In VS v St Andrews Healthcare [2018] UKUT 250 (AAC) Upper Tribunal Judge Jacobs has provided clarity as to the information a patient who is detained under the Mental Health Act 1983 has to be able to understand in order to make a capacitous decision to apply to a Mental Health Tribunal (in England, the First Tier Tribunal (Mental Health); in Wales the Mental Health Review Tribunal for Wales). You can read the judgment here.

VS was detained under the Mental Health Act 1983 and signed an application to the Mental Health Tribunal without having received legal advice.  Subsequently a solicitor was appointed as his representative under rule 11(7)(b) Tribunal Procedure Rules 2008 (TPRs 2008).  Having met with VS, the solicitor was concerned that VS may have lacked capacity to apply to the Tribunal, not least because he did not realise that he was in a hospital at all.  

Salaried Tribunal Judge Fyall made an interlocutory decision on the issue and concluded that:

“10. ... I do not think that Mr S...’s inability to retain that he is being held in a hospital is ultimately fatal to a finding that he has capacity, as he is able to clearly retain the understanding that he is being held somewhere he does not want to be, and he has ‘repeatedly demonstrated’ his unhappiness with that. ... 

11... I equally do not find that the processes and powers of the Tribunal are ‘relevant information’ as to whether a patient wants to appeal; what is relevant is that he wants to be discharged from the place where he is being kept against his wishes. The reality for a patient such as Mr S... is that the only way of achieving that against clinical advice will be via the Tribunal.”

The Tribunal adopted this conclusion without further investigation.  Permission to appeal its decision was granted.Upper Tribunal Judge Jacobs held that the Tribunal’s decision was “acceptable and, in legal terms, adequate”He went on to say:

“16. I consider that the capacity required to bring proceedings is less demanding that the capacity required to conduct them. It is appropriate for there to be a minimal control over access to the tribunal and its powers to review a patient’s detention. It is not necessary to resort to Article 5 of the European Convention Human Rights to justify this approach. It has ample support in the centuries-old concern of the common law to protect the liberty of the subject. 

17. If the position were otherwise, it would produce a surprising result. If the same test of capacity were applied to bringing proceedings as applies to conducting proceedings, any decision by the First-tier Tribunal to appoint a representative under rule 11(7) for a patient whose capacity was not fluctuating would have the inevitable result that the proceedings had not been properly brought. Given that the existence of an application is the foundation of the tribunal’s jurisdiction, that case would then have to be struck out.”

 He concluded that:

“19. I put the capacity that a patient must have in order to make a valid application to the First-tier Tribunal in its mental health jurisdiction like this. The patient must understand that they are being detained against their wishes and that the First-tier Tribunal is a body that will be able to decide whether they should be released. The more detailed and demanding requirements for capacity to conduct proceedings are not in point at the stage of making an application. A patient who lacks that understanding ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’, to quote section 291), does not have the capacity required (PC and NC v City of York Council [2013] EWCA Civ 478 at [58]-[59])

20. I have considered whether the patient needs to understand that it is possible to withdraw a case before the First-tier Tribunal but that the tribunal’s consent is required if this is to be done. I have decided that this is not a necessary element in the patient’s understanding. I have come to this conclusion because taking account of withdrawal would add to the complexity of the issues that the patient would have to understand, as it would raise questions of the circumstances in which withdrawal might be sought and, if sought, approved or refused. That would inevitably lead into the patient’s particular circumstances and how withdrawal and consent might apply to them. All that would take the test a long way from the simple and clear cut approach that I have set out, rendering it inappropriate for the initial jurisdictional filter in a mental health case.” 

Upper Tribunal Judge Jacobs made the following obiter observations on the Tribunals’ refusal to allow VS’ application to be withdrawn: a representative who has been appointed under rule 11 (7)(b) TPRs 2008 is able to apply to withdraw the application where the representative considers this to be in the best interests of the patient, including when (as in this case) it would be better for him, given the chances of being discharged, to have the application heard later.  However, the Tribunal does not act as a rubber stamp, but must decide whether to accept the application or not, in the individual circumstances of the case.  Tribunals are “rightly alert” to the possibility of an application being used as a filter to test the strength of the evidence in a case, which would abuse the process of the Tribunal.  

In the current case the Tribunal had to balance the desire of the patient to come before a Tribunal against the solicitor’s assessment of the patient’s best interests and was entitled in these circumstances to refuse the application to withdraw.  Had the Tribunal concluded that VS’ had lacked capacity to make the application in the first place, the proper procedure would be for the Tribunal to strike out the application under rule 8 TPRs.  However if instead the Tribunal permitted the application to be withdrawn instead this was unlikely to be viewed as a material error of law.

Comment:  This judgment brings welcome clarity to the question of capacity to apply to a Tribunal.   The test formulated in the current case is consistent with the judgment of Baker J in RD and Others (Duties and Powers of Relevant Person’ Representatives at Section 39D IMCAs) (Rev 1) [2016 [EWCOP] 49.  Baker J was asked to identify the “relevant information” that a person detained under Schedule A1 Mental Capacity Act 2005 (the “Deprivation of Liberty Safeguards”) needed to understand to make a capacitous decision to challenge his or her detention.  

Baker J concluded that this “….simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings.”

The question of capacity to apply to the Tribunal has become increasingly important following Upper Tribunal Judge Jacobs’ decision in R (OK) v First-tier Tribunal and Cambrian Fairview [2017] UKUT 22 (AAC), which held that an application purportedly made by a patient without capacity was invalid and should be struck out.  

Therefore Upper Tribunal Judge Jacobs’ emphasis at [16]on “minimal control over access to the Tribunal” is very important.  For those who lack capacity to apply to the Tribunal applying the test formulated in this judgment, there remains the possibility of requesting a referral to the Tribunal by the Secretary of State under section 67 Mental Health Act.  The comments of Lady Hale in MH v Secretary of State for the Department of Health and Others [2005] UKHL 60 at [30] are helpful.  

Here Lady Hale considered the situation of a patient detained under section 2 Mental Health Act, who lacked capacity to apply to the Tribunal and whose detention under section 2 had been extended due to protracted proceedings in the County Court to displace her nearest relative:

“…..As already seen, a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings. It can, of course, be objected that this solution depends upon the Secretary of State being willing to exercise her discretion to refer. But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention. In this case this happened at the request of the patient's own lawyers. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so.”

The obiter comments as to withdrawal are consistent with the guidance given by Charles J in AMA v Greater Manchester West Mental Health NHS Foundation Trust and others [2015] UKUT 36 (AAC), when he concluded that when a Tribunal is faced with an application for withdrawal:

“37 It follows in my view that:i) the F-tT must always ask for and consider who made the application to withdraw, how it was made, and perhaps most importantly the reasons for it and thus the continuation of a detention,ii) the F-tT must always make its own mind up on whether it should agree to it or conduct a review of the detention and give reasons for its decision, andiii) if it is in doubt it should refuse consent and as a consequence carry out the review itself.In effect the decision to give consent has to be based on a conclusion of the tribunal that continued detention under the MHA is justified for the reasons founding the application to withdraw (or other reasons).”