VS v St Andrew's Healthcare
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 23 July 2018 |
| Neutral Citation | [2018] UKUT 250 (AAC) |
| Docket Number | HM/1261/2018 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 23 July 2018 |
[2018] UKUT 250 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Jacobs
HM/1261/2018
Appearances: S Miles for VS; S Wallace (Legal Directorate, St Andrew's Healthcare) for St Andrew's.
Facts: Assisted by his care team, who were of the view that he had capacity to appeal against his detention under the Mental Health Act 1983, VS completed the form needed to commence proceedings before the First-tier Tribunal. The Tribunal assigned a solicitor to represent him, relying on its powers under r11(7)(b) Tribunal Procedure Rules 2008 to appoint a representative for a person without capacity to do so when that is in the patient's best interests. The solicitor expressed concerns as to VS's capacity to commence proceedings, and hence the jurisdiction of the Tribunal. Two Tribunal judges concluded that the test for capacity to commence proceedings was met, as did the Tribunal that dismissed the application for release. That Tribunal also refused to allow the withdrawal of the application, which the solicitor put forward as in the best interests of VS, given that the application was unlikely to succeed at the time, his real concern seemed to be about moving wards, a matter outside the power of the Tribunal, and his lack of understanding of the role of the Tribunal or recall of making an application; the Tribunal noted that VS had made his application to the Tribunal when he had capacity and had not given instructions to withdraw, and so declined to consent, as is required under r17 Tribunal Procedure Rules 2008. The case proceeded to the Upper Tribunal.
Save for the cover sheet, this decision may be made public (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.
This decision is given under s11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2017/28591, made following a hearing on 26 January 2018, did not involve the making of an error on a point of law.
1. The issue of a patient's capacity had been one of the themes in cases that have come before the Upper Tribunal over recent years. For convenience, these are the cases and the issues raised so far:
R (OK) v First-tier Tribunal and Cambrian Fairview [2017] MHLR 242 dealt with the procedure to be followed in a case in which it was accepted (see [11]) that the patient did not have capacity to bring the proceedings.
YA v Central and North West London NHS Mental Health Trust [2015] MHLR 144 dealt with capacity to appoint a representative and with the relationship between capacity to appoint and the capacity to conduct proceedings.
AMA v Greater Manchester West Mental Health NHS Foundation Trust [2015] MHLR 144 dealt with capacity to conduct proceedings with particular reference to withdrawal.
PI v West London Mental Heath NHS Trust [2017] MHLR 246 dealt with capacity that fluctuated during proceedings.
2. The issue in this case is the nature of the capacity required by a patient to bring proceedings before the First-tier Tribunal in its mental health jurisdiction. I have decided that the test is 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.
3. The patient signed a form applying to the First-tier Tribunal on 23 October 2017. When delivered, this initiated proceedings in that tribunal. Despite the language used by the responsible clinician and Tribunal Judge Fyall, the proceedings are not appellate.
4. When he completed the form, the patient was not represented. His responsible clinician subsequently wrote about how the application came to be completed:
Mr S… was asked on multiple occasions with the help of an interpreter about his view on inpatient treatment. Although he does not have insight into his mental health difficulties, he has demonstrated on multiple occasions that he does not wish to remain an inpatient in the hospital and wants to be discharged. This was evident in discussions with him with an interpreter on 6 October 2017, 5 October 2017 (when he was read his s132 rights) and during discussions with a Lithuanian speaking health care assistant. Further, when explained that the treating team are of the opinion that he continues to remain an inpatient and when explained the possibility of appealing against the treatment and inpatient admission to the tribunal, he understood it as a possible avenue for his discharge. The application for the tribunal was filled out by him with the assistance of a Lithuanian speaking healthcare assistant who supported him on that day. This was preceded previously by discussions with a formal Lithuanian interpreter.
The view of the treating team is that although he lacks capacity to fully understand the need for inpatient treatment, he was able to broadly demonstrate his understanding that an appeal to the tribunal may result in discharge. He has been consistently asking to be discharged and was able to comprehend this when informed about his s132 rights and the appeal process. Therefore on the balance of probability, the treating team and I am of the opinion that he does retain capacity to appeal against his detention in view of requirements for a ‘very limited’ and ‘not demanding’ capacity.
5. The First-tier Tribunal appointed Noble Solicitors to represent the patient on 27 October 2017. Following a meeting with the patient, the solicitor had concerns about his capacity. She was concerned that:
• he told her that he wanted to be discharged to have a cigarette;
• he could not understand that he was being held in hospital; and
• he could not retain information about the purpose, procedure and powers of the tribunal.
The issue of the patient's capacity came before Judge Fyall on 13 December 2017. I have taken the statement of the solicitor's concerns from her reasons for deciding that the tribunal had jurisdiction as the application was valid as made by a patient with sufficient capacity. The judge had the letter from the responsible clinician. These are the relevant passage among the judge's reasons:
9. … when [the solicitor] met with him on 23 November, Mr S… was still expressing to her that he wanted to be discharged because he was unhappy with the restrictions place don him by being detained, on that day the limits on his freedom was to smoke.
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. …
111. 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...
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