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Can an incapacitous patient still choose their solicitor?

Judge finds that patients feelings should always be taken into account.

SB was a 43-year old man admitted to the Maudsley hospital under S 3 of the MHA 1983. He had been administered 22 sessions of ECT, but had not appealed to a Tribunal by the end of his first period of detention. Consequently, the detaining hospital made a referral to the Mental Health Tribunal after the first six months of treatment had, elapsed and added an application to appoint a solicitor for SB under rule 11b on the grounds he lacked litigation capacity. The Tribunal granted the application and appointed ADJ Law Solicitors to act for SB via standard form MH6b on the 7th April 2019.

Three weeks later SB's mother (and nearest relative) helped him call the Tribunal to say that he wished Campbell-Taylor Solicitors, who had represented him previously, to represent him on this occasion. The Tribunal, in turn asked ADJ if they objected to a transfer of authority to Campbell-Taylor and they did, on the grounds that their appointment was under rule 11(b) and in their view, SB still lacked capacity.

Campbell-Taylor persisted and sent in a transfer of authority form signed by SB but also counter signed by his mother. The Tribunal adopted ADJ Law's grounds of refusing transfer and stated if there was a question of SB regaining capacity then a new capacity statement would be needed. As the tribunal was now imminent, Campbell-Taylor did not pursue the matter further, SB was not discharged at the Tribunal, but not long afterwards was discharged home to live with his mother.

However, Campbell-Taylor went on and appealed the decision stating that it was unlawful for the Tribunal to have refused to have rescinded the appointment on the grounds that the rule 11b appointed solicitor objected. They pointed out that they had represented the clients previously and on their visit to him had applied the lower test for capacity to instruct a solicitor in VS v St Andrew's Healthcare [2018] UKUT 250 (AAC) and as a result considered him capacitous. They also cited that both he and his Mother and Nearest Relative, and attorney for the purposes of s4(7) of the Mental Capacity Act (MCA) 2005 had signed the change of solicitor form and a failure to take into account the 'presumption of capacity in s 1(2) of the MCA 2005.

Judge Gledhill granted permission to appeal and after the document disclosure, another ground of appeal was formulated, and accepted. This arose from the original capacity report furnished by the detaining authority on the prescribed form MH3 and form MH6b a notification of the Tribunal's decision based on judicial authority delegated to Tribunal officers.

The appeal was allowed in part. Namely that the Form MH6b was defective as it did not contain the notice of the 14 day time-limit to challenge the Rule 11b appointment and this meant such an appointment was unlawful.

  • Further that the failure to notify the patient of a right of review under Rule 4(3) of the Tribunal rules was material and indicated a lack of due process.
  • There was a failure to accord the proper weight to the presumption of capacity in s 1(2) of the MCA 2005.
  • The Tribunal had failed to apply the lower test of capacity in either R on the Application of H v SSH UKHL or VS.
  • The Tribunal's grounds for refusing to accede to the patient's, that the rule 11(b) solicitor objected to the appointment was unlawful. Judge Weikley held that the Tribunal should have considered the patient's wishes and feelings and those of his mother and nearest relative and the Tribunal should have applied one of its' overriding objectives in Rule 2(2)(c) in ensuring as far as practicable that the parties are able to participate fully in the proceedings.
  • Therefore the Tribunal's hearing had been fundamentally unfair and therefore unlawful.

The Tribunal did not order discharge or remit the matter to another Tribunal as the SB had now been discharged and therefore the matter was academic.

This will be welcome news for patients and nearest relatives who should now have more of a say in Rule 11(b). It has long been recognised in the Court of Protection that those who may lack capacity to manage their affairs and need a Deputy, may nonetheless retain capacity to choose the Deputy's identity or their wishes and feelings in regard to this, should in any event be taken into account.

This will also be of some relief to those who practice in the Mental Health Tribunal who have faced delegated decisions from tribunal caseworkers who may not have sufficient legal training to properly consider. This case will highlight such situations and lead to better training and better decision making.

You can read the full judgement here: SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)

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