The Law Society has recently updated its guidance on representation before Mental Health Tribunals. This is required reading for anyone practising in this area. The Practice Note attempts to addresses the difficult balance faced by those representing detained patients lacking capacity to appoint their representatives, between giving effect to the patient's article 5 rights and acting in the interests of the patient. The Practice Note has adopted the guidance given by Charles J in YA v CNWL NHS Trust and others on dealing with conflicts between what a patient lacking capacity wants and what my be in their best interests. The Practice Note also advises practitioners about Care and Treatment Reviews, introduced as part of "Transforming Care", with a view to reducing the number of learning disabled people detained in psychiatric hospitals.
When an individual is detained on the grounds of mental disorder, Article 5(4) requires that effective legal representation is provided by the state, free of charge, unless there are 'special circumstances'. To comply with the state's obligations under Article 5(4), any legal representation that is provided must be 'effective'.