REPESENTING CLIENTS AT TRIBUNALS WHERE CAPACITY IS AN ISSUE
Jenny Oxton, Mental Health Executive
As a legal representative I take instructions from my client’s and act on their behalf in accordance with those instructions. So what happens if someone is not able to understand the situation they are in and the legalities of the same? How can I represent them if they cannot give me instructions?
When first meeting with a client it is important to consider whether they have the capacity to instruct me or not. Section 1 of the Mental Capacity Act 2005 (MCA) sets out the principles of capacity/incapacity:
(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.
The starting point therefore is always that someone has capacity. When first meeting a client I will explain to them their detention, the Section they are on and the meaning and implications of the same, including the rights of appeal. I will take all steps to ensure that they understand this, and check that they have been able to retain that information. For example, as our clients are all detained under MHA they are classed as vulnerable adults and therefore it may well be appropriate to make special compensations to enable us to give them information in a way they understand and can retain and weigh it up. This may include using language someone can understand – possibly attending with an interpreter if the client’s first language is not English, giving written information as well as oral information, spending extra time, going at times of the day when they are most able to engage, maybe making a further appointment at a later date to repeat the advice and seeing if a client has been able to retain the information. Capacity is time and decision specific so it may well be if a client is having a bad day they may not have capacity at that time, but if visited again a few days later they would.
YA v Central and North West London NHS Trust and Others (2015)UKUT states that to have the capacity to appoint a representative the decision maker has to be able to sufficiently understand, retain, use and weigh the reasons for and against the rival decisions and thus their advantages, disadvantages and consequences. Therefore to have capacity to appoint a representative the patient needs to have more than only an understanding that they can apply for a Tribunal (or have someone make an application on their behalf).
Usually if we are asked to see a client who potentially may lack capacity it is because a staff member or advocate has engaged with the client and is of the view that they are objecting to their detention and need assistance. I feel that there is quite a low threshold to deduce a person is objecting to their detention, for example a person may just be saying they want to go home even if they do not understand the legal issues in respect of their detention, or they may not be able to communicate particularly well but they keep going to the exit doors on a ward. If they are objecting then good practice is generally that a Tribunal is requested on their behalf as it gives them an independent review of their case.
If I consider a client has capacity to instruct me then I will of course accept instructions (as appropriate) and advance them on the clients’ behalf (as appropriate).
If I considered that a client does not have the capacity to instruct me I would request that the Tribunal appoint me under Rule 11(7)(b) of the Tribunal Procedure Rules 2008. The process would usually be that the Tribunal would contact the client’s Responsible Clinician for a capacity assessment and then make their decision. On occasion we are appointed under Rule 11(7)(b) to represent clients who we have not met because the RC has already informed the Tribunal they lack capacity.
Where appointed and representing a client without capacity the guidance is to act in their LEGAL best interests. The Law Society provides guidance on representing clients at the Mental Health Tribunal (MHT), and acting for vulnerable adults:
It is also important to consider a clients’ capacity on all contact with the client, and on all issues. The guidance in AMA v Greater Manchester West Mental Health NHS Trust and Others (2015) UKUT effectively points out that just because a client has the capacity to instruct does not necessarily mean that they will have capacity on all issues that are for consideration by the Tribunal. Therefore it is important that on all discussions with the client care is taken to convey information in a way they have the best chance to be able to understand it, retain it and weigh up the pro’s and con’s of any instruction they may give.