions that he did not wish to remain an inpatient in the hospital and wanted to be discharged. The First-tier Tribunal appointed solicitors to represent the patient and they in turn raised concerns about his capacity. That issue came before the First-tier Tribunal which decided that the applicant’s inability to retain that he was being held in a hospital was not ultimately fatal to a finding that he had capacity, as he was clearly able to retain the understanding that he was being held somewhere he did not want to be. The First-tier Tribunal dealt with the issue of capacity as a preliminary issue and decided that the patient had capacity when he made his application for a tribunal hearing. A different judge of the First-tier Tribunal granted permission to appeal to the Upper Tribunal on the basis that the First-tier Tribunal had not given adequate reasons on the capacity issue.

Held, dismissing the appeal, that:

  1. The nature of the capacity required to bring proceedings before the First-tier Tribunal was less demanding than the capacity required to conduct them: R (H) v Secretary of State for Health [http://www.bailii.org/uk/cases/UKHL/2005/60.html [2006] 1 AC 441]B and RD v Herefordshire Council [2016] EWCOP 49B
  2. The correct test to determine if the patient had capacity to bring proceedings before the First-tier Tribunal was that the patient must understand that they are being detained against their wishes and that the First-tier Tribunal is a body that would be able to decide whether they should be released.

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Full judgment: BAILII


  • MHT capacity cases🔍
  • Upper Tribunal decisions🔍

Date: 23/7/18🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍

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Published: 25/8/18 22:22

Cached: 2024-04-24 13:40:10