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Was B wrong?
A flight of fancy maybe but I’d appreciate thoughts…
To give a bit of background, I’m now working in an acute mental health setting.
A common problem is DLA overpayments when detained for more than 28 days. Obviously some people do not have capacity to make disclosure during that detention.
B vs SSWP {2005} EWCA Civ 929 would have us believe that mental capacity was no longer material and so be it, however…
The Mental Capacity Act sought to codify a number of processes that had previously been considered in Common Law.
The 2005 MCA, at S5(3) provides that “Nothing in this section excludes a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.”
Was Parliament legislating against something there?
Would that infer that prior to Oct 2007 there was some protection in Common Law which Parliament sought to disrupt? If there was an overriding protection at common law predating the MCA, might that base a foundation for arguing that B was wrongly decided?
I’m going to do some proper work now; Ive got a headache!
Section 5 of the MCA allows for someone to make a decision for another regarding the care or treatment of that person where the person making the decision has grounds to believe that the other person lacks capacity. However the person still has a common law duty of care to the other person and, of course, must be careful not to leave himself open to charges under the criminal law, for example, a possible assault, I presume . Section 5(3) makes it clear that these remedies (a civil suit for negligence or criminal charges) still remain for the person who might lack capacity despite the act being lawful under the MCA.
these remedies ... still remain
My question was more whether it effected those remedies…
Considering the context in which the MCA came about; I can;t remember the name of the case now but it was an Autistic chap who complained that his art 2 right to freedom was infringed when he was detained in his own best interests, then I can see a policy intent in re-inforcing a separate liability to civil and criminal remedy in the face of negligence where their capacity is in question.
How much that liability was fettered in pre MCA days is what I’m wondering!
There has historically been a balance struck here between the power of the state to protect the individual from himself and the individual’s right to make bad decisions for himself under part 2 of the Mental Health Act 1983. The balance was given a new dimension under the Human Rights Act and further honed under the Mental Capacity Act. I think that this has re-enforced the right of the individual not to be detained against his will or forcibly treated on the sole ground of bad decision making.
I certainly don’t think that the common law duty of care or the right to bring criminal charges has been affected one way or the other by the MCA. On the contrary the Act makes it clear that actions which interfere with the autonomous decision making of the individual which are lawful under the MCA are still vulnerable to legal challenge in the same way that they were before the coming into force of the Act.
Good afternoon,
I read this thread with particular interest as I have been experiencing similar problems for the last 3 and a bit years. I too work with people who, from time to time, are detained in psychiatric units/hospitals under Section 3 of the Mental Health Act. This frequently results in recoverable overpayments of many hundreds, or sometimes thousands of pounds. Although I have had some success at review or appeal with the reasonableness argument, very often recoverabilty remains the reality.
It is the case that the duty of declaration always rests with the claimant or appointee, should there be one. However, and most worryingly, at a recent 1st teir appeal the chairperson, whoops sorry, judge I mean, was minded to suggest that that duty could be placed at the feet of a care coordinator or, frighteningly, a Welfare Rights Officer. It’s okay, I can hear the cries of point of law from here; the matter is being pursued as I write.
With the doubts over responsibilities of ward clerks and others being prevalent, and the difference of approach in different hospitals in our area , I posed the question of duties to the Shadow Secretary of State for Health, Andy Burnham t’other week. He took on board my questions and the points I raised about potential breaches confidentiality by declaration by others and he agreed to write to the Secretary of Sate for Social Security [IDS] for clarification. I await a response to my question - so watch this space.
Thank you.
Patrick.
Hang on a mo people, the cited bit of the MHA (s5(3), was it?) is about your liability as a defendant in these cases, not your right to bring a case as a claimant.
That’s precisely my point. The MCA does not add or subtract from the vulnerability of the person doing the act to causes of action which lie outside of the MCA for an act which itself is lawful under that act.
[ Edited: 20 Nov 2012 at 07:39 pm by nevip ]If we take the position of someone who actually cannot do a disclosure to the DWP because they are (for example) prevented from using the telephone etc or visiting the DWP office then I am not sure that B is a problem.
The issue in that case was whether the test of “failure to disclose” included a “reasonableness” requirement (eg if claimant acted reasonably in all the circumstances then that ok). Specifically the issue was raised for Ms B as a comparison between a claimant who knew a fact and did not appreciate its materiality and a claimant who did not know a fact (this was the HR argument).
As we know, the Court of Appeal dealt with it as it did.
However, what the Court’s decision makes clear is that the test is whether there has been a breach of Reg 32(1), (1A) or (1B) C&P Regs.
The duty under Reg 32(1B) (the general duty) is to disclose things which you might “reasonably be expected to know”. So there is a reasonableness test there.
The duty under Reg 32(1) or (1A) is different (the specific duty). This deals with cases where the SSWP has specifically required disclosure (usually on the INF1 leaflet etc) and the claimanat has failed to disclose as required. However, it is worthwhile paying careful attention to what the claimant is required to do under these rules- the legislation says the claimant must “furnish in such manner and as such times as the SSWP may determin”. The “such times” bit is therefore dealt with in the leaflets- many of these use the phrase “as soon as you can”. So if a claimant simply cannot tell the DWP earlier because they are in hospital don’t they have an argument they have not failed in the duty? Worth a try I think- and I don’t think ruled out by the Court in B.
[ Edited: 22 Nov 2012 at 12:55 pm by Martin Williams ]I did once deal with an appeal by a chap who had been arrested and was in prison pending trial. He had no access to a telephone but had asked the prison services to notify DWP of his arrest, which they failed to do. Later he got nobbled for an overpayment. The appeal succeeded on very much this basis, that he simply could not carry out the duty to notify, and had no idea that the person who had undertaken to do it for him had failed to do so..
i have said before that I think B is wrong; B was before the Mental Capacity Act. Given that, I remain of the view that where someone has no capacity/understanding/etc AND no appointee, then it can be very much argued that B is wrong.
Where do the duties of the hospital to a detained patient lie in this?
We almost never have the problem described by Patrick as the moment the patient arrive in our local Psychiatric Hospital they are asked to sign a form allowing the Patients Accounts department to let DLA know they have been detained, they even have a special form to send in. The patient can opt out of this if they want to (but seldom do) and I guess that if it was judged that the patient did not at that moment have capacity to make an informed choice there would have to be a ‘best interests’ decision as to what to do.
I don’t know if this is a duty of the hospital under the MHA or duty of care when a patient is detained but even if it just an option it is a good one and has no doubt saved lots of heartache.
The “such times” bit is therefore dealt with in the leaflets- many of these use the phrase “as soon as you can”. So if a claimant simply cannot tell the DWP earlier because they are in hospital don’t they have an argument they have not failed in the duty? Worth a try I think- and I don’t think ruled out by the Court in B.
I was thinking earlier in the week when I didn;t have time to attend to this that sight of the inf 1(DLA) would be useful. Don’t suppose anyone’s got a copy they could scan/fax over to me? dan.manville AT wolverhampton DOT gov DOT uk
Where do the duties of the hospital to a detained patient lie in this?
We almost never have the problem described by Patrick as the moment the patient arrive in our local Psychiatric Hospital they are asked to sign a form allowing the Patients Accounts department to let DLA know they have been detained, they even have a special form to send in. The patient can opt out of this if they want to (but seldom do) and I guess that if it was judged that the patient did not at that moment have capacity to make an informed choice there would have to be a ‘best interests’ decision as to what to do.
I don’t know if this is a duty of the hospital under the MHA or duty of care when a patient is detained but even if it just an option it is a good one and has no doubt saved lots of heartache.
It depends on the hospital but I’m tempted to try and get such a disclosure, the problem is; and this appears all too frequent, that patients are non compliant with such requests; certainly in the 3 cases I’m considering that is a big part of the issue; that’s not to say however that they’ve got capacity to undertake the task in hand, it’s a feature of their illness and their reaction to the environment that they find themselves in that they can’t.
I’ve looked quite hard at the MHA and MCA and can’t see a statutory duty of care, even then where an overpayment remains recoverable from the person to whom it was paid that would seem otiose.
[ Edited: 23 Nov 2012 at 03:06 pm by Dan_Manville ]If we take the position of someone who actually cannot do a disclosure to the DWP because they are (for example) prevented from using the telephone etc or visiting the DWP office then I am not sure that B is a problem.
Sadly that’s not the case; patients are encouraged to disclose but do not have capacity to understand the implications nor are they minded to comply with any requests by practitioners.
Section 5 of the MCA allows for someone to make a decision for another regarding the care or treatment of that person where the person making the decision has grounds to believe that the other person lacks capacity. However the person still has a common law duty of care to the other person and, of course, must be careful not to leave himself open to charges under the criminal law, for example, a possible assault, I presume . Section 5(3) makes it clear that these remedies (a civil suit for negligence or criminal charges) still remain for the person who might lack capacity despite the act being lawful under the MCA.
I was reading it in isolation… silly me!
I did once deal with an appeal by a chap who had been arrested and was in prison pending trial. He had no access to a telephone but had asked the prison services to notify DWP of his arrest, which they failed to do. Later he got nobbled for an overpayment. The appeal succeeded on very much this basis, that he simply could not carry out the duty to notify, and had no idea that the person who had undertaken to do it for him had failed to do so..
When was that?