This Upper Tribunal case relates to the level of capacity a patient needs to bring proceedings before a mental health tribunal.
Mr S was detained under section. He was asked about his views on inpatient treatment with the help of an interpreter. Although he doesn’t have insight into his mental health problems, he demonstrated he did not want to remain in hospital and wanted to be discharged. When it was explained to him that the care team wanted him to remain in hospital he understood that the tribunal was a way of challenging his detention. The application was completed with the assistance of a Lithuanian speaking healthcare assistant. The patient signed the form and the application was submitted to the tribunal.
At the time the form was submitted Mr S was not represented and the tribunal appointed a legal representative under Rule 11. The solicitor was concerned about his capacity as he:
• told her that he wanted to be discharged to have a cigarette;
• could not understand that he was being held in hospital; and
• could not retain information about the purpose, procedure and powers of the tribunal.
A judge considered whether the application to the tribunal was valid and decided that the patient had enough capacity and that the application was valid. He thought that Mr S was expressing his concern about the restrictions placed on him and on that day it was the limitation on his freedom to smoke. He was able to understand that he was being held somewhere he didn’t want to be and had “repeatedly demonstrated” his unhappiness with that. The processes and powers of the Tribunal are not relevant information- only that he wanted to be discharged from the place he was being kept against his wishes and the only way of achieving that was via the tribunal.
His capacity was also considered on a further two separate occasions confirming that the patient had capacity to make an application. The patient was not discharged and the case was appealed to the Upper Tribunal which was considered on the papers.
It was confirmed that the test for bringing proceedings is lower than the test for conducting them. A patient must understand that they are being detained against their wishes and that the tribunal is a body that will be able to decide whether they should be released.
The Upper Tribunal also considered the solicitor’s application to withdraw the application as a side issue. The solicitor had argued that it was unlikely that the patient would be discharged and that it was in his best interests to withdraw. The tribunal did not consent to the application being withdrawn and the hearing took place. In the appeal, this was raised and it was confirmed that a Rule 11(7) solicitor appointed by the tribunal can make a request to withdraw the application if it’s in the best interests of the patient but that the tribunal does not have to give consent. The tribunal had a balancing act between the wishes of the patient to be discharged and the solicitor acting in his best interests. The tribunal was justified to make the decision it did in these circumstances.
The judgment also considered what should happen when a tribunal lacks jurisdiction. It was confirmed that it should strike out the proceedings under rule 8(3). It was suggested that if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law.
This case is good news as it confirms that there is a very low standard of capacity required for patients to make an application to the tribunal.
This could put legal representatives in a difficult position when they are under a duty to act in a patient’s best interests which may well be counter to the patient’s instructions. What is clear, however, is that it is for the tribunal acting in their judicial function to make the final decision.
The full judgment can be found here: http://www.bailii.org/uk/cases/UKUT/TCC/2018/250.html