Updates from Mental Health Law Online
- Legal Aid case. R (Public Law Project) v SSJ (2014) EWHC 2365 (Admin), (2014) MHLO 46 — The 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 56 — Criminal 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.”
- Welfare case. LB Redbridge v G (No 5) (2014) EWCOP 17, (2014) MHLO 53 — Final judgment in this long-running welfare case.
- 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.”
- Alex Ruck Keene, ‘A melancholy but profound milestone’ (Mental Capacity Law and Policy, 24/7/14). This article describes the court’s best interests decision on artificial nutrition and hydration as momentous because of its approach to a patient in a minimally-conscious state. See United Lincolnshire Hospitals NHS Trust v N (2014) EWCOP 16, (2014) MHLO 51
- Northern Irish case. MH v MHRT for NI (2014) NIQB 87, (2014) MHLO 48 — The 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)
- Secondary legislation. National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 — These regulations, among other things, set out the situations in which the duty on a CCG imposed by s117 can be imposed on a different CCG. The regulations are summarised here but the main consideration is where the patient is provided with primary medical services. Various in-force dates (Part 4 – mental health after-care services – in force 1/2/13).
- 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.
- Law Society, ‘Consumer Contracts Regulations 2013’ (Practice Note, 15/5/14). See Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
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, ‘Update on civil legal aid residence test’ (17/7/14). The Ministry of Justice will appeal the High Court decision on the residence test, which will not be introduced as planned on 4/8/14. See R (Public Law Project) v SSJ (2014) EWHC 2365 (Admin), (2014) MHLO 46
- 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
- Tribunal Practice Statement. Practice Statement: Delegation of Functions to Staff and to Registrars on or after 10 June 2014 (2014) MHLO 44 — The Practice Statement sets out the functions which may be carried out by clerks and registrars at the Tribunal secretariat. It replaces Practice Statement: Delegation of functions to staff on or after 2 November 2010 (2/11/10) and a further direction (dated 14/1/13) in relation to registrars. In force 10/6/14.
- Practice Guidance. Practice Guidance: Mental Health jurisdiction: Postponements and adjournments following recent changes in listing practice (2014) MHLO 48 — This document (dated June 2014, published 18/7/14) is based on internal guidance (in January 2014) to salaried tribunal judges and registrars which had set out factors which they ‘may wish to take into account’ when considering requests to postpone and adjourn a hearing.
- Tribunal direction. Direction applicable to all Applications and References in Mental Health Cases received by the Tribunal on or before 4 April 2014 but not finally disposed of by the Tribunal on or before date (2014) MHLO 45 — The text of this direction, dated 6/4/14, is as follows: “In accordance with Rule 5(1) and (2), and Rule 34(2)(c) I direct that: (1) In relation to all applications and references in mental health cases received by the tribunal on or before 4th April 2014 but not finally disposed of by the tribunal on or before that date, the appointed Panel Medical Member must, so far as practicable and having regard to any expressed wishes of the patient, examine the patient in advance of the hearing in order to form an opinion of the patient’s mental state; (2) In any such case, the Panel Medical Member may interview the patient in private.”
- Victim policy. Link to amended version of MHT victim policy (without missing text in paragraph 21) added. See Practice Guidance on Procedures Concerning Handling Representations from Victims in the First-tier Tribunal (Mental Health)
- 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.
- New book. Alex Ruck Keene et al, Court of Protection Handbook: A User’s Guide (LAG 2014). Also available in Kindle format. An accompanying website has been launched: Court of Protection Handbook. See Books
- Nazreen Pearce and Sue Jackson, ‘Supplement to Urgent Applications in the Court of Protection’ (29/7/14). This free supplement to the Deprivation of Liberty chapter of ‘Urgent Applications in the Court of Protection’ analyses the Supreme Court judgment in Cheshire West. The book is available here: Nazreen Pearce and Sue Jackson, Urgent Applications in the Court of Protection (2nd edn, Jordans 2014). See DOLS#Academic articles and book chapters
- Lucy Series ,’A glut of resources on Article 12 CRPD’ (The Small Places, 2/6/14). See Convention on the Rights of Persons with Disabilities
- 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
- 39 Essex Street, ‘Mental Capacity Law Newsletter’ (issue 48, July 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 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 46, May 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
- 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
- Cases. On 31/7/14 Mental Health Law Online contained 1528 categorised cases
- CPD. Obtain 12 accredited CPD points online for £60. See CPD scheme
- Chronology. See July 2014 chronology for this month’s changes to the website in date order.