Representation at Managers Hearings for patients who lack capacity

Law and practice Mental Health Act
1

I’ve been asked to represent a patient at his upcoming s37 Managers renewal hearing by the mental health act administrator at the hospital. The client lacks capacity to provide instructions and does not want to meet with me. He has not given any indication to staff that he wants to be discharged from his section or the hospital but his care team are of the view that he should be represented.

I am aware that the law society practice note says that

There is no equivalent power available to hospital managers’ panels to appoint a representative; without proper authorisation, it is not likely to be possible for a representative to act in relation to a hospital managers review hearing for a patient who lacks capacity to instruct a solicitor

Can anyone shed any light on what is meant by ‘proper authorisation’ and how to obtain it? Or does this mean that in practice I can’t represent him? Many thanks

2

Unless you’re appointed by the Tribunal under R11(7)(B) or R13(5) then I wouldnt be attending.

3

The tribunal have the power to appoint you to represent someone who lacks capacity under rule 11.7.b (UK) rule 13.5.b.2 (Wales) to act in best interest rather than on instruction. This is classed as proper authorisation.

However there is no power for the hospital managers to appoint someone to act on best interest rather than on instruction. Therefore without instructions you cannot represent someone at a hospital managers hearing as you cannot be appointed.

If I have been unable to obtain any instructions from a client despite numerous attempts and a formal MH3 capacity assessment being completed, I don’t represent at a hospital managers hearing but do suggest involving an IMHA to the professionals who would be able to provide assistance to the client if they are able to express any views in relation to the HMH.

4

If you know the patient, the Hospital Managers would welcome your input on a best interest basis

5

There seems to be some core issues in your post

  1. the request by the mental health act administrator
  2. patient’s (client’s) lack of capacity to provide instructions.
  3. no power of hospital managers’ panels to appoont a representative.

It is not clear from the post if the MHA administrator (MHAA) is acting on a request by hospital managers panel. I will therefore assume that the issues are separate.

Shared experience by item number above:

  1. MHA administrators vary widely in their knowledge of mental health law or just ‘law’. Most I have encountered sequester at the lower end of poor knowledge. There is (again from my experience) an avoidance among many Trusts to seeking in-house legal advice on such matters. The MHAA has no power to request a represntative because it’s not written in law.
  2. The lack of capacity to instruct a representative should go straight before in-house legal advice team (aka lawyers). I had one such situation recently. The Managers in conversation with me, proactively agreed they could not proceed, and adjourned for legal advice from the Trust. I departed before I learned what the outcome was.
  3. As in the above, the hospital managers I interacted with were wise enough to discern that they had no power to appoint a representative.