An Introduction to Mental Health Tribunals and the Court of Protection

Transcription

1 An Introduction to Mental Health Tribunals and the Court of Protection Ros Dunning Chris Stevenson 18 February 2015

2 Contents Introduction to the Speakers 3 An Introduction to Mental Health Tribunals 4 An Introduction to the Court of Protection 18 FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 2

3 Introduction Welcome Welcome to this evening s seminar in FOURTEEN s Meet the Players series at which practitioners speak, in an informal setting, to fellow practitioners about specialist areas of practice related to family law. We family lawyers frequently encounter questions of mental illness and cognitive capacity in our daily work but few of us have detailed knowledge of the discrete jurisdictions relating to Mental Health Review Tribunals and the Court of Protection. Ros Dunning will illuminate the mysteries of Mental Health Review Tribunals whilst Chris Stevenson will then take us on a tour of that secret garden known as the Court of Protection. Prepare to be enlightened! Edward Lloyd-Jones Chair Ros Dunning Ros is the managing partner of Dunning & Co. solicitors. She is a member of the Law Society s Mental Health Panel and, since 2002, a Mental Health Review Tribunal judge. Ros has been a member of the Law Society Children Panel since its inception. Chris Stevenson Called in 2009, Chris is a family law and Court of Protection barrister at FOURTEEN. His practice encompasses applications relating to personal welfare, including where there are issues around deprivation of liberty, and disputes in respect of property and financial affairs. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 3

4 An Introduction to Mental Health Tribunals Origins of current mental health legislation The Mental Health Act 1959 repeated all existing legislation dealing with mental illness and mental deficiency. Based on a Report of a Royal Commission following the European Convention on Human Rights. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants Article 5(e) Parties shall ensures that persons with disabilities on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that existence of a disability shall in no case justify a deprivation of liberty Article 14 The original principle of the 1959 Act was that no-one should be admitted to detention if care in the community would be more appropriate and, where admission was necessary, compulsion was to be a medical rather than judicial matter. The 1959 Act was later superseded by the Mental Health Act 1983, which consolidated a number of amendments to the 1959 Act, and this has itself been amended, notably by Mental Health Act Article 6 gives the right to a fair trial which includes the right to adversarial proceedings, the right to have a hearing within a reasonable time, the right to equality of arms, the right to know the grounds of which a decision is based, and access to information to bring a case effectively. Whist domestic courts enjoy a certain margin of appreciation when dealing with mentally ill persons, it should not be at the expense of a fair trial: see Shtukaturov v Russia (2012) M.H.L.R. 238 ECHR. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 4

5 The Mental Health Tribunal The Mental Health Tribunal is required to act in a way that is compatible with the ECHR. The Tribunal consists of a legal member, a medical member and a lay member (now called a specialist member) and must discharge if the criteria for detention under the 1983 Act are not met on the date of the Tribunal Hearing. It also has a discretion to discharge (which is only very rarely used). Criteria for detention Section 1(2) of 1983 Act defines mental disorder as any disorder or disability of mind (however, a person with a learning disability shall not be considered as requiring detention by reason of that disability unless disability is associated with abnormally aggressive or seriously irresponsible conduct on his part (Section 1(2A)). Also, Section 1(3) provides that dependence on drugs or alcohol is not to be considered a disorder or disability of the mind for the purposes of Section 1(2) (but excessive use of alcohol or of drugs can trigger a psychosis which comes within s.1(2)). Note: The 2007 Act abolished the four separate categories of mental disorder previously used in the 1983 Act, namely: mental illness; mental impairment; psychopathic disorder; and severe mental impairment. The intention was to make the single simple definition easier for clinicians to use. Note: In Re F (Mental Health Act Guardianship) [2000] 1 FLR 192 a restrictive construction was adopted towards the phrase seriously irresponsible conduct. A 17-year-old patient s desire to return home, albeit to an inadequate home where she had been exposed to chronic neglect and possible sexual exploitation, could not be categorised as irresponsible conduct. A person may be admitted to hospital and detained for a maximum period of 28 days for assessment (or assessment followed by treatment) on the grounds that: (a) he is suffering from mental disorder of a nature or degree which warrants his detention in hospital for at least a limited period; and (b) he ought to be so detained in the interests of his health, or his safety, or with a view to protection of other persons Section 2, Mental Health Act 1983 Note: as this section is for assessment, there will not necessarily yet be a firm diagnosis. Nature refers to the particular mental disorder, its chronicity, its prognosis, and the patient s previous response to receiving treatment. Thus on a first admission under section 2 it may be hard for the detaining authority to establish nature (although the lead up to the detention may involve characteristics of a long term chronic disorder becoming apparent). FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 5

6 Degree refers to the current manifestation of the Patient s disorder. Thus a transient drug induced psychosis which has resolved by the date of the Tribunal Hearing will probably not meet the criteria for continuing detention under Section 2. An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners Section 3(3), Mental Health Act 1983 Note: an application to the Tribunal of a Patient detained under Section 2 should reach the Tribunal Office at Leicester within 14 days of the date of detention and must be listed for hearing within 7 days of receipt of the application. However, the Department of Health does have discretion to refer an application which is out of time to the Tribunal Office in Leicester, who must then set a date for the hearing. They may, for example, do this where the Patient has completed the application within the 14-day period but the hospital has delayed in forwarding this on to the Office in Leicester. An application for admission for treatment may be made in respect of a Patient on the grounds that: (a) He is suffering from mental disorder of a nature or degree which makes it appropriate to receive medical treatment in a hospital; and (b) It is necessary for the health or safety of the Patient or for the protection of other persons that he receives such treatment and it cannot be provided unless he is detained under this section; and (c) appropriate treatment is available for him Section 3(2), Mental Health Act 1983 Note: Section 37, whereby the magistrates court or crown court can order admission and detention in hospital on the foregoing grounds on the written or oral evidence of two registered medical practitioners. The initial period of detention under Section 3 is for 6 months. It can be renewed for a further 6 months and then for 12 months (s.20(1)). FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 6

7 Where a Patient has been detained under Section 3 and subsequently leaves hospital, he is entitled to s.117 aftercare services (this can be important in the case of the elderly as it means Local Authority have to fund care). Aftercare services are not defined by the Act but have been held to include: (1) Social work; (2) Support in helping the ex patient with problems of: (a) employment; (b) accommodation; and (c) family relationships; (3) The provision of domiciliary services; and (4) The use of day centre and residential facilities. The focus of the Tribunal s inquiry into the mental health of the Patient is on whether he is then suffering from mental disorder, which refers to the time of the hearing of the Tribunal. The Tribunal has no power to consider the validity of the admission that gave rise to the liability to be detained: R v East London and The City Mental Health Trust, ex parte Brandenburg [2004] 1 All E.R Note that the nature criterion may be satisfied in respect of a well-known asymptomatic Patient who has indicated he is not prepared to take medication if discharged and who has a history of significant deterioration in his mental health after ceasing to take medication. A Patient whose symptoms of mental disorder are being controlled by medication still suffers from that disorder. Note in relation to word necessary that the test is one of necessity, not desirability : Reid v Secretary of State for Scotland [1999] 1 All E.R The Patient s mental as well as physical health is covered by the word health. In relation to safety, this is the Patient being exposed to the risk of being harmed, either through his own acts or omissions or through the acts or omissions of others for example, a patient given to wandering round the streets late at night wearing only her nightdress is putting her own safety at risk. Protection of other persons does not necessarily mean the public at large and can simply relate to an individual person: R v North West London Mental Health NHS Trust, ex parte Bradley [1990] 3 All E.R It is likely the harm can be psychological as well as physical but note an unborn child is not a person in need of protection, although the potential mother may be detained on the basis that she is putting her own health at risk: St George s Health Care NHS Trust v S [1998] 3 All E.R The risk of harm to other persons does not necessarily arise out of aggressive behaviour an insistence on driving a vehicle when it is not clinically indicated puts others at risk. Section 3(2)(d) replaces a previous requirement that treatment of certain categories of patients must be likely to alleviate or prevent a deterioration of his condition which was known as the Treatability Test This was believed to have led to a culture whereby certain groups of patients were declared untreatable and accordingly denied services. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 7

8 Appropriate medical treatment is not confined to medication it can consist of specialist nursing care however the policy of the Act is treatment not containment. Note: Re Ian Brady where Professor Eastman divided treatment into three different forms: Limb one is treatment of the patient s core disorder; limb two is giving the patient the skills necessary to cope with situations...limb three is management focussed on managing the patient s environment so that conflict in situations is minimised. Note: Appropriate treatment may be available even when the patient refuses to engage with it. In addition to sections 2, 3 and 37 there are various emergency powers of admission for assessment for a maximum of 72 hours sections 4 and 5, where the Patient is already in hospital. The Patient has no right to apply to a Tribunal within the 72-hour period only after the s.2 period starts. Under s.5(4) a nurse of a prescribed class has a holding power in respect of an informal patient for up to six hours during which period they should be examined by a medical practitioner. Note also s.136 relating to the power of a constable to remove a person who appears to be suffering from a mental disorder in a public place to remove a person to a place of safety (i.e. a hospital) where they may be detained for a maximum period of 72 hours. This power is available whether or not the person is suspected of having committed a criminal offence. Further under s.135 a JP can issue a warrant authorising a constable to enter a person s premises and remove him to a place of safety on the sworn evidence of an approved mental health professional for a maximum period of 72 hours. Section 17 (leave of absence) and Section 17A (Community Treatment Orders) Under Section 17 the Responsible Clinician can grant to any Patient detained in Hospital leave of absence subject to any necessary conditions. Leave can be indefinite or for a specified period (which may be extended). If for more than seven consecutive days, the Responsible Clinician should consider whether Community Treatment Order ( CTO ) would be more appropriate (s.17(2a)). Under Section 17A(1) the Responsible Clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall, however the relevant criteria for Section 3 must continue to be met (Section 17A(4)(a)). Treatment can be provided without his continuing to be detained subject to his being liable to be recalled (Section 17A(5)(c)) and the power of recall is necessary (Section 17A(4)(d)). An Approved Mental Health Professional also FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 8

9 needs to agree that a CTO is appropriate. A Patient who is subject to a CTO is referred to as a Community Patient. Only patients who are detained under Section 3 are eligible to be considered for a CTO. Patients on a CTO will be subject to conditions while living in the community. These will depend on individual circumstance but must be for the purpose of ensuring the patient receives medical treatment or to prevent risk of harm to the patient or others. The use of CTOs is not confined to patients who have a history of non compliance with medication the so called revolving door patients. Note: the use of Community Treatment Orders has been far more popular than was anticipated and they are also being repeatedly extended over longer periods than was initially envisaged. A patient who is subject to a CTO may be recalled to hospital pursuant to Section 17E if in the opinion of the Responsible Clinician: (a) The patient requires medical treatment in hospital for his mental disorder; and (b) There would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose. Also under Section 17E(2) a community patient may be recalled to hospital if he fails to comply with a condition of the CTO. The CTO may be revoked after recall to hospital under Section 17F(4). If the CTO is not revoked the patient must be released at the end of the period of 72 hours. Relatives and Nearest Relatives The definition of a relative is in Section 26 of the 1989 Act (as amended) as follows: (a) Husband or wife or civil partner (including a person who is living with the Patient as husband or wife or as if they were civil partners for at least six months (except in the case of a married Patient where Section 26(5)(b) does not apply); (b) Son or daughter; (c) Father or mother; (d) Brother or sister; (e) Grandparent; (f) Grandchild; (g) Uncle or aunt; (h) Nephew or niece. Note: any relation of the half blood should be treated as a relation of the whole blood and an illegitimate child shall be treated as the child of his mother and of his father if father has parental responsibility. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 9

10 Section 26(3) provides that the nearest relative means the person first described in Section 1 who is alive. Relatives of the whole blood are given preference and the eldest of two or more relatives in the same subsection are preferred to the others, regardless of sex. Section 26(4) provides that, where a patient ordinarily resides with or is cared for by one or more relatives, the nearest relative shall be determined by giving preference to that relative over others (as between two or more relatives in accordance with whichever is the older). Section 26(7) provides that a person who is not a relative with whom the Patient ordinarily resides and has done for at least the past 5 years is considered the nearest relative. Note: the nearest relative must be resident in the United Kingdom, Channel Islands or Isle of Man, must be over 18 (unless spouse or civil partner). A person is not considered to be a spouse or civil partner if there has been a permanent separation. A person may be a nearest relative if they are a cohabitant, provided that there has been cohabitation for six months or more: Section 26(5)(b). The nearest relative plays an important role. He may make an application for assessment (s.2) emergency admission (s.4) or treatment (s.3). No application for s.3 can be made without consulting the nearest relative unless such consultation is not reasonably practicable or would cause unnecessary delay. The nearest relative may order discharge of a patient (but may be barred) and may apply to a Tribunal. Section 25(1): in order to discharge a patient, the nearest relative must give at least 72 hours notice in writing to the managers of the hospital. The Responsible Clinician may then send a report to the managers certifying that, in his/her opinion, the patient, if discharged, would be likely to act in a manner dangerous to other persons or himself (a barring report ). Dangerousness has been equated to a propensity to cause serious physical injury or lasting psychological harm. Note: a nearest relative may appoint another person in writing to perform the functions of the nearest relative. Note: where a child is subject to a Care Order, the Local Authority is the nearest relative. Where a child is the subject of a Special Guardianship Order, the Special Guardian is the nearest relative. Pursuant to Section 29(1) the County Court may direct the functions of the nearest relative shall be exercisable by some other person: Section 29(2) provides that the application can be made by: (za) The patient; (a) Any relative; (b) Any other person with whom the patient is residing; or (c) An approved mental health professional. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 10

11 Such an application can be made on the following grounds: (a) The Patient has no nearest relative within the meaning of the Act; (b) The nearest relative is incapable of acting by way of mental disorder or other illness; (c) The nearest relative unreasonably objects to admission for treatment; (d) The nearest relative exercised power to discharge without regard for the welfare of the Patient; or (e) The nearest relative is otherwise not suitable to act as such. The case of JT v United Kingdom (2000) 30 E.H.R.R. resulted in a patient being given the right to apply to displace a nearest relative on grounds of unsuitability. This should not be merely on the basis of a disagreement but where the nearest relative poses a real and present danger to the health and wellbeing of a patient (e.g. where abuse has occurred). However, in most cases it will be preferable to persuade an approved mental health professional such as the care coordinator to make the application as the power dynamics arising from an abusive relationship may make it very difficult for the Patient to have to face the abuser in court. Mental Health Tribunals In the Report of his Review of Tribunals, Tribunals for Users One System, One Service, it was recommended that tribunals should be brought together in a single system. The 2007 Act creates two new generic tribunals: the First Tier Tribunal and the Upper Tribunal, into which existing tribunal systems were transferred. The 2007 Act also provides for the establishment of chambers. The Mental Health Tribunal is within Health, Education and Social Welfare Chamber. The First Tier Tribunal has powers to review its decision, to correct accidental errors, amend reasons or set aside the decision. If a decision is made to set aside, the matter must either be referred for another Tribunal hearing or referred to the Upper Chamber, which will re-decide the matter. The Tribunal is obliged to follow the Tribunal Rules or, where the Rules are silent, follow the rules of natural justice, i.e. act in a fair and unbiased way and provide an opportunity for each part to state its case. Tribunal procedure has been described as inquisitional not adversarial or to a significant extent inquisitorial. Its function is to review the justification for the patient s continued detention, guardianship or supervised community treatment at the time of the hearing. Note: the Tribunal has no power to consider the validity of the original decision to detain. Further the Tribunal s jurisdiction does not extend to issues relating to the propriety of a particular form of treatment. Note: in relation to issues relating to whether a particular Tribunal is biased, the test is whether a fair-minded and informed observer, having taken into account the facts of the case, would say there was a real possibility of bias. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 11

12 Section 66 identifies the occasions when the Patient or Nearest Relative has the right to apply for a Tribunal hearing. Note: a displaced nearest relative can apply for a Tribunal hearing. One who has not been displaced might consider powers of discharge as an alternative to a Tribunal Hearing. Section 68: Hospital Managers have a duty to refer detained patients and community patients on the expiry of six months from admission or making of a CTO unless the Patient has exercised the right to apply to apply for a Tribunal hearing and not withdrawn. If a CTO has been revoked, hospital managers must also refer. The purpose of the referral system is to ensure that patients who lack the ability or initiative to make an application to the Tribunal have the safeguard of an independent review of their case. Note: such patients frequently lack capacity, requiring a solicitor to be appointed pursuant to Rule 11. Section 72(1) provides a Tribunal must discharge if the criteria for detention or Community Treatment Order are not met on the day of the hearing (if the application is from nearest relative, the dangerousness criteria must also be met). If a patient detained because of a learning disability, the abnormally aggressive or seriously irresponsible behaviour criteria must also be met. Note: Section 72(1) includes a discretionary power to discharge even where the criteria for continuing detention are met this is only used very rarely in practice. Section 72(1A) provides that the Tribunal shall, in particular, consider, having regard to the patient s history of mental disorder and any other relevant factors, what risk there would be of a deterioration in the patient s condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder). Note: R (on the application of H) v Mental Health Review Tribunal, North and East London Region [2001] M.H.L.R. 48: Sections 72(1) and 73(1) of the 1983 Act were ruled incompatible with the Human Rights Act 1998 in that the burden was placed on the Patient to prove the criteria justifying his detention in hospital no longer existed. In order to remove the incompatibility, the Mental Health Act 1983 (Remedial) Order 2001 was enacted to amend the sections in question so that burden of proof clearly lies with the detaining authority. Note: there is no requirement under Article 5 that detention must be proportionate Article 5 protects against arbitrary detention it does not incorporate any additional requirement of proportionality. Section 72(3) provides that a Tribunal may direct the discharge of a patient at a future date specified in the direction. This provision can be used to enable preparations to be made to receive a patient back into the community, e.g. by holding a discharge meeting and putting necessary supports in place. There is FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 12

13 no power for the Tribunal to reconsider the deferment if circumstances show that what is required to provide after care services cannot be put in place. Note: R (on the application of Ashworth Hospital Authority) v MHRT for West Midlands and North West Regions [2002] M.H.L.R. 13: If there is uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends the tribunal should adjourn to enable them to be put in place, indicating their views and giving appropriate directions Note: Johnson v United Kingdom (1999) 27 E.H.R.R. 296: a deferred discharge would be in danger of violating Article 5(1)(e) of the ECHR if the delay between the decision to discharge and the date of discharge was excessive. Section 72(3)(a) also gives Tribunals power to make formal recommendations with a view to facilitating his discharge on a future date, the Tribunal can recommend the patient be granted leave of absence or transferred to another hospital or into guardianship. Paragraph (b) gives the Tribunal the power to reconvene if its recommendation not complied with. Section 72(3A) gives power to the Tribunal to recommend that the Responsible Clinician consider whether to make a Community Treatment Order. The Tribunal will set a time limit at the expiration of which it will reconsider the case. If it reconvenes, it has all the powers it had at the original hearing. Note: a recommendation for transfer to another hospital has to be with a view to facilitating the patient s discharge at a future date. There is no power to recommend transfer to a hospital more convenient to his family: R (on the application of H) v Mental Health Review Tribunal [2002] M.H.L.R The Tribunal should give reasons for making such a recommendation and for exercising its discretion not to reconvene. Tribunal Procedure (First Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 Rule 2 sets out the Overriding Objective and the parties obligation to cooperate with the Tribunal to enable the Tribunal to deal with issues justly and fairly, which includes: (a) (b) Dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs, and the resources of the parties; Avoiding unnecessary formality and seeking flexibility in the proceedings; FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 13

14 (c) (d) (e) Ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings; Using any special expertise of the Tribunal effectively; and Avoiding delay, so far as is compatible with proper consideration of the issues Parties are required to help the Tribunal to further the Overriding Objective they are required to cooperate and liaise with each other concerning procedural matters, particularly when parties have legal representation. An aggressive confrontational style of advocacy is generally not helpful. Note: Tribunals must avoid unnecessary formality but have to hear evidence in an organised fashion, discouraging interruptions (which may come from parties other than the patient!). It should not be assumed that the Patient wants to be referred to by his first name. Given that the burden of proof is with the Patient, he will normally give his evidence last however, he may prefer to go first and Tribunals should be flexible in allowing this. Evidence Rules of evidence are relaxed and most Tribunals will permit the Patient s representative to engage in a certain amount of leading in order to help the Patient give his evidence in chief. Note: the nearest relative may attend in the capacity of a witness on behalf of the Patient but may wish to express differing views or may be attending purely to give support and may not wish to speak at all. Many relatives do stay away because they know that anything they say will be contrary to the Patient s views. Even if the relative s view does not entirely accord with that of the Patient, attendance can be helpful as it indicates that the Patient has the support of his family. Adjournments The power to adjourn must be exercised judicially and in accordance with the Overriding Objective. The requirement in article 5(4) of ECHR for a speedy decision must also be borne in mind. Brief reasons should be given for a decision to adjourn. Note: it is unlawful to adjourn to see whether patient s health improves: R v Nottinghamshire Mental Health review Tribunal Ex p Secretary of State for the Home Department The Times, October 12 CA Representatives Rule 11(7) provides that, in a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where: (a) The patient has stated they do not wish to conduct their own case or that they wish to be represented; or FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 14

15 (b) The patient lacks the capacity to appoint a representative but the Tribunal believes it is in the patient s best interests for him to be represented. Note: a capacitous patient is not required to appoint a representative. Note: where a solicitor is appointed under Rule 11(7)(b), the patient may still, in some cases, be able to give valid instructions in relation to aspects of his case. In the absence of the patient s capacity to give valid instructions, the solicitor will advance any argument he or she considers to be in the patient s best interests, which will not necessarily involve arguing for the patient s discharge. Note: in all cases, but in particular when acting for a patient who lacks capacity, a solicitor must be clear who their client is. A solicitor should not take instructions from a relative where these appear to run counter to the best interests of such a patient. There are sometimes cases where patients have been abused, neglected or exploited in a family setting and it will not be in their interests to return there. Disclosure According to Rule 14(2): (a) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and (b) The Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction. Reasons for requesting a Tribunal to exclude a document must be provided. An excluded document can be disclosed to a legal representative provided they do not disclose it further without the Tribunal s consent. Note: Roberts v Nottinghamshire Healthcare NHS Trust [2008] M.H.L.R. although a party has a right to a fair trial under Article 6, that does not mean he or she has an absolute or unqualified right to see every document. Admissibility of evidence Rule 15 deals with evidence. Under Rule 15(2) (a) The Tribunal may admit evidence whether or not (a) The evidence would be admissible in a civil trial in England and Wales; or (b) The evidence was available to a previous decision maker. Note: R on the application of DJ v Mental Health Tribunal [2005] M.H.L.R. 56: If the Tribunal is relying on hearsay evidence it must take into account the fact that it is hearsay and must have regard to the particular dangers of relying on second, third or fourth hand hearsay the Tribunal must guard against too quickly jumping to conclusions adverse to the patient in relation to past events where the only direct evidence is that of the FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 15

16 patient himself, particularly where there is no clear account in contemporaneous notes of what is alleged to have happened Note: frequently, when serious allegations are made as to incidents which have happened when the patient was in the community, eyewitnesses are not present at the Tribunal hearing. It is helpful if there has been a conviction, or at least a caution, but the CPS often do not prosecute even where there have been quite serious assaults. Medical Examination of the Patient Rule 34(1) provides that an appropriate member of the Tribunal (the medical member) must, so far as is practicable, examine the patient in order to form an opinion of the Patient s mental condition and may do so in private. Note: as amended this rule only applies to patients detained under Section 2 (unless the patient does not wish it) and to other cases where the patient or patient s representative has given not less than 14 days notice in writing. Note: if the patient completely fails to attend the hearing, the Tribunal doctor shall interview the patient on the ward before the hearing unless such an interview is impractical or unnecessary. R (on the application of RD) v MHRT [2007] EWHC 781 (Admin): The medical member must appreciate that he performs a dual role at the tribunal as a fact finder and a decision maker...his opinion of the patient s mental condition... should be disclosed to the patient and his representative at the outset of the hearing. Public and private hearings Rule 38(1) provides that all hearings must be held in private unless the Tribunal considers it is in the interests of justice for the hearing to be held in public. The overwhelming majority of hearings are held in private. Rule 38(4) states that the Tribunal may give a direction excluding from any hearing, or part of it: (a) Any person whose conduct the Tribunal considers is disrupting or is likely to disrupt the hearing; (b) Any person whose presence the Tribunal considers is likely to prevent another person from giving evidence or making submissions freely; (c) Any person who the Tribunal considers should be excluded in order to give effect to a direction under rule 14(2) (withholding evidence likely to cause harm); or (d) Any person where the purpose of the hearing would be defeated by the attendance of that person. Note: Rule 33(c) provides that notice of the proceedings should be given, subject to a patient with capacity requesting otherwise, where any person other than the applicant is named by the authority as exercising the functions of the nearest FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 16

17 relative, to that person. However the nearest relative can subsequently be excluded from the hearing if disruptive or if one of the other grounds is satisfied. Decisions Rule 41(1) provides that the Tribunal may give a decision orally at a hearing. Note: it is good practice for Tribunals to give decisions orally. However, the giving of the decision is often the most dangerous point of a hearing in the case of a patient who has a propensity to be violent. If the Tribunal feels there is a risk of disruptive behaviour, they may give their decision on the ward where nursing back-up is available or they may give it to the Patient s representative without the Patient being present. It is important to be alive to this possibility if the Tribunal decides to exclude the Patient from the giving of the decision, they normally have a good reason for doing this. Rule 41 also provides for written reasons to be given for the Tribunal s decision within 3 working days for Section 2 cases or 7 days in respect of any other hearing. Note: a number of decisions are set aside and a re-hearing ordered because of inadequate reasons. In MS v N E London Foundation Trust [2013], it was stated that the written reasons should state what facts the Tribunal found, explain how and why the Tribunal made such findings and show how the Tribunal applied the law to those facts. R (on the application of H) v Ashworth Hospital Authority [2002] M.H.L.R. 314 states that a judge should provide an explanation as to why he has accepted the evidence of one expert and rejected that of another...whatever the explanation may be it should be apparent from the judgment. R (on the application of Epsom & St Helier NHS Trust v MHRT [2001] M.H.L.R. states that the reasons must be read as a whole, in a common sense way, not as a legal treatise. In AS v First tier Tribunal Upper Tribunal Case No. JR/3048/2012 it was stated that reasons must be adequate to ensure that the parties, especially the party whose case has not been accepted, know why the Tribunal made the decision it did; and an appeal court can judge whether the Tribunal has made an error of law. Ros Dunning February 2015 FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 17

18 An Introduction to the Court of Protection The Mental Capacity Act 2005 is a vitally important piece of legislation, and one that will make a real difference to the lives of people who may lack mental capacity. It will empower people to make decisions for themselves wherever possible, and protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision-making process. It will ensure that they participate as much as possible in any decisions made on their behalf, and that these are made in their best interests. It also allows people to plan ahead for a time in the future when they might lack the capacity, for any number of reasons, to make decisions for themselves Lord Falconer, 23 April 2007 Foreword to the Mental Capacity Act 2005 Code of Practice The nature of the Mental Capacity Act The principles (1) The following principles apply for the purposes of this Act (2) A person must be assumed to have capacity unless it is established that he lacks capacity (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person s rights and freedom of action FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 18

19 The Act is therefore designed to: (a) Empower P; (b) Protect P s rights; and (c) Put P at the centre of any decisions to be made. In the event that P lacks capacity, the Court may either appoint someone (a Deputy ) to make decisions on his or her behalf in relation to the matter or matters or may make decisions on P s behalf by making an order (s.16(2) MCA 2005). That said, a decision made by the Court is to be preferred to the appointment of a Deputy and, if a Deputy is to be appointed, then the powers conferred on him or her should be as limited in scope and duration as is reasonably practicable in the circumstances (s.16(4) MCA). Mental capacity 2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain (2) It does not matter whether the impairment or disturbance is permanent or temporary (3) A lack of capacity cannot be established merely by reference to- (a) A person s age or appearance; or (b) A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities (5) No power which a person ( D ) may exercise under this Act (a) In relation to a person who lacks capacity; or (b) Where D reasonably thinks that a person lacks capacity; is exercisable in relation to a person under 16 When assessing capacity, the Court will consider a number of factors, set out in s.3(1) MCA 2005: FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 19

20 (a) P s ability to understand information relevant to the decision/act. In ascertaining P s ability to understand, the Court will consider whether P is able to understand the information if it is delivered in a way that is appropriate to his or her circumstances, including if this is done by using simple language, visual aids or other means (s.3(2)). The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision (s.3(4)); (b) P s ability to retain the information. If P is able to retain the information for only a short period, this does not necessarily prevent him or her from being regarded as able to make the decision (s.3(3)). The question is whether P is able to retain the information for long enough to make the decision; (c) P s ability to use or weigh that information as part of the process of making the decision. The issue here is whether P is able to weigh all relevant information in the balance and use the information to arrive at a decision. The provision of advice and support, or even some degree of constraint, is permissible to assist in this process: V v R [2011] EWHC 822 (QB); and (d) P s ability to communicate his decision. The Court will look at P s ability to communicate the decision by any means. Communicating by blinking one eye can be sufficient to indicate capacity: Re AK (Adult Patient) (Medical Treatment Consent) [2011] EWHC 2443 (Fam). Capacity is ordinarily assessed by medical professionals, but can also be considered and assessed by social workers. Ultimately, the question as to whether P lacks capacity is a matter for the Court to determine on the balance of probabilities. The Court may make a declaration as to capacity pursuant to s.15 MCA At an interim stage of proceedings, however, the Court will consider whether there is reason to believe that P lacks capacity under s.48 MCA This obviates the need, at an interim stage, to make a specific finding that P lacks capacity. What is required, in my judgment, is simply sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard. There are various phrases which might be used to describe this, such as "good reason to believe" or "serious cause for concern" or "a real possibility" that P lacks capacity, but the concept behind each of them is the same, and is really quite easily recognised Re F (by her litigation friend) (ex parte) [2009] EWHC B30 (Fam) per HHJ Marshall QC at paragraph 36 FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 20

21 Section 48 might be considered, at first glance, to undermine the principles underpinning the Mental Capacity Act and the intention for the Court of Protection to intervene only where it needs to, and not to intervene so as to promote a person s autonomy. The proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P's affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P's right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where capacity itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined. Re F per HHJ Marshall QC at paragraph 44 Best interests Irrespective of whether the decision that the Court is being asked to determine relates to P s personal welfare or her property and financial affairs, the guiding principles that govern any decision made by the Court of Protection are found in s.4 of the MCA (1) In determining for the purposes of this act what is in a person s best interests, the person making the determination must not make it merely on the basis of - (a) (b) The person s age or appearance; or A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests; (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps: (3) He must consider FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 21

22 (a) (b) Whether it is likely that the person will at some time have capacity in relation to the matter in question; and If it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability too participate, as fully as possible in any act done for him and any decision affecting him. (5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, by motivated by a desire to bring about his death. (6) He must consider, so far as is reasonably ascertainable (a) The person s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); (b) The beliefs and values that would be likely too influence his decision if he had capacity; (c) The other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of (a) Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind; (b) Anyone engaged in caring for the person or interested in his welfare; (c) Any donee of a lasting power of attorney granted by the person; and (d) Any deputy appointed for the person by the Court, as to what would be in the person s best interests and, in particular, as to the matters mentioned in subsection (6) (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which (a) Are exercisable under a lasting power of attorney; or (b) Are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. Not all of the factors in the checklist will be relevant to all types of decisions or applications before the Court of Protection but they must still be considered, even if it is only to discount them, in order to comply with the analysis. All of the factors are of equal value although some may be of magnetic importance e.g. in an application for the execution of a statutory will, the existence of a draft will might be such a factor. FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 22

23 As is suggested by s.1(4) MCA 2005, best interests is not a test of 'substituted judgement' (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person's best interests." This is confirmed by the Code of Practice at paragraph 5.38 W v M & Others [2011] EWHC 2443 (Fam) per Baker J at paragraph 81 So far as they are ascertainable, P s wishes and feelings, including beliefs and values, must be taken into account fully, even if P ultimately cannot make the decision for herself. That said, wishes and feelings are just one aspect of the Court s assessment and the final decision must be based entirely on what is in P s best interests. When considering the weight to be attached to P s ascertainable wishes and feelings, guidance can be found in the case of Re S and S (Protected Persons) [2008] EWHC B16 (Fam): As to how this will work in practice, in my judgment, where P can and does express a wish or view which is not irrational (in the sense of being a wish which a person with full capacity might reasonably have), is not impracticable as far as its physical implementation is concerned, and is not irresponsible having regard to the extent of P's resources (ie whether a responsible person of full capacity who had such resources might reasonably consider it worth using the necessary resources to implement his wish) then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this. Per HHJ Marshall QC at Paragraph 57 Munby J (as he then was) gave further consideration to this issue in the case of In Re M [2010] 3 All ER 682 at Paragraph 35: I venture, however, to add the following observations. (i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM (an adult), A Local Authority v MM [2008] 3 FCR 788 at [121]-[124]. (ii) Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's FOURTEEN An Introduction to Mental Health Review Tribunals and the Court of Protection 23