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June 2015 update

Case law

  • Capacity/housing case. R (MT) v Oxford City Council [2015] EWHC 795 (Admin), [2015] MHLO 47 — The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the Housing Act 1996. (1) The claimant's argument that Article 14 (with Article 8) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 National Assistance Act 1948).§
  • Deprivation of liberty procedure. Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44 — This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (MCA 2005 s53), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, so the streamlined "Re X" procedure was not compliant with Article 5. (Detailed summary on case page.)§
  • Social circumstances evidence. AF v Nottinghamshire NHS Trust [2015] UKUT 216 (AAC), [2015] MHLO 43 — "There is nothing in the law that requires the social circumstances report to have been written by a social worker or CPN and not a nurse, or requiring that the nursing report and social circumstances reports must have different authors, and the tribunal therefore did not err in law in having those two reports before it. Nor was there any legal requirement on the report’s author to attend the hearing and so the tribunal did not err in law in allowing another nurse to attend and speak to that report. Further, the question of whether any deficits in the report (assuming there were such) led the tribunal to err in law must be judged on the facts of the individual case. In a case where the tribunal decided that the appellant had not got to the point of being able to be discharged and needed to remain under section, the relevance of any after-care package in place simply falls away. And the tribunal adequately explained why it was not adjourning."§
  • Guardianship and DOLS case. KD v A Borough Council [2015] UKUT 251 (AAC), [2015] MHLO 42 — "Permission to bring this appeal was granted by the First-tier Tribunal (the FTT) because in the view of the judge it raises points upon which guidance is needed. Those points concern the relationship between the functions and powers of the FTT under the Mental Health Act 1983 (the MHA) and those of the Court of Protection, managing authorities and supervisory bodies under the Mental Capacity Act 2005 (the MCA) and its Deprivation of Liberty Safeguards (DOLS). The most relevant provisions of the MHA in this case are those relating to guardianship." This judgment includes guidance under the headings "The approach to be taken by the parties and the FTT on an application to discharge a guardianship under s. 72 of the MHA on the basis that an alternative has the consequence that the guardianship is no longer necessary as it is not the least restrictive way of achieving what is in the patient’s best interests" and "A check list for FTT’s when an issue involving an argument that an alternative involving the application of the MCA is said to be the basis for a discharge of guardianship".§
  • Miscellaneous case. Re A [2015] EWHC 1709 (Fam), [2015] MHLO 45 — "The Local Authority applies for a secure accommodation order in respect of her under s.25 of the Children Act 1989. The Local Authority's case is that A is a danger to herself and others, and that she is no longer containable in any form of ordinary residential unit. ... Put in lay language, the expert consensus of CAMHS is that A's problems, although recognised as being severe and extreme, are not of a mental health or psychiatric nature; but rather are of a behavioural nature. Therefore, admission to a Young Person's Psychiatric Unit for assessment and potential subsequent treatment is not currently 'on offer' as a way of dealing with A's problems. ... Conventionally, a specific placement is identified before a secure accommodation order is made. However, that is simply not possible here, and both the Local Authority and the Children's Guardian invite me to make the order in general terms, leaving it to the Local Authority, on consultation with the Children's Guardian, to place A at an appropriate unit as and when one is identified. ... A can be seen as falling between two stools. She is not amenable to a psychiatric disposal on the expert report available, but she is unable to be contained in ordinary residential homes. It is clearly unsatisfactory that no secure arrangements can readily be found for her, and that she remains currently at some measure of risk, howsoever hard the staff struggle to contain it, in the ordinary residential unit where she is placed. The Local Authority must, and will, therefore continue its efforts to find secure accommodation. They tell me that funding is not a problem in this case. The Local Authority will also be considering the possibility of obtaining an independent psychiatric report into her situation, which could then be shared with the local CAMHS team to see if it affected their current opinion."§

Department of Health

  • Dept of Health, 'Section 67 of the Mental Health Act' (v4, 23/4/13). This version contains updated contact details. See MHA 1983 s67
  • DH contact details. New Department of Health contact details added for use when seeking Tribunal references. The correct telephone number for DH s67 references is 0207 210 5359 (not 5357). [Note that it subsequently changed.] See MHA 1983 s67

Section papers

  • Editable versions of section papers. Following a request, rich text format (RTF) versions of forms A2, A3 and A4 (the section 2 detention papers) have been uploaded. If there is sufficient demand, other forms can be converted from PDF and made available. See Mental Health Act 1983 Statutory Forms

Newsletters

Book

  • New book: Matthew Graham and Jakki Cowley, A Practical Guide to the Mental Capacity Act 2005 (JKP 2015). Foreword by Alex Ruck Keene. Available from Amazon. See Books

Job advert

  • Job advert (ODonnells). ODonnells Solicitors in Preston are seeking to recruit a mental health lawyer. Panel membership is not essential. For further details see Job adverts

Courses

  • MHLA re-accreditation course. The Mental Health Lawyers Association are running a Refresher and Re-accreditation course on Thursday 9/7/15 in Manchester. This new course will be suitable for those seeking re-accreditation and will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website for further information and to book online. See Events
  • MHLA Legal Aid course. The Mental Health Lawyers Association are running a Legal Aid and Peer Review course on Monday 6/7/15 in London, and on Friday 10/7/15 in Manchester. This course provides guidance on the Legal Aid provisions in mental health cases, including escape-fee cases and requirements for means testing. It will also broaden practitioners’ knowledge of the peer review process and the peer review ‘Improving your Quality’ guidance. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website for details of the London and Manchester courses, and to book online. See Events

Website and CPD

  • MHLO Annual Review 2014. Each year an Annual Review is published, which contains all news items, arranged thematically, which were added to Mental Health Law Online during that year. You can support the website by purchasing the Annual Review in paperback or in Kindle format. Additionally, the full text is available online without charge. See the Annual Review page to obtain the 2011-2014 editions.
  • CPD scheme. Obtain 12 SRA-accredited CPD points for £60 (also compatible with the SRA's new CPD regime). Suitable for non-lawyers as well. See CPD scheme for details.

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