Mental Health Lawyers Association 14 th Annual Conference

Mental Health Lawyers Association 14 th Annual Conference Friday 22 nd 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 11 th 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 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 Co. P Welfare: 454 (39 serious medical treatment) Co. P property & affairs: 396 6

Caseloads (cont. ) Trusts and estates – 146 (£ 44. 5 m) 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 21 A of the Mental Capacity Act 2005 by those whose deprivation of liberty is authorised under Schedule A 1 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 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. 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 Co. P 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 Co. P (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 4 A, 4 B, 16, 48 of, and Schedule A 1 to, MCA also permit a person to be deprived of their liberty. 21

Deprivation of liberty: MCA Section 48 permits the Co. P to make interim orders Section 16(2)(a) permits the Co. P to make welfare orders Section 4 B permits DOL to give life sustaining treatment Section 4 A permits DOL under an authorisation given administratively under Schedule. A 1 Section 4 A 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 A 1 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 A 1). Paragraphs 38 -45 govern the best interests’ assessment. 23

The qualifying requirements: Schedule A 1, 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 A 1, 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 secondition 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 Co. P under section 21 A (1) This section applies if either of the following has been given under Schedule A 1— (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 26 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