for better mental health

DA v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 348 (AAC)

The patient DA was detained under section 3 of the Mental Health Act (MHA) and applied for a tribunal. Before her hearing she was discharged from hospital onto a community treatment order (CTO).

She requested a pre hearing medical examination (PHE) which was arranged for the day of the hearing. She had a legal representative who told her about the date of the hearing and arrived on the day to represent her.

DA did not turn up on the day and her representative tried contacting her several times but could not reach her. Her representative applied to have the hearing adjourned because she did not have instructions especially as there were new reports that the patient may not have seen.

The tribunal refused the application because the patient knew the details of the hearing, it had already been adjourned once and they were concerned about the potential cost and delay if it was adjourned again. There was no indication that the patient wanted to withdraw and that the content of the new reports was the same as the other reports.

The representative told the panel that she could not represent the patient and left the hearing. The tribunal continued without the patient and representative. Having heard evidence from the professionals, the tribunal decided not to discharge her from the CTO.

The representative appealed the decision on the following grounds;

  1. The tribunal had not considered making an appointment under rule 11(7)(b) of the Tribunal Procedure Rules considering whether the patient lacked capacity to appoint a solicitor;
  2. The tribunal did not consider whether a PHE has been carried out, is impractical or unnecessary when deciding whether the hearing should go ahead in the patient's absence;
  3. The reasons do not explain that the representative was not in attendance and why the tribunal proceeded without her; and
  4. The tribunal breached the patient's human right to a fair trial and right to respect for her private and family life.

The decision

The appeal failed on the first ground. The patient had appointed a representative and there was nothing in the reports to suggest that she lacked capacity so the presumption is that she had capacity to make decisions about her tribunal.

When deciding whether to hear the case without the patient, the tribunal considered rule 39(1) that they are satisfied that she was notified of the hearing or reasonable steps had been taken to notify her, and whether it was in the interests of justice to proceed with the hearing.

The tribunal also referred to rule 39(2)(a) (whether the patient had decided not to attend the hearing or was unable to attend the hearing for reasons of ill health) but not rule 39(2)(b) (whether a rule 34 medical examination of the patient been carried out or was impractical or unnecessary).

It was more likely than not that the tribunal decided it was impractical to carry out an examination but they did not refer to it in the decision so it is unclear from the reasons. This on its own would not make the decision inadequate.

When the solicitor left, the tribunal should have made a fresh assessment under rule 39 to decide whether to proceed without both patient and representative. The reasons did not refer to the representative leaving or whether the tribunal made a fresh assessment. Even if they did do an assessment but didn't refer to it, it is enough to render the decision inadequate as it doesn't explain the reasons about how they made their decision and whether it complies with the law.

The Upper Tribunal then referred the case back to the mental health tribunal with a different panel to hear the case again.

Comment

Mind welcomes this decision. We recognise the pressure that Judges are under to minimise delays and wasted costs but it is important to not lose sight of the reasons that these hearings take place. The Mental Health Act is draconian - it can restrict people's liberty even though they haven't committed a crime and force treatment on those who have the mental capacity to refuse it.

We have long campaigned for the right to have regular access to the mental health tribunal. Restricting someone's liberty requires the highest scrutiny of decisions to detain and the tribunal is an important procedural safeguard which should not be under-estimated.

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