View source for E89-21

=== Short note: capacity and the Mental Health Tribunal ===
On 23 July 2018 the Upper Tribunal (Administrative Appeals Chamber) handed down its judgment in VS v St Andrew’s Healthcare [2018] UKUT 250 (AAC) in which the nature of the capacity required by a patient to bring proceedings before the First-tier Tribunal in its mental health jurisdiction was determined on the papers.

Upper Tribunal Judge Jacobs rehearsed the relevant legal background, making it clear that he accepted that the test for capacity in the Mental Capacity Act 2005 codified or confirmed the pre-existing common law principles and the FTT should now apply the principles and approach set out in the MCA and its Code of Practice. On the test required by a patient to bring proceedings before the FTT, Judge Jacobs held that the:

<blockquote>
patient must understand that they are being detained against their wishes and that the First-tier Tribunal is a body that will be able to decide whether they should be released.
</blockquote>

As noted by Judge Jacobs, this test means that “the capacity required to bring proceedings is less demanding that the capacity required to conduct them.” The reasons for this stem largely from the wording of rule 11 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699) which provides that a FTT may appoint a legal representative for a patient where the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented. If “the same test of capacity were applied to bringing proceedings as applies to conducting proceedings, any decision by the First-tier Tribunal to appoint a representative under rule 11(7) for a patient whose capacity was not fluctuating would have the inevitable result that the proceedings had not been properly brought. Given that the existence of an application is the foundation of the tribunal’s jurisdiction, that case would then have to be struck out.” The Judge noted that this approach is consistent with Barker J’s decision in [https://www.39essex.com/cop_cases/re-rd-ors-duties-powers-rprs-s-39d-imcas/ Re RD] [2016] EWCOP 49 in which Baker J held that the capacity to bring proceedings in the Court of Protection required ‘P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements.’. This is of course a lower threshold than the capacity to conduct proceedings.
[[Category:E89]]