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Drilldown: Cases

Not many cases (252 of them) have been added to the database so far. To see the full list of cases (2079) go to the Mental health case law page.

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Cases > Subject : Community care or Criminal law capacity cases or MHT capacity cases

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Page name Sentence Summary
Derbyshire Healthcare NHS Foundation Trust (17 012 839a) (2019) MHLO 44 (LGSCO)

Complaint about community care delay

LGSCO's summary: "The Ombudsmen do not consider Derbyshire County Council and Derbyshire Healthcare NHS Foundation Trust delayed providing support for Mrs X’s mental health needs. We have not found fault with the way the Council decided what support she needed. The Ombudsmen consider Derbyshire County Council delayed completing Mr X’s carer assessment and should have considered carrying out an integrated assessment with Mrs X. However, it has remedied the distress Mr X suffered."

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.

R (JF) v London Borough of Merton (2017) EWHC 1519 (Admin)

Needs assessment; accommodation change

"The Claimant has the benefit of anonymity and will be referred to as JF. He has Autism Spectrum Disorder and severe learning difficulties. As a result, he requires adult residential care with specialist support. ... The Claimant relies upon two grounds of review, contending that: (i) LBM failed to undertake a lawful assessment of his needs in breach of statutory duties under the Care Act 2014 and associated Regulations, namely the Care and Support (Assessment) Regulations 2014 SI 2827, and the Care and Support (Choice of Accommodation) Regulations 2014 SI 2670. (ii) LBM has unlawfully decided to change or to propose to change his accommodation from the David Lewis College in Cheshire, where he has resided since 2012 to Aspen Lodge in Sussex, a residence run by Sussex Health Care. The Claimant contends that LBM has based its decision to prefer the Lodge unlawfully and predominantly upon a Pre-Admission Assessment dated 26 February 2016 and prepared by the Lodge. That document contains the conclusion that the Lodge is suitable and can adequately meet JF's needs. The Claimant alleges that it is an inadequate basis for moving him from his current accommodation."

R (Western Health and Social Care Trust) v Secretary of State for Health (2018) NIQB 67

"The impugned determination is that of the [Secretary of State for Health of England and Wales] to the effect that a lady whom I shall describe as CM (aged 32 years) is 'ordinarily resident' in Northern Ireland and has been thus since 2009, with the result that the care management and funding responsibilities for her have fallen on the Trust, rather than [the London Borough of Enfield], since that date. In very brief compass, lying at the heart of this challenge is a funding dispute between the Trust and Enfield."

R v C (2008) EWCA Crim 1155

Capacity to consent to sexual activity

If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.]

R v C (2009) UKHL 42

Sexual consent

For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.

Rotherham Doncaster & South Humber NHS Foundation Trust (18 010 101a) (2019) MHLO 43 (LGSCO)

Failure to carry out carer's assessment

LGSCO's summary of decision: "The Trust and Council were at fault in not carrying out a carer’s assessment and not involving Mrs S during her husband’s period of treatment. There was also fault in record-keeping and delays in responding to the complaint. These failings caused an injustice to Mrs S as she lost the opportunity for additional support and is likely to have suffered additional distress. The Trust and Council have already taken action to address these failings and improve processes. The Trust and Council have agreed to pay Mrs S financial redress and the Trust has agreed to monitor and report on improvements in its complaints handling."

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.

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 on when the hospital managers, IMHA, or the tribunal itself should request the making of a reference.

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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