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August 2014 update

Case law

Mental Health Act cases

  • Unlawful detention damages case. Bostridge v Oxleas NHS Foundation Trust [2014] EWCA Civ 1005, [2014] MHLO 85 — The judge had awarded only nominal damages because the patient had suffered no loss as a result of his unlawful detention. The Court of Appeal gave permission to appeal, stating as follows: "Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss. I have been persuaded that these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent." §
  • Upper Tribunal decision. Re MM [2013] MHLO 150 (UT) — (1) The tribunal did not misdirect itself by applying the s2 criteria to a s3 case. (2) However, the tribunal's reasoning was inadequate. The tribunal stated that all the evidence was to the effect that MM's mental disorder 'warrants his treatment in hospital' (this is language from the s2 criteria), but it was only (part of) the medical evidence in which there was any confusion as to the criteria. The findings of fact (that the condition was chronic and relapsing etc) did not show that the mental disorder warranted detention (or made it appropriate). The only finding that could support the tribunal's decision was the medical evidence, which was affected by reference to the wrong legal test. In those circumstances the tribunal should have (a) shown that they had applied the correct criteria and not made the same mistake as the doctor, and (b) shown by precise findings of fact that the s3 criteria were satisfied. A blanket reference to a possibly-contaminated report did not suffice, and the tribunal made things worse by expressing its legal conclusions in the same confused terms as the medical report.§ (Transcript provided by Jonathan Litchfield of Burke Niazi Solicitors.)

Capacity cases - DOL

  • Post-Cheshire judgment. Re X (Deprivation of Liberty) [2014] EWCOP 25, [2014] MHLO 86 — "The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved. ... This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the [rules] Committee. A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions ... not dealt with in this judgment."§
  • Neil Allen, Alex Ruck Keene and Victoria Butler-Cole, 'Mental capacity law guidance note: Judicial deprivation of liberty authorisations' (8/8/14). The introduction to this document states: "[W]e outline here how an application for judicial authorisation to deprive liberty ought now to be made in light of Sir James Munby P's first judgment. We suggest that this guidance applies immediately - i.e. there is no need to wait until new application forms are developed before making applications." See Re X (Deprivation of Liberty) [2014] EWCOP 25, [2014] MHLO 86
  • Deprivation of liberty case. Liverpool City Council v SG [2014] EWCOP 10, [2014] MHLO 67 — "This case raises the following question: Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children's home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children's Homes Regulations 2001 (as amended)? Both parties and their counsel in these proceedings submit that the answer is 'yes'. I agree with them that the answer is 'yes'."§
  • Deprivation of liberty case. TX v A Local Authority [2014] EWCOP 29, [2014] MHLO 117 — "X is a retired lawyer who has suffered, or appears to have suffered, from Korsakoff's syndrome, a mental illness related to the over-consumption of alcohol. ... An urgent authorisation was obtained on 1st May and a standard authorisation to detain him on 13th May. ... X appealed that standard authorisation, hence the case being listed before me in late May. ... X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end."§
  • Deprivation of liberty case. Re UF (No 2) [2014] EWCOP 18, [2014] MHLO 78 — "The proceedings were launched by AF, UF's youngest daughter, in August 2013 as a challenge under section 21A MCA 2005 to the standard authorisation of deprivation of liberty. The remit of my enquiry at this hearing was defined by order of Charles J in May 2014, thus: (i) Is it in UF's best interests to return to her home to live with a contingency plan of maintaining her current placement for a period of time? (ii) Should direction be given to the LPA finance about releasing equity from UF's property to pay for her care? (iii) Should the LPA finance be replaced by a Deputy appointed by the Court? (iv) Would any care regime at home still represent a deprivation of liberty?"§

Capacity cases - welfare

  • Capacity case. LBX v TT [2014] EWCOP 24, [2014] MHLO 84 — (1) Consideration of evidence relevant to the capacity of TT to litigate, to make decisions about residence, contact and her package of care, and her capacity to consent to sexual relations, and findings in that regard. (2) Consideration of "(i) How I should approach a 'best interests' decision at an interim hearing (MCA 2005 s48) which has been set up for the calling of reasonably extensive oral evidence; (ii) What factors should influence the exercise of the court's discretion in deciding whether there should be a finding of fact hearing at an interim (or final) hearing?" (3) Findings of fact. (4) Best interests and declarations.§
  • Capacity case. Norfolk CC v PB [2014] EWCOP 14, [2014] MHLO 75 — "The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection.§
  • Court of Protection Handbook Blog, 'A shot across the bows of practitioners' (17/7/14). This article focusses on Parker J's comments on the conduct of cases before the Court of Protection. See Norfolk CC v PB [2014] EWCOP 14, [2014] MHLO 75
  • Alex Ruck Keene, 'A true tangle - capacity, influence and the inherent jurisdiction' (Mental Capacity Law and Policy, 23/7/14). This article expresses concerns about Parker J's approach to capacity and influence, and the inherent jurisdiction. See Norfolk CC v PB [2014] EWCOP 14, [2014] MHLO 75
  • Sex case. A Local Authority v TZ (No 2) [2014] EWCOP 973, [2014] MHLO 72 — "The principal focus of the latest assessments has been the issues that may arise as TZ endeavours to meet, and form intimate relations with, other men. TZ is clear that he wishes to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question is whether he had the capacity in respect of decisions that may have to be made when that opportunity arises. Following discussion at the hearing, it was agreed that the issues now arising can be summarised as follows: (1) What is the relevant decision in respect of which the question of capacity arises? (2) Does TZ lack capacity in respect of that decision? (3) If yes, what orders should be made in TZ's best interests? (4) Should the court appoint the local authority to act as TZ's welfare deputy?"§
  • Capacity case. GW v A Local Authority [2014] EWCOP 20, [2014] MHLO 59 — "In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of Liberty Safeguards in Schedule A1 to the Act and/or is compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The fact that this point had been raised was a material consideration in my decision to grant permission to appeal against Judge Marston's order. In their response to this appeal, the first respondent, the local authority for the area where GW lives, being the supervisory body for the purposes of the DOLS, and the second respondent, ('B Ltd') the owners and managers of the residential home where GW is currently living, contended that this proposed appeal amounted in effect to a second appeal following the decision of the district judge. Under rule 182 of the Court of Protection Rules 2007, 'a decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal'. At the outset of the hearing before me, Miss Weston on behalf of the appellant (who did not appear at first instance) conceded that this provision ruled out my consideration of the proposed further appeal. Accordingly, the only question for this court to determine is the appeal on the issue of capacity."§
  • Capacity case. Re RGS (No 3) [2014] EWCOP B12, [2014] MHLO 76 — "The primary issue was whether it continued to be in RGS's best interests to reside at X Care Home having regard to the fact that he had been injured there. The two secondary issues concerned contempt of court and reporting restrictions."§
  • Capacity case. Re RGS (No 2) [2013] MHLO 147 (COP) — "On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended."§

Capacity cases - medical

  • Medical case. Re X (amputation) [2014] MHLO 89 (CA) — The Court of Protection had decided that X lacked capacity to consent to a below-knee amputation to treat her foot infection, and that this treatment was in her best interests. The Court of Appeal refused her son permission to appeal. (1) The judge's decision on capacity was correct. (2) The judge was also correct on best interests: there was no need for further tests to determine best interests; the medical experts had no difficulty reaching their conclusions and there was no disagreement; the alternatives were unsuitable (for example, antibiotics would cease to be effective); the son was worried about death in theatre, but in fact surgery gave X the best chance of survival; her condition was deteriorating and the infection would spread without amputation. (Summary based on Lawtel report of ex tempore judgment - transcript not available at time of writing.)§
  • Medical case. County Durham and Darlington NHSFT v PP [2014] EWCOP 9, [2014] MHLO 65 — "The Trust seeks the Courts authority, and corresponding declarations, as to P's treatment, in particular the possible withdrawal, or non-escalation of, life-sustaining treatment as part of an end of life care package. The Trust contends (and interim declarations have been made to this effect already) that P lacks the capacity to litigate, and to make decisions in relation to the serious medical treatment in issue in this application. Specifically the Trust seeks the following declarations pursuant to section 15(1)(c) of the Mental Capacity Act 2005: (a) That it is lawful and in P's best interests to continue to receive artificial hydration via subcutaneous injection. (b) That it is lawful and in P's best interests that the Trust's treating clinicians shall be permitted: (i) Not to provide artificial nutrition by a percutaneous endoscopic gastrostomy tube or via an alternative artificial feeding regime; and (ii) Not to resuscitate her in the event of either a cardiac or respiratory arrest."§
  • Caesarean/contraception case. The Mental Health Trust v DD [2014] EWCOP 13, [2014] MHLO 62 — "By judgment dated 4 July 2014 ... I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section. Further to a scheduled hearing which took place in the following week, I now consider: (i) Whether it is in DD's best interests that the Applicants should be authorised (a) to provide DD with education in relation to contraception, and then (b) to assess her capacity to make decisions in relation to contraception; ... (ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment; (iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005) that DD currently lacks the capacity to make decisions in relation to contraception; (iv) If there is reason to believe that she currently lacks capacity (in relation to (iii) above), whether it is in DD's best interests that a short-term contraception be administered by way of injection (and authorise the Applicants' staff to do so)."§
  • Caesarean/contraception case. The Mental Health Trust v DD [2014] EWCOP 11, [2014] MHLO 61 — "DD is 36 years old. She is at an advanced stage of pregnancy. She has had an extraordinary and complex obstetric history and is now expecting her sixth baby. She has a mild to borderline learning disability, and an autistic spectrum disorder. By application dated 23 May 2014, the Applicants seek declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. Specifically, and significantly, they seek a declaration as to the lawfulness in arranging for DD's baby to be delivered by planned caesarean section. The Applicants seek a further order authorising the conduct of an assessment of DD's capacity to make decisions about contraception, following the imminent birth. DD's five older children are all cared for by permanent substitute carers; four of the children have been adopted."§
  • Caesarean/contraception case. The Mental Health Trust v DD [2014] EWCOP 8, [2014] MHLO 60 — "The issues for decision relate to DD, a woman in her mid thirties with diagnoses of autistic spectrum disorder and borderline learning disabilities. In summary they are: (a) Whether DD lacks capacity to make decisions in relation to her healthcare and, in particular, lacks capacity to consent to a placental localisation scan and an ante natal assessment; (b) Whether it is in her best interests to undergo such a scan and assessment; (c) Whether the Applicants should be authorised to take such necessary and proportionate steps so as to give effect to the 'best interests' declaration to include forced entry, restraint and sedation. This brief judgment is given for two reasons (i) to set out my capacity and best interests' determinations and (ii) for the benefit of Cobb J who is to be the allocated judge at two further hearings."§
  • Medical case. An NHS Trust v J [2014] EWCOP 2675, [2014] MHLO 58 — "This application concerns an elderly lady of 79 years whom I shall call 'Mrs J'. She has longstanding mental health problems and now also cancer. Many professionals concerned for her welfare have with much care and diligence come to the view that it is in her best interests for her to have investigations and to receive treatment; but she is resistant and, in spite of all professional efforts and advice, not willing to consent. Accordingly, on 3rd July 2014, the relevant NHS Trust issued a notice of application in the Court of Protection seeking declarations: (1) that Mrs J lacks capacity to litigate in these proceedings; (2) that she lacks capacity to take decisions about the proposed medical investigations and treatment; and (3) that it is in her best interests to have those investigations and treatment. ... Taking all aspects of the case into account and weighing them up, I have come to the conclusion that Mrs J's best interests would be served by the proposed investigations and treatment. I shall make declarations accordingly, as already discussed with Counsel, detailing the necessary treatment and other consequential arrangements."§
  • Medical case. Re A (A Child) [2014] EWCOP 920, [2014] MHLO 77 — "A, the young person with whom I am concerned, will be 16 years old in June of this year. At the time I am hearing this application, brought by an NHS Foundation Trust, A weighs just 5 ½ stones and has been in hospital for 10 months. ... On the 9th January 20014 the Trust applied for declarations inter alia (i) that it is lawful and in the best interest of A to have a Nasojejunal tube inserted and reinserted on any occasion that it is removed; (ii) it is lawful and in the interest of A to receive fluids, nutrition and medications through a Nasojejunal tube; (iii) it is lawful and in A's best interest to receive treatment (to include psychiatric, psychological and medication as prescribed by her consultant treating psychiatrist) and assessment by the child and adolescent mental health team."§

Capacity cases - financial

  • LPA case (attorney 'named and shamed'). Re DP: Public Guardian v John Marney [2014] EWCOP 7, [2014] MHLO 69 — "The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had "behaved in a way that has both contravened his authority and has not been in DP's best interests. ... At the end of the day the issue is really very simple. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge's findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be if his self-same conduct was being considered in the Chancery Division or the Crown Court? ... In these circumstances, and with all respect to the Senior Judge, the balance comes down heavily and decisively in favour of the public being told who JM is; in favour of the Daily Mail and others being free to identify him as the person referred to by the Senior Judge in his judgment. JM is John Marney."§
  • Deputyship case. Re EU (Appointment of deputy) [2014] EWCOP 21, [2014] MHLO 64 — "EU's sons, JU and TU, have objected to an application by Suffolk County Council to be appointed as his deputy for property and financial affairs. ... Having regard to all the circumstances, therefore, I am satisfied that it is in EU's best interests to appoint Suffolk County Council to be his deputy for property and affairs and to dismiss his sons' objections."§
  • LPA case. Re VH (Revocation of Lasting Power of Attorney) [2014] EWCOP 15, [2014] MHLO 63 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney for property and financial affairs. ... Because of DH's lack of credibility, his inexperience in assessing capacity, his vested interest in the outcome, and because of the complicated nature and effect of the particular transaction that he required VH to enter into, I prefer the Special Visitor's opinion that she probably lacked capacity to DH's bold assertion that his mother 'fully understood what she was doing' when she entered into the mortgage and handed over to him the money that had been advanced by Barclays Bank. I am not satisfied that on 21 October 2011 VH had the capacity to enter into the transaction, which not only severely depleted her capital but also had adverse impact on her income, and I am not prepared retrospectively to approve the gift because it was neither reasonable nor affordable. VH may need these funds in future to pay for her care, either in her own home or in a residential care home or nursing home. I am satisfied that VH lacks the capacity to revoke the LPA and that DH has behaved in a way that has both contravened his very limited authority to make gifts under section 12 of the Mental Capacity Act 2005 and has not been in VH's best interests. Accordingly, I revoke the LPA and direct the Public Guardian to cancel its registration."§

Capacity cases - costs

  • COP costs. N v E [2014] EWCOP 27, [2014] MHLO 91 — "This judgment relates primarily to the costs of the proceedings and, in particular, whether M should be made to pay her own costs or whether they should be assessed and paid from E's estate. ... The judgment concludes with a brief discussion of how the court was able to salvage E's preferences for medical treatment at the end of her life from the wreckage caused by the termination of the appointment of her health-care proxy. This aspect of the proceedings was uncontested and reflects the consensus of all parties."§
  • COP costs case. LB Redbridge v G (No 4) [2014] EWCOP 5, [2014] MHLO 66 — "Stripped of all rhetoric, the essential point here is very simple: it is that [Associated Newspapers Limited] made an application, to be joined in proceedings in which it had no legally recognised interest, which was seemingly unprecedented (para 52 of my previous judgment), which was, as I said, misconceived and which failed completely. The question at the end of the day is whether in all the circumstances, and having regard in particular to the matters referred to in CoPR 2007 rule 159, it is right to depart from the general rule in rule 157. In my judgment it is, given the way in which I have characterised ANL's application and the reasons why it failed. But that does not mean that ANL should necessarily have to pay all the costs, and I have concluded that that would be to go too far. There are, in my judgment, three factors which, taken in combination, justify this conclusion: first, the public importance of the issues; secondly, the stance adopted beforehand in particular by the Official Solicitor; and, thirdly, the fact that I do not see why ANL should be required to pay two sets of costs. Doing the best I can, and readily acknowledging that any figure is to an extent arbitrary, my conclusion is that ANL should be ordered to pay 30% of the costs of the local authority and 30% of the costs of the Official Solicitor (including his costs of instructing two counsel). The costs, if they cannot be agreed, will have to be the subject of detailed assessment. In concluding I wish to make one thing absolutely clear. The essential factor driving the order for costs I have made in this case was, in addition to the fact it failed, the nature of the application, namely an application to be joined as a party. It should not be assumed that the same approach would have been appropriate if the dispute had been, as it usually is in cases involving the media, a dispute as to the need for or the ambit of a reporting restriction order. Very different considerations arise in such cases. Conventionally, there is often no order for costs, whatever the outcome. Nothing I have said here is intended to have any application in such cases."§

Capacity cases - other

  • Capacity case. MAP v RAP [2013] EWHC 4784 (Fam), [2013] MHLO 151 — A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance.§
  • Capacity case. Re P (capacity to tithe inheritance) [2014] EWCOP B14, [2014] MHLO 74 — Headnote from judgment: 'Application by the local authority deputy for property and affairs - Whether P has capacity to tithe 10% of his inheritance to the Church of the Latter Day Saints - Mental Capacity Act 2005 test and the common law test in Re Beaney - Whether such a gift is in P's best interests - Whether P has litigation capacity'§
  • Contempt case. Derbyshire County Council v Kathleen Danby [2014] EWCOP B22, [2014] MHLO 73 — "Before me today the local authority contends that this Respondent Grandmother, Kathleen Danby, is in breach to a significant degree of the injunction granted by Her Honour Judge Thomas. ... Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has. I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment. ... In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months' imprisonment concurrently. I shall issue a warrant for her arrest and list the matter for review, I think in two months' time, unless Miss Cavanagh tells me that it is a wrong date to choose, in which case I shall listen to what she has to say. I shall direct that this lady can come before the court, mitigate and try to persuade me to take a different view if she can justify her behaviour and explain to me what she has done and why it is not as bad as I see it to be."§
  • Capacity case. A Local Authority v B, F and G [2014] EWCOP B21, [2014] MHLO 71 — "The local authority seeks that the father and grandmother should not have any contact with her save by indirect supervised telephone calls once every four weeks and no other. The local authority takes the view that that position should continue for a period of five years. ... However, should the restriction of applications to Court be as long as five years? I have borne in mind the very careful submissions of Ms. Lattimer, and I bear in mind, too, that B wants to see her father, even though she does not appreciate the dire emotional effects he appears to have had on her. I have concluded that it would be right to restrict applications to vary the injunction for a period of four years only. That is still a very substantial period and quite outside the norm."§
  • Capacity case. A Local Authority v B, F and G [2014] EWCOP B18, [2014] MHLO 70 — "This case raises the novel point as to whether or not a Hadkinson order can be granted in the Court of Protection and whether or not, in the circumstances of this particular case, it should be. I am unaware of there being any previous such orders in the Court of Protection, though it seems to me that that is no impediment to one being made in a case like this involving contempt, such as this."§
  • Capacity case. Press Association v Newcastle Upon Tyne Hospitals Foundation Trust [2014] EWCOP 6, [2014] MHLO 68 — "This application arising from proceedings in the Court of Protection raises questions about the continued confidentiality after a person's death of information gathered during litigation occurring during her lifetime. The first question is whether an order that preserving the person's anonymity (and hence the confidentiality of information about her) can continue to have effect after her death. If such a power exists, the second question is whether it should be exercised in the present case. For the reasons set out below, I consider that the court does have the power to preserve the anonymity of the protected person after death but that in this case the balance falls in favour of lifting that anonymity."§
  • ICLR case report added: [2014] WLR (D) 43. RC v CC [2014] EWHC 131 (COP), [2014] MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment."§

Miscellaneous cases

  • Welfare benefits case. NMcM v SSWP (DLA) [2014] UKUT 312 (AAC), [2014] MHLO 88 — "What is meant by the statutory expression 'a state of arrested development or incomplete physical development of the brain'? This is one, but only one, of a number of tightly defined conditions which must be satisfied under the 'severe mental impairment' rules in order to qualify for the higher rate of the mobility component of disability living allowance. It is the main issue arising on this appeal. Social Security Commissioner’s decision R(DLA) 2/96 has long been recognised as authority for the proposition that the human brain is fully developed before an adult reaches the age of 30. On that basis it has been consistently held that a person who suffers from what would otherwise be regarded as 'a state of arrested development or incomplete physical development of the brain' does not qualify under the SMI rules if that condition first occurs after the age of 30 (e.g. as a result of traumatic brain injury). I refer to this as the 'age 30 cut-off rule'. In the light of the expert evidence reviewed in this decision, I decide that the age 30 cut-off rule is no longer good law and R(DLA) 2/96 should no longer be followed in that respect."§
  • Confiscation order case. R v Ali [2014] EWCA Crim 1658, [2014] MHLO 87 — Confiscation order case with mental health background. One of the three principal issues was: "Whether the judge erred in not adjourning the appellant's case before proceeding with the confiscation hearing in order to seek further medical evidence about his re-admission to hospital and in refusing to stay the proceedings as an abuse of process in the light of the appellant's circumstances and mental health." §
  • Family case. LB Bexley v V [2014] EWHC 2187 (Fam), [2014] MHLO 82 — "This matter is listed for a directions hearing at my direction in light of the contumelious failure of the London Borough of Bexley to comply with directions set out in an order of 12 May 2014. By paragraph 19 of that order the local authority were to file their final evidence by 4.00pm on 2 June. ... I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing."§
  • Welfare benefits case. JP v SSWP (DLA) [2014] UKUT 275 (AAC), [2014] MHLO 81 — "This [welfare benefits] appeal raises the issue of whether the claimant, who was 12 years old at the date of the hearing, should have been allowed to give evidence to the tribunal or at least to attend the hearing. I have decided that the approach to children, whether as witnesses or as persons present in the hearing room, has to be updated in order to be consistent with the international obligations on the rights of children, the right to a fair hearing and the right to family life. This approach is reflected in decisions of the Court of Appeal and Supreme Court in family cases. Doing so, requires some modification to the guidance given by the Tribunal of Commissioners in R(DLA) 3/06 and some care in applying the Senior President’s Practice Direction."§
  • Immigration case. R (SA (Holland)) v SSHD [2014] EWHC 2570 (Admin), [2014] MHLO 79 — 'In these proceedings the claimant SA challenges his detention by the defendant under immigration powers. ... Permission was granted ... on what were then grounds 1 and 3 of the grounds of claim: that the defendant made public law errors in the application of her policy for detention of the mentally ill (ground 1) and that the claimant's detention was in breach of the Hardial Singh principles ... (ground 3). Ground 2 claimed that the policy on the detention of the mentally ill was itself unlawful. ... in the light of the decision of the Court of Appeal in R (Das) v SSHD the claimant no longer pursues that ground.'§
  • Community care case. R (Whapples) v Birmingham CCG [2014] EWHC 2647 (Admin), [2014] MHLO 57 — "The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant has an obligation under section 3 of the National Health Service Act 2006 to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS. ... The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits."§

Legislation

  • Legislation. Care Act 2014 — Section 75 amends MHA 1983 s117 by: (1) defining 'after-care services'; (2) referring to 'ordinarily resident' (rather than 'resident') and providing for disputes to be resolved by the Secretary of State; (3) permitting regulations to deal with top-up fees for preferred accommodation.
  • Anuara Ali, 'The Care Act 2014 - Changes to Section 117 Mental Health Act 1983' (14/7/14). See Care Act 2014

Legal Aid Agency

  • Legal Aid Agency, 'Escape Cases Electronic Handbook' (v1.1, 17/7/14). This is the guidance document used by LAA caseworkers and includes a section on mental health escape fee cases. See Legal Aid
  • Legal Aid forms. The LAA have now decided that the new forms will be optional from 4/8/14 but only compulsory from 1/9/14. Further details of transitional arrangements are on the MOJ website. See Legal Aid forms

Mental Health Tribunal

  • Form CMR1 (31/7/14). A new Part D has been added with the following two tick boxes: "A Pre-hearing Examination by the tribunal doctor is requested because: (a) the patient wishes there to be such an examination; (b) the patient lacks the capacity to make such a decision, and the patient’s representative wishes there to be such an examination." It then has an empty text box preceded by: "Requests for a pre-hearing examination by the tribunal doctor will be granted automatically if received by the tribunal 14 days or more before the hearing. [Send to] prelimexaminations@hmcts.gsi.gov.uk Otherwise reasons must be given to show why a pre-hearing examination is necessary for a fair and just disposal of the case. Where required, the reasons for this request are: ..." The covering email from the secretariat states: "It is important to note that for a Pre Hearing Examination request received less than 14 days prior to the hearing date, a CMR1 is required in all cases as they will require a Judicial decision. Please also note: Requests for a pre-hearing examination will be granted automatically if received by the tribunal 14 days or more before the hearing. Requests should be made on the T129 form and emailed to prelimexaminations@hmcts.gsi.gov.uk Any requests received on or after the 4 August that are not on either the T129 or CMR1 will not be actioned and may be returned to you." See Tribunal forms
  • Form HQ1 (5/8/14, v4). An additional box has been added stating: 'If the patient is legally aided, please confirm that an accredited member of the Law Society’s Mental Health Panel will be representing the patient at the hearing.' See Tribunal forms#Update
  • Senior President of Tribunals, 'Forthcoming revision to the Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses' (29/7/14). The text of the message is: 'In light of the recent judgment of the Upper Tribunal (Administrative Appeals Chamber) JP v SSWP (DLA) [2014] UKUT 275 (AAC), [2014] MHLO 81 dated 11 June 2014, it is necessary for me to revise the Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive witnesses. The Practice Direction will be brought into line with developments in the law in this field. The revised Practice Direction will be published in due course.' See Practice Direction: Child, Vulnerable Adult and Sensitive Witnesses (30/10/08)

Ministry of Justice

  • Ministry of Justice, 'Lasting powers of attorney applications to be made simpler and easier' (press release, 21/8/14). See Lasting Power of Attorney

Law Society

  • Law Society, 'Law Society calls for legal aid to be exempt from consumer contract rules' (press release, 30/7/14). The Law Society has written a letter to the government calling for Legal Aid to be made exempt from the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. However, subject to the usual disclaimer, the following points should be considered: (1) The Law Society's reference to specific areas of legal aid work, including cases involving detained people such as mentally-ill people, does not take into account of regulations 7(4) and 27(3) which state that the 'information requirements' and 'right to cancel' parts of the regulations do not apply to off-premises contracts where the consumer pays the trader no more than £42. In this context the client is a consumer and the solicitor is a trader. Therefore, in any off-premises Legal Aid work where the client pays nothing to the solicitor, those regulations do not apply at all: this covers all mental health controlled work (all Legal Help and Controlled Legal Representation, including all Tribunal work) and all certificated work where the client does not pay a financial contribution. (2) Incidentally (as it is not relevant to mental health law), the Law Society's reference to Legal Aid telephone advice is based on a misunderstanding of regulation 36. Telephone contracts are distance (rather than off-premises) contracts so, while the regulations do apply, the client's request (for work to be done during the cancellation period) does not need to be on a durable medium. (3) If the client terminates the retainer the LAA would, as normal, have to pay the solicitor under the contract between them. (4) The government must obey the relevant European Union directive (2011/83/EU) and therefore lacks the power to amend the regulations in the manner sought by the Law Society. See Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

Newsletter and article

Book

Event

  • Event. The Mental Health Lawyers Association are running a two-day 'Introduction to the Court of Protection' course on Tuesday 9/12/14 and Wednesday 10/12/14 in London. The course will have a practical focus, including a detailed case study and precedents for use in practice. Speakers: Sophy Miles and Floyd Porter. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further information. See Events
  • Event. Edge Training are running a one-day course entitled 'BIA and Mental Health Assessors Legal Update' on Monday 8/9/14 in London. The course is aimed at DOLS assessors wishing to keep up to date on law and practice. Price: £115 plus VAT. The speaker will be Aasya Mughal (barrister). See flyer for further details and booking information. See Events

Job advert

  • Job advert. Needham Poulier Solicitors in London are seeking a new supervisor with mental health panel membership for their mental health department. Closing date: Friday 5/9/14. For full details see Job adverts

Retweets archive

  • 21/08/14: @CWCoP: New #LPA applications to be made simpler http://tinyurl.com/ndjxjdj in part of continuing role out of digitalised services by the #OPG
  • 12/08/14: @JoshuaRozenberg: Unexpectedly sensitive decision from ECtHR in refusing damages to non-voting prisoners. Court may be seeking to avoid confrontation with UK.

Website and CPD

  • CPD scheme. The CPD questionnaire for June 2014 is now available. Obtain 12 accredited CPD points online for £60. See CPD scheme

Twitter

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