Striking out due to incapacity to apply

We represented a patient at a s2 Tribunal appointed under Rule 11(b).
A member of the ward staff had made the application to the tribunal on behalf of the patient. They were not available to give evidence about this but the tribunal concluded that the patient did not have capacity to apply when the application was made and we agreed that it seemed probable she did not. The tribunal said the the DoH should be asked to refer and the RC asked who would do this. The tribunal said that they would do it. Is that correct? I can’t find anything saying that in the case law. We obviously cannot do it as we do not have instructions.
I think it is odd that a referral should be sought just because someone seems to have inappropriately appealed on her behalf.
The tribunal also mentioned the potential for a ‘same day’ referral. Does anyone know anything about this?

Yes i had the same issue some weeks ago. There was a direction sent out to the Judges 2021 i think which advised them that if they feel it is in the best interest for the client then they the tribunal can contact the tribunal office and they will refer that day. In the case i had the hearing was in the morning which was struck out but the referral was made and accepted and the new hearing went on in the afternoon.

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Jones is pretty helpful on this - See Para 1-912:

The case law is VS v St Andrew’s Healthcare [2018] which identified the test of capacity required for the patient to bring proceedings before a tribunal, being “the patient must understand that they are being detained against their wishes and that the First-tier Tribunal is the body that will be able to decide whether they should be released”.

SM - Livewell [2020] in the UT reaffirmed this, stating that the test is deliberately couched at a low level and that it is not necessary that the patient has a sophisticated understanding of the powers of the Tribunal.

Jones goes on to make reference to para’s 37.45 and 37.46 of the Code of Practice.

"It is not the case that if a reference is made under S.67(1), a convention right is not violated in a situation where a patient either lacks capacity to apply or to authorise anyone else to make an application on their behalf.

I’d be interested if anyone can add more about the same day referral etc.

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Yes, here is some hearsay evidence, via an email to MHLA members, about that guidance (Mental Health Tribunal, ‘SM v Livewell Southwest - new process for references’ (30/6/21)):

Deputy Chamber President, Judge Johnston, described the system the Tribunal has put in place in cooperation with the Department of Health to ensure that a reference can be made on the day the Tribunal is sitting where the patient has been found to lack capacity to make the application.

If the Tribunal finds the patient did not have the capacity to apply to the Tribunal but the Tribunal decides it is the interests of justice to continue with a hearing after hearing submissions from the parties, the Department of Health has agreed to make an urgent reference on behalf of the Secretary of State for Health under Section 67 of the Mental Health Act 1983 so that the case can continue as listed that day.

In this situation, the Tribunal Judge will contact the Department of Health and if the reference is able to be made, the Hearing may be able to continue on the day.

Yes- I note that the referral can be made ‘in the interests of justice.’ This was not discussed in our case as the Judge seemed to think it was a requirement for them to refer.We have heard nothing about any referral so we will chase it. I am not sure whether we should contact DoH ourselves as we have no instructions but we were appointed under 11 (b) Any thoughts?

I’d say go for it. If anyone can request a reference be made (the UT in Livewell specifically mentioned IMHAs, the hospital managers, and the tribunal) then surely anyone can contact the DHSC to find out whether the tribunal has made a reference.

Well - we know they haven’t. The tribunal office have closed the file with no further action ,as I suspected ,even though the decision says it would be referred. My issue is what, if anything , we should do about it.

Maybe the chairman thought the secretariat would do it and vice versa. Just push the them to do it. If they refuse, I’d contact the DHSC and send them the relevant part of the panel’s written reasons.

I’m sure it would be all right for you to do that. It’s the sort of post-tribunal work we’d do for patients with capacity to instruct us (maybe something like liaising between the tribunal and the Parole Board) so should be fine here too. Going even further and seeking a reference is something that “anyone” can do, so maybe the current vague solicitor/client relationship is a red herring.