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Drilldown: Cases

So far 270 cases have been added to the database, out of 2095 total cases on the website. To see the full list of cases go to the Mental health case law page.

The relevant pages (and summaries) are displayed at the bottom of this page.

Cases > Subject : After-care or Bias or Deputyship cases or LPA cases - all or Upper Tribunal decisions

Use the filters below to narrow your results.

Parties:
A (1) · Abertawe Bro Morgannwg University Health Board (1) · ABM University Health Board (1) · ACC (1) · AD'A (1) · AG (1) · An NHS Trust (1) · AR (2) · B (1) · Birmingham and Solihull Mental Health NHS Trust (1) · BP (1) · British Heart Foundation (1) · C Partnership NHS Foundation Trust (1) · Camden and Islington NHS Foundation Trust (1) · Central and North West London NHS Foundation Trust (1) · Central Bedfordshire Council (2) · CG (1) · CM (1) · Cornwall Partnership NHS Foundation Trust (2) · CW (1) · CXF (2) · Cygnet Behavioural Health Ltd (1) · DA (2) · Damien Tinsley (2) · Derbyshire Healthcare NHS Foundation Trust (1) · Devon Partnership NHS Trust (2) · DL-H (1) · GT (1) · Gwent Health Authority (1) · HPP (1) · JAA (1) · Jasmin Djaba (3) · JD (1) · JDJ (1) · JG (1) · JMA (1) · JMcG (1) · JR (1) · JS (1) · KC (1) · Kent and Medway NHS and Social Care Partnership Trust (2) · LB (1) · Livewell Southwest CIC (1) · Local Authority (1) · Local Government Association (1) · LW (1) · M (3) · MAB (1) · Manchester City Council (2) · MC (1) · Mental Health Review Tribunal (1) · Midlands Partnership NHS Foundation Trust (1) · Milton Keynes Clinical Commissioning Group (1) · Milton Keynes Council (1) · Mind (1) · MJD (1) · MP (1) · MW (1) · NHS Guilford and Waverley Clinical Commission Group (1) · NKR (1) · North Norfolk CCG (2) · Office of the Public Guardian (1) · Official Solicitor (1) · PAA (1) · PBC (1) · PC1 (1) · PGO (1) · PM (1) · Priory Healthcare Limited (1) · PS (1) · Richards (Kenneth John) (2) · RM (1) · SB (1) · SE (1) · Secretary of State for Justice (9) · Secretary of State for the Home Department (1) · SLL (1) · SM (1) · South London and Maudsley NHS Foundation Trust (2) · South Manchester Clinical Commissioning Group (2) · South Worcestershire Clinical Commissioning Group (2) · St Andrew's Healthcare (2) · Tees Esk and Wear Valleys NHS Foundation Trust (1) · The Public Guardian (2) · The Thomson Snell And Passmore Trust Corporation Ltd (1) · Torfaen County Borough Council (1) · TS (1) · Usha Sood (1) · VS (1) · West London Mental Health NHS Trust (4) · West London NHS Trust (1) · Worcestershire County Council (2) · Z (1)

Showing below up to 41 results in range #1 to #41.

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Page name Sentence Summary
AD'A v Cornwall Partnership NHS Foundation Trust (2020) UKUT 110 (AAC)

Change in status - s3 to guardianship

When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction.

AR v West London NHS Trust (2010) MHLO 49 (UT)

Public hearing and capacity

(1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both both points.

CM v Derbyshire Healthcare NHS Foundation Trust (2011) UKUT 129 (AAC)

Nature and degree

(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests.

DA v Kent and Medway NHS and Social Care Partnership Trust (2019) UKUT 348 (AAC)

Proceeding in absence of solicitor and patient

The tribunal refused to adjourn the case of a CTO patient who had not attended the hearing, then the solicitor left the hearing because she felt unable to represent the patient in those circumstances. (1) The tribunal's initial decision to proceed in the patient's absence referred to rule 39(1) (whether the party had been notified of the hearing or reasonable steps had been taken to notify the party of the hearing, and whether it was in the interests of justice to proceed with the hearing) and rule 39(2)(a) (whether the patient had decided not to attend the hearing or was unable to attend the hearing for reasons of ill health) but not rule 39(2)(b) (whether a rule 34 medical examination of the patient been carried out or was impractical or unnecessary). However, given the assumption that, as an expert tribunal, it will have got the law right, it was more likely than not that the tribunal decided it was impractical to carry out an examination. (2) The tribunal had not considered making an appointment under rule 11(7), but this was unnecessary as there was no indication that the patient had withdrawn her instructions or lacked capacity. (3) When the solicitor departed, it was incumbent upon the tribunal to make a fresh assessment under rule 39(1) as to whether it was in the interests of justice to proceed with the hearing. Its reasons did not mention the departure and it was unlikely that the tribunal had carried out such an assessment; even if it had done so, the lack of any explanation would have rendered the reasons inadequate. (4) The matter was remitted to the First-tier Tribunal for a re-hearing by a differently-constituted panel.

Djaba v West London Mental Health NHS Trust (2017) EWCA Civ 436

ECHR and tribunal criteria

"[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention."

Djaba v West London Mental Health NHS Trust (2018) MHLO 76 (SC)

ECHR and tribunal criteria

On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons.

DL-H v West London MH NHS Trust (2017) UKUT 387 (AAC)

Religious beliefs and tribunal expertise

Judicial summary from Gov.uk website: (1) "In deciding whether a patient is manifesting religious beliefs or mental disorder, a tribunal is entitled to take account of evidence from both religious and medical experts." (2) "A tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision."

JD v West London Mental Health NHS Trust (2016) UKUT 496 (AAC)

ECHR and tribunal criteria

"The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. ... The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015. ... What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf. On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue: 'to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'"

JG v Kent and Medway NHS and Social Care Partnership Trust (2019) UKUT 187 (AAC)

Non-legal research by judge

Judicial summary from gov.uk website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair."

JMcG v Devon Partnership NHS Trust (2017) UKUT 348 (AAC), (2017) MHLO 28

Deferred discharge beyond current authority for detention

The Upper Tribunal stated (probably wrongly) that the date of a deferred discharge cannot exceed the date of the order authorising detention. This was only obiter and seems to have been based on the false premise that a deferred discharge beyond the date on which the authority for the patient’s detention expires would have the effect of extending the period of detention.

JS v SLAM NHS Foundation Trust (2019) UKUT 172 (AAC)

Reinstatement

(1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties."

LW v Cornwall Partnership NHS Foundation Trust (2018) UKUT 408 (AAC)

Meaning of "nature" in discharge criteria

(1) Having considered the statutory framework of CTOs and the legislative purposes behind them the UT concluded, primarily on that basis, that in cases where there is a risk of a relapse which might necessitate recall, how soon that such a relapse is likely to occur is a relevant consideration. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be "soon", "in the near future" or within the permitted duration of a CTO. (2) Addressing the claimants' arguments on the analogy between detention and CTO cases, the judge stated that while there are some parallels between the s3 regime and CTOs they are not such that the same principles necessarily apply to both, and (to the extent necessary to reach a view on the detention cases) neither of the previous judgments cited in CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) provided an authoritative basis for the view that imminence of relapse is the only factor or need be in the near future.

M v Abertawe Bro Morgannwg University Health Board (2018) UKUT 120 (AAC)

Covert medication and MHT

The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision.

M v An NHS Trust (2017) MHLO 39 (UT)

Tribunal reasons

"[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made."

MC v Cygnet Behavioural Health Ltd (2020) UKUT 230 (AAC)

Conditional discharge and DOL

(1) Although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by "the different hats approach" (the same judge sitting in the COP and the FTT) or "the ducks in a row approach" (adjournment or deferred conditional discharge). (2) This involves no Article 14 discrimination in favour of incapacitous restricted patients as, under SSJ guidance, the equivalent outcome can be reached for capacitous patients by using s17 leave. (3) The FTT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. (4) The UT discharged the patient subject to conditions of residence, supervision and compliance with "all aspects of the care package" (surprisingly, as the care package would amount to a deprivation of liberty), with permission to apply to the FTT for variation on a material change in circumstances (surprisingly, as the MHA sets out when an application may be made).

Milton Keynes CCG (17 018 823e) (2019) MHLO 61 (LGSCO)

Section 117 complaint

"Whilst the Trust was acting on behalf of the CCG in carrying out the s117 actions, the CCG is ultimately responsible for s.117 provision, along with the Council. ... The CCG, Trust and the Council should, by 23 December: (a) Write to Mrs B apologising for the impact of the fault in relation to not refunding the care fees relating to the supported living placement. (b) Confirm with Mrs B and refund the supported living fees which have not already been reimbursed. Mrs B may need to provide additional information to the organisations about fees paid as part of this. (c) Write to Miss A and Mrs B personally and apologise for the impact the lack of s.117 planning had on both of them individually due to the length of time Miss A went without adequate support. They should also apologise for the uncertainty caused by not knowing whether the incidents outlined above could have been avoided. (d) Pay Miss A £1500 and Mrs B £1000 each in recognition of the impact of the and length of time Miss A had a lack of s.117 support. By 20 February 2020, the Council, CCG and Trust should create an action plan of how they will notify and cooperate with each other to ensure patients are assessed promptly and s.117 care put in place in line with the MHA Code of Practice. This action plan should include a review of progress and the impact of any changes following implementation of the plan."

NHS Guilford and Waverley CCG (18 007 431a) (2019) MHLO 60 (LGSCO)

Section 117 complaint

"(1) Within one month of my final decision, the Council and CCG will: (a) Write to Miss X and Mr Y, acknowledging the fault identified in this decision and offering meaningful apologies; (b) Jointly pay Mr Y £500 for failure to provide support as outlined on his s117 aftercare plan, delayed care planning, loss of opportunity to re-engage him and distress as a result of poor communication around his care plan and eviction; (c) Jointly pay Miss X £150 for poor complaint handling, stress and inconvenience. (2) Within three months of my final decision, the Council and CCG will ensure that Cherrytrees and all other providers acting on their behalf under s117 review their policies and procedures to ensure compliance with the relevant parts of the Code of Practice: Mental Health Act Code 1983, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Act 2014, in relation to: (a) Care planning; (b) Daily record keeping; (c) Complaint handling, including ensuring all points are responded to adequately and complainants are properly signposted should they wish to escalate their complaint."

NKR v The Thomson Snell And Passmore Trust Corporation Ltd (2019) EWCOP 15

Appointment of property and affairs deputy

"The application before the Court is for the discharge of the appointment of an existing professional property and affairs deputy, and the appointment of another instead. The discharge of the current deputy is agreed but there is an issue as to who should be appointed instead. ... In the matter of Re AS; SH v LC [2012] MHLO 113 (COP), [2013] COPLR 29 at paragraph 22 Senior Judge Lush set out "generally speaking" an order for preference of various candidates for appointment as deputy. A panel deputy is included "as deputy of last resort," after "a professional adviser, such as the family's solicitor or accountant." ... I am not aware of any previous appointments of a barrister as professional deputy (as distinct from a family member who just happens to be a barrister by profession but is appointed on the usual non-remunerated basis of a family member). Not being considered by the Bar Council as 'a legal service', discharge of the functions of deputyship is apparently not subject to the Bar Council's full regulatory force. However, the risk of property and affairs deputyship lies chiefly in misappropriation of funds. It seems to me beyond debate that misappropriation of MBR's funds whilst acting as deputy would count as "behaviour which diminishes trust and confidence" in Ms. Sood individually and her profession generally, and so Ms. Sood's holding of deputyship appointment would be subject to some professional regulation. ... On the information presently available to me, I am willing to accept that Ms. Sood is personally and professionally a suitable person to hold a deputyship appointment. Her appointment is however not the only option before the Court. A panel deputy has also been identified as willing to act ... Taking all matters into consideration, I conclude that it is in the best interests of MBR for Mr. Kambli to be appointed as replacement deputy upon discharge of the appointment of TSPTC."

PAA v SSHD (2019) UKUT 13 (IAC)

Oral tribunal decision

The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above.

PBC v JMA (2018) EWCOP 19

Gifts

"PBC is the son of JMA, and was appointed as her sole attorney for property and affairs by a Lasting Power of Attorney ... He seeks the authority of the Court to make from JMA’s estate various gifts together exceeding £7 million. The purpose of such gifting, openly stated from the outset of the application, is to achieve - as long as JMA lives at least a further 3 years - reduction of inheritance tax liabilities. The parties have reached an agreement between themselves. Together, they ask the Court to make orders to give effect to their agreement. The matter was listed for hearing because the Court sought assistance in order to reach a conclusion as to whether or not the terms of that agreement are in the best interests of JMA."

PM v Midlands Partnership NHS Foundation Trust (2020) UKUT 69 (AAC)

Lawfulness and availability of treatment

The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot.

PS v Camden and Islington NHS Foundation Trust (2011) UKUT 143 (AAC)

The Tribunal's policy was that a reference made under s68(7) (triggered by the revocation of a CTO) would be treated as having lapsed if the patient subsequently was placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (as amended)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy was unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy was inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the revocation reference lapses. (2) The power to treat a letter as a Tribunal application is only appropriately exercised for the applicant's advantage, not potential detriment; it is not permissible to override an unequivocal indication by the solicitor to the opposite effect, especially if to do so would deprive the patient of the chance to make an application later should discharge not be obtained on the reference. (3) If the hospital managers had been represented, the judge would have wanted to know why it took 12 days to complete the simple referral form. (4) The Tribunal Procedure Committee will be consulting on rule changes to make it easier to handle CTO revocation cases in which the patient does not 'co-operate': in the meantime, the judge suggested that proceedings could be stayed, or hearings conducted in patients' absence.

Public Guardian v DA (2018) EWCOP 26

LPA wording - euthanasia and multiple attorneys

"This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment."

R (CXF) v Central Bedfordshire Council (2017) EWHC 2311 (Admin)

"The central question raised in these proceedings is whether either or both of the Defendants has a duty under s117 of the MHA to cover the costs of the Claimant's mother's visits, on the ground that they constitute "after-care services" within the meaning of that provision. ... The specific issues that arise are as follows: (a) Whether the duty to provide after-care services under s117 is triggered when the Claimant is granted leave of absence from the Hospital under s17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely, (i) that he has "ceased to be detained" under s3 of the MHA, and (ii) that he has "left hospital"; (b) If so, whether the after-care services which are to be provided pursuant to s117(6) of the MHA may as a matter of principle include funding to cover the Claimant's mother's transport costs; (c) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s117; (d) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017."

R (CXF) v Central Bedfordshire Council (2018) EWCA Civ 2852

The patient's mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, the Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117. (1) The patient did not "cease to be detained" or "leave hospital" within the meaning of s117(1) when on leave and so was not a person to whom s117 applied, and also the services provided did not constitute "after-care services" within the meaning of s117(6). (2) In other cases, such as a patient living in the community on a either a full-time or part-time trial basis, the s117 duty could arise. (3) (Obiter) It was difficult to see how s117 could have covered the mother's costs as there was no evidence that she was authorised to provide services on behalf of any CCG or LA. (4) The MHA Code of Practice is analogous to delegated legislation (which can only be used as an aid to interpretation if it formed part of Parliament's background knowledge when legislating) and so cannot be used to construe s117(1) which is part of the original text. (5) The court was critical of and provided guidance in relation to the quality of pleadings in statutory interpretation cases. (6) Even if the evidence provided by Mind's QC in written submissions had been relevant, it would not excuse the flagrant breach of the court's order not to stray into the giving of evidence. The matters which are admissible are so limited in statutory interpretation cases that it may be that there is nothing useful an intervenor can contribute.

R v MHRT, ex p Hall (1999) EWHC Admin 351

Residence for s117 purposes

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. [MHLR.]

Re ACC (2020) EWCOP 9

Deputies and litigation

This case concerned whether, and in what circumstances, a property and affairs deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings. The applicant deputies from Irwin Mitchell wanted to know when a professional deputy may instruct a legal firm with which it is associated and recover the costs from P. The court gave detailed guidance, including a summary of conclusions in an appendix.

Re AR (2018) EWCOP 8

Deputy - remuneration

"The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy."

Re BGO: Office of the Public Guardian v PGO (2019) EWCOP 13

LPA witnessed by attorney

"Some time later one of the financial institutions to which the registered property and affairs LPA was sent noticed that BGO’s signature on the instrument had been witnessed by one of the attorneys (MAB), which is contrary to the requirements of Regulations. ... The Public Guardian applied to the Court for a determination as to whether or not the requirements for creation of an LPA were met, and directions as to whether the Public Guardian should cancel the registration of the instrument. ... The wording of paragraph 18 of Schedule 1 is mandatory. Because the requirements of execution have not been met, I must direct the Public Guardian to cancel the registration of BGO’s LPAs. ... For many donors, the failure of their LPA because of a defect in execution can be overcome by the relatively simple step of granting fresh powers, taking care to ensure that the requirements are met – an irritation perhaps and an expense but not an insurmountable hurdle. However, that option is not open to BGO. Sadly, before this defect was identified, BGO’s capacity had deteriorated to the point where she is unable to execute fresh LPAs. ... In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. ... In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect. ... The Respondents are invited to make an application for appointment as property and affairs deputies for BGO. ... If the Respondents, or any of them, seek the appointment of a welfare deputy or deputies for BGO, they should also file at Court within 28 days a COP24 statement which sets out any welfare issues which require decisions to be made, why (having regard to s5 of the Mental Capacity Act 2005) an order is needed and why (having regard to section 16(4) of the Act) the decisions should be taken by a deputy rather than the Court."

Re M: A v Z (2018) EWCOP 4

COP bias

"This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests."

Richards v Worcestershire County Council (2016) EWHC 1954 (Ch)

After-care

"The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards' deputy on his behalf on providing him with care. The claim is based on section 117 of the 1983 Act. It is Mr Richards' case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that that duty extended to the provision of the various services which have thus far been paid for privately. ... There are essentially two issues to consider: (i) Is it in principle possible for Mr Richards to bring a restitutionary claim? (ii) If so, can the present claim be pursued otherwise than by way of judicial review?"

Richards v Worcestershire County Council (2017) EWCA Civ 1998

After-care

Executive summary and conclusion from judgment: "The claimant has a long history of mental illness, following frontal lobe injury which he sustained in a road traffic accident 33 years ago. He received damages following the accident, which his deputy administers. The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he has received various after-care services. The claimant's deputy funded the services between 2004 and 2013. The defendants have funded those services since 2013. The claimant by his deputy now seeks to recover the costs of the after-care services between 2004 and 2013 (including 18 months residential placement) on the grounds that the defendants are liable for the costs under section 117 of the 1983 Act. The defendants applied to strike out the claim as an abuse of process. The judge rejected that application. The defendants now appeal on two grounds: first, the claimant should have brought his claim by judicial review; secondly, the defendants' alleged non-compliance with section 117 of the 1983 Act does not entitle the claimant to recover damages for unjust enrichment or restitution. The first ground of appeal raises a clean point of law, capable of resolution on the basis of the pleadings. I decide that point against the defendants. The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out. In the result, therefore, if my Lords agree, this appeal will be dismissed."

RM v St Andrew's Healthcare (2010) UKUT 119 (AAC)

Non-disclosure of covert medication

(1) When considering the "interests of justice" limb of rule 14(2), the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to his detention. (2) On the facts, without knowing that he was being covertly medicated the patient would be unable effectively to challenge his detention; the non-disclosure decision was set aside and re-made. (3) Non-disclosure orders should not only be drafted in terms of documents, but also should deal, in a precise, clear and exhaustive way, with the information which should not be disclosed.

SB v South London and Maudsley NHS Foundation Trust (2020) UKUT 33 (AAC)

Reviewing appointment of legal representative

The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so.

SLL v Priory Healthcare Limited (2019) UKUT 323 (AAC)

Inadequate reasons for not absolutely discharging

The patient challenged the tribunal's decision to grant a conditional, rather than absolute, discharge. (1) Ground 1: Failure properly to apply the two-stage process required by s73(1) and (2). The MHRT had decided (under s73(1)) that the s72(1)(b)(i) (appropriateness) test was not met, and had moved straight to s73(2) (absolute or conditional discharge) without considering s72(1)(b)(ii) (necessity) or s72(1)(b)(iia) (appropriate treatment). The UT decided that the statute permitted the tribunal to stop once it had decided that it was not satisfied of the first s72 test. However, s73(2) required the tribunal to make findings on substantially similar matters, albeit on a forward-looking basis, and to make a decision on the type of discharge on the basis of those findings. Without express findings (in particular in relation to potential medical treatment for any psychotic condition the patient may suffer from) and an explanation of how the relevant factors were weighed (including the two factors discussed below) it was not possible to be sure how the tribunal reached its decision. The UT gave guidance in paras 33-35 on the findings likely to be required when considering s73(2), and in para 47 on the appropriateness of treatment with no realistic prospect of therapeutic benefit. (2) Ground 2: Failure to give adequate reasons. The Appellant had presented credible expert evidence that risk could be managed by future Part 2 detention rather than the recall power, so it was incumbent on the Tribunal to explain why it was not persuaded by that evidence: instead, it had merely quoted another doctor's evidence (which stated that recall would be available but did not grapple with the Part 2 issue) and said that this evidence was "more apt". The Appellant had also argued that the setting of a psychiatric hospital was positively harmful, and the tribunal had failed to explain its rejection of this argument. Taken as a whole it was not adequately clear why the tribunal was not satisfied that it was inappropriate for the Appellant to continue to be liable to recall to hospital for further treatment.

SM v Livewell Southwest CIC (2020) UKUT 191 (AAC)

Capacity to make tribunal application

(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including: (a) if a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any procedural obligations, proceed to hear the case; (b) anyone can request that the Secretary of State make a reference, including when a patient lacks capacity and wishes to leave hospital: this includes not only the hospital managers and IMHA, but also the tribunal itself, which could adjourn for this purpose instead of immediately striking out the case.

SSJ v KC (2015) UKUT 376 (AAC)

Conditional discharge and DOL

(1) A conditional discharge may include conditions which will, on an objective assessment, give rise to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA. (2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no Article 5 deprivation of liberty.

Tees, Esk and Wear Valleys NHS Foundation Trust (19 012 290a) (2020) MHLO 21 (LGSCO)

Section status and aftercare

"Summary: The Ombudsmen find there was fault by a Trust in giving a family incorrect information about a mental health patient’s status. When this came to light it caused the patient’s wife considerable stress which has not yet been fully addressed. The Ombudsmen also find that fault by a Council meant the patient’s wife suffered this stress for too long. The Ombudsmen has recommended small financial payments to act as an acknowledgement of the outstanding injustice."

Tinsley v Manchester City Council (2016) EWHC 2855 (Admin)

After-care payments and double recovery

"Thus there is a fundamental issue between the parties which they require the court to resolve, which is whether or not it is lawful for the defendant to refuse to provide after-care services to the claimant under s117 on the basis that he has no need of such provision because he is able to fund it himself from his personal injury damages. The claimant's position is that this is unlawful, and represents a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords has confirmed in Stennett that it is impermissible to do so in any circumstances. The defendant's position is that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s.117 would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA [2007] EWCA Civ 71B, [2007] 1 WLR 923B and Peters v East Midlands SHA [2009] EWCA Civ 145, [2010] QB 48B."

Tinsley v Manchester City Council (2017) EWCA Civ 1704

After-care payments and double recovery

"The question in this appeal is whether a person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released from detention but still requires "after-care services" is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor."

VS v St Andrew's Healthcare (2018) UKUT 250 (AAC)

Capacity to make tribunal application

(1) The capacity that a patient must have in order to make a valid MHT application is that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released. This is a lower threshold than the capacity to conduct proceedings. (2) (Obiter) a solicitor appointed under rule 11(7)(b) can request to withdraw an application in the best interests of the patient, but on the facts the tribunal had been entitled to give effect to the patient's own desire to come before a tribunal. (3) When a tribunal lacks jurisdiction it should strike out the proceedings but (obiter) if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law.

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