Author: M.H.L.A.

October 2013 mental health law update

Updates from Mental Health Law Online

Cases

  • ECHR case. MH v UK 11577/06 (2013) ECHR 1008, (2013) MHLO 94 — “…in relation to [her s2 detention], the applicant did not … have the benefit of effective access to a mechanism enabling her to ‘take proceedings’ of the kind guaranteed to her by Article 5(4) … The special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking in relation to the means available to her to challenge the lawfulness of her [detention] …” [A summary of this important decision will follow.]
  • Medical case. Aintree University Hospitals NHS Foundation Trust v David James (2013) UKSC 67, (2013) MHLO 95 — “This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?” [Summary required.]
  • Sex case. A Local Authority v TZ (2013) EWHC 2322 (COP), (2013) MHLO 91 — “The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations.” [Summary required.]

Law Society

  • Law Society, ‘Hazards with the use of Court-approved Deprivation of Liberty Safeguards (DoLS) and Legal aid’ (4/10/13). See Law Society
  • Law Society, ‘House of Lords Select Committee: Mental Capacity Act 2005: [Response to] Call for Evidence’ (September 2013). See Law Society

Articles/newsletter

  • Vicky Ling, ‘Mental Health, Public Law, Actions Against the Police etc., Clinical Negligence, Community Care Contracts – What’s happening?’ (Legal Aid Handbook Blog, 21/10/13). See Legal Aid
  • Andy McNicoll, ‘CQC to appoint senior mental health inspector to “root out poor services”‘ (Community Care, 11/10/13). See CQC#Other

Event

  • Event. Fenners Chambers in Cambridge will be running their second Annual Mental Capacity Symposium, ‘Vulnerable Adults in the Justice System’, over 5 evenings from Monday 11/11/13 to Friday 15/11/13. Seminars will cover the following practice areas: Mental Health and Capacity, Employment, Crime, Public Law, Family, Elderly Client, and Property. The Keynote Address on 15/11/13 will be given by Dr Jan Wise, Chair of the BMA’s Medico-Legal Committee, on Capacity Assessments and Best Interests Decision-Making. Price: £30 including VAT per seminar before 25/10/13; £36 including VAT after 25/10/13. CPD approval has been applied for: 1.5 hours for for the seminars; 1 hour for the Keynote Address. See Fenners Chambers website for further details. See Events

Website

  • Email discussion list. The discussion list is now back online. For details of the list, see Discussion
  • CPD. LSC category supervisors must ‘undertake a minimum of 6 hours of Continuing Professional Development per year in the Mental Health Category of Law of which no fewer than 3 hours must be on the Mental Capacity Act 2005’. The CPD questionnaires currently online are sufficient for this purpose. All questions are mental-health-related, but the following are MCA-related: Sep 2012 (0.5 hours), Oct (0.5), Nov (0.5), Dec (0.25), Jan 2013 (0.5), Feb-Mar (0.5), Mar (0.5), Apr (0.75), May (0.5), Jun-Jul (0.75), Jul (0.25), Aug (0.5). See CPD scheme

September 2013 mental health law update

Updates from Mental Health Law Online

Cases

  • Legal Aid case. R (Moosa) v LSC (2013) EWHC 2804 (Admin), (2013) MHLO 90 — In Court of Protection proceedings, the patient’s mother was financially ineligible for Legal Aid (the equity in her home was about £65,000 over the £100,000 limit) so the patient’s brother was added as a party purely because he would be financially eligible. The LSC refused him funding, for reasons including that the mother should fund the case. Permission to apply for judicial review of that decision was refused.
  • LPA case. Re Boff (2013) MHLO 88 (LPA) — The donor of a Lasting Power of Attorney cannot appoint a replacement attorney to succeed another replacement attorney.
  • Neary Housing Benefit case. Neary v LB Hillingdon (2013) MHLO 87 (SEC) — Mark Neary’s appeal against Hillingdon’s decision to end Housing Benefit was unsuccessful: as he was estranged from his wife, who lived separately in a jointly-owned property, his share of the property counted towards the statutory limit for Housing Benefit purposes.
  • Brady decision added (from June). Re Ian Brady (2013) MHLO 89 (FTT) — The tribunal concluded that ‘Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.’
  • Neutral citation and transcript added. EC v Birmingham and Solihull Mental Health NHS Trust (2013) EWCA Civ 701, (2013) MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient’s treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.]

Law Society

  • Law Society practice note. During 2013 the Law Society published a 30/9/11 version of their ‘Representation before mental health tribunals’ practice note. The revisions since the 19/5/11 version relate to the 2011 Code of Conduct which replaced the 2007 Code: (a) five new introductory paragraphs at 1.2, and ‘will be updated’ replaced by ‘has been updated’; (b) second paragraph of 3.2, in relation to client care letters, replaced by three new paragraphs; (c) abbreviations added at 8.5. Other references to the 2007 Code are unchanged. See Law Society practice note on representation before Mental Health Tribunals

Legal Aid

  • Legal Aid. Ministry of Justice, ‘Transforming Legal Aid: Next Steps’ (5/9/13). See MoJ website *

Newsletter

  • 39 Essex Street, ‘Mental Capacity Law Newsletter’ (issue 37, September 2013). The cases mentioned in this issue are: An NHS Trust v L (2012) EWHC 4313 (Fam), (2012) MHLO 180 (COP) — R (Nicklinson) v Ministry of Justice (2013) EWCA Civ 961, (2013) MHLO 65 — An NHS Trust v DE (2013) EWHC 2562 (Fam), (2013) MHLO 78 (COP) — An NHS Trust v Dr A (2013) EWHC 2442 (COP), (2013) MHLO 69 — AM v SLAM NHS Foundation Trust (2013) UKUT 365 (AAC), (2013) MHLO 80 — Re Boff COP case 12338771 — Re Goodwin (an order of the Senior Judge made on 17 June 2013) — Re Joan Treadwell (Deceased); OPG v Colin Lutz (2013) EWHC 2409 (COP), (2013) MHLO 57 — Re RGS (No 2) COP case 11831647 — Re JK COP case 1185523T — A Local Authority v WMA (2013) EWHC 2580 (COP), (2013) MHLO 79 — A Local Authority v HS COP case COP1201711T — Surrey County Council v M [2013] EWHC 2400 (Fam) — Pearce v Beverley (2013) EW Misc 10 (CC), (2013) MHLO 77 — R (D) v Worcestershire County Council [2013] EWHC 2490 (Admin) — MA v Cyprus [2013] ECHR 717. There is also information under the following headings: (a) Update on House of Lords Select Committee on the Mental Capacity Act 2005; (b) Health Select Committee recommends urgent review of implementation of DOLS regime; (c) Health Select Committee recommends urgent review of implementation of DOLS regime; (d) Using a lawyer as you get older: Ten top tips. See 39 Essex Street Mental Capacity Law Newsletter#September 2013

Article

  • Article on nearest relatives. David Hewitt, ‘Illegitimate concern’ (2013) 157(25) SJ 9 — This article argues that the father of an illegitimate child can be the nearest relative when the child attains majority despite never having had parental responsibility. Section 26 is unclear but an alternative view, given that originally the father of an illegitimate child could never be nearest relative, and that the Children Act 1989 (Consequential Amendment of Enactments) Order 1991 only amended this situation to cover those fathers who subsequently acquire parental responsibility, would be that only those fathers who acquired parental responsibility when the patient was a child can be nearest relative when the patient is an adult.

Other documents

  • Paul Swift et al, ‘What happens when people with learning disabilities need advice about the law?’ (Norah Fry Research Centre, July 2013). See Legal Services Board website (PDF) *

Events

  • Event. The MHT Members Association Conference and AGM will be held on Tuesday 15/10/13 (9.30am to 5.30pm) at Resource for London, 356 Holloway Road, London N7 6PA. Speakers include: Edward Jacobs, Upper Tribunal Judge; John Horne, MHT judge and former teaching fellow at Northumbria University; Paul Dobson, security management specialist on tribunal safety; and Edward Benson, solicitor in the O’Brien case. Price: £15 including lunch and refreshments. The conference is open to MHTMA members, and other members of the MHT may attend if they join the Association in advance. Further details are on the news section of the judicial internet, and available on request from zoe.admin@mhtma.org.uk or jacqui.briggs@mhtma.org.uk. See Events
  • Event. The 2013 Annual ‘Taking Stock’ Conference (The Mental Health and Mental Capacity Acts in Practice) will take place at the Royal Northern College of Music in Manchester on Friday 18/10/13 from 9.30am to 4.00pm. The speakers are: Mr Justice Baker (first key-note speaker); Professor Elyn Saks (second key-note speaker); Professor Bill Deakin (Current research in early onset schizophrenia); Neil Allen (Conveyance in abeyance? The practical and legal conundrums of conveying someone with a mental disorder); Robert Lizar (The most important person in the room? An examination of the appeal process and the evidence presented relating to patients based on experience as a legal representative at Tribunals and Managers hearings over many years); Mathieu Culverhouse (Deprivation of Liberty – Where are we now? Guidance for professionals giving evidence in DoL cases). Price: £155; £135 for bookings confirmed before 15/6/13; concessions for voluntary sector organisations. See flyer for further information about the programme and speakers, and for booking information. See Events

Website

  • Bailii links. Some of the ‘Not on Bailii at time of writing’ messages on MHLO case pages had become out of date. In cases where the neutral citation number is known, the process has now been automated: if the case is not yet on Bailii, a message to this effect is generated; when the case is published on Bailii, the necessary link is generated instead. Thanks to Joe Ury of Bailii for his assistance in setting this up.
  • CPD. The CPD questionnaires for all months up to and including August 2013 are now online. Obtain 12 SRA-accredited CPD points online today for £60. If you only need a few points for this year, you can carry over the remainder and do them after 31 October. See CPD scheme
  • Asterisks. To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website, and (for now) will be marked with asterisks.

August 2013 mental health law update

Updates from Mental Health Law Online

Cases

Mental Health Act

  • Article 5 case. R (Vowles) v SSJ (2013) EWCA Civ 1086, (2013) MHLO 82 — The applicant had been given an IPP sentence then transferred to hospital under s47/49. On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of Article 5(4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court’s refusal of permission to apply for judicial review).
  • MHA/MCA interface case. AM v SLAM NHS Foundation Trust (2013) UKUT 365 (AAC), (2013) MHLO 80 — “This case gives rise to issues relating to the approach to be taken by the First-tier Tribunal (the FTT) and other decision makers under the Mental Health Act 1983 (the MHA) when treatment and authorisation of a deprivation of liberty of the relevant patient might be given under the Mental Capacity Act 1985 (the MCA). … Here, the circumstances do not raise issues relating to (a) treatment for mental and/or physical disorder or problems (as in J v Foundation Trust), or (b) discharge from hospital (as in DN). Rather, they relate to whether the Appellant should be discharged from detention under s. 2 because her assessment in hospital for the purposes identified in s. 2 MHA should be carried out and authorised under the MCA and its DOLS.” [Summary required.]
  • Tribunal case. AM v West London MH NHS Trust (2013) EWCA Civ 1010, (2013) MHLO 73 — “Before the First‑tier Tribunal it was argued by Ms Shah, the solicitor then appearing for M, that the Tribunal should direct a conditional discharge. As part of that case it was said to be necessary to investigate the alternatives to detention. There was relatively little in the social circumstances report about aftercare on discharge. The author of the report did not attend the hearing. The social worker who did attend could not provide any further relevant information. Ms Shah applied twice for an adjournment so that this information could be provided, but the Tribunal refused the applications. The issue is whether the Tribunal thereby fell into legal error… Thus, despite what I acknowledge to have been forceful submissions by Mr Pezzani, I share Sir Stanley Burnton’s view that an appeal would have no real prospect of success.” [Summary required.]
  • Medical case. An NHS Trust v Dr A (2013) EWHC 2442 (COP), (2013) MHLO 69 — “This is an application by a NHS Trust for declaratory relief in respect of a man (whom I shall call ‘Dr. A’) who is on hunger strike in the Trust hospital. The relief sought by the Trust is in short a declaration : (i) that he lacks capacity to litigate and to make decisions in respect of his nutrition and hydration; and (ii) that it is lawful for the Trust to administer artificial nutrition and hydration.” [Summary required.]

Mental Capacity Act

  • Medical case. Re K (cancer) (2013) MHLO 83 (COP) — The press has reported this case as follows: (1) It was suspected that K had cancer of the womb, but she was took frightened to undergo an diagnostic examination. (2) Moylan J decided that (a) K lacked capacity to take decisions about medical treatment; (b) it was in her best interests to undergo a hysteroscopy, which is more detailed and invasive than the normal ultrasound, on the basis that her fear meant she would be under general anaesthetic anyway.
  • Best interests case. MK v JK (2013) EWHC 4334 (COP), (2013) MHLO 81 — “MK made an application to the court to be appointed Personal Welfare Deputy for JK and that is how these proceedings commenced. However, all parties accept that the one issue is residence and that it is to be determined by a court … it is in his best interests to move to the CNC Home on the basis that his placement at the Home will be retained for eight weeks so that he has somewhere to return should the move to the CNC Home fail… I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like … Article 8 of the Convention rights … I do think that putting in place a State-appointed decision-maker – which is what a Deputy is – is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to envisage how in most cases a Personal Welfare Deputy could ever be so justified.” [Summary required.]
  • Best interests/DOL case. A Local Authority v WMA (2013) EWHC 2580 (COP), (2013) MHLO 79 — “The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty. … there is no doubt in my mind it is WMA’s best interests to move to B … if one looks at WMA’s isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. … I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty … The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the arrangements for him and he may seek to leave. We simply do not know. So being in B may in itself be a deprivation of liberty. I will not delve into the meaning of ‘restraint’ and ‘deprivation of liberty’ as analysed in the Cheshire West and Chester case. …” [Summary required.]
  • Medical case. An NHS Trust v DE (2013) EWHC 2562 (Fam), (2013) MHLO 78 (COP) — “In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification.” [Summary required.]
  • Medical case. An NHS Trust v L (2012) EWHC 4313 (Fam), (2012) MHLO 180 (COP) — “By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called “Mr L” for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. … I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust’s application. … Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L’s death and not to prolong, in any meaningful way, his life. I repeat Dr Bell’s powerful analysis – It would result in Mr L’s death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit.” [Summary required.]
  • Capacity case. Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, (2013) MHLO 72 — “For some years prior to his death, Mr. Jackson suffered from dementia… By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation… In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then the provision of the accommodation would in the circumstances have been a necessary either at common law or under section 7 of the Mental Capacity Act 2005, and he would have been obliged to pay a reasonable price for it, which would have been recoverable from his estate (Wychavon District Council v EM [2012] UKUT 12 (AAC)). Mr. Harrison, like others before him in similar cases, has sought to contend that the council was not in fact acting under those powers but was acting unlawfully both because Mr. Jackson’s dementia was so severe that he required to be provided for by the NHS, and indeed ought to have been sectioned under the Mental Health Act, because he lacked capacity to consent to being admitted to the care home, and because he had no need of accommodation because he already had his own home. These points are misconceived and self-contradictory.” [Summary required; detailed external summary available.]
  • Capacity case. Loughlin v Singh (2013) EWHC 1641 (QB), (2013) MHLO 71 — “On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. … The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. … Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. … Annex: Professor Barnes’ evidence is so unreliable that it should be rejected for the following reasons… District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant’s deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy’s report, nor did he have any inkling of the circumstances, set out in detail above, in which Professor Barnes came to give his “revised” opinion, nor that no-one at Pannone had shown the report of Dr Huddy to Professor Barnes. … All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision.” [Summary required.]
  • Ian Slater, ‘Loughlin v Singh & Ors: assessment of capacity – conflict of interest?’ (DWF, 19/6/13). This article includes the following comment: ‘In this particular case in question Parker J ultimately concluded that the Claimant lacked capacity so, on one level, it could be argued that no harm had been done. The evidence was, however, very finely balanced and – by the date of the trial – there was a weight of expert evidence on both sides. Consider this, however: had Parker J not reached the conclusion that he did then difficult questions would have arisen as to the £40,000 worth of fees which the Court of Protection team had incurred since their instruction.’
  • Ian Slater, ‘Loughlin v Singh & Ors: the duty of experts’ (DWF, 19/6/13). This article includes the following comment: ‘This raises important considerations both as to the duty of experts but also – given the particular U-turn performed by Professor Barnes – as to the Mental Capacity Act 2005. The Act provides at Section 1(2) that a “person must be assumed to have capacity unless it is established that he lacks capacity.” It is surely somewhat concerning that Professor Barnes felt it appropriate to deprive an individual of his autonomy based, apparently, on nothing more than a conversation with his instructing solicitor.’
  • Section 44 MCA 2005. R v Turbill (2013) EWCA Crim 1422, (2013) MHLO 70 — “Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. … Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge’s directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. … For all those reasons, we have no option, as it seems to us, but to quash the convictions.” [Summary required; detailed external summary available.]
  • Capacity case. RC v CC (2013) EWHC 1424 (COP), (2013) MHLO 68 — “The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC’s incapacity that enables an application to be made.” [Summary required.]
  • Medical case. An NHS Foundation Trust v M and K (2013) EWHC 2402 (COP), (2013) MHLO 67 — “The painful and difficult issues now to be faced by M’s family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition.” [Summary required.]
  • Testamentary capacity. Pearce v Beverley (2013) EW Misc 10 (CC), (2013) MHLO 77 — “This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. … In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007.” [Summary required.]

Other cases

  • 30/08/13 (5): Scottish smoking ban. Re CM (Judicial Review) (2013) CSOH 143, (2013) MHLO 84 — “The petitioner asks the court to declare that the respondents’ “policy of a complete smoking ban and prohibition of possession of tobacco products by patients at the State Hospital” is unlawful; and also to declare that the respondents’ policy has breached the petitioner’s human rights, specifically article 8 of the European Convention on Human Rights [ECHR] (right to respect for private life and home) as a stand‑alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination) and the first protocol, article 1 ECHR (right not to be deprived of property) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination). … I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way. In that it relied on compulsion, the decision was contrary to the national policy which it purported to implement. The decision should have been made with reference to the section 1 principles of the 2003 Act but was not, and was in contravention of the obligations imposed by section 1 on the respondents. The respondents did not, for example, take account of the petitioner’s wishes, or provide him with the requisite information; and on no reasonable view could they have reached the conclusion that the smoking ban, to the extent that it was necessary, was implemented in “the manner that involves the minimum restriction on the freedom of” the petitioner. Whether or not consultation is a legal requirement, if it is embarked on it must be carried out properly. I am satisfied that the compulsory “comprehensive smoke‑free” regime was a foregone conclusion and that the consultation exercise was not a meaningful one… If article 8 ECHR is engaged, and I hold that it is, it is for the respondents to justify interfering with the petitioner’s right to make his own decision about smoking. They have failed to do so ..→

Articles/blogs

  • BBC, ‘Katie Thorpe’s mother to renew hysterectomy bid’ (29/8/13). See BBC website *
  • Community Care, ‘Legal challenge over “discriminatory” system for investigating mental health detention deaths’ (24/7/13). See Community Care website *
  • Jonathan Rayner, ‘MPs condemn ‘complacent’ approach to deprivation of liberty’ (Law Society Gazette, 19/8/13). See Mental Health Act 2007
  • Amanda Keeling, ‘The right to review of a deprivation of liberty’ (Nottingham Institute of Mental Health Blog, 16/8/13). See IMH Blog website *
  • Mithran Samuel, ‘Research into improving the use of mental capacity advocates in adult safeguarding’ (Community Care, 15/8/13). See Community Care website *
  • Community Care, ‘Hunt warned CAMHS shortfalls are risking Mental Health Act “breaches”‘ (13/8/13). See Community Care website *
  • Singh S et al, ‘Ethnicity as a predictor of detention under the Mental Health Act’ (2013) Psychological Medicine, ‘FirstView’ article, available on Cambridge Journals Online (subscription required). See Statistics#Ethnicity

Newsletters

  • 37 Park Square, ‘COP E-lerter’ (issue 9, 12/8/13). See Newsletters

Consultation

  • Consultation. Scottish Government consultation in relation to section 268 appeals against conditions of excessive security (from 2/8/13 to 25/10/13). “A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers.” See Consultations#Scotland

Events

  • Panel course. The Mental Health Lawyers Association will be running their successful two-day course for membership of the Law Society’s Mental Health Accreditation Scheme (formerly the MHRT panel) in Preston on Tuesday 8/10/13 and Wednesday 9/10/13 and in London on Monday 14/10/13 and Tueday 15/10/13. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further details and online booking form. See Events
  • Event. Northumbria University are hosting the Mental Disorder and Criminal Justice Conference on Saturday 12/10/13 from 10.00am to 6.00pm. The three main sessions are: Unfitness to Plead (Diversion/Disposal); Insanity/Automatism; Partial Responsibility. Price: £60; £55 (SLS/SLSA members); £35 (postgraduate students); free (current Northumbria and Sunderland University Postgraduate students). For further information and to book your place, see flyer and visit the conference website. See Events

Parliament

  • House of Commons Health Committee, ‘Post-legislative scrutiny of the Mental Health Act 2007: First Report of Session 2013–14’ (HC 584, 14/8/13). Chapter headings are: (1) Introduction; (2) The Appropriate Treatment Test, Community Treatment Orders and detention; (3) Independent Mental Health Advocates; (4) Places of safety; (5) Supervised Community Treatment; (6) Interaction with the Mental Capacity Act 2005; (7) Ethnicity and the use of the Mental Health Act; (8) Conclusions and recommendations. See Mental Health Act 2007

Book review

  • Richard Charlton, ‘Book review: Mental Health Tribunals: Law, Policy and Practice’ (Law Society Gazette, 13/5/13). See Gazette website

Website

  • Asterisks. To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website, and (for now) will be marked with asterisks.

July 2013 mental health law update

Updates from Mental Health Law Online

Cases

  • After-care case. R (Afework) v LB Camden (2013) EWHC 1637 (Admin), (2013) MHLO 51 — The judge held that as a matter of law s117(2) is only engaged vis-à-vis accommodation if: ‘(i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place (“the original condition”); (ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.’ No obvious reason is given for the third requirement, which is probably wrongly decided (or, as the COP Newsletter puts it, ‘will fall to be considered again in due course’).
  • Upper Tribunal case. GA v Betsi Cadwaladr University Local Health Board (2013) UKUT 280 (AAC), (2013) MHLO 50 — “This is another appeal that raises the issue of the powers of a tribunal when the patient professes to withhold consent to treatment while subject to a community treatment order. In this case, the issue arises in the exercise of the discretionary power to discharge under section 72(1) of the Mental Health Act 1983.” [Summary required.]
  • Forced marriage. Sandwell MBC v RG (2013) EWHC 2373 (COP), (2013) MHLO 55 — “I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. … Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled.” [Summary required.]
  • COP costs appeal. Re Clarke (2013) EWCA Civ 811, (2013) MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters.
  • Capacity case. Re SK (2013) MHLO 49 — “This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK’s residence and whether the order made should be a ‘final’ or ‘interim’ order.” [Summary required, but detailed external summary available.]
  • LPA case. Re Goodwin (2013) MHLO 86 (LPA) — The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: “She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing ‘Lasting Power of Attorney’ in place during the donor’s lifetime.” On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary – LPA case.]
  • LPA case. Re Griggs (2013) MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that “My Remaining attorney is to choose which replacement attorney is to act as my other attorney.” Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian’s application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary – LPA case.]
  • LPA case. Re Baxter (2013) MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: “My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty.” On the application of the Public Guardian the words “or that I am becoming” and “or that I have become” to “difficulty” were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor’s health and welfare may not be made under an LPA “in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity.” As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words “or that I am becoming” were also inconsistent with section 11(7)(a) because the donor must lack capacity (or be reasonably believed to lack capacity). It is not sufficient that the donor may be “becoming” mentally incapable. The wording of section 11(7)(a) may be contrasted with paragraph 4(1) of Schedule 4 of the MCA, which imposes a duty to apply for registration on an attorney under an EPA when the donor “is or is becoming” mentally incapable. [OPG summary – LPA case.]
  • LPA case. Re Spaas (2013) MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: “If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged.” On the application of the Public Guardian the words from “steps to be taken” to “I would wish” were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary – LPA case.]

Court guidance

  • Transparency. Sir James Munby P, ‘View from the President’s Chambers (4): The process of reform: an update’ (July 2013) and Draft Practice Guidance on the Publication of Judgments (12/7/13). See Court of Protection

Consultations

See also: Mental Health Tribunal

  • Consultation. Law Commission, ‘Criminal Liability: Insanity and Automatism: A Discussion Paper’ (23/7/13). See Law Commission
  • Consultations page. The following automated features have been added, in order to make the page easier to navigate: (1) open consultations are marked as such; (2) a list of open consultations appears at the bottom of the page. See Consultations

Newsletters

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 35, July 2013). The cases mentioned in this issue are: Re SK (2013) MHLO 49 — R v Patel [2013] EWCA Crim 965 — Loughlin v Singh [2013] EWHC 1641 (QB) — Simon v Byford & Ors (Re Rose (Deceased)) [2013] EWHC 1490 (Ch) — R (Afework) v London Borough of Camden [2013] EWHC 1637 (Admin). There is also information under the following headings: (a) Update on House of Lords Select Committee on the Mental Capacity Act 2005; (b) Statistics upon the MCA 2005; (c) Law Society Practice Note on Financial Abuse. See 39 Essex Street COP Newsletter#July 2013
  • Newsletter. Peter Edwards Law, ‘The Signpost’ (Summer 2013). See Newsletters

Articles

  • BBC, ‘Concern over 107-year-old Minnetta Webb’s care row’ (26/7/13). See DOLS
  • BBC, ‘Luton council bus driver “forgot woman with dementia”‘ (14/5/13). Prosecution for neglect. See MCA 2005 s44
  • Jacqueline Elton, ‘How to apply Deprivation of Liberty Safeguards’ (Nursing Times, 17/5/13). See DOLS
  • Statistics. Andy McNicoll, ‘Ethnicity has “no impact” on odds of being detained under Mental Health Act, study finds’ (Community Care, 2/7/13). See Statistics#Ethnicity
  • Paul Milligan, ‘NHS trust fined £500,000 after female care worker was stabbed to death by dangerous bipolar patient “who never should have been sent to care home”‘ (Daily Mail, 19/7/12). See Miscellaneous external links
  • Local Government Lawyer, ‘Mental health trust to retake cuts decision after legal challenge’ (19/7/12). See Miscellaneous external links

Department of Health

  • Department of Health, ‘Independent review of the arrangements made by SHAs for the approval of registered medical practitioners and approved clinicians under the Mental Health Act 1983’ (5/2/13). See MHA 1983 s12
  • Department of Health, ‘Winterbourne View Hospital: Department of Health review and response’ (various documents). See Miscellaneous external links
  • Department of Health, ‘Post-legislative assessment of the Mental Health Act 2007: Memorandum to the Health Committee of the House of Commons’ (Cm 8408, 28/8/12). See Mental Health Act 2007 Overview
  • Department of Health, ‘Deprivation of Liberty Safeguards (DOLS) Funding Factsheet for 2013-14’ (25/9/12). See DOLS
  • Department of Health, ‘Analysis of the Consultation on Allocation Options for the Funding for Independent Mental Health Advocate Services and the treatment of Armed Forces compensation in charging for social care’ (31/10/12). See Miscellaneous external links

Mental Health Tribunal

  • Tribunal contact details. The contact list for the secretariat was updated on 3/6/13. See Mental Health Tribunal
  • Consultation (medical examination). The Tribunal Procedure Committee propose to amend the rules as follows: (a) to make the medical examination discretionary (except in s2 cases, where there is to be no change); (b) to allow any member of the tribunal to view the medical records (rather than just the medical member); (c) to require either a medical examination or a finding that one is unnecessary or not practicable before a tribunal can proceed in the patient’s absence. The relevant documents are: (1) Tribunal Procedure Committee, ‘Proposal to amend Rule 34 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (medical examination of the patient in mental health cases): Stakeholder Consultation’ (June 2013); (2) Julie McCallen, ‘Consultation on proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008’ (letter, 18/6/13); (3) Tribunal Procedure Committee, ‘Questionnaire’ (June 2013). Consultation runs from 18/6/13 to 10/9/13. See Consultations#Mental Health Tribunal

Mental Capacity Act

  • 04/07/13 (19): House of Lords MCA commitee. The select committee is receiving oral evidence and has called for written evidence to be submitted by 2/9/13. (1) Parliament website, ‘Lords scrutinises Mental Capacity Act 2005 and asks: Is it working?’ (press release, 26/6/13); (2) Select Committee on the Mental Capacity Act 2005, ‘Call for evidence’ (26/6/13); (3) Committee home page] (with links to transcripts of oral evidence. See House of Lords Select Committee on the Mental Capacity Act 2005

OCTET

  • Kathryn Walsh, ‘Community treatment orders fail to reduce psychiatric readmissions for people with psychosis’ (14/5/13). This blog post summarises the outcome of the OCTET trial. See CTO

Other material

  • Official Solicitor. From 25/8/13 the offices of the Official Solicitor and Public Trustee will move to: Victory House, 30-34 Kingsway, London WC2B 6EX; DX 141423 Bloomsbury 7. See Official Solicitor
  • Police cells. HMIC, CQC, HIW and HMIP, ‘A Criminal Use of Police Cells? The use of police custody as a place of safety for people with mental health needs’ (20/6/13). See s136
  • CQC. CQC, ‘Thematic review of mental health care announced’ (27/6/13). See CQC
  • LPAs. Ministry of Justice, ‘New online application service for Lasting Powers of Attorney (LPA)’ (press release, 2/7/13). See LPA

Books

Website and CPD

  • CPD scheme. The CPD questionnaire for March 2013 has been uploaded. Subscribe to obtain 12 accredited CPD points online for £60. See CPD scheme
  • Asterisks. To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website, and (for now) will be marked with asterisks.

June 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Caselaw

  • 06/06/13 (4): Capacity case (DOL). Y County Council v ZZ (2012) MHLO 179 (COP) — “This is an application made by Y County Council in the Court of Protection in relation to Mr ZZ, a man of young middle age. I am invited to make a number of declarations in relation to Mr ZZ. First, I am asked to find that he lacks litigation capacity on the issues in this case. Second, I am invited to declare that he lacks capacity to decide upon the restrictions relevant to supporting his residence and care. Finally, I am asked to declare that he is being deprived of his liberty, but that it is lawful as in his best interests pursuant to schedule A1 of the Mental Capacity Act 2005. Mr ZZ is represented by the Official Solicitor. He has been present throughout the hearing and has conducted himself with dignity throughout. Indeed, he gave unsworn, oral evidence before me in an entirely courteous and helpful way.” [Summary required.]
  • 03/06/13 (3): Capacity case (abortion). Re SB (A Patient: Capacity To Consent To Termination) (2013) EWHC 1417 (COP), (2013) MHLO 48 — SB’s desire for an abortion coincided with her stopping her medication for bipolar affective disorder, which led to the Trust seeking decisions on capacity and best interests. (1) Even if aspects of her decision-making were influenced by paranoid thoughts in relation to lack of support from her husband and her mother, SB also had a range of rational reasons, and had capacity to make the decision. (2) Interesting aspects to the case include: (a) the judge disagreed with the two psychiatrists who believed SB lacked capacity; (b) he appeared to consider the question of being ‘unable’ to make a decision separately in relation to its ordinary meaning (whether SB had in fact made a decision, para 38) and its legal meaning by reference to MCA 2005 s3(1) (whether she could understand the relevant information etc, para 39); (c) the Official Solicitor asked for his appointment as litigation friend to be ended, and this request was granted (para 30); (d) the judge granted this request having accepted psychiatric evidence that this was a case ‘where P ceases to be a person who lacks capacity to conduct proceedings himself but continues to lack capacity in relation to the matter or matters to which the application relates’ (para 28, rule 147); (e) in relation to the threshold for capacity, the judge held that SB’s decision to have an abortion ‘is of course a profound and grave decision, but it does not necessarily involve complex issues’ (para 44).

Newsletters

  • 03/06/13 (1): 39 Essex Street, ‘Court of Protection Newsletter’ (issue 34, June 2013). The cases mentioned in this issue are: Re SB [2013] EWHC 1417 (COP) — RC v CC and X Local Authority [2013] EWHC 1424 (COP) — Pitt v Holt (2013) UKSC 26, (2013) MHLO 46 — Coles v Perfect (unreported, 13.5.13) — Coombs v North Dorset NHS PCT (2013) EWCA Civ 471, (2013) MHLO 35 — R (T) v LSC (2013) EWHC 960 (Admin), (2013) MHLO 41. There is also information under the following headings: (a) Response to consultation upon power of entry; (b) Review of COP3; (c) House of Lords Select Committee on the Mental Capacity Act 2005; (d) MIND call for evidence. See 39 Essex Street COP Newsletter#June 2013

Website and CPD

  • CPD scheme. The CPD questionnaire for March 2013 has been uploaded. Subscribe to obtain 12 accredited CPD points online for £60. See CPD scheme

May 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Events

  • Philosophy Workshop. The Essex Autonomy Project’s Advanced Philosophy Workshop will be held on Wednesday 5/6/13 at University of Essex, Colchester Campus. The three sessions are: (1) Philosophical Theories of Autonomy; (2) Understanding Others: Introduction to Critical Hermeneutic Phenomenology; and (3) Recognition-Theory. Cost: £85 per person, including lunch. For details and registration form, see EAP website. See Events
  • Autonomy Summer School. The Essex Autonomy Project’s Autonomy Summer School will be held from Thursday 4/7/13 to Saturday 6/7/13 inclusive. The aim is ‘to equip practitioners and researchers with an understanding of the philosophical ideal of individual autonomy and to provide a forum for the discussion of the dilemmas surrounding its’ practical application’. Cost: £650 (residential places), £495 (non-residential places). For details, see EAP website. See Events
  • MHLA panel course. The Mental Health Lawyers Association will be running their successful two-day course for membership of the Law Society’s Mental Health Accreditation Scheme (formerly the MHRT panel) in London on Monday 10/6/13 and Tuesday 11/6/13 and in Nottingham on Monday 17/6/13 and Tuesday 18/6/13. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further details and booking form.
  • New ‘Events’ box on home page. Contact jonathan at mentalhealthlaw.co.uk if you have an event you would like to publicise. See Events

Book

  • New book on Mental Health Tribunals. Fennell, Letts and Wilson, Mental Health Tribunals: Law, Policy and Practice (Law Society, April 2013). The blurb on the back cover states: ‘This practical book provides all professionals, particularly legal represenatives, with an accessible and up-to-date guide to Mental Health Tribunals.’ The Foreword by Lucy Scott-Moncrieff can be read online. As one of the authors I heartily recommend this book! Purchase from Amazon (you can order even when listed as ‘out of stock’ as it will be replenished shortly by the Law Society). See Books
  • MHT book discount. Fennell, Letts and Wilson, Mental Health Tribunals: Law, Policy and Practice (Law Society, April 2013) is available directly from the Law Society, who are offering a 20% discount to existing and prospective members of the Mental Health Accreditation Scheme (full details should be available on 29/5/13). Contact the Law Society if you have not received your discount code. See Law Society bookshop

Cases

Mental Health Act cases

  • Extra-statutory recommendations case. EC v Birmingham and Solihull Mental Health NHS Trust (2013) MHLO 47 (CA) — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient’s treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.]
  • Miscellaneous case. Coombs v North Dorset NHS PCT (2013) EWCA Civ 471, (2013) MHLO 35 — “Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the “MHA 1983”) and/or public policy? … In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private accommodation or other top-up care facilities available within the applicable Guidance. Of course, it will not be possible to provide for care or treatment which is in conflict with the recommendations of the responsible clinician. Nor may it always or perhaps even often be possible within the NHS system to purchase additional care or treatment facilities without running into the principle of free provision and the limitations upon the exceptions to that principle. However, the cases cited above show that responsible clinicians may recommend treatment or care which the NHS is not under a duty to provide, because it goes beyond its statutory duty. There seems to me no reason in statute or public policy why there should be an absolute bar on the provision of facilities, recommended by or consistent with the recommendations of the responsible clinician, which may be available at a price, within or without the NHS system. Ms Richards submits, as she did below, that private payment may create ..→

Financial capacity cases

  • Financial case. Summary added. Pitt v Holt (2011) EWCA Civ 197 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter’s case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt’s acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal ‘effect’, so the disposition would not be set aside.
  • Financial case. Pitt v Holt (2013) UKSC 26, (2013) MHLO 46 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter’s case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt’s appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt’s appeal on this point.
  • Financial deputyship case. Re GM: MJ and JM v The Public Guardian (2013) MHLO 44 (COP) — “The applicants … have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. … I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.” [Summary required.]
  • Will case. Greaves v Stolkin (2013) EWHC 1140 (Ch), (2013) MHLO 36 — “Mr Leslie Stolkin …, some seven weeks before his death, executed a codicil. This case concerns the validity of that document. …[O]ne of the deceased’s sons, Mr Gary Stolkin … disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. … In my judgment, the Disputed Codicil is valid, and it should be admitted to probate.” [Summary required.]

Welfare capacity cases

  • Best interests case. Stoke City Council v Maddocks (2013) EWHC 1137 (COP), (2013) MHLO 38 — (1) As a result of his Alzheimer’s Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM’s best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority’s fees. (5) JM’s passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) Any attempt to publicise the case would be a cruelty to JM. (7) The case would be reviewed on the first available date after 3 months, or earlier if a committal application is made by the local authority.
  • Best interests case. PS v LP (2013) EWHC 1106 (COP), (2013) MHLO 43 — (1) It was in LP’s best interests not to see her estranged family: before losing capacity due to a cerebral aneurism, she had taken the decision that her future was with her new partner and that she wished to break with the past. (2) Contact should only commence in future if LP becomes capable of expressing a view to that effect, and the family should be kept informed in relation to this approximately every six months.

Litigation capacity case

  • Litigation capacity case. Transcript and neutral citation now available. Baker Tilley (A Firm) v Makar (2013) EWHC 759 (QB), (2013) MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M’s ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. [Summary based on Lawtel/Westlaw summary.]

Community care case

  • Community care case. SL v Westminster City Council (2013) UKSC 27, (2013) MHLO 45 — “The short issue raised by this appeal is whether the respondent (SL), a failed asylum-seeker, was at the relevant time in need of ‘care and attention’, requiring the provision of accommodation by the local authority under section 21(1)(a) of the National Assistance Act 1948. Burnett J decided that he was not, but that decision was reversed by the Court of Appeal … I consider that Burnett J reached the right result for substantially the right reasons.” [Summary required.]

Criminal and extradition cases

  • Criminal law case. R v Dixon (2013) EWCA Crim 465, (2013) MHLO 42 — (1) Despite the appellant’s intellect and condition the judge was entitled to permit the jury to draw an adverse inference from his failure to give evidence. (2) The appellant argued that fresh medical evidence showed the judge’s decision was wrong, but this evidence was not admitted. (3) The appellant had been able meaningfully to participate in his trial, which was fair, and the conviction was safe. (4) The minimum term of the appellant’s detention at Her Majesty’s pleasure was reduced from 14 to 13 years.
  • Sentence appeal case. R v AJR (2013) EWCA Crim 591, (2013) MHLO 37 — The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of ‘not guilty by reason of insanity’ is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to ‘pursue a course of conduct which amounts to harassment’, so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children’s welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989.

Legal Aid case

  • Legal Aid case. R (T) v LSC (2013) EWHC 960 (Admin), (2013) MHLO 41 — The LSC’s decision in care proceedings to agree prior authority for a multi-disciplinary assessment at a lower amount than that sought was unlawful because of the lack of reasons given, and was quashed.

Legal Aid

  • Ministry of Justice, ‘Transforming legal aid: delivering a more credible and efficient system’ (consultation paper CP14/2013, 9/4/13). This consultation, running from 9/4/13 to 4/6/13, sets out the Government’s proposals for further reform of the legal aid system in England and Wales. See Consultations#Legal Aid

Court of Protection

  • Practice Guidance. Practice Guidance: Committal for Contempt of Court (2013) EWHC B4 (COP) — Applications for committal for contempt, including in the Court of Protection and Family Division, should be heard and decided in public. The discretion to hear such an application in private (in the COP or, in proceedings relating to a child, the Family Division) should be exercised only in exceptional cases where it is necessary in the interests of justice, and in all such cases the court must state in public: (a) the name of that person; (b) in general terms the nature of the contempt of court in respect of which the committal order or suspended committal order is being made; and (c) the punishment being imposed. Committal applications should at the outset be listed and heard in public and a public judgment must be given setting out reasons if the court decides to sit in private. Committal applications in the Court of Protection or the Family Division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so. Every such statement or judgment must be transcribed at public expense and published on Bailii.
  • External link added. MOJ website: Court of Protection daily cause list. See Court of Protection
  • Sue Reid, ‘Neil has an IQ of 125 and runs his own business. So why won’t a secret court let him spend his own money?’ (Daily Mail, 28/4/13). See Court of Protection#Other links

Newsletters

  • New page on website. Newsletters — This page lists newsletters (and other similar resources) which relate to mental health and capacity law.
  • Mind, ‘Legal Newsletter’ (Issue 13, April 2013). This newsletter contains the following. (1) Articles: (a) Systemic failings of mental health care in immigration detention; (b) Community Treatment Orders and the Octet Study; (c) Mind Crisis Care Campaign; (d) Care and Support Bill and section 117 of the Mental Health Act 1983. (2) Case reports: (a) R (Chatting) v Viridian Housing (2012) EWHC 3595 (Admin), (2012) MHLO 177; (b) Bures v the Czech Republic [2012] ECHR 1819; (c) ZH v Commissioner of Police for the Metropolis (2013) EWCA Civ 69, (2013) MHLO 9; (d) RCW v A Local Authority [2013] EWHC 235 (Fam). (3) Mental health and human rights update: (a) UN Special Rapporteur on Torture: No More Treatment without Consent; (b) Disability Rights Watch evidence gathering for the UN Committee on the Rights of Persons with Disabilities; (c) Equality and Human Rights Commission report on human rights and business; (d) Independent Advisory Panel on Deaths in Custody bulletin; (e) Thematic inspection on section 136 police cells as places of safety. (4) Legal Aid update. (5) News: (a) The Fifth Year of the Independent Mental Capacity Advocacy Service 2011/2012; (b) Winterbourne View: The final Department of Health report; (c) Disability Hate Crime; (d) Care Quality Commission Reports; (e) Mental Health Discrimination Act 2013; (f) Update on the review of the Public Sector Equality Duty; (g) Public Law Project helpline on civil legal aid and exceptional funding project; (h) Implementing a ban on age discrimination in the NHS. See Mind (Charity)
  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 33, May 2013). The cases mentioned in this issue are: PC and NC v City of York Council [2013] EWCA Civ 478 — Baker Tilly v Makar [2013] EWHC 759 (QB) — A County Council v E (2012) EWHC 4161 (COP), (2012) MHLO 176 — Day & others v Royal College of Music & Harris [2013] EWCA Civ 191 — Re GM (unreported, case no.11843118) — NT v FS (2013) EWHC 684 (COP), (2013) MHLO 18 — DO v LBH (2012) EWHC 4044 (Admin), (2012) MHLO 165 — ET, BT and CT v Islington LBC [2013] EWCA Civ 323. There is also information under the following headings: (a) Managing a bank or building society account on behalf of someone else; (b) Care Quality Commission – Annual DOLS Report; (c) Court of Protection Practitioners Association – London meeting. See 39 Essex Street COP Newsletter#May 2013
  • Browne Jacobson, ‘MCA and DOLS Update Webinar’ (April 2013). This webinar covers balancing best interest decisions with allocation of limited resources, looks at 3 MCA cases (on marriage, sterilisation and medical futility), and reviews the latest law on what a deprivation of liberty is. See Newsletters

Wales

  • Welsh Government, ‘The Duty to Review: Inception Report: Post-Legislative Assessment of the Mental Health (Wales) Measure 2010’ (8/4/13). This report describes the proposed review of the Measure; an interim evaluation report will be published by 31/3/14 and a final report before January 2016. Suggestions are sought for additional or complimentary evidence to inform these reports. See Mental Health (Wales) Measure 2010

Website and CPD

  • CPD scheme. The questionnaires for February-March 2013 and March 2013 are now available. Obtain 12 accredited CPD points online for £60 by subscribing today. See CPD scheme
  • Donations. Mental Health Law Online is free to use and maintained on a voluntary basis. If you or your organisation find this website useful, please consider making a donation to contribute to its upkeep. See Donations

April 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Conference

  • Conference. Northumbria University are hosting ‘The Seventh North East Mental Health Law Conference 2011’ on Friday 12/7/13 from 9.00am to 4.30pm. The sessions this year are: ‘A Critical Survey of recent developments in Mental Health Law’ (Roger Pezzani); ‘The Wind from the East: legal challenges from Europe and beyond’ (Mat Kinton); ‘Non-Medical Approved Clinicians: The Good, The Bad and The Conditionally Discharged’ (Dr Bruce Gillmer and Prof John Taylor); ‘A Spotlight on the Legal Framework for the Mental Health Care of Children and Young People’ (Camilla Parker); ‘Mind Your Ps and Qs’ (Neil Allen); ‘The Newer Legalism – Clinical Power and the Limits of Rights-based Approaches’ (Prof Phil Fennell). Price: £240 (£190 for two or more from same company, or for any booking before 31/5/13). CPD: 6 hours. See brochure for further details and the booking form. See Events

Case law

  • COP case. Parties identified and neutral citation available in previously anonymised case. Stoke City Council v Maddocks (2012) EWHC B31 (COP), (2012) MHLO 111 (COP) — (1) One of JM’s children, WM, had breached court orders by, amongst other things, (a) arranging for JM to be taken from the care home to hear judgment delivered, and separately to see a solicitor, (b) discussing the possibility of moving back home with him, (c) harassing her father and employees of the local authority and care home. (2) WM was sentenced to five months’ imprisonment for contempt because (a) there had been a considerable number of breaches of court orders, and (b) she had no intention, unless restrained by a severe measure by the court, of obeying the orders herself.
  • Upper Tribunal decision (postponement). RC v NHS Islington (2013) UKUT 167 (AAC), (2013) MHLO 34 — “This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. … The grounds of appeal argue that the … policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted. … The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences. Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal. Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been the case. However, since any practical benefit of this appeal has now been overtaken by events, I … simply declare the tribunal’s refusal of a postponement to have been in error of law.” [Summary required.]
  • Litigation capacity. Baker Tilley (A Firm) v Makar (2013) MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M’s ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. [Summary based on Lawtel/Westlaw summary.]

Mental Health Tribunal

  • Neil Skelton, ‘Note to All Mental Health Tribunal Stakeholders: Mental Health Tribunal: process changes’ (HMCTS, 15/4/13). In relation to applications or referrals submitted on or after 13/5/13, MHT cases will no longer be listed by negotiation in England. There is no change for section 2 cases. When a case is registered by the tribunal secretariat, new form HQ1 will be sent to parties, who will have 14 days (in practice, usually via the representative and MHA Administrator) to provide availability during the following listing windows: (a) for unrestricted cases, 5-8 weeks from the the secretariat’s receipt of the application or referral; (b) for restricted cases, 12-14 weeks. The secretariat aims to select a date and notify the parties within 21 days of receipt of the application or referral. See also: HMCTS, ‘ Mental Health Tribunal: Process Changes: Frequently asked Questions’ (15/4/13); Form HQ1 (April 2013 version). See Mental Health Tribunal

CQC

  • CQC DOLS report. (1) CQC, ‘Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12’ (28/3/13); (2) CQC, ‘Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12: Summary’ (28/3/13); (3) CQC, ‘CQC finds Mental Capacity Act not well understood across all sectors and calls for more work by providers and commissioners to improve’ (press release, 28/3/13) See CQC#CQC – DOLS
  • Commentary on CQC DOLS report. (1) Lucy Series, ‘No longer early days’ (The Small Places Blog, 7/4/13); (2) Chris Doidge and Rob Cave, ‘Majority of “deprivation of liberty” cases unreported, says report’ (BBC, 7/4/13); (3) BBC, ‘5 Live Investigates’ (MP3 file, 7/4/13). See CQC#CQC – DOLS

Newsletter

  • Newsletter. 39 Essex Street, ‘Court of Protection Newsletter’ (issue 32, April 2013). The cases mentioned in this issue are: Aintree University Hospitals NHS Foundation Trust v David James (2013) EWCA Civ 65, (2013) MHLO 17 — Re RGS (2012) EWHC 4162 (COP), (2012) MHLO 173 — PS v LP (unreported, 6 February 2013) — HT v CK (2012) EWHC 4160 (COP), (2012) MHLO 175 — PB v RB (2012) EWHC 4159 (COP), (2012) MHLO 174 — R (A) v Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) — Webb Resolutions Ltd v JT Ltd [2013] EWHC 509 (TCC) — Re M, N v O & P (unreported, 28 January 2013). There is also information under the following headings: (a) Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: No more treatment without consent; (b) Parliamentary Scrutiny; (c) OCTET Study; (d) Avoiding Invalid LPAs; (e) Reducing LPA waiting times; (f) Court of Protection Practitioners’ Association; (g) Medical Mediation Foundation; (h) Plans to move the Court of Protection. See 39 Essex Street COP Newsletter#April 2013

Legal Aid

  • Legal Aid news. To coincide with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the abolition of the Legal Services Commission, both of which take effect on 1 April, the Legal Aid Agency has announced that neither the fixed fees system nor the matter start system is ‘fit for purpose’. A spokesman stated that (a) the mental health fixed fee system has reached a level of complexity of which Heath Robinson would have been proud, so from today future payments will be based on a reasonable hourly rate for work reasonably incurred; and (b) the matter start system is unnecessary because of the abolition of fixed fees (in any event, ECHR obligations mean the total number of cases is determined by the number of patients detained by the state), so from henceforth individual firms may carry out as many cases as reputation and market forces permit. The Federation Of Outpatient Lawyers issued the following initial statement: ‘This common sense approach seems too good to be true.’ [April Fool!] See Legal Aid

Other

  • Banking. (1) Law Society, ‘Managing a bank account for another person to become easier thanks to new framework’ (3/4/13); (2) Law Society and others, ‘Guidance for people wanting to manage a bank account for someone else’ (3/4/13); (3) Law Society and others, ‘A framework for authorising people wanting to operate a bank account for someone else’ (3/4/13). See Law Society

Website and CPD

  • CPD scheme. The questionnaire for February-March 2013 is now available. Obtain 12 accredited CPD points online for £60 by subscribing today. See CPD scheme
  • Donations. Mental Health Law Online is free to use and maintained on a voluntary basis. If you or your organisation find this website useful, please consider making a donation to contribute to its upkeep. See Donations

March 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

Solicitors Regulation Authority

  • SRA decision. SRA decision: Billy Chucks of Chris Solicitors (2013) MHLO 22 (SRA) — “It is reported that whilst employed by various legal practices: Mr Chucks failed to comply with restrictions on his attendance imposed by a number of hospital trusts, and that he prepared a “consent to disclosure” request at a hospital for a client who has confirmed that he had not instructed Mr Chucks to act on his behalf, and that he improperly removed clients’ files/documentation without authority from a former employer. Those papers have not yet been returned. … I FIND that Mr Billy Chucks, (Date of birth: 23 August 1975) of Flat 1, 701 Fulham Road, London SW6 5UL who is or was involved in legal practice but is not a solicitor has, in the Society’s opinion occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the Society’s opinion it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in sub-section (1A) of Section 43. … This includes being on hospital premises after he knew that a ban prohibiting his attendance had been imposed. On one occasion police were called to the hospital as a result. He had objected to the bans imposed but he did not take any action to challenge these through the appropriate legal route. … Also, it is a matter of grave concern that client’s papers, improperly in Mr Chucks’ possession, are not held securely and client confidentiality is compromised. An assurance given that these would be returned to the firm of solicitors responsible for their safe keeping has not been honoured. … For these reasons, I have concluded that it would be undesirable for Mr Chucks to be involved in a legal practice. The effect of this Order is that he may not be employed in legal practice without the knowledge and prior approval of the SRA. Any approval granted is likely to be subject to strict conditions in order to protect clients and the public.”

Listing

Upper Tribunal

  • Upper Tribunal case. JP v South London and Maudsley NHS Foundation Trust (2012) UKUT 486 (AAC), (2012) MHLO 172 — “The grounds of appeal related to the Tribunal’s finding that he suffered from a mental disorder; the insufficiency of the Tribunal’s reasons for their decision that the appellant was to continue to be detained under section 2, and to his view that there had been a breach of his right to a fair hearing under Article 6 of the European Convention on Human Rights. He made seven specific submissions on this which I shall address hereafter. At the hearing the appellant also raised a breach of Article 9 of the Convention – his right to freedom of thought, and submitted that the Mental Health Act 1983 was flawed.” [Summary required.]
  • Upper Tribunal case. MA v SSH (2012) UKUT 474 (AAC), (2012) MHLO 171 — “Section 66 of the 1983 Act deals with applications to tribunals (“a section 66 application”). In the present case this would be to the First-tier Tribunal. Applications may be made in a wide range of circumstances. By virtue of section 66(1) (g) these include where a report has been made under section 25 of that Act (see above – this relates to the responsible clinician issuing a certificate to the effect specified in section 25). However, an application to the tribunal may only be made under this provision in respect of a patient who has been admitted for treatment (or in certain other cases) but not in respect of a patient who has been admitted under section 2 for assessment. That exclusion is at the heart of this case.” [Summary required.]
  • Upper Tribunal case. Bernard v SW London and St George’s MH NHS Trust (2013) UKUT 58 (AAC), (2013) MHLO 26 — “This is an appeal against a decision of the First-tier Tribunal (FTT) of the Health, Education and Social Care (HESC) Chamber in the mental health jurisdiction. The appeal is brought on the ground of an alleged breach of natural justice. It is argued that certain comments of the FTT’s psychiatrist member in the course of the hearing demonstrated bias. This is said to be on the basis either that the panel doctor had a preconceived and concluded view (actual bias) on a live issue in the appeal or that he had expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias).” [Summary required.]
  • Upper Tribunal case. MM v Nottinghamshire Healthcare NHS Trust (2013) UKUT 107 (AAC), (2013) MHLO 25 — “The issues arose from the skeleton argument of counsel for the hospital (not Mr Kovats). Unpacking her argument, it came to this: (i) Dr G had visited Mr M; (ii) he had been instructed to prepare an independent report; (iii) Mr M was not relying on that report; (iv) the tribunal should infer that the report was not favourable to Mr M; and (v) that Dr G had concurred with the clinical team’s diagnosis and conclusions. Counsel also invited the tribunal to consider ordering disclosure of Dr G’s report. … Mr Pezzani argued that the panel should have recused themselves. … because Mr M would not receive a fair hearing in view these factors: (a) the way in which the case had been presented to them, (b) the fact that Mr M and his legal team could not respond to the argument, (c) the manner in which the panel engaged with the argument in their decision and (d) their failure to rule out the argument as a matter of principle.” [Summary required.]
  • Upper Tribunal case. MS v North East London Foundation Trust (2013) UKUT 92 (AAC), (2013) MHLO 24 — “Ms S applied for permission to appeal on two grounds: (i) the tribunal had applied the test appropriate to detention under section 2 rather than, as it should have, detention under section 3; and (ii) the tribunal had failed to explain, as it had said it would, why it did not make a recommendation.” [Summary required.]
  • Upper Tribunal case. R (S) v Mental Health Tribunal (2012) MHLO 164 (UT) — S unsuccessfully challenged by judicial review (a) the decision of the FTT setting aside its own decision that she be discharged and (b) her continued detention by the hospital. [Summary required.]
  • Upper Tribunal case. SSJ v MP (2013) UKUT 25 (AAC), (2013) MHLO 8 — “The Secretary of State had two grounds of appeal. One related to the tribunal’s finding on diagnosis; the other related to the decision not impose any conditions. … I can only decide that, despite the errors of law, the tribunal’s decision should not be set aside. The result is that this decision provides in effect a declaration of the errors made in the tribunal’s decision.” [Summary required.]

Criminal law

  • Sentence appeal case. R v Ahmed (2012) EWCA Crim 99, (2012) MHLO 178 — (1) The appellant sought a s37/41 restricted hospital order in place of an IPP sentence. (2) The Responsible Clinician argued for a s45A hybrid order, for reasons summarised by the court as follows: ‘The appellant is an illegal immigrant. In order to be discharged from hospital he would have to undergo a period of controlled supervision. This would be in appropriate accommodation. Dr Swinton tells us that this is not an option open to an illegal immigrant like the appellant. Thus he cannot be discharged into the community because he cannot undertake the necessary conditioning which would satisfy the hospital that he was safe to be left in the community on his own. As a consequence he has to remain in hospital and he will take up a bed, apparently permanently. This is damaging to the wider public interest. If a section 45A order were made, then although the appellant would receive precisely the same treatment under a section 47 transfer as he currently does, a discharge can be effected by sending the appellant back to prison where the relevant supervision can be provided.’ (3) The Court of Appeal admitted fresh evidence and, considering the appellant to be an ill man needing treatment rather than a criminal needing punishment, imposed a restricted hospital order.
  • Sentence appeal case. R v Caress (2013) EWCA Crim 218, (2013) MHLO 27 — “In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence.” [Summary required.]
  • Criminal appeal case. R v Coley (2013) EWCA Crim 223, (2013) MHLO 23 — “We have heard these three cases in succession because they have some features in common. Each raises a (different) question connected with the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism. Each calls, however, for consideration of its very particular facts. Neither individually nor collectively do they provide an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally. We know that this area of the law is under active consideration by the Law Commission, which work will, we think, be of value. Although there have historically been very few cases which raise insanity, that has been because the statutory provisions governing the disposal orders which must be made if there is a verdict of insanity have historically inhibited attempts to rely on it. More recent changes in those disposal provisions may well lead to an increase in numbers. Any review must, critically, address both the law of loss of capacity and the means of disposal in such cases, so as to pay proper regard both to the interests of the individual defendant and to the public risk which he represents.” [Summary required.]
  • Sentence appeal case. R v Smith (Mark John) (2012) EWCA Crim 2566, (2012) MHLO 170 — “This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act.” [Summary required; detailed external summary available.]
  • Criminal appeal. B v R (2013) EWCA Crim 3, (2013) MHLO 7 — “This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant’s reasonable belief in the complainant’s consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant.” [Summary required; detailed external summary available.]
  • Criminal case. R v Nightingale (2012) EWCA Crim 2734, (2012) MHLO 167 — The appellant, having pleaded guilty to possession of (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm, had been sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. On appeal against sentence, as ‘these offences were committed in exceptional circumstances by an exemplary soldier’, this was reduced to 12 months, suspended for 12 months.

Capacity

  • Best interests case (medical). Aintree University Hospitals NHS Foundation Trust v David James (2013) EWCA Civ 65, (2013) MHLO 17 — “On 6th December 2012 Mr Justice Peter Jackson … declined to make the declarations sought by the appellant, the hospital treating DJ, that subject to the agreement of his clinical team, it would be lawful, being in his best interests, for the following treatment to be withheld in the event of a clinical deterioration: cardiopulmonary resuscitation; invasive support for circulatory problems; renal replacement therapy in the event of deterioration in renal function.” The Court of Appeal allowed the Trust’s appeal. [Summary required.]
  • Capacity case (best interests). A County Council v E (2012) EWHC 4161 (COP), (2012) MHLO 176 — “This case involves the personal welfare of two young women, E and K. E is 26 years old and K is 24. Both have a diagnosis of Fragile X syndrome and associated learning disabilities, as confirmed by a consultant psychiatrist in a report of 7 August 2010. E is selectively mute. K also has a diagnosis of Attention Deficit Hyperactivity Disorder (‘ADHD’).” [Summary required.]
  • Capacity case (best interests). ‎HT v CK (2012) EWHC 4160 (COP), (2012) MHLO 175 — “This decision deals with residence, contact and financial arrangements for CK (‘C’ or ‘Ms K’). In particular, the court must decide whether it is in her best interests to remain where she is living and the appropriate contact arrangements” [Summary required.]
  • Capacity case (fact finding). PB v RB (2012) EWHC 4159 (COP), (2012) MHLO 174 — “This decision deals with a fact-finding hearing held on 10-12 September 2012. … The local authority sought to prove 13 alleged facts … ” [Summary required.]
  • Capacity case (litigation capacity). Re RGS (2012) EWHC 4162 (COP), (2012) MHLO 173 — “RGS is the person concerned in these proceedings (‘P’). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure.” [Summary required.]
  • Statutory will case. NT v FS (2013) EWHC 684 (COP), (2013) MHLO 18 — “This is an application by NT (“the Deputy”) for authority to execute a statutory will on behalf of FS (“F”). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a will be made. There are a large number of Respondents to the application each of whom are potential beneficiaries under such a will. There are, however significant disputes between them as to the provisions of such a will.” [Summary required.]
  • Capacity case (litigation friend). WCC v AB (2012) MHLO 168 (COP) — Whether AB’s aunt should be appointed as litigation friend. [Summary required; detailed external summary available.]
  • Capacity case (ASBO). Pender v DPP (2013) MHLO 12 (QBD) — An ASBO was imposed with a ‘no begging’ condition. An appeal, based on uncontradicted medical evidence (that the appellant suffered learning difficulties, schizophrenia and severe nicotine addiction, and that begging was the manifestation of nicotine addiction), was unsuccessful. The Court of Appeal allowed an appeal by way of case stated, because the judge had failed to set out the factual basis for her factual conclusion (which was contrary to the medical evidence) that the appellant had been capable of complying with the ASBO.
  • Capacity case (marriage). A Local Authority v AK (2012) EWHC B29 (COP), (2012) MHLO 166 — “This is an application by a Local Authority for the determination of an issue as to whether a severely brain damaged man (“AK”) had the capacity to enter into a marriage in November 2010.” [Summary required; detailed external summary available.]
  • Capacity case (sterilisation). A Local Authority v K (2013) EWHC 242 (COP), (2013) MHLO 11 — “K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K’s social welfare) for a best interests’ determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family).” [Summary required; detailed external summary available.]
  • Testamentary capacity case. Turner v Phythian (2013) EWHC 499 (Ch), (2013) MHLO 10 — “Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. … The second ground is that Iris lacked mental capacity to make the will. … The third ground is that Iris did not know or approve of the contents of the will. … I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will.” [Summary required.]
  • Capacity case. ZH v Commissioner of Police for the Metropolis (2013) EWCA Civ 69, (2013) MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water’s edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge’s findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.]
  • Capacity case. DO v LBH (2012) EWHC 4044 (Admin), (2012) MHLO 165 — “I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. … EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings.” [Summary required.]
  • Capacity case. A PCT v LDV (2013) EWHC 272 (Fam), (2013) MHLO 6 — “The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L’s current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?” [Summary required; detailed external summary available.]
  • Capacity case. LB Waltham Forest v WD (2010) MHLO 195 — “The issues which I have to consider are four fold: first, WD’s future accommodation and residence; secondly, his contact arrangements with other members of his family; thirdly, the application by the Local Authority for the appointment of a deputy under the Mental Capacity Act 2005; and fourthly, whether or not these proceedings should now come to an end. Other matters of the care plan are fully agreed between the parties. As I have said, the plan put before me is comprehensive and this court is happy to endorse it.” [Summary required.]

Lasting Powers of Attorney

  • LPA case. ‎Re Martin (2013) MHLO 21 (LPA) — The donor appointed two primary attorneys, A and B, to act jointly and severally, and three replacement attorneys, C, D and E. He included a valid provision to the effect that the D should replace B if B was unable to act, and then directed as follows: “In the event of my first attorney being unable to continue, E should act as Assistant to C (1st Replacement Attorney), and in the event of C being unable to continue, he should assume the power of Attorney.” On the application of the Public Guardian this provision was severed because (applying Re Baldwin, above) the MCA does not permit a replacement attorney to be replaced, nor is it possible to direct an attorney or replacement attorney to act as assistant to another attorney or replacement attorney. [OPG summary – LPA case.]
  • LPA case. ‎Re Black (2013) MHLO 20 (LPA) — The donor, a solicitor, appointed A and B as attorneys, to act jointly and severally. She imposed the following restriction: “A has been appointed solely to manage ABC Solicitors to enable continuing management of the Practice. B has been appointed to deal with all other financial matters both personal and business related, which do not specifically require a Solicitor of the Supreme Court.” On the application of the Public Guardian the restriction was severed because it was incompatible with a joint and several appointment. [OPG summary – LPA case.]
  • LPA case. Re Hart (2013) MHLO 19 (LPA) — The donor made an LPA for property and financial affairs. He was also the sole attorney under an EPA made by his wife and registered. In his LPA he authorised his attorneys to have access to his will and medical records, and then continued as follows: “This also applies to acting as Attorneys for my wife, whose EPA has been registered.” On the application of the Public Guardian this provision was severed because an LPA may not be used to add anything to someone else’s EPA. (The donor appears to have wrongly assumed that his own attorneys could take over his role as attorney for his wife.) [OPG summary – LPA case.]
  • LPA case. Re Buckley (2013) MHLO 13 (LPA) — “This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. … Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA.” [Summary required; detailed external summary available.]

European Court of Human Rights

  • ECHR case. Mihailovs v Latvia 35939/10 (2013) ECHR 65, (2013) MHLO 15 — “The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights.” [Summary required; detailed external summary available.]
  • ECHR case. Lashin v Russia 33117/02 (2013) ECHR 63, (2013) MHLO 14 — “The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry.” [Summary required; detailed external summary available.]

Miscellaneous

  • Miscellaneous case (AMHPs). DD v Durham County Council (2013) EWCA Civ 96, (2013) MHLO 31 — “DD appeals against the decision refusing leave and that part of the order relating to the payment of Middlesbrough City Council’s costs. There is no appeal against the decision that Durham would be the body liable for any breach of duty or infringement of the Human Rights Act by the second AMHP. … It was contended by Ms Lieven QC, on behalf of DD, that the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty. It was Ms Lieven QC’s primary case that under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient’s Article 3 and 8 rights were not infringed. This obligation did not extend to preventing some casual act committed by those at the hospital which might violate the Convention rights of DD. In the alternative, there was a duty of care to like effect to be derived from the scheme of the 1983 Act. … It is clear, therefore, that the only point we could determine was whether the judge was correct in refusing leave. The threshold under s.139 is a low one: see Winch v Jones [1986] QB 296 and Johnston v Chief Constable of Merseyside Police [2009] EWHC 2969 (QB). I have no doubt that the argument advanced by Ms Lieven QC meets this threshold. … I would, therefore allow this appeal on the application under s.139(2). … In my judgment, DD should not have been made responsible for the costs of Middlesbrough City Council.” [Summary required.]
  • Miscellaneous case. R (Copson) v Dorset Healthcare University NHS Foundation Trust (2013) EWHC 732 (Admin), (2013) MHLO 30 — “This is a claim by the claimant, Rosalind Copson, for an order quashing the decision of the defendant, Dorset Healthcare University NHS Foundation Trust, on 14 June 2012 to implement its Mental Health Urgent Care Services Project for the reconfiguration of mental health services in the west of Dorset. … The claim is put on two grounds. First, it is said that the defendant failed, before reaching its decision, to carry out an adequate consultation with users of its mental health services, chiefly in that it failed to provide to those users sufficient information to enable them to engage meaningfully with the proposals. Second, it is said that the defendant failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard, in the exercise of its functions, to the need to advance equality of opportunity. … The claimant is a user of mental health facilities in Bridport, Dorset. The facilities that she uses include the in-patient facility at the Hughes Unit in Bridport. The defendant’s proposed reconfiguration of mental health services in the area will involve the loss of that facility. … For the reasons given, this claim is dismissed.” [Summary required.]
  • Community care/capacity case. R (Chatting) v Viridian Housing (2012) EWHC 3595 (Admin), (2012) MHLO 177 — “This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. … On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting’s care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting’s care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting’s best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg’s claim and also sought a ruling on two further issues of interpretation of the compromise agreement.” [Summary required; detailed external summary available.]
  • Miscellaneous case. R (Zhang) v Whittington Hospital (2013) EWHC 358 (Admin), (2013) MHLO 29 — “The claimant, Mrs Zhang, who very ably represented herself, was sectioned under the Mental Health Act shortly after giving birth to her first baby after a prolonged and very difficult labour. … Miss Zhang says that looking at the reasons that were given at the time, which are recorded in a document signed by both doctors (Form A3, that is the formal sectioning document) the reasons that are there recorded are insufficient reasons to warrant her detention under the Mental Health Act.” [Summary required.]
  • Immigration case. R (Das) v SSHD (2013) EWHC 682 (Admin), (2013) MHLO 28 — “The Claimant’s submission in these proceedings is that at the time of the second period of detention she suffered from a mental illness, in the form of depression and post traumatic stress disorder (“PTSD”), and that in detaining her the Secretary of State acted contrary to, or without having proper regard to, his own policy regarding detention of persons suffering from mental illness. This means that her detention was unlawful, as being in breach of the Claimant’s legitimate expectation that the Secretary of State would take into account and abide by his policy in this regard. … The Claimant is entitled to a declaration that the entire second period of detention was unlawful. However, she is only entitled to nominal damages for false imprisonment in relation to that detention.” [Summary required.]
  • Miscellaneous case. R (Children’s Rights Alliance for England) v SSJ (2013) EWCA Civ 34, (2013) MHLO 16 — “This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ([2012] EWHC Admin 8), by which he dismissed the appellant’s application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom.” [Summary required; detailed external summary available.]
  • Miscellaneous case (disclosure). Durham County Council v Dunn (2012) EWCA Civ 1654, (2012) MHLO 169 — “On 17 December 2007, the claimant’s solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s. The letter included a request for the disclosure of certain documents. Some documents were disclosed in redacted form. On 25 March 2011, the claimant issued these proceedings. This appeal is concerned with the ambit of the Council’s duty of disclosure. … In particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR).” [Summary required; detailed external summary available.]

Legislation

  • Legislation. Mental Health (Discrimination) Act 2013 — This Act: (1) repeals, from 28/4/13, s141 MHA 1983 so that the seat of an MP is no longer vacated upon long-term detention under the Act; (2) amends, on a date to be appointed, the Juries Act 1974 so that (in addition to the existing category of those lacking capacity) only those liable to be detained under the MHA are excluded from jury service (see jury service page for current provisions); (3) amends, from 28/4/13, the Companies (Model Articles) Regulations 2008 so that a person no longer ceases to be a director when ‘by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have’.
  • LPA legislation. Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2013/506 — These regulations amend Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (1) Regulation 3 substitutes a period of 4 weeks for the existing 6 week period that must elapse between the date of the latest notice by which the Public Guardian notifies the donor or donees (as appropriate) of a lasting power of attorney that an application to register has been received, and the date on which the LPA is registered. (2) Regulations 4 and 5 substitute a 3 week period for a 5 week period during which a donee or donor of the power, or a named person, must give notice of objection to registration to the Public Guardian. (3) Regulation 6 substitutes a period of 3 weeks for the current 5 week period in which a person who wishes to make an application to the court objecting to registration must do so. (4) Regulation 8 introduces a new basis on which a security given by a deputy to the Public Guardian in respect of the discharge of his or her functions can be discharged. (5) Regulations 9-12 amend forms (Forms LPA 001, LPA 003A and LPA 003B will be available online from 1/4/13). (6) Regulation 13 makes transitional provision. In force 1/4/13
  • Legal Aid legislation. Civil Legal Aid (Remuneration) Regulations 2013/422 — Payment rates for legal fees and independent experts. No change to MH legal fees. Some changes to independent expert maximum hourly rates, including: (a) psychiatrist is £135 in any area (previously £90 in London); (b) psychologist is £117 in any area (previously £90 in London). The previous rates continue to apply to cases started after 3/10/11 but before 1/4/13. In force 1/4/13.

Dept of Health

  • Consultation. Dept of Health, ‘Review of NHS complaints system’ (press release, 15/3/13). The review will be encouraged to make recommendations about: (a) any aspect of the NHS complaints arrangements and other means by which patients make concerns known; (b) the way that organisations receive and act on concerns and complaints; (c) how Boards and managers carry out their functions; (d) the process by which individual organisations are held to account for the way that they handle concerns and complaints. Contact details are provided for anyone wishing to submit evidence. Review begins 15/3/13 and is due to report by 30/7/13. See Consultations#Department of Health

Legal Aid

  • Legal Aid. Legal Aid Agency, ‘Applications for emergency funding in judicial review cases: processes and procedures from 1 April 2013’ (March 2013). See Legal Aid
  • Legal Aid. New Legal Aid forms must be used from 1/4/13: see Civil forms preview on MOJ website. See Legal Aid forms

Newsletters and articles

Website and CPD

  • CPD scheme. The questionnaire for January 2013 has been uploaded. Obtain 12 accredited CPD points online for £60 by subscribing today. See CPD scheme
  • Donations. Mental Health Law Online is free to use and maintained on a voluntary basis. If you or your organisation find this website useful, please consider making a donation to contribute to its upkeep. See Donations

February 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Case law

  • Capacity case (LPA). The OPG has published a summary of A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112 insofar as it relates to lasting powers of attorneys: The court was asked to make declarations as to whether X had capacity to do various things, including entering into marriage, litigating, making a will, managing his affairs, and making or revoking an enduring or lasting power of attorney. Paragraph 38 is of interest on the question of fluctuating or qualified capacity: “Let me then turn to the question of revocation or creation of enduring or lasting powers of attorney. First, I am not satisfied that it has been established that X lacked capacity to revoke the power of attorney in favour of the Applicants, even indeed if that was still a live issue given that the revocation has been accepted and the registration has been cancelled. I found the issue of power to create a new enduring* power of attorney very much more difficult for all the reasons that apply in relation to testamentary capacity. In the end, I have reached exactly the same conclusion. I am unwilling to make, on the evidence, a general declaration that he lacks capacity, but qualify that immediately by saying that the exercise of such a power, unless accompanied by contemporary medical evidence of capacity, would give rise to a serious risk of challenge or of refusal to register. It seems to me, for exactly the same reasons as I endeavoured to set out in relation to testamentary capacity, that X’s capacity is likely to diminish in the future and there will be times when undoubtedly he lacks capacity, just as there will be times when he retains it.” [*The judge must have intended to refer to a new lasting power of attorney, as new enduring powers of attorney may not now be made.] A more detailed summary is available here: A, B and C v X, Y and Z (2012) EWHC 2400 (COP), (2012) MHLO 112
  • Capacity case (fair trial). Re P (fair trial); Knowsley MBC v P (2013) MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient’s Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying ‘I was held prisoner, it’s as simple as that. Even though it’s been months since I was able to come home, I still can’t sleep. I feel like I just can’t trust anyone. I’m constantly worried that they’re going to turn up and take me away again.’

Newsletter/articles

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 30, February 2013). The cases mentioned in this issue are: WCC v AB and SB (unreported, 26 October 2012) — Re Buckley (unreported, 22 January 2013) — A Local Health Board v J (2012) MHLO 158 (COP) — Re AW (Permanent Vegetative State); The NHS Trust v AW (2013) EWHC 78 (COP), (2013) MHLO 3 — Durham County Council v Dunn [2012] EWCA Civ 1654 — Lashin v Russia [2013] ECHR 63 (Application No 33117/02) — Mihailovs v Latvia [2013] ECHR 65 (Application no. 35939/10). There is also information under the following headings: (a) OPG Consultation Response; (b) CQC Report: Monitoring the Mental Health Act in 2011/2. See 39 Essex Street COP Newsletter
  • Terri Judd, ‘Pensioner “held prisoner” by local council wins legal victory’ (Independent, 8/2/13); Fentons Solicitors, ‘Court victory for woman “held prisoner and denied fair trial” by council’ (8/2/13). See Re P (fair trial); Knowsley MBC v P (2013) MHLO 5 (COP)

Website

  • CPD scheme. The questionnaire for December 2012 has been uploaded, and the January 2013 questionnaire will follow shortly. Obtain 12 accredited CPD points online for £60 by subscribing today. See CPD scheme

January 2012 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

  • Upper Tribunal case. AC v Partnerships in Care Ltd (2012) UKUT 450 (AAC), (2012) MHLO 163 — AC appealed against the tribunal’s rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan’s independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal’s criticisms of Dr Kahtan’s evidence on the link between the index offences and AC’s mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the tribunal’s statutory function is limited to considering discharge from the scope of the Act; (b) it is true that the tribunal should take into account the practical reality, as in a case where release into the community is impossible and prison is the only alternative (Abu-Rideh), but this reasoning does not apply to a case such as AC’s because it is unknown whether the Parole Board will release or what conditions it might impose.
  • COP medical case. Re P (hunger strike) (2013) MHLO 4 (COP) — (1) The press has reported this case as follows: (a) P came to the UK on a six-month visa to learn English but refused to leave, asylum having been refused twice; (b) he stopped eating in May 2012 in protest at the UKBA’s refusal to return his passport unless he returns to Iran; (c) an NHS Trust in the South-east of England is seeking to force-feed him on the basis that he lacks capacity because of a delusional disorder. (2) The case is ongoing and a reserved judgment is expected by mid-February 2013.
  • COP medical case. Re AW (Permanent Vegetative State); The NHS Trust v AW (2013) EWHC 78 (COP), (2013) MHLO 3 — AW was in a permanent vegetative state, having suffered a spontaneous, severe intra-cerebral haemorrhage in 2008. The NHS Trust responsible for AW’s care sought a declaration that it would be lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, even though this would lead to AW’s death. The application was supported by AW’s family, by all the medical staff who looked after her, by the evidence of the expert witnesses provided reports, and by the Official Solicitor on behalf of AW herself. (1) The judge’s findings were as follows: (a) AW is in a permanent vegetative state; (b) there will be no change or improvement in her condition; (c) there is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and (d) he suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan that has been created for AW. (2) The following declarations were made: (a) AW lacks capacity to litigate in these proceedings or to make decisions about the medical treatment she should receive, including as to the withdrawal of artificial nutrition and hydration and other life-sustaining treatment; (b) it is lawful and in AWs best interests for life-sustaining treatment in the form of artificial nutrition and hydration to be withdrawn; and (c) it is in AW’s best interests to receive such treatment and nursing care as may be appropriate to ensure that she retains the greatest dignity until her life ends. (3) By agreement, the NHS Trust was ordered to pay half of the costs of the Official Solicitor, to be subject to detailed assessment if not agreed.
  • COP medical case. Re P (abortion) (2013) MHLO 1 (COP) — The press has reported this case as follows: (1) The solicitor who was one of P’s deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that ‘[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do’.
  • Community care case. R (Cornwall Council) v SSH (2012) EWHC 3739 (Admin), (2012) MHLO 162 — PH was a young man born with significant learning and physical disabilities. The Secretary of State decided that when he turned 18 he was ordinarily resident under the NAA 1948 in Cornwall, where his parents lived, despite his physical presence elsewhere. The court held that the Secretary of State had lawfully applied the test in Vale relevant to a person who is so severely handicapped as to be totally dependent upon a parent or guardian (termed ‘test 1’ in the guidance), which states that such a person is in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base.
  • Sentence appeal case. R v Fletcher (2012) EWCA Crim 2777, (2012) MHLO 161 — IPP sentence quashed and a restricted hospital order substituted in its place: the judge had not properly been informed as to the appellant’s mental state, because the original reports focussed on mental illness (which the appellant did not suffer from) rather than learning disability (which he did).
  • Employment case. West London MH NHS Trust v Dr Chhabra (2013) EWCA Civ 11, (2013) MHLO 2 — (1) Various complaints had been made against Dr Chhabra, including in relation to breaches of patient confidentiality, and the case investigator’s report stated that Dr Chhabra admitted to reading CPA notes and dictating reports on public transport. (2) Upon reading the case investigator’s report the case manager decided to convene a disciplinary panel to consider the following allegations and to consider them as potential gross misconduct which could lead to dismissal: (a) that Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport (the complaint being made by another passenger who happened to be Head of Secure Services Policy at the Department of Health); (b) that she undertook dictation on at least two occasions whilst completing Mental Health Tribunal reports whilst on public transport (the complaint being made by a member of secretarial staff); (c) that whilst travelling to work on public transport she would often call her secretary to discuss patient related matters breaching confidentiality (the complaint being made by her PA). (3) The High Court had made a declaration and injunction the effect of which were to prevent a disciplinary panel from investigating these complaints as matters of gross misconduct and under the terms of its disciplinary policy. (4) The Court of Appeal overturned that decision, stating the case manager’s decision was justified on the basis of the disciplinary procedures and the evidence: patients’ right to confidentiality is fundamental in the Health Service and must be respected by doctors and other staff; the case manager was entitled to regard breach of it in a public place by a consultant at Broadmoor as a potentially serious offence.

CQC

  • CQC, ‘Mental health services must improve the care they provide to patients’ (news item, 30/1/13). This web page contains a brief summary of the report plus links to: (a) the report, (b) a summary document, (c) an easy-read version, and (d) the CQC’s press release. See CQC
  • CQC, ‘Monitoring the Mental Health Act in 2011/12’ (30/1/13). The following are the report’s key findings for each chapter, and its concluding recommendations: (1) Use of the Act: (a) The number of people subject to detention under the Act is rising. The number of detentions rose by 5% on the previous year; the number of community treatment orders rose by 10%. (b) Of the 4,576 patient records checked in 2011/12, 4% showed irregularities that called the legality of the detention into question. (c) Care planning was the most frequently raised category of concern; 85% of the care plans examined showed evidence of individualised planning, regular review and evaluation, 15% did not. This was no change on 2010/11 and amounted to just over 650 patients where basic expectations about care planning were not met. (d) The greater detail now available in the Mental Health Minimum Data Set has exposed a number of data quality issues that must be addressed before the data can realise its full potential. (2) Participation and Respect: (a) CQC’s MHA Commissioners visited many mental health wards where a great deal of respect was given to patients. (b) Patients were able to influence the running of their ward in almost all cases – 94% of all wards in 2011/12, up from 90%. (c) Patients were more involved in planning their own care: their views were recorded in 63% of care plans, a rise from 58%. But this means an unacceptably high proportion – more than a third – did not have their views written down. (d) More than half of patients were still not given a copy of their care plan. (e) Most patients (90%) were given general information about their rights when they were first detained. (f) But one patient in five was not informed of their right to an Independent Mental Health Advocate (IMHA). (g) This may reflect continuing difficulties that some services have in accessing IMHAs. There was no evidence of an IMHA service in one in seven of the wards CQC visited. (3) Coercion in practice: (a) The human rights of patients are often affected by controlling practices that only seem to serve the hospital’s needs. Hospitals have a difficult task in balancing the realities of detention and compulsory treatment with the requirement that they provide services according to a principle of least restriction on patients. But it has proved all too easy for cultures to develop in which blanket rules deny people their basic rights – especially the right to dignity. (b) In one in five visits – an unacceptably high number – MHA Commissioners thought that patients who were in hospital voluntarily might be detained in all but name. For example, in 88 out of 481 visits there were no signs on locked doors that explained to voluntary patients how they could leave the ward. (c) On 24 occasions, patients had been secluded but the ward staff had not realised this was classed as seclusion and they had not applied the proper safeguards. (d) In many hospitals restraint practices are generally safe and appropriate. Almost all staff will now have some degree of training not only in physical methods of restraint, but in ways to prevent confrontational situations. (e) However, CQC is still concerned at the lack of regulation of training programmes with regard to restraint. Safeguards could be improved. (f) CQC is talking with the Department of Health about how to promote best practice around support for positive behaviour. (4) Care pathways (a) CQC saw evidence that many Approved Mental Health Professionals are trying to find alternative care for people that avoids them having to be detained in hospital. (b) Pressures on beds continued to put services and patients under stress, making it harder to provide appropriate care for people in times of crisis. In 2011/12, 93 wards (6% of all wards) visited had more patients than beds; a further 10% were at full capacity. (c) Patients are being affected by reductions in staff numbers. For example, MHA Commissioners raised concerns in 77 visits that a lack of staff prevented patients taking escorted leave. (d) In some services MHA Commissioners saw excellent examples of patients benefitting from psychological therapies. But in others, services were too ready to rely on psychiatric medication as their response to patients’ distress. (e) Patients are benefitting from good discharge planning in a number of units – with considerable investment in time and effort being spent in identifying step down accommodation and suitable support arrangements. But an unacceptably high proportion – more than a third of care plans – still showed no evidence of discharge planning. (5) Consent to treatment: (a) Consent to treatment discussions (before the first administration of medication) improved in 2011/12 – 55% of records showed these, up from 46% in 2010/11. But this means that in almost half of cases there was no evidence that doctors had talked to patients about whether they consented to proposed treatment. (b) There was better evidence of consent discussions after the first use of medication (72% of records). But still this means consent was not discussed in more than a quarter of cases. (c) One patient in 10 (receiving medication for three months or more) was prescribed medication above the legally authorised care plan. (d) In CQC’s view, the assumption of a patient’s capacity to consent to or refuse treatment should be backed up by a written record. More than a third of records did not show any evidence of a capacity assessment (42% on admission; 36% at the end of three months or the last administration of medication). (e) Patients may be reluctant to say what they think about their treatment in public, particularly in a traditional ward round. CQC saw some good services that have developed private arrangements instead of ward rounds. (6) Community Treatment Orders: (a) CTOs are used widely by some providers, and used little by others. In an analysis of NHS organisations, the lowest reported ‘discharge rate’ onto a CTO was 4.0%; the highest was 45.5%. (b) There were also a number of NHS organisations – with considerable rates of detention under the Act – that provided nil returns for the use of CTOs. (c) A number of patients are worried that it isn’t clear when a CTO will have served its purpose – and therefore they do not know what they have to do to come off a CTO. (7) Recommendations: (a) Policy makers must consider the reasons why there are rising numbers of people subject to the Act and develop an appropriate policy response. (b) The Boards of mental health trusts, independent providers of mental health care, and community trusts are responsible and accountable for the quality of care people receive. They must drive the changes needed in their organisations. In particular they need to recognise and promote good practice and ensure that robust mechanisms are in place to understand individuals’ experience of their services. CQC reminds providers of their own duties to monitor how they use powers derived from the Act (see the Code of Practice) and their duties under the Health and Social Care Act 2008 to demonstrate how they have learned lessons from practice and have made consequent improvements. This is an area that CQC will focus on in the next 12 months in its regulatory activity. (c) The NHS Commissioning Board, local authorities, clinical commissioning groups and specialist commissioners must commission services that guarantee a person’s dignity, recovery and participation. Clinical commissioning groups and local authorities must ensure that local needs assessments for community services and commissioned models of care are informed by an understanding of their statutory duties under the Act and by the experiences of people who use services. See CQC

Newsletters

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 29, January 2013). The cases ++mentioned in this issue are: Re L; The NHS Trust v L [2012] EWHC 2741 (COP), [2012] MHLO 159 — J Council v GU [2012] EWHC 3531 (COP), [2012] MHLO 137 — In the matter of A (a child) [2012] UKSC 60 — R (ET) v (1) Islington LBC (2) Essex CC [2012] EWHC 3228 (Admin) — R (Chatting) v (1) Viridian Housing (2) LB Wandsworth [2012] EWHC 3595 (Admin) — R (Cornwall Council) v SoS for Health & Ors [2012] EWHC 3739 (Admin) — Neon Roberts — An NHS Trust v DJ [2012] EWHC 3524 (COP), [2012] MHLO 138. The following decisions are currently under appeal: ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25 — CYC v PC and NC [2012] MHLO 103 (COP) — A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112 — Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33 and Dunhill v Burgin [2012] EWHC 3163 (QB), [2012] MHLO 115. See 39 Essex Street COP Newsletter
  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 28, December 2012). The cases mentioned in this issue are: Re CP; WBC v CP (2012) EWHC 1944 (COP), (2012) MHLO 144 — Re Harcourt (2012) MHLO 74 (LPA), R v Ligaya Nursing (2012) EWCA Crim 2521, (2012) MHLO 134 — Dunhill v Burgin (2012) EWHC 3163 (QB), (2012) MHLO 115 — Re X & Y (Children) [2012] EWCA Civ 1500 — Sykora v Czech Republic 23419/07 [2012] ECHR 1960. Further information is given on the following subjects: (1) Debt relief orders; (2) Transfer of supervisory body responsibilities from PCTs to Local Authorities; (3) Regulatory review; (4) Home care and Human Rights; (5) CQC, ‘The state of health care and adult social care in England: An overview of key themes in care in 2011/12’ (November 2012); (6) ECtHR Guide to Article 5; (7) ‘Tying ourselves into (Gordian) knots’ article. See 39 Essex Street COP Newsletter

Website

  • Lucy Series, ‘My top ten Mental Capacity Act resources’ (The Small Places Blog, 27/12/12). This article recommends the following resources: (1) Mental Health Law Online, (2) 39 Essex Street Court of Protection Newsletter, (3) Court of Protection Law Reports, (4) Mental Capacity Act Manual, (5) Social Care Institute for Excellence, (6) Google Alerts, (7) Essex Autonomy Project, (8) Mental Health Foundation MCA literature review, (9) Mental Disability Advocacy Center, (10) Twitter. See Miscellaneous external links