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Mental health law briefing 252 – Bringing proceedings before the First-Tier Tribunal: A question of capacity

The Upper Tribunal recently considered the issue of what a patient needs to understand in order to establish they have capacity to bring proceedings before the First-Tier Tribunal.[1]

Background to the case

Mr S, the patient in this case, did not have insight into his mental health difficulties but, as reported by his Responsible Clinician, had demonstrated on multiple occasions that he did not wish to remain an in-patient in the hospital and wanted to be discharged.

When the possibility of appealing against his treatment and in-patient admission via the Tribunal was explained to him, he understood this was a possible avenue for his discharge. Whilst the treating team considered he lacked capacity to fully understand the need for in-patient treatment, they were of the view that he was able to broadly demonstrate his understanding that an application to the Tribunal may result in his discharge.

The First-Tier Tribunal had appointed a solicitor to represent the patient and it was the concerns raised by the solicitor about the patient’s capacity that resulted in this matter coming before the First-Tier Tribunal and subsequently the Upper Tribunal.

The patient’s solicitor was concerned that the patient:

  • Told her that he wanted to be discharged to have a cigarette;
  • Could not understand that he was being held in hospital; and
  • Could not retain information about the purpose, procedure and powers of the Tribunal.

The nature of capacity

The Upper Tribunal Judge, Judge Edward Jacobs, drew a distinction between the nature of capacity required for a patient to bring proceedings before the First-Tier Tribunal and the capacity required to conduct those proceedings.

Whilst recognising that the capacity required to conduct the proceedings can be a demanding threshold given that the patient will have to have sufficient understanding of issues relevant to the application and retain, use and weigh those issues in accordance with the provisions of the Mental Capacity Act 2005, the Upper Tribunal considered that a much lower threshold was required to satisfy the requirements of capacity to bring proceedings before the Tribunal.

The Judge considered it was appropriate for there to be minimal control over access to the Tribunal and its powers to review a patient’s detention. This accorded with the concerns to protect the liberty of the person that is a fundamental principle of English law.

Judge Jacobs held that in order to make a valid application to the First-Tier Tribunal the patient must understand that they are being detained against their wishes and that the First-Tier Tribunal is a body that will be able to decide whether they should be released.

The more detailed and demanding requirements for capacity to conduct proceedings were not relevant at the stage of making an application.

Withdrawing a case from the Tribunal

The Judge also expressed the view that the patient did not need to understand that it was possible to withdraw a case before the First-Tier Tribunal, a step that required the Tribunal’s consent.

In his judgment he stated that he had come to this conclusion because the extra element of taking account of withdrawal would add to the complexity of the issues that the patient would have to understand, as it would raise questions of the circumstances in which withdrawal might be sought and, if sought, approved or refused. This would have taken the test a long way from the simple and clear cut approach that was appropriate for the initial step of determining whether the patient had capacity to bring proceedings in a mental health case.

Judge Jacobs upheld the decision of the First-Tier Tribunal, commenting that the concerns expressed by the patient’s solicitor were matters that related to the different and more demanding test for capacity to conduct proceedings. The Tribunal had accepted that the patient did not satisfy the latter test and it was for this reason that the Tribunal had appointed the solicitor to act for him.

Why is this judgment important?

This clarification of the capacity necessary to bring proceedings before the First-Tier Tribunal is significant in ensuring that patients with severe mental disorders are not readily prevented from applying to challenge their detention in hospital under the Mental Health Act.

Had a more demanding requirement been imposed, this may have caused difficulties for a number of mental health patients to seek to pursue their rights before the Tribunal.

For more information or guidance, please contact:

Alexandra Johnstone
T. 020 7227 6704

[1] VS v St Andrew’s Healthcare [2018] UKUT 250 (AAC)


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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