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July 2011 update

Cases

Case summaries added

  • 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.]§
  • JP v Birmingham and Solihull MH NHS Trust (2010) Upper Tribunal 30/7/10 (HM/535/2010) — Unsuccessful appeal in which it was argued that the Tribunal's reasons for preferring the RC's and responsible authority's evidence to the evidence of independent experts were inadequate.§
  • Re PH; PH v A Local Authority [2011] EWHC 1704 (COP) — The following declarations were made: (1) PH lacks capacity in relation to the question on whether or not he should be accommodated at Y Court for the purposes of being given care and treatment; and (2) PH lacks capacity to make a decision as to his residence and care (the second declaration to remain in force for six months).§
  • 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.]§

Case transcripts only

Forthcoming judgments

  • Daily Mail, 'Judge gives go-ahead for medics to sedate and restrain woman with hospital phobia who needs cancer treatment' (8/7/11). 'A High Court judge has given medics permission to sedate and restrain a mentally-ill woman who has a phobia about hospitals but needs treatment for bladder cancer.' (quotation from article). See Settled cases and forthcoming judgments
  • Press articles about Re M, an application to Court of Protection for cessation of artificial nutrition and hydration of patient in minimally conscious state (as opposed to persistent vegetative state). Daily Telegraph, 'High Court judge gives brain-damaged sister right to die' (20/7/11) (inaccurate headline); Andy McSmith, 'Man pleads with court for right to end his partner's life' (Independent, 20/7/11). See Settled cases and forthcoming judgments

Cases given neutral citation

  • Re LD; London Borough of Havering v LD and KD [2010] EWHC 3876 (COP) — (1) The practice of the Court to appoint personal wefare deputies only relatively rarely, in the most extreme cases, is the correct approach, considering the intention of s16(4). Specific decisions of the court are to be preferred to the ongoing appointment of a deputy and when a deputy must be appointed it is to be for the narrowest scope and the shortest time reasonably practicable in the circumstances. (2) The local authority's application to be appointed as LD's personal welfare deputy until further order was rejected: the case was not especially unusual or difficult; residence had recently been resolved by the court, and the other issues were either routine (and thus subject to s5) or very major (requiring court scrutiny); the absence of a deputy would not cause problematic delay in decision-making, as as court orders can be obtained very swiftly, and was not preventing care or services being provided; mere convenience to a local authority in avoiding future court applications is not relevant.§
  • RN v Curo Care [2011] UKUT 263 (AAC) — (1) If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a CTO recommendation, then reaching that firm conclusion (as opposed to an provisional opinion), and preventing the patient from arguing to the contrary, was a breach of natural justice and the ECHR right to a fair hearing. (2) In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. (3) There would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future: the Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release [not sure what this means]. (4) The decision was set aside and remitted to a differently-constituted panel for reconsideration.§

Legislation

Statistics

  • NHS Information Centre, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) - Second report on annual data, 2010/11' (20/7/11). The key facts (abbreviated) are: (1) The total number of applications made was still much lower than expected for the second year; (2) The number of successful applications resulting in an authorisation to deprive a person of their liberty was about the expected number, though a much higher percentage of applications than expected were successful; (3) About 2 per cent of applications that were not authorised involved situations where the person was nevertheless judged as being in a situation that amounted to a deprivation of liberty; (4) Of those authorisations that were granted, more then half (55 per cent) were for a person who lacked capacity because of dementia; (5) 57 per cent of those applications made to a Local Authority were granted when applying for a deprivation of liberty compared to 50 per cent in Primary Care Trusts. See Statistics
  • They Work For You website: The number of complaints per mental health Trust per year from 2005-6 to 2009-10. See Statistics

Legal Aid

  • Legal Services Commission, 'Devolved powers in judicial review cases under the 2010 contract' (dated 31/7/11, published 27/7/11). The interim position has been extended to 31/1/12: devolved powers in JR cases may be exercised if a provider (a) has a contract in public law or the relevant category of law and (b) had such devolved powers under the previous contract. See Legal Aid News
  • LSC, 'CLS News: Emergency certificates now run for eight weeks – but check eligibility evidence and scope' (21/7/11). Emergency certificates granted from 1/5/11 will remain in force for eight weeks. See Legal Aid News
  • LSC, 'CLS News: Mental health legal services: your views on equality impact assessment' (21/7/11). This is a reminder that the deadline for submitting views on the options for next steps following the equality impact assessment on the high secure hospital contracts is 29/7/11. See Legal Aid News
  • LSC, 'CLS News: Mental health legal services: equality impact assessment published' (4/7/11), relating to LSC, 'Equality Impact Assessment of exclusive mental health legal services contracts in High Security Hospitals' (4/7/11). The LSC have concluded that there is no need for immediate change but have set out possible options for the future: (1) no change (the recommended option); (2) Exceptional circumstances to allow clients to retain their provider; (3) Individual arrangements at each hospital; (4) Wider choice of provider (e.g. 10) at each hospital through additional tender or extending number of 2010 contracts; (5) Wider choice of provider (e.g. 10) at each hospital through additional tender or extending number of 2010 contracts. Views on the decision and options are sought by 29/7/11. See Legal Aid News
  • LSC's refusal, in response to FOI request, to publish peer review decisions (5/7/11). See Peer review

Foreign-language forms

  • Patient information leaflets are available in the following languages: Arabic, Albanian, Bengali, Farsi (Persian), French, Gujarati, Hindi, Italian, Korean, Lithuanian, Mandarin, Pashto, Polish, Portugese, Punjabi, Russian, Somali, Spanish, Swahili, Sylheti, Tamil, Turkish, Urdu, and Vietnamese. The leaflets below were produced for a consortium of NHS Trusts and are available copyright-free. The leaflets cover: s2, s3, s5(2), s5(4), s136, s37, s37/41, s48, Guardianship, SCT, ECT, and IMHAs. See Foreign-language information leaflets

Dept of Health

  • Dept of Health, 'Pandemic Influenza and the Mental Health Act 1983: Response to Consultation on Proposed Changes to the Mental Health Act 1983 and its Associated Secondary Legislation' (29/7/11). The Government have concluded that all of the proposed temporary amendments (and further amendments to s5) would be an appropriate part of a package of contingency measures. The proposals requiring legislative changes are: (1) Allowing just one medical recommendation on an application by an AMHP for someone to be detained under sections 2 or 3 of the 1983 Act. (2) To facilitate C1 above, preparing special forms A2A and A6A for use by a doctor making a single medical recommendation. (3) Changing the number of doctors involved in decisions to transfer people from prison to hospital under Part 3 of the 1983 Act. (4) Suspending the obligation to obtain SOAD opinions on medication. (5). Suspending time limits... See Consultations#Department of Health for further details
  • Consultation on allocation options for funding for Local Healthwatch: PCT Deprivation of Liberty Safeguards (27/7/11 to 18/10/11). 'Subject to the passage of the Health and Social Care Bill, the Department (DH) will allocate funding for local HealthWatch and, potentially, PCT Deprivation of Liberty Safeguards from October 2012. This new funding will be added to the current DH Learning Disabilities and Health Reform grant. This consultation is asking for your views on options for distributing the new funding for local HealthWatch and PCT Deprivation of Liberty Safeguards (DOLS).' (quotation from DH website). See DH
  • Dept of Health, 'Good Practice Procedure Guide: The transfer and remission of adult prisoners under s47 and s48 of the Mental Health Act' (1/4/11). See Transfer direction
  • Dept of Health 'Consultation on preventing suicide in England: a cross-government outcomes strategy to save lives' runs from 19/7/11 to 11/10/11. See Consultations#Department of Health

Court of Protection

  • Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011). The report contains the following chapters: (1) Judiciary; (2) Court administration; (3) Work of the court; (4) Review of performance; (5) Case law; and (6) Volume of business. The case law chapter summarises 28 decisions made during the year. See Court of Protection
  • Ministry of Justice, 'Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers' (consultation paper CP9/2011, June 2011). Consultation runs from 28/6/11 to 20/9/11. See Consultations#Ministry of Justice
  • Text of MCA Update 1/7/11 email added. The 51 responses to the OPG fees consultation are being considered. See MCA Update emails
  • MoJ discussion paper on a proposed European Regulation on mutual recognition of protection measures in civil matters (consultation ended on 8/7/11). See Consultations#Ministry of Justice

Scotland

  • Scottish 'Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Adults with Incapacity (Scotland) Act 2000' runs from 18/7/11 to 10/10/11. 'This consultation seeks views on four issues on Adults with Incapacity (Scotland) Act 2000 Part 5 in relation to medical treatment. The issues are: widening the range of institutions which can offer training, whether dentists should be required to undertake training for this purpose; whether multiple section 47 medical treatment certificates should be required in some circumstances; and whether other medical practitioners not specified should be enabled to certify incapacity for medical treatment' (quotation from consultation). See Consultations#Scotland

Other

  • Mind, 'Legal E-newsletter' (issue 9, July 2011). The newsletter contains the following articles and news items: (1) Time for change – true non-discrimination in mental health law; (2) The Law Commission Proposals for Adult Social Care Law; (3) Independent Mental Health Advocates; (4) Supervised Community Treatment Orders; (5) Case reports on Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP) and McKie v Swindon College [2011] EWHC 469 (QB); (5) MHA 1983 s64C; (6) Ministry of Justice Court of Protection Consultation; (7) Adult Social Care Funding: Dilnot Commission Report; (8) Ministry of Justice: Draft Charter for the Current Coroner Service; (9) McKenzie Friends Practice Guidance (Civil and Family Courts); (10) Law Society practice note on representation before Mental Health Tribunals; (11) Legal Aid Update; (12) Local Government Ombudsman update; (13) Tribunal Procedure Rules Consultation; and (14) Equality Act Update. See Mind (Charity)
  • Lord Chancellor and Secretary of State for Justice, 'Monitoring places of detention: First annual report of the United Kingdom's National Preventive Mechanism: 1 April 2009 – 31 March 2010' (Cm 8010, February 2011). See CQC
  • BBC, 'TB treatment man Gary Clayden at Blackpool hospital' (19/7/11). In this case a s45G order was made but not used because the infected person attended hospital voluntarily
  • Daily Telegraph, 'Serial killers entitled to benefits, minister admits' (19/7/11). This tabloid-style article complains about the ability of hospital order patients to receive welfare benefits. See Welfare benefits

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