healthcare update - issue eight
Mental health update
What evidence is required about a person’s mental
capacity to justify an interim order being made under Section 38
Mental Capacity Act (MCA) 2005?
In the case, Re: F, F suffered from a dissociative
disorder of movement and somatisation disorder leaving her bed
bound and in pain. Care was provided to her by the local authority
who always treated F on the basis she could make her own decisions
about care.
F brought proceedings for a declaration under s.15 MCA 2005 to
determine her mental capacity. She proposed that the Court exercise
its powers to make interim orders and directions under s.48 by
joining the local primary care trust and local authority as
interested parties and ordering a psychiatric report. Evidence
about F’s capacity was mixed but the Court declined to make any
interim order. It held that there was insufficient evidence to
rebut the presumption of capacity and as such, it had no
jurisdiction to make the order F sought.
On appeal, the Court held that there was a lower threshold under
s.48 than there was under s.15 given it was only an interim power.
What was required was simply sufficient evidence to justify a
reasonable belief that the person might lack capacity.
The decision in Re: F is very much based on common
sense. Given the powers under s.48 are expressly stated to enable
steps to be taken pending a declaration under s.15, it follows that
the evidence required is less than that required to make the
ultimate decision.
How the Court has applied the test under Section 139
Mental Health Act (MHA) 1983
Under s.139 MHA 1983, a claimant needs the permission of the
High Court to bring a legal claim in respect of any act purporting
to have been done in pursuance to the MHA. In David Johnston v
Chief Constable of Merseyside, Mr Johnston made such an
application after he had been sprayed with CS gas by a police
officer, handcuffed, detained and taken to hospital. The police
officer alleged that he had been acting in accordance with s.136
MHA, i.e. he had found Mr Johnston in a public place, apparently
suffering from a mental disorder and in immediate need of care and
control.
The purpose of s.139 is to ensure that those acting under MHA
are not exposed to baseless and frivolous claims. The test
therefore required striking a balance between that risk and the
interests of the applicant to seek the adjudication of the courts
upon any claim he may have.
In applying that test, the Court had to decide whether the
complaint deserved fuller investigation and also whether it had a
real prospect of success.
The Court gave permission in Mr Johnston’s case, as not only was
there a third party witness to the events, but also his injuries
were such that it was at least arguable that the force used by the
police officer was excessive and disproportionate. Also, there was
legitimate debate over whether the police officer even mentioned
s.136 when he detailed him. Mr Johnston’s case therefore passed the
necessary threshold. It was not vexatious, frivolous and had a real
prospect of success.
Whilst very much turning on its individual facts, this case is a
useful demonstration of how the Court applies the test under s.139
MHA, which is a provision not often under the scrutiny of the
courts.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.