Download An Introduction to Mental Health Tribunals and the Court of Protection

 An Introduction to
Mental Health Tribunals
and the Court of Protection
Ros Dunning
Chris Stevenson
18 February 2015
Contents
Introduction to the Speakers
3
An Introduction to Mental Health Tribunals
4
An Introduction to the Court of Protection
18
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Introduction
Welcome
Welcome to this evening’s seminar in FOURTEEN’s “Meet the Players” series at
which practitioners speak, in an informal setting, to fellow practitioners about
specialist areas of practice related to family law.
We family lawyers frequently encounter questions of mental illness and cognitive
capacity in our daily work but few of us have detailed knowledge of the discrete
jurisdictions relating to Mental Health Review Tribunals and the Court of
Protection.
Ros Dunning will illuminate the mysteries of Mental Health Review Tribunals
whilst Chris Stevenson will then take us on a tour of that secret garden known as
the Court of Protection.
Prepare to be enlightened!
Edward Lloyd-Jones
Chair
Ros Dunning
Ros is the managing partner of Dunning & Co. solicitors. She is a member of the
Law Society’s Mental Health Panel and, since 2002, a Mental Health Review
Tribunal judge. Ros has been a member of the Law Society Children Panel since
its inception.
Chris Stevenson
Called in 2009, Chris is a family law and Court of Protection barrister at
FOURTEEN. His practice encompasses applications relating to personal welfare,
including where there are issues around deprivation of liberty, and disputes in
respect of property and financial affairs.
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An Introduction to
Mental Health Tribunals
Origins of current mental health legislation
The Mental Health Act 1959 repeated all existing legislation dealing with mental
illness and mental deficiency. Based on a Report of a Royal Commission
following the European Convention on Human Rights.
“No-one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law…the lawful detention of
persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants”
Article 5(e)
“Parties shall ensures that persons with disabilities on an equal basis with
others: (a) Enjoy the right to liberty and security of person; (b) are not
deprived of their liberty unlawfully or arbitrarily, and that any deprivation
of liberty is in conformity with the law, and that existence of a disability
shall in no case justify a deprivation of liberty”
Article 14
The original principle of the 1959 Act was that no-one should be admitted to
detention if care in the community would be more appropriate and, where
admission was necessary, compulsion was to be a medical rather than judicial
matter.
The 1959 Act was later superseded by the Mental Health Act 1983, which
consolidated a number of amendments to the 1959 Act, and this has itself been
amended, notably by Mental Health Act 2007.
Article 6 gives the right to a fair trial which includes the right to adversarial
proceedings, the right to have a hearing within a reasonable time, the right to
equality of arms, the right to know the grounds of which a decision is based, and
access to information to bring a case effectively. Whist domestic courts enjoy a
certain margin of appreciation when dealing with mentally ill persons, it should not
be at the expense of a fair trial: see Shtukaturov v Russia (2012) M.H.L.R. 238
ECHR.
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The Mental Health Tribunal
The Mental Health Tribunal is required to act in a way that is compatible with the
ECHR. The Tribunal consists of a legal member, a medical member and a lay
member (now called a specialist member) and must discharge if the criteria for
detention under the 1983 Act are not met on the date of the Tribunal Hearing. It
also has a discretion to discharge (which is only very rarely used).
Criteria for detention
Section 1(2) of 1983 Act defines mental disorder as any disorder or disability of
mind (however, a person with a learning disability shall not be considered as
requiring detention by reason of that disability unless disability is associated with
abnormally aggressive or seriously irresponsible conduct on his part (Section
1(2A)). Also, Section 1(3) provides that dependence on drugs or alcohol is not to
be considered a disorder or disability of the mind for the purposes of Section 1(2)
– (but excessive use of alcohol or of drugs can trigger a psychosis which comes
within s.1(2)).
Note: The 2007 Act abolished the four separate categories of mental disorder
previously used in the 1983 Act, namely: mental illness; mental impairment;
psychopathic disorder; and severe mental impairment. The intention was to make
the single simple definition easier for clinicians to use.
Note: In Re F (Mental Health Act Guardianship) [2000] 1 FLR 192 a restrictive
construction was adopted towards the phrase ”seriously irresponsible conduct”.
A 17-year-old patient’s desire to return home, albeit to an inadequate home
where she had been exposed to chronic neglect and possible sexual exploitation,
could not be categorised as irresponsible conduct.
“A person may be admitted to hospital and detained for a maximum
period of 28 days for assessment (or assessment followed by
treatment) on the grounds that: (a) he is suffering from mental disorder
of a nature or degree which warrants his detention in hospital…for at
least a limited period; and (b) he ought to be so detained in the
interests of his health, or his safety, or with a view to protection of
other persons”
Section 2, Mental Health Act 1983
Note: as this section is for assessment, there will not necessarily yet be a firm
diagnosis. “Nature” refers to the particular mental disorder, its chronicity, its
prognosis, and the patient’s previous response to receiving treatment. Thus on a
first admission under section 2 it may be hard for the detaining authority to
establish “nature” (although the lead up to the detention may involve
characteristics of a long term chronic disorder becoming apparent).
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“Degree” refers to the current manifestation of the Patient’s disorder. Thus a
transient drug induced psychosis which has resolved by the date of the Tribunal
Hearing will probably not meet the criteria for continuing detention under Section
2.
“An application for admission for assessment shall be founded on the
written recommendations in the prescribed form of two registered medical
practitioners…”
Section 3(3), Mental Health Act 1983
Note: an application to the Tribunal of a Patient detained under Section 2 should
reach the Tribunal Office at Leicester within 14 days of the date of detention and
must be listed for hearing within 7 days of receipt of the application. However, the
Department of Health does have discretion to refer an application which is out of
time to the Tribunal Office in Leicester, who must then set a date for the hearing.
They may, for example, do this where the Patient has completed the application
within the 14-day period but the hospital has delayed in forwarding this on to the
Office in Leicester.
“An application for admission for treatment may be made in respect of a
Patient on the grounds that:
(a) He is suffering from mental disorder of a nature or degree which
makes it appropriate to receive medical treatment in a hospital; and
(b) It is necessary for the health or safety of the Patient or for the
protection of other persons that he receives such treatment and it
cannot be provided unless he is detained under this section; and
(c) appropriate treatment is available for him”
Section 3(2), Mental Health Act 1983
Note: Section 37, whereby the magistrates court or crown court can order
admission and detention in hospital on the foregoing grounds on the written or
oral evidence of two registered medical practitioners.
The initial period of detention under Section 3 is for 6 months. It can be renewed
for a further 6 months and then for 12 months (s.20(1)).
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Where a Patient has been detained under Section 3 and subsequently leaves
hospital, he is entitled to s.117 aftercare services (this can be important in the
case of the elderly as it means Local Authority have to fund care). “Aftercare
services” are not defined by the Act but have been held to include:
(1) Social work;
(2) Support in helping the ex patient with problems of: (a) employment; (b)
accommodation; and (c) family relationships;
(3) The provision of domiciliary services; and
(4) The use of day centre and residential facilities.
The focus of the Tribunal’s inquiry into the mental health of the Patient is on
whether he is “then suffering” from mental disorder, which refers to the time of the
hearing of the Tribunal. The Tribunal has no power to consider the validity of the
admission that gave rise to the liability to be detained: R v East London and The
City Mental Health Trust, ex parte Brandenburg [2004] 1 All E.R. 400.
Note that the “nature” criterion may be satisfied in respect of a well-known
asymptomatic Patient who has indicated he is not prepared to take medication if
discharged and who has a history of significant deterioration in his mental health
after ceasing to take medication. A Patient whose symptoms of mental disorder
are being controlled by medication still suffers from that disorder.
Note in relation to word “necessary” that the test is “one of necessity, not
desirability”: Reid v Secretary of State for Scotland [1999] 1 All E.R. 481.
The Patient’s mental as well as physical health is covered by the word “health”. In
relation to “safety”, this is the Patient being exposed to the risk of being harmed,
either through his own acts or omissions or through the acts or omissions of
others – for example, a patient given to wandering round the streets late at night
wearing only her nightdress is putting her own safety at risk. “Protection of other
persons” does not necessarily mean the public at large and can simply relate to
an individual person: R v North West London Mental Health NHS Trust, ex parte
Bradley [1990] 3 All E.R. 828.
It is likely the harm can be psychological as well as physical – but note an unborn
child is not a “person” in need of protection, although the potential mother may be
detained on the basis that she is putting her own health at risk: St George’s
Health Care NHS Trust v S [1998] 3 All E.R. 673.
The risk of harm to other persons does not necessarily arise out of aggressive
behaviour – an insistence on driving a vehicle when it is not clinically indicated
puts others at risk.
Section 3(2)(d) replaces a previous requirement that treatment of certain
categories of patients must be “likely to alleviate or prevent a deterioration of his
condition” which was known as the “Treatability Test” This was believed to have
led to a culture whereby certain groups of patients were declared “untreatable”
and accordingly denied services.
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Appropriate medical treatment is not confined to medication – it can consist of
specialist nursing care – however the policy of the Act is treatment not
containment.
Note: Re Ian Brady where Professor Eastman divided treatment into three
different forms:
“Limb one is treatment of the patient’s core disorder; limb two is giving the
patient the skills necessary to cope with situations...limb three is
management focussed on managing the patient’s environment so that conflict
in situations is minimised”.
Note: Appropriate treatment may be available even when the patient refuses to
engage with it.
In addition to sections 2, 3 and 37 there are various emergency powers of
admission for assessment for a maximum of 72 hours – sections 4 and 5, where
the Patient is already in hospital. The Patient has no right to apply to a Tribunal
within the 72-hour period – only after the s.2 period starts.
Under s.5(4) a nurse of a prescribed class has a “holding power” in respect of an
informal patient for up to six hours during which period they should be examined
by a medical practitioner. Note also s.136 relating to the power of a constable to
remove a person who appears to be suffering from a mental disorder in a public
place to remove a person to a place of safety (i.e. a hospital) where they may be
detained for a maximum period of 72 hours. This power is available whether or
not the person is suspected of having committed a criminal offence. Further
under s.135 a JP can issue a warrant authorising a constable to enter a person’s
premises and remove him to a place of safety on the sworn evidence of an
approved mental health professional for a maximum period of 72 hours.
Section 17 (leave of absence) and Section 17A
(Community Treatment Orders)
Under Section 17 the Responsible Clinician can grant to any Patient detained in
Hospital leave of absence subject to any necessary conditions. Leave can be
indefinite or for a specified period (which may be extended). If for more than
seven consecutive days, the Responsible Clinician should consider whether
Community Treatment Order (“CTO”) would be more appropriate (s.17(2A)).
Under Section 17A(1) the Responsible Clinician may by order in writing discharge
a detained patient from hospital subject to his being liable to recall, however the
relevant criteria for Section 3 must continue to be met (Section 17A(4)(a)).
Treatment can be provided without his continuing to be detained subject to his
being liable to be recalled (Section 17A(5)(c)) and the power of recall is
necessary (Section 17A(4)(d)). An Approved Mental Health Professional also
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needs to agree that a CTO is appropriate. A Patient who is subject to a CTO is
referred to as a Community Patient.
Only patients who are detained under Section 3 are eligible to be considered for a
CTO. Patients on a CTO will be subject to conditions while living in the
community. These will depend on individual circumstance but must be for the
purpose of ensuring the patient receives medical treatment or to prevent risk of
harm to the patient or others. The use of CTOs is not confined to patients who
have a history of non compliance with medication – the so called “revolving door”
patients.
Note: the use of Community Treatment Orders has been far more popular than
was anticipated and they are also being repeatedly extended over longer periods
than was initially envisaged.
A patient who is subject to a CTO may be recalled to hospital pursuant to Section
17E if in the opinion of the Responsible Clinician:
(a) The patient requires medical treatment in hospital for his mental disorder; and
(b) There would be a risk of harm to the health or safety of the patient or to other
persons if the patient were not recalled to hospital for that purpose.
Also under Section 17E(2) a community patient may be recalled to hospital if he
fails to comply with a condition of the CTO.
The CTO may be revoked after recall to hospital under Section 17F(4). If the CTO
is not revoked the patient must be released at the end of the period of 72 hours.
Relatives and Nearest Relatives
The definition of a relative is in Section 26 of the 1989 Act (as amended) as
follows:
(a) Husband or wife or civil partner (including a person who is living with the
Patient as husband or wife or as if they were civil partners for at least six
months (except in the case of a married Patient where Section 26(5)(b) does
not apply);
(b) Son or daughter;
(c) Father or mother;
(d) Brother or sister;
(e) Grandparent;
(f) Grandchild;
(g) Uncle or aunt;
(h) Nephew or niece.
Note: any relation of the half blood should be treated as a relation of the whole
blood and an illegitimate child shall be treated as the child of his mother and of
his father if father has parental responsibility.
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Section 26(3) provides that the “nearest relative” means the person first
described in Section 1 who is alive. Relatives of the whole blood are given
preference and the eldest of two or more relatives in the same subsection are
preferred to the others, regardless of sex.
Section 26(4) provides that, where a patient ordinarily resides with or is cared for
by one or more relatives, the nearest relative shall be determined by giving
preference to that relative over others (as between two or more relatives in
accordance with whichever is the older).
Section 26(7) provides that a person who is not a relative with whom the Patient
ordinarily resides and has done for at least the past 5 years is considered the
nearest relative.
Note: the nearest relative must be resident in the United Kingdom, Channel
Islands or Isle of Man, must be over 18 (unless spouse or civil partner). A person
is not considered to be a spouse or civil partner if there has been a permanent
separation. A person may be a ‘nearest relative’ if they are a cohabitant,
provided that there has been cohabitation for six months or more: Section
26(5)(b).
The nearest relative plays an important role. He may make an application for
assessment (s.2) emergency admission (s.4) or treatment (s.3). No application
for s.3 can be made without consulting the nearest relative unless such
consultation is not reasonably practicable or would cause unnecessary delay.
The nearest relative may order discharge of a patient (but may be barred) and
may apply to a Tribunal.
Section 25(1): in order to discharge a patient, the nearest relative must give at
least 72 hours’ notice in writing to the managers of the hospital. The Responsible
Clinician may then send a report to the managers certifying that, in his/her
opinion, the patient, if discharged, would be likely to act in a manner dangerous to
other persons or himself (a “barring report”). “Dangerousness” has been equated
to “a propensity to cause serious physical injury or lasting psychological harm”.
Note: a nearest relative may appoint another person in writing to perform the
functions of the nearest relative.
Note: where a child is subject to a Care Order, the Local Authority is the nearest
relative. Where a child is the subject of a Special Guardianship Order, the Special
Guardian is the nearest relative.
Pursuant to Section 29(1) the County Court may direct the functions of the
nearest relative shall be exercisable by some other person:
Section 29(2) provides that the application can be made by:
(za) The patient;
(a) Any relative;
(b) Any other person with whom the patient is residing; or
(c) An approved mental health professional.
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Such an application can be made on the following grounds:
(a) The Patient has no nearest relative within the meaning of the Act;
(b) The nearest relative is incapable of acting by way of mental disorder or other
illness;
(c) The nearest relative unreasonably objects to admission for treatment;
(d) The nearest relative exercised power to discharge without regard for the
welfare of the Patient; or
(e) The nearest relative is otherwise not suitable to act as such.
The case of JT v United Kingdom (2000) 30 E.H.R.R. resulted in a patient being
given the right to apply to displace a nearest relative on grounds of unsuitability.
This should not be merely on the basis of a disagreement but where the nearest
relative poses a real and present danger to the health and wellbeing of a patient
(e.g. where abuse has occurred). However, in most cases it will be preferable to
persuade an approved mental health professional such as the care coordinator to
make the application as the power dynamics arising from an abusive relationship
may make it very difficult for the Patient to have to face the abuser in court.
Mental Health Tribunals
In the Report of his Review of Tribunals, Tribunals for Users – One System, One
Service, it was recommended that tribunals should be brought together in a single
system. The 2007 Act creates two new generic tribunals: the First Tier Tribunal
and the Upper Tribunal, into which existing tribunal systems were transferred.
The 2007 Act also provides for the establishment of “chambers”. The Mental
Health Tribunal is within Health, Education and Social Welfare Chamber.
The First Tier Tribunal has powers to review its decision, to correct accidental
errors, amend reasons or set aside the decision. If a decision is made to set
aside, the matter must either be referred for another Tribunal hearing or referred
to the Upper Chamber, which will re-decide the matter.
The Tribunal is obliged to follow the Tribunal Rules or, where the Rules are silent,
follow the rules of natural justice, i.e. act in a fair and unbiased way and provide
an opportunity for each part to state its case. Tribunal procedure has been
described as “inquisitional not adversarial “or “to a significant extent inquisitorial”.
Its function is to review the justification for the patient’s continued detention,
guardianship or supervised community treatment at the time of the hearing.
Note: the Tribunal has no power to consider the validity of the original decision to
detain. Further – the Tribunal’s jurisdiction does not extend to issues relating to
the propriety of a particular form of treatment.
Note: in relation to issues relating to whether a particular Tribunal is biased, the
test is whether a fair-minded and informed observer, having taken into account
the facts of the case, would say there was a real possibility of bias.
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Section 66 identifies the occasions when the Patient or Nearest Relative has the
right to apply for a Tribunal hearing.
Note: a displaced nearest relative can apply for a Tribunal hearing. One who has
not been displaced might consider powers of discharge as an alternative to a
Tribunal Hearing.
Section 68: Hospital Managers have a duty to refer detained patients and
community patients on the expiry of six months from admission or making of a
CTO unless the Patient has exercised the right to apply to apply for a Tribunal
hearing and not withdrawn. If a CTO has been revoked, hospital managers must
also refer. The purpose of the referral system is to ensure that patients who lack
the ability or initiative to make an application to the Tribunal have the safeguard
of an independent review of their case.
Note: such patients frequently lack capacity, requiring a solicitor to be appointed
pursuant to Rule 11.
Section 72(1) provides a Tribunal must discharge if the criteria for detention or
Community Treatment Order are not met on the day of the hearing (if the
application is from nearest relative, the “dangerousness” criteria must also be
met). If a patient detained because of a learning disability, the “abnormally
aggressive” or “seriously irresponsible behaviour” criteria must also be met.
Note: Section 72(1) includes a discretionary power to discharge even where the
criteria for continuing detention are met – this is only used very rarely in practice.
Section 72(1A) provides that the Tribunal shall, in particular, consider, having
regard to the patient’s history of mental disorder and any other relevant factors,
what risk there would be of a deterioration in the patient’s condition if he were to
continue not to be detained in a hospital (as a result, for example, of his refusing
or neglecting to receive the medical treatment he requires for his mental
disorder).
Note: R (on the application of H) v Mental Health Review Tribunal, North and
East London Region [2001] M.H.L.R. 48: Sections 72(1) and 73(1) of the 1983
Act were ruled incompatible with the Human Rights Act 1998 in that the burden
was placed on the Patient to prove the criteria justifying his detention in hospital
no longer existed. In order to remove the incompatibility, the Mental Health Act
1983 (Remedial) Order 2001 was enacted to amend the sections in question so
that burden of proof clearly lies with the detaining authority.
Note: there is no requirement under Article 5 that detention must be proportionate
– Article 5 protects against arbitrary detention – it does not incorporate any
additional requirement of proportionality.
Section 72(3) provides that a Tribunal may direct the discharge of a patient at a
future date specified in the direction. This provision can be used to enable
preparations to be made to receive a patient back into the community, e.g. by
holding a discharge meeting and putting necessary supports in place. There is
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no power for the Tribunal to reconsider the deferment if circumstances show that
what is required to provide after care services cannot be put in place.
Note: R (on the application of Ashworth Hospital Authority) v MHRT for West
Midlands and North West Regions [2002] M.H.L.R. 13:
“If there is uncertainty as to the putting in place of the after-care
arrangements on which satisfaction of the discharge criteria depends the
tribunal should adjourn…to enable them to be put in place, indicating
their views and giving appropriate directions”
Note: Johnson v United Kingdom (1999) 27 E.H.R.R. 296: a deferred discharge
would be in danger of violating Article 5(1)(e) of the ECHR “if the delay between
the decision to discharge and the date of discharge was excessive”.
Section 72(3)(a) also gives Tribunals power to make formal recommendations –
with a view to facilitating his discharge on a future date, the Tribunal can
recommend the patient be granted leave of absence or transferred to another
hospital or into guardianship. Paragraph (b) gives the Tribunal the power to
reconvene if its recommendation not complied with.
Section 72(3A) gives power to the Tribunal to recommend that the Responsible
Clinician consider whether to make a Community Treatment Order. The Tribunal
will set a time limit at the expiration of which it will reconsider the case.
If it reconvenes, it has all the powers it had at the original hearing.
Note: a recommendation for transfer to another hospital has to be with a view to
facilitating the patient’s discharge at a future date. There is no power to
recommend transfer to a hospital more convenient to his family: R (on the
application of H) v Mental Health Review Tribunal [2002] M.H.L.R. 362.
The Tribunal should give reasons for making such a recommendation and for
exercising its discretion not to reconvene.
Tribunal Procedure (First Tier Tribunal)
(Health Education and Social Care Chamber) Rules 2008
Rule 2 sets out the Overriding Objective and the parties’ obligation to cooperate
with the Tribunal to enable the Tribunal to deal with issues justly and fairly, which
includes:
(a)
Dealing with the case in ways which are proportionate to the importance of
the case, the complexity of the issues, the anticipated costs, and the
resources of the parties;
(b)
Avoiding unnecessary formality and seeking flexibility in the proceedings;
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(c)
Ensuring, so far as is practicable, that the parties are able to participate fully
in the proceedings;
(d)
Using any special expertise of the Tribunal effectively; and
(e)
Avoiding delay, so far as is compatible with proper consideration of the
issues
Parties are required to help the Tribunal to further the Overriding Objective – they
are required to cooperate and liaise with each other concerning procedural
matters, particularly when parties have legal representation. An aggressive
confrontational style of advocacy is generally not helpful.
Note: Tribunals must avoid unnecessary formality but have to hear evidence in an
organised fashion, discouraging interruptions (which may come from parties other
than the patient!). It should not be assumed that the Patient wants to be referred
to by his first name. Given that the burden of proof is with the Patient, he will
normally give his evidence last – however, he may prefer to go first and Tribunals
should be flexible in allowing this.
Evidence
Rules of evidence are relaxed and most Tribunals will permit the Patient’s
representative to engage in a certain amount of leading in order to help the
Patient give his evidence in chief.
Note: the nearest relative may attend in the capacity of a witness on behalf of the
Patient but may wish to express differing views or may be attending purely to give
support and may not wish to speak at all. Many relatives do stay away because
they know that anything they say will be contrary to the Patient’s views. Even if
the relative’s view does not entirely accord with that of the Patient, attendance
can be helpful as it indicates that the Patient has the support of his family.
Adjournments
The power to adjourn must be exercised judicially and in accordance with the
Overriding Objective. The requirement in article 5(4) of ECHR for a speedy
decision must also be borne in mind. Brief reasons should be given for a decision
to adjourn.
Note: it is unlawful to adjourn to see whether patient’s health improves: R v
Nottinghamshire Mental Health review Tribunal Ex p Secretary of State for the
Home Department The Times, October 12 CA
Representatives
Rule 11(7) provides that, in a mental health case, if the patient has not appointed
a representative, the Tribunal may appoint a legal representative for the patient
where:
(a) The patient has stated they do not wish to conduct their own case or that they
wish to be represented; or
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(b) The patient lacks the capacity to appoint a representative but the Tribunal
believes it is in the patient’s best interests for him to be represented.
Note: a capacitous patient is not required to appoint a representative.
Note: where a solicitor is appointed under Rule 11(7)(b), the patient may still, in
some cases, be able to give valid instructions in relation to aspects of his case. In
the absence of the patient’s capacity to give valid instructions, the solicitor will
advance any argument he or she considers to be in the patient’s best interests,
which will not necessarily involve arguing for the patient’s discharge.
Note: in all cases, but in particular when acting for a patient who lacks capacity, a
solicitor must be clear who their client is. A solicitor should not take instructions
from a relative where these appear to run counter to the best interests of such a
patient. There are sometimes cases where patients have been abused, neglected
or exploited in a family setting and it will not be in their interests to return there.
Disclosure
According to Rule 14(2):
(a) The Tribunal may give a direction prohibiting the disclosure of a document or
information to a person if the Tribunal is satisfied that such disclosure would
be likely to cause that person or some other person serious harm; and
(b) The Tribunal is satisfied, having regard to the interests of justice, that it is
proportionate to give such a direction.
Reasons for requesting a Tribunal to exclude a document must be provided. An
excluded document can be disclosed to a legal representative provided they do
not disclose it further without the Tribunal’s consent.
Note: Roberts v Nottinghamshire Healthcare NHS Trust [2008] M.H.L.R. –
although a party has a right to a fair trial under Article 6, “that does not mean he
or she has an absolute or unqualified right to see every document”.
Admissibility of evidence
Rule 15 deals with evidence. Under Rule 15(2) (a) The Tribunal may admit
evidence whether or not –
(a) The evidence would be admissible in a civil trial in England and Wales; or
(b) The evidence was available to a previous decision maker.
Note: R on the application of DJ v Mental Health Tribunal [2005] M.H.L.R. 56:
“If the Tribunal is relying on hearsay evidence it must take into account
the fact that it is hearsay and must have regard to the particular dangers
of relying on second, third or fourth hand hearsay…the Tribunal must
guard against too quickly jumping to conclusions adverse to the patient in
relation to past events where the only direct evidence is that of the
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patient himself, particularly where there is no clear account in
contemporaneous notes of what is alleged to have happened”
Note: frequently, when serious allegations are made as to incidents which have
happened when the patient was in the community, eyewitnesses are not present
at the Tribunal hearing. It is helpful if there has been a conviction, or at least a
caution, but the CPS often do not prosecute even where there have been quite
serious assaults.
Medical Examination of the Patient
Rule 34(1) provides that an appropriate member of the Tribunal (the medical
member) must, so far as is practicable, examine the patient in order to form an
opinion of the Patient’s mental condition and may do so in private.
Note: as amended this rule only applies to patients detained under Section 2
(unless the patient does not wish it) and to other cases where the patient or
patient’s representative has given not less than 14 days’ notice in writing.
Note: if the patient completely fails to attend the hearing, the Tribunal doctor shall
interview the patient on the ward before the hearing unless such an interview is
impractical or unnecessary.
R (on the application of RD) v MHRT [2007] EWHC 781 (Admin):
“The medical member must appreciate that he performs a dual role at the
tribunal as a fact finder and a decision maker...his opinion of the patient’s
mental condition... should be disclosed to the patient and his
representative at the outset of the hearing”.
Public and private hearings
Rule 38(1) provides that all hearings must be held in private unless the Tribunal
considers it is in the interests of justice for the hearing to be held in public. The
overwhelming majority of hearings are held in private.
Rule 38(4) states that the Tribunal may give a direction excluding from any
hearing, or part of it:
(a) Any person whose conduct the Tribunal considers is disrupting or is likely to
disrupt the hearing;
(b) Any person whose presence the Tribunal considers is likely to prevent
another person from giving evidence or making submissions freely;
(c) Any person who the Tribunal considers should be excluded in order to give
effect to a direction under rule 14(2) (withholding evidence likely to cause
harm); or
(d) Any person where the purpose of the hearing would be defeated by the
attendance of that person.
Note: Rule 33(c) provides that notice of the proceedings should be given, subject
to a patient with capacity requesting otherwise, where any person other than the
applicant is named by the authority as exercising the functions of the nearest
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relative, to that person. However the nearest relative can subsequently be
excluded from the hearing if disruptive or if one of the other grounds is satisfied.
Decisions
Rule 41(1) provides that the Tribunal may give a decision orally at a hearing.
Note: it is good practice for Tribunals to give decisions orally. However, the
giving of the decision is often the most dangerous point of a hearing in the case
of a patient who has a propensity to be violent. If the Tribunal feels there is a risk
of disruptive behaviour, they may give their decision on the ward where nursing
back-up is available or they may give it to the Patient’s representative without the
Patient being present. It is important to be alive to this possibility – if the Tribunal
decides to exclude the Patient from the giving of the decision, they normally have
a good reason for doing this.
Rule 41 also provides for written reasons to be given for the Tribunal’s decision
within 3 working days for Section 2 cases or 7 days in respect of any other
hearing.
Note: a number of decisions are set aside and a re-hearing ordered because of
“inadequate reasons”.
In MS v N E London Foundation Trust [2013], it was stated that the written
reasons should state what facts the Tribunal found, explain how and why the
Tribunal made such findings and show how the Tribunal applied the law to those
facts.
R (on the application of H) v Ashworth Hospital Authority [2002] M.H.L.R. 314
states that a judge should “provide an explanation as to why he has accepted the
evidence of one expert and rejected that of another...whatever the explanation
may be it should be apparent from the judgment”.
R (on the application of Epsom & St Helier NHS Trust v MHRT [2001] M.H.L.R.
states that the reasons “must be read as a whole, in a common sense way, not
as a legal treatise”.
In AS v First tier Tribunal Upper Tribunal Case No. JR/3048/2012 it was stated
that reasons must be adequate to ensure that the parties, especially the party
whose case has not been accepted, know why the Tribunal made the decision it
did; and an appeal court can judge whether the Tribunal has made an error of
law.
Ros Dunning
February 2015
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An Introduction to
the Court of Protection
“The Mental Capacity Act 2005 is a vitally important piece of
legislation, and one that will make a real difference to the lives of
people who may lack mental capacity. It will empower people to make
decisions for themselves wherever possible, and protect people who
lack capacity by providing a flexible framework that places individuals
at the very heart of the decision-making process. It will ensure that
they participate as much as possible in any decisions made on their
behalf, and that these are made in their best interests. It also allows
people to plan ahead for a time in the future when they might lack the
capacity, for any number of reasons, to make decisions for
themselves”
Lord Falconer, 23 April 2007
Foreword to the Mental Capacity Act 2005 Code of Practice
The nature of the Mental Capacity Act 2005
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1
The principles
(1)
The following principles apply for the purposes of this Act
(2)
A person must be assumed to have capacity unless it is
established that he lacks capacity
(3)
A person is not to be treated as unable to make a decision
unless all practicable steps to help him to do so have been
taken without success
(4)
A person is not to be treated as unable to make a decision
merely because he makes an unwise decision
(5)
An act done, or decision made, under this Act for or on behalf of
a person who lacks capacity must be done, or made, in his best
interests
(6)
Before the act is done, or the decision is made, regard must be
had to whether the purpose for which it is needed can be as
effectively achieved in a way that is less restrictive of the
person’s rights and freedom of action
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The Act is therefore designed to:
(a) Empower P;
(b) Protect P’s rights; and
(c) Put P at the centre of any decisions to be made.
In the event that P lacks capacity, the Court may either appoint someone (a
“Deputy”) to make decisions on his or her behalf in relation to the matter or
matters or may make decisions on P’s behalf by making an order (s.16(2) MCA
2005). That said, a decision made by the Court is to be preferred to the
appointment of a Deputy and, if a Deputy is to be appointed, then the powers
conferred on him or her should be as limited in scope and duration as is
reasonably practicable in the circumstances (s.16(4) MCA).
Mental capacity
2
People who lack capacity
(1)
For the purposes of this Act, a person lacks capacity in relation
to a matter if at the material time he is unable to make a
decision for himself in relation to the matter because of an
impairment of, or a disturbance in the functioning of, the mind or
brain
(2)
It does not matter whether the impairment or disturbance is
permanent or temporary
(3)
A lack of capacity cannot be established merely by reference to(a)
A person’s age or appearance; or
(b)
A condition of his, or an aspect of his behaviour, which
might lead others to make unjustified assumptions about
his capacity
(4)
In proceedings under this Act or any other enactment, any
question whether a person lacks capacity within the meaning of
this Act must be decided on the balance of probabilities
(5)
No power which a person (“D”) may exercise under this Act –
(a)
In relation to a person who lacks capacity; or
(b)
Where D reasonably thinks that a person lacks capacity;
is exercisable in relation to a person under 16
…
When assessing capacity, the Court will consider a number of factors, set out in
s.3(1) MCA 2005:
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(a) P’s ability to understand information relevant to the decision/act. In
ascertaining P’s ability to understand, the Court will consider whether P is
able to understand the information if it is delivered in a way that is appropriate
to his or her circumstances, including if this is done by using simple
language, visual aids or other means (s.3(2)). The information relevant to the
decision includes information about the reasonably foreseeable
consequences of deciding one way or another, or failing to make the decision
(s.3(4));
(b) P’s ability to retain the information. If P is able to retain the information for
only a short period, this does not necessarily prevent him or her from being
regarded as able to make the decision (s.3(3)). The question is whether P is
able to retain the information for long enough to make the decision;
(c) P’s ability to use or weigh that information as part of the process of
making the decision. The issue here is whether P is able to weigh all
relevant information in the balance and use the information to arrive at a
decision. The provision of advice and support, or even some degree of
constraint, is permissible to assist in this process: V v R [2011] EWHC 822
(QB); and
(d) P’s ability to communicate his decision. The Court will look at P’s ability
to communicate the decision by any means. Communicating by blinking one
eye can be sufficient to indicate capacity: Re AK (Adult Patient) (Medical
Treatment – Consent) [2011] EWHC 2443 (Fam).
Capacity is ordinarily assessed by medical professionals, but can also be
considered and assessed by social workers. Ultimately, the question as to
whether P lacks capacity is a matter for the Court to determine on the balance of
probabilities. The Court may make a “declaration” as to capacity pursuant to s.15
MCA 2005.
At an interim stage of proceedings, however, the Court will consider whether
there is reason to believe that P lacks capacity under s.48 MCA 2005. This
obviates the need, at an interim stage, to make a specific finding that P lacks
capacity.
“What is required, in my judgment, is simply sufficient evidence to
justify a reasonable belief that P may lack capacity in the relevant
regard. There are various phrases which might be used to describe
this, such as "good reason to believe" or "serious cause for concern"
or "a real possibility" that P lacks capacity, but the concept behind
each of them is the same, and is really quite easily recognised”
Re F (by her litigation friend) (ex parte) [2009] EWHC B30 (Fam) per
HHJ Marshall QC at paragraph 36
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Section 48 might be considered, at first glance, to undermine the principles
underpinning the Mental Capacity Act and the intention for the Court of Protection
to intervene only where it needs to, and not to intervene so as to promote a
person’s autonomy.
“The proper test for the engagement of s 48 in the first instance is
whether there is evidence giving good cause for concern that P may
lack capacity in some relevant regard. Once that is raised as a serious
possibility, the court then moves on to the second stage to decide what
action, if any, it is in P's best interests to take before a final
determination of his capacity can be made. Such action can include
not only taking immediate safeguarding steps (which may be positive
or negative) with regard to P's affairs or life decisions, but it can also
include giving directions to enable evidence to resolve the issue of
capacity to be obtained quickly. Exactly what direction may be
appropriate will depend on the individual facts of the case, the
circumstances of P, and the momentousness of the urgent decisions in
question, balanced against the principle that P's right to autonomy of
decision-making for himself is to be restricted as little as is consistent
with his best interests. Thus, where capacity itself is in issue, it may
well be the case that the only proper direction in the first place should
be as to obtaining appropriate specialist evidence to enable that issue
to be reliably determined.”
Re F per HHJ Marshall QC at paragraph 44
Best interests
Irrespective of whether the decision that the Court is being asked to determine
relates to P’s personal welfare or her property and financial affairs, the guiding
principles that govern any decision made by the Court of Protection are found in
s.4 of the MCA 2005.
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(1)
In determining for the purposes of this act what is in a person’s
best interests, the person making the determination must not
make it merely on the basis of (a)
The person’s age or appearance; or
(b)
A condition of his, or an aspect of his behaviour, which
might lead others to make unjustified assumptions about
what might be in his best interests;
(2)
The person making the determination must consider all the
relevant circumstances and, in particular, take the following
steps:
(3)
He must consider –
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(a)
(b)
Whether it is likely that the person will at some time have
capacity in relation to the matter in question; and
If it appears likely that he will, when that is likely to be.
(4)
He must, so far as reasonably practicable, permit and
encourage the person to participate, or to improve his ability too
participate, as fully as possible in any act done for him and any
decision affecting him.
(5)
Where the determination relates to life-sustaining treatment he
must not, in considering whether the treatment is in the best
interests of the person concerned, by motivated by a desire to
bring about his death.
(6)
He must consider, so far as is reasonably ascertainable –
(a)
The person’s past and present wishes and feelings (and,
in particular, any relevant written statement made by him
when he had capacity);
(b)
The beliefs and values that would be likely too influence
his decision if he had capacity;
(c)
The other factors that he would be likely to consider if he
were able to do so.
(7)
He must take into account, if it is practicable and appropriate to
consult them, the views of –
(a)
Anyone named by the person as someone to be
consulted on the matter in question or on matters of that
kind;
(b)
Anyone engaged in caring for the person or interested in
his welfare;
(c)
Any donee of a lasting power of attorney granted by the
person; and
(d)
Any deputy appointed for the person by the Court,
as to what would be in the person’s best interests and, in
particular, as to the matters mentioned in subsection (6)
(8)
The duties imposed by subsections (1) to (7) also apply in
relation to the exercise of any powers which –
(a)
Are exercisable under a lasting power of attorney; or
(b)
Are exercisable by a person under this Act where he
reasonably believes that another person lacks capacity.
…
Not all of the factors in the checklist will be relevant to all types of decisions or
applications before the Court of Protection but they must still be considered, even
if it is only to discount them, in order to comply with the analysis. All of the factors
are of equal value although some may be of “magnetic importance” – e.g. in an
application for the execution of a statutory will, the existence of a draft will might
be such a factor.
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As is suggested by s.1(4) MCA 2005,
“best interests is not a test of 'substituted judgement' (what the person
would have wanted), but rather it requires a determination to be made
by applying an objective test as to what would be in the person's best
interests." This is confirmed by the Code of Practice at paragraph
5.38”
W v M & Others [2011] EWHC 2443 (Fam) per Baker J at paragraph
81
So far as they are ascertainable, P’s wishes and feelings, including beliefs and
values, must be taken into account fully, even if P ultimately cannot make the
decision for herself. That said, wishes and feelings are just one aspect of the
Court’s assessment and the final decision must be based entirely on what is in
P’s best interests.
When considering the weight to be attached to P’s ascertainable wishes and
feelings, guidance can be found in the case of Re S and S (Protected Persons)
[2008] EWHC B16 (Fam):
“As to how this will work in practice, in my judgment, where P can and
does express a wish or view which is not irrational (in the sense of
being a wish which a person with full capacity might reasonably have),
is not impracticable as far as its physical implementation is concerned,
and is not irresponsible having regard to the extent of P's resources (ie
whether a responsible person of full capacity who had such resources
might reasonably consider it worth using the necessary resources to
implement his wish) then that situation carries great weight, and
effectively gives rise to a presumption in favour of implementing those
wishes, unless there is some potential sufficiently detrimental effect for
P of doing so which outweighs this.”
Per HHJ Marshall QC at Paragraph 57
Munby J (as he then was) gave further consideration to this issue in the case of
In Re M [2010] 3 All ER 682 at Paragraph 35:
“I venture, however, to add the following observations. (i) First, P's
wishes and feelings will always be a significant factor to which the
court must pay close regard: see Re MM (an adult), A Local Authority
v MM [2008] 3 FCR 788 at [121]-[124]. (ii) Secondly, the weight to be
attached to P's wishes and feelings will always be case-specific and
fact-specific. In some cases, in some situations, they may carry much,
even, on occasions, preponderant, weight. In other cases, in other
situations, and even where the circumstances may have some
superficial similarity, they may carry very little weight. One cannot, as it
were, attribute any particular a priori weight or importance to P's
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wishes and feelings; it all depends, it must depend, upon the individual
circumstances of the particular case. And even if one is dealing with a
particular individual, the weight to be attached to their wishes and
feelings must depend upon the particular context; in relation to one
topic P's wishes and feelings may carry great weight whilst at the
same time carrying much less weight in relation to another topic. Just
as the test of incapacity under the 2005 Act is, as under the common
law, 'issue specific', so in a similar way the weight to be attached to P's
wishes and feelings will likewise be issue specific. (iii) Thirdly, in
considering the weight and importance to be attached to P's wishes
and feelings the court must of course, and as required by s 4(2) of the
2005 Act, have regard to all the relevant circumstances. In this context
the relevant circumstances will include, though I emphasise that they
are by no means limited to, such matters as: (a) the degree of P's
incapacity, for the nearer to the borderline the more weight must in
principle be attached to P's wishes and feelings: Re MM (an adult), A
Local Authority v MM at [124]; (b) the strength and consistency of the
views being expressed by P; (c) the possible impact on P of
knowledge that her wishes and feelings are not being given effect to:
see again Re MM (an adult), A Local Authority v MM at [124]; (d) the
extent to which P's wishes and feelings are, or are not, rational,
sensible, responsible and pragmatically capable of sensible
implementation in the particular circumstances; and (e) crucially, the
extent to which P's wishes and feelings, if given effect to, can properly
be accommodated within the court's overall assessment of what is in
her best interests.”
Morgan J, in the case of In the Matter of G (TJ) [2010] EWCOP 3005, discussed
the interplay between ‘best interests’ and the ‘substituted judgment’ of the Court
of Protection:
“[55] The best interests test involves identifying a number of relevant
factors. The actual wishes of P can be a relevant factor: section 4(6)(a)
says so. The beliefs and values which would be likely to influence P's
decision, if he had capacity to make the relevant decision, are a
relevant factor: section 4(6)(b) says so. The other factors which P
would be likely to consider, if he had the capacity to consider them, are
a relevant factor: section 4(6)(c) says so. Accordingly, the balance
sheet of factors which P would draw up, if he had capacity to make the
decision, is a relevant factor for the court's decision. Further, in most
cases the court will be able to determine what decision it is likely that P
would have made, if he had capacity. In such a case, in my judgment,
P's balance sheet of factors and P's likely decision can be taken into
account by the court. This involves an element of substituted judgment
being taken into account, together with anything else which is relevant.
However, it is absolutely clear that the ultimate test for the court is the
test of best interests and not the test of substituted judgment.
Nonetheless, the substituted judgment can be relevant and is not
excluded from consideration. As Hoffmann LJ said in the Bland case,
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the substituted judgment can be subsumed within the concept of best
interests. That appeared to be the view of the Law Commission also.
[56] Further, the word "interest" in the best interests test does not
confine the court to considering the self interest of P. The actual
wishes of P, which are altruistic and not in any way, directly or
indirectly self-interested, can be a relevant factor. Further, the wishes
which P would have formed, if P had capacity, which may be altruistic
wishes, can be a relevant factor. It is not necessary to establish that P
would have been aware of the fact that P's wishes were carried into
effect. Respect for P's wishes, actual or putative, can be a relevant
factor even where P has no awareness of, and no reaction to, the fact
that such wishes are being respected.”
Personal welfare decisions
Section 17 of the Act sets out the extent of the Court’s jurisdiction to make orders
pertaining to P’s personal welfare. The issues that frequently arise include:
(a) Where P should live;
(b) What contact P should have with others, if any;
(c) Giving or refusing consent to health care or treatment;
(d) Who should be responsible for delivering P’s health care/treatment.
It is important to be reminded that these powers apply only in respect of those
who are aged 16 or over. Between the ages of 16 and 18 years, these powers
overlap with the powers under the Children Act 1989.
Personal welfare applications often involve issues around P’s liberty and whether
or not this should be deprived.
Independent Mental Capacity Advocates
Where a proposed act or decision relates to the provision of serious medical
treatment or of accommodation by an NHS body or provision of accommodation
by a local authority, the appropriate authority (the Secretary of State) must make
such arrangements as it considers reasonable to enable IMCAs to be available to
represent and support those who are subject to the proposed act or decision.
IMCAs:
(a) Provide support to P so that P may participate as fully as possible in any
relevant decision;
(b) Obtain and evaluate relevant information;
(c) Ascertain what P’s wishes and feelings would likely be, and what beliefs and
values would likely influence P, if he or she had capacity;
(d) Ascertain what alternative courses of action are available in relation to P; and
(e) Obtain a further medical opinion where treatment is proposed and the IMCA
considers that one should be obtained.
It may also be possible for IMCAs to challenge, or provide assistance for the
purpose of challenging, any relevant decision (s.36(2) MCA 2005).
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Property and financial affairs
Section 18 of the Act sets out the Court of Protection’s powers in relation to P’s
property and finances. Orders may be made in respect of:
(a) The control and management of P’s property;
(b) Sale, exchange, charging, gift or other disposition of P’s property;
(c) The acquisition of property in P’s name;
(d) The carrying on, on P’s behalf, of any profession, trade or business;
(e) Taking a decision, the effect of which is of dissolving a partnership of which P
is a member;
(f) Carrying out a contract entered into by P;
(g) Discharging P’s debts and obligations, whether legally enforceable or not;
(h) The settlement of any of P’s property, whether for P’s benefit or for the
benefit of others;
(i) The execution of a will for P;
(j) The exercise of any power (including a power to consent) vested in P
whether beneficially or as a trustee or otherwise;
(k) The conduct of legal proceedings in P’s name or on P’s behalf.
Advance decisions
Whilst a person still has capacity and provided that person is aged 18 or over, he
or she may make an ‘advance decision’.
Medical treatment
The advance decision would not apply unless and until P lacks capacity in
relation to that particular decision. Additionally, if there are reasonable grounds
for believing that circumstances exist which P did not anticipate at the time of the
advance decision and which would have affected his or her decision had he or
she anticipated them, then the advance decision is not applicable to the treatment
in question (s.25(4)(c) MCA 2005).
In order to be valid, a decision or statement must be in writing, signed by P and
another person in P’s presence and by P’s direction, and the signature is made or
acknowledged by P in the presence of a witness, who also signs it or
acknowledges the signature in P’s presence (s.25(6) MCA 2005).
An advance decision may be altered at any time when P still has capacity to do
so and this need not be in writing unless the alteration is a decision to refuse a
life-sustaining treatment even though life is at risk. In respect of such an
alteration, the Court is mindful of the importance of the preservation of life and
therefore only limited weight may be placed on oral statements made by P: W v
M [2011] EWHC 2443 (Fam) per Baker J.
An advance decision will not be valid if P has, under a power of attorney created
after the advance decision was made, given authority to the donee to give or
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refuse consent to the treatment to which the advance decision relates, or if P has
done anything else that is clearly inconsistent with the advance decision
remaining his or her fixed decision (s.25(2) MCA 2005).
In disputed matters, the Court may make a declaration as to whether an advance
decision exists, is valid and/or is applicable to a treatment in particular. Pending
any such declaration, it is possible to provide life-sustaining treatment or do
something that a person reasonably believes to be necessary to prevent a
serious deterioration in P’s condition (s.26(5) MCA 2005).
Excluded decisions
So personal to the individual concerned are some acts and decisions that they
cannot be made on behalf of a person who lacks capacity under the Mental
Capacity Act 2005. These include:
(a) Consenting to marriage or a civil partnership;
(b) Consenting to sexual relations;
(c) Consenting to a decree of divorce/a dissolution order in relation to a civil
partnership being granted on the basis of two years’ separation;
(d) Consenting to a child’s being placed for adoption;
(e) Consenting to the making of an adoption order;
(f) Discharging parental responsibilities in matters not relating to a child’s
property;
(g) Giving consent under the HFEA 1990 or the HFEA 2008.
The MCA 2005 also does not authorise anyone to give a patient medical
treatment for a mental disorder or to consent to a patient’s being given medical
treatment for mental disorder if, at the time when it is proposed to treat the
patient, that treatment is regulated by Part 4 of the Mental Health Act.
Another category of ‘excluded decision’ is voting (s.29 MCA 2005).
Chris Stevenson
February 2015
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