Tuesday, 27 October 2009

Some mental health patients might have missed out on tribunal hearings they were entitled to


Where a detained patient is placed on compulsory community treatment before his case can be heard by a tribunal, he won’t have to make a fresh appeal. That was the decision of the new Upper Tribunal in an appeal considered recently in its Administrative Appeals Chamber. (AA v Cheshire and Wirral Partnership NHS Foundation Trust, ZZ and the Secretary of State for Health [2009] UKUT 195 (AAC))

The patient concerned had been detained in hospital under section 3 of the Mental Health Act 1983 (MHA). An application for his discharge was made to the inelegantly named First-tier Tribunal (Health, Education and Social Care Chamber) - the successor to the Mental Health Review Tribunal – but by the time it could be heard, the patient had been discharged from hospital onto Supervised Community Treatment (SCT). So-called community patients have a separate right of access to the tribunal, so the question here was whether the original application would survive. The Upper Tribunal held that it would, and that the First-tier Tribunal, which decided that the application had lapsed and therefore refused to consider the patient’s case, had made an error of law.

Supervised Community Treatment was introduced in amendments to the MHA made in November 2008, and the Upper Tribunal said the wording of those amendments was clear: the First-tier Tribunal may discharge a community patient, even though he was still detained in hospital when the relevant application was made. Yet earlier decisions had suggested something different.

In the case of M, too, a fresh application was held to be unnecessary and a tribunal was ordered to continue to hear a patient’s case, even though his status had changed. (R v South Thames MHRT, ex parte M [1998] COD 38, QBD) The court said the patient’s right to a tribunal arose not from his detention, but from his admission, which happened in a single moment of time. In that case, however, the change – from section 2 of the MHA to section 3 - had been relatively un-dramatic, and the patient had remained detained in hospital throughout.

In cases involving more profound change, the courts have generally taken the view that an existing tribunal application will lapse. In SR¸ for example, a patient had been discharged from detention under section 3 of the MHA and placed on supervised discharge by the time his hearing came round. The Administrative Court held that a fresh application would be required. (R (SR) v MHRT [2005] EWHC 2923 (Admin)) It did the same recently in MN, a case concerning a man who had been transferred to a mental health hospital from prison. Special restrictions applied to him when he made his tribunal application, but they had fallen away by the time it was ready to be heard. The court said this change in his status was highly significant. (R (MN) v MHRT [2008] EWHC 3383 (Admin))

The circumstances of the new case resemble those of the last two - particularly SR, for although SCT is not the same as supervised discharge, patients leaving detention for either would make a similar journey. And there was another reason to believe that in AA, the Upper Tribunal Judge would decide that a fresh application was required: when giving judgment in an earlier case, he had suggested precisely that. (Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4) His comments were obiter, however, and the judge did not consider himself bound by them.

This case was not, however, the same as its predecessors. Neither SR nor MN concerned SCT, nor was the legislation in either case so clear as it was here. So clear, indeed, that the judge was surprised that the First-tier Tribunal failed to notice it. The case was remitted for reconsideration. The tribunal will indeed have to decide whether the patient should be discharged, this time from SCT.

Proceedings such as these would have been inconceivable before last November: we have only recently lost supervised discharge and gained the First-tier and Upper Tribunals and Supervised Community Treatment. The case is therefore completely emblematic of the Mental Health Act changes made a year ago.

At first sight, this decision of the Upper Tribunal appears to confound established authority: the nature of a change-of-status is not, after all, the key determinant of tribunal rights. The decision is, however, likely to be significant for many community patients - not, perhaps, those that made a fresh discharge-application when they left hospital, but certainly any that imagined their tribunal applications had lapsed and so did not refresh them. It seems those patients, too, were entitled to their day in court.

Suicide by advance decision

Kerrie Wooltorton died because medical professionals decided not to treat her. She had made an advance decision, refusing life-saving treatment. When she arrived at hospital, having poisoned herself for the tenth time, the doctors took the view that her wishes were paramount and to treat her would have been an assault.

Now, however, the Catholic Bishops' Conference of England and Wales has said that it is 'crystal clear', on the basis of paragraph 9.9 of the code of practice to the Mental Capacity Act, that any advance decision framed as a means to commit suicide does not have legal force. I'm afraid I don't agree.

We have to remember, first, that these are the words not of the Act itself, but of the code of practice to the Act. Whilst the code must be given respect, it is simply the government's guidance on the statute. I'm not sure it sets out to make anything 'crystal clear'.

In fact, and with respect to the bishops, I don't think the code says what they say it says. The passage in question is about capacity: in order to make an advance decision that will be binding upon others - so that they cannot give you the treatment you don't want to have - you must possess the necessary mental capacity. All the code says is that if someone is clearly suicidal when they make their advance decision, that may raise doubt about their capacity. There are two points to bear in mind.

First, I'm not sure it has been proved that Ms Wooltorton was suicidal when she made her advance decision. She must, of course, have been considered incapable at the point she presented for treatment (otherwise she would have been asked whether she consented to treatment and the advance directive would have been irrelevant). But that is a quite different thing.

Secondly, all the code says is that in those circumstances doubt might be raised about the patient's capacity. In fact, any such doubt might be allayed by the other circumstances of the case, in so far as they are known to health care providers.

The clinicians who cared for Ms Wooltorton will speak for themselves on this point, but it seems likely they will say that they were satisfied on reasonable grounds that her advance decision was both valid and applicable, and, necessarily, that she was capable when she made it. In other words, they will say that any concerns raised by the code were allayed by their knowledge of the facts of the case. That seems to me to be a reasonable stance. The clinicians, after all, treated Ms Wooltorton; the bishops did not.

The same passage of the code of practice says something else: "It is important to remember that making an advance decision which, if followed, may result in death does not necessarily mean a person is or feels suicidal. Nor does it necessarily mean the person lacks capacity to make the advance decision" [emphasis added]. I don't think this helps the bishops at all. It certainly doesn't make for the 'crystal clarity' they seem to think they have found.

In fact, the position is relatively clear: the MCA says that if, when capable, a person has made a valid, applicable advance decision, the treatment specified in that document cannot be given to him or her. If treatment is given in defiance of the advance decision it might well be an assault and result in challenge under the criminal and/or the civil law, and also in professional disciplinary proceedings.

In my view, the statutory provisions about advance decisions have a delicate balance to strike, but they do that admirably.