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August 2011 update

Case law

Cases - summaries added

  • MB v BEH MH NHS Trust [2011] UKUT 328 (AAC) — Following the RC's evidence, without hearing other witnesses or submissions on the law and evidence, the Tribunal judge stated that the patient could not obtain a conditional discharge and invited the patient to withdraw his application; the patient withdrew and appealed against the Tribunal's consent to the withdrawal. (1) Consent to withdrawal is a judicial act and is appealable. (2) The judge's expression of a preconceived concluded opinion (as opposed to a provisional view) amounted to a breach of the rules of natural justice and fair procedure in that the appellant was effectively denied a proper opportunity to put his case. (3) The UT's concerns about remedy (that there had been no application to reinstate the case and no re-application by the patient during the relevant eligibility period) were outweighed by the practical benefit of a fresh hearing and the patient, if unsuccessful, retaining his right to apply during the current eligibility period; therefore, the matter was set aside and referred to the Chamber President for directions to arrange a hearing by a completely differently constituted panel in order that a fresh decision be made.§
  • CX v A Local Authority [2011] EWHC 1918 (Admin) — A writ of habeas corpus was granted: (1) there had not been sufficiently informed consultation with the nearest relative before the s3 application was made; (2) the withdrawal of the nearest relative's objection was not full and effective, since it was the result of the incorrect and misleading advice that she could not maintain the objection without legal representation. [Judgment originally published under a different name.]§
  • DP v South Tyneside DC (2011) Admin Court 14/7/11 — It was not practicable to consult the nearest relative because (1) DP was perceived to be potentially at risk from him (forced marriage/death) and (2) consultation was not possible without disclosing DP's location (the duty of consultation not being one of mere notification): therefore the application for habeas corpus was refused.§
  • M v F [2011] EWCA Civ 273 — Unsuccessful appeal by the mother against a judgment refusing her a wide ranging series of declarations, the object of which was to deny the father (who suffered from mental illness) all knowledge of the birth and subsequent development of his legitimate child.§
  • WCC v GS [2011] EWHC 2244 (COP) — (1) GS lacked capacity to conduct litigation, to make decisions in respect of her care requirements, to decide where she wants to live and to decide issues relating to contact with her family. (2) It was in GS's best interest to remain at a care home. (3) Having set out an general guidance in relation to conditions imposed on contact, the court approved an agreed contact schedule between GS and her son.§
  • Ross v SSWP (2011) UKFTT 8/8/11 (SEC) — Unsuccessful application by BBC journalist to record and broadcast proceedings of First-tier Tribunal (Social Entitlement Chamber).§
  • R (S) v SSHD [2011] EWHC 2120 (Admin) — Detention of mentally-ill immigrant was unlawful under common law and Article 5, and breached Articles 3 and 8.§
  • Manchester City Council v G [2011] EWCA Civ 939 — Manchester's appeal against the costs order against it in the G v E case was unsuccessful.§
  • SL v Westminster City Council [2011] EWCA Civ 954 — On the true meaning of section 21(1)(a) of the National Assistance Act 1948, as amended, an asylum seeker suffering from depression and mental health difficulties who had been granted indefinite leave to remain was entitled to residential accommodation if the local authority had provided a programme of assistance and support to him through a care co-ordinator, since such provision of assistance would be otiose without the additional provision of housing. [Summary from WLR (D).]§
  • Selwood v Durham CC (2011) Newcastle-upon-Tyne county court 25/2/11 — The claimant social worker was not informed of a patient's threats to kill her and was subsequently stabbed by him; she sued the local authority and relevant NHS Trusts in negligence or breach of statutory duty and alternatively alleged a breach of Article 2. The Trusts' application for strike out was successful. [Caution.]§
  • Magritz v Public Prosecutors Office Bremen [2011] EWHC 1861 (Admin) — In relation to the claimant's extradition, where the sentence was for him to be 'placed in a psychiatric hospital for an indefinite period of time': (1) section 25 of the Extradition Act 2003 (the purpose of which is to protect a requested person whose physical or mental health is so poor that the act of extradition would be oppressive or unjust) was not engaged; and (2) there would be no breach of Article 3, Article 5 or Article 8.§
  • McKie v Swindon College [2011] EWHC 469 (QB) — An email sent by Swindon College, a past employer, to the claimant's then current employer, raising safeguarding issues, caused him to lose his job, for which Swindon were liable in negligence. (A forthright judgment: '[18] ... Even if there were any substance in that complaint at all, which as I say seems to me to be bordering on the ludicrous... [26] ... We are into the realms of hearsay upon hearsay. ... [27] ... I think when we actually look at the circumstances, we can see that the procedure adopted at Swindon College giving rise to the sending of the email, can be described as slapdash, sloppy, failing to comply with any sort of minimum standards of fairness, certainly any such standards as would be recognised by any judicial body taking decisions and disseminating information about another individual, because Mr Rowe agreed he had no personal knowledge of things at all. ... [29] So not only do I take the view that the contents of the email are not in fact supported by any evidence, I also take the view that the circumstances surrounding the sending of the email flouted elementary standards of fairness, diligence, proper enquiry, natural justice, whichever set of epithets you wish to use. ... [34] ... The idea that she should have been part of a disciplinary process as it transpired on 10 June whilst being on the governing body of Swindon College, I find staggering. It contradicts almost every rule, as it seems to me, about decision making in a quasi-judicial matter.' etc)§
  • G v MHTS [2011] CSIH 55 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The appellant unsuccessfully challenged the decision to make no order.§
  • Re DU; A NHS Trust v DU [2009] EWHC 3504 (Fam) — It was in DU’s best interests to be permitted to return to Nigeria subject to the making of practicable arrangements. [Official summary available.]§

Cases - transcripts only

Cases - other

  • Public Mental Health Tribunal hearing. HMCTS, 'Judicial direction: An application by Mr Albert Haines' (9/8/11, published 18/8/11). The text is as follows: An application by Mr Albert Haines for discharge from liability to detention in hospital will be heard in public by the First-tier Tribunal (Mental Health) on 27th and 28th September 2011 at 10.30am at Field House 15 - 25 Breams Buildings, London EC4A 1DZ. See Mental Health Tribunal
  • Press articles added for various unreported COP judgments: Re SJ (Deprivation of liberty, Ryder J); Re M (Minimally-conscious state, Baker J); Re P (Cancer treatment, Baron J); Re P (Persistent vegetative state, Charles J); Re L (Palliative care, Peter Jackson J). See Settled cases and forthcoming judgments
  • Stephen Lewis, 'Autistic teenager Liam Brunskill in adult care wrangle' (York Press, 10/8/11) and Stephen Lewis, 'Liam Brunskill’s family ready to move to fund court hearing' (York Press, 17/8/11). Residence dispute due to be heard in Court of Protection. See Settled cases and forthcoming judgments

Mental Health Lawyers Association

  • The Mental Health Lawyers Association will be re-running their successful two-day course for membership of the Law Society's MHT Accreditation Scheme (formerly the MHRT panel) on Monday 5/9/11 and Tuesday 6/9/11. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See Courses and conferences
  • MHLA, 'Destroying Representation for the Mental Unwell for £3 million?' (9/8/11). This document is the Mental Health Lawyers Association's response to the Legal Aid, Sentencing and Punishment of Offenders Bill 2010-11. See MHLA

Mental Health Tribunal

  • HMCTS, 'First-tier Tribunal Mental Health Stakeholder Bulletin July 2011' (29/7/11). The following are the headings: (1) Contacting the Tribunal; (2) Use of Secure Email; (3) Applications; (4) Forms used in the Applications Process; (5) Case Management Requests (form CMR1); (5) Secretary of State Supplementary Statements; (6) Reports Processing Team; (7) Decisions; (8) Feedback. See Mental Health Tribunal

Court of Protection

  • 39 Essex Street, 'Court of Protection Newsletter' (issue 10, July 2011). The cases referred to are: Re PH; PH v A Local Authority [2011] EWHC 1704 (Fam), R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33. It also contains information under the following headings: (1) Deprivation of Liberty: Statistics and a Map; (2) Appointment of QB judges to hear CoP cases in an emergency; and (3) Court of Protection User Survey. See 39 Essex Street COP Newsletter
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 12, August 2011). The cases referred to are: Manchester City Council v G [2011] EWCA Civ 939M, P v Independent Print Ltd [2011] EWCA Civ 756M, and WCC v GS [2011] EWHC 2244 (COP)M. It also mentions several forthcoming cases: (1) W v M (minimally conscious state); (2) Cheshire v P (application of Article 5(1) to those in care homes who are subject to restraint for their own protection: to be heard by Court of Appeal); (3) Re RK (application of Article 5(1) ECHR to those between 16 and 18: being appealed to Court of Appeal); (4) MIG and MEG (Article 5: possibly to be considered by Supreme Court); (5) Re P (circumstances under which bodily samples including DNA may be taken from P for purposes of determining the parentage of any person); (6) Re P (circumstances in which, and the powers under which, hospitals may detain those without the relevant capacity pending the making of applications for their admission under the Mental Health Act 1983). See 39 Essex Street COP Newsletter
  • Letter from COP Court Manager (July 2011) and associated COP Questionnaire (July 2011). See Court of Protection
  • Office of the Public Guardian, 'Call for evidence: Not for profit delivery of deputyship services' (4/8/11). Consultation runs from 4/8/11 to 27/10/11. The consultation document cites the 'Big Society' concept. The introduction states that 'Not for profit delivery of deputyship services has three purposes: (1) to understand the reasons behind the low take up amongst not-for-profit organisations of deputyship work; (2) to benchmark the costs of providing deputyship services within the sector; (3) to test interest in such organisations providing personal welfare deputyships in the future.' The questions show that the hope is to get the same service for approximately half the price a solicitor deputy. See Consultations#Ministry of Justice
  • Wolanski and Wilson, 'The Family Courts: Media Access & Reporting' (July 2011). This document (a joint publication of The President of the Family Division, the Judicial College and the Society of Editors) contains information on cases in the Court of Protection and under the High Court's inherent jurisdiction. See also Lucy Series, 'Access, reporting and judgments in the Court of Protection' (Small Places blog, 29/7/11). See Court of Protection

Dept of Health

  • Dept of Health, 'Procedure for the Transfer from Custody of Children and Young People to and from Hospital under the Mental Health Act 1983 in England' (dated June 2011, published 1/8/11). See Transfer direction

Care Quality Commission

Scotland

  • Mental Welfare Commission for Scotland, 'Not Properly Authorised: Unannounced visits to people receiving treatment under the safeguards of part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003' (July 2011). See also Mithran Samuel, 'Detained mental health patients treated without authorisation' (Community Care, 11/8/11). See Mental Welfare Commission for Scotland

Website

  • Dead 'mhrt.org.uk' links replaced on Mental Health Tribunal page, and page tidied up generally. See Mental Health Tribunal
  • The CPD questions for August 2011 have been uploaded. You can obtain 12 accredited CPD points for £60. See CPD scheme

Twitter

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