People with mental health problems are being denied justice by some Court of Protection judges who fail to even consider hearing patients’ testimony, leading lawyers have told a House of Lords inquiry.
The Independent has seen a paper submitted by top barristers and solicitors working in the Court of Protection expressing serious concerns about the execution of Britain’s mental health law. They argue the “marked variation” in judges’ willingness to listen to patients’ wishes may breach their human rights.
The court, which makes major life decisions on behalf of those deemed to lack capacity to do so, uses the Official Solicitor to represent the best interests of that person. However what is deemed to be in a patient’s “best interests” often conflicts with the wishes they themselves express.
“There is marked variation in the willingness of judges to meet P [the patient] and allow P to give evidence, or put across his/her views in whatever way is suitable,” the coalition of lawyers said. “We have considerable doubts that the current system which does not presume that judges should have ‘personal contact’ before making decisions about their capacity or best interests is compatible with the European Court of Human Rights.”
Although some judges make a point of involving the patient in proceedings, such as inviting them into court to give testimony or travelling to see them in person, others fail to engage directly with them at all. Lawyers say that though in some extreme cases it may not be practical or advisable for a patient’s testimony to be heard it should be their right to speak to a judge if they can.
A House of Lords’ committee is currently scrutinising the Mental Capacity Act, which was passed under New Labour in 2005, giving the Court of Protection greater powers to make decisions on behalf of those deemed to lack capacity. The lawyers’ submission will be one of many it considers before reporting its findings in 2014.
Charlotte Haworth Hird, a solicitor who contributed to the submission, said that depriving patients of the right to speak for themselves “can lead to injustice”. She added: “Just because someone is deemed not to have capacity doesn’t mean they shouldn’t have the chance to speak to the judge about an important decision affecting their lives. It’d be better if more judges applied their minds as to whether they should be hearing directly from an individual.”
Paul Farmer, Chief Executive of the mental health charity Mind said: “We are deeply concerned about any evidence which suggests that people with mental health problems are still not being supported to access and participate in proceedings about their care, when they are assessed to lack capacity.
He added: “The Mental Capacity Act also does not adequately protect the rights of people who are assessed as incapable of making their own decisions.”
A litany of other serious problems with the way the Mental Capacity Act is interpreted were identified by lawyers. They said that assessments of whether someone lacked capacity were “often poor quality” and that once cases were in court there was rarely a proper test of whether the patient was mentally incapacitated.
Retired judge Sir Mark Hedley said: “What often happens is parties will tell you there’s no issue about capacity and then you get on with it. It’s only when there’s a contested issue about capacity that it will get really tested.”
Commenting on the quality of the court, Sir Mark said: “My view of the Court of Protection is it’s still developing and it’s still got some way to go. It took the Children’s Act years to settle down and I don’t think it will be any different [for the Mental Capacity Act]. I think there’s stacks to be done but I think it’s fundamentally a good piece of legislation.”
There is still confusion amongst health professionals as to what counts as “serious medical treatment” and when to go to court to obtain declarations on what treatment to pursue, lawyers said. One example they gave was a case “in which an autistic young adult had all his teeth permanently removed to stop him self-harming, without the Court’s involvement”.
Lawyers believe that patients who make controversial decisions are left vulnerable to the court assuming they lack capacity. “We have the impression that where decisions a person makes are contentious, there is often a swift conclusion that the person lacks capacity, and substituted decisions are made for them,” they wrote.
There is also “no specific training” for those charged with deciding if someone is capable of making their own life decisions, according to the submission. Training is an issue amongst judges too, particularly in the district courts. “There are some courts in which district judges have had no training in the Mental Capacity Act”, they said, adding: “This should not be acceptable.”
The submission painted a shambolic picture of the regional courts, when compared to the London High Courts. Its authors said there was a “lack of consistency” between the two and that in the former there were “frequent problems with documents being lost or unavailable, and orders not being sealed promptly”.
Families are often marginalised unfairly from decisions when they disagree with the statutory body, experts said. ”We suspect that where family members agree with the statutory body, they are consulted, but where they do not, they are marginalised… We know of numerous cases in which decisions made by public bodies subsequently turn out on proper consideration to have been flawed, often because the views of relatives were not taken into account properly, or were discounted due to unsubstantiated concerns about their conduct.”
When people are deprived of their liberty, for example by being taken into care, authorisation is usually applied for after the fact, making it difficult to change the situation for the patient. Lawyers described how they had seen “many, many cases in which P is discharged from hospital to a care home against P’s wishes, but no authorisations are applied for at that stage, nor is the Court’s involvement sought.” Once that person is in a care home it is, they said, “exceptionally difficult” to persuade the Court that they should return home. “No matter how vociferously P objects... the status quo usually prevails, and/or the statutory bodies simply refuse to fund care at home for P which means that there is no option of a return home.”
In a further worrying sign for patient’s rights, the submission observed that “There seem to be no penalties for statutory bodies who fail to comply with the Code of Practice or the court’s guidance about authorising a deprivation of liberty in advance.”
The decisions of the court came under scrutiny earlier this month (DEC) when it emerged Italian mother Alessandra Pacchieri had a caesarean section performed against her wishes and that her daughter was later taken into care.
Cases can be very long-winded, in part because of delays with the Official Solicitor’s office, lawyers said. Victoria Butler-Cole, a barrister at 39 Essex Street who put together the submission on behalf of 12 leading lawyers working in the court, said: “It definitely does need speeding up, but the risk if you speed it up too much is that there won’t be a proper opportunity to look into the reality of a situation.”
The cost of applying to the court was also off-putting, according to lawyers, who said they had “examples of cases where people have decided not to apply to the Court for a decision because of the costs.” Reforms to legal aid - and complicated funding rules - have not made this any simpler, they said, explaining that inconsistencies “could result in a miscarriage of justice.”
A Ministry of Justice spokesman said: “The Mental Capacity Act was created to protect the interests of some of the most vulnerable people in our society and we want to ensure it continues to fulfil that purpose. We are grateful to the Lords Select Committee for their ongoing work in this area and will give careful consideration to their final report and recommendations when they are published next year.”
A spokesman for the Judiciary said: “We await the findings and conclusions of the Lords' committee which will be considering these allegations and a wide range of evidence, including evidence taken from judges.”