Transcript Mental Health Lawyers Association 14th Annual Conference

Mental Health Lawyers Association
15th Annual Conference
Friday 14 November 2014
Developments in Mental Health Practice The Official Solicitor’s View
Alastair Pitblado, barrister
The Official Solicitor to the Senior Courts
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IS THE MENTAL CAPACITY ACT
COMPATIBLE WITH THE UN
CONVENTION ON THE RIGHTS OF
PERSONS WITH DISABILITIES? IF
NOT, WHAT NEXT?
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AN ESSEX AUTONOMY PROJECT
POSITION PAPER
This report represents the views of the
authors. It should not be taken to
represent the views of the Ministry of
Justice, the Arts and Humanities
Research Council, or other participants in
the roundtable meetings that comprised
an essential part of this project.
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EXECUTIVE SUMMARY
This report is the culmination of a
collaborative six-month project examining
the question of whether the Mental
Capacity Act (MCA) is compliant with the
United Nations Convention on the Rights
of Persons with Disabilities (CRPD). The
main findings of the report are as follows.
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EXECUTIVE SUMMARY
1. The Mental Capacity Act of England and
Wales is not fully compliant with the United
Nations Convention on the Rights of
Persons with Disabilities, to which the UK
is a signatory.
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EXECUTIVE SUMMARY
2. The definition of “mental incapacity” in
s.2(1) of the MCA violates the
antidiscrimination provisions of UNCRPD
Art. 5, specifically in its restriction of
mental incapacity to those who suffer from
“an impairment of, or a disturbance in the
functioning of, the mind or brain.”
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EXECUTIVE SUMMARY
3. The best-interests decision-making
framework of Section 4 of the MCA fails to
satisfy the requirements of CRPD Art.
12(4), which requires safeguards to
ensure respect for the rights, will and
preferences of disabled persons in matters
pertaining to the exercise of legal capacity.
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EXECUTIVE SUMMARY
4. MCA s.2(1) should be amended to
remove the following words: “because of
an impairment of, or a disturbance in the
functioning of, the mind or brain.”
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Baroness Hale, Deputy President of the Supreme Court in her
lecture to the Mental Health Tribunal Members’ Association 2014
17 October 2014 ‘The Other Side of the Table?’ said
The UN Convention does present a problem with which
we did not need to grapple in the Surrey and Cheshire
cases. Article 14.1 provides:
“States Parties shall ensure that person with disabilities,
on an equal basis with others: 13
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or
arbitrarily, and that any deprivation of liberty is in
conformity with the law, and that the existence of a
disability shall in no case justify a deprivation of liberty.”
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‘The Other Side of the Table?’ cont’d
Taken literally, those last words might suggest that both
the Mental Health Act and the Mental Capacity Act are in
breach of the Convention by providing for people with
mental disorders and disabilities to be deprived of their
liberty. There may be ways of reconciling them, for
example, by suggesting that disability alone is not a
sufficient justification. But for us the law is clear: those
statutes do authorise it, but public authorities, including
courts and tribunals, must operate them compatibly with
the European Convention, which also authorises it in
certain circumstances.
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Is Art 5(1)(e) ECHR
compatible with Art 14.1
UNCRPD?
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EXECUTIVE SUMMARY
5. The best-interests decision-making framework
on which the MCA relies should be amended to
establish a rebuttable presumption that, when a
decision must be made on behalf of a person
lacking in mental capacity, and the wishes of that
person can be reasonably ascertained, the bestinterests decision-maker shall make the decision
that accords with those wishes.
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EXECUTIVE SUMMARY
6. The United Nations Committee on the
Rights of Persons with Disabilities is not
correct in its claim that compliance with
the CRPD requires the abolition of
substitute decision making and the bestinterests decision-making framework.
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What are the duties of a litigation
friend at common law?
Sir Robert Megarry V-C said in Re E (mental health patient)
[1984] 1 All ER 309 at pages 312-3
"The main function of a [litigation] friend appears to be to
carry on the litigation on behalf of the [party without
litigation capacity] and in his best interests. For this
purpose the [litigation] friend must make all the decisions that
the [party] would have made, had [they] been able...It is the
[litigation] friend who is responsible to the court for the
propriety and the progress of the proceedings. The
[litigation] friend does not, however, become a litigant himself"
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What does that mean?
The litigation friend must not instruct P’s or the
protected party’s solicitor to advance an
argument which is not properly arguable.
What is properly arguable may be a
comparatively low test but the litigation friend’s
duty is primarily to conduct the litigation in the
party’s best interests
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Cases under the Mental Capacity Act
2005
Are about best interests decisionmaking for persons who lack the
mental capacity to make the
decisions themselves
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Best interests under the Mental
Capacity Act 2005
Section 1(5) provides that any act done or
decision made for the person lacking capacity
must be done or made in that person’s best
interests. Section 4 defines best interests. By
virtue of section 4(2) any person making a
determination of the person’s best interests must
consider all the relevant circumstances (as
defined in section 4(11)) and take certain steps.
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Best interests in respect of medical
acts and decisions, and in medical
cases
A person’s best interests in making such
decisions are not limited to the clinical
assessment of what is medically in the
patient’s best interests and the decisionmaker is obliged to take into account a
broad spectrum of medical, social,
emotional and welfare issues.
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The Law Society’s Guidance of 2011
4.1 Clients with litigation capacity
You must act in accordance with your client’s
instructions, even where they are inconsistent,
unhelpful to the case or vary during the
preparation of the case…Your duty to act in
accordance with the client’s instructions takes
precedence over your duty to act in their best
interests.
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The Law Society’s Guidance of 2011
(cont.)
But that is subject to 2 exceptions according to the Law Society
Guidance
Instructions affected by duress or undue influence, or
Where appointed under rule 11(7) of the First-tier Tribunal Rules,
the legal practitioner has the same duties as a litigation friend. So
you exercise your judgement and advance any argument that you
consider to be in the patient’s best interests and that will not
necessarily involve arguing for discharge. And you must not
advance an argument which is not properly arguable. But you are
not permitted to advance submissions contrary to your client’s
instructions on the basis that you believe it to be in the client’s best
interests to do so.
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Law Society’s Guidance
Section 5 deals with the legal representative’s
duties to their client I invite your attention to paras
5.1, 5.2, 5.2.1 and 5.2.2.
(Am I the only one confused by the guidance
especially when read with section 4?)
In the guidance a distinction is drawn between legal
best interests and clinical best interests. But the
considerations when conducting proceedings in the
protected party’s best interests, are restricted to
legal best interests.
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What does that mean? (cont.)
It means that the litigation friend’s duty may be
subtly different from that of the legal
practitioner representing a client before the
First-tier Tribunal (Mental Health) in England
and the Mental Health Review Tribunal for
Wales.
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