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February 2010 update

Caselaw

  • RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC) — (1) The Tribunal's reasons for refusing to grant the absolute discharge of a conditionally-discharged patient, against the unanimous evidence of the treating team and an independent psychiatrist, were adequate. (2) The Tribunal disagreed not with the witness's assessments but with their conclusions as to whether the restriction order should cease to have effect: that was the kind of judgment for which it is difficult to give reasons beyond those required to show that the tribunal has directed itself correctly as to the law and to show to what matters the tribunal has had regard. (3) The extensive references to the SC case were enough to show that the Tribunal had the correct legal test in mind. (4) The restrictions can continue in the absence of any mental disorder, and risk from possible future disorder is relevant, so the criteria here are very different from those for discharge of a CTO: in the latter a focus on the short-term position might be appropriate, whereas the Tribunal here had also to consider what might happen in the long term. Manslaughter can be punished by a life sentence with release being on life licence: this is a powerful indication that Parliament intended a long-term view of risks to be taken; it is unsurprising that restrictions should in some cases remain in force for life. (5) The mere existence of current, or possible future, mental disorder is not enough to justify the continuation of a restriction order: regard must also be had to the seriousness of any risk of harm to others. (6) As under the new appeal system the First-tier Tribunal is not a party to proceedings, it is unsatisfactory for public authority respondents (the responsible authority and, in restricted cases, the Secretary of State) to make no submissions at all; submissions would assist even if drafted by non-legally-qualified caseworkers; for instance, the respondent might concede that the Tribunal erred in law but ask the Upper Tribunal to substitute its own decision rather than remit the case.§
  • CV v South London and Maudsley NHS Foundation Trust [2010] EWHC 742 (Admin) — (1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case§
  • Barber v LB Croydon [2010] EWCA Civ 51 — (1) The council's decision to seek an immediate order for possession, following an assault which was almost certainly linked with the claimant's learning difficulties and a personality disorder, without applying the Council's policy on vulnerable people, was Wednesbury unreasonable. (2) The DDA aspect of the appeal was unsuccessful: the question was not whether he was treated less favourably than a person without his disabilities but whether he should have been treated differently precisely because he has such disabilities and because they were a significant contributory factor to his behaviour that day.§
  • R (Degainis) v SSJ [2010] EWHC 137 (Admin) — In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of Article 5(4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 HRA 1998 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness of the original offence is not.§
  • R (Munday) v SSJ [2009] EWHC 3638 (Admin) — The MoJ's decision to recall the claimant, although contrary to the RMO's advice, was not Wednesbury unreasonable or otherwise flawed on conventional public law grounds: the disagreement was not on medical grounds but on whether, given the history of arson and recent disengagement, a mere allegation of and arrest for arson was sufficient justification for recall.§

Legislation

Legal Aid

  • The LSC published FAQs about mental health invitation to tender. See Legal Aid
  • The LSC published a March 2010 version of their "Where work is processed" document. See Legal Aid
  • CLS news item "LSC forms become mandatory on 1 April 2010". Previews of the new forms will be available on the LSC website at a later date. See Legal Aid
  • The Law Society published a Practice Note on the 2010 civil Legal Aid contract - a summary of the main changes to the Legal Aid contract 2010 and the tendering process. See Legal Aid#CLS News
  • The MoJ have published "Legal Aid: Refocusing on Priority Cases: Consultation Response". See Consultations
  • CLS News: "Mental Health tender process opens shortly", 4/2/10 - Reminder that the tender process, for work from 14/10/10, runs from 10/2/10 for 7 weeks, and the procurement plan has been published. See Legal Aid#CLS News
  • CLS News: "Legal help financial eligibility – advice for providers", published 2/2/10 - Advice on means evidence required for audit purposes. See Legal Aid#CLS News
  • The Public Account Committee published "The procurement of legal aid in England and Wales by the Legal Services Commission". This is a critical examination of the procurement and administration of legal aid in England and Wales. See Legal Aid#CLS News
  • The LSC started posting a newsletter to mental health law firms. The January edition includes confirmation that (1) all contract work and MHA/MCA/related public law licensed work is dealt with by Mental Health Unit in Liverpool, and (2) the new form EC Claim1 became mandatory on 1/11/09. The small print, bizarrely, states that "The views expressed in this publication may not be the views of the Legal Services Commission". See Legal Aid#CLS News

Dept of Health

  • Supervisory body contact details updated again on 26/1/10. See DOLS
  • On 9/2/10 the Dept of Health sent a Dear Colleague letter entitled "Access to health services for military veterans: priority treatment" - "This letter advises of the guidance in place to ensure that military veterans receive priority access to NHS secondary care, for any conditions which are likely to be related to their service subject to the clinical needs of all patients". See DH
  • The Dept of Health published "Clarification of Complaints Regulations 2009" on 28/1/10: "New regulations for handling NHS and adult social care complaints came into effect on 1 April 2009 - however, some local provider websites are still referencing the 2004 regulations. Additionally, clarification has been provided on the legislative position around complaints being handled by PALS, and cases where legal proceedings are being taken." See NHS complaints procedure

Other

  • The DPP published its Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. See Assisted suicide
  • The MoJ published "MoJ Circular 2010/03: Encouraging or assisting suicide: implementation of section 59 of the Coroners and Justice Act 2009" to explain amendments which came into force on 1/2/10. See Assisted suicide
  • The Law Commission published their consultation into adult social care. The consultation period ends on 1/7/10. See Law Commission
  • Text of 13/1/10, 1/2/10 and 25/2/10 MCA Update emails added, including changes to some contact details for Court of Protection and Office of the Public Guardian. See Office of the Public Guardian
  • The CQC launched "Consultation on our assessments of quality 2010-11", running from 2/2/10 to 27/4/10. See Consultations
  • The CQC published their 'Count me in' census for 2009 on 21/1/10. See Statistics
  • The Law Society Practice Note "Powers of attorney for banking" was published on 19/1/10: "This practice note is for solicitors who have been appointed as an attorney under an Ordinary Power of Attorney, Enduring Power of Attorney or a Lasting Power of Attorney and are authorised to manage a donor's financial affairs." See Lasting Power of Attorney#Resources

Website

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