Citation:  UKUT 36 (AAC)
In this case, the First-tier Tribunal (‘FfT’) was found by Charles J (as President of the Upper Tribunal (AAC)) to erred in acceding to the request of a welfare deputy to withdraw an application to challenge her son’s detention under s. Mental Health Act 1983 because, in the absence of such an express power in the terms of the deputy’s appointment, the deputy had no such right to withdraw the proceedings. The FfT’s decision to consent to a withdrawal is a safeguard and “has to be based on a conclusion of the tribunal that continued detention under the MHA is justified for the reasons founding the application to withdraw (or other reasons)” (para 37).
Charles J examined the issue of capacity to instruct and to litigate in the context of a detained patient seeking discharge from s.2 MHA on the basis that he would agree to remain in hospital in circumstances potentially amounting to a deprivation of liberty. His Lordship held:
“41. I accept as submitted on behalf of AMA that the patient does not have to be able to fully appreciate or understand all aspects of the issues involved and that the capacity simply to instruct a solicitor to challenge a continuation of a detention on all available grounds can be described as very low or a very limited capacity.
42. However, different and more complex factors relating to both the capacity to instruct a solicitor and in respect of other decisions, issues or activities that are relevant to the application of the tests under the MHA and a best interests approach will or are likely to arise in, for example:
i) cases concerning compliance with a voluntary admission and consequential detention (deprivation of liberty),
ii) applications to withdraw and so the reverse of the position that a review of the detention is likely to promote the patient’s interests,
iii) cases in which the wishes of the patient do not accord with the views of his representative as to what will promote his best interests and/or do not found arguable points, and
iv) in cases where a central factor to the argument that detention is not necessary involves an assessment of the patient’s ability to weigh and act in relation to issues that underlie an argument that he will remain in hospital as a voluntary patient (here the resolution of arrangements relating to his care package on leaving hospital).
In all such cases it is likely that a sufficient appreciation by the patient of his impairment of, or disturbance in the functioning of, the mind or brain will be required if he is to have capacity to make the relevant decisions.”
The correct tribunal approach, he held, would have been to address the issues set out in para 33 which included the patient’s capacity:
a. to appoint a representative, whether his legal representative or his mother,
b. to give instructions to his representative on issues arising and decisions to be taken in the conduct of the application to the FtT and thus the challenge to his detention under s. 2 MHA (his capacity to conduct proceedings or his litigation capacity), and in that context:
i. to make and maintain decisions to remain in hospital on a voluntary basis,
ii. to make a decision whether to pursue or to withdraw the proceedings before the FtT,
iii. to consent to a deprivation of his liberty at the hospital for the purposes of his continued assessment, and so
iv. to sufficiently understand, retain and weigh the issues and factors relevant to those specific decisions including issues relating to where and with whom he should live and his support in the community.
Had such issues been addressed, Charles J held, it was likely to have shown a need to investigate and determine the patient’s capacity to (a) decide to continue or withdraw the application, (b) to agree to remaining in hospital on a voluntary basis and (c) to agree to a deprivation of liberty; the circumstances that led to his section and whether they continued and his risk of self harm on a return home; and (c) whether his care package in the community was or would be in place. Thus, the capacity issues “go well beyond the capacity to instruct a solicitor to challenge the section on all available arguable grounds” (para 58).
This decision ought to be read in conjunction with that in YA which identified the most important principles to take into account in the decision making process of the FfT in relation to those who (may) lack capacity in material domains. Although the Tribunal’s remit is limited by the Mental Health Act 1983 and associated Rules, it is clear – if ever there was a doubt – that to achieve its underlying purpose, “namely a practical and effective review of a deprivation of liberty in an appropriate timescale” (para 35), it cannot operate in isolation from the Mental Capacity Act 2005. The fact that tribunals may be required to investigate and determine a patient’s capacity to agree to a continued deprivation of liberty on the psychiatric ward is important; otherwise there is a risk of the tribunal discharging the patient into an unlawful detention. We suggest that this expansive interpretation of the Tribunal role is most welcome. Its detention and discharge decisions have significant human rights implications in terms of Articles 5 and 8 and it is, after all, a public body required not to act incompatibly with the ECHR.
Recognising the limits of a welfare deputy’s power with regards to withdrawing Article 5(4) challenges, in the absence of express powers conferred by the Court of Protection, is also important and welcome. It is well-recognised that the right to challenge detention must not be dependent upon the exercise of discretion by a third party (see AJ at para 35(6)). Although the Upper Tribunal was not required to adjudicate upon the same, it should be noted that a welfare deputy’s consent to a deprivation of liberty does not prevent it still being a deprivation requiring authorisation. Thus, if a person consents with capacity to their confinement they are not deprived. But if they appoint someone else to do so under awelfare LPA, or if the Court of Protection does so by way of a welfare deputyship, and that person consents they are still deprived of liberty. The question of the role of ‘consent’ in this regard is rising up the agenda, as can be seen from the further article by Jill Stavert on the Scottish Law Commission’s proposals as to how to close the “Bournewood gap” in Scotland, which appears to rely heavily on the exercise of consent by attorneys.
Finally, we note the concern Charles J expresses at paragraph 4 with regard to the lack of legal aid and his invitation to the Legal Aid Agency to factor and deal with the view of the judge giving permission to appeal that the case is a “guidance case”.