SM v Livewell Southwest CIC
In an unusual split decision in the Upper Tribunal (Administrative Appeals Chamber), the question of the capacity that a patient requires to bring an application to the Mental Health Tribunal (strictly the First-Tier Tribunal (HESC) was reconsidered. In particular, the question was whether the decision in VS v St Andrew's Healthcare  UKUT 250; remained good law. That decision set the test as a two part-one: does the applicant understand that she is detained; and does she understand that the Tribunal has power to discharge her?
The majority (Nicol J and UTJ Ward) held that the decision did remain good law, their reasons for so doing being set out at paragraph 77.
(a) We repeat that the present legislative structure does not include an automatic referral to the Tribunal to test the legality of the patient's detention. In MH v UK the Strasbourg Court rejected the proposition that such an automatic referral was required by Article 5(4) of the ECHR.
(b) Instead the system chosen by our legislature depends in the first place on there being an 'application' to the Tribunal.
(c) It is the case, as we have said, that there is no express requirement for the person who makes such an application to have capacity. However, we draw no conclusion from this. It is entirely unsurprising that that sort of matter should have been left to implication.
(d) The making of an application has consequences. Only one application under s.66(1)(a) can be made. Under s.66(1)(b) only one application can be made every 6 months. We consider it sensible and appropriate that there should be some test of capacity for an 'application' to have those consequences.
(e) The test of capacity in VS is deliberately couched at a low level. That is consistent with what Lady Hale in H (at ) described as the 'very limited capacity required to make an application'. As Judge Jacobs said, it would not be appropriate for the test as to capacity to initiate an application to be the same as the test of capacity to conduct the application. That would be too demanding. It would also, as Judge Jacobs also said, (though rather more diplomatically) make a nonsense of the power to appoint a representative for a patient who became incapacitated after starting the application.
(f) It may be thought that those who have been subjected to detention under the MHA 1983 will be more likely, because of their mental ill health to lack capacity. That may be, but plainly there is not an automatic equation between the two.
(g) Measures have been taken to assist patients who are detained so that they do have sufficient understanding of what is involved to make an application. (As Judge Dumont observed in granting permission to appeal, the government's response to the judgment in MH v UK drew attention to the provisions for IMHAs in the Mental Health Act 2007). Notably these include the mandatory explanation of rights under MHA 1983 s.132 and the assistance which can be (and was in the present case) offered by an IMHA.
(h) However, Parliament has stopped short of giving an IMHA the power to make an application to the Tribunal on behalf of an incapacitated patient. That omission must have been deliberate. The difficulty faced by an incapacitated patient was apparent from the MH litigation (which had reached the House of Lords, if not the Strasbourg Court, by the time the Mental Health Bill 2007 was before Parliament) and the 2007 Act did specifically address the issue of incapacitated patients in other respects (see, for instance MHA 1983 s.130B(4) and s.130C(4A)). We note that Modernising the Mental Health Act: increasing choice, reducing compulsion: the Final Report of the independent review of the Mental Health Act 1983 (2018) p.124 recommended giving IMHAs such a power, but so far that legislative change has not yet been made.
(i) In the present case there was the added complication of the Appellant's pregnancy. In our view the F-tT gave perfectly rational reasons why it decided against adjourning the hearing to see whether it could hear evidence from Mr Houghton, the Appellant's IMHA.
(j) We agree with Mr Allen that the legislation does distinguish between 'wishes' (which may, for instance, include a wish to leave the hospital) and decisions. We also agree that the relevant decision in the present case was the decision to make an application to the Tribunal. We cannot see how the test for capacity to make that decision could be less than Judge Jacobs analysed in VS.
(k) In our view the test for capacity to make an application under s.66(1)(a) (where the issue will be whether the patient could be detained under MHA 1983 s.2) must be the same as the test for capacity under s.66(1)(b) (where the issue will be whether the patient could be detained for treatment under MHA 1983 s.3). After all, in both paragraphs the legislation refers to 'an application' and, in accordance with the usual canons of statutory interpretation, one would expect Parliament to have intended that the same word had the same meaning in the two paragraphs.
(l) There are alternative ways by which the Tribunal can have jurisdiction to determine the legality of detention. Notably, there is the Secretary of State's power to make a reference under MHA 1983 s.67. In the present case no one raised that possibility with the Secretary of State. We will return to that topic when we turn to Judge Dumont's third indent.
(m) The legislative scheme with which we are concerned has significant differences to that which governs situations where it is thought necessary to deprive someone of their liberty. Both situations may involve people with mental ill health, but the legislative structures differ. Thus, there is scope for the legality of detention to be reviewed by the Court of Protection. Such a review may be triggered by the person concerned, but it may also be initiated by the 'Relevant Person's Representative' -see Mental Capacity Act 2005 Schedule 1A paragraph 102(3)(b). We respectfully do not consider that the second of the two limbs of para.86(1) of RD can bear the weight Judge Johnston seeks to place on it; it is discussing what the position is where the patient does not have capacity, rather than indicating when she should be taken to have it, and is a reflection of the existence of the role of Relevant Person's Representative with its attendant responsibilities. Because of these differences, we have not found the analogy with the situation in the Court of Protection to be particularly helpful.
Deputy Chamber President Sarah Johnston (i.e. the judicial head of the Mental Health Tribunal in England) was in the minority, holding that VS sets the bar too high in requiring an understanding that the FtT has power to discharge the patient. She observed in so doing that:
120. It is hard to countenance that the law would operate to deny the opportunity for a hearing to a patient with a mental disorder who is waiting outside the Tribunal and is ready to participate. Justice would not be served.
121. In my view striking out an application on the formal basis that the patient does not understand the Tribunal is a body who can discharge the applicant is not in keeping with the application of the overriding objective. There would be a duty to strike out an application if it was not properly made, for example, if the patient had already made an application in the specified period, or if it was an application made for detention under the wrong section. Even in the latter case it is the Tribunal's practice to ask for an amended application to be made to facilitate access to justice. It would not justify the striking out of M's application were it not for the test in VS. If the test is "I want to be free to leave" and the only avenue for this is an application to the Tribunal, striking out the case is not in accordance with the overriding objective.
At paragraph 86, the UT also set out a useful summary of the procedure that should be followed
(a) Wherever possible the applicant and her representatives should be alerted that her capacity to make the application may be an issue. […]
(b) If the Tribunal considers that the applicant's capacity has fluctuated and, while she did not have capacity at the time of the application, she does have capacity at the time of the hearing, the Tribunal should consider inviting the applicant to make a fresh application, abridging any of the procedural obligations and proceeding to consider the substance of the application. […]
(c) Otherwise, the F-tT was correct that what matters is whether the applicant had capacity at the time the application was made. Making a decision as to that issue may be difficult, but it is no different from the task that courts and tribunals are regularly called to make about events in the past.
In terms of referrals to the Secretary of State, the mechanism by which patients who lack capacity to apply can nonetheless have their situation considered, the UT noted at paragraph 88:
(a) The Code says that hospital managers should raise this possibility with the Secretary of State if, among other reasons, the patient lacks capacity to do so herself.
(b) However, the Code also says that anyone can make such a suggestion to the Secretary of State. The IMHA who will have seen the patient and had the opportunity to assess their wishes would be well suited to make the suggestion to the Secretary of State, if the IMHA considered that the patient wished to leave but lacked capacity to make an application to the Tribunal.
(c) A third possibility would be the Tribunal itself. In a case, such as the present, where the Tribunal had found (a) that the patient lacked capacity, but (b) wished to leave the hospital, it would have been very sensible for the Tribunal to have done so.
(d) Indeed, in other cases (uncomplicated by the patient's pregnancy and imminent confinement in this case) a combination of these factors may well lead the Tribunal to consider whether, before striking out the application, it would be sensible to adjourn for a short period to see if the Secretary of State wished to make a reference so that the Tribunal could consider as expeditiously as possible whether the statutory conditions for detention were made out
It is perhaps striking that the judicial head of the Mental Health Tribunal took a different, and more expansive, view of Article 5(4) than did the majority. It is perhaps also to be hoped that in due course some of the issues that arose here will fall away if, as the Review of the Mental Health Act proposed, IMHAs could be empowered (in a similar fashion to RPRs under DoLS) to bring applications on behalf of patients who lack capacity, rather than having to go the round-the-houses route of bringing about a referral to the Secretary of State and then, in turn, to the Tribunal.
 Note, Neil having been involved in the case, he has not contributed to this summary.