We submitted an application to a FTT on behalf of a client. At the time, we assessed her to have capacity to make the application but we are now concerned she has lost capacity. She is ambivalent with regards to her application, at times wishing to go proceed but also stating she doesn’t wish to have a hearing and unable to retain information about the tribunal, its powers and the process etc. What is the best course of action to take ? Should we ask to be appointed and act in her best interests or should we withdraw her appeal when she insists she does not need a hearing? Thanks in advance
Best course IMO is to go ahead with the hearing so that a decision can be made by the tribunal in the full circumstances of the case. Yes ask (offer) to be appointed by the tribunal under Rule 11(7)(b). (IANAL)
From your description, it looks possible that the client might be fazed by the requirement to understand the tribunal process. Perhaps also pessimistic about her chances : detained patients often feel powerless (“resistance is futile”). Maybe discuss reasons for her ambivalence, what the hearing might achieve, and possible drawbacks of going ahead?
The prospect of a tribunal hearing focuses the attention of the Responsible Clinician onto considering whether continued detention and treatment is really necessary. Asking the RC “What must I do to get out of here?” is also provocative. Availability of community support provided by family or friends (or social services) can be persuasive.
I second this. The fact is - no human being wants to be institutionalised and drugged to death with their liberty stolen from them. Let the courts decide. Do your best to give her that opportunity to be free.
The risk with proceeding of course, is that if the patient does not get discharged, their one application during that appeal period is gone. If capacity to instruct etc is lacking, their wishes at the time must still be given due consideration as part of determining what might be in their best interests, especially as it is an application and not a referral.
That’s a good point. You want to give the person their best chance. What would happen if the application was removed? Does S.M feel that her capacity will be better as time progresses under section - so she can then reapply again?
I think there is a possibility client’s capacity fluctuates and there is a possibility she may regain capacity before her hearing, but I’m unsure . The advocate who has met the client suggested going ahead with the hearing as the client did not utilise her right to appeal following her first initial referral last year and is missing out on independent review of her case. I’m not much clearer on what the next steps should be although I appreciate the debate
She is ambivalent with regards to her application, at times wishing to go proceed but also stating she doesn’t wish to have a hearing and unable to retain information about the tribunal, its powers and the process etc.
I understand having mixed feelings about something quite daunting.
However, in terms of her memory. At the start she was fine. So what has made her suddenly forgetful? What has she been diagnosed with and are they medicating her?
The advocate who has met the client suggested going ahead with the hearing as the client did not utilise her right to appeal following her first initial referral last year and is missing out on independent review of her case.
So the advocate only approved to go ahead based on the fact she did not appeal last year? Does the advocate share the same views about her capacity as you do? Does she think it can improve? Was there a reason why she did not utilise her appeal last year?
What Rob said, but if you want to preserve the hearing date, I would seek the S.67 Reference first then apply for them to be heard-together and the application to be struck-out under Rule 8 for lack of jurisdiction.
A S.67 Reference is any discretionary reference made by the Secretary of State for Health & Social Care.
You’re right that these are often made for patients outside of the 14-day time limit to appeal against a Section 2, but they’re used in other circumstances too.
For example, someone lacking capacity to make an application to the Tribunal cannot validly use their normal “once per eligibility period” application and would have to wait for either a 6-month/3-year HM reference, or a Nearest Relative application. If there’s no Tribunal on the horizon and no NR to make the application for them, someone (anyone) can make a S.67 referral to ensure that the Tribunal considers their case despite the patient being unable to make the application themselves.
Glad you replied - felt a bit lonely after being ghosted by SM with my persistent questions (making a terrible joke).
Hope I don’t sound silly here:
Rob is saying do the R11(7)(B) to prove that this person lacks capacity via the RC assessing them to do a tribunal - withdraw application - this will then prolong their stay under section. However, then the solicitor can request a S.67 referral at any time to get the tribunal to review their case?
I’m so sorry, I only just saw your comments now - not sure how those were missed ! Thank you all for your invaluable input. The action plan is as follows : Client has been found to lack capacity. Ask for a rule 11 7 b appointment. Request a s67 referral. Make an application for the matters to be heard together but only proceed with the referral . This way the client will still get an independent review . Thank you all once again, what a clever bunch you are
My questions were trying to understand it from the client’s perspective and trying to put everything together to find a solution for you. But my understanding of law is in it’s primitive state. Hopefully I can gain more input and develop myself so I can help others in the future.
