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February 2016 update

Case law

  • Legal Aid/freezing order case. Lord Chancellor v John Blavo [2016] EWHC 126 (QB), [2016] MHLO 6 — There was a strongly arguable case that John Blavo was party to an arrangement whereby false claims were submitted to the LAA in many thousands of cases, there was evidence of a less than scrupulous approach to his duty of disclosure to the Court, and evidence of a recent attempt improperly to put property beyond the reach of the Lord Chancellor. Taking these matters together there was a real risk that any judgment would go unsatisfied because of disposal of assets. Given the sums of money involved and the admitted financial difficulties it was just and convenient in all the circumstances to continue the freezing order. (The precursor to the official investigation was an audit during which 49 files were passed to the LAA's counter-fraud team, whose conclusions included: "In respect of 42 of these 49 files HMCTS have confirmed that they have no record of there having been tribunal proceedings either in respect of the individual client or on the date when the file indicates...Following this, the LAA made inquiries of the NHS on a selection of files among the 42 that had no tribunal hearing and the NHS confirmed that they have no records relating to 16 of the clients... After completing this analysis the Applicant undertook a further comparison of all mental health tribunal claims against the HMCTS system. As a result of this analysis, it was found that the Company had submitted a total of 24,658 claims for attendance at tribunals of which 1485 (6%) tribunals were recorded by HMCTS as having taken place... After visiting the Company's Head Office and requesting documentation from the Company and the Respondent, the LAA team used an electronic sampling tool to randomly select 144 cases for further investigation, across the last three complete financial years. Only 3% could be evidenced from HMCTS records...")
  • Legal Aid case. Public Law Project v Lord Chancellor [2015] EWCA Civ 1193, [2015] MHLO 136 — The proposed Legal Aid residence test was lawful (the High Court had been wrong to decide it to be ultra vires and unjustifiably discriminatory). The proposed test is described as follows in the judgment: "To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days). There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."§
  • Criminal case. R v Marcantonio [2016] EWCA Crim 14 — "This is the judgment in two cases, an appeal against conviction (R v. Marcantonio) and an application for permission to appeal against conviction (R v. Chitolie), which have in common the submission that the appellant/applicant in each case was unfit to plead, within section 4, Criminal Procedure (Insanity) Act 1964, at the time of his trial, and that this court should therefore quash his conviction and consider the exercise of its powers under section 6, Criminal Appeals Act 1968. A third case (R v. T) was heard at the same time. A separate judgment is handed down in that case which, because of the orders made, is subject to reporting restrictions."
  • Medical case. A Local Health Board v Y (A Child) [2016] EWHC 206 (Fam) — "In all the circumstances, therefore, I conclude that the course proposed by the clinicians is in Y's best interests. In accordance with the parties' ultimate agreement, I therefore conclude that (1) It is lawful and will be in Y's best interests for him to be extubated at the point where the clinicians, following discussion with Y's family, consider that his condition is optimal for extubation, and that "optimal" for these purposes is likely to mean when (a) he remains on minimal ventilation: (b) he has a body temperature of less than 37.5 and (c) that he has not required CPR for the previous 12 hours; (2) Upon extubation, it is lawful and in his best interests not to re-intubate him if he is unable to support his own respiration. (3) Upon extubation, it is lawful and in his best interests not to receive CPR (save for stimulation, which may be provided) or ventilation or inotropes."
  • Repatriation case. R (VC) v SSHD [2016] EWHC 273 (Admin), [2016] MHLO 7 — Repatriation case with mental health background. "There are two strands to the contentions made by the Claimant in this claim, as argued before me: (1) a challenge to the lawfulness of his detention on the basis that it was in breach of (a) the Defendant's policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant's detention; (b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant's removal within a reasonable timescale; and (c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time. (2) a challenge to the treatment of the Claimant in detention on the basis that it was: (a) in violation of Article 3 ECHR; (b) contrary to the Mental Capacity Act 2005; (c) discriminatory, contrary to the Equality Act 2010; and (d) procedurally unfair."

Office of the Public Guardian

  • Office of the Public Guardian, 'OPG's approach to solicitor client accounts' (Practice Note no 02/2016, 15/2/16). Detail from Government website: "This practice note explains the Office of the Public Guardian’s (OPG) approach to the use of client accounts to manage deputyship funds, and how the deputy acts under the Mental Capacity Act 2005 (MCA), the Solicitors Regulation Authority Accounts Rules 2011 (SARs) and the MCA Code of Practice." See Office of the Public Guardian

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Events

  • MHLA: Re-accreditation course - London, 24/3/16. — No results
  • MHLA: Foundation course - London, 9/3/16. — No results
  • MHLA: Foundation course - Manchester, 25/2/16. — No results

Website and CPD

  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.

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