Transcript Mental Health Lawyers Association 14th Annual Conference

Mental Health Lawyers Association
14th Annual Conference
Friday 22nd November 2013
Developments in Mental Health Practice
A View from the Official Solicitor
Alastair Pitblado, barrister
The Official Solicitor to the Senior Courts
1
Who I am?
Independent statutory office holder
and also a civil servant
An office holder of the court
The Senior Court’s and the Court of Protection’s own
solicitor
Appointed by the Lord Chancellor under the Senior
Courts Act 1981
I am the 11th OS since 1876
2
What do I do?
Act as last resort litigation friend and in some cases
solicitor, for adults who lack mental capacity and
children (other than the subject children) in court
proceedings
Appoint and act as Advocate to the Court
Conduct investigations when invited to do so by the
judiciary of the Senior Courts (Harbin v Masterman)
or the Court of Protection
3
What do I do? (cont.)
Act as last resort administrator of estates and trustee
Act as last resort property and affairs deputy
under the MCA
Appointed to act as the registered contact in the
administration of the Child Trust Fund scheme for
looked after children
4
What do I do? (cont.)
Through the International Child Abduction and
Contact Unit and the Reciprocal Enforcement of
Maintenance Orders Unit carry out in England and
Wales the operational functions of the Lord
Chancellor, who is the Central Authority under the
1980 Hague and European Conventions on Child
Abduction and for the reciprocal enforcement of
international maintenance orders
5
Caseloads
OS litigation friend services and conduct of litigation
services cases
Total: 2354
Civil: 837
Public law children: 393
Divorce: 274
CoP Welfare: 454 (39 serious medical treatment)
CoP property & affairs: 396
6
Caseloads (cont.)
Trusts and estates – 146 (£44.5m)
P&A deputyships – 32
Child Trust Funds – 9916
ICACU – 659
REMO – 250 a month
7
My role under the MHA 1983
I act as litigation friend for the patient in
displacement of nearest relative applications in the
county court.
8
Deprivation of liberty
I act as litigation friend in welfare cases in the Court of
Protection in which the court is being asked to declare
residence and care plans as being in P’s best interests
and that in so far as those residence and care plans
involve a deprivation of liberty that they are authorised
I act as litigation friend in applications under section
21A of the Mental Capacity Act 2005 by those whose
deprivation of liberty is authorised under Schedule A1
to that Act
9
What are the duties of a litigation friend?
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"
10
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
11
What does that mean? (cont.)
It means that the litigation friend’s duty may be subtly
different from the legal practitioners representing
clients before the First-tier Tribunal (Mental Health)
in England and the Mental Health Review Tribunal
for Wales. The litigation friend, as I do in some
cases, may also act as the person’s solicitor, but in
most cases the litigation friend will retain a solicitor to
act for the person lacking capacity.
12
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.
13
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.
14
The client who lacks litigation
capacity
The Law Society suggests that the threshold is low – it is
certainly the case that the test set out in Masterman-Lister v
Brutton & Co [2003] 1 WLR 1511 namely “whether the party to
legal proceedings is capable of understanding, with the
assistance of proper explanation from legal advisers and
experts in other disciplines as the case may require, the
issues on which his consent or decision is likely to be
necessary in the course of those proceedings” is replicated
by section 1(3) of the Mental Capacity Act 2005.
Note that it is “those proceedings”.
15
Law Society’s Guidance: the client
who lacks litigation capacity
(cont.)
In some cases there may be a court-appointed
deputy or the donee of a power of attorney who can
give instructions in a tribunal. But if not, the route to
lawfully representing the patient who lacks litigation
capacity is through rule 11(7).
16
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 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. There never has been
any analysis to the effect that in the courts, the
considerations when conducting proceedings in the
protected party’s best interests, are restricted to legal best
17
interests.
Best interests in the CoP
Under the MCA 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 in so far as that is possible. 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
18
Best interests in the CoP (cont.)
Best interests in respect of medical acts and
decisions and in medical cases
A person’s best interests in such matters are not
limited to the clinical assessment of what is in the
patient’s best interests and the court is obliged to
take into account a broad spectrum of medical,
social, emotional and welfare issues.
19
Best interests
So there we have it. There are legal best interests.
Clinical or medical best interests. And welfare best
interests
20
Deprivation of liberty (Article 5
ECHR): MHA and MCA
Section 3 MHA (among other sections) enables a
person to be deprived of their liberty.
Sections 4A, 4B, 16, 48 of, and Schedule A1 to, MCA
also permit a person to be deprived of their liberty.
21
Deprivation of liberty: MCA
Section 48 permits the CoP to make interim orders
Section 16(2)(a) permits the CoP to make welfare
orders
Section 4B permits DOL to give life sustaining
treatment
Section 4A permits DOL under an authorisation given
administratively under ScheduleA1
Section 4A also permits a DOL if that DOL is entailed
by a relevant decision by the court under section
16(2)(a).
22
DOL under Schedule A1
Before a standard authorisation can be given the
relevant person must meet all of the qualifying
requirements. Most often the focus is usually on the
“best interests’ requirement” (as to which see
paragraphs 12(1) and 16 of Schedule A1).
Paragraphs 38-45 govern the best interests’
assessment.
23
The qualifying requirements:
Schedule A1, para. 12
(1) These are the qualifying requirements referred to in this
Schedule—
(a)
(b)
(c)
(d)
(e)
(f)
the age requirement;
the mental health requirement;
the mental capacity requirement;
the best interests requirement;
the eligibility requirement;
the no refusals requirement.
24
The best interests requirement:
Schedule A1, para. 16
(1)
(2)
(3)
(4)
(5)
The relevant person meets the best interests requirement if
all of the following conditions are met.
The first condition is that the relevant person is, or is to be, a
detained resident (i.e. deprived of their liberty)
The second condition is that it is in the best interests of the
relevant person for him to be a detained resident.
The third condition is that, in order to prevent harm to the
relevant person, it is necessary for him to be a detained
resident.
The fourth condition is that it is a proportionate response
to—
(a) the likelihood of the relevant person suffering harm,
and
(b) the seriousness of that harm, for him to be a detained
resident.
25
An application to the CoP under
section 21A
(1)
This section applies if either of the following has been given
under Schedule A1—
(a)
a standard authorisation;
(b)
an urgent authorisation.
(2)
Where a standard authorisation has been given, the court
may determine any question relating to any of the following
matters—
(a)
whether the relevant person meets one or more of
the qualifying requirements;
(b)
the period during which the standard authorisation is
to be in force;
(c)
the purpose for which the standard authorisation is
given;
(d)
the conditions subject to which the standard
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authorisation is given.
An application to the tribunal under
section 72(1)(b) MHA
(b)
the tribunal shall direct the discharge of a patient liable to be
detained otherwise than under section 2 above if it is not
satisfied—
(i)
that he is then suffering from [mental disorder or
from mental disorder] of a nature or degree which
makes it appropriate for him to be liable to be
detained in a hospital for medical treatment; or
(ii)
that it is necessary for the health of safety of the
patient or for the protection of other persons that he
should receive such treatment; or
(iia)
that appropriate medical treatment is available for
him; or
(iii)
in the case of an application by virtue of paragraph
(g) of section 66(1) above, that the patient, if
released, would be likely to act in a manner
27
dangerous to other persons or to himself