November 2014 update

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Case law

  • NR case. K v Hospital Managers of the Kingswood Centre [2014] EWCA Civ 1332, [2014] MHLO 102A nearest relative sent an order for discharge to the hospital's fax machine. She had not used one of the three prescribed methods of service (delivery to an authorised officer; pre-paid post; or, with the managers' agreement, internal mail) so the 72-hour period began to run when the part-time MHA Administrator considered it on her return to work four days later.
  • Upper Tribunal case. NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them.
  • After-care case. R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin), [2014] MHLO 104In this case Essex argued that VC lacked capacity to have consented to her place of residence, and therefore had not been resident in Essex for the purposes of s117. The result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself. They were unsuccessful. Extract from judgment: "I do not however read these passages as deciding that a person cannot acquire residence in a place unless he does so voluntarily. Still less do they decide that residence may only be acquired as a result of a decision made by a person with capacity, or lawfully on his behalf by someone else. ... The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. There may be reasons to conclude that he has not lost an established residence elsewhere, for example because of imprisonment or because he is only temporarily away from that residence on holiday, but if he has no such other place, and in the absence of some other special factor, his actual place of abode is his residence. This would be so whether he is there voluntarily or involuntarily, and whether any lack of voluntariness is caused by his will being overborne (eg on imprisonment) or because a decision he has in fact made is vitiated by lack of capacity, or if the decision has in reality been taken on his behalf by someone else, with or without lawful authority to do so." Some of these comments are obiter, and this is a first instance decision which did not refer to the earlier Court of Appeal decision in R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712, [2014] MHLO 103.
  • After-care case. R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712, [2014] MHLO 103The patient had been placed under a hospital order when he was resident in Wiltshire. He was conditionally discharged with a condition to reside in Hertfordshire. He had no wish to return to Wiltshire, but the Court of Appeal decided that the residence condition meant his place of residence was not voluntary, and decided that he was still 'resident' in Wiltshire.
  • Capacity case. Old case but transcript only now available. LBX v K, L and M [2012] EWHC 439 (Fam), [2012] MHLO 185 — "The central issue that I have to determine is whether it is in L’s best interests that he should remain in supported living accommodation or return home. He has been living in supported accommodation called the J placement, on a trial basis, since 24th August 2011. The LBX submit that L should remain in supported living accommodation; this is supported by the OS on behalf of L and by M. K contends that L should return to live with him as this accords with his wishes or his wishes are difficult to determine and all the stated benefits that are relied on to support the decision for L to live in supported living accommodation can be achieved by L living at home, with all the additional benefits that living within the family brings L."
  • Capacity case. Old case but transcript only now available. LBX v K, L and M [2011] EWHC 2419 (Fam) — "The issues to be determined at this hearing are: (i) whether it is in L’s best interest to move to supported living accommodation on a trial basis; (ii) whether the hearing listed in September 2011 is required and, (iii) any further directions."
  • Contempt case. Derbyshire County Council v Kathleen Danby [2014] EWCOP B26, [2014] MHLO 106 — "Today was listed to give Mrs Danby the opportunity of persuading me that the sentence I imposed in April was wrong, that I should reduce it, mitigate it or even quash it, and she has failed to avail herself of that opportunity. So, in the circumstances, I have no alternative other than to leave the sentence outstanding, together with the warrant of arrest. If Mrs Danby is arrested pursuant to that warrant she can apply to purge her contempt and I will see her as soon as is possible to look at the matter."
  • LPA case. Public Guardian v Miles [2014] EWCOP 40, [2014] MHLO 105 — "This is an application by the Public Guardian for the court to determine the validity of a provision in a Lasting Power of Attorney... The question I am required to answer is whether the donor of an LPA can appoint more than one attorney to act jointly with survivorship by expressly re-appointing the continuing attorney or attorneys."
  • Transcript anonymised at appellant's request. Following a request to remove the transcript the page title and transcript of this case is now anonymised. R v PA [2010] EWCA Crim 3121The appellant appealed against a sentence of 18 months' imprisonment as being excessive; then, following her transfer to hospital she instead sought a community order with a mental health requirement. Her mental condition, and lack of insight, led to the conclusion that a hospital order was required to ensure that she continued to receive treatment.

Journal of Mental Health Law

  • Journal of Mental Health Law. It is now possible to view back back issues of the JMHL and to register for its successor. International Journal of Mental Health and Capacity Law — The Journal of Mental Health Law has been relaunched as the International Journal of Mental Health and Capacity Law. It is an open-access online journal hosted by the University of Northumbria. The editor-in-chief is Kris Gledhill. On the Northumbria Journals website it is now possible to view back issues of the JMHL, in addition to the IJMHCL itself.

Newsletters

Other material

  • Jonathan Wilson, 'Safeguards against What? A critical analysis of the Deprivation of Liberty Safeguards' (LLM dissertation, 28/8/13). See DOLS#Academic articles etc

Jobs

  • Job advert. Alpha Hospital in Bury are recruiting for a full-time Mental Health Act Administrator. Salary is negotiable according to qualifications and experience. For details, see Job adverts

Events

  • Event. Edge Training are running a course entitled 'Deprivation of Liberty Safeguards for care providers' on Friday 12/12/14 in London. The course will be delivered by Steven Richards. Cost: £115 plus VAT. See flyer for further information and booking details. See Events
  • Event. Edge Training are running an event entitled 'BIA Legal Update' (which is also open to MH Assessors) on Monday 24/11/14 in London. The course will be delivered by Steven Richards. Cost: £115 plus VAT. See flyer for further information and booking details. See Events

Website and CPD

  • CPD scheme. Obtain 12 accredited CPD points online for £60. See CPD scheme

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