MHLR 1999

To do - convert to same format as 2018.

Summaries supplied by Kris Gledhill, Editor of the Mental Health Law Reports. See Category:1999 cases for further details of 1999 cases.

1

Whether a Tribunal discharge of a s2 MHA order prevented its extension by virtue of s29(4); the proper approach to a s25 barring order by the hospital managers – Re W (habeas corpus: extension of s2 detention) – [1999] MHLR 1

Points Arising: A s2 MHA detention that has been discharged by a Tribunal on a future date is extended if an application to displace the nearest relative is made following an objection to a s3 detention; the making of a barring order under s25 looks to the future and so the absence of past dangerous behaviour does not prevent it being made.

Facts and Outcome: When a patient was discharged from detention under s2 Mental Health Act 1983 and this was delayed to allow a s3 order to be put in place, and in the meantime the nearest relative objected to a s3 order so that it could not proceed, and an application to displace was made under s29, the statutory extension of the s2 order pending displacement applied notwithstanding the Tribunal order to discharge the s2 order. Further, a barring order made in respect of a nearest relative discharge under s23 was properly upheld by the hospital managers on the basis of their view as to the future risk posed of psychological harm, even though there was no past dangerous behaviour.

7

Reasonableness of a transfer from prison to hospital at the end of the sentence; lawfulness of reliance on medical report based on 6-week old examination - R v Secretary of State for the Home Department ex p Gaynor Gilkes [1999] MHLR 7

Points Arising: There is no time limit between medical assessments and transfers under s47 MHA, but the medical reports had to be reliable: an out of date report will not meet this test; and it is unlikely that a report prepared for a s37 order will be reliable. A transfer from prison to hospital at the end of the sentence may be reasonable: such a transfer is not limited to exceptional circumstances.

Facts and Outcome: G was transferred from prison to hospital on the last date of her 3-month sentence (at the half-way point of it); the Home Secretary relied on a medical report that was just over 2 weeks old and another that was just over a week old but relied on an examination that was some 6 weeks old (and had been carried out for the purpose of recommending a s37 hospital order). It was held that, whilst a transfer should not usually occur at the end of the sentence, it might sometimes happen, was not limited to exceptional circumstances and was not unreasonable on the facts, it was wrong to have relied on a report based on an examination that was not recent when it related to a patient whose condition was not stable. It was also commented that a report prepared for a s37 order was unlikely to be reliable for s47 purposes. However, the court’s discretion was exercised against quashing the decision because up to date medical evidence revealed that the criteria for detention in hospital were made out.

12

Police interview of a man with schizophrenia who did not have an appropriate adult present – admissibility in criminal trial - R v Paul James Aspinall – [1999] MHLR 12

Points Arising: The failure to follow the requirements to have an appropriate adult in the interview of a mentally disordered suspect meant that, despite his apparent lucidity in interview, it was unfair to admit it in evidence.

Facts and Outcome: After A was arrested near to a cache of drugs, his schizophrenia was confirmed by a medical examination, the doctor also indicating that he was fit to be interviewed. A was interviewed without an appropriate adult or legal advice (though the officer who allowed the interview to proceed was not aware of A’s mental illness): despite a psychiatrist giving evidence that it was possible that A was less able to cope with questions as a result of his illness and might have given answers which he thought were more likely to result in his release from custody (the interview occurring after A had been in custody for some time), the judge allowed the interview into evidence because A’s apparent ability to deal with the interview obviated the need for an appropriate adult. The Court of Appeal overturned the conviction, holding that the judge was wrong to admit the interview, inter alia because he had given too much weight to A’s apparent lucidity and not considered the purpose of the safeguard of an appropriate adult, including the latter’s role in considering the question of legal advice being obtained. Since it was clear that A should have had an appropriate adult, it was unfair to have admitted the interview evidence, particularly as A had been interviewed without legal advice.

17

Whether a patient had been detained on the impermissible basis of his paedophilia - Wilkinson v Secretary of State for Scotland [1999] MHLR 17

Points Arising: Paedophilia alone did not justify detention, as it is a sexual deviancy; but on the facts there was a mental disorder. If there is a mental disorder that manifests itself in paedophile conduct, that can be within the definition of mental disorder.

Facts and Outcome: W challenged a sheriff’s decision to uphold his detention under the Mental Health (Scotland) Act 1984, arguing that his disorder was paedophilia, which was excluded from the definition of mental disorder as it was a sexual deviance. The challenge was dismissed on the basis that, whilst paedophilia (or his old alcohol addiction) alone would not justify detention, he was found to be suffering from mental illness characterised by anti-social personality disorder manifested by various features such as egocentricity, lack of feeling for others and lack of remorse for past offences.

21

The lawfulness of a s3 detention imposed after an interim displacement of a nearest relative who objected - R v (1) Central London County Court (2) Managers of Gordon Hospital ex p London [1999] MHLR 21 CA

Points Arising: A county court may make an interim order in relation to an application made under s29 MHA to displace a nearest relative; but if the patient is detained under s2, the extension of that detention by virtue of s29(4) MHA is preferable to having the replacement nearest relative consent to a s3. However, a s3 order made is valid and the hospital can rely on it by reason of s6 MHA.

Facts and Outcome: Whilst L was detained under s2 MHA, an application was made to displace his G as nearest relative under s29 of the Act on the basis that her objection to a s3 detention was unreasonable. At an ex parte hearing in the county court, of which G had not been given proper notice, she was displaced “until further order” but with a direction that the matter be reconsidered at an inter partes hearing after 7 days; there were further interim orders to continue the displacement (and a final displacement order was eventually made), and after the first interim order L was placed under s3 MHA. The county court’s decisions to make ex parte and interim displacement orders were challenged in judicial review proceedings; and the decision of the hospital managers to accept the s3 detention was challenged on the basis that the s2 detention continued (by reason of s29(4)) and so the s3 order should not be accepted until a final decision on the displacement issue. The Court of Appeal, upholding the High Court, determined that the county court’s general power to issue interim and ex parte orders was not excluded by the language of the MHA; that whilst making a s3 order should not be made on the basis of an interim displacement unless there were good reasons not to rely on the statutory extension of the s2 detention, there was no disadvantage to the patient detained under s3 following an interim displacement because if the displacement was not made final, the nearest relative would be able to discharge the patient under s23; but the hospital could rely on the application by virtue of s6 MHA, since it appeared to be valid.

30

The propriety of a restriction order – R v Lee Michael Cox [1999] MHLR 30 CA

Points arising: The judge was able to impose a restriction order against the views of the doctors giving evidence; there was assistance as to the meaning of “serious harm” in the s31 Criminal Justice Act 1991, and so it covered serious physical or psychological injury; the risk of such harm had to be real, not fanciful or remote.

Facts and outcome: C, who was already subject to a hospital order under s37 MHA 1983 and had previous convictions including for violence, admitted affray involving threatening 2 men at a garage and brandishing a penknife, and criminal damage to a book at the police station. Although the psychiatrists did not support a restriction order, the judge was entitled to find on the evidence that there was a real (ie not fanciful or remote) risk that the public would suffer serious harm on C’s reoffending (of which there was a considerable risk).

35

Whether a review of the lawfulness of detention was speedy for the purposes of Art 5(4) ECHR - Musial v Poland [1999] MHLR 35

Points Arising: Requesting a second opinion did not amount to a waiver of the right to a speedy hearing; the court’s agreement to request a second opinion did not absolve it of the duty to ensure speediness (including using powers such as the fining of witnesses); complexity of a medical file was relevant to the issue of speediness; reliance on an out-of-date medical report could breach Art 5.

Facts and Outcome: M had been committed to hospital following the killing of his wife and a finding that he was not criminally responsible; his detention had been upheld on several reviews, which had to occur every 6 months under domestic law. On 16 March 1993, a further request for release was made: the court upheld detention on 26 April 1993 on the basis of opinions from the detaining hospital, but also decided to seek further psychiatric opinions from the University of Cracow, which M requested. On 17 May 1993, the court directed M’s admission to the Psychiatric Department of Cracow Detention Centre on 31 May, but the Centre refused to admit him as he was not a remand prisoner. Arrangements were then made for his admission to the University hospital: the date was put back, in part because it took 5 months for M’s medical file to be transferred, and it did not occur until 31 January to 3 February 1994, and the report based on M’s examination was not prepared until 30 November 1994. On 9 January 1995, the court upheld detention: it took no action in relation to the delays. The Grand Chamber decided that there was a breach of Art 5(4) ECHR: the period considered was when Poland allowed the right of individual petition (which was 1 May 1993) until the court decision on 9 January 1995; the delays in the process included 5 months for M’s medical file to be sent to the University hospital, 4 months for him to be admitted, and 10 months for the expert report to be prepared. It was held that this lapse of time was incompatible with the notion of speediness required by Art 5(4) unless there were exceptional grounds. Poland relied on the fact that M had requested a further examination from Cracow University and the complexity of the case: the Court held that there had been a breach of Art 5(4) and awarded compensation: (i) M did not waive his Art 5(4) right by requesting a second opinion; (ii) the court still had to rule speedily even though it had appointed experts, and it was relevant that it had not used its powers of control, such as fining the experts who were delaying submission of the report; (iii) the complexity of a medical dossier is relevant in the assessment of speediness, but had not been shown to be causative of delay; (iv) reliance on an out-of-date report could breach the purpose of Art 5, namely avoiding arbitrariness; (v) there had been no other reviews during the period concerned, even though domestic law required a review every 6 months.

42

Whether there was a breach of Art 5(1) ECHR based on a misinterpretation of the powers of detention in the MHA 1983 – Warren v UK [1999] MHLR 42

Points arising: Detention under the MHA following an order made by a criminal court should be considered under Art 5(1)(e) ECHR

Facts and outcome: W’s detention under ss37/41 MHA 1983, which followed his conviction for the attempted murder of his children, had been upheld by successive Tribunals (which found that he had an enduring mental illness, not a transient problem caused by the stress of divorce proceedings). He raised a number of complaints that repeated those made in another application that had been found inadmissible (which the Chamber decided not to reconsider in the absence of new arguments), including that his detention breached Art 5§1(a) ECHR on the basis that it breached domestic law (his contention being that s37 MHA allowed detention for 28 days only, which had been rejected by the domestic courts). The Court found that the lawfulness of detention should be considered under Art 5§1(e) alone (even if it followed a conviction, such that Art 5§1(a) applied), that there was no basis for arguing that domestic law was breached, and that the findings of successive Tribunals meant that the necessary conditions for detention were met – namely a true mental disorder was established before a competent authority on the basis of objective medical expertise, it was of a kind or degree warranting compulsory confinement, and it persisted – and so the application was manifestly ill-founded and inadmissible.

45

The propriety of a restriction order in light of the fresh evidence – R v James Andrew Crookes [1999] Mental Health Law Reports 45 CA

Points Arising: On an appeal against a restriction order, the progress made after sentence can be relevant to show that a restriction order, although properly imposed, should be lifted by the Court of Appeal.

Facts and Outcome: C was made subject to a hospital order and restriction order under ss37/41 MHA 1983 after conviction of 2 counts of wounding with intent, involving him attacking 2 people with a sword. By the time of the sentencing hearing, he had been diagnosed, given proper treatment which controlled his illness and had a level of insight into it: the Court of Appeal held that the restriction order was properly imposed on the material before the sentencing judge, the further progress made meant that it was not required.

49

Identifying the aftercare authority obliged to put arrangements in place - R v (1) The Mental Health Review Tribunal (2) Torfaen County Borough Council (3) Gwent Health Authority ex p Russell Hall [1999] MHLR 49

Points Arising: The provisions of s117 Mental Health Act 1983 are designed to ensure that there is always an aftercare authority, being the place where the patient resided before detention or, if there was no such residence, the place where the patient was to be sent on release; the duty as to aftercare included the provision of information to a Tribunal and so arose before discharge.

Facts and Outcome: H was a restricted patient, having been found not guilty of manslaughter by reason of insanity in 1991; at the time, he lived in Torfaen. A conditional discharge was granted by a Tribunal in February 1997, the conditions including residence (which was to be away from the place of the index offence) and supervision in Gwent. A dispute as to who was responsible for the aftercare meant that the conditions had not been met by the time of the next Tribunal, which imposed a conditional discharge with more stringent conditions (indicating that he should reside further away from the location of the index offence, and setting requirements that the supervising psychiatrist and social worker have forensic expertise). In judicial review proceedings it was held that s117 MHA 1983 required Torfaen, as the place where H had been resident before detention, to make the arrangements required on discharge, including by obtaining services from another authority, and prevent any impasse by ensuring the referral of the case back to the Tribunal; it was also noted that the aftercare duty included the provision of information to the Tribunal and so arose before discharge. Gwent also failed to provide adequate information in advance of the hearing or to take adequate steps by way of implementation. (A finding that the Tribunal had erred by imposing conditions that would not be implemented was overturned on appeal.)

63

Whether it is lawful for a Tribunal to impose conditions on a conditional discharge when it knew they would not be put into practice and the patient would remain detained - R v Mental Health Review Tribunal ex p Russell Hall [1999] MHLR 63 CA

Points Arising: The fact that there will be delay in the implementation of conditions in a conditional discharge does not mean that they are unlawful; it would have been open to the Tribunal to be proactive in adjourning for reports as to the progress of an aftercare package.

Facts and Outcome: H was a restricted patient, having been found not guilty of manslaughter by reason of insanity in 1991; at the time, he lived in Torfaen. A conditional discharge was granted by a Tribunal in February 1997, the conditions including residence (which was to be away from the place of the index offence) and supervision in Gwent. A dispute as to who was responsible for the aftercare meant that the conditions had not been met by the time of the next Tribunal, which imposed a conditional discharge with more stringent conditions (indicating that he should reside further away from the location of the index offence, and setting requirements that the supervising psychiatrist and social worker have forensic expertise). Judicial review proceedings led to a finding that the aftercare authorities had failed in their obligations; the judge also found that the Tribunal had erred by imposing conditions that would not be implemented, but this was challenged on appeal. The Court of Appeal held that the conditions remained lawful despite delays in their implementation; the question was their reasonableness. It also suggested that the Tribunal could have been more proactive in adjourning to call for reports as to the progress in putting together an aftercare package.

69

Treatability and Treatment of Personality Disorder – Containment in a Structured Environment, Nursing Care, Engagement of Patient - Michael Ferguson v State Hospital Management Committee – [1999] MHLR 69

Points Arising: In considering discharge, it was not necessary to consider the hypothetical question of whether the sentencing court would impose a hospital order on the basis of present knowledge of the patient’s condition; the requirement of treatability in relation to a personality disorder was satisfied by the structured setting that made F more settled and stable and cognitive behavioural therapy and counselling.

Facts and Outcome: F was a restricted patient in Scotland, held in high secure conditions; at the time of sentence, he was thought to have paranoid schizophrenia, but when anti-psychotic medication was discontinued and psychotic symptoms did not recur, it was concluded that he did not have a mental illness but a personality disorder. He argued that he should be discharged as he would not have been admitted to hospital on the basis of a personality disorder. The judge held that (i) it was not necessary to consider whether he would have been admitted to hospital on current knowledge of his condition, and not meeting the criteria for admission did not mean that discharge would follow; (ii) the structured setting of the hospital made F more settled and stable, and he had benefitted from cognitive behavioural therapy and counselling, and so he was treatable; treatment is not ineffective if the patient shows little inclination to engage (and there was evidence of hopeful signs as to F’s attitude). (iii) Treatment was necessary to protect the public from further offences and F from drug and alcohol abuse; and detention in the highly structured hospital was appropriate to allow F to make progress and protect against a breakdown.

84

Insanity – amenability to challenge of finding of Not Guilty by Reason of Insanity without a jury - R v Maidstone Crown Court ex p LB Harrow [1999] MHLR 84

Points Arising: A Crown Court judge’s purported finding that a defendant was not guilty by reason of insanity was outside his jurisdiction and so not pursuant to the indictment, and so could be challenged by judicial review.

Facts and Outcome: HW appeared at the Crown Court on a charge of arson; the judge purported to accept a plea of Not Guilty by Reason of Insanity, based on the unanimous medical evidence available, without empanelling a jury, and then made a supervision order under s5 Criminal Procedure (Insanity) Act 1964 with a condition of treatment by a named doctor; the order was later reissued administratively to identify LB Harrow social services as the named supervisor (rather than the probation service). On an application to challenge the order as ultra vires because the statutory regime required a jury verdict, the question arose as to whether the matter related to trial on indictment as so was outside the scope of judicial review (s29 Supreme Court Act 1981). The Divisional Court held that the Crown Court judge had acted outside jurisdiction, purportedly but not actually pursuant to indictment, and so was amenable to judicial review; and in any event the involvement of LB Harrow was pursuant to a revised order not made by a Crown Court judge and so amenable to judicial review. The order was quashed and the matter remitted to the Crown Court.

97

Delays in Tribunal hearings – whether 10 months between application and hearing breached Art 5(4) ECHR - Jean Cotterham v UK [1999] MHLR 97

Points Arising: A question of delay in a mental health tribunal is to be considered under Art 5(4) rather than Art 6(1) ECHR; a 10-month delay is at first sight in breach of the requirement of speediness, which the judicial authorities have to ensure is met, but allowing a patient time to have a report by a psychiatrist of her choice and fixing a date that was convenient for solicitors of her choice meant that there was no lack of due diligence and so the complaint was inadmissible.

Facts and Outcome: JC was a restricted patient who had been conditionally discharged but then recalled to hospital. She complained about the delays in a Tribunal hearing based on an application made on 20 May 1996 and received by the Tribunal on 24 May 1996; on 18 June 1996, legal aid was allowed for an independent psychiatric report, and JC’s solicitors asked that the Tribunal hearing be fixed around mid-September 1996 to allow the report to be prepared, though in fact the psychiatrist did not see her until 19 September 1996 and did not provide a report until 11 February 1997; all other reports were available; a hearing date was offered for 5 March 1997 but JC’s solicitors were not available; the hearing took place on 25 March 1997, and resulted in a decision not to discharge. The Court, considering the case under Art 5(4) rather than 6(1), held that, whilst the relevant court had to ensure expedition and a 10 month delay was not speedy at first sight, there was no breach of Art 5(4) as time was allowed for the preparation of a report by a psychiatrist of her choice and for her solicitor to be free (failure to allow which might have meant that the hearing was not fair), and so there was no lack of due diligence by the Tribunal. As such, there was no breach of Art 5(4) and the application was inadmissible as ill-founded.

101

The rationality of a Tribunal concluding that a patient had a continuous mental illness rather than transient episodes; the adequacy of its reasons in light of the existence of a contrary medical view - R v Mental Health Review Tribunal, London North and East ex p Manns [1999] MHLR 101

Points Arising: A Tribunal had been entitled to find that there was an enduring mental illness based on symptoms before transfer to hospital and that it was asymptomatic because of a response to medication; this entitled it to reject an opinion in favour of discharge which was based on the view that there was no enduring illness.

Facts and Outcome: M was imprisoned but transferred to hospital under s47 Mental Health Act 1983 in March 1998, towards the end of his sentence; he had been displaying psychotic symptoms, and in November 1997 a Dr Vermeulen diagnosed him with paranoid psychosis. He had had previous episodes of mental illness in 1991 and 1994. M remained in hospital as if detained under s37 of the Act at the end of the sentence. A Tribunal sitting in October 1998 upheld his detention, concluding that he was mentally ill despite the absence of symptoms since some 3 weeks after transfer; it preferred the evidence of the treating psychiatrist, Dr Payne, and his Senior House Officer that M had schizophrenia rather than that of an independent psychiatrist, Dr Burke, whose report recommended release, expressing the view that he suffered a mood disorder only; the Tribunal accepted that the psychotic symptoms before transfer and his response to medication indicated that he had a mental illness. The decision was upheld in judicial review proceedings on the basis that it was open to the Tribunal to find that M had a continuing mental illness that was asymptomatic because of medication (in light of the symptoms displayed before transfer and the response to medication); and that the reasons for rejecting the opinion of Dr Burke were adequate in light of its conclusion that there was a continuing mental illness.

106

Whether a hospital owed a duty of care to the family of a child killed by a mentally disordered man who was treated as an out-patient but not detained - Beverley Palmer v (1) Tees Health Authority (2) Hartlepool and East Durham NHS Trust [1999] MHLR 106

Points Arising: The proximity required for a duty of care as between a hospital and the victim of a patient only arises if the victim is a member of an identifiable at risk group.

Facts and Outcome: A, who was diagnosed as having a personality disorder as a result of an abusive childhood, had admitted sexual feelings towards children during a hospital admission in June 1993; after discharge, whilst he was being seen as an outpatient, he sexually assaulted and murdered a child who lived in the same street. An action in negligence by the child’s mother BP against the hospital authorities for failing to diagnose and reduce the danger posed by A was struck out without a trial on the basis that there was insufficient proximity between the authorities and someone affected by the actions of a third party unless it was shown that the injured person was in an identifiable at risk group, which was not so. (In addition, BP failed the test for the recoverability of her own nervous shock injuries.)

118

The compatibility of Irish legislation with Art 5 ECHR - Sean Croke v Ireland [1999] MHLR 118

Points Arising: The absence of an automatic independent judicial review of detention at the outset and on a periodic basis raised issues under Arts 5(1) and (4) that required consideration on the merits.

Facts and Outcome: C had been admitted several times to psychiatric hospitals in Ireland; he challenged whether the legislative regime, in the Mental Treatment Act 1945, was compatible with Art 5(1) and (4) ECHR. The Irish Supreme Court had held that the statutory regime satisfied the constitutional guarantee against arbitrary detention. The legislation provided for admission on the basis of a certificate from a doctor and a second certificate from a medical officer at the hospital; release was determined by the hospital or the Minister of Health, and the Inspector of Mental Hospitals could alert the hospitals or the Minister to concerns about whether a patient should remain in hospital; the Irish Supreme Court had held that this regime had to be operated in a manner that was not arbitrary and had regard to the patient’s right to liberty unless he or she was of unsound mind, in need of care and treatment and had not recovered, which obliged the detaining authorities to review detention regularly. In addition, habeas corpus was available, under which the onus was placed on the detaining authority to show that the patient was of unsound mind and in need of care and treatment, the statutory procedures had been complied with, the patient has not recovered, and there was no unnecessary deprivation of liberty. Further, the President of the High Court could order the Inspector to visit a patient and also had an inherent discretion to release a patient (though this power had never been exercised). C’s argument that automatic, independent reviews were required after detention and on a periodic basis was found to raise serious issues that required determination on the merits and so was admissible.

128

Whether delivery of notice of a nearest relative’s intention to discharge was complete when handed to the hospital receptionist or when opened by the Mental Health Act Administrator - Re GK (Patient: Habeas Corpus) [1999] MHLR 128

Points Arising: The statutory provisions meant that a hand delivered notice of intention to discharge by a nearest relative had to come into the hands of the Mental Health Act Administrator to start the 72 hour period for a barring order (s25 Mental Health Act 1983); if the notice was sent by post to the Managers, it was their responsibility to ensure that an authorised officer was available to open it and deal with it.

Facts and Outcome: GK was detained under s3 Mental Health Act 1983; his nearest relative sought to exercise her powers of discharge under s23 of the Act and handed a letter to the hospital receptionist on 27 May 1999; on 3 June 1999, the hospital administrator, who had been absent, received the letter and arranged for a barring order to be made under s25 of the Act. In habeas corpus proceedings raising the argument that the failure to issue a barring order within 72 hours of the letter being delivered to the hospital meant that there was no jurisdiction to detain, the High Court held that Regulations required that the s23 discharge application had to be delivered to an authorised officer, which meant that it had to come to the attention of the relevant administrator; and that the time for a barring order commenced then, and so was in time on the facts.

132

Whether a decision to displace a nearest relative was wrong - Manchester City Council v MI [1999] MHLR 132 (CA)

Points Arising: The test for the displacement of a nearest relative is objective; the Court of Appeal will not interfere with factual findings that were open to the trial judge.

Facts and Outcome: MI, the mother of PI, believed, with expert evidence in support, that PI had mild epilepsy which was controllable by drugs that she could administer; Manchester City Council, with expert support, believed that PI had a mental illness and so wished to place him under guardianship (s7 Mental Health Act 1983) so as to retain control over where he lived and to require access to doctors. This would happen when he left hospital, where he had been detained under ss2 and 3 of the Act, which had been upheld by Mental Health Review Tribunals. When MI objected to the guardianship application (under s11 of the Act), the Council sought to displace her from the role of nearest relative on the basis that the objection was unreasonable (s29 of the Act). The decision of the County Court judge that PI had a mental disorder and not epilepsy and that the other criteria for guardianship were made out, such that the objection was unreasonable, was upheld by the Court of Appeal on the basis that his findings of fact were open to him and he applied the law correctly, namely what would an objective nearest relative do.

135

Delays in an application to restore capacity – whether in breach of the reasonable time requirement in Art 6(1) ECHR; forced medical examination – whether in breach of Art 8 - Matter v Slovakia [1999] MHLR 135

Points Arising: Proceedings relating to capacity are covered by Art 6 ECHR; in assessing whether the proceedings are completed within a reasonable time, account has to be taken of any complexity arising from the need for expert evidence and any conduct by the patient, but special diligence is required from the court in light of the importance of the question. A forced medical examination, which is an interference for the purposes of Art 8(1), could be a proportionate method of protecting a patient’s rights as part of the resolution of capacity proceedings and so justified for the purposes of Art 8(2) ECHR.

Facts and Outcome: M’s legal capacity was taken away by a court on the basis that he was mentally ill. In February 1987, he applied to have it restored, and the proceedings were still ongoing in 1999 (though only the period since Slovakia became bound by the ECHR in 1992 was directly taken into account). It was held that these were proceedings to which Art 6 applied, as they determined his capacity to acquire rights and undertake obligations. The application was initially dismissed by the District Court in February 1989 because M had refused to be examined by experts, but this was quashed by the Supreme Court in May 1990; the District Court then appointed an expert and, after M’s continued refusal to be seen, ordered M to see the expert, but this was overturned by the Regional Court in July 1992 as the District Court had not appointed a guardian; subsequently, after a guardian had been appointed and agreed that M should be examined, the District Court ordered this, and the Regional Court upheld the order, and in August 1993 M was taken by police to hospital to be examined. He was in hospital for 2 weeks; the expert opinion was that M’s capacity could be restored partially, which was ordered in November 1993 (with ongoing restrictions on M’s ability to act before public authorities on his own, conclude contracts, assume obligations in writing or work regularly); M’s appeal to the Regional Court, which was delayed as M had objected to the court, resulted in an October 1995 quashing of the order of November 1993 on the basis that the District Court had not heard from the expert, contrary to domestic law. An updated medical report was required, and in October 1996 the District Court requested the Ministry of Health to recommend a second expert, which was done in November 1996; in October 1997, the District Court ordered M’s examination by the second expert, which M refused; in October 1998, the proceedings were stayed pending M’s examination. In November 1996, the guardian requested that another body be appointed, which was done in October 1997; there was a further change of guardian in April 1999.

The European Court of Human Rights determined that this chronology revealed a breach of the requirement in Art 6(1) that there be a trial within a reasonable time. It noted that (i) what was reasonable turned on the facts, including the complexity of the case and the conduct of the parties, but that a special diligence was required if what was at stake was a matter so important as capacity; and (ii) on the facts, there was some complexity because of the need for expert evidence and M had contributed to the delay by his conduct and challenge to the court, but that the District Court’s errors in failing to appoint a guardian at the outset, failing to hear from the expert when it made its order in November 1993, and the unexplained delay in appointing a second expert meant that there had not been the special diligence required in light of the nature of the case, and so the reasonable time requirement of Art 6(1) was breached.

Whilst the forced examination of M in hospital amounted to an interference with the right to respect for private life in Art 8(1), it was justified under Art 8(2) as it was in accordance with domestic law, pursued the legitimate aim of protecting M’s own rights and health, and was not disproportionate in light of the need to determine the capacity proceedings. In relation to the latter question, an objective standard is applied, and a margin of appreciation is left to the Contracting States, as the national authorities are best placed to determine the complex issues (such as the obtaining of an expert opinion) and have direct contact with the persons concerned.

142

The RMO may not use s16 to overturn a tribunal decision under s72(5) by reclassifying the patient - R v Pathfinder NHS Trust ex p W [1999] MHLR 142 Admin Ct

Points Arising: If a Tribunal reclassifies a patient, the treating psychiatrist cannot overturn this unless there has been a significant change in circumstances or further evidence that would enable the Tribunal to take a different view.

Facts and outcome: W was detained under s3 on the basis of mental illness, but reclassified as suffering from mental illness and psychopathic disorder by the Responsible Medical Officer, using his powers under s16 Mental Health Act 1983. He applied to a tribunal seeking release or reclassification to mental illness only. The tribunal did not discharge W, but reclassified him as suffering from mental illness only, using its powers under s72(5) of the Act. The RMO, noting that there was no current treatment needed for mental illness, and so if he was not suffering from psychopathic disorder his detention was not proper, reclassified him again to mental illness and psychopathic disorder, using his power under s16 of the Act. This was quashed in judicial review proceedings on the basis that the tribunal decision had to stand unless there was a significant change in circumstances or further evidence which would enable a tribunal to take a different view if the matter was referred to it again.

145

Whether the displacement of the nearest relative in light of the contested evidence was proper; whether there should have been adjournment to allow legal representation - AM v Herefordshire County District Council [1999] MHLR 145

Points Arising: It had been within the judge’s discretion not to adjourn displacement proceedings involving a nearest relative alleged to be mentally incapable of acting as nearest relative who sought an adjournment in order to obtain legal representation; and the displacement order was open to the judge on the evidence. It was suggested that the displaced nearest relative had no right to apply to the Mental Health Review Tribunal.

Facts and Outcome: On an appeal against the displacement of a nearest relative on the basis that the nearest relative’s own mental health problems meant that he was incapable of acting as nearest relative, the grounds of which related to the judge’s failure to adjourn to allow arrangements for legal aid and representation and his failure to give sufficient weight to expert evidence in support of the nearest relative’s position that the patient did not need to be in hospital, the Court of Appeal held that there had been evidence to justify the judge’s conclusions on the merits and he correctly construed the law, and he was entitled to exercise his discretion to refuse an adjournment. The Court also commented, though noting that it had not had full argument, that the effect of the displacement was that the nearest relative could not apply to a Tribunal (since that right, given to the nearest relative, was a function that was taken over by the replacement) and instead had to apply to the County Court to vary or discharge the displacement order.

149

Whether after-care services provided to formerly detained psychiatric patients under s117 Mental Health Act 1983, including accommodation, are to be provided free under that section, or whether it was a gateway to services provided under other statutes for which charges are to be made - R v LB Richmond ex p W; R v Redcar and Cleveland BC ex p A; R v Manchester City Council ex p S; R v LB Harrow ex p C [1999] MHLR 149

Points Arising: Aftercare services provided to patients to whom s117 Mental Health Act 1983 applies are provided under that section (rather than it being a gateway to provision under other community care statutes) and so (i) the charging provisions of community care statutes do not apply and (ii) the absence of a charging provision means that they have to be provided free.

Facts and Outcome: In linked cases raising as a point of law whether aftercare services (in the form of residential accommodation – including that where people were required to live by the terms of a guardianship order imposed on leaving hospital) provided by reason of s117 Mental Health Act 1983 could be charged for on the basis that s117 was merely a gateway to services actually provided under s21 National Assistance Act 1948 (for which means-tested charging was obligatory), it was held that s117 imposed a free-standing obligation to provide aftercare and that no charges could be imposed for them.

159

Whether a patient with a personality disorder should be discharged on the basis that he was not treatable; whether containment in a structured environment together with nursing care amounted to treatment - Noel Ruddle v Secretary of State for Scotland [1999] MHLR 159

Points Arising: Whilst a structured hospital environment could amount to treatment, it did not on the facts, but was mere containment; and as an anti-social personality disorder was not on the facts alleviated or prevented from deterioration as a result of any treatment interventions, it was untreatable; and as there was no need for recall, an absolute discharge followed.

Facts and Outcome: As the improvement in a patient’s personality disorder was the result of age and the denial of access to drugs and alcohol, which amounted to mere containment and denial of opportunity to abuse substances, and as there was no reduction of the propensity to abuse substances or other change in the features of the personality disorder, there was no medical treatment and the personality disorder was untreatable (ie there was no alleviation or prevention of a deterioration, nor was that likely), and so the patient (a restricted patient, ordered to be detained after a culpable homicide, who had initially been diagnosed as having a mental illness, schizophrenia, but whose psychotic symptoms resolved) had to be discharged absolutely (as there was no prospect of recall).

174

Whether the inability of a patient to change nearest relative breached Art 8 ECHR - FC v UK [1999] MHLR 174

Points Arising: The lack of a provision allowing a patient to apply to change their nearest relative, meaning that the role was played by someone the patient did not wish to know their mental health status, breached Art 8 ECHR.

Facts and Outcome: In 1994, FC was detained under s3 Mental Health Act 1983, and detention was renewed on several occasions; she made one application to a Tribunal and there was a subsequent referral. By reason of s26 of the 1983 Act, her nearest relative was her adoptive father: she had no contact with him and did not wish him to have any information about her; she alleged he had sexually abused her. An application to the county court to change the nearest relative had been refused on the basis that there was no power to make the change. An application to the European Court of Human Rights alleging that this breached Art 8 was settled on the basis of an undertaking by the UK to change the law (as part of a general review of mental health law) to allow detained patients to apply to change their nearest relative and a payment of £2000 in non-pecuniary damage, plus legal costs. The Court accepted that there was no reason to consider the application further.

175

The correct meaning of ‘mental impairment’ and whether it was made out by a child with a mental age of 5-8 wishing to return to an unsatisfactory home environment - Re TF (A Child: Guardianship) - JF v LB Hackney [1999] MHLR 175 CA

Points arising: A desire to return to an inadequate home is not “seriously irresponsible” and so cannot found a conclusion that there is mental impairment.

Facts and outcome: TF, who was 17 but had a mental age of 5-8, and her 7 siblings were removed from the family home pursuant to emergency protection orders under the Children Act 1989: the local authority’s concerns were based on poor parenting skills, poor hygiene at the home, and exposure of the children to adults prone to sexual abuse. As TF was over 16, no interim care order could be made. When her parents withdrew their consent to her remaining in a children’s home and TF indicated that she wished to return home, the local authority applied for a guardianship order under s7 MHA 1983 on the basis of mental impairment. The Court of Appeal (in the context of an appeal from displacement proceedings as TF’s nearest relative objected to the guardianship application) held that a restrictive meaning was to be given to the concept of mental impairment, which requires an “arrested or incomplete development of mind” which is associated with “abnormally aggressive or seriously irresponsible conduct”, and that a natural desire to return home was not “seriously irresponsible” conduct and so the 1983 Act could not have been used; it also held that wardship proceedings should have been used.

181

What was required to "care for" patient so as to become the "nearest relative"; and the test to be applied when there is a challenge to the process of consultation carried out by the social worker in the process leading to a s3 detention - Re D (mental patient: nearest relative) [1999] MHLR 181 Admin Ct

Points Arising: The approach to whether a relative “cares for” a patient so as to become their nearest relative by reason of s26(4) Mental Health Act 1983 involves the provision of more than minimal care services; the social worker’s decision as to who “appears to be” the nearest relative for the purposes of consultation under s11(4) of the Act has to involve an acceptable approach to the question of who is the nearest relative but did not require the making of enquiries (unless it would be irrational not to make enquiries).

Facts and outcome: D challenged the lawfulness of his detention under s3 MHA 1983 on the basis that the social worker who applied for detention had consulted his younger child rather than his older child as the nearest relative (in accordance with s11(4) of the Act) and so had consulted the wrong person; the case for the social worker was that the right person had been consulted because the younger child “cared for” the patient within s26(4) of the Act and so was nearest relative. The factual basis for this was that she visited her father weekly, carried out functions such as laundry, and ensured that his financial affairs were in order, including paying his water bill. D’s challenge was dismissed as (i) the younger child’s services were more than minimal and amounted to “caring for” her father; (ii) in relation to s11(4), the social worker had to give an acceptable definition to ordinary words used in the statute, acting with reasonable care, but was not required to make enquiries unless the failure to do so was unreasonable in the sense that no competent and careful social worker would fail to make them. The court could order release if, objectively considered and with s11(4) properly construed, the nearest relative was not consulted.

184

Whether a guardianship order could be renewed when the local authority believed that its discharge by a Tribunal was invalid because it was deferred - Bath and North East Somerset Council v AJC [1999] MHLR 184

Points Arising: As a Tribunal order for discharge had not been challenged, it had to be given effect, despite the local authority’s view that it was invalid: the purported renewal was therefore of no effect.

Facts and Outcome: In December 1997, a Mental Health Review Tribunal discharged AJC from guardianship, purportedly deferring it until March 1998 to allow other support services to be put in place. The local authority, taking the position that there was no power to defer the discharge of a guardianship order, treated it as continuing and purported to renew it. In a challenge to this by judicial review, it was declared that that there was an order from a Tribunal that had not been challenged and so could not be ignored; but the case was adjourned to allow consideration by the local authority as to whether a fresh guardianship order could be made and, if so, for AJC to determine whether to challenge that.

186

Control over Patients – Implicit Powers – Whether Power to Prevent Publication of Book by Patient - Broadmoor Hospital Authority & Another v R [1999] MHLR 186 CA

Points Arising: A High Secure hospital has a duty to treat patients, maintain security and provide a therapeutic environment; and implicit rights and powers to secure these objectives, including seeking to control events outside the hospital that might impact upon its duties.

Facts and Outcome: R, a patient in a high secure hospital, wrote a book relating to his offence (a homicide), including the justification for it, and gave some details about other patients, their offences and some medical information. The care team was concerned that publication of the book would undermine R’s mental state, cause distress to the family of his victim and the other patients mentioned (who would recognise themselves from the information provided) and might expose R to the risk of assault. The Court of Appeal held, by a majority, that the high secure hospitals had, as part of the duty to treat patients, maintain security and provide a therapeutic environment, certain implicit statutory rights or powers, including the power to seek to restrain activity taking place outside the hospital which is having a sufficiently significant impact on the hospital’s duties, including security or the treatment of a patient (though that would not extend to protecting the privacy of other patients). (Morritt LJ dissented, holding that a power to restrain a fundamental right such as the freedom of speech of R required an express statutory provision.) However, as the test for an injunction was not made out, the High Court judge’s decision to lift an ex parte injunction was upheld: the factors included the lack of evidence that the hospital’s powers would be prejudiced.

195

Original nature of Tribunal jurisdiction; nature of illness and probability of relapse; need to consider admission criteria - R v London South and South West Region MHRT ex p Moyle [1999] MHLR 195 Admin Ct

Points Arising: A Tribunal is not acting in an appellate or review jurisdiction, but exercising an original jurisdiction in which it forms an evaluative judgment as to whether the criteria for discharge are made out; as such, it may disagree with the evidence in front of it. When the illness is one that will relapse in the absence of medication, the appropriateness of liability to detention depends on an assessment of the probability of relapse in the near future. (At the time, the test for discharge placed the burden of proof on the patient and so the patient had to show that there was no probability of relapse to demonstrate that the nature of the illness did not justify detention; it was also held that the admission criteria had to be considered, but in the context of the burden of proof being reversed. Its conclusion that the admission criteria were not relevant meant that there was an error of law that led to the decision being quashed.)

Facts and outcome: M was a restricted patient whose illness was controlled by medication; the psychiatric evidence was that his condition would not lead to him being detained afresh, but that he would relapse if he did not take his medication and pose a danger to himself or others. The tribunal rejected a submission that the criteria for admission and discharge mirror each other in relation to mental illness, and that accordingly M should be discharged as he did not meet the former. (It also concluded that, as it did not accept M’s assurances that he would continue to comply with medication in the community, they were not satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained.) In judicial review proceedings, M argued that (i) as the tribunal was a reviewing body it was bound to discharge as the criteria for admission were not met; and (ii) it failed to direct itself that the admission and discharge criteria mirrored each other. The Court held that, although the tribunal has an original jurisdiction rather than a reviewing one and so may disagree with the evidence in front of it, it has to apply the same criteria as for admission (subject, at the time, to a reversed burden of proof). The decision was quashed as the tribunal had misdirected itself in law.

The criteria for admission into hospital under s3 of the Act require mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital (with the requirement of treatability in relation to psychopathic order or mental impairment) and it is necessary for the health or safety of the patient or the protection of other persons that the patient receive such treatment, and it cannot be provided unless the patient is detained; under s37, the nature or degree test is the same and the court must find it the most suitable disposal of the case. The Tribunal must order a discharge if the patient is not suffering from a mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained to receive medical treatment in a hospital; or if treatment is not necessary for the health or safety of the patient or the protection of other persons that the patient receive such treatment

The Tribunal’s decision as to the lawfulness of detention does not involve the exercise of a reviewing or appellate jurisdiction, but an original jurisdiction, with the Tribunal reaching its own conclusion as to whether or not the criteria for discharge are met. This involves the application of the same criteria in relation to admission, but the burden of proof is reversed for the purposes of consideration of discharge.

The original nature of the Tribunal’s jurisdiction means that it may disagree with the evidence in front of it: it is not bound by the opinions of those who give evidence. On the facts, the Tribunal determined, from its own assessment of the risk of M failing to comply with medication, that it could not be satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained in hospital for medical treatment, nor that it was not necessary for the health or safety of M or the protection of other persons that he should receive such treatment. As such, it differed from the psychiatrists who gave evidence as to the risk posed by M and the value judgment as to whether it was appropriate for him to be detained, which was its entitlement.

M’s illness being one which will relapse in the absence of medication, the appropriateness of him being liable to be detained depends on an assessment of the probability that he will relapse in the near future if he were in the community, in the context of the reversed burden of proof. If the Tribunal is not satisfied that there is no probability of relapse in the near future, it is unlikely to conclude in favour of release in light of the nature of the illness.

However, in reaching its judgment, the Tribunal had expressly directed itself that the criteria for admission and discharge do not mirror each other; as such, it had erred in law. In addition, it did not deal adequately with the question of whether or not it was necessary for the health or safety of M or the protection of other persons that he should receive hospital treatment; this is a separate question and the test of “necessity” is different from the test of “appropriateness”: the statute requires that both issues be resolved.

Consequently, the decision was quashed and the matter remitted to the Tribunal for re-consideration in the light of the ruling.

204

Reclassification - whether obligatory for Tribunal to delete reference to form of disorder in remission - R v Anglia and Oxfordshire MHRT ex p Hagan [1999] MHLR 204 CA

Points arising: In relation to the powers as to classification and reclassification of categories of mental disorder that existed under the MHA 1983 before its amendment by the MHA 2007, the question to be asked as to the use of the power was whether the patient had a mental disorder in a particular category (even if it was in remission) not whether that mental disorder was such as to justify detention. Accordingly, a Tribunal was not required to reclassify a patient who had been detained on the basis of 2 forms of disorder as being detained only under 1 form when the other was in remission and would not justify detention.

Facts and outcome: H was detained in 1995 under ss37/41 MHA 1983, classified as suffering from mental illness and psychopathic disorder. He challenged by judicial review a decision of a tribunal not to reclassify him as suffering only from psychopathic disorder in light of its conclusion that the mental illness was in remission and would not justify his detention if it stood alone. Collins J quashed the decision (2 December 1998, [1999] COD 151), holding that as the purpose of classification was to show the basis for detention and the form of disorder in relation to which compulsory powers could be used, the current medical situation should be reflected. However, the Court of Appeal allowed the tribunal’s appeal, holding that (i) the civil provisions (in s16 of the Act) do not require action if the patient still suffers from a form of disorder in remission, (ii) s72(5) should be construed so that it does not impose a different regime on those detained under the criminal provisions of the Act. (iii) Further, since conditions could not be imposed on a conditionally discharged patient in relation to a form of disorder which had been removed under s72(5), the section ought to be construed as giving the tribunal a discretion not to delete a mental disorder from which a patient still suffers where deletion might frustrate their powers in relation to conditional discharge in the future. Accordingly, reclassification relates to whether the patient suffers from a particular mental disorder; not to whether he is detainable for that mental disorder if it stood alone. Hence, the appeal was allowed.

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