1. 1 Mental Health Lawyers Association 15th Annual Conference Friday 14 November 2014 Developments in Mental Health Practice - The Official Solicitor’s View Alastair Pitblado, barrister The Official Solicitor to the Senior Courts

2. 2 IS THE MENT IS THE MENTAL CAPACITY ACT COMPATIBLE WITH THE UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES? IF NOT, WHAT NEXT?

3. 3 AN ESSEX AUTONOMY PROJECT POSITION PAPER This report represents the views of the authors. It should not be taken to represent the views of the Ministry of Justice, the Arts and Humanities Research Council, or other participants in the roundtable meetings that comprised an essential part of this project.

4. 4 EXECUTIVE SUMMARY This report is the culmination of a collaborative six-month project examining the question of whether the Mental Capacity Act (MCA) is compliant with the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The main findings of the report are as follows.

5. 5 EXECUTIVE SUMMARY 1. The Mental Capacity Act of England and Wales is not fully compliant with the United Nations Convention on the Rights of Persons with Disabilities, to which the UK is a signatory.

6. 6 EXECUTIVE SUMMARY 2. The definition of “mental incapacity” in s.2(1) of the MCA violates the antidiscrimination provisions of UNCRPD Art. 5, specifically in its restriction of mental incapacity to those who suffer from “an impairment of, or a disturbance in the functioning of, the mind or brain.”

7. 7 EXECUTIVE SUMMARY 3. The best-interests decision-making framework of Section 4 of the MCA fails to satisfy the requirements of CRPD Art. 12(4), which requires safeguards to ensure respect for the rights, will and preferences of disabled persons in matters pertaining to the exercise of legal capacity.

8. 8 EXECUTIVE SUMMARY 4. MCA s.2(1) should be amended to remove the following words: “because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

9. 9 Baroness Hale, Deputy President of the Supreme Court in her lecture to the Mental Health Tribunal Members’ Association 2014 17 October 2014 ‘The Other Side of the Table?’ said The UN Convention does present a problem with which we did not need to grapple in the Surrey and Cheshire cases. Article 14.1 provides: “States Parties shall ensure that person with disabilities, on an equal basis with others: 13 (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.”

10. 10 ‘The Other Side of the Table?’ cont’d Taken literally, those last words might suggest that both the Mental Health Act and the Mental Capacity Act are in breach of the Convention by providing for people with mental disorders and disabilities to be deprived of their liberty. There may be ways of reconciling them, for example, by suggesting that disability alone is not a sufficient justification. But for us the law is clear: those statutes do authorise it, but public authorities, including courts and tribunals, must operate them compatibly with the European Convention, which also authorises it in certain circumstances.

11. 11 Is Art 5(1)(e) ECHR compatible with Art 14.1 UNCRPD?

12. 12 EXECUTIVE SUMMARY 5. The best-interests decision-making framework on which the MCA relies should be amended to establish a rebuttable presumption that, when a decision must be made on behalf of a person lacking in mental capacity, and the wishes of that person can be reasonably ascertained, the best-interests decision-maker shall make the decision that accords with those wishes.

13. 13 EXECUTIVE SUMMARY 6. The United Nations Committee on the Rights of Persons with Disabilities is not correct in its claim that compliance with the CRPD requires the abolition of substitute decision making and the best- interests decision-making framework.

14. 14 What are the duties of a litigation friend at common law? Sir Robert Megarry V-C said in Re E (mental health patient) [1984] 1 All ER 309 at pages 312-3 "The main function of a [litigation] friend appears to be to carry on the litigation on behalf of the [party without litigation capacity] and in his best interests. For this purpose the [litigation] friend must make all the decisions that the [party] would have made, had [they] been able...It is the [litigation] friend who is responsible to the court for the propriety and the progress of the proceedings. The [litigation] friend does not, however, become a litigant himself"

15. 15 What does that mean? The litigation friend must not instruct P’s or the protected party’s solicitor to advance an argument which is not properly arguable. What is properly arguable may be a comparatively low test but the litigation friend’s duty is primarily to conduct the litigation in the party’s best interests

16. 16 Cases under the Mental Capacity Act 2005 Are about best interests decision- making for persons who lack the mental capacity to make the decisions themselves

17. 17 Best interests under the Mental Capacity Act 2005 Section 1(5) provides that any act done or decision made for the person lacking capacity must be done or made in that person’s best interests. Section 4 defines best interests. By virtue of section 4(2) any person making a determination of the person’s best interests must consider all the relevant circumstances (as defined in section 4(11)) and take certain steps.

18. 18 Best interests in respect of medical acts and decisions, and in medical cases A person’s best interests in making such decisions are not limited to the clinical assessment of what is medically in the patient’s best interests and the decision- maker is obliged to take into account a broad spectrum of medical, social, emotional and welfare issues.

19. 19 The Law Society’s Guidance of 2011 4.1 Clients with litigation capacity You must act in accordance with your client’s instructions, even where they are inconsistent, unhelpful to the case or vary during the preparation of the case…Your duty to act in accordance with the client’s instructions takes precedence over your duty to act in their best interests.

20. 20 The Law Society’s Guidance of 2011 (cont.) But that is subject to 2 exceptions according to the Law Society Guidance Instructions affected by duress or undue influence, or Where appointed under rule 11(7) of the First-tier Tribunal Rules, the legal practitioner has the same duties as a litigation friend. So you exercise your judgement and advance any argument that you consider to be in the patient’s best interests and that will not necessarily involve arguing for discharge. And you must not advance an argument which is not properly arguable. But you are not permitted to advance submissions contrary to your client’s instructions on the basis that you believe it to be in the client’s best interests to do so.

21. 21 Law Society’s Guidance Section 5 deals with the legal representative’s duties to their client I invite your attention to paras 5.1, 5.2, 5.2.1 and 5.2.2. (Am I the only one confused by the guidance especially when read with section 4?) In the guidance a distinction is drawn between legal best interests and clinical best interests. But the considerations when conducting proceedings in the protected party’s best interests, are restricted to legal best interests.

22. 22 What does that mean? (cont.) It means that the litigation friend’s duty may be subtly different from that of the legal practitioner representing a client before the First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales.