MHLR 2016

The following cases contain extracts from this page:

These summaries have been supplied by Kris Gledhill, Editor of the Mental Health Law Reports.

1

Whether restrictions under a Terrorism Prevention and Investigation Measure breached Art 3 ECHR in light of their impact on the mental health of the subject - DD v Home Secretary (Preliminary Hearing) [2016] MHLR 1; DD v Home Secretary (Full Hearing) [2016] MHLR 1

Points Arising: The more grave the impact of a measure on the mental health of the person subject to it, the more compelling must be its need; this need was to be reviewed by the court on a proportionality rather than irrationality test; whilst there would be deference to the views of the Home Secretary, the court might be better informed through evidence and cross-examination of relevant material.

The impact of a measure had to reach a certain level of severity to breach Art 3 ECHR, and go beyond the inevitable suffering of a legitimate measure, but if it did so, it would become illegal and could not be excused by the perceived need for the measure. The impact of a measure might be greater in light of the vulnerability of a person; where the person’s state of health was affected, account would be taken of any care offered.

Facts and Outcome: The Administrative Court ruled that requiring an electronic tag to be worn by DD, an imam, as part of a Terrorism Prevention and Investigation Measure (under the Terrorism Prevention and Investigation Act 2011) was illegal in light of the mental health of DD: in short, he had delusional thoughts that it contained a bomb and its impact on his mental health was such that it breached Art 3. It was also noted that his deteriorating mental health reduced the risk of engagement in risky behaviour because he was less likely to be asked to preach. It was also determined that restricting his family from using telephones and accessing the internet was disproportionate because of the lack of evidence that they would facilitate any wrongdoing by DD. The TPIM and various other restrictions remained in place. (Changed medical evidence and the ability to challenge the necessity of the measures meant that there was a different outcome at the full hearing than at the preliminary hearing, at which the need for the measures had been assumed.)

33

Whether the jury had been entitled to reject uncontested expert evidence that a killing occurred in circumstances of diminished responsibility - R v Michael James Brennan (Conviction) – [2016] MHLR 33

Points Arising: Since juries had to base their conclusions on evidence, they should be directed to accept unequivocal and uncontradicted evidence of diminished responsibility: only if there was a rational and proper basis for rejecting such evidence should the matter be left to the jury.

The statutory test for diminished responsibility contained in the Coroners and Justice Act 2009 was less of a broadly-phrased value judgment and more of a tightly-structured test involving 4 issues: (i) did the defendant have an abnormality of mental functioning; (ii) did it arise from a recognised medical condition; (iii) did it substantially impair his or her ability to understand the nature of his conduct, form a rational judgment, or to exercise self-control (or any combination); and (iv) did it provide an explanation for his or her conduct? As this more properly reflected medical science, it enhanced the importance of expert evidence.

Since an expert was allowed to comment on whether there was an impairment, he or she could also indicate whether it was a substantial impairment, even though that was the ultimate question in the case.

The prosecution should rely on their own expert evidence if they disagreed with defence expert evidence; and it would be unusual to seek a murder conviction in the face of reliable evidence of diminished responsibility.

Facts and Outcome: The Court of Appeal quashed a murder conviction and substituted one for manslaughter on the grounds of diminished responsibility. The only medical evidence called (for the defence) supported this conclusion (the prosecution not contesting it, having obtained their own expert evidence to the same effect), but the judge wrongly directed the jury that they could reject the evidence if they attached more weight to other aspects of the defendant’s behaviour that appeared to be normal.

45

The appropriate sentence for a defendant who was convicted of manslaughter on the grounds of diminished responsibility whose mental health had responded to treatment such that a hospital disposal was not appropriate; recommended licence conditions - R v Michael James Brennan (Sentence) – [2016] MHLR 45

Facts and Outcome: MJB was convicted of murder even though the unchallenged expert evidence supported the partial defence of diminished responsibility. On appeal, the Court of Appeal ([2016] MHLR 32) substituted a conviction for manslaughter and adjourned the matter for additional reports to be prepared for sentencing. Medical evidence was to the effect that he had progressed well under a treatment regime in prison, and did not require treatment in hospital; and that his progress in treatment, including his insight into the need for it, suggested that the risk he posed was low. The level of risk meant that a life sentence was not required. The various factors relevant to the length of the determinate sentence – the planning and savagery of the attack (albeit the product of mental disorder), the involvement of drugs and alcohol, the defenceless victim, the fact of a killing; and, on the other hand, the youth and lack of previous convictions - suggested that 23 years’ imprisonment was appropriate. In light of the entering of a guilty plea at the first available opportunity, this became 15 years.

49

When on a trial of the facts of a defendant found unfit to stand trial there could be investigation of the state of mind of the defendant on the basis of objective evidence; what counted as objective evidence; whether correct rulings had been made on severance and the admissibility of evidence - Marc Martin Wells, Sarfraz Masud, Susan Hone, Tony Nicholas Alan Kail v R – [2016] MHLR 49

Points Arising: The trial of the facts process involved a balance to allow public protection from those who committed criminal acts but could not be found criminally responsible.

If the incapacity that required a trial of the facts rather than a criminal trial was present at the time of the incident, material from the defendant was to be left out of account; accordingly, although mens rea issues were not relevant but issues relating to the state of mind might be because criminality might require a particular purpose or be avoided if there was self-defence, accident or mistake, there was a need for objective evidence of such matters, such as independent eye-witnesses, CCTV, expert forensic evidence, the antecedents of the complainants, or statements of the defendant before the loss of capacity.

Facts and Outcome: Various defendants found unfit to stand trial challenged findings that they committed the acts: (i) MMW contended on arrest that a killing occurred in self-defence, and he had minor injuries, but the judge had ruled that there was insufficient objective evidence to allow the issue to be considered, and MMW was found to have committed the act of murder; as the only proper evidence of self-defence was his account on arrest and he was incapacitated at the time, it was rightly excluded.

(ii) SM argued that the judge had been wrong to allow into evidence a previous conviction for sexual assault involving a child in the trial of the facts of an attempted indecent assault of a teenage girl and an assault of the girl and her mother, in part because he could not explain its circumstances and also because it was not sufficient to establish propensity and was more prejudicial than probative; as a single incident could reveal a propensity, it was open to the judge to find the admission of the previous conviction was not unfair, given the purpose of the trial of the facts.

(iii) SH was found on party liability grounds to have committed the acts of 2 sexual assaults committed by her co-defendant (who was also convicted of rape), and contended that the trial of the facts should have been severed from the trial of her co-defendant, that her account that the co-defendant had raped her should have been allowed into evidence, and that the judge had inadequately directed the jury on party liability; it was held that the joinder was not unfair, that the allegation of rape by the co-defendant was not relevant to the trial, and that there was no need to inquire into the state of mind of the secondary party in the trial of the facts.

(iv) TNAK contended that evidence going to whether he had a reasonable belief in consent should have been allowed into evidence in relation to a sexual assault; as this was a mens rea matter, it was not part of the trial of the facts.

60

Whether a restraining order under the Protection from Harassment Act 1997 could be made following a finding that the defendant who was unfit to stand trial committed the act alleged; correcting a supervision order that named a doctor and not a local authority - R v Harold Chinegwundoh [2016] MHLR 60

Points Arising: A supervision order made after a finding that an unfit defendant committed the acts has to name the relevant local authority as the supervisor (Sched 1A Criminal Procedure (Insanity) Act 1964), not an identified psychiatrist.

A restraining order under the Protection from Harassment Act 1997 requires a conviction or, in certain circumstances, an acquittal, and so cannot be made following a finding of committing the acts.

Facts and Outcome: Findings of using a false instrument and fraud arising from HC’s delusional belief that he had a right to place a charge over a particular property in light of a debt owed were upheld; but a supervision order requiring him to attend hospital for treatment under a named psychiatrist was corrected to name the local authority; and a restraining order under the Protection from Harassment Act 1997 to prevent him having any contact with the owners of the property involved was set aside because of the lack of a power to make it.

63

Whether a judge had incorrectly refused to admit evidence in a trial of the facts of a defendant found unfit to stand trial - R v Altaf Ahmed – [2016] MHLR 63

Point Arising: The need to protect the rights of persons who were unfit to stand trial did not change the rules as to the admissibility of evidence.

Facts and Outcome: An application for permission to appeal against a finding that AA committed the acts of 2 sexual assaults on the same young victim was dismissed. The issue was whether evidence of arguably sexual conduct in school by the victim a few days before the incident leading to the charges should have been admitted: the Court of Appeal determined that the evidence in question was insufficiently probative and so the trial judge had been correct.

65

Whether leave to appeal findings of unfitness to stand trial and that the acts were committed should be granted; the lack of a power to remit for trial if no restriction order is made; the correct approach to a change in circumstances when an indefinite Sexual Offences Prevention Order has been made - R v S – [2016] MHLR 65

Points Arising: If a defendant found unfit to stand trial is found to have committed the acts and is made subject to a hospital order without a restriction order, the matter cannot be remitted for trial on the defendant becoming fit to stand trial.

Facts and Outcome: After S’s conviction for rape and indecent assault was quashed on appeal, he was found unfit to stand trial but to have committed the acts, and made subject to a hospital order and an indefinite Sexual Offences Prevention Order. He sought to challenge the finding in light of evidence that he was fit to stand trial, and that the victim – his wife – had withdrawn the allegations; and he sought to challenge the indefinite length of the SOPO in light of its impact on his obligation to register on the sex offender register indefinitely rather than for 7 years, as is the case for someone made subject to a hospital order. The application was dismissed because the retraction statement had been before the court determining the facts, remittal was not possible in light of the sentence, and the proper route in relation to the SOPO was to apply to the Crown Court to vary its terms in view of the changed circumstances.

66

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 – [2016] 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 public, including through the regime available on release, bearing in mind such matters as risk not arising from mental disorder.

(iii) Although an interim hospital order would enable a much better assessment, such orders increased the pressure on the limited number of secure beds, involved the costs of bringing cases back to court, and prevented closure for the victim, and so should be discouraged.

(iv) Those with a personality disorder were less likely to be suitable for a hospital disposal unless they also had a mental illness or brain damage, since (a) a mental illness was more likely to have a direct bearing on culpability and more likely to benefit from treatment, (b) there was the risk of a patient being untreatable but un-releasable from hospital and (c) treatment for personality disorder was available in prison.

(v) Whilst prisoners with a psychotic illness can be transferred to hospital under, there are the risks of relapse on their return to prison and the supervision on release is likely to be less robust than that available for those conditionally discharged under the mental health legislation.

(vi) The statutory modification to the hybrid order, which made it more widely available, meant that it was to be preferred (though was limited to those 21 or over at the time of conviction); only if it was not appropriate should a hospital order be considered.

Facts and Outcome: (i) Vowles. A sentence of imprisonment for public protection was upheld in relation to an aggravated arson committed by a woman diagnosed with a personality disorder who had several previous admissions to hospital and had just discharged herself before the offence; she had been transferred to hospital from prison. The Court relied on the nature of her mental disorder, her culpability, the need for punishment and the risk to the public. (There was a separate challenge to delays in Parole Board hearings: but it was determined that there was no breach of Art 5(4) ECHR.)

(ii) Barnes. A sentence of imprisonment for public protection was upheld in relation to a robbery committed to fund heroin use by a man diagnosed with depression who had several previous convictions; he had been transferred to hospital from prison, found to have a learning disability and a dissocial personality disorder. The Court relied in particular on the role of heroin addiction in the offending, which made a hospital disposal inappropriate.

(iii) Coleman. A sentence of imprisonment for public protection was quashed, and orders made under ss37 and 41 of the 1983 Act, on the basis of fresh evidence that she had schizophrenia at the time of the index offence of attempted robbery (which had not been diagnosed at the time of sentence, the evidence then suggesting just a personality disorder); she had been transferred to hospital, and the evidence was that her condition could not be managed in prison and that any release into the community would be better managed under a conditional discharge than parole.

(iv) Odiowei. A sentence of custody for life was quashed and replaced by orders made under ss37/41 in relation to an offence of wounding with intent by a man who had been transferred from prison to hospital and subsequently diagnosed to have schizophrenia, which would have been present at the time of the offence. The Court noted that the offence was caused by the mental illness, that it was treatable, and that the public would be better protected by the use of the 1983 Act.

(v) Irving. A sentence of life imprisonment was upheld in relation to a man with a learning disability who had committed several arsons and made threats to kill. He had been transferred to hospital. The Court noted that although the evidence indicated that the extent of the learning disability had been underestimated at the time of sentence and the hospital placement was proper, there was no clear causal link between the disability and the offending.

(vi) McDougall. A sentence of imprisonment for public protection was quashed, and orders made under ss37 and 41 of the 1983 Act, in relation to an offence of wounding with intent. Evidence from the time of sentence suggested a possibly psychotic illness as well as a personality disorder, which was now confirmed after a transfer to hospital. The Court noted a strong causal connection between the illness and the offence, that it was treatable, and that there would be better public protection from the use of the 1983 Act.

98

The impact of mental disorder on an arguably unduly lenient sentence for sexual offending - Attorney-General’s Reference No 122 of 2014 (Digest) – [2016] MHLR 98

Facts and Outcome: The Courts Martial Appeal Court granted leave to hear a reference of a sentence for sexual assault by digital penetration as unduly lenient (under s273 Armed Forces Act 2003) but dismissed it on the basis that, whilst the Court Martial had taken an erroneous approach, fresh psychiatric evidence indicated that the defendant had an anxiety/depression order, that mental health problems were linked to her offending, and that her mental health would deteriorate if her custodial sentence was extended.

100

Whether matters against a juvenile who was unfit to stand trial should have been committed for trial in the Crown Court - R (P) v Derby Youth Court – [2016] MHLR 100

Facts and Outcome: The committal to the Crown Court of a young offender was quashed, largely because of evidence that he was unfit to stand trial: this meant that he could not be given the sentence of 2 years or more (the availability of such a sentence being the prerequisite of the committal), and in turn the Youth Court could deal with the matter under s37(3) Mental Health Act 1983.

Whether a hospital order was the most suitable disposal rather than a suspended sentence of imprisonment - R v Darren Marshall – [2016] MHLR 102

Facts and Outcome: The Court of Appeal dismissed a challenge to the imposition of a hospital order rather than a suspended sentence of imprisonment for involvement in a violent disorder after a football match on the part of a man with a learning disability. It was determined that the seriousness of the offence had made an immediate custodial sentence appropriate, that the identified risk and likely non-compliance with treatment meant that suspension was not suitable, and that it had been open to the judge to conclude that a hospital order was the most suitable disposal (even though it might involve a treatment programme of some 4-5 years).

104

Whether a sentence of life imprisonment plus a hospital and limitation direction under s45A Mental Health Act 1983 should be replaced by orders under ss37/41 of the 1983 Act - R v Fausto Graciano – [2016] MHLR 104

Points Arising: The approach to the imposition of a hospital order now involved assessing not just the medical evidence but also wider features such as the culpability of the offender and the need to protect the public from future harm.

Facts and Outcome: FG’s killing of his employer was accepted to amount to manslaughter on the grounds of diminished responsibility; although 3 psychiatrists recommended a hospital order with a restriction order, under ss37/41 Mental Health Act 1983, the judge imposed life imprisonment with a minimum term of 7½ years, and added hospital and limitation directions under s45A of the 1983 Act, citing the gravity of the offence, the elements of rationality meaning that mental disorder had not overwhelmed him, the different release regimes and the need for public confidence in the sentence. The Court of Appeal held that this did not involve an error of principle, noting that his responsibility was not extinguished, as it would have been on a finding of insanity.

108

Whether detention in hospital based on evidence that was not current breached Art 5 ECHR - Yaikov v Russia – [2016] MHLR 108

Points Arising: Detention in hospital on the basis of a psychiatric report from 18 months prior to detention breached Art 5(1)(e), since avoiding arbitrariness means that the criteria for detention – a persisting mental disorder of a nature or degree to warrant detention – have to be shown reliably to exist at the time of detention.

Facts and Outcome: In September 2003, Mr Yaikov was detained on suspicion of murder; in September 2008, he was found to have been insane at the time of the offending and treatment in a specialist institution was ordered (which was upheld on appeal). During part of the time, from January 2006 to the end of that year, he was detained in a hospital on the basis of court orders that rested on a medical report from July 2004 as to his mental state; the criminal investigation was suspended during this period, and so detention was based on Art 5(1)(e). The use of out of date medical evidence meant that there was a breach of Art 5(1), for which just satisfaction of €10,000 was awarded. A separate claim that Art 6 was breached was dismissed on the basis that the complexity of the issues and the conduct of the parties meant that the total length of the proceedings, 5 years and 3 months, was not unreasonable.

117

Whether the judge had erred in concluding that a man with schizophrenia who set fire to himself was not liable in tort to a rescuer because his conduct was driven by his illness - Terry Dunnage v Kathleen Bernadette Randall and UK Insurance Ltd – [2016] MHLR 117

Points Arising: Short of having no responsibility for conduct, such as through automatism, the standard of care arising in negligence was objective and was not reduced by mental of physical disorders. It might be different if a specific mental state was required (such as in various intentional torts). The M’Naghten Rules did not apply.

Facts and Outcome: Mr Dunnage was seriously burned when he tried to intervene as his uncle, who had schizophrenia, set himself on fire. The uncle died. The trial judge had ruled that as the uncle’s actions were involuntary in light of mental disorder, there was no liability in negligence. Overturning this, the Court of Appeal held that the uncle owed a duty of care and that the standard of care was that of an ordinary person, and it was not reduced by reason of mental disorder; and that he had breached his duty of care (and so had accidentally caused injuries, which meant it was covered by an insurance policy).

136

Whether a custodial sentence together with a hospital direction under s45A Mental Health Act 1983 was proper when the medical evidence supported orders under ss37/41 of the 1983 Act in light, inter alia, of evidence that the offending would not have happened but for the mental disorder and that the defendant’s mental health would deteriorate if he was transferred to prison - R v Stefan Martens – [2016] MHLR 136

Points Arising: Since there had to be reasons to depart from a penal sentence, and a hospital order required that it be the most suitable disposal (which involved weighing the need for treatment, the role of mental disorder in the offending, the need for punishment and the need to protect the public), a hybrid order under s45A Mental Health Act 1983 should be the first option if mental disorder was implicated in the offending and the criteria for treatment in hospital were present.

The relevant authorities can be required to ensure that the conditions on release from a prison sentence match those available on a conditional discharge.

Facts and Outcome: A custodial sentence of 14 years combined with a hospital and limitation direction under s45A Mental Health Act 1983 was upheld in the case of a man who was convicted of attempting to murder his elderly father, even though doctors had recommended orders under ss37/41 because the offending was clearly caused by mental disorder (and he was waiting for a package of care to be formulated at the time of the attack) and it might deteriorate in custody. The sentence was found to be proper, and it was noted that the authorities had duties to care for mental health in prison and to ensure suitable conditions on release.

142

Whether a conviction was unsafe because the defendant’s conferences at court with his lawyers had been conducted in the presence of nursing staff in light of the risk he posed to himself and others, thereby breaching legal professional privilege - R v Edward Brown (formerly Latham) – [2016] MHLR 142

Points Arising: A further exception to legal professional privilege was that it could not be used for the purpose of self-harm or harming others

Facts and Outcome: In dismissing an appeal against conviction, the Court of Appeal upheld as proportionate the decision of the trial judge to require that the defendant be handcuffed to 2 nurses when having conferences with his counsel at trial because of the risk of self-harm or harm to others. This illustrated the need to recognise a further exception to legal professional privilege; it was supported by the duty to protect life under Art 2 ECHR and the fact that there were recognised exceptions to confidentiality of communications with lawyers that did not render a trial in breach of Art 6.

152

Whether a care plan for a patient with dementia included treatment for mental disorder; whether reasons given by a Tribunal were adequate - BG v Mental Health Tribunal for Scotland and Mark Mcilwraith, Mental Health Officer – [2016] MHLR 152

Points Arising: Specialist nursing care designed to alleviate the symptoms and effects of dementia amounted to medical treatment for mental disorder under the Mental Health (Care and Treatment) (Scotland) Act 2003.

Tribunals must find facts and answer questions of law; elaborate expositions are not required and reasons are not inadequate because more could have been said.

Facts and Outcome: The Inner House of the Court of Session, in upholding a Tribunal decision to place JG under a treatment order in light of her dementia, finding that her son could not meet her needs, noted that the care plan included specialist nursing care designed to alleviate the symptoms and effects of JG’s dementia, which amounted to medical treatment, and that the Tribunal explained the basis for its decision.

159

Whether a decision by Tribunal staff to allow a patient to withdraw his application was defective; whether a decision by a Tribunal judge to set aside the decision of the staff member was defective - Case No HM/0339/2015 – [2016] MHLR 159

Points Arising: A withdrawal application may be accepted by a member of staff, acting pursuant to a practice statement issued under the Tribunal Procedure Rules 2008, if the member of staff has no reason not to consent: the focus is on what is known by the staff member. There is no requirement to consult the Judge presiding at the hearing.

If a Tribunal judge sets aside a decision under r45 TPR 2008, the procedural irregularity should be identified, then consideration given to whether the interests of justice require the decision to be set aside, and if so the decision re-made.

Facts and Outcome: The Upper Tribunal restored the decision of a member of Tribunal staff to allow a patient to withdraw his part-heard application to a Tribunal. A Tribunal judge had set this aside in light of the failure of the staff member to consult to judge presiding at the hearing, the fact that the hearing was part-heard and the case had already taken a disproportionate time, and there was no evidence that the patient would accept medication (which had been mentioned in the application to withdraw). This was set aside as non-compliant with r45 TPR 2008, and it was found that the original decision was proper in light of what was known to the staff member. The result was that the Tribunal had been without jurisdiction when it continued with the hearing.

164

The ordinary residence of an adult without capacity who had been accommodated in specialist foster care during his childhood - R (Cornwall Council) v Secretary of State for Health; R (Cornwall Council) v Somerset County Council – [2016] MHLR 164

Points Arising: Decisions by the Secretary of State as to the “ordinary residence” of a person accommodated under the National Assistance Act 1948 involve factual judgements and so can be challenged on traditional judicial review grounds.

The ordinary residence of an adult without capacity who had been accommodated in specialist foster care during his childhood does not turn on the residence of the person’s parents, and is to be does not turn on where the person is placed.

Facts and Outcome: From the age of 4, PH was placed in foster care in light of his severe physical and learning disabilities. He lived in Wiltshire with his parents at the time of his placement, which was in South Gloucestershire (paid for by Wiltshire) and was made under the Children Act 1989. When PH became an adult, specialist accommodation in Somerset was arranged for him, and the question was which local authority was responsible. PH’s parents, who remained involved were by then in Cornwall: the Secretary of State determined that PH’ base remained with his parents and so Cornwall was responsible. The Court of Appeal ruled that South Gloucestershire was responsible. The Supreme Court determined that as the placement in South Gloucestershire was by virtue of the Children Act 1989, it did not change his ordinary residence; that his residence was not that of his parents but of the local authority that made decisions, which remained Wiltshire.

178

Whether a Tribunal was correct not to consider whether the conditions of a Community Treatment Order breached Art 5 ECHR; the role of arguments under the ECHR in Tribunal proceedings - PJ v (1) A Local Health Board (2) The Welsh Ministers (3) The Health Department – [2016] MHLR 178

Points Arising: A deprivation of liberty involves an objective element, turning on the level of supervision and control and whether the person was free to leave; the purpose of conditions is irrelevant. It also involves a subjective lack of consent, which required an assessment of capacity; consent did not arise from a lack of objection.

A Tribunal could not just consider the criteria under the Mental Health Act 1983 or rely on habeas corpus or judicial review. It was the body designed to comply with Art 5(4) ECHR and so had also to consider whether the factual situation breached human rights standards, including whether an order reflected the least restrictive option, whether conditions amounted to an unlawful deprivation of liberty, whether any medical treatment was lawful (without which it would not be available for the purposes of the statute), and could use its discretion if the statutory criteria were met (or adjourn if arrangements could be made to secure lawfulness – eg through changing the CTO conditions or securing an authorisation under the Mental Capacity Act 2005 in the case of a person without capacity).

Facts and Outcome: Charles J, in the Upper Tribunal, found that a Tribunal had erred in law in the case of PJ, who had a learning disability and autism. He objected to a Community Treatment Order on the basis that there was an unlawful deprivation of liberty, such that the Tribunal should exercise its discretion to discharge. The Tribunal finding that there were restrictions on rather than a deprivation of liberty was in error: it had not considered all the relevant aspects of the objective aspect of a deprivation of liberty. The Tribunal had also erred in concluding that the value of the CTO framework outweighed any human rights issues,

Guidance: A Tribunal should consider if conditions objectively deprive someone of their liberty; if it may, it should consider capacity to consent (or adjourn to have that matter determined by the Court of Protection); if there is capacity and consent, does this avoid a breach of Art 5; if there is no capacity to consent, can an appropriate authorisation or order be made under the Mental Capacity Act 2005; the impact of s64D Mental Health Act 1983 should be considered in case it makes it unnecessary to make use of the 2005 Act.

198

Whether a restricted patient with capacity could consent to a conditional discharge that involved a deprivation of liberty - MM v (1) WL Clinic and (2) MHU – [2016] MHLR 198

Points Arising: Orders under the Mental Health Act 1983 authorise detention in hospital; a person with capacity could consent to detention outside hospital, and so that could be the outcome of a conditional discharge if consent was given.

Facts and Outcome: MM sought a conditional discharge on the basis of conditions which would involve a deprivation of liberty: but the Tribunal concluded that the consent was not genuine and in any event it could not discharge to a position that was detention. Charles J, in the Upper Tribunal, remitted the matter, finding that the Tribunal had made an error in the legal position, which affected its conclusion as to consent (which in any event was not supported by reasons).

214

The role of factual findings in relation to risk assessment; whether a Tribunal had made a factual error in reaching conclusions of fact; the adequacy of reasons relating to findings of fact - AM v Partnerships in Care Ltd and Secretary of State for Justice – [2016] MHLR 214

Points Arising: Acts taken into account in a risk assessment must be proved on a balance of probabilities.

Facts and Outcome: In upholding detention rather than granting a conditional discharge, a Tribunal found that AM had been responsible for 2 of 3 rapes alleged against him (which had not led to charges or convictions) and so presented a risk of sexual violence that required assessment and treatment. This was quashed and remitted by the Upper Tribunal on the basis of errors of fact as to the forensic evidence in support of the allegations and the lack of reasoning.

219

Whether the oral medical evidence necessary before a restriction order under s41 Mental Health Act 1983 was imposed could be given by telephone; whether the restriction order was necessary - R v Luke Clark – [2016] MHLR 219

Points Arising: Medical evidence at a hearing as to whether to impose a restriction order could not be unsworn evidence given by telephone.

Facts and Outcome: A restriction order was set aside on the basis that the oral evidence at the hearing had been given by telephone, which was not permitted by s51 Criminal Justice Act 2003. On considering the matter afresh, the Court of Appeal decided that the restriction order was not needed.

223

Whether there was an unlawful failure by the authorities to provide low secure mental health facilities so that the needs of the claimant would not involve her placement a significant distance away from her home - R (Claire Dyer) (by her mother and litigation friend Catherine Dyer) v (1) The Welsh Ministers, (2) Abertawe Bro Morgannwg, University Health Board, (3) Welsh Health Specialised Services Committee – [2016] MHLR 223

Points Arising: The duty as to service provision under the National Health Service (Wales) Act 2006 was a general duty in public law and did not give rise to an individual entitlement to a particular level of service provision.

Facts and Outcome: The High Court dismissed a claim which centred on the lack of local provision in Wales for a woman whose complex needs had led to her being placed in Brighton: it was determined that the statutory regime was not suitable to create an individual entitlement to service provision and that no public law duties had been breached in relation to collating data as to service provision or in making service provision decisions.

245

Whether a Tribunal decision should be quashed on the basis that the appropriate treatment test was not met; which hospital had to be considered for the purposes of that test; the adequacy of the Tribunal’s reasons - WH v Llanarth Court Hospital (Partnerships in Care) – [2016] MHLR 245

Points Arising: The appropriate treatment test involved assessing what was available at the detaining hospital rather than what might be available elsewhere.

The named nurse of the patient should provide the nursing report to the Tribunal and, if possible, attend the hearing. Reports from the detaining authority should address the criteria for detention.

Facts and Outcome: A Tribunal decision to uphold detention on the basis that appropriate treatment was available at a different rehabilitation hospital was set aside by the Upper Tribunal on the basis that considering that was an error of law, and also that there were inadequate reasons. (It was also commented that the conclusion that there was no appropriate treatment at the detaining hospital was questionable.)