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April 2011 update

Case summaries

  • PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC)The Tribunal's policy is that a reference made under s68(7) (triggered by the revocation of a CTO) will be treated as having lapsed if the patient subsequently is placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (as amended)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy is unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy is inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the revocation reference lapses. (2) The power to treat a letter as a Tribunal application is only appropriately exercised for the applicant's advantage, not potential detriment; it is not permissible to override an unequivocal indication by the solicitor to the opposite effect, especially if to do so would deprive the patient of the chance to make an application later should discharge not be obtained on the reference. (3) If the hospital managers had been represented, the judge would have wanted to know why it took 12 days to complete the simple referral form. (4) The Tribunal Procedure Committee will be consulting on rule changes to make it easier to handle CTO revocation cases in which the patient does not 'co-operate': in the meantime, the judge suggested that proceedings could be stayed, or hearings conducted in patients' absence.§
  • Buckinghamshire CC v RB of Kingston upon Thames [2011] EWCA Civ 457Where a person is accommodated under s21 NAA 1948 by authority A in area B, the person is deemed still to be ordinarily resident in area A only until he moves out of s21 accommodation (in this case, into supported housing). When assessing under s47 NHSCCA 1990, authority A owes no duty of fairness to area B and there is no duty to consult: the duty is to the person concerned; the role of authority B, as payers for the service, is essentially incidental.§
  • CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC)(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests.
  • RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC)(1) The Upper Tribunal has power to award costs only where the First-tier Tribunal could do so; (2) in a mental health case, the FTT only has power to make a wasted costs order (and not a costs order 'if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings'); (3) a wasted costs order may only be made against a legal or other representative; (4) it follows that there is no statutory authority to make an order for costs against the FTT, and the patient's solicitors' application to the UT was refused. §
  • TR v Ludlow Street Healthcare Ltd [2011] UKUT 152 (AAC)(1) The appeal against an interlocutory decision not to order disclosure of medical records was unsuccessful. (2) The judgment also contains guidance on appealing case management decisions, in particular from the MHRT for Wales.§
  • R (WG) v Leicester City Council [2011] EWHC 189 (Admin)This JR claim had been issued to challenge a failure to carry out an assessment under s47 NHSCCA 1990, but an assessment had subsequently been carried out and not identified any community care needs: (1) permission was therefore refused; (2) it was ordered that unless the claimant was prepared to identify herself she would not be able to bring any further legal actions.§
  • Lumba (WL) v SSHD [2011] UKSC 12(1) It was unlawful in public law for the SSHD to operate an unpublished policy on the detention of foreign national prisoners which differed from the published policy and which amounted to a near-blanket ban on release. (2) The detention of the appellants was unlawful, even though they would have been detained even on the published policy. (3) As they suffered no loss, the appellants were entitled to nominal damages of one pound (and not 'vindicatory' or exemplary damages).§
  • Clift v Slough BC [2010] EWCA Civ 1484An email from a local authority stating that Clift was on its violent persons register was published too widely: (1) the disproportionate publication was an unjustified breach of Article 8; (2) the Article 8 breach prevented the local authority from using the qualified privilege defence to defamation.§
  • Re CM; LBB v JM (2010) COP 5/2/10 — "The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified."§
  • R (G) v South London and Maudsley NHS Foundation Trust [2011] EWHC 747 (Admin)The claimant sought judicial review of the NHS Trust and the Met police in relation to a proposed visit to his home. (1) A civil restraint order had been made after the JR application was made: so he did not need leave of the High Court to have the claim considered on the papers; however, he did need leave for this renewed application for permission. (2) On the merits, permission would have been refused because (a) it is not the function of the court to review operational decisions such as this, and (b) the claimant had not been detained so the points regarding the MHA were academic. (3) In any event, the civil restraint order was thoroughly appropriate and would not be discharged.§
  • R v PA [2010] EWCA Crim 3121The appellant appealed against a sentence of 18 months' imprisonment as being excessive; then, following her transfer to hospital she instead sought a community order with a mental health requirement. Her mental condition, and lack of insight, led to the conclusion that a hospital order was required to ensure that she continued to receive treatment.§
  • R v O [2011] EWCA Crim 376Life sentence quashed and s37/41 restricted hospital order substituted. The life sentence had been passed in the context of confusion about bed availability, and the lack of a second s37 recommendation. There was utility in making the Appellant a patient rather than a prisoner because: (1) it was manifestly the right order to make on all the evidence; (2) there were advantages in terms of treatment; (3) it had advantages to the Appellant in terms of benefits; (4) it would best ensure the protection of the public.§
  • V v R [2011] EWHC 822 (QB)Litigation capacity. The experts agreed that, as a result of her impulsive nature, V lacked capacity to manage her financial affairs; however, they disagreed on whether she had litigation capacity. The critical future decisions would be in connection with settlement offers (including the global value of the claim, provisional damages and periodical payments) albeit in the conext of the common understanding that she would not have unfettered access to the money. V would have difficulties in weighing the evidence and making decisions, but they could be ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates: the decisions would be made in the presence of her mother and lawyers; there was no suggestion that V would be left to make decisions on her own. On balance she did not lack capacity to ligitate.§

Legislation etc

  • Mental Health (Discrimination) Bill 2010 — This Private Member's Bill, introduced by Lord Stevenson, received its first reading on 6/4/11. 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'. See Mental Health (Discrimination) (No. 2) Bill 2012

Press

  • Martin Beckford, 'Secrecy fears after court bans contact with 65 people' (Telegraph, 19/4/11). Hedley J permitted the press to attend hearings in this case (see previous article); this article complains about the press being ordered not to communicate with witnesses or healthcare professionals (except via the applicant's solicitor) and not to enter within 50 metres of their addresses. See Mental health law in the media
  • Martin Beckford, 'Mother seeks to let daughter with brain damage die' (Daily Telegraph, 15/4/11). This article relates to a preliminary Court of Protection hearing on 14/4/11 before Baker J, involving a patient M who is in a minimally conscious state (rather than a persistent vegetative state): M's mother wants artificial nutrition and hydration to be removed, whereas the Official Solicitor argues that it is M's best interests to be kept alive. See Mental health law in the media
  • Daily Mail, 'Mother withdraws bid to sterilise 21-year-old daughter with significant learning difficulties' (21/4/11); Jerome Taylor, 'Court to rule on sterilisation of pregnant woman' (Independent, 14/2/11); Tim Ross, 'Woman with learning difficulties could be forcibly sterilised' (Telegraph 14/2/11). These articles relate to an application by a mother for the sterilisation of her daughter during a caesarian section operation: according to the articles, at a preliminary hearing in February 2011 the case was adjourned for expert evidence, but by April 2011 the daughter had given birth and the mother had withdrawn her application. See Mental health law in the media
  • Julian Hendy, 'Scandal of mentally ill man who killed his father, was then released...and killed his mother' (Mail on Sunday, 10/4/11). This article is critical of mental health services, including mental health tribunals (for being in private), internal homicide inquiries (for being unreliable) and independent inquiries (for being repeatedly ignored). See Mental health law in the media

Department of Health

  • Dept of Health, 'Section 67 of the Mental Health Act' (v3, 13/4/11). This document, setting out the procedure for requesting a reference under s67(1), has been updated with links to the MOJ website. See MHA 1983 s67
  • Dept of Health, 'Ordinary residence: guidance on the identification of the ordinary residence of people in need of community care services, England' (15/4/11). 'The Ordinary Residence Guidance has been updated on 15/4/11, to provide revised guidance on people receiving NHS continuing health care immediately before 19/4/10, when certain changes to the legislation came into effect, and also on people from overseas.' (DH). See Ordinary residence
  • Dept of Health, 'Environmental Design Guide: adult medium secure services' (15/4/11). See DH

Legal Services Commission

  • LSC, 'Community Legal Services: Keycard No 47' (April 2011). This document is helpful if working out financial eligibility for Legal Help. The changes in this edition are that: (1) references to LSC Manual 2F are changed to 2E; (2) dependents' allowances are increased. In force 11/4/11. See Legal Aid#Other resources
  • LSC, 'Forms preview May 2011' (8/4/11). The following will change: CLASAPP3, CLSPP5, CLSCLAIM1, CLSCLAIM1A, CLSCLAIM1A Guidance, CLSCLAIM2, CLSCLAIM5A, CLSCLAIM5A Guidance, CW1 Public Law. They are mandatory from 9/5/11 and must not be used before then. Old forms (signed before 9/5/11) will be accepted until 3/6/11. See Legal Aid News

Newsletters

  • Mind, 'Legal enewsletter' (Issue 8, March 2011). The newsletter covers the following subjects: (1) Patients' experiences of the First-tier Tribunal (Mental Health); (2) Legal Aid cuts - Mind's response; (3) Equality Act 2010 - answering an employer's question about health; (4) Media Publicity and the Court of Protection; (5) Mental capacity and debt; and (6) Public Equality Duty. See Mind (Charity)
  • Text of 'MCA Update' 21/4/11 email added. This email sets out the detail of the fees consultation and a reminder that the consultation will close on 21/5/11. See MCA Update emails

Miscellaneous

  • NHS Information Centre, 'Social Care and Mental Health Indicators from the National Indicator Set - 2009-10 Final release' (various documents, 20/4/11). See Statistics
  • CQC, 'Count me in 2010: Results of the 2010 national census of inpatients and patients on supervised community treatment in mental health and learning disability services in England and Wales' (April 2011). See Statistics
  • Law Commission, 'Adult Social Care: Consultation Analysis' (31/3/11). This document summaries the responses to the Adult Social Care consultation. See Consultations
  • The OPG website will close on 4/4/11; its content will be moved to the MOJ and 'Direct Gov' websites. See MCA Update emails
  • On 1/4/11 the Tribunals Service and Her Majesty's Courts Service merged to form Her Majesty's Courts and Tribunals Service. The 'mhrt.org.uk' website is no longer operational, and the content has been transferred to the MOJ website. See Mental Health Tribunal#External links

Website

  • Mental Health Law Online was five years old on 19/4/11. Many thanks to all readers, contributors and subscribers.
  • There is currently a ban on the publication of anonymised First-tier Tribunal (MH) rule 46 judgments on points of law; this is based on rule 14(7): 'Unless the Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.' There are over 100 of these judgments. Although they set no binding precedent, and are supposed only to tackle clear errors of law, they are detailed and their publication would serve illustrative and educational purposes. In the circumstances, consideration is being given by Mental Health Law Online to the publication of summaries stating legal principles and reasoning, as it appears that this would not involve publishing 'information about mental health cases' within the meaning of rule 14. Your views would be welcome.
  • The March 2011 CPD test is now online. The scheme is suitable for solicitors, barristers (established practitioners), legal executives and others. 12 CPD points for £60 (or £50 to re-subscribe). See CPD scheme

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