AA v Cheshire and Wirral Partnership NHS Foundation Trust and ZZ [UT]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 01 October 2009 |
| Date | 01 October 2009 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Court and Reference: Upper Tribunal; M/827/2009
UT Judge Rowland
Representatives: L Davidson (instructed by Terry Jones Solicitors); F Morris (instructed by Hill Dickinson LLP) for the Trust; K Markus (instructed by Peter Edwards Law Ltd) for ZZ (the patient); T Buley (instructed by the Solicitor to the Department of Health and the Department for Work and Pensions) for the Secretary of State for Health.
(i) whether an oral hearing on appeal was required; (ii) whether a litigation friend could be appointed; the approach when patients do not have capacity to give instructions; (iii) whether a review should be carried out by the same tribunal judge whose decision was being questioned; (iv) whether an application made by a patient in detention lapsed if the patient was placed on a Community Treatment Order.
AA was displaced as the nearest relative of ZZ in November 2005; ZZ was then placed under s. 3 Mental Health Act 1983; detention was renewed under s. 20 on several occasions. In the summer of 2008, AA applied to a Tribunal for the release of ZZ. The hearing was adjourned twice and was due to take place on 6 January2009. In December 2008 ZZ was placed on a community treatment order. A Regional Tribunal Judge then ordered that the hearing be cancelled as the Tribunal could only consider the status of the patient as at the time the application was made. The judge refused to review his decision and refused permission to appeal, but the Upper Tribunal judge granted permission.
The solicitors for ZZ asked that the Official Solicitor be appointed as her litigation friend: however, the Official Solicitor declined, indicating that there was no provision for such an appointment, the Official Solicitor had not acted in tribunals in the past, and guidance was provided by the Law Society to solicitors appearing before tribunals in mental health cases. Lawyers were appointed for ZZ under r11(7)(b) Tribunal Procedure (Upper Tribunal) Rules 2008, under which a lawyer may be appointed for a patient who lacks the capacity to appoint a representative when the Upper Tribunal finds it is in the patient's best interests to be represented. Written submissions were made on the issues arising; the lawyers acting for ZZ sought an oral hearing as well.
In relation to whether a litigation friend should be appointed, the argument by ZZ's lawyers was that a lawyer appointed under r11(7) had to follow the instructions of the patient, whereas a litigation friend was able to instruct lawyers to act in the best interests of the patient, and as ZZ had given instructions that she did not wish to be released, it was necessary to appoint a litigation friend to allow her lawyers to argue that the application had not lapsed. AA and the Secretary of State argued that the application had not lapsed. A point was also raised as whether a review or application for permission to appeal could be carried out by the Tribunal Judge whose decision was questioned.
Decision:
I refuse the Second Respondent's application for a hearing.
I allow this appeal against the decision of the First-tier Tribunal (Health Education and Social Care Chamber) dated 29 December 2009. I set aside that decision and remit the case for reconsideration. I direct that the First-tier Tribunal shall find that the application before it has not lapsed by virtue to the Second Respondent having been made subject to a community treatment order and shall accordingly decide whether or not he should be discharged.
I direct that, save for the front-sheet (which identifies the Appellant and the Second Respondent by their full names), this decision may be made public.
Reasons for Decision:
Introduction
1. The Appellant is the mother and displaced nearest relative of the Second Respondent patient, who was detained in a hospital managed by the First Respondent NHS foundation trust. The Third Respondent is the Secretary of State for Health who has been invited to join these proceedings so as to be able to express a view on the important question of law that arises.
2. That question is whether an application to the First-tier Tribunal made while the patient is detained under s. 3 of the Mental Health Act 1983 ("the 1983 Act") lapses if the patient is made subject to a community treatment order under s. 17A of that Act before the application is heard. Although, in Dorset Healthcare NHS Foundation Trust v MH [2009] Mental Health Law Reports 102, a 3-judge panel of the Upper Tribunal (of which I was a member) agreed with counsel appearing before it that an application did lapse in those circumstances, the point was not the subject of argument and made no difference to the Upper Tribunal's decision and I am therefore free to consider the issue afresh.
3. I have been greatly assisted by written submissions made by all parties. The Appellant has been represented by Ms Laura Davidson of counsel, instructed by Terry Jones Solicitors of Shrewsbury. The First Respondent, which opposes the appeal, has been represented by Ms Fenella Morris of Counsel, instructed by Hill Dickinson LLP of Manchester. The Second Respondent, who does not seek to be discharged, has been represented by Ms Kate Markus of counsel, instructed by Peter Edwards Law Ltd of Hoylake. The Third Respondent, who supports the appeal, has been represented by Mr Tim Buley of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions. I have also received a helpful submission from the Office of the Official Solicitor in respect of a preliminary point advanced by the solicitors for the Second Respondent.
4. Only the Second Respondent has asked for a hearing, the other parties either being content or desiring that the appeal should be determined on the papers. Moreover, the Second Respondent seeks a hearing initially in respect of the preliminary point. I am quite satisfied that the substantive issue in this case has been fully argued in writing and that I can properly determine it without a hearing. My decision on the substantive issue deprives the preliminary point of any practical significance in this particular case. I therefore refuse the application for a hearing.
The facts
5. On 24 November 2005, the Appellant was displaced as the Second Respondent's nearest relative by an order of Chester county court made under s. 29 of the 1983 Act, apparently on the ground that she had exercised her power to discharge the Second Respondent without due regard to his welfare or the interests of the public. The Second Respondent was then detained in hospital under s. 3 on 30 November 2005 and remained detained for successive periods thereafter without making any application for a direction that he be discharged.
6. On, a date in the summer of 2008 that is not recorded in the documents before me, the Appellant applied to a mental health review tribunal for a direction that the Second Respondent be discharged. Two hearings were ineffective: one on 12 August 2008 because the tribunal had read a report that the Responsible Medical Officer preferred to withdraw rather than disclose to all the parties and one on 25 September 2008 because the medically qualified member of the tribunal had previously had some professional involvement with the patient.
7. On 3 November 2008, the functions of the mental health review tribunals in England were transferred to the First-tier Tribunal established under s. 3 of the Tribunals, Courts and Enforcement Act 2007. On the same day, various provisions of the Mental Health Act 2007 came into force, introducing community treatment orders through amendments to the 1983 Act.
8. Five weeks later, on 8 December 2008, the Second Respondent was made subject to a community treatment order under the new s. 17A of the 1983 Act.
9. On 29 December 2008, a Regional Tribunal Judge of the First-tier Tribunal decided that, because the Second Respondent had been made subject to a community treatment order, the application before the Tribunal had lapsed and therefore a hearing listed for 6 January 2009 should not take place. The applicant sought permission to appeal, contending that the Regional Tribunal Judge had erred in holding that the application had lapsed. On 2 March 2009, the Regional Tribunal Judge refused to review his decision and refused permission to appeal. On 1 April 2009, the Appellant applied to the Upper Tribunal for permission to appeal and I granted permission on 9 April 2009.
The first preliminary point - patients' representatives
10. The Second Respondent's solicitors have been appointed by me to act on his behalf under r11(7)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) ("the Upper Tribunal Rules"), which is in virtually identical terms to r11(7) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) ("the First-tier Tribunal Rules"). Rule 11(7) of the Upper Tribunal Rules provides -
"(7) In a mental health case if the patient has not appointed a representative the Upper Tribunal may appoint a legal representative for the patient where -
(a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or
(b) the patient lacks the capacity to appoint a representative but the Upper Tribunal believes that it is in the patient's best interests for the patient to be represented."
By r1(3), a "legal representative" is an authorised advocate or authorised litigator as defined by s. 119(1) of the Courts and Legal Services Act 1990
11. The Second Respondent's solicitors had requested that I make such an appointment as an alternative to their preference that the Official Solicitor be appointed as the Second Respondent's litigation friend. I had declined to appoint a litigation friend, having obtained submissions on the...
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