Can someone help me out with the case law on this? A hospital are refusing to provide me with details of the section because there is a PoA.
What is your involvement in the case?
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The only case law I can think of would be AMA v Greater Manchester where the UKUT found that a deputy could not appoint themselves as a representative.
Paras 43 to 50 are helpful.
- The extent of what a deputy or attorney can or should be authorised to do under the MHA or in respect of proceedings under the MHA on behalf of a patient by the original order of appointment, or any further order, is outside the ambit of this judgment. Further, as my decision in AM shows, it is dangerous to make general assertions about the relationship between the application of and the roles of persons under the statutory regimes of the MHA and the MCA.
This is a helpful quote. Just because the deputy (or in this case, attorney) can make general welfare decisions, it doesn’t give them the ability to make decisions regarding MHA proceedings.
Thanks Zac- that was the case law I was thinking of. The hospital are refusing to give me details of section so I am just going to appeal with an estimate for section date.
Sorry Barry-I didn’t see your post. I am the patient’s representative- I obtained her discharge last year but she has been re-detained.
Hi Karen. I am making the assumption that P has instructed you to act and make an application and that P has provided you with permission to access their records relating to this detention in order to complete that instruction. If that is the case then the existence of a PoA should not prevent you being given the information you need to enact P’s instructions.
If P has capacity to instruct you and to decide disclosure to you then the existence of a PoA is a red herring.
Best to ask for details of the Power of Attorney (in my experience people often don’t check the details and make assumptions). If the PoA is preventing you from enacting your clients instructions and their legal rights then you need clarity that a) the POA is for health and welfare AND b) the person lacks capacity to decide on disclosure of their information to you making the PoA operational.
If the Power of Attorney covers all health and welfare decisions and the person lacks capacity to decide about release of records then the Attorney should be approached to decide on release. If they were to refuse then you might want to consider if the PoA is acting in P’s best interests by preventing you from representing them in accordance with their MHA rights.
I hope that is helpful.
Please explain your status with great clarity in the request for “details of the section.” For example, I just can’t walk into any hospital request such details and expect compliance. The existence of someone with PoA may be irrelevant in that particular scenario.
On the other hand for a patient in my care, I can lawfully request data under GDPR Article 9, subsection 2-h:-
a. processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;
No case law may be required at all depending on your status in relation to the individual you are requestion details about.
Great clarity achieved 
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Oho. Sorry. I missed that. No case law required. A bit of cunning might do. 
Would a threatened complaint to the Information Commissioner do the trick.
Never back down. 
