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February 2011 update

Website and CPD

  • 06/02/11: The January and February 2011 CPD questionnaires have been uploaded. See CPD scheme for details
  • The scheme is primarily aimed at mental health solicitors, and is accredited by the SRA. The course will cover LSC category supervisors for their mandatory MHA- and MCA-related CPD hours. It is also suitable for barristers (established practitioners), psychiatrists, social workers and psychiatric nurses. For £50, you can obtain 12 CPD credits. Multiple-choice tests are published monthly and stay online for 12 months, and can be taken at any time during the 12-month subscription.
  • See February 2011 chronology for this month's changes to the website in date order.
  • On 31/12/10, the website had 926 categorised cases.

Case summaries

  • Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG [2011] EWCA Civ 190 — Judgment of Parker J upheld: neither P (aged 18, in a foster placement) nor Q (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court decision.]§
  • Re AB; D Borough Council v AB [2011] EWHC 101 (COP) — (1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children), or (c) that both (or all) parties to the act need to consent to it. (5) AB did not have the capacity to consent to and engage in sexual relations, and the regime for his supervision and for the prevention of future sexual activity was in his best interests. (6) The declarations were made on an interim basis, to be reviewed in nine months, with the local authority ordered to provide sex education in the hope that he gains capacity.§
  • R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77 — The appellant sought: 'A declaration that "is resident" in s117(3) Mental Health Act 1983 has the same (or substantially the same) meaning as "is ordinarily resident" under s24 National Assistance Act 1948, so that a person placed by a local authority under s21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 NAA and s117(3) MHA.' The court refused to grant the declaration as: (1) Parliament must have deliberately chosen a different formula for s117; (2) s117 was intended to be a free-standing provision, not dependent on the 1948 Act; (3) there was no legitimate way to interpret 'resident' as excluding a placement under s21. The court noted that the decision is in line with recent government guidance, and that the Law Commission's current project provides a much better forum for considering and remedying any defects in the present law.§
  • Massie v H [2011] EWCA Civ 115 — The general rule is that an appeal shall lie from a decision of a county court to the High Court. One exception is for final decisions in Part 7 CPR multi-track cases, which go to the Court of Appeal. (1) This exception does not apply in nearest relative displacement cases under s29 MHA as the application is made under Part 8 CPR; no other exception applied. (2) The court declared that it lacked jurisdiction and that a previous consent order was therefore a nullity. (3) Because of the passage of time and costs involved, rather than abandon the matter or simply transfer it to the High Court, the case was transferred to the High Court for one of the Court of Appeal judges to consider it as a High Court judge there and then.§
  • R v Welsh [2011] EWCA Crim 73 — Welsh appealed against a discretionary life sentence for diminished responsibility manslaughter, but was unsuccessful because (1) his propensity for violence, even before he suffered from paranoid schizophrenia, and the gravity of the offence, meant that public confidence would not be maintained by making a restricted hospital order, and (2) there was ample justification for the conclusion that he bore substantial responsibility and that there was a risk he would remain a source of danger even if his condition substantially improved once he received treatment and medication.§
  • NMC Conduct and Competence Committee decision: Josiah Foeka Amara 18/2/11 — Nurse was struck off for misconduct. The following charges were proved: 'That you, on or around 19 December 2005, whilst working as a Staff Nurse on Vincent Ward at the Gordon Hospital, Bloomberg Street, London SW1V 2RH: (1) Purchased crack cocaine in the company of Patient A, a patient on the ward; (2) Took crack cocaine with Patient A; (3) Had sexual intercourse with an unknown female when Patient A was also present in your flat; AND in light of the above, your fitness to practise is impaired by reason of your misconduct.' §
  • Hill v Fellowes Solicitors LLP [2011] EWHC 61 (QB) — Professional negligence claim including an allegation that a solicitor's firm negligently failed to make enquiries as to the client's capacity to understand the sale of her house.§
  • No transcript yet: Haworth v Cartmel and HMRC [2011] EWHC 36 (Ch) — Disability Discrimination Act, and lack of capacity, used to annul bankruptcy order.§

Legislation

Other documents etc

  • The Mental Health Lawyers Association is now an accredited provider of the two-day course which is compulsory for membership of the Law Society’s MHT Accreditation Scheme (formerly the MHRT Panel). The course will take place on Monday 14/3/11 and Tuesday 15/3/11 from 9.30am to 5.30pm. The presenters include Tribunal judges and peer reviewers who have a wealth of practical experience of representing patients at Tribunals. 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 details and booking form. See Courses and conferences
  • Oral ministerial statement, 'Statement on sex offenders' register' (16/2/11) added. In response to the Supreme Court decision in F and Thompson, the police will be given the power to remove a sex offender from the register; there will be no right of appeal. See R (F and Thompson) v SSHD [2010] UKSC 17
  • The Law Society have published a statement encouraging solicitors to use the CJSM secure email system. See Mental Health Tribunal
  • On 24/2/11 the LSC published a 'forms preview' for the April 2011 changes to their forms. There are very minor changes to Checklist (CK3), and changes to the following forms which do not relate to mental health law: CW2 (IMM), CW3A, CW3B, CW3C. See Legal Aid News
  • On 2/2/11 Nick Clegg MP announced that s141 (Members of Parliament suffering from mental illness) would be abolished. See MHA 1983 s141
  • New document added: Welsh Assembly Government, 'Implementing the Mental Health (Wales) Measure 2010: Guidance for Local Health Boards and Local Authorities' (dated January 2011, published 3/2/11). See Mental Health (Wales) Measure 2010
  • Tribunals Service customer notice: 'The First–tier Tribunal (Mental Health) office will be closed for Easter on Friday 22nd April and Monday 25th April. In addition the office will be closed on 29th April on the occasion of the Royal Wedding.' See MHT
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