Law Society, ‘Practice note: Representation before mental health tribunals’ (31/8/22) states (emphasis added):
If you form the view that your client does not have capacity to make an application, but it is clear that they wish to leave the hospital, you should invite the hospital managers to consider asking the secretary of state to refer the case to the tribunal.
As a patient’s representative (I mean as a job role, rather than describing the relationship with any particular patient) I’d be happy to disobey this and go straight to the Secretary of State seeking a reference, without asking the MHA Administrator. Maybe the guidance would permit first asking the hospital, but then seeking a reference if there is any delay or refusal.
I’m not quite sure on what basis we would do either thing (ask the hospital or the SoS) but I’m not sure there is any real distinction.
I’ve not come across this in practice, as we used to take a different approach to the capacity to make an application.
We also take a different view to the capacity to apply as opposed to the capacity to instruct. When it is clear the patient wishes to leave we would therefore apply on his behalf and then seek appointment. I think that is right. If the patient does not have capacity to make his views clear but it seems that there should be a referral for other reasons I encourage the MHAN or IMCA to seek a referral as I cannot see that we would have any standing to do this. I would be uncomfortable doing this ourselves as we then financially benefit.
I suppose that’s the approach that everybody takes in practice, but in theory there could be a patient who “wishes to leave” but doesn’t have capacity to make the application (since the Upper Tribunal has told us that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released). In that case you couldn’t make the application and couldn’t yet be appointed, so might want there to be a reference.
I can see your point about financial benefit, but can’t see the real difference between asking the Secretary of State ourselves or asking someone else to ask.
It depends how you interpret the patient’s understanding of the situation I suppose. I have a client who demands that I apply to the court for his release but can’t grasp that it is a tribunal. I applied on his behalf although strictly speaking maybe I should not have done. If it is clear that they want to leave I would just explain the tribunal can release them and seek their agreement.
In relation to a solicitor making the reference request, the obstacle I think is a professional conduct one; how does a solicitor take any action (such as requesting a reference) without instructions/a client? I think that is why the Code suggests contacting another person who is (professionally) better placed to do it. It is a little circuitous but I think that is why it is better to speak to MHA/IMHA/NR.
I don’t think the SOS places much of a limit, if any, as to who can make the request, including solicitors in these present circumstances.
That really gets to the heart of it. I don’t know. I think we share a sense that, even if a patient isn’t a client, there is some moral duty to help, or at least a justification for helping. If you’re speaking to a patient who wants out of hospital, but who lacks capacity to apply to the tribunal (because of the Upper Tribunal’s interpretation of what that requires), then anything that helps the patient have a tribunal sounds like it should be a good thing. But is there any real distinction here between contacting the Department of Health directly and “[inviting] the hospital managers to consider asking the secretary of state to refer the case to the tribunal”?