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Mental Health Law Online

The internet resource on mental health law, and mental capacity law, for England & Wales. From April 2006 to September 2010 this website was called Wiki Mental Health. You can read a review of the site here.

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  • 23/02/17 (4): Upper Tribunal capacity case. PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity."
  • 23/02/17 (3): Northern Irish best interests/DOL case. Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 61 — "This case relates to an elderly lady, NS. She has been represented by the Official Solicitor (OS) throughout these proceedings. ... The case therefore first came to court when the Trust sought to place NS in a residential facility after the hospital admission in May 2016. This was at a time when a stay in hospital was no longer required. The issue in the case was really whether NS should be discharged to a residential facility or to the care of MS with a care package. ... This case therefore involves consideration of a number of questions which I summarise as follows: (i) Is the patient incapable of making a decision regarding the particular issue put before the court? (ii) If so is the plan/treatment proposed in the best interests of the patient? (iii) Is the intervention necessary and proportionate pursuant to Article 8 of the ECHR? (iv) If the plan involves a deprivation of liberty under Article 5 of the ECHR should that be authorised by the court and if so under what terms regarding duration and review?"
  • 23/02/17 (2): Northern Irish DOL case. Belfast Health and Social Care Trust v PT [2017] NIFam 1, [2017] MHLO 7 — "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ..→

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