February 2015 chronology
See February 2015 update for a thematic summary of these changes.
- 23/02/15 (1): MHLO Annual Review 2014 now available. Each year an Annual Review is published, which contains all news items, arranged thematically, which were added to Mental Health Law Online during that year. You can support the website by purchasing the Annual Review in paperback or in Kindle format. Additionally, the full text is available online without charge. See the Annual Review page to obtain the 2011-2014 editions.
- 15/02/15 (1): Website upgraded. The software running the website has been upgraded and a new mobile-friendly visual theme has been installed. Please get in touch if you run into any difficulties. See Help page for contact details.
- 14/02/15 (1): CPD scheme. The October 2014 CPD questionnaire is now online. Obtain 12 SRA-accredited CPD points for £60 (also compatible with the SRA's new CPD regime). Suitable for non-lawyers as well. See CPD scheme for details.
- 12/02/15 (13): Sentence appeal. R v M  EWCA Crim 1641,  MHLO 143 — "The Advice on Appeal submitted on behalf of the applicant contains two grounds: first, that the judge was wrong in principle to make a s45A hospital and limitation direction when the conditions for making a restriction order under section 41 were not met; and second, that a section 37 order was the appropriate order. Those orders and directions refer to the provisions of the Mental Health Act 1983, as amended by the Mental Health Act 2007. The Registrar has also referred the making of the Victim Surcharge Order to the full court on two separate issues."
- 12/02/15 (12): Tribunal rule 11 appointments. YA v Central and NW London NHSFT  UKUT 37 (AAC),  MHLO 18 — This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed (and generally) if the representative forms the view that the patient does have capacity, he should inform the Tribunal and take instructions as normal, and act on those instructions.
- 12/02/15 (11): Odonnells Solicitors, 'Capacity, the role of a welfare deputy and an effective remedy for patients detained under the MHA' (February 2015). See AMA v Greater Manchester West MH NHSFT  UKUT 36 (AAC),  MHLO 17
- 12/02/15 (10): Withdrawal case. AMA v Greater Manchester West MH NHSFT  UKUT 36 (AAC),  MHLO 17 — A personal welfare deputy cannot appoint himself (or anyone else) as a representative unless the order appointing him expressly provides for this. This case related to the withdrawal of a tribunal application, and was followed up by Tribunal Policy: Withdrawals (23 Feb 2015)  MHLO 19.
- 12/02/15 (9): Sentence appeal and Parole Board delay. R v Vowles; R (Vowles) v SSJ  EWCA Crim 45,  EWCA Civ 56,  MHLO 16 —
Sentencing guidance; MHT/PB delay "There are before the court: (1) Sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under MHA 1983 s37 as amended with a restriction under s41 of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s47. (2) Sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody." In relation to the criminal aspect: in cases where medical evidence suggests mental disorder, the offending is partly or wholly attributable to that disorder, treatment is available and a hospital order may be appropriate, the court should consider (and, if appropriate, make) a s45A order before considering making a hospital order.
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: MHLR 2016.
Whether indeterminate sentences of imprisonment should be replaced by orders under ss37/41 Mental Health Act 1983 in light of updated medical evidence; whether Art 5(4) ECHR required the release of a person serving an indeterminate sentence and transferred to hospital to be controlled by 1 body; whether delays in the hearing of a matter by the Parole Board breached Art 5(4) - R v Lucinda Vowles, Carl Barnes, Danielle Victoria Coleman, Justin Obuza Odiowei, David Stuart Irving, Gordon McDougall; R (Lucinda Vowles) v Secretary of State for Justice and Parole Board –  MHLR 66
Points Arising: (i) A hospital order was designed to meet the needs of the offender in the expectation of avoiding further criminal acts.
(ii) There was no presumption that a hospital order would be made when the medical preconditions were made out: it had also to be appropriate, which involved assessing (a) the extent of the need for treatment, (b) the extent of the role of the disorder in the offending (albeit that there was no pre-requisite that the offending be linked to the disorder), (c) the extent to which punishment was required, (d) the protection of the ..→
- 12/02/15 (8): LPA case. Re SB: Public Guardian v BB  EWCOP 7  MHLO 15 — "This is an application to revoke a Lasting Power of Attorney for property and financial affairs because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests. It is also a contested application as to who should be appointed as SB's deputy for property and affairs in place of the attorneys."
- 12/02/15 (7): LPA case. Re EG: Public Guardian v GB  EWCOP 6,  MHLO 14 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs ('LPA') because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests."
- 12/02/15 (6): Community care case. R (Kent CC) v SSH  EWCA Civ 81,  MHLO 13 — "This case concerns the question of which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the National Assistance Act 1948. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere."
- 12/02/15 (5): Alex Ruck Keene, 'Bostridge and nominal damages - Court of Appeal decision now out' (Mental Capacity Law and Policy, 10/2/15). See Bostridge v Oxleas NHS Foundation Trust  EWCA Civ 79,  MHLO 12
- 12/02/15 (4): Quantum. Bostridge v Oxleas NHS Foundation Trust  EWCA Civ 79,  MHLO 12 — "The single issue in this appeal is whether the appellant, a mentally disordered patient unlawfully detained in hospital for some 442 days, is entitled to substantial damages instead of the nominal damages awarded by the judge, in circumstances where he would anyway have been detained lawfully had the defendant NHS trust been aware of the unlawfulness. ... I would dismiss this appeal."
- 12/02/15 (3): Lucy Series, 'If I was trying to get to the Court of Protection, I wouldn’t start from here' (The Small Places Blog, 12/2/15). See Re AJ (DOLS)  EWCOP 5,  MHLO 11
- 12/02/15 (2): Alex Ruck Keene, '"Neary 2," or making Article 5(4) real' (Court of Protection Handbook Blog, 12/2/15). See Re AJ (DOLS)  EWCOP 5,  MHLO 11
- 12/02/15 (1): DOLS case. Re AJ (DOLS)  EWCOP 5,  MHLO 11 — "This case raises a number of issues about the provisions of the Mental Capacity Act 2005, and in particular the amendments that were introduced into that Act by the Mental Health Act 2007 concerning the procedures to be followed in cases of deprivation of liberty. The provisions under consideration include the selection and appointment of relevant person's representatives under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty."
- 01/02/15 (1): Best interests case. Summary added (case already on MHLO). LB Redbridge v G (No 5)  EWCOP 17,  MHLO 53 — (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or F to remain. ... I consider that I have powers under s 17 to make the order I have that C and F vacate G's home..." (3) LPA: "As I have concluded that it is not in G's best interests for C to remain in her home, then it follows that it is not in G's best interests for C to be her appointed health and welfare Attorney. ... On the findings I have made ... it is more likely than not that C used undue pressure. ... I revoke the LPA..." (4) Contact: "I cannot find any benefit for G in having any direct or indirect contact with C or F either now or in the future."