Mental Capacity Case

The NHS Foundation Trust v KL

John McKendrick KC, sitting as Tier 3 Judge


In this case, HHJ Burrows addressed two questions in relating to ‘community DoL’ applications that have bubbled away for some time.  As he noted at paragraph 2:

The first is whether, in order to satisfy the requirement under Article 5§1(e), namely that P suffers from “unsoundness of mind”, the evidence upon which that conclusion is based has to say so in those terms? Secondly, whether the Court, either in its guise as a judge considering a COPDOL11 application on the papers, or via an application under the COP1 procedure, has to be in possession of evidence from a medical doctor?

As set out by HHJ Burrows, the decision came against a backdrop of considerable difficulty on the part of the applicant local authority obtaining the requisite evidence from GPs.  Some of their concerns related to the use of the term ‘unsound mind.’  Some of them were also concerned about their unwillingness to carry out an assessment they did not feel qualified to carry out.  As HHJ Burrows noted at paragraph 15:

If the letter in response was going to be used in any way as a mental health assessment it was thought they would need to have been section 12 approved doctors under the MHA’83. In fact, s.12 MHA approval is relevant only to the process of authorising detention within that Act, often referred to as “sectioning”. As the COPDOL11 form makes clear, s. 12 approval is not required for an assessment to be made in this process. Notwithstanding that, however, any clinician who does not consider themselves able to certify that a patient has a mental disorder or is “of unsound mind”, must not do so.

Further GP concerns were about the ‘medico-legal’ implications of putting their names to confirmations that a person is of unsound mind (HHJ Burrows, unfortunately, did not comment upon the validity or otherwise of this concern), and, finally, that none of the three forms of standard contracts under which GPs operate oblige them to provide medical evidence to public bodies for Court of Protection applications (he could also have added that GPs fall outside the scope of those to whom s.49 applications can be directed).

HHJ Burrows summarised his conclusions at paragraph 2 thus:

(1) In the context of applications to authorise a package of care, which inevitably results in P being deprived of his or her liberty, the Court must be satisfied that P suffers from unsoundness of mind. However, these words have no mystical powers; they are not an “open sesame” giving access to the Article 5 cave. They refer to a mental disorder. It is for the court to be satisfied that P is of unsound mind on the basis of the evidence before it. Provided that evidence satisfies the Court that P has a mental disorder, and subject of course to the other essential requirements also being satisfied, the Court may authorise detention.

(2) The European Court of Human Rights (ECtHR) jurisprudence is clear that “unsoundness of mind” has to be proved by those seeking to assert it on sound medical evidence. Usually that evidence will come from a medical doctor, generally a psychiatrist or General Practitioner. Whether, in appropriate circumstances that evidence could come from a psychologist, mental health nurse, or other similar specialist clinical expert may be a moot point. It is one I do not have to decide in this case. I simply direct that the Applicant needs to commission and instruct a registered medical doctor, either a psychiatrist or a GP, to review KB’s case and provide a report dealing with her diagnosis as well as whether that condition causes her to lack capacity to make relevant decisions, as well as the likely duration of that condition.

HHJ Burrows gave chapter and verse as to the reasoning underpinning his conclusions by reference to Strasbourg case-law, up to and including the Grand Chamber ‘restatement’ of the position in Rooman v Belgium [2019] ECHR 109, making clear that the key consideration was as to whether there was reliable evidence of mental disorder, rather than (for instance) the use by any clinician of the precise term ‘unsound mind.’   Further, as he put it at paragraph 31:

The word “medical” connotes that the evidence is of and pertaining to the science of medicine. It is clear to me that means a registered medical practitioner. There is no need to elaborate on that in this case. Here it means either a psychiatrist or a GP. Whether a wider net can be cast for other clinicians, such as clinical psychologists, learning disability nurses, or occupational therapists, may be a moot point. However, in this case the evidence needed is from a medical doctor.

One observation that might give readers pause is HHJ Burrows’s statement at paragraph 28 that [o]f course it is important to be clear… that the Court remembers that the mental disorder must be the cause of the mental incapacity,” as it could be read as suggesting that it is necessary for the capacity assessment to be carried out by a clinician.  This is undoubtedly not the case, because it is entirely possible for assessment of whether the person has capacity to consent to the arrangements giving rise to their confinement to be carried out (for instance) by a social worker; so long, in such a case, as there is medical evidence that the person does, indeed, have a mental disorder.

Further, although it is entirely understandable that HHJ Burrows did not wish to wade into the debate about how wide a definition can be given to the word ‘medical,’ it is perhaps to be regretted that he did not, as it was an issue causing considerable discussion in the context of the (now aborted) moves towards implementation of the Liberty Protection Safeguards.  We  would have been interested in his take (even obiter) on in a later paragraph – 130 – in Ilnseher v Germany to that cited in his judgment, where the European Court of Human Rights said:

As for the requirements to be met by an “objective medical expertise”, the Court considers in general that the national authorities are better placed than itself to evaluate the qualifications of the medical expert in question [,,,] However, in certain specific cases, it has considered it necessary for the medical experts in question to have a specific qualification, and has in particular required the assessment to be carried out by a psychiatric expert where the person confined as being “of unsound mind” had no history of mental disorders […] as well as, sometimes, the assessment to be made by an external expert […] (case citations omitted, emphasis added).