June 2012 mental health law update


  • Nearest relative case. GP v Derby City Council (2012) EWHC 1451 (Admin), (2012) MHLO 58 — Consultation with nearest relative prior to s3 detention would not have involved unreasonable delay so (in the absence of any other justification) the failure to consult resulted in unlawful detention. [Detailed summary to follow.]
  • Anorexia treatment case. Re E (Medical treatment: Anorexia) (2012) EWHC 1639 (COP), (2012) MHLO 55 — “E is a 32-year-old woman who suffers from extremely severe anorexia nervosa, and other chronic health conditions. On 18 May 2012, an urgent application was made to the Court of Protection by her local authority, which was concerned that her position should be investigated and protected. E’s death was imminent. She was refusing to eat, and was taking only a small amount of water. She was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort. … I found that E lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes with all that this entails.” [Summary required.]
  • Advance decision case. X Primary Care Trust v XB (2012) EWHC 1390 (Fam), (2012) MHLO 54 — “This matter concerns an application by the XPCT for declarations under s.26(4) of the Mental Capacity Act 2005 as to the validity of an advance decision made by XB on 2nd November 2011 that he wished, amongst other things, to have his ventilation removed in certain defined circumstances.” [Summary required.]
  • DOLS appeal case. EM v SC (2012) EWHC 1518 (COP), (2012) MHLO 56 — “This is an application made by the Official Solicitor on behalf of the Applicant EM, for the discharge of the latest of a series of standard authorisations made on 16 January 2012 pursuant to the Mental Capacity Act 2005. The effect of the standard authorisation is to deprive EM of his liberty and oblige him to live at a nursing home, RH, rather than at the home which he had shared with his wife and son for many years.” [Summary required.]
  • DOLS appeal. Re HA (2012) EWHC 1068 (COP), (2012) MHLO 67 — “This case comes before me for directions today. The person whose best interests have to be considered by the court is a HA. The Official Solicitor now acts for her as her litigation friend and in that capacity has continued an application under s.21A of the Mental Capacity Act 2005 (the Act) that was instigated before his appointment.” [Summary required.] Transcript provided by Alex Ruck Keene of 39 Essex Street Chambers
  • Family Division case. HSE Ireland v SF (A Minor) (2012) EWHC 1640 (Fam), (2012) MHLO 69 — “This application is made by the Health Service Executive of Ireland (‘the HSE’), the statutory authority with responsibility for children taken into public care in the Irish Republic, for an urgent order under Article 20 of the Council Regulation (EC) 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No.1347/2000 (commonly known as ‘Brussels II Revised’) in respect of a 17-year-old girl whom I shall refer to as SF. At the conclusion of the hearing on 4th May 2012, I made the order sought by the HSE. This judgment sets out the reasons for my decision.” [Summary required.]
  • PI case. Sedge v Prime (2012) MHLO 66 (QB) — “This is an application for an interim payment of £300,000 to enable the Claimant to move from the ‘Little Oyster’ residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely.” [Summary required.]
  • RAS case. R (KM) v Cambridgeshire CC (2012) UKSC 23, (2012) MHLO 57 — “In the proceedings, brought by way of judicial review, the appellant challenges a determination made by Cambridgeshire County Council and communicated, at the latest, by a letter dated 3 June 2010 to pay him (in round numbers and as an annual sum) £85k in discharge of its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He contends that the determination was unlawful either because it was not adequately supported by reasons or because it was irrational. He asks that the determination be quashed and either that Cambridgeshire should conduct a re-determination of it or that the court should itself substitute for it a determination that the annual sum payable to him be £120k.” [Summary required.]
  • LPA case. Re O’Brien (2012) MHLO 65 (LPA) — The donor of a property and financial affairs LPA included the following guidance: “My handicapped son should be adequately provided for.” On the application of the Public Guardian this provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary – LPA case.]
  • LPA case. Re Strange (2012) MHLO 64 (LPA) — The donor of a property and financial affairs LPA included the following guidance: “I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so.” The Public Guardian asked the court to consider whether the guidance needed to be severed as potentially contravening section 12 of the MCA 2005. In the application the Public Guardian referred to the case of Bloom (above), noting that a wife had no common law duty to maintain her husband and that the husband’s common law duty would be abolished when section 198 of the Equality Act 2010 came into force, but noting also that various other legislation (see below) imposed a duty on a wife to maintain her husband. The court did not sever the guidance and explained the position in the following terms: “In the context of clauses in an LPA in which the donor makes provision for the maintenance of his or her spouse, there should be no distinction between male and female spouses and, in principle, such clauses should be treated as valid on the basis of the specific maintenance obligations imposed by statutes such as National Assistance Act 1948, section 24(1)(b) and Social Security Administration Act 1992, section 105(3), and the absence of any distinction between husband and wife in other legislation, such as the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975.” [OPG summary – LPA case.]
  • LPA case. Re Smith (2012) MHLO 63 (LPA) — The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney’s signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney’s name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary – LPA case.]
  • LPA case. Re McGreen (2012) MHLO 62 (LPA) — The donor appointed A as attorney and B as replacement attorney and then provided as follows on the A2 continuation sheet: “If my Replacement Attorney is no longer a partner in the firm of XYZ Solicitors, I appoint in his place a suitably qualified partner of that firm or firm which has succeeded that firm and carries on its practice, to be my Replacement Attorney.” (Only A and B had signed Part Cs.) The Public Guardian applied for severance of the provision on the ground that it was not possible to appoint a replacement attorney to take over from a replacement attorney (see Re Baldwin, below, under the heading “Replacement for replacement attorney”.) The court severed the provision for that reason and also for the following reason: “Section 19(2) of the Mental Capacity Act 2005 states that, in respect of the appointment of deputies, ‘the court may appoint an individual by appointing the holder for the time being of a specified office or position’. However, there is no comparable provision in the Act that permits the donor of an LPA to appoint an office holder to be his or her attorney. Section 10(1) states that the donee of an LPA must be an individual who has reached 18 or, if the power relates only to the donor’s property and affairs, either such an individual or a trust corporation.” [OPG summary – LPA case.]
  • LPA case. Re Llewelyn (2012) MHLO 61 (LPA) — The donor appointed attorneys including her husband to act jointly in some matters and jointly and severally in other matters. She stated that decisions were to be made jointly and severally apart from a list of specified decisions which were to be made jointly, but added a proviso to the effect that, provided her husband was able to act as one of her attorneys, all decisions could be made jointly and severally. On the application of the Public Guardian the proviso was severed as being incompatible with an appointment to act jointly in some matters and jointly and severally in others. [OPG summary – LPA case.]
  • LPA case. 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.]

Legal Aid

  • Following a consultation process (held as a result of judicial review proceedings) the LSC has decided to discontinue the Specialist Support Service. Contracts will end on 6/7/12. See Consultations#Legal Services Commission

Newsletter and articles

  • 39 Essex Street, ‘Court of Protection Newsletter’ (issue 22, June 2012). The cases mentioned in this issue are: Re HA [2012] EWHC 1068 (COP), [2012] MHLO 67 — Re G [2012] EWCA Civ 431, [2012] MHLO 52 — A Local Authority v DS [2012] EWHC 1442 (Fam), [2012] MHLO 68 — Sedge v Prime [2012] MHLO 66 (QB). See 39 Essex Street COP Newsletter
  • O’Donnells Solicitors, ‘Latest news: Cheshire West’ (May 2012, no 1) and O’Donnells Solicitors, ‘Cheshire West Latest’ (May 2012, no 3). The Supreme Court is expected to decide on leave to appeal in the Cheshire West and P & Q cases by the end of June 2012. See Cheshire West and Chester Council v P (2011) EWCA Civ 1257


  • The 2012 Annual ‘Taking Stock’ Conference (The Mental Health and Mental Capacity Acts in Practice) will take place at the Royal Northern College of Music in Manchester on 12/10/12. Speakers: Peter Jackson, Yogi Amin, Sue Bailey, Angela Downing, Phil Fennell, Richard Jones, Shôn Lewis, Penny Letts, Katharine Scott. Price: £155; £135 for confirmed bookings made before 15/6/12; concessions for voluntary sector organisations. CPD: 4.5 accredited hours. See flyer for further information about the programme and speakers, and for a booking form. See Events
  • The MHLA course for membership of the Law Society’s mental health accreditation scheme took place in Leeds on Monday 18/6/12 and Tuesday19/6/12. The LSC is actively considering making membership of the scheme a requirement for tribunal advocates in the next Legal Aid contract. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See Events


  • The text of various Welsh Assembly emails has been added. 17/5/12: ‘Making of the Mental Health (Primary Care Referrals and Eligibility to Conduct Primary Care Assessments) (Wales) Regulations 2012’ — 9/5/12: ‘The Mental Health (Secondary Mental Health Services) (Wales) Order 2012’ — 9/5/12: ‘Making of the Mental Health (Regional Provisions) (Wales) Regulations 2012’ — 23/2/12: ‘Consultation on draft Regulations under the Mental Health (Wales) Measure’. See Welsh Assembly emails


  • The May 2012 CPD questionnaire is now online. Obtain 12 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