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June 2011 update

Cases

  • R (Cart) v Upper Tribunal [2011] UKSC 28 — Judicial review of an UT decision which is unappealable (here, the UT's refusal of permission to appeal to itself) is available where the second-tier appeal criteria apply (whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it).§
  • Cheshire West and Chester Council v P [2011] EWHC 1330 (COP) — (1) The new care plan was in P's best interests (paras 35, 39). (2) There was a deprivation of liberty (reasons given in paras 58-60). (3) A costs order was made against the local authority as the serious misconduct of its employees (including misleading the court under oath, failure to disclose documents and falsifying records) rendered the proceedings more costly (para 76). (4) The public interest in holding public authorities accountable amounts to a 'good reason' for naming the local authority; the scale of the possible identification of P was minor enough not to prevent this (paras 89-90).§
  • Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP) — (1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4).§
  • Wychavon District Council v EM (HB) [2011] UKUT 144 (AAC) — (1) The tenant lacked capacity so the tenancy contract was not valid, which meant that there was no liability to pay rent and therefore no entitlement to Housing Benefit. (2) The contract was void, not voidable, because the landlord knew the tenant lacked sufficient mental capacity to reach such an agreement. [Caution.]§
  • R (KM) v Cambridgeshire CC [2011] EWCA Civ 682 — (1) The assessment of needs was adequate. (2) There has to be a rational link between the needs and the assessed direct payments, but there does not need to be a finite absolute mathematical link, so the use of the Resource Allocation System (RAS) was lawful. (3) The explanation of the personal budget figure was rational.§
  • R v Goucher [2011] EWCA Crim 1456 — The hearing of an application for an extension of time and for permission to appeal against a restricted hospital order was adjourned in order to obtain evidence from the new Responsible Clinician.§

Cases - transcript only

  • SMBC v WMP [2011] EWHC B13 (COP) — HSG's application to be discharged as a party in a forced marriage protection order case was refused because there was good cause to believe that he may lack capacity (the test for interim orders). The judge set out a list of lessons learnt for future cases.§
  • Re C; C v Wigan Borough Council [2011] EWHC 1539 (Admin) — Judgment in related COP and Admin Court proceedings relating to an 18-year old with severe autism and severe learning disabilities living at a residential special school. Issues considered include deprivation of liberty and seclusion.§

Legislation

  • Legal Aid, Sentencing and Punishment of Offenders Bill 2011 — Summary of the Bill: 'To make provision about legal aid; to make further provision about funding legal services; to make provision about costs and other amounts awarded in civil and criminal proceedings; to make provision about sentencing offenders, including provision about release on licence or otherwise; to make provision about bail and about remand otherwise than on bail; to make provision about the employment, payment and transfer of persons detained in prisons and other institutions; to make provision about penalty notices for disorderly behaviour and cautions; and to create new offences of threatening with a weapon in public or on school premises.' Enacted as Legal Aid, Sentencing and Punishment of Offenders Act 2012
  • A Bill is currently being drafted to reduce the burden on the SOAD service by altering the certificate requirement for CTO patients: where the RC certifies that the patient has capacity there would be no need for a SOAD second opinion. See MHA 1983 s64C

Legal Aid

  • Ministry of Justice, 'Reform of Legal Aid in England and Wales: the Government Response' (Cm 8072, June 2011). Some points particularly relevant to mental health law are: (1) There will be a 10% cut in all civil fees, including mental health law (para 34). (2) Advice and representation under the MHA 1983 or MCA 2005 will remain in scope (para 86). However claims involving tort or other general damages claims will be excluded except where these meet the criteria for 'claims against public authorities' or 'claims arising out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault' (para 87). The 'claims against public authorities' criteria allow legal advice and representation for claims (typically claims for damages) against public authorities concerning 'abuse of position or power' or 'significant breach of human rights' (no longer for 'serious wrong-doing') (para 10ff). (3) Legal aid will remain available for judicial review and habeas corpus (subject to immaterial exceptions) (para 88ff). See Consultations#Ministry of Justice
  • CLS News, 'Legal aid reform: consultation response and Bill published' (21/6/11). This news item contains links to the consultation response and Bill, and notes that the Bill, in addition to reducing scope, eligibility and fees, will close the LSC and replace it with an executive agency of the MOJ. See Legal Aid News
  • LSC, 'Summary of changes to be implemented on 3 Oct 2011' (21/6/11). The 10% reduction, and other fee changes, will be implemented on 3/10/11. See Legal Aid News
  • Between May 2010 and May 2011, the LSC spent £7,196,813 on redundancies: a total of 94 people have so far been made redundant. The figures do not include those who left through other means, such as early retirement, the end of a secondment from another organisation, mutual terminations or compromise agreements. See Legal Aid News

Other

  • The Tribunal Procedure Committee is consulting on changes to the rules so that the Tribunal may (1) make a decision on a reference under s68 (duty of managers to refer cases to tribunal) without a hearing if the patient is a community patient and has consented to this; and (2) strike out a party's case without a hearing. The purpose is to save money. The rationale given for the first proposal is that community patients are often content with their position and do not want to attend the hearing or medical examination; that if the patient does not attend then full reports often mean there is little point having a hearing; and that hearings place an unnecessary burden on community patients, who are likely to be quite capable of making the necessary decisions and are entitled to IMHAs and Legal Aid. It is anticipated that all community patients would be posted a form inviting them to consent to their case being decided without a hearing. In relation to the second proposal, it is intended that the power would be used when it is obvious that the tribunal lacks jurisdiction. Consultation runs from 1/6/11 to 23/8/11. See Consultations#Mental Health Tribunal
  • The Scottish Government consulted on plans to increase the availability of rule 58 which allows the Tribunal, if all parties agree in writing, to dispose of a case without an oral hearing. All consultation responses were published on 15/6/11. See Consultations#Scotland
  • NHS Information Centre, 'Quarterly analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) Assessments (England)' (22/6/11). The 'key facts' listed are: (1) The number of authorisations completed was 2,308 in quarter 4; (2) Of the total assessments completed in this quarter, a higher proportion were for females than for males; (3) In quarter 4, 74 per cent of assessments were made by local authorities while the rest were made by primary care trusts; (4) The percentage of authorisations granted which led to someone being deprived of their liberty was 58 per cent in quarter 4; (5) At 31 March 2011 1,512 people were subject to such authorisations. See Statistics

Website/CPD

  • CPD questionnaires for April and May 2011 have been uploaded. Obtain CPD points online: see CPD scheme
  • Book uploaded. Eldergill — Anselm Eldergill, Mental Health Review Tribunals: Law and Procedure (Sweet and Maxwell, London 1997). Professor Anselm Eldergill has kindly given permission for his book to be reproduced on Mental Health Law Online. The copyright remains with the author. Given its publication date, the book is being reproduced here for historical and academic interest only.

I have not been able to get the original, obsolete word-processor files converted to PDF format. This web page contains a scanned version of the book. To view a chapter on screen, open it with Adobe Reader and click 'View - Rotate View - Clockwise'. We have also submitted the book to Google Books where it can be searched.§

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