August 2009 update

Caselaw

August 2009 cases

KM v MHTS [2009] ScotSC 139 — (1) In granting a compulsory treatment order, the Mental Health Tribunal for Scotland misdirected itself in law, so its decision was set aside: in considering Regulation 5 (permitted conflicts of interest between the two recommending doctors) the Tribunal applied a subjective test of what was in the RMO's mind, rather than objectively considering whether "failure to carry out the [independent second] medical examination would result in delay which would involve serious risk to the health, safety or welfare of the patient or to the safety of other persons" (Reg 5(1)(b)). (2) No facts were found by the Tribunal which could have justified a compulsory treatment order so, rather than remitting the case to the Tribunal, the application for a compulsory treatment order was refused.§

July 2009 cases

R (Purdy) v DPP [2009] UKHL 45 — (1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy.§
R (McKinnon) v SSHA [2009] EWHC 2021 (Admin) — Because of the claimant's Asperger's Syndrome, extradition to the US would cause his mental health to suffer and would create risks including suicide; however, his case did not approach Article 3 severity: the SSHA's decision to order extradition, and the DPP's decision not to prosecute in the UK (although he had admitted certain offences), were lawful.§
R (Chahboub) v SSHD [2009] EWHC 1989 (Admin) — Failed asylum seeker's challenge to detention in prison rather than immigration centre. (1) The first of the two periods of detention was outside the 3-month JR time limit so permission was refused in respect of that period. (2) The policy with respect to whether mentally ill people should be detained did not apply to the claimant, who had a personality disorder rather than mental illness. (3) The detention was justified under common law (intention to deport, detention for reasonable period, deportation possible in reasonable period, reasonable diligence to deport). (4) His transfer from the immigration centre to prison, because he had proved unmanageable, was in accordance with policy. (5) The manner of his detention in prison (required to share cell with convicted prisoner, dietary requirements ignored, 23-hour lock-up, limited access to telephone and visitors) was contrary to policy and breached his Article 5 rights.§
R v C [2009] UKHL 42 — 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.
Perrins v Holland [2009] EWHC 1945 (Ch) — The testator had testamentary capacity at the time that he gave instructions for the will, but not when he executed it; however, when he executed the will he believed that it gave effect to his previous instructions, it did in fact do so, and the instructions remained his testamentary wishes. Therefore the court pronounced in favour of the will.§
Rabone v Pennine Care NHS Trust [2009] EWHC 1827 (QB) — The Article 2 "Osman" operational obligation to protect life applied to detained patients, but not to the claimant who was an informal patient on leave from the hospital at the time she committed suicide. [Caution.]§

Older cases

Re GC [2008] EWHC 3402 (Fam)‎‎ — (1) The principle governing State intervention under the Mental Capacity Act 2005 is the same as under the Children Act 1989, namely that the State does not interfere in the private family life of an individual unless the continuance of that private family life is clearly inconsistent with the welfare of the person whose best interests the court is required to determine. (2) The closer the person is to having capacity the more weight his views are to be given. (3) Contrary to the professional evidence, it was in GC's best interests to return home as an interim measure: this decision was reached having regard to (a) the concept of least intervention, (b) GC's consistently-expressed wishes and feelings, (c) a finding that a trial at home was necessary and now was the best time, and (d) the importance of the emotional, as opposed to physical, component of best interests to very elderly (or young) people.§
Re F (2009) COP 11649371 — Click on link to view page.§
R (Krishnapillai) v SSHD [2008] EWHC 2737 (Admin) — Mental health problems can engage Article 8 and render it disproportionate to separate a failed asylum seeker from the support of his family (in this case the mental health element involved PTSD, depression and the threat of suicide); however, deportation in this case was lawful.§

Legislation added

Hague Convention on the International Protection of Adults 2000 — "This Convention was drawn up by the Hague Conference on Private International Law and unanimously adopted by those of the Member States present at its plenary session on 2 October 1999. Its purpose is to improve the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not able to safeguard their own interests. It does so by laying down rules on jurisdiction, applicable law and international recognition and enforcement of protective measures which are to be respected by all States, thus reducing the potential for confusion and conflict. There is also provision for administrative co-operation to support the workings of the Convention. 'Adult' is defined in Article 2 of the Convention as a person who has reached the age of 18 years." (text from FCO explanatory memorandum)
Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005 — These Scottish Regulations provide for the circumstances where there is, or is not, to be taken to be a conflict of interest, and where such a conflict of interest is permitted, in relation to certain medical examinations carried out under the Mental Health (Care and Treatment) (Scotland) Act 2003. In force 5/10/05.

Website

New Glossary page added.

See August 2009 chronology for changes to the website in date order.

As of 31/8/09 the website has 535 categorised cases and 57 other Cases to be added which have been located on Bailii.

August 2009 update

Contents

Caselaw

August 2009 cases

July 2009 cases

Older cases

Legislation added

Other documents etc

Dept of Health

CQC

Law Society, Tribunals Service, etc

Other

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