July 2014 mental health law update

Updates from Mental Health Law Online

Cases

  • Legal Aid case. R (Public Law Project) v SSJ (2014) EWHC 2365 (Admin), (2014) MHLO 46The proposed legal aid ‘residence test’ was unlawful: (1) the statutory instrument containing it was ultra vires and unlawful, as LASPO did not permit such a criterion to be introduced by secondary legislation; (2) residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO. [Detailed WLR (D) summary available.]
  • Criminal appeal. R (M) v Kingston Crown Court (2014) MHLO 50 (DC)M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it.
  • Transfer procedure. R (L) v West London MH NHS Trust (2014) EWCA Civ 47, (2014) MHLO 49(1) There was no challenge to the first instance judge’s finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L’s case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be “amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the ‘gists’ of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his representative, and that the patient be afforded an opportunity to make written submissions to the panel.”
  • Sentencing case. AG’s ref (no 34 of 2014) sub nom R v Jenkin (2014) EWCA Crim 1394, (2014) MHLO 56Criminal sentencing case with mental health background (a s45 hybrid order had been given in conjunction with life sentences). The Court of Appeal clarified that if a sentencing court “chooses to work with the currency of minimum terms, as it generally will do in homicide cases involving mandatory or discretionary life sentences, it does not need to have regard to the early release provisions”. In this case, the judge should not have halved the 12-year minimum term to 6 years. A minimum term of 13 years 4 months was substituted.
  • EPA case. Re AB (Revocation of Enduring Power of Attorney) (2014) EWCOP 12, (2014) MHLO 55 — “This is an application for the court to revoke an Enduring Power of Attorney (‘EPA’) on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor’s attorneys. … MD and WD have breached their fiduciary duties in several ways and in the circumstances I am satisfied that they are unsuitable to be AB’s attorneys, and I shall revoke the EPA. As far as the choice of deputy is concerned, the appointment of an independent professional deputy or panel deputy would be disproportionate. What is left of AB’s estate would rapidly be eroded by the professional deputies’ costs. I agree with Miss Cooper that Brent Council is best placed to act as deputy, as AB is in a residential care home and the Council is already funding the lion’s share of her care fees.”
  • Medical case. X County Council v M (2014) EWHC 2262 (Fam), (2014) MHLO 54 — “On 16 May 2014 I heard two applications by the Applicant local authority, namely: (i) an application under the inherent jurisdiction of the High Court for permission not to disclose to the First Respondent, M, the care plan for her unborn child namely to remove the child at birth; and (ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court. I granted those applications at a hearing on 20 May at which further evidence in support of the applications had been filed. I reserved judgment.”
  • Repatriation case. R (MD) v SSHD (2014) EWHC 2249 (Admin), (2014) MHLO 52 — “In my judgment, the Claimant’s detention was unlawful from the 21st October 2011 until her release on the 13th September 2012 by reason of a breach of the third Hardial Singh principle and from the 16th February 2012 until her release on the 13th September 2012 due to the failure of the Defendant to properly understand and apply her policy regarding the detention of those with serious mental illness to the circumstances of the Claimant’s case. So the Claimant’s detention was unlawful both at common law and under Article 5 of the ECHR. I have also found that the Claimant’s treatment by the Defendant by detaining her in the circumstances I have set out above amounted to inhuman and degrading treatment in breach of Article 3 of the ECHR.”
  • Medical case. United Lincolnshire Hospitals NHS Trust v N (2014) EWCOP 16, (2014) MHLO 51 — “The critical decision is whether it is in N’s best interests to continue invasive, risk laden, medical care as would be involved in a further attempt at artificial feeding. I am utterly convinced that it would not. Accordingly, I declare that it is lawful and in her best interests for the clinicians (a) not to make any further attempt to secure a means of providing artificial nutrition; (b) to withdraw the provision of intravenous fluids and dextrose; and (c) to provide such palliative care and related treatment (including pain relief) as considered appropriate to ensure she suffers the least distress and retains the greatest dignity until such time as her life comes to an end.”
  • Northern Irish case. MH v MHRT for NI (2014) NIQB 87, (2014) MHLO 48The patient challenged the MHRT’s decision on the grounds that “(i) the approach of the MHRT was unlawful and that the MHRT had not adopted the narrow focused based approach required under Article 77(1) and Article 2(4) of the Order and, (ii) the MHRT had misunderstood the meaning of “discharge” and had failed to take into account the applicant’s stated intention which was to remain in hospital as a voluntary patient if discharged from detention”. These challenges were rejected. The tribunal’s decision was the only reasonable one on the evidence.
  • Tribunal decision. Re Jared Britton (2013) MHLO 146 (FTT)Extract from decision: “In a decision given on 26 September 2011, the application by Mr Jared Britton that his application dated 4th September 2009 should be held in public was granted. The fact of this decision should be published. The reasons for the decision must not to be made public. An open hearing is now listed at Liverpool Crown Court on Wednesday 3rd April 2013 for an all day hearing starting at 10.30am.”
  • Immigration case. R (O) v SSHD (2014) EWCA Civ 990, (2014) MHLO 47 — “This issue on this appeal is whether the Secretary of State for the Home Department (“the Secretary of State”) could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. … Accordingly, I would dismiss this appeal. The new diagnosis of Dr Agnew-Davies proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if O was released into the community and these were not put in place to the satisfaction of the court until 6 July 2011 when she was in fact released on bail.”
  • Guardian, ‘Murderer not entitled to remain anonymous while seeking rehabilitation’ (Press Association, 16/7/14). A restricted transferred prisoner patient in medium security judicially reviewed the Secretary of State’s refusal to grant permission for unescorted community leave. Cranston J refused to make an anonymity order, a decision upheld by the Court of Appeal (Lord Dyson MR; Maurice Kay LJ, VP; Floyd LJ). It is understood that an appeal will be made to the Supreme Court. See Forthcoming judgments#Re X (anonymity)

Legislation

  • Secondary legislation. Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 — These regulations were required to be made by the European Union’s Directive 2011/83/EU. They specify the circumstances in which consumers can cancel contracts and the related information which must be supplied by traders, and create a criminal offence. Legal Aid is not specifically excluded, but the regulations (in relation to the “Information requirements” Part 2 and the “Right to cancel” Part 3) state that “This Part does not apply to off-premises contracts under which the payment to be made by the consumer is not more than £42” (regulations 3(4) and 27(3)). In force 13/6/14.

Legal Aid Agency

  • Legal Aid forms. New versions have been published for: CIVAPP1, 3, 5, 6, 8 & 8A; ADMIN1; MEANS1, 2 (+ guides), MEANS3; CIVCLAIM1, 1A, 5 & 5A; CW1&2, 3, 4, & CWC(MH); ECLAIM1(CIV), (MH) & (IMM). From 4/8/14 only these forms can be signed. Old forms signed before then should be submitted before 31/8/13 to avoid rejection. See Legal Aid forms
  • Legal Aid Agency, ‘Community care and mental health contract documents’ (17/7/14). From 21/7/14 the LAA will (1) issue contract documentation to those who have completed verification and (2) notify those who have not completed verification what information is outstanding and when it is required. See Legal Aid#2014 Contract
  • Legal Aid Agency, ‘Keycard 50’ (April 2014). This document is helpful if working out financial eligibility for civil Legal Aid. In force 7/4/14. See Legal Aid#External links
  • Legal Aid Agency, ‘Where to send civil work from 17/2/14’ (February 2014). Link to this document added. See Legal Aid forms

Mental Health Tribunal

Law Commission

  • Law Commission, ‘Unfitness to plead: An issues paper’ (2/5/14). Consultation runs from 2/5/14 to 25/7/14. Extract: “”We are now reviewing our provisional proposals in light of the consultation responses, and taking into account the changes to the criminal justice system since we produced the consultation paper in October 2010. … These further questions address issues such as: (1) How should special measures to enhance the defendant’s ability to participate in trial be fairly incorporated into the test for unfitness? (2) Should the procedure in the magistrates’ and youth courts mirror that in the Crown Court? (3) What should the process be for dealing with a defendant when he or she has been found unfit to plead? (4) At a hearing to deal with a defendant found unfit, what issues should be considered by the court? (5) What options should the court have in dealing with unfit defendants?”” See Consultations#Law Commission

Department of Health

  • Department of Health, ‘Stronger Code: Better Care: Consultation on proposed changes to the Code of Practice: Mental Health Act 1983’ (7/7/14). Extract from press release: “Our consultation ‘Stronger Code: Better Care’ is asking for your thoughts on a new draft Code which includes: (1) five new guiding principles; (2) significantly updated chapter on how to support children and young people, on the use of restraint and seclusion and the use of police powers and places of safety; (3) new chapters on care planning, equality and human rights, links to the Mental Capacity Act and Deprivation of Liberty Safeguards, and support for victims.” Related documents: (1) Department of Health, ‘Mental Health Act Code of Practice consultation launched’ (press release, 7/7/14); (2) Department of Health, ‘Mental Health Act 1983: Draft Code of Practice for consultation’ (7/7/14). See Consultations#Department of Health

Ministry of Justice

  • Ministry of Justice, ‘MAPPA guidance’ (version 4, 2012). Link to this guidance added. See MAPPA

Articles, books, etc

  • New journal. International Journal of Mental Health and Capacity Law — The Journal of Mental Health Law is to be relaunched as the International Journal of Mental Health and Capacity Law. It will be an open-access online journal hosted by the University of Northumbria. The editor-in-chief will be Kris Gledhill, and volunteers (academics, legal practitioners, and mental health professionals) are sought for the editorial teams.
  • Healthwatch, ‘People’s inquiry to uncover pitfalls of discharge from hospitals and care homes’ (press release, 7/5/14). Extract: “Healthwatch England is today launching our first ever special inquiry to find out why things so often go wrong when people are discharged from health and social care institutions. In contrast to standard public inquiries, this investigation will be led by people with direct experience of unsafe discharge and will reach out to communities right across the country through site visits, focus groups, public hearings, and the mobilisation of the 148 local Healthwatch, to hear real life experiences of the discharge process and learn what can be done to improve outcomes.” Website pages include “Tell us your story about leaving hospital or care” and “Get your organisation involved”. See Miscellaneous external links

Newsletters

  • 39 Essex Street, ‘Mental Capacity Law Newsletter’ (issue 47, June 2014). Also: (1) Lucy Series et al, ‘Mental Capacity Law Mental Discussion Paper: The Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000 and the Convention on the Rights of Persons with Disabilities: The Basics’ (June 2014); (2) Sally Jones, ‘Challenges for the Office of the Public Guardian’ (June 2014). See 39 Essex Street Mental Capacity Law Newsletter
  • 39 Essex Street, ‘Mental Capacity Law Newsletter’ (issue 45, April 2014). Also: (1) Alex Ruck Keene and Catherine Dobson, ‘Deprivation of liberty in the hospital setting’ (39 Essex Street, 10/4/14); (2) Adrian Ward, ‘Scottish Adult Incapacity Law: Part 2’ (April 2014); (3) Alex Ruck Keene et al, ‘Mental Capacity Law Guidance Note: A brief guide to carrying out capacity assessments’ (31/3/14); (4) Simon Edwards, ‘Testamentary Capacity and the Mental Capacity Act’ (March 2014); (5) Alex Ruck Keene et al, ‘Deprivation of Liberty after Cheshire West: key questions for social workers and medical practitioners’ (April 2014). See 39 Essex Street Mental Capacity Law Newsletter

Events

  • MHLA panel courses. 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 Leeds on Monday 13/8/14 and Tuesday 14/8/14. The course will also be held in London on Tuesday 26/8/17 and Wednesday 27/8/14. 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. See Events

Website

  • CPD. Obtain 12 accredited CPD points online for £60. See CPD scheme

June 2014 mental health law update

Updates from Mental Health Law Online

Case law

  • Community care case. R (ZYN) v Walsall MBC (2014) EWHC 1918 (Admin), (2014) MHLO 40 — “The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives. … For the reasons given, I find that the Council’s policy on charging for the cost of social care services is unlawful insofar as it takes account of any of the capital derived from the claimant’s personal injury settlement.”
  • Costs case. North Somerset Council v LW (2014) EWCOP 3, (2014) MHLO 39 — “At the conclusion of the hearing on 23 April an issue about costs arose. … I am in no doubt that, on the evidence before me, UHBT fell well short in meeting their duties to LW and her unborn child. … The cumulative effect of these factors is that part of the hearing on 15 April and the whole of the hearing on 16 April, were completely ineffective. Accordingly I am satisfied that in the premises the court is justified in departing from the general rule that there be no order as to costs: rr 157 & 159. … Accordingly I propose to order that UHBT pay the whole of the Official Solicitor’s costs of 15 and 16 April. In contrast the hearing of 23 April was an effective hearing albeit I ultimately made no order on the full evidence then before the court. Thus the usual rule will apply in respect of the hearing on 23 April, namely UHBT will pay one half of the Official Solicitor’s costs for that hearing. Those costs are to be assessed, if not agreed, on a standard basis. In respect of the costs of the local authority, on the basis that it applied for and was granted orders under the inherent jurisdiction and a RRO on the morning of 15 April. I shall direct that UHBT pay one half of the local authority’s costs of the hearing on 15 April and the whole of its costs for the hearing on 16 April. For the reason given in paragraph 43 above, I make no order for costs for the hearing on 23 April.”
  • Capacity case. North Somerset Council v LW (2014) EWHC 1670 (Fam), (2014) MHLO 38 — “In those circumstances I am satisfied that if the mother were to learn of the plan to remove her child at birth there is a very real risk she would harm herself and a very very real risk that she would cause physical harm to her baby. … On the exceptional facts of this case I was wholly satisfied that the balance fell decisively in favour of making the [Reporting Restrictions Order]. It was the only proportionate course to be taken to secure the safety of the mother and of the child. … At the hearing on 6 May it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order. … I am in no doubt that the only order I can make in EW’s welfare best interests is an interim care order.”
  • Medical case. Sheffield Teaching Hospitals NHS Foundation Trust v TH (2014) EWCOP 4, (2014) MHLO 37 — “On the 14th May 2014 I granted declarations in respect of TH, a 52 year old man presently in a minimally conscious state at what has been described as the lower end of the spectrum of that condition (i.e. a very profound disorder of consciousness). There is no doubt TH lacks capacity to litigate in these proceedings and also lacks the capacity to give or withhold consent to his medical treatment. … In relation to withdrawal of nutirition and hydration I am persuaded that the correct course is to adjourn this issue to provide for a structured clinical assessment to evaluate whether there is evidence that TH’s primary neurological pathways are sufficiently intact to permit any evidence of awareness to be detected and fully to assess, over a set period of time, TH’s general awareness, responsiveness and capacity to experience pain. The National Clinical Guidelines have been drawn to my attention in some detail and Professor Barnes has highlighted the benefits of a standard assessment tool, for example the Sensory Modality Assessment and Rehabilitation Technique (SMART) and the Wessex Head Injury Matrix (WHIM).”
  • Medical case. An NHS Foundation Hospital v P (2014) EWHC 1650 (Fam), (2014) MHLO 35 — “This short judgment explains the reasons for an order I have just made as the out of hours judge in the middle of the night on 13th and 14th May 2014 on an extremely urgent application by a hospital foundation trust for a declaration that it is lawful for its doctors to treat a seventeen-year-old girl following a drug overdose notwithstanding her refusal to consent to that treatment.”
  • Deputyship case. LB Haringey v CM (2014) EWCOP B23, (2014) MHLO 36 — “This is an objection by a family member to the London Borough of Haringey’s application to be appointed as GW’s deputy for property and affairs. … Accordingly, I allow Haringey’s application and dismiss CM’s objection, and shall make an order appointing the authorised officer of Haringey Council as GW’s deputy for property and affairs on the understanding that it is in GW’s best interests, and less restrictive of his rights and freedom of action, for him to retain control over his own expenditure to a limit of £200 a week. I am surprised that CM persisted with her application to manage her uncle’s property and finances after he had expressed such trenchant opposition to her in his interview with the Special Visitor. … Nevertheless, GW’s views have not always been consistent and this matter was listed for an attended hearing on 22 May 2014, anyway, and in the circumstances I see no reason to depart from the usual order for costs…”
  • Unlawful detention case. Bostridge v Oxleas NHS Foundation Trust (2014) MHLO 42 (CC)A tribunal’s deferred discharge from s3 had also discharged a subsequent CTO: the purported recall from that CTO, and subsequent detention, had been unlawful; however, because no loss had been shown, following Lumba, nominal damages were awarded in this county court case.

Legal Aid

  • Simon Pugh, ‘Can you prove it?’ (Legal Aid Handbook blog, 17/6/14). This article refers to the draft residence test regulations which (if approved) will come into force on 4/8/14. See Legal Aid#Residence requirement

Ministry of Justice

Articles

Event

  • Event. Edge Training are running a one-day course entitled ‘Deprivation of liberty after Cheshire West: A day for experienced practitioners’ on Monday 23/6/14 in Lincoln’s Inn, London. Price: £115 plus VAT. The course aims to provide BIAs and other professionals with an in-depth understanding of the judgment and what it will mean in their daily practice. The speaker will be Aasya Mughal (barrister). See flyer for further details and booking information. See Events

Book

Website

  • CPD. The CPD questionnaires for April and May 2014 have been uploaded. Obtain 12 accredited CPD points online for £60. See CPD scheme

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 90In 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 47The 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 82The 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 51The 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 52On 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 48SB’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 197As 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 46As 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 33During 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 37The 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 41The 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 33During 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