Safeguards before the MHTs

In the months since the introduction of the new mental health tribunals, we, as solicitors involved in tribunal proceedings have concerns about the failure of some tribunals to appoint curators ad litem to patients who as a consequence of mental disorder lack the capacity to instruct a solicitor. It is becoming increasingly clear that the principle of appointing curators ad litem to such patients is not being strictly adhered to. Our concerns are compounded by the directions issued by the President of the Tribunal and published on the Tribunal website (www.mhts.org.uk). In our view these directions misunderstand and misrepresent the test of capacity, when and why the appointment of a curator ad litem is necessary and the distinct roles which the named person, advocacy worker, primary carer and curator ad litem have in such proceedings.

Capacity: a legal issue

The President states correctly that the appointment of a curator ad litem is a matter for the tribunal and that the proper legal test is that the patient is incapable of instructing a solicitor. However the guidance states that the patient’s capacity is a matter for a medical expert (paragraph 2). This does not correctly address capacity.

The presumption in law is that persons have capacity to make their own decisions. Whilst medical evidence may assist in determining whether someone has or had capacity to make a decision, the issue is a question of law. Capacity is task-specific to the action or omission involved. For solicitors practising in the mental health field, the ability to assess whether a person has capacity to instruct them on the legal matter about which the person seeks assistance is essential. 

The presumption of capacity to make one’s own decisions is a fundamental right. If a person is incapable of exercising this right or if this right is to be removed, this necessitates strict adherence to the law and principles laid down to protect and safeguard such a person. One of these principles is the appointment of a curator ad litem to persons without capacity to instruct a solicitor. The curator acts as an officer of the court, appointed in order that the court can exercise its duties and be satisfied that the case is properly conducted in accordance with natural justice. The curator’s duty is to exercise judgment independently in order to protect and safeguard the interests of the person who is incapable of doing so themselves (Macphail, Sheriff Court Practice, paragraph 4.24).

Fairness and natural justice require that persons subject to any judicial process be given the opportunity to take part in proceedings and effectively respond to the case against them. Historically, the sheriff courts have long recognised the importance of the role played by the curator ad litem where patients without capacity were subject to mental health proceedings. The curator would conduct enquiries and instruct any necessary expert reports before conveying to the court the curator’s view on the legal appropriateness of the application.

ECHR considerations

It is well recognised in Convention jurisprudence that persons subject to mental health detention are protected by article 5(4). Those who are detained are entitled to certain minimum procedural safeguards. Where such persons are able to instruct a solicitor or make representations on their own, and are afforded the opportunity to test the evidence properly prior to a decision being made, then generally speaking the requirements of article 5(4) will be satisfied. Those incapable of instructing a solicitor due to mental disorder are entitled to the appointment of a curator ad litem in order to satisfy these requirements. Moreover there is a positive obligation upon the state to protect their interests. The European Court has concluded that persons who, on account of their mental disability, are not fully capable of acting for themselves may require special procedural safeguards to protect their interests (Winterwerp v Netherlands). Further, for the terms of article 6(1) to be met, persons subject to mental health proceedings have the right to test the evidence before the tribunal independently (Bonisch v Austria). The failure to appoint a curator ad litem in appropriate circumstances could amount to a breach of both Convention rights.

Practical implications

The President’s guidance implies that the patient’s named person, advocacy worker or primary carer can represent the patient’s views. This contravenes the patient’s rights on several grounds. First, none of these persons are likely to be legally qualified or to possess the necessary knowledge and skills to represent the patient adequately and conduct the proceedings on their behalf. A mere representation of a patient’s views does not amount to effective legal representation. Further, the position of the primary carer and/or named person is often in conflict with that of the patient. The approach implied in the President’s guidance is likely in our view to result in a breach of the patient’s fundamental rights. Moreover a tribunal following the President’s guidance could arguably be in breach of the Disability Discrimination Act 1995 by treating less favourably a patient who lacks capacity to instruct a solicitor.

We have been contacted by a number of concerned parties, including advocacy workers, who have been told by some tribunals that they should conduct the hearing on behalf of a patient incapable of instructing a solicitor. This is despite all parties, in some cases, being in agreement with the appointment of a curator ad litem. Other tribunals have concluded that as the patient’s named person was present, a curator ad litem was not necessary. These decisions demonstrate a fundamental lack of understanding on the part of these tribunals of the distinctive roles played by the curator ad litem, the advocacy worker and the named person. 

Whilst all relevant persons before the mental health tribunal have a right of appeal to the court, in reality individuals incapable of instructing a solicitor are precluded from pursuing this right. Therefore, if the tribunal fails to appoint a curator ad litem in the appropriate circumstances, in practical terms there is no redress available to the patient against the tribunal’s decision. This could result in a number of individuals being subject to detention in hospital to which they object, but having been denied the protection and safeguarding of their rights that a curator ad litem would have provided.

Undoubtedly the introduction of the mental health tribunals has many positive aspects. There was an expectation that the Act would strengthen the legal protection afforded to patients. We remain concerned that until this protection is extended to all of the most vulnerable patients, the system may continue to fail some of those it has been intended to protect.

Deirdre Hanlon and Karen McGill are solicitors in the Legal Services Agency’s Mental Health Legal Representation Project, Glasgow