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
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.
the request by the mental health act administrator
patient’s (client’s) lack of capacity to provide instructions.
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:
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.
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.
As in the above, the hospital managers I interacted with were wise enough to discern that they had no power to appoint a representative.
As an IMHA I can confirm I have supported people at HMH in these circumstances. I just give a summary of how long I have known the person, roughly how often I visit, and any views they have expressed to me in the time I have known them about being in hospital.
If the person wants to say something I’ve helped them with that too.
The only thing the managers have ever queried was confirming the person has a rule 11 solicitor and asking if I am sharing information on their views with them too (which I was if relevant/in the qualifying period). The managers have never, ever expected me to “represent” the patient as an IMHA, only to support. If the person lacks capacity to instruct an IMHA the hospital should be getting them some IMHA support in BI in general anyway (in my opinion).
In a (different) situation where the managers’ hearing happens during tribunal proceedings, and you have been appointed under r11(7)(b), I think you could attend in the same way as you can attend other meetings.