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The Royal College of Psychiatrists Improving the lives of people with mental illness

Important new requirement for a capacity assessment of CTO patients automomatically referred to the Tribunal


Important new requirement for a capacity assessment of CTO patients automomatically referred to the Tribunal

Automatic referrals and CTO patients – the law

The Secretary of State may refer a case to the tribunal at any time. The hospital managers must refer to the tribunal the case of any CTO patient:

 

  • who has not made any application to the Tribunal in the six months following their initial  detention.
  • if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his / her case was last considered by a tribunal.
  • where the CTO is revoked, the hospital managers must also refer the patient’s case to the tribunal as soon as possible after the order is revoked. The tribunal has no choice but to consider the referral- even if the patient is then discharged back onto a new CTO before the referral is heard.

 

However, a change to the tribunal rules now permits a ‘paper only’ consideration by the tribunal (rather than a full hearing) if the community patient is 18 or over and makes a capacitous decision that they do not wish to attend a hearing nor wish their legal representative to attend a hearing on their behalf.

 

As the Deputy Chamber President has said: “the intention is to save everyone (including the RC) from having to personally attend stressful and unnecessary hearings, where the case can be justly and fairly decided by the tribunal on the papers.”

A statement of capacity by the RC is now required by the tribunal in such circumstances

The new Practice Direction requires the RC to include in their report an assessment of the patient’s capacity to decide whether or not to attend, or be represented at, a hearing of the reference. The RC’s view will be an important consideration although the tribunal will consider all the available evidence, including the patient’s general ability to make capacitous decisions in the community, and the final judgement on capacity will rest with the tribunal. As in all other aspects of the tribunal’s work, however, the RC is obliged to provide an expert opinion, which will always be carefully considered.

 

Whether or not a hearing takes place the RC and others must provide the usual tribunal reports, in accordance with the Practice Direction.

What do you need to do?

It is essential that you check that the patient has all the relevant information they need in order to make this important decision about whether or not to attend a hearing or to have legal representation.

 

The tribunal will always send a short factsheet to the patient that explains the decisions that can be made (see below), and their consequences. The patient must confirm their decision not to attend or be represented in writing.

 

The options the patient must consider are:

 

  1. To attend the hearing with or without a legal representative
  2. Not to attend but to ask their legal representatives to attend (in this case the patient would need to be seen by the Tribunal doctor).
  3. To neither attend the hearing nor ask their legal representative to attend. In this case the tribunal can decide the case by reading all the reports without having a hearing.

 

It would also be good practice to assess the patient’s understanding of the CTO and the powers it confers on the Responsible Clinician most particularly the power of recall and in what circumstances treatment can be given in the absence of consent. (This would have been done, in any event, when the patient was first considered for a CTO.)

 

A patient must also have sufficient information about the powers of a tribunal to discharge the CTO, and what the implications of staying on the CTO (and of discharge) might be.

 

Evidence to date would suggest the chances of discharge are less if there is a “paper only” review, so if a patient seeks discharge we would expect a capacitous patient to opt for a hearing.

 

The patient should also be informed of their right to seek legal advice, and reminded that they may also benefit from the input of an Independent Mental Health Advocate to assist them in considering their options.

 

Although there is no formal guidance from the tribunal, it would be good practice to describe capacity in relation to the test of capacity in s2 and 3 Mental Capacity Act 2005.

Dr Joan Rutherford (Chief Medical Member, First Tier Tribunal – Mental Health) and  Dr Julie Chalmers, Specialist Advisor in Mental Health Law, Royal College of Psychiatrists.

 

 

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