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Mental Health Lawyers Association 14th Annual Conference

Friday 22nd November 2013

Developments in Mental Health PracticeA View from the Official Solicitor

Alastair Pitblado, barristerThe Official Solicitor to the Senior Courts

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Who I am?

Independent statutory office holderand also a civil servant

An office holder of the court The Senior Court’s and the Court of Protection’s own

solicitorAppointed by the Lord Chancellor under the Senior

Courts Act 1981I am the 11th OS since 1876

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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

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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

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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

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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

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Caseloads (cont.)

Trusts and estates – 146 (£44.5m)

P&A deputyships – 32

Child Trust Funds – 9916

ICACU – 659

REMO – 250 a month

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My role under the MHA 1983

I act as litigation friend for the patient in displacement of nearest relative applications in the

county court.

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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

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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"

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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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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.

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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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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”.

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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).

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Law Society’s GuidanceSection 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 interests.

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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

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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.

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Best interests

So there we have it. There are legal best interests. Clinical or medical best interests. And welfare best

interests

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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.

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Deprivation of liberty: MCA

Section 48 permits the CoP to make interim ordersSection 16(2)(a) permits the CoP to make welfare

ordersSection 4B permits DOL to give life sustaining

treatmentSection 4A permits DOL under an authorisation

given administratively under ScheduleA1Section 4A also permits a DOL if that DOL is entailed

by a relevant decision by the court under section 16(2)(a).

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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.

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The qualifying requirements: Schedule A1, para. 12

(1)     These are the qualifying requirements referred to in this Schedule—

(a)    the age requirement;(b)    the mental health requirement;(c)    the mental capacity requirement;(d)    the best interests requirement;(e)    the eligibility requirement;(f)     the no refusals requirement.

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The best interests requirement: Schedule A1, para. 16

(1)     The relevant person meets the best interests requirement if all of the following conditions are met.

(2)   The first condition is that the relevant person is, or is to be, a detained resident (i.e. deprived of their liberty)

(3)     The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4)     The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained

resident.(5)    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.

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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

authorisation is given.

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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 dangerous to other persons or to himself