September 2013 mental health law update

Updates from Mental Health Law Online


  • 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 *


  • 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 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) *


  • 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 or 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


  • 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.