Category: Legal updates

March 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

Solicitors Regulation Authority

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

Listing

Upper Tribunal

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

Criminal law

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

Capacity

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

Lasting Powers of Attorney

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

European Court of Human Rights

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

Miscellaneous

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

Legislation

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

Dept of Health

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

Legal Aid

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

Newsletters and articles

Website and CPD

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

February 2013 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Case law

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

Newsletter/articles

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

Website

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

January 2012 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

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

CQC

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

Newsletters

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

Website

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

December 2012 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

Tribunal

  • Ian Brady public hearing. Re Ian Brady (2012) MHLO 145 (FTT) — The tribunal’s decision is as follows: “The hearing in public of the application by Mr Ian Brady has been re-listed for Monday 17/6/13. The arrangements for the hearing will be the same as those made for the hearing which had to be adjourned last July namely that the Tribunal will hear the case at Ashworth Hospital and it will be relayed to the Civil Justice Centre Manchester for members of the public and press to watch the proceedings. The precise details of those arrangements will be published as soon as possible.”
  • Upper Tribunal case. SH v Cornwall Partnership NHS Trust (2012) UKUT 290 (AAC), (2012) MHLO 143 — The appellant was subject to a CTO. When he attended for his depot injection, he said that he did not consent to it but nonetheless he submitted to receive it without resistance. He argued that his lack of consent meant that the ‘appropriate medical treatment is available for him’ test was not met, but the tribunal did not discharge. The UT held that the issue of consent is outside the jurisdiction of the tribunal: (a) the tribunal can only consider the statutory criteria (consent does not arise until the decision to treat has been made, whereas appropriateness and availability are issues that arise prior to that decision); (b) it is the courts which provide judicial oversight of treatment under the Act.
  • Upper Tribunal case. AM v West London MH NHS Trust (2012) UKUT 382 (AAC), (2012) MHLO 139 — “The issue in this case is when a tribunal is under a duty to adjourn to obtain information on possible aftercare available to a patient. … The social work evidence before the tribunal may have been incomplete, even inadequate, but that did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly. On the tribunal’s findings, Mr M had not yet progressed to the point where the issue of aftercare that was actually available would arise. Without some acceptance or insight, Mr M could not progress to the point where his management in the community could even be tested by unescorted leave, let alone where he could be conditionally discharged.” [Summary required.]
  • Upper Tribunal case. LN v Surrey NHS Primary Care Trust (2011) UKUT 76 (AAC) — “This is an interlocutory appeal against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber), whereby the First-tier Tribunal declined to exclude evidence. … the issue for the First-tier Tribunal is not whether evidence is admissible, i.e., whether it can be admitted, but is whether it should be admitted. Relevance is a key consideration. Irrelevant evidence should not be admitted. However, relevance is not the only consideration. The First-tier Tribunal is also entitled to consider the weight of evidence when deciding whether to admit it. … It is wholly inconsistent for the primary care trust to say that it is confining its case to ten specific incidents and for it then to adduce evidence of complaints or other allegations relating to other incidents in order to show that those ten specific incidents are not isolated. … In my judgment, the First-tier Tribunal erred in not considering whether any specific evidence should be excluded or redacted at the beginning of the hearing or whether there needed to be a clearer ruling as to the potential relevance of the evidence. It erred in law because it failed to rule that there was an inconsistency in the way the Respondent presented its case and it failed to require the Respondent to give the Appellant adequate notice of the inference it wished the First-tier Tribunal to draw from evidence of uninvestigated complaints and allegations that was not being admitted to prove the contents of the complaints and allegations.” [Not an MHT case. Summary required.]

Best interests and capacity

  • Best interests case (medical). Re L; The NHS Trust v L (2012) EWHC 2741 (COP), (2012) MHLO 159 — The Trust sought a declaration that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared (to paraphrase) that: (1) L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, specifically, (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes. (2) L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores. (3) In L’s best interests, the clinicians were permitted: (a) to provide nutrition and hydration and medical treatment where L complies; (b) to administer dextrose solution to L despite her objections where immediately necessary to save life; (c) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L’s co-operation having been taken); (d) to provide palliative care in the terminal stage of L’s illness.
  • Best interests case. A Local Health Board v J (2012) MHLO 158 (COP) — (1) The court made the following declaration and orders as sought by the Health Board: (a) J lacked capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of ANH and other life-sustaining treatment; (b) J was in a permanent vegetative state and had no prospect of recovery; (c) there were no further investigations/treatment which should be undertaken; (d) it was in J’s best interests for ANH to be withheld; (e) ANH might be withdrawn lawfully by the applicant, or responsible attending medical practitioners or nursing staff; and (f) it was in her best interests to receive such treatment and nursing care as was appropriate to ensure that she retained the greatest dignity until her life came to an end. (2) In relation to the second declaration, the court considered evidence that J had said ‘die’ several times, and concluded that this had been (misinterpreted) ‘vocalisation’ (a moan or groan often repeated, and often seen in PVS) rather than ‘verbalisation’ (which would be consistent with a minimally-conscious state). [Summary based on All ER (D) report of ex tempore judgment.]
  • Best interests case. NHS Trust v K (2012) EWHC 2922 (COP), (2012) MHLO 150 — The Trust proposed to carry out surgery on K which could potentially cure her of cancer but which itself (given her co-morbidities including her 20-stone weight) raised a considerable risk of death. (1) K lacked capacity due to her chronic mental illness, and in particular her delusional belief that she did not have cancer, to make informed decisions about major medical treatment. (2) Orders were made that certain specified treatment would be lawful, subject to powers of veto given to specified people.
  • Best interests case. Re KH (A child); An NHS Trust v Mr and Mrs H (2012) EWHC B18 (Fam), (2012) MHLO 142 — “This is an application by an NHS Trust for declarations in relation to the best interests of a boy known in the proceedings as KH. The Trust seeks approval of a medical treatment plan which comes before the court because there are some matters that are not agreed and because the treatment plan involves the withholding of life-sustaining treatment in the event of a serious deterioration in KH’s condition.” [Summary required.]
  • Best interests case. An NHS Trust v DJ (2012) EWHC 3524 (COP), (2012) MHLO 138 — “As a result of his illness, DJ does not have the capacity to make decisions about his medical treatment. The trust has brought the proceedings because there is longstanding disagreement between the family and the doctors about what treatment should be given. This requires the court to make an assessment of DJ’s best interests within the framework of the Mental Capacity Act 2005. If that assessment supports the view taken by the doctors, a declaration may be granted endorsing the lawfulness of their approach.” [Summary required.]
  • Capacity case. J Council v GU (2012) EWHC 3531 (COP), (2012) MHLO 137 — “Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts.” [Detailed summary available.]
  • COP costs case. Re CP; WBC v CP (2012) EWHC 1944 (COP), (2012) MHLO 144 — LPM, the brother of CP (called C in the ‘blue room’ judgment) sought a costs order against the local authority. (1) The court should follow the general rule in welfare cases (that there be no order as to costs: rule 157) where it is appropriate, and it is only local authorities who have broken the law, or who are guilty of misconduct (that falls within rule 159) that have reason to fear a costs order (G v E). (2) The questions to be addressed are (a) is the departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the Applicant as a public body?; and (b) if so, what order should be made? (Neary). (3) The judge concluded that (a) the local authority’s actions were tainted with illegality, (b) the local authority’s decision making was impoverished and disorganised, (c) the local authority was responsible for the delay in referring CP’s circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictions, and (d) the local authority could have arrived at the position concluded by the court many months earlier. (4) The local authority was ordered to pay LPM’s costs to be assessed if not agreed.
  • Capacity case. Calvert v Clydesdale Bank Plc (2012) EWCA Civ 962, (2012) MHLO 131 — There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor’s lack of capacity.

Criminal

  • Capacity case. R v Ligaya Nursing (2012) EWCA Crim 2521, (2012) MHLO 134 — “This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005.” [Detailed summary available.]
  • Hybrid order case. R v Jenkin (2012) EWCA Crim 2557, (2012) MHLO 141 — Having pleaded guilty to GBH with intent (for gouging his girlfriend’s eyes out), the appellant was sentenced to life imprisonment with a six-year minimum term, combined with a hospital direction and limitation direction under s45A MHA 1983. He appealed against sentence, arguing for a restricted hospital order or alternatively an IPP sentence. (1) A hospital order means that ‘release is dependent on the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition’: this would be inadequate as, irrespective of his delusional disorder, the appellant posed a significant risk of serious harm to the public. (2) A life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave (R v Kehoe): both those limbs were met in this case. (3) The s45A hybrid order was appropriate as the criteria were met and the disorder was treatable, but when treatment is no longer necessary the risk to the public required that he be released from hospital to prison and for the Parole Board to make the release decision.
  • Criminal appeal. R v B (2012) EWCA Crim 1799, (2012) MHLO 119 — The trial judge found the appellant unfit to plead. The appellant had admitted the act charged during an interview under caution, and the judge refused to exclude that evidence. On the basis of that evidence, the jury found that the appellant had done the act charged. (1) Given that the appellant’s mental state was the same during interview as when found unfit to plead, the Court of Appeal found it impossible to understand how the interview could have been admitted: the finding that he had done the act was therefore set aside. (2) The Court of Appeal would have ordered a retrial but has no power to do; the court noted that it was ‘high time that Parliament remedied this most unfortunate error in the law’.
  • Criminal law capacity case. G v DPP (2012) EWHC 3174 (Admin), (2012) MHLO 140 — At the Youth Court it had been argued that the case should be stayed since it would be an abuse of the court’s process to proceed to an adjudication when the appellant was unfit to plead, to participate in his trial and to instruct his defence. Having heard medical evidence from both sides, the District Judge declined to stay the proceedings, arranged for the appointment of an intermediary and accepted the intermediary’s advice as to the way in which the appellant should be assisted during the course of the hearing; he found the charge proved. This was an appeal by way of case stated in relation to the appellant’s conviction at the Youth Court. (1) The High Court set out the rules for appeals and commented that the way in which the appeal had been prepared is was lamentable. (2) The District Judge had correctly followed the guidance (from DPP v P) for proceedings in the Youth Court in which capacity is relevant. (3) The defence expert confused the propriety of a prosecution with the ability to understand the nature of proceedings and communicate instructions and the District Judge was entitled to disagree with her.
  • Sentence appeal case. AG’s reference (no 60 of 2012) sub nom R v Edwards (2012) EWCA Crim 2746, (2012) MHLO 135 — “This is a case which presented to the judge an intractable but by no means unknown sentencing problem. … The intractable difficulty presented by this defendant and by, sadly, a number of others is this: he has a variety of personality disorders, but the doctors all report that there is no medical treatment available.” [Summary required.]
  • Criminal appeal. R v Tudor (2012) EWCA Crim 1507, (2012) MHLO 127 — Following receipt of a psychiatric report which did not recommend a hospital order, the trial judge was entitled to impose an IPP sentence without adjourning for a second psychiatrist’s report.

After-care and community care

  • After-care case. R (BA) v LB Hillingdon (2012) EWHC 3050 (Admin), (2012) MHLO 148 — “This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 against both defendants and/or section 21 of the National Assistance Act 1948 against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990.” [Summary required.]
  • LGO s117 decision. Avon and Wiltshire MH Partnership NHS Trust and Wiltshire Council 09 005 439 (2012) MHLO 147 (LGO) — “Citing section 117 of the Mental Health Act, which makes provision for patients who have been compulsorily detained under the Act to receive free aftercare, Miss M complained it was wrong for Mrs M to have funded her own care during the five years she spent as a resident of the care home. The Ombudsmen did not uphold any of Miss M’s complaints. Although they found there was no doubt Mrs M had had a severe and enduring mental illness over many years, they could not conclude that her period of residence in a care home, in the last years of her life, was linked to aftercare arising from compulsory detention in hospital some 15 years earlier. Because Mrs M’s general deterioration could not be definitely attributed to her mental health problems, the Ombudsmen could not therefore conclude that the care home’s fees should have been met from public funds. They also found that, despite some procedural failings, Mrs M did not fail to receive the medical or social care services that she needed from the trust or the council.” [Summary required.]

Powers of attorney

  • EPA case. Re Johnston (2012) MHLO 130 (EPA) — The donor appointed two attorneys to act jointly and severally. The donor included the following restriction: “The property at [address] shall not be disposed of without the agreement of A, B and C, as children of [the donor] in addition to the attorneys.” On the attorneys’ application the restriction was severed as being ineffective as part of an EPA. [OPG summary – EPA case.]
  • LPA case. Re Edmonds (2012) MHLO 129 (LPA) — The donor appointed a sole attorney and then two replacements, the latter to act jointly for some decisions and jointly and severally for others. She then directed as follows: “I would like my replacement attorneys to act jointly as much as possible and always where any transaction is valued at more than £5,000.” On the application of the Public Guardian the words “as much as possible and always” were severed on the ground that they were uncertain and incompatible with the appointment type. [OPG summary – LPA case.]

ECHR

  • ECHR case. X v Finland 34806/04 (2012) ECHR 1371, (2012) MHLO 128 — “The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication.” [Detailed summary available via external link.]

Immigration

  • Deportation case. JO (qualified person – hospital order – effect) Slovakia (2012) UKUT 237 (IAC), (2012) MHLO 132 — The respondent had been charged with attempted murder, found not guilty by reason of insanity, and made subject to a restricted hospital order. The Secretary of State made a deportation order under the Immigration (European Economic Area) Regulations 2006. Under those regulations, (a) a ‘qualified person’ (jobseeker or worker) is entitled to reside in the UK while he remains a qualified person, (b) after five years of such residence he is entitled to reside in the UK permanently, (c) a worker or self-employed person’s periods of inactivity due to illness or accident are treated as if they were periods of activity. (1) The term ‘illness’ should not be given a narrow or restricted meaning, either in terms of the type of illness (to exclude mental illness) or the period of incapacity (to exclude long-term illnesses). (2) Although a prison sentence does not count towards the qualifying period for permanent residence, time spent subject to a hospital order does: ‘The distinction is that a prison sentence follows the choice of an individual to act in a criminal manner, whereas a Hospital Order results from a finding that the individual suffers from a mental disorder and is not therefore criminally responsible for their otherwise culpable behaviour.’ [This distinction is fallacious, as it is mental state at sentencing that is relevant and most hospital orders follow a criminal conviction.] (3) The Secretary of State’s challenges in relation to the respondent’s ‘integration’ and work history were rejected as (respectively) integration was not relevant because the respondent fell within the regulations, and the FTT were entitled to reach the view it did as to work history.
  • Immigration case. C v SSHD (2012) EWHC 1543 (Admin), (2012) MHLO 125 — Immigration case with mental health background: “In essence, the claimant’s case is that the length of the detention, the unlikely prospect of removal, the deterioration in the mental health of the claimant together with independent evidence of torture, were all factors which would lead to a conclusion that the claimant’s detention was unlawful, even taking account of an absconding risk which, when properly examined, was not of the highest.” [Summary required.]

Miscellaneous

  • Negligence case. Selwood v Durham CC (2012) EWCA Civ 979, (2012) MHLO 160 — “This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it is reasonably arguable that such a duty was owed in the circumstances of the case. The claimant had also pleaded that there had been a breach by the second and third defendants of her right under article 2 of the European Convention of Human Rights. The judge also struck out those claims and that issue is raised in this appeal.” Appeal allowed and all issues sent for trial. [Detailed summary available.]
  • Negligence claim. Buck v Norfolk and Waveney MH NHS Foundation Trust (2012) MHLO 123 (CC) — The defendant Trust granted unescorted leave to a detained patient who then ran in front of a bus. The claimant bus driver suffered PTSD and sued the Trust. The court held that a custody authority responsible for the negligent release of a patient did not owe a duty to a victim unless that victim had been identifiable: the Trust therefore owed no duty of care to the driver.
  • Housing case. Southend-on-Sea BC v Armour (2012) EWHC 3361 (QB), (2012) MHLO 152 — The recorder’s decision to refuse to grant a possession order (on the basis that by the time of the delayed hearing possession was no longer appropriate because there had been full compliance with the terms of the tenancy for the 12 months prior to the hearing) was upheld on appeal.
  • Housing case. Southend-on-Sea BC v AR (2012) EW Misc 25 (CC), (2012) MHLO 151 — The claimant local authority sought possession of an introductory tenancy on the basis of the defendant’s antisocial behaviour. (1) The procedure was followed properly so there was no defence to the claim under the Housing Act 1996. (2) The original decision to seek possession was a necessary and proportionate interference with the defendant’s Article 8 rights: in particular, the diagnosis of Aspergers and depression (which led to lack of litigation capacity and appointment of a litigation friend) did not explain the defendant’s conduct and was properly considered by the claimant. (3) However, there had been full compliance with the terms of the tenancy for the 12 months prior to the delayed final hearing, so possession was no longer proportionate. (4) No order for costs (despite the claimant seeking costs).
  • Scottish case. RM v Scottish Ministers (2012) UKSC 58, (2012) MHLO 133 — “This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions “shall come into force” on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. … These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security.” [Detailed summary available.]
  • Miscellaneous (limitation) case. RAR v GGC (2012) EWHC 2338 (QB), (2012) MHLO 154 — (1) In relation to limitation the court held as follows: ‘I am satisfied that it would be fair and just to invoke the discretion afforded to the court by section 33 of the 1980 Act and permit this trial to proceed. I do so for the following reasons: (i) Having read the lengthy report of Dr Roychowdhury, it is clear that as a result of the abuse perpetrated upon her, the mental health of the claimant has been adversely affected. It has fluctuated over the years, at its worst, it has entailed compulsory hospitalisation. I find that the mental health of the claimant played a real part in the delay which has occurred in the bringing of the civil claim. I accept that the nature of the matters to be explored in this case are of themselves a deterrent for a person in the position of the claimant in bringing such a claim. (ii) In 1977/1978 the defendant had cause to consider allegations of sexual assault upon the claimant by reason of the criminal proceedings. That he did so, and that his memory remains to this day, is evidenced by the detailed witness statement which the defendant has filed in these proceedings. (iii) This case depends upon the evidence of two people, the claimant and the defendant. Although the claimant will find it distressing to give evidence, the detail contained in her witness statement demonstrates that she is able to remember and articulate her memories, however unpleasant. There is nothing in the witness statement of the defendant which demonstrates any difficulty on his part remembering the detail of relevant periods. The evidence of both parties remains sufficiently cogent to enable a fair trial to take place. (2) The other issues considered were: (ii) What was the nature and extent of the alleged assaults perpetrated by the defendant upon the claimant? (iii) What is the nature and extent of any resultant personal injury and loss? (iv) What is the appropriate level of damages?
  • Miscellaneous case. R (Tracey) v Cambridge University Hospital NHS Foundation (2012) EWHC 3670 (Admin), (2012) MHLO 146 — “This is a claim for judicial review and a claim pursuant to section 7 Human Rights Act 1998 in respect of: (i) the failure by the first defendant to treat the claimant’s late wife, Janet Tracey lawfully; (ii) the failure by the first defendant to treat Janet Tracey in a manner that respected her rights under Articles 2, 3 and 8 ECHR, and in a manner that respected the claimant’s rights under Article 8 ECHR; and (iii) the failure by the first defendant to have in place and to operate lawfully an appropriate policy on the use of Do Not Attempt Cardio-Pulmonary Resuscitation orders; (iv) the failure by the second defendant effectively to promulgate any clear policy or guidance on the use of DNACPRs, which is accessible to patients and their families, and which properly informs them of their rights and legitimate expectations in respect of the use of DNACPRs by hospitals such as that operated by the first defendant.” [Summary required.]

Legislation

  • Draft legislation. Mental Health (Discrimination) (No. 2) Bill 2012 — The Mental Health (Discrimination) Bill 2010 ran out of Parliamentary time so was reintroduced in 2012. The 2012 Bill has been approved by the House of Commons and will have its Second Reading in the House of Lords on 18/1/13. As with the previous Bill, if enacted it would: (1) Repeal s141 MHA 1983 so that the seat of an MP is no longer vacated upon long-term detention under the Act; (2) amend the Juries Act 1974 so that (in addition to the existing category of those lacking capacity) only those liable to be detained under the MHA are excluded from jury service (see jury service page for current provisions); (3) amend the Companies (Model Articles) Regulations 2008 so that a person no longer ceases to be a director when ‘by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have’; (4) amend the School Governance (Constitution) (England) Regulations 2007 so it is no longer the case that ‘[a] person is disqualified from holding or from continuing to hold office as a governor of a school at any time when he is detained under the Mental Health Act 1983’.
  • Legislation (from 2008). Mental Health (Cross-border Visits) (Scotland) Regulations 2008 — “These Regulations make provision in connection with escorted mental health patients who visit Scotland whilst on leave of absence under the law of England and Wales, Northern Ireland, the Isle of Man or any of the Channel Islands.” In force 6/5/08.

Articles

Life and death

  • John Aston, ‘Brain damaged woman allowed to “die with dignity”, judge rules’ (Independent, 13/11/12). This article sets out some further details of the evidence which do not appear in the All ER (D) report of the ex tempore judgment. See A Local Health Board v J (2012) MHLO 158 (COP)
  • Terri Judd, ‘Family “devastated” as court orders life saving treatment is to be withheld if the condition of their severely ill father deteriorates significantly’ (Independent, 8/10/12). Although L was in a minimally-conscious state rather than a vegetative state (as originally asserted by the Trust), Moylan J held that it would be in L’s best interests to withhold life saving treatment if his condition deteriorated significantly. See Settled cases and forthcoming judgments
  • Jane Dreaper, ‘Down’s syndrome patient challenges resuscitation order’ (BBC, 13/9/12). The basis of the claim is that a do-not-resuscitate order was placed on the patient’s file (on account of ‘Down’s syndrome, unable to swallow (Peg [percutaneous endoscopic gastrostomy] fed), bed bound, learning difficulties’) without consulting or informing him or his family and without provision for review. See Settled cases and forthcoming judgments#Re AWA (do not resuscitate)
  • Cathy Gordon, ‘NHS trust wins intervention ruling over man’s life-prolonging treatment’ (9/8/12). The judge decided that ‘[i]t would be not only inappropriate, it would be distressing for him to be subjected to any aggressive forms of treatment of a kind that may result in some short prolongation of what has to be seen as a distressing life.’ See Settled cases and forthcoming judgments#Re HH (needle phobia etc, Pauffley J)

Other

  • Mental Health and Mental Capacity Law Blog, ‘X v Finland – Are we in trouble?’ (18/7/12). This article argues that ‘[i]t is at best highly doubtful that the approach in the Mental Health Act 1983, where compulsory treatment flows from detention automatically and with limited distinct procedural and substantive safeguards, is consistent with Article 8 of the ECHR’. See X v Finland 34806/04 (2012) ECHR 1371, (2012) MHLO 128
  • What Do They Know website, ‘Cost to HBC of legal proceedings in Neary v Hillingdon’ (FOI request made 27/7/12). The FOI reply, dated 24/8/12, states that the costs to LB Hillingdon were: (1) solicitor costs 464.35 in-house hours (£32,318.31 at notional charge-out rate of approx £69.60ph); (2) counsel £32182; (3) expert reports £5231.65; (4) compensation £35,000; (5) court costs ordered and future costs not known at time of reply. See Re Steven Neary; LB Hillingdon v Steven Neary (2011) EWHC 3522 (COP)
  • Michael Kennedy and Bilkiss Bashir, ‘Short Changed’ (Private Client Adviser, February 2012). This article concludes: ‘For now, the argument as to the legality and power for a local authority to charge someone deprived of their liberty and compelled to live in a care home remains open to lively debate.’ See DM v Doncaster MBC (2011) EWHC 3652 (Admin)

Website

  • Redesigned home page now online, including donation button. 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 Main Page
  • Discussion list. Please subscribe to Mental Health Law Online’s new discussion list. This is separate from the email updates list, which remains unchanged. The discussion list covers all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion
  • CPD tests for October and November 2012. These CPD tests have been uploaded and are available to subscribers. Obtain 12 CPD points online for £60. See CPD scheme
  • New page. Wales — This page sets out some of the documents which are different for Wales.
  • New resources page. Enforcement Instructions — This Home Office/UK Border Agency manual contains guidance and information for officers dealing with enforcement immigration matters within the United Kingdom. Chapter 55 is entitled ‘Detention and temporary release.’ Paragraph 55.10 states: ‘The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: … those suffering from serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act …’
  • Merry Christmas and Happy New Year!

November 2012 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Case law

  • Section 117 case. R (Sunderland City Council) v South Tyneside Council (2012) EWCA Civ 1232, (2012) MHLO 117 — The chronology in this s117 responsibility dispute was as follows: (a) SF lived at a college hall of residence in Sunderland, (b) she had voluntary admissions to various hospitals, (c) she was voluntarily admitted to a South Tyneside hospital, (d) the college terminated her placement and her licence to remain at the hall of residence, (e) she was detained under s2 then s3 at the South Tyneside hospital. (1) It was common ground that (a) the relevant s117 authority is the relevant LSSA for the area in which a patient is resident when he is detained (Hall), (b) during a period of detention the patient is not ‘resident’ for s117 purposes in the place of detention (JM); and (c) SF remained resident in Sunderland during the hospital admissions, at least until the Sunderland placement was terminated: therefore the question was where she was resident after that. (2) The High Court judge had decided she remained resident in Sunderland: (a) the South Tyneside placement was ‘not compulsory, but it was closely analogous to a compulsory admission’ so was to be disregarded, as if it were a place of detention; (b) she was not in hospital ‘as part of the regular order of her life for the time being’ (applying the test in Shah); (c) the loss of her Sunderland accommodation was not voluntary (as in JM) so did not affect her area of residence. (3) The Court of Appeal overturned that decision: (a) a voluntary period in the same hospital as subsequent detention is not to be treated the same as the period of detention; (b) the judge had wrongly followed the approach in Shah (which related to ordinary residence in a very different statutory context); the approach in Mohamed was more helpful (this included that ‘so long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence’); (c) decisively, voluntary and third-party termination of accommodation have ..→ [Detailed summary available on case page.]
  • Lawfulness of transfer decision. R (L) v West London MH NHS Trust (2012) EWHC 3200 (Admin), (2012) MHLO 114 — The claimant began proceedings to challenge the decision to transfer him from a medium secure unit to Broadmoor high secure hospital. (1) The claimant no longer wished to challenge the transfer decision, but the claims were of general importance and merited review, and were not merely academic, so the judge proceeded to hear the case and set out his reasons at extraordinary length. (2) The potential adverse consequences of a transfer to high security are: (a) the potential for delaying the ultimate date of discharge from detention; and (b) the potential for more restrictive detention conditions. (3) The nature of the decision making process as to whether a patient should be transferred from medium to high security is such as to engage a common law duty of fairness. (4) Subject to the need to protect persons from the risk of harm or some other substantial reason, that duty of fairness requires: (a) the patient and his advisers to be informed of any intention to refer him to high security; (b) the gist of the reasons for referral and any relevant reports to be provided; (c) the gist to be sufficiently detailed to enable meaningful and focussed representations, and reasons to be given if reports are withheld; (d) requests for additional information to be considered; (e) all such information to be communicated in time for the patient to make representations before the earliest possible of (i) the admissions panel meeting, (ii) the high security hospital accepting, (iii) the medium secure hospital deciding to transfer, or (iv) the decision being implemented; (f) all such information to be communicated immediately upon transfer at the latest; (g) reasons for the various decisions to be communicated, and to be sufficiently detailed to enable the patient to decide whether a worthwhile challenge can be made (see para 557-8). (5) In this case, in various ways, the requirements of the common law duty of fairness were not complied with and a declaration to that effect was ..→
  • Capacity case. A, B and C v X, Y and Z (2012) EWHC 2400 (COP), (2012) MHLO 112 — The court considered X’s capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (ii) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, if unaccompanied by contemporary medical evidence asserting capacity, might be seriously open to challenge. (3) The same observations applied to X’s capacity to revoke or create lasting or enduring powers of attorney. (4) X lacked capacity to manage his own affairs: although a snapshot of X’s condition at certain times would reveal an ability to manage his affairs, the general concept of managing affairs is an ongoing act and relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. (5) X also lacked capacity to litigate: this required separate consideration because the time frame involved is different to managing affairs on the one hand, or making a will or granting power of attorney on the other. The basis for this assessment was stated in Masterman-Lister: ‘whether the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case ..→
  • Capacity case (imprisonment for contempt). SCC v JM (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.
  • Capacity case (deputyship). Re AS; SH v LC (2012) MHLO 113 (COP) — AS’s niece objected to a panel solicitor’s application to be appointed deputy with specific authority to sell a property. (1) Generally speaking the order of preference for the appointment of a deputy is: (a) P’s spouse or partner; (b) any other relative who takes a personal interest in P’s affairs; (c) a close friend; (c) a professional adviser, such as the family’s solicitor or accountant; (d) a local authority’s Social Services Department; and finally (e) a panel deputy, as deputy of last resort. (2) The court prefers to appoint a family member or close friend because of: (a) familiarity with P’s affairs, wishes and communication methods; (b) likely greater ability to consult with P and encourage participation; (c) reasons of economy; (d) the concept of deputyship of last resort. (3) The appointment of a family member will generally be a less restrictive alternative, though the question remains as to whether this will achieve the desired objective as effectively as the appointment of a panel deputy. (4) The court would not appoint a family member in cases involving, for example: (a) financial or other abuse; (b) conflict of interests; (c) an unsatisfactory track record in managing financial affairs; and (d) ongoing friction between various family members. (5) On the facts, the niece was appointed as there was no need for a deputy of last resort. (6) The general rule as to costs (that AS pay) was followed.
  • Family Division case involving capacity. Re CA (A Baby); Coventry City Council v C (2012) EWHC 2190 (Fam), (2012) MHLO 110 — The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge seriously doubted the social worker’s assessment that she had such capacity. (3) There was no informed consent because (a) the mother was never told that continued refusal of consent would result in the child staying in hospital with her for another day or two, and (b) she was told that removal was only a temporary arrangement when it was highly unlikely to be anything of the sort. (4) In relation to fairness, the local authority had settled an HRA damages claim, accepting that (a) s20 consent should not have been sought on the day it was, and (b) removal was not a proportionate response to the risks that then existed. (5) The court made the care order and (adoption) placement order which the local authority had sought, as the case for that was overwhelming. [Detailed summary available on case page.]
  • Capacity case. Dunhill v Burgin (2012) EWHC 3163 (QB), (2012) MHLO 115 — The ‘compromise rule’ in the Civil Procedure Rules provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court. (1) The rule applies to a claim settled at the door of the court where at the time of the settlement the claimant was not known to lack capacity. (2) The claimant was a protected party (‘a party, or an intended party, who lacks capacity to conduct the proceedings’) and the Court of Appeal had decided that she lacked capacity to settle her claim. (3) The compromise in this case was invalid; the judgment based on it must be set aside, and the substantive claim should proceed to a trial on the merits. (4) The judge granted a certificate under s12 Administration of Justice Act 1969 to enable an application to be made to the Supreme Court for permission to bring a ‘leapfrog’ appeal from this decision.
  • Capacity case. Supreme Court permission granted on 23/10/12. Dunhill v Burgin (2012) EWCA Civ 397, (2012) MHLO 33 — (1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court.
  • Court Martial. Court Martial in the case of Sergeant Nightingale (2012) MHLO 116 — (1) The accused pleaded guilty of possessing (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm. (2) In mitigation he relied, inter alia, on evidence from a neuropsychologist and a clinicial psychologist to the effect that a brain injury had caused memory problems and confabulation. (3) He was sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. [It appears that an appeal against both conviction and sentence will be lodged shortly.]

Legislation

  • Legislation. Mental Health (Approval Functions) Act 2012 — This Act states: ‘Any person who before the day on which this Act is passed has done anything in the purported exercise of an approval function is to be treated for all purposes as having had the power to do so.’ It defines ‘approval function’ as: ‘(a) the function of giving an approval for the purposes of section 12 of the Mental Health Act 1983 (practitioners approved to give medical recommendations), or (b) the function of approving a person as an approved clinician for the purposes of that Act.’ The Secretary of State’s approval functions were lawfully delegated to Strategic Health Authorities on their formation in 2002. This Act was passed with it was discovered that four SHAs had unlawfully delegated these functions to NHS mental health trusts. In force 31/10/12.
  • Legislation. External links in relation to Mental Health (Approval Functions) Act 2012: (1) Legislation.gov.uk (text of Act); (2) Parliament website: Mental Health (Approval Functions) Act 2012-13 (progress of the Bill and explanatory notes); (3) Parliament website, ‘Lords considers Mental Health (Approval Functions) Bill’ (1/11/12); (4) They Work For You: Commons debates on 30/10/12; (5) Dept of Health, ‘Action to clarify processes under the Mental Health Act’ (press release, 29/10/12); (6) Dept of Health, ‘Technical change to the process for approving doctors working under the Mental Health Act’ (letter to Local Authority Directors of Adult Social Services, 29/10/12). See Mental Health (Approval Functions) Act 2012

Articles

Newsletters

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 27, November 2012). The cases mentioned in this issue are: CYC v PC and NC [2012] MHLO 103 (COP) — A, B and C v X, Y and Z [2012] EWHC 2400 (COP) — An NHS Trust v (1) K and (2) Another Foundation Trust [2012] EWHC 2922 (COP) — An NHS Trust v Mr and Mrs H & Ors [2012] EWHC B18 (Fam) — Re AS (unreported, 7.12.11) — Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107, Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108, Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109 — SCC v JM & Ors (unreported, 31.8.12) — R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232 — Kedzior v Poland [2012] ECHR 1809, Application No. 45026/07) — Bureš v. the Czech Republic [2012] ECHR 1819 (Application No. 37679/08) — RP v UK 38245/08 [2012] ECHR 1796, [2012] MHLO 102. Further information is given under the following headings: Practice and procedure – liaison with the Home Office; Guide for social workers upon when to consider making an application to the Court of Protection. See 39 Essex Street COP Newsletter
  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 26, October 2012). The cases mentioned in this issue are: Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89 — Re J (A Child: Disclosure) [2012] EWCA Civ 1204. Further information is given under the following headings: Amendment of Schedule 3 to the MCA 2005; Serious Case Review into the murder of Martin Hyde; Draft Indian Rights of Persons with Disabilities Bill. See 39 Essex Street COP Newsletter
  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 25, September 2012). The cases mentioned in this issue are: Re MW; LB Hammersmith and Fulham v MW [2012] MHLO 82 (COP) — Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam) — Davis v West Sussex County Council [2012] EWHC 2152 (QB), [2012] MHLO 83 — Further information is given under the following headings: Funding; MCA literature review; Consultation on new safeguarding power. See 39 Essex Street COP Newsletter

Website

  • New website feature. Recent Twitter ‘retweets’ appear on website home page. These are often updates that have not yet been added to the website.
  • The CPD questionnaire for September 2012 is now online. Obtain 12 SRA-accredited CPD points online for £60. See CPD scheme
  • Discussion list. Please subscribe to Mental Health Law Online’s new discussion list. This is separate from the email updates list, which remains unchanged. The discussion list covers all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion

October 2012 mental health law update

Updates from Mental Health Law Online

Cases

  • Capacity case. CYC v PC and NC (2012) MHLO 103 (COP) — (1) PC lacked capacity to litigate and lacked capacity to decide whether to resume married life with NC (upon the expiry of a 13-year sentence for his sexual offences against previous wives). (2) The resumption of married life with NC was lawful as being in her best interests.
  • Capacity case. Re Clarke (2012) EWHC 2947 (COP), (2012) MHLO 109 — (1) Michael Clarke’s application that the court postpone a decision on costs (and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian) was refused. (2) The costs of the other family members and the deputy would be charged from Ann Clarke’s estate. (3) In the light of the one-sided publicity that Michael Clarke gives to the affairs of the family, the three judgments were placed into the public domain.
  • Capacity case. Re Clarke (2012) EWHC 2714 (COP), (2012) MHLO 108 — Michael Clarke objected to the deputy selling of his elderly mother’s (Ann Clarke’s) house to pay for future care as he considered it to be his. (1) No party asked for an oral hearing and the judge was satisfied that there was nothing to be gained by that. (2) Thre was a balance to be struck between the consequences of (a) retaining the property and leaving Ann Clarke on a low income, or (b) selling the property and maintaining a higher standard of living for Ann Clarke until the funds are exhausted, with her having no familiar home and, if she lived long enough, no money either. (3) Mrs Clarke’s Blackpool property shall not be sold or charged during her lifetime without an order of this Court. (4) The deputyship was therefore discharged. (5) Publication of the judgments was authorised as, given Michael Clarke’s comprehensive and long-standing breaches of his mother’s entitlement to privacy, the court’s reasons should be made known.
  • Capacity case. Re Clarke (2012) EWHC 2256 (COP), (2012) MHLO 107 — Following an accident, Ann Clarke suffered brain injuries and was awarded damages of £775,000. This money was used to pay for care and buy a home in Blackpool which was worth £200-250,000. The deputy proposed to sell the house to pay for care when the remainder of the money ran out, but Michael Clarke (son and carer) applied to court to prevent this. (1) Ann Clarke had the mental capacity to make a will (in particular, one leaving the house to the applicant and nothing to his siblings). (2) Whether or not Ann Clarke had mental capacity to manage her state pension and benefits it was lawful and in her best interests for these to be paid to her carer(s) to be applied for her benefit. (3) Ann Clarke did not have the mental capacity to decide whether or not her Blackpool property should be sold.
  • Lifer appeal case. R v Petrolini (2012) EWCA Crim 2055, (2012) MHLO 105 — The appellant had unsuccessfully argued diminished responsibility at trial, but subsequently it became apparent that he had indeed been in the prodromal stage of schizophrenia at the time of the offence. The Court of Appeal (1) granted an extension of time of 16 years and 16 months, (2) quashed the conviction for murder and substituted for it a verdict of manslaughter by reason of diminished responsibility, and (3) made a restricted hospital order in place of the 16-year-tariff life sentence. The hospital order was made for admission to Broadmoor, but the intention was that the patient would remain in Carstairs hospital in Scotland.
  • Criminal case. C v R (2012) EWCA Crim 2034, (2012) MHLO 104 — The appellant appealed against his convictions for sexual offences on the basis that there had been no sexual relationship with the complainant (his step-daughter) before she was 16 years of age, and that thereafter the sexual relationship had been consensual. There was a substantial body of evidence which showed apparent consent to sexual activity after the complainant was 16 years old. But once the jury were satisfied that sexual activity had occurred when the complainant was a child, and that it impacted on and reflected the appellant’s dominance and control over the complainant, it was open to them to conclude that the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting.
  • Legal Aid case. R (Hossacks) v Legal Services Commission (2012) EWCA Civ 1203, (2012) MHLO 106 — This appeal followed an unsuccessful judicial review of the LSC’s rejection of the appellant’s tender in relation to community care law in 2010. (1) The issues were set out by the court as follows: (a) Were any of the Appellant’s applications acceptable without clarification or amendment? (b) Leaving aside the evidence of the Commission’s communications with other applicants, should the Commission have sought clarification or suggested amendment of any of the applications, and if so should the Commission have accepted the resulting application(s)? (c) Do the Commission’s communications with other applicants show that by rejecting the Appellant’s applications, it acted in breach of its duty to treat all applicants equally? (2) The appeal had no real prospects of success and therefore permission was refused. (3) The LSC were awarded its costs: (a) the appellant’s impecuniosity and the fact that her activity both as a solicitor and as a proposed foster parent may be or indeed are in the public interest does not justify depriving the Commission of the normal order; (b) the Appellant was clearly warned of the costs risks of pursuing her application for permission to appeal and her application for disclosure, which was liable to be very expensive indeed; and (c) the court directed a rolled up hearing for her benefit, so that her claim could be determined as soon as possible, as she sought.

Newsletter

  • Mind Legal Newsletter. Mind, ‘Legal Newsletter’ (Issue 12, October 2012). This newsletter contains: (1) Articles: (a) 358 days by Mark Neary; (b) Legal capacity and the UN Convention On The Rights Of Persons With Disabilities by Lucy Series. (2) Case reports: (a) GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58; (b) X Primary Care Trust v XB [2012] EWHC 1390 (Fam), [2012] MHLO 54; (c) Munjaz v UK 2913/06 [2012] MHLO 79 (ECHR); (d) MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46; (e) X v Finland [2012] ECHR 34806/04; (f) Discrimination case report. (3) Mental health and human rights update. (4) Legal Aid update. (5) News: (a) Care And Support Bill 2012; (b) Eligibility for IMHA support in Wales; (c) SOAD opinions for consenting patients on supervised CTOs; (d) Safeguarding vulnerable groups: changes to vetting and barring; (e) Mental Health (Discrimination) Bill; (f) Department Of Health Suicide Prevention Strategy; (g) Replacement of Equality and Human Rights Commission helplines. See Mind (Charity)

Articles

  • Jimmy Savile and Broadmoor. (1) Soundcloud: clips from Jerry Sadowitz’s 1987 Gobshite album and 2011 Leeds gig (it will be interesting to see which allegations make the news: ‘… a gangster, a villain, a murderer, a rapist, a … paedophile, a necrophiliac, a gerontophiliac, into … bestiality, hung round with his pals in Broadmoor …’); (2) Esther Addley, ‘Jimmy Savile’s Broadmoor role came with a bedroom and keys’ (Guardian, 12/10/12); (3) Esther Addley, ‘Jimmy Savile police investigate Broadmoor rape claims’ (Guardian, 15/10/12); (4) Ether Addley et al, ‘Jimmy Savile: nurse’s Broadmoor claim adds to ‘cascade’ of abuse allegations’ (Guardian, 11/10/12); (5) Richard Alleyne, ‘Sir Jimmy Savile organised all-girl “therapeutic” parties at Broadmoor’ (Telegraph, 16/10/12); (6) Larisa Brown, ‘Jimmy Savile’s older brother sacked from hospital after being accused of raping psychiatric patient’ (Daily Mail, 14/10/12). See High secure hospital
  • MHA convictions. BBC, ‘Winterbourne View: Care workers jailed for abuse’ (26/10/12). Eleven staff were jailed for offences under s127 Mental Health Act 1983. The article sets out the sentences as follows: (1) Wayne Rogers, 32, of Kingswood, jailed for two years after admitting nine charges of ill-treatment; (2) Alison Dove, 25, of Kingswood, was jailed for 20 months for seven counts of abuse; (3) Graham Doyle, 26, of Patchway, was jailed for 20 months for seven counts of abuse; (4) Nurse Sookalingum Appoo, 59, of Downend jailed for six months for wilfully neglecting patients; (5) Nurse Kelvin Fore, 33, from Middlesbrough, also jailed for six months for wilfully neglecting patients; (6) Holly Laura Draper, 24, of Mangotsfield, pleaded guilty to two charges of abuse and was jailed for 12 months; (7) Daniel Brake, 27, of Downend, pleaded guilty to two charges of abuse and was given a six month jail sentence suspended for two years and ordered to carry out 200 hours of unpaid work; (8) Charlotte Justine Cotterell, 22, from Yate, pleaded guilty to one charge of abuse and was given a four-month jail term suspended for two years. Cotterell was ordered to do 150 hours of unpaid work and complete 12 months supervision; (9) Michael Ezenagu, 29, from Shepherds Bush, west London, admitted two counts of abuse and was given a six month jail sentence suspended for two years and ordered to carry out 200 hours of unpaid work; (10) Neil Ferguson, 28, of Emerson Green, admitted one count of abuse and was given a six month jail term was suspended for two years and ordered to carry out 200 hours of unpaid work; (11) Jason Gardiner, 43, of Hartcliffe, who admitted two charges of abuse, was given a four month jail term was suspended for two years and ordered to carry out 200 hours of unpaid work. See MHA 1983 s127
  • MHA convictions. Avon and Somerset Police, ‘Freedom of Information: Investigations at Winterbourne View Care Home (Investigations/Operations): Question’ (17/8/12). This page gives some details of the investigation and prosecution. See MHA 1983 s127

Statistics

  • Statistics. NHSIC, ‘Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment, Annual figures, England, 2011/12’ (24/10/12). Key facts: (1) On the 31st March, 22,267 people were subject to detention or CTO restrictions under The Act in NHS and independent sector hospitals. This represents a 6 per cent increase since the previous year and includes 17,503 people were detained in hospital and 4,764 people subject to a CTO. (2) There were a total of 48,631 detentions in NHS and independent hospitals during 2011/12. This number was 5 per cent (2,283) greater than during the 2010/11 reporting period. Total detentions in independent sector hospitals increased by 21 per cent; a large proportion of this increase was attributable to a 45 per cent increase in uses of Section 2. (3) There were 4,220 CTOs made during 2011/12, an increase of 386 (10 per cent) since 2010/11. The number of CTO recalls increased by 30 per cent and it is estimated that around 70 per cent ended in a revocation (an increase of approximately 10 percentage points since last year). The rise in CTO recalls and revocations may be linked to the 6 per cent reduction (473) in uses of Part II Section 3 of The Act. (4) There were 15,240 uses of place of safety orders (Sections 135 and 136) in hospitals during 2011/12; this figure was 6 per cent (841) greater than during 2010/11. New experimental figures estimate that 8,667 orders were made in hospitals, accounting for at least 37 per cent of all place of safety orders. (5) This report also includes some new experimental analysis on The Act using data from the MHMDS quarterly data submission files as the data source. See Statistics

Legal Aid

  • Legal Aid update. Non-means-tested non-tribunal matters — If the reasoning given in a Costs Appeal Committee decision on a proposed Point of Principle on 17/10/12 were to be followed, it appears that means-testing would not apply to any matters where ‘advice about the Tribunal and possible applications and timing of such’ is provided to the client.

Book

  • New book published. Richard Jones, Mental Health Act Manual (15th edn, Sweet & Maxwell 2012). See Books

Website/CPD

  • The CPD questionnaire for September 2012 is now online. Obtain 12 SRA-accredited CPD points online for £60. See CPD scheme
  • Discussion list. Please subscribe to Mental Health Law Online’s new discussion list. This is separate from the email updates list, which remains unchanged. The discussion list covers all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion

September 2012 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

  • UT case. CNWL NHS Foundation Trust v HJ-H (2012) UKUT 210 (AAC), (2012) MHLO 88 — The tribunal granted discharge from a CTO, deferred for 3 months, expressing the hope that in the meantime the RC would consider reducing the level of the patient’s medication. The Trust appealed. (1) The challenge to the decision to discharge was essentially an attempt to re-argue the tribunal’s assessment of the evidence, and was therefore unsuccessful. In deciding on whether there is an error of law, the UT must respect the FTT’s assessment of the evidence and fact-finding role (provided this was carried out rationally and explained): (a) the UT’s statutory jurisdiction is limited to points of law; (b) the expert composition of the FTT means its fact-finding is worthy of such respect. (2) The challenge to the deferral also failed, as there was no evidence that the tribunal had misdirected itself by granting the deferral with the intention that that the patient’s medication could be reduced in order to make her ready for discharge on a future date. (3) If the FTT’s reasons for the deferral had not been set out adequately (ironically, the judge said the reasoning was ‘not pellucid’) then its decision would still not have been set aside; if anyone had cause to complain about the deferral it was the patient rather than the Trust. (4) If a CTO patient’s condition deteriorates after a deferred discharge decision: (a) before the discharge date, he can be recalled under the CTO which still remains in force, and/or have his medication changed; (b) after the discharge date, he can be detained under s2 or s3, if there is information which was not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.
  • Capacity case. Re KK; CC v KK (2012) EWHC 2136 (COP), (2012) MHLO 89 — KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under MCA 2005 s21A. (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty.
  • Capacity case. Re SK (2012) EWHC 1990 (COP), (2012) MHLO 98 — “This is an application by the parties to certain Queen’s Bench personal injury proceedings who seek in effect to be joined in these Court of Protection proceedings. The subject of both sets of proceedings is SK, a mentally incapacitated adult aged 55. The issue which arises one way or another in both sets of proceedings is as to his care, accommodation and rehabilitation. The two applicants for joinder to these proceedings are (a) CK, aged 52, brother of SK and (b) GA Group PLC, a bus company whose bus struck SK in November 2008, causing him severe lasting brain and physical injuries. That company is the defendant in the Queen’s Bench proceedings.” [Summary required.]
  • Best interests (medical) case. NHS Trust v Baby X (2012) EWHC 2188 (Fam), (2012) MHLO 99 — “The question in this case is whether a baby known as X should be removed from a ventilator and made the subject only of palliative care. As the evidence is that he will almost certainly die within minutes, or at best hours, of such removal, it will be readily apparent that this case is both tragic and difficult. Given the nature of the question, I have thought it right to deliver this judgment in open court but nothing of course may be reported which might reasonably lead to the identification of X or his parents. An issue has arisen over the reporting restrictions order in this case; I intend to deal with this matter quite separately to this judgment.” [Detailed summary available on case page.]
  • Costs case. Re T (Children) (2012) UKSC 36, (2012) MHLO 100 — A local authority should not be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded; the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. (This case related to care proceedings.) [Detailed summary available on case page.]
  • LPA case. Re Gunn (2012) MHLO 97 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare. The donor’s signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney’s application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary – LPA case.]
  • LPA case. Re Burdock (2012) MHLO 96 (LPA) — The donor made an LPA for property and financial affairs and included the following guidance: “(1) If the house is sold I intend to pay off Z’s student loan completely. (2) I also intend to give my three daughters, or their issue, as follows: X £30,000, Y £30,000, Z £50,000. (3) The remainder to be used for my care and needs.” On the application of the Public Guardian the provision was severed as it gave the attorneys greater gift making powers than are permitted under section 12 of the MCA 2005. [OPG summary – LPA case.]
  • LPA case. Re Krajicek (2012) MHLO 95 (LPA) — The donor made two LPAs appointing two attorneys, A and B, and two replacement attorneys, C and D, and directed them to act jointly for some decisions and jointly and severally for other decisions. She provided that “If either of the original attorneys is unable to act then C should step in. D is to step in if the second attorney is unable to act.” On the application of the Public Guardian the provision was severed because it appeared to provide for the replacement attorney to act jointly with the survivor of the original attorneys, which was incompatible with the appointment of the attorneys to act jointly for some decisions. [OPG summary – LPA case.]
  • LPA case. Re Dowden (2012) MHLO 94 (LPA) — The donor made two LPAs in which she appointed a professional attorney and a lay attorney to act jointly and severally. She directed that the professional attorney should be paid fees “in keeping with the charging rate in force at the time the work is undertaken”. She then directed that the lay attorney should be paid a reasonable hourly fee and stated that any sum paid “must be with the approval of my Solicitor/Attorney” and “will be at such rate as he feels is appropriate”. On the application of the Public Guardian the provision relating to the lay attorney’s fees being approved and set by the professional attorney was severed as being incompatible with a joint and several appointment. The judge added that, to have achieved the desired objective, the donor should have appointed the attorneys to act jointly for some decisions (in this case on agreeing an appropriate level of remuneration for the lay attorney) and jointly and severally for other decisions. [OPG summary – LPA case.]
  • LPA case. Re Sheppard (2012) MHLO 93 (LPA) — The donor of a health and welfare LPA included the following guidance: “My attorneys are to maintain the health and welfare needs of X.” On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary – LPA case.]
  • LPA case. Re Kerron (2012) MHLO 92 (LPA)‎ — The donor made an LPA for health and welfare, and imposed the following restriction: “If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys.” On the application of the Public Guardian the words “jointly” and “myself and” were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary – LPA case.]
  • LPA case. Re Darlison (2012) MHLO 91 (LPA)‎ — The donor made an LPA for property and financial affairs. In the guidance section she stated: “Oversee X’s financial welfare. X is [my] daughter.” On the application of the Public Guardian the guidance was severed on the ground that the donor of an LPA cannot authorise the attorneys to act in relation to the financial affairs of another person. [OPG summary – LPA case.]
  • LPA case. Re Norris (2012) MHLO 90 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare and included the following guidance in both LPAs: “At all times to make decisions in the best interests of [my wife] during her lifetime.” On the application of the Public Guardian the provision was severed as being potentially inconsistent with the requirement in section 1(5) of the MCA that any act done or decision made must be done or made in the donor’s best interests. [OPG summary – LPA case.]
  • LGO decision. LGO decision: Kent County Council 10 012 742 (2012) MHLO 102 — “In her report concerning services for a young woman with learning disabilities, the Ombudsman says: ‘The Council’s failure to complete an assessment before the young woman was 18 caused her the injustice of losing services she was assessed as needing. The support plan that was eventually produced did not include services to meet these needs.’ In addition, the Council’s poor communication led to uncertainty, confusion and frustration for the young woman and her family, and she was denied a direct payment and the choice to arrange her own respite care.” [Detailed summary available on case page.]
  • LGO decision. LGO decision: Kent County Council 11 001 504 (2012) MHLO 101 — “In her report concerning the elderly woman’s residential care payment, the Ombudsman says: ‘The Council’s internal guidance said that staff could only use the Council’s own homes, or places it had ‘pre-purchased’, or community hospitals. The requirement to offer service users a genuine choice of placement when they are assessed as needing residential care is enshrined in law. The guidance did not adhere to these principles.'” [Detailed summary available on case page.]

Articles, blogs and newsletters

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 24, August 2012). The cases mentioned in this issue are: Munjaz v UK 2913/06 [2012] MHLO 79 (ECHR) — XCC v AA [2012] EWHC 2183 (COP), [2012] MHLO 80 — Re SK [2012] EWHC 1990 (COP), [2012] MHLO 98 — NHS Trust v Baby X [2012] EWHC 2188 (Fam), [2012] MHLO 99 — Re T (Children) [2012] UKSC 36, [2012] MHLO 100 — LGO decision: Kent County Council 11 001 504 [2012] MHLO 101 — LGO decision: Kent County Council 10 012 742 [2012] MHLO 102 — Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP). See 39 Essex Street COP Newsletter
  • Jerome Taylor, ‘Huge spike in use of controversial new ‘deprivation of liberty’ orders despite critics arguing they are not fit for purpose’ (Independent, 18/7/12). See DOLS#Other links
  • Mark Neary, ‘Pay Back Time?’ (Love, Belief and Balls Blog, 12/9/12). In this blog post, Mark Neary states that the effect of the London Borough of Hillingdon’s decision to cease paying Housing Benefit will be that from 16/10/12 he and his son Stephen will no longer be able to live together in the borough. See Re Steven Neary; LB Hillingdon v Steven Neary (2012) MHLO 71 (COP)
  • Nina Lakhani, ‘NHS watchdog claimed that whistleblower Kay Sheldon was “mentally ill”‘ (Independent, 15/8/12). See Care Quality Commission
  • Andy McNicoll, ‘CQC chief “sorry” for “very personal” comments on whistleblower’s mental health’ (Community Care, 12/9/12). See Care Quality Commission

Legal Aid

  • Legal Aid forms. The following Legal Aid forms relevant to mental health law are being updated from 1/10/12: CLSAPP1 (application for Legal Aid certificate), CLSMEANS1 (financial assessment form), MEANS1P (supplementary means assessment form for completion by prisoners), CLSMEANS2 (financial assessment form). All forms signed and dated on or after 1/10/12 must be new versions. Old forms signed before that date will be accepted until 30/10/12. New means assessment forms may be used immediately. See LSC, ‘Masterpack Forms Change Guide October 2012’ (28/9/12). See Legal Aid forms
  • Legal Services Commission, ‘Guidance on the use of agents’ (10/10/11). This document sets out the LSC’s interpretation of the Standard Civil Contract 2010 that a firm with a high secure hospital contract may do the following, either separately or in combination: (1) use agents to allow firms without HSH contracts to represent HSH patients, or (2) use 30% of their own HSH matter starts at HSHs for which they do not have a contract. See Legal Aid

Academic

  • Mental Health Foundation, ‘Mental Capacity and the Mental Capacity Act 2005 – A literature review’ (August 2012). Their summary: ‘This literature review was carried out to collate academic literature relating to mental capacity issues and to the implementation of the Mental Capacity Act 2005. Mental capacity is the ability to make one’s own decisions. The Mental Capacity Act (MCA), which came into force in 2007 and covers England and Wales, provides a statutory framework for supporting people to make decisions for themselves wherever possible as well as processes and safeguards for decision-making involving people who lack capacity to make their own decisions because of illness, injury or disability. This review has collated a broad range of literature investigating various issues relating to mental capacity and the implementation of the MCA with the aim of identifying consistent themes, problem areas and any gaps in the existing literature. The largest proportion of literature relating to the MCA in England and Wales relates more specifically to issues with older people and people who have dementia.’ See Mental Capacity Act 2005 Overview#Other external links

Statistics

  • Ministry of Justice, ‘Annual Tribunals Statistics, 2011-12: 1 April 2011 to 31 March 2012’ (28/6/12). The following paragraphs, together with their associated tables, are relevant to mental health: (1) 23. The adjournment and postponement rates for Mental Health have remained at the same levels as 2010-11 (but had previously fallen probably as a result of improved case management processes). In 2011-12, the adjournment rate was 7%, whilst that for postponements was 13%. (2) 25. Of the 222,900 total jurisdictional sitting days, 72% were for fee-paid judiciary and 28% were for salaried judiciary. The ratio of fee-paid to salaried judiciary varies by jurisdiction. In 2011-12, 97% of judicial sitting days for Mental Health were for fee-paid judiciary, whilst this was 15% for the Asylum Support tribunal. (3) 40. For the Mental Health jurisdiction, the time from receipt to disposal has been examined for the three main case types. Unfortunately, the reporting system is not able to produce analysis by single week of age, thus there is some inaccuracy regarding the median and lower and upper quartiles. 41. Given the statutory requirement for Section 2 cases to be listed within 7 days of receipt, it is not surprising that this type of case has the shortest clearance times. The waiting times have reduced when compared with previous periods due to improvements made in administrative processes. See Statistics#Annual Tribunal Statistics
  • NHSIC, ‘Guardianship under the Mental Health Act 1983 – England 2012’ (18/9/12). Key facts: (1) The number of new Guardianship cases fell by 5 per cent between 2010/11 and 2011/12 from 347 to 331 cases. This is a much smaller reduction than between the previous two reporting years, which saw a notable fall of 21 per cent, possibly attributable to the introduction of new Mental Capacity Act Deprivation of Liberty Safeguards and Community Treatment Order legislation. The number of new cases in 2011/12 was 31 per cent lower than in 2002/03 when 477 new cases were reported. (2) This is the seventh consecutive decrease in the numbers of continuing cases. The number of cases continuing at the end of the year decreased by 26 per cent (from 923 in 2002/03 to 682 in 2011/12). The number of cases closed during the reporting year was 357; a decrease of 33 per cent since 2002/03 from 534. See Statistics
  • NHSIC, ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards assessments – England, 2011-12, Third report on annual data’ (17/7/12). Key facts: (1) There has been a year-on-year increase in the number of applications completed for Deprivation of Liberty Safeguards (DoLS) since the safeguards were first introduced in 2009/10. There were 11,393 applications in 2011/12, which represents a 27per cent increase on the 8,982 in 2010/11 and a 59 per cent increase on the 7,157 applications in 2009/10 (the first year of the new safeguards). (2) The number of people subject to a standard authorisation at the end of the quarter had increased each quarter since the safeguards were introduced, from 536 at the end of June 2009 to 1,976 at the end of December 2011. However, between the end of December 2011 and March 2012 the numbers decreased by 16 per cent, the first fall in numbers seen. (3) Dementia accounted for 53 per cent of all applications and this is reflected in the age profile of people who are the subject of DoLS applications. (4) Fifty-eight per cent of applications relate to people over 74 and the population-based rate of applications is much higher for over 74s and over 84s. For the over 84s the application rate is 25 in 10,000. This compares to 12 in 10,000 for 75-84 year olds, 3 in 10,000 for 65-74 year olds and just 1 in 10,000 for 18-64 year olds (working-age adults). (5) There are wide variations in population-based application rates by region. The East Midlands has the highest rate of applications at 51 per 100,000, whilst London had the lowest rate at just 17 per 100,000. These compare to a rate for England as a whole of 28 per 100,000.
  • NHSIC, ‘Bi-annual analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) – October 2011 – March 2012’ (12/6/12). Key facts: The figures show that between 01 October 2011 and 31 March 2012: (1) 5,933 authorisation requests were completed. 4,255 (71.7 per cent) were received by LAs and 1,678 (28.3 per cent) were received by PCTs. (2) 3,277 (55.2 per cent) of the completed requests resulted in an authorisation. – 2,400 (56.4 per cent) of the assessments received by a LA resulted in an authorisation. – 877 (52.2 per cent) of the assessments received by a PCT resulted in an authorisation. (3) Of the total assessments completed, a slightly higher proportion was for females 3,190 (53.8 per cent) than males 2,743 (46.2 per cent). (4) At the end of the reporting period, 31 March 2012, 1,667 people were subject to a current standard authorisation. 1,421 (85.2 per cent) followed a granted LA authorisation and 246 (14.8 per cent) followed a granted PCT authorisation. See Statistics

Scotland

  • Scottish Law Commission, ‘Discussion Paper on Adults with Incapacity’ (discussion paper 156, 31/7/12). Consultation from 31/7/12 to 31/10/12. Extract from news release: ‘The main questions raised by the Discussion Paper are: (1) Is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area? and (2) If not, how should it be changed? In particular, there is a need to decide if there should be a new procedure for authorising deprivation of liberty in residential care for adults with incapacity. If there should, what should that process be? And, very importantly, what sorts of care and what type of facilities should be regarded as involving deprivation of liberty for those who live there?’ See Consultations#Scotland

Wales

Southern Ireland

  • Harry Kennedy, ‘”Libertarian” groupthink not helping mentally ill’ (Irish Times, 12/9/12). See Southern Ireland

Website/CPD

  • CPD scheme. The July 2012 and August 2012 CPD questionnaires are now available. Obtain 12 accredited CPD points online for £60. See CPD scheme
  • Discussion list. Please subscribe to Mental Health Law Online’s new discussion list. This is separate from the email updates list, which remains unchanged. The discussion list covers all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion
  • Kindle. You can now receive monthly updates delivered automatically to your Kindle e-reader. See Kindle updates

August 2012 mental health law update

Updates from Mental Health Law Online

Alternative formats: PDF | Kindle

Cases

Mental Health Act

  • Ministry of Justice case. R (RW) v SSJ (2012) EWHC 2082 (Admin), (2012) MHLO 87 — The responsible clinician and tribunal were of the view in March 2011 that the patient required continued treatment in detention in hospital, and the tribunal recommended transfer from Broadmoor to a medium secure unit; in June the RC sought permission for trial leave to a MSU, with return to prison being the planned consequence if it were unsuccessful; trial leave in September was unsuccessful and, that month, the Secretary of State remitted the patient to prison on the RC’s advice. (1) There had been new information since the tribunal which put a different complexion on the case, namely the unsuccessful trial leave, so the Secretary of State was entitled to take at face value the RC’s new opinion that the patient did not require treatment in hospital for mental disorder. (2) It was not necessary for the Secretary of State to consider that lack of treatment in prison might breach Article 3 or require almost immediate re-transfer to hospital; the correct approach was to consider the remission request when made, and consider transfer to hospital later if necessary. (3) Permission to amend the grounds to challenge the alleged ongoing failure to transfer under s47 was refused, but the judge directed that if a fresh application were made within six weeks that the permission application be referred to him.
  • First-tier Tribunal case. Re Ian Brady (2012) MHLO 76 (FTT) — The tribunal hearing was adjourned from 9/7/12, to a date to be fixed, because of the patient’s (physical) medical condition.
  • First-tier Tribunal case. Re Ian Brady (2012) MHLO 75 (FTT) — The media’s request for one or more representatives to be present in the tribunal room at Ashworth was refused.

Court of Protection

  • COP case. Re MW; LB Hammersmith and Fulham v MW (2012) MHLO 82 (COP) — (1) MW lacked capacity to make decisions in relation to contact with his childhood friend JC. (2) It was not in MW’s best interests for JC to visit MW’s home, so an order was granted restraining JC from doing so; this was endorsed with a penal notice because of previous breaches of an injunction. (3) The local authority and Official Solicitor’s requested that MW, who lacked litigation capacity, should not attend the hearing because this would be stressful and not conducive to the maintenance of his good mental health: the court acceded to this application. (4) Sensitive evidence was withheld from JC, at the request of the local authority and Official Solicitor, but the court came to its final decision based on the open evidence.
  • COP case. XCC v AA (2012) EWHC 2183 (COP), (2012) MHLO 80 — An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: ‘in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.’ [Detailed summary available on case page.]
  • COP case. Re BS; SC v BS (2012) MHLO 78 (COP) — The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed.

Power of attorney

  • LPA case. Re Harcourt (2012) MHLO 74 (LPA) — “This application relates to an investigation by the Office of the Public Guardian into the management of Mrs Harcourt’s property and financial affairs by her daughter under a Lasting Power of Attorney. It considers the powers of the OPG and the Court of Protection when an attorney impedes an investigation and the circumstances in which the court may revoke an LPA.”
  • EPA case. Re Newman (2012) MHLO 73 (EPA) — The donor made an EPA in which, amongst other defects, he failed to select either of the following alternatives: “with general authority to act on my behalf” or “with authority to do the following on my behalf”. The court confirmed that this failure did not invalidate the EPA, because it was an immaterial difference from the prescribed form within paragraph 2(4) of Schedule 4 of the MCA. [OPG summary – EPA case.]
  • EPA case. Re Stapleton (2012) MHLO 72 (EPA) — (1) The court directed the Public Guardian to cancel the registration of the EPA, because the attorney’s financial abuse made him unsuitable. (2) A panel deputy was appointed instead. (3) D was ordered to pay his own costs (a departure from the general rule in property and affairs cases that P pays) because of D’s conduct before and during proceedings.

Local Government Ombudsman

  • LGO decision. LGO decision: Dorothy 10 013 715 (2010) MHLO 198 — “A case where a DoL application was not made promptly and the care home’s/council’s approach to restrictions placed on the complainant and her mother was flawed.” [Summary required.]

Other cases

  • Community care case. Davis v West Sussex County Council (2012) EWHC 2152 (QB), (2012) MHLO 83 — At a safeguarding vulnerable adults case conference the local authority determined that certain allegations of abuse at a care home were substantiated or inconclusive, made recommendations, and decided to refer three members of staff to their professional bodies. The claimants sought judicial review of the decisions (and of a subsequent Default Notice, although this was not pursued). (1) The local authority’s procedure was unfair, in breach of the rules of natural justice, its own guidance (based on government guidance), and legitimate expectations – a precis cannot do justice to how disgraceful the procedure was. (2) Two defences, arguing that no public law rights arose, failed: (a) there was no respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner; (b) there was a sufficient public flavour to make the process of investigation and decision a public function distinct from the contractual relationship. (3) The defendant’s arguments that no remedy should follow failed: in particular, because the decisions were unfair, inconsistent with or unsupported by the findings of external bodies, and had a serious continuing impact on the claimants and their residents and staff, and because the defendant showed an inability to recognise, even in hindsight, some basic requirements of fairness.
  • ECHR case. Munjaz v UK 2913/06 (2012) MHLO 79 (ECHR) — The applicant, C. Munjaz, is a British national who was born in 1947. Suffering from mental health problems, he has spent a number of periods in prison and hospital. The case concerned Mr Munjaz’s complaint about his placement in seclusion in Ashworth Special hospital (a high security hospital) where he was transferred in March 1994 as a result of his increasingly psychotic, aggressive and violent behaviour. Relying in particular on Article 8 (right to respect for private and family life), he alleged that Ashworth’s in-hospital policy on seclusion, which had not complied with the Code of Practice under the Mental Health Act, had adversely affected his right to personal development and to establish and develop relationships with the outside world. Further relying on Article 5 (right to liberty and security), he also claimed that his seclusion had amounted to a further deprivation of his liberty lacking any basis in law and without possibility of bringing an external appeal. No violation of Article 5. No violation of Article 8. [Summary from court press release.]
  • Extradition case. Turner v Government of the USA (2012) EWHC 2426 (Admin), (2012) MHLO 84 — The appellant was unable to demonstrate that the evidence that was before the High Court was ‘decisive’ such that if it had been before the District Judge he would have concluded that she had demonstrated that her mental condition was such that it would be oppressive to extradite her to the USA.
  • Mercy killing case. R (Nicklinson) v Ministry of Justice (2012) EWHC 2381 (Admin), (2012) MHLO 77 — (1) Voluntary euthanasia is not a possible defence to murder. (2) The DPP is not under a legal duty to provide further clarification of his policy. (3) Section 2 Suicide Act 1961, in obstructing the claimants from exercising a right in their circumstances to receive assistance to commit suicide, is not incompatible with Article 8. (4) The GMC and the SRA are not under a legal duty to clarify their positions. (5) It was unnecessary in this case to decide whether or not the mandatory life sentence for murder, in a case of genuine voluntary euthanasia, is incompatible with the Convention.

Corrections

  • Revised transcript now on Bailii (the original having been withdrawn from publication at the Official Solicitor’s request). XCC v AA (2012) EWHC 2183 (COP), (2012) MHLO 80 — An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: ‘in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.’ [Detailed summary available on case page.]
  • Corrected transcript published by OPG. Re Phillips (2012) MHLO 60 (LPA) — The donor appointed three attorneys, A, B and C. She did not name any persons to be notified, and so there were two certificate providers. The Public Guardian refused to register on the ground that one certificate provider, X, was a member of the family of A. He was the unmarried partner of A but did not live at the same address. In his Part B certificate X said: “I am the partner of A and have known the donor for 3 years.” The attorney applied to court for a direction to register and the Public Guardian was joined as respondent. The court decided that X was to be treated as a member of the family of A, and so the instrument could not be registered. The judge said: “In my judgment, anyone who describes himself in this context as the attorney’s partner is courting trouble and automatically disqualifies himself from being a person who can give an LPA certificate. This applies regardless of whether he describes himself as the attorney’s partner intentionally or inadvertently, whether they live at the same address or at separate locations, whether the relationship is intimate or platonic, and whether the statement is true or false.” Although it was unnecessary to the decision, the judge added that, even if X were not to be treated as a family member, he was not independent of the attorney, as required by the prescribed LPA form. [OPG summary – LPA case.]

Legislation

  • Draft legislation. Care and Support Bill — The draft Care and Support Bill would create single law for adult care and support, replacing more than a dozen different pieces of legislation.
  • Department of Health, ‘Draft Care and Support Bill published’ (11/7/12); Robert Long and Tom Powell, ‘Draft Care and Support Bill 2012-13 – Commons Library Standard Note’ (6/8/12); Law Society, ‘Overhaul of social care is long overdue, says Law Society’ (press release, 11/7/12). See Care and Support Bill
  • Scottish SI. Mental Health (Safety and Security) (Scotland) Amendment Regulations 2012 — “These Regulations amend the Mental Health (Safety and Security) (Scotland) Regulations 2005 (‘the principal Regulations’) to add the Medium Secure Service, Rohallion Clinic, Murray Royal Hospital, Muirhall Road, Perth to the list of institutions specified in regulation 2(2)(a) of those Regulations (regulation 2). The principal Regulations provide for ‘specified persons’, who may be made subject to measures to protect the safety and security of themselves and others. A person is only a ‘specified person’ if certain conditions exist, one of which is that the person is detained in a state hospital or other place specified in regulation 2(2)(a) of the principal Regulations. The Mental Health (Safety and Security) (Scotland) Amendment Regulations 2007 are revoked.” [Explanatory Note.] In force 1/8/12.

Newsletter and articles

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 23, July 2012). The cases mentioned in this issue are: X Primary Care Trust v XB [2012] EWHC 1390 (Fam), [2012] MHLO 54 — Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP), [2012] MHLO 55 — Re BS; SC v BS [2012] MHLO 78 (COP) — R (KM) v Cambridgeshire CC [2012] UKSC 23, [2012] MHLO 57 — HSE Ireland v SF (A Minor) [2012] EWHC 1640 (Fam), [2012] MHLO 69 — LGO decision: Dorothy 10 013 715 [2010] MHLO 198 — LGO decision: Jones 10 010 739 [2010] MHLO 199. See 39 Essex Street COP Newsletter
  • West Mercia Police, ‘Bromsgrove Care Staff Sentenced For Neglect’ (28/8/12). The victim, who had not been helped into bed or attended to in the evening, was found in the morning lying on the floor in the corner of his room in Breme House, partly dressed and in a distressed state, suffering from borderline hypothermia and complaining of hip pain. He subsequently needed to spend five weeks in hospital. For the offence of ill treating or wilfully neglecting a person without capacity, under s44 MCA 2005: Glen Walsh, aged 23 (date of birth 18/4/89), of Granary Road, Stoke Heath, Bromsgrove, and Gail Broadway, aged 38 (dob 19/3/74), of Lyttleton Avenue, Bromsgrove were both given four month jail sentences suspended for 12 months, 12 month community orders with supervision and told to carry out 125 hours of unpaid community work; Maxine Turbill, aged 46 (dob 15/9/65), of Grayshott Close, Sidemoor, Bromsgrove, was given a two month jail sentence suspended for 12 months and a 12 month community order with supervision; all three were each told to pay £500 costs and an order was made barring them from working with children under the age of 16 and vulnerable adults. They had denied the offence but were found guilty by a jury following a seven-day trial in July this year. See MCA 2005 s44

Legal Aid

  • Legal Aid information added. Non-means-tested non-tribunal matters — The information on this page may be useful to anyone considering appealing an LSC decision to nil assess a non-tribunal matter for lack of means testing, or for anyone considering the proposed Point of Principle in relation to this issue.

Practice Direction

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 10/9/12 and Tuesday 11/9/12. 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. See Events

Website

  • Please subscribe to Mental Health Law Online’s new discussion list. This is separate from the email updates list, which remains unchanged. The discussion list covers all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion
  • You can now receive monthly updates delivered automatically to your Kindle e-reader. See Kindle updates

July 2012 mental health law update

Updates from Mental Health Law Online.

Cases

  • Upper Tribunal case. EC v Birmingham and Solihull Mental Health NHS Trust (2012) UKUT 178 (AAC), (2012) MHLO 70 — (1) Appeals against tribunals’ refusals to hear arguments in relation to extra-statutory recommendations were dismissed as (a) there is no legal right to advance these arguments (this is a sufficient reason for not making an extra-statutory recommendation which can be implied if not stated), (b) refusal to consider a extra-statutory recommendation is neutral rather than disadvantageous to the patient, and (c) a flawed extra-statutory should have no effect because of its legal status. (2) The judge made further comments about (a) potential guidance to hospital managers about UT procedure, (b) secondary challenges by the appellants, and (c) tribunal procedure generally in relation to extra-statutory recommendations.

Article

Book

Website

  • The CPD questionnaire for June 2012 is now online. Obtain 12 SRA-accredited CPD points for £60. See CPD scheme
  • Please subscribe to Mental Health Law Online’s new discussion list. This is separate from the email updates list, which remains unchanged. The discussion list covers all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion
  • You can now receive monthly updates delivered automatically to your Kindle e-reader. See Kindle updates