July 2009 chronology

See July 2009 update for a summary of these changes.

  • 29/07/09: New Legal Aid secondary legislation. Community Legal Service (Financial) (Amendment No 2) Regulations 2009 — In force 6/8/09. These Regulations make it clear that in assessing whether a person is, or is any longer, financially eligible, the LSC must be satisfied that the person is not only in receipt of the benefits but also entitled to them.
  • 29/07/09: New secondary legislation. Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009 — These Regulations contain redesigned LPA forms. In force 1/10/09.
  • 29/07/09: Scottish judgment handed down 23/7/09 (rough summary). Scottish Ministers v MHTS, re MM [2009] CSIH 66(1) Tribunal decision set aside for want of adequate reasons. (2) Discussion on interpretation of s193 Mental Health (Care and Treatment) (Scotland) Act 2003, the convoluted Tribunal discharge procedure and criteria which differ from the admission criteria.
  • 29/07/09: New criminal judgment handed down 23/7/09. R (TF and Thompson) v SSHD [2009] EWCA Civ 792(1) The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review of the necessity of the requirements, and the case is stronger in the case of young offenders. (2) The scheme where it related to foreign travel did not breach article 4 ("right of exit") of EC Council Directive 2004/38.
  • 29/07/09: Criminal law judgment handed down 27/7/09. R v Khan [2009] EWCA Crim 1569(1) The judge had been right to refuse to withdraw the charge of murder from the jury at the close of the evidence: to do otherwise he would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, the diminished responsibility defence. (2) Although the medical evidence in favour of diminished responsibility was unchallenged, there was ample factual evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the defence was made out.
  • 29/07/09: 2009 criminal law case added. R v G; R v J [2009] UKHL 13Detailed explanation of elements of, and defences to, s57 and s58 Terrorism Act 2000. It was not a "reasonable excuse" for G to possess terrorist material to wind up prison guards; he was responsible for his actions (applying M'Naghten's Case) and his schizophrenia could not make reasonable what was unreasonable.
  • 26/07/09: New miscellaneous case handed down 24/7/09. R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795The right or freedom to smoke does not engage Article 8(1); Article 14 could not therefore be relied upon either. In any event, the SSH's smoke-free regulations and the Trust's smoke-free policy would be justified under Article 8(2), and the different treatment under the regulations for mental health units compared with prisons, care homes and hospices would be justified under Article 14.
  • 23/07/09: New deprivation of liberty case handed down 17/7/09. W Primary Care Trust v TB [2009] EWHC 1737 (Fam)TB was eligible to be deprived of her liberty under the Mental Capacity Act 2005 (either under DOLS provisions or s16 court order): she might have been ineligible under Case E, but she was not a "mental health patient" because her care home did not fall within the definition of a hospital.
  • 23/07/09: The Dept of Health today launched their New Horizons consultation about "a new vision for mental health" in England. See Consultations
  • 23/07/09: The CQC published "Investigation report into West London Mental Health NHS Trust" and "Progress report on Mid Staffordshire NHS Foundation Trust" on 21/7/09. See Care Quality Commission
  • 20/07/09: On 19/7/09 the CQC published "Coercion and consent: monitoring the Mental Health Act 2007–2009" (Mental Health Act Commission Thirteenth Biennial Report 2007-2009) together with a press release and detailed response to the report. See Care Quality Commission
  • 20/07/09: New criminal judgment handed down on 14/7/09. R v Erskine; R v Williams [2009] EWCA Crim 1425The appellants argued that, although they had not advanced the defence at trial, their convictions for murder should be quashed and substituted with diminished responsibility manslaughter. (1) The question in each case was whether, in examining the mental state at the time of the killing in accordance with s2 Homicide Act 1957, evidence which was not adduced at trial should be received under s23 Criminal Appeal Act 1968. (2) The question was a simple one and citation of numerous, merely illustrative, authorities was unhelpful. (3) In Erskine there was overwhelming contemporaneous evidence for diminished responsibility, and that his decision not to advance the defence was irremediably flawed because of his illness: appeal allowed and restricted hospital order imposed. (4) In Williams, the decision not to advance the defence was tactical, and the subsequent medical evidence unconvincing: appeal dismissed.
  • 20/07/09: On 15/7/09 the OPG published drafts of new improved LPA forms to be used from 1/10/09. See Lasting Power of Attorney
  • 20/07/09: New prison law judgment handed down on 5/6/09. R (Faulkner) v SSJ [2009] EWHC 1507 (Admin)13 months after referral, the claimant was released by the Parole Board and subsequently absconded. (1) The question of whether to dismiss the claim purely on the grounds that the claimant was a fugitive was left open. (2) The Article 5(4) claim was inconsistent with R (James) v SSJ [2009] UKHL 22: there was no Article 5(4) breach as the system had not broken down entirely (by the PB being denied the information that it needed for such a long period as to make continued detention arbitrary). (3) If that analysis is wrong, there still was no breach as, looking at the totality of the matter, there had been a review within a reasonable period. (4) Even if there had been a breach, it could not be shown that the claimant would have been released earlier. (5) Damages, if appropriate, would have been in the region of £1,000-£2,000, or perhaps £4,000; but, seeing as he had absconded, no damages would have been awarded. [Caution.]
  • 09/07/09: New criminal law judgment handed down on 7/7/09. R v Holderness [2009] EWCA Crim 1326The appellant argued that, due to a mental illness which she had previously concealed, she ought to have been convicted of diminished responsibility manslaughter rather than murder. This argument was rejected as (1) her appeal depended on her credibility, which had been damaged by her series of lies; (2) her excuse for concealment even up to trial - that she hoped to be let go by appearing well - was not credible; (3) she had ample opportunity to observe other patients' illnesses; (4) it was not probable that she could have concealed the delusions from the psychiatrist who saw her on the day of arrest. No jury might reasonably have found, on the balance of probabilities, that the s2 Homicide Act 1957 criteria were met. Appeal dismissed.
  • 09/07/09: New inquest case handed down on 6/7/09. R (P) v SSJ [2009] EWCA Civ 701The refusal of the SSJ to hold an inquiry into P's detention in YOI Feltham was lawful: (1) Article 2 is only engaged where there is a "real and immediate" risk to life; the risk from P's self harming, while real, was not immediate. (2) There was no arguable breach of Article 3 in the delay in transfer to hospital. Had there been an arguable Article 3 breach: in general, an inquiry would not have been mandatory; in this particular case, it would not have been necessary as the relevant facts were known.
  • 09/07/09: New page. Health Professions Council — From 1/7/09 the HPC will provide statutory regulation of psychologists. Psychologist ACs will have to be registered by the HPC from that date. As a transitional measure, psychologist AMHPs and BIAs can either be registered by the HPC or the pre-existing British Psychological Society. The HPC currently regulates the following professions: arts therapists, biomedical scientists, chiropodists/podiatrists, clinical scientists, dietitians, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists, prosthetists & orthotists, radiographers, speech & language therapists.
  • 09/07/09: New secondary legislation. Mental Health Act 1983 Approved Clinician (General) (Amendment) Directions 2009 — An amendment to Mental Health Act 1983 Approved Clinician (General) Directions 2008, in force 1/7/09, to reflect the statutory regulation of psychologists by the Health Professions Council from that date. Psychologist ACs must be registered with the HPC.
  • 09/07/09: New secondary legislation. Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (Commencement No 1 and Transitional Provisions) Order of Council 2009 — Yes, that is the real name. Among other over-complicated things, transitional arrangements relating to psychologist AMHPs and BIAs come into force on 1/7/09. Until 30/6/12, they can either be chartered psychologists (registered by the BPS) or psychologists registered by the HPC. It is expected that before the end of the transitional period the legislation will be amended to refer only to those registered by the HPC.
  • 07/07/09: New prison law judgment 23/6/09. R (Betteridge) v Parole Board [2009] EWHC 1638 (Admin)(1) Article 5(4) requires a speedy hearing to determine the lawfulness of detention, independently of any consideration of arbitrariness under Article 5(1). (2) The delay in listing the claimant's Parole Board hearing, due to a lack of panel members, breached his Article 5(4) right to a speedy hearing; however, as there had been no chance of release, there was no claim in damages. (3) The steps being taken to fix the systemic failures, and the ongoing problems, mean that further Article 5(4) delay claims are not appropriate unless in very special circumstances.
  • 05/07/09: DH publish "Recognising complexity: commissioning guidance for personality disorder services". See Department of Health page.
  • 05/07/09: New judgment handed down on 3/7/09. R (Farah) v HM Coroner for the Southampton and New Forest District of Hampshire [2009] EWHC 1605 (Admin)(a) A coroner sitting without a jury is entitled to give a verdict and a judgment dealing with the stipulated issues which are (i) who the deceased was; (ii) how, when, by what means and in what circumstances and where the deceased came by is death; and (iii) the particulars for the time being required by the Registration Act to be registered concerning the death; (b) A coroner is entitled to give a judgment on matters which arise during the inquest and which are relevant to the determination of the stipulated issues; (c) The Court has jurisdiction which should be sparingly exercised to declare comments made by a coroner as being unlawful. Such a declaration may be made if the comments (i) do not relate to any of the stipulated issues in any way; (ii) are matters of opinion; and (iii) are sufficiently unfairly critical and offensive of any party; (d) Declarations should be made that comments made by the defendant coroner in his judgment in respect of [various matters] are unlawful.
  • 05/07/09: New judgment handed down on 25/6/09. R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623An inquest into the death of a patient who was detained in a hospital under s3 had to satisfy the enhanced requirements of Article 2
  • 05/07/09: New Inquests case law category.