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April 2017 update

Website

  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.

Case law

  • Transfer to Broadmoor. R (YZ) v Oxleas NHS Foundation Trust [2017] EWCA Civ 203 — "This case involves a challenge by way of judicial review to the decision made by a psychiatrist at the Oxleas NHS Foundation Trust (Oxleas), the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital (operated by the second respondent to whom I shall refer to as Broadmoor) and the decision of Broadmoor to accept him. ... He challenged the decision made to transfer him to Broadmoor on the basis that it was unlawful and in breach of his rights under the European Convention on Human Rights. He contended that he should have been transferred to a Medium Secure Unit."
  • Costs case. Mole v Parkdean Holiday Parks Ltd [2017] EWHC B10 (Costs) — "The issue that arises for determination is whether the First Claimant ('the Claimant') is entitled to recover a success fee pursuant to a costs order against the Defendants in respect of work carried by his solicitors for a period after the Claimant's mother was replaced as a litigation friend by the Official Solicitor. ... In my judgment the analysis in Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18 is clear and it leads to the conclusion that the retainer that was first entered into 2006 has remained effective during the course of the claim unaffected by the substitution of a new litigation friend. Accordingly, the claim for costs in the period after the appointment of the Official Solicitor is not dependent upon the Official Solicitor having entered into a new agreement on 1 April 2013 or indeed founded upon any such agreement. There was already in existence an agreement which was sufficient to ground the liability of the Claimant to pay the success fee under the original CFA for the period after the appointment of the Official Solicitor."
  • CICA. R (M) v FTT and CICA [2017] UKUT 95 (AAC) — "Mr M sought permission to bring judicial review proceedings in respect of three decisions of the First-tier Tribunal (the Tribunal takes a neutral stance in these proceedings). The Upper Tribunal granted Mr M permission to bring judicial review proceedings in respect of two of these decision. In both, the Tribunal had struck out Mr M’s appeals against decisions of the Criminal Injuries Compensation Authority (CICA) not to extend time for applying for review of a decision to refuse to award him compensation. ... In both decisions, the First-tier Tribunal erred in law by failing to consider how to apply the overriding objective of its procedural rules in the light of Mr M’s mental health condition. ... The overriding objective, set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, is to deal with cases fairly and justly. This includes ensuring “so far as practicable, that the parties are able to participate fully in the proceedings”. ... Accordingly, the overriding objective extends to taking such steps as are practicable to enable a party to present his case. This does not mean the First-tier Tribunal has to construct a case for an applicant. But it does call for a Tribunal to consider whether an applicant’s circumstances mean that he faces obstacles in presenting his case that the Tribunal should seek to remove or mitigate to ensure a case is dealt with fairly and justly. The appropriate step or steps to take will be informed by the circumstances of the case but could include: ensuring that an applicant’s liability to detention in a mental health institution does not prevent him attending a hearing; inviting an applicant to consent to the Tribunal obtaining medical records rather than insisting that the applicant supplies them; acting more inquisitorially than it would in the case of a represented applicant or one without a mental health condition. ... Section 5(7) '"`UNIQ--nowiki-00000159-QINU`"'Rehabilitation of Offenders Act 1974'"`UNIQ--nowiki-0000015A-QINU`"' provided that, where a hospital order under Part III of the Mental Health Act 1983 was imposed on conviction, the rehabilitation period for the conviction (at the end of which it was ‘spent’) was the longer of the following dates: (a) the period of five years from the date of conviction; or (b) the period beginning with the date of conviction and ending two years after the date on which the order ceases to have effect. ... I note that section 5 of the 1974 Act was amended, from 10 March 2014, by section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As amended, section 5 refers to a range of “relevant orders” which include a hospital order under Part III of the Mental Health Act 1983. The rehabilitation period for the conviction that led to a relevant order is “the day provided for by or under the order as the last day on which the order is to have effect”. I suspect the new version of section 5 of the 1974 Act will apply if the First-tier Tribunal considers it necessary to determine whether Mr M’s conviction, for which he was made subject to a hospital order, was spent when he made his original application for compensation. That is because section 141 of the 1974 Act generally gives retrospective effect to the amendments made to section 5 by the 1974 Act (see G v First-tier Tribunal (interested party: CICA) [2016] UKUT 196 (AAC)B)."
  • Best interests and available options. N v ACCG [2017] UKSC 22 — "So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'."

Legal Aid Agency

  • Legal Aid Agency, 'Contract Management: Mental Health Guidance' (v2, 3/4/17). The press release (4/4/17) for this updated guidance states: "Updated guidance has been published which helps providers with questions about mental health work under the 2014 Standard Civil Contract. Development of this update follows constructive discussions with the Mental Health Lawyers Association and the Law Society. The updated document clarifies a small number of provisions in the 2014 Standard Civil Contract. For example, the requirements for triggering a Level 2 (Mental Health Proceedings) Fee. The questions covered in the document are the most common ones raised by providers since the introduction of a standard fee scheme for this work in 2008." See Legal Aid#Guidance documents

Law Society

Other

  • Lucy Series, 'It's that time again…' (20/4/17). This article notes that in order to vote there is no need to have the mental capacity to vote (s73(1) Electoral Administration Act 2006 states that "[a]ny rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state is abolished"), but the Electoral Commission is of the view that the declaration of truth on the individual voter registration form must be signed with someone with mental capacity to do so or by a deputy/attorney. See Voting rights for detained patients#Capacity
  • Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2015-17' (updated on 9/4/17). See Newsletters#Edge Training

Events

  • MHLA: Panel course - London, 28/6/17 and 29/6/17 — No results
  • Edge Training: MHA Code of Practice - Preparing for the CQC - London, 22/5/17 — No results

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