When gaps don’t breach Convention rights

Tuesday 7 February 2017

R (OK) v FTT [2017] UKUT 22 (AAC), MHLO 3, 12 January 2017 Application signed by solicitor on behalf of patient lacking capacity is struck out.

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R (OK) v FTT [2017] UKUT 22 (AAC), MHLO 3, 12 January 2017

This case upholds a First-tier Tribunal's decision to strike out an application to the Tribunal. The applicant lacked capacity and the application form appealing against his s.3 detention under s.66 had been signed by his solicitor and not him. By the time of the hearing, the solicitor had been appointed under r.11(7)(b) as the patient’s representative.

At the hearing, the FtT stated ‘It does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so’ and concluded that the application was therefore invalid. The hearing was adjourned to enable the patient’s solicitor to provide reasons why the application was valid or agree it was invalid. The hearing did not resume. Instead, the solicitor provided written representations as to why the application was valid. The Tribunal Judge subsequently ruled the ‘the matter may be closed as an invalid application.’ This decision was then judicially reviewed.

The Upper Tribunal refused the application for judicial review. It found that the Judge’s decision to strike out the application under r.8 – although not expressed as such was in fact what the decision amount to – and striking out the application was not an unlawful decision.

It was argued on the patient’s behalf that R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 was distinguishable from the facts of this case but the UT disagreed.  The UT accepted that there ‘appears to be a gap in the protection of a patient’s right to bring their case before the First-tier Tribunal’ but went on to say, despite argument to the contrary that the gap ‘disappears when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package’.

Despite argument to the contrary the UT decided that it was not necessary to read section 66(1)(i) as applying to a ‘patient (with the assistance of a litigation friend if needed)’ and it held there was no violation of the patient’s Convention rights.

The Court observed that an application could have been made for the Secretary of State to refer his case under s.67 and in the event of that being refused, an application for permission to judicially review that decision could have been made.

Full judgment: http://www.bailii.org/uk/cases/UKUT/AAC/2017/22.pdf

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