MHLR 2018

The following cases contain extracts from this page:

1

Atudorei v Romania – ECtHR – [2018] MHLR 1

Points: The placement of a young adult in a public psychiatric hospital and treatment on the basis of parental consent breached Art 5(1): it breached domestic law as inadequate reasons were provided for detention and no independent review by a medical commission or authorisation by a court; and the necessity of detention was not demonstrated. There was also a breach of Art 8 from treatment without consent in breach of domestic law. The use of Clozapine did not arise to the severity necessary to breach Art 3.

21

Hiller v Austria – ECtHR – [2018] MHLR 21

Points: The suicide of a patient who absconded from a psychiatric hospital in response to improvements in his condition did not reveal a breach of Art 2 ECHR.

33

R v Hamberger – Court of Appeal – [2018] MHLR 33

Points: A trial had been fair even though the defendant was unable to attend for health reasons: whilst the it was not possible to make use of the special measures under the Youth and Criminal Evidence Act 1999 (as there was no mental disorder), arrangement could have been made to use a defence statement or an audio or video account from the defendant under the hearsay provisions of the Criminal Justice Act 2003.

40

A–MV v Finland – ECtHR – [2018] MHLR 40

Points: On the facts, preventing a man with intellectual disabilities from living where he wished did not breach Art 8 ECHR and/or Art 2 of Protocol 4 as the proportionality requirement was met.

54

Fernandes de Oliveira v Portugal – ECtHR, – [2018] MHLR 54

Points: The suicide of a patient in a psychiatric hospital breached the substantive aspect of Art 2 ECHR as inadequate monitoring or safeguards had been in place; the length of domestic proceedings relating to the death, at over 11 years, breached the procedural aspect of Art 2.

67

R v HAH - Court of Appeal – [2018] MHLR 67

Point: Orders under ss37/41 Mental Health Act 1983 were the most suitable disposal, rather than a life sentence.

75

VK v Russia – ECtHR – [2018] MHLR 75

Issue: Inadequate legal representation by a court-appointed lawyer in seeking to challenge detention breached Art 5(1)(e) ECHR.

81

Aline Loake v Crown Prosecution Service - Administrative Court – [2018] MHLR 81

Point: The defence of insanity was available to a charge of harassment, for which the mens rea has an objective limb; it is also available for strict liability offences.

89

R ((1) Silviu Mitocariu (2) Costica Lazarel) v Central and North West London NHS Foundation Trust - Administrative Court – [2018] MHLR 89

Point: There is a power under ss43, 46 and 47 Care Act 2012, but not a duty, to make payments to patients detained under the Mental Health Act 1983 to allow them to make purchases of basic items; the non-use of the power on the facts was not unlawful.

96

Christopher James Miller v DPP - Administrative Court – [2018] MHLR 96

Point: Evidence of a failure by a man with learning difficulties and autism to provide a specimen of blood for a suspected drug-driving charge should have been excluded in light of the failure to call an appropriate adult to the police station.

104

Jasmin Djaba and (1) West London Mental Health Trust (2) Secretary of State for Justice - Supreme Court, – [2018] MHLR 104

Point: Whilst permission to appeal was not granted on the question of whether the Tribunal hearing the case of a restricted patient should consider proportionality arguments resting on arts 5 and 8 ECHR or simply apply the statutory criteria in ss72/73 Mental Health Act 1983, it was noted that stringent conditions of detention might be raised under Arts 3 and 8 ECHR.

105

R v Edwards, R v Knapper, R v Payne, R v Langley - Court of Appeal – [2018] MHLR 105

Points: An indeterminate sentences combined with an order under s45A Mental Health Act 1983 cannot be a default sentence in light of the statutory language: but avoiding a penal sentence must be explained and involves an assessment of culpability; fresh psychiatric evidence requires an application under s23 Criminal Appeal Act 1968; on the facts, some indeterminate sentences were replaced with orders under ss37/41 of the 1983 Act.

123

Christopher John Thompson v R; Tajsham Cummings v R; Oscar Fitzgerald v R; Richard Ford v R – Court of Appeal – [2018] MHLR 123 Point: The requirement that the Court of Appeal not deal with the offender more severely when considering an appeal against sentence does not prevent an indeterminate remedial order under ss37/41 Mental Health Act 1983 in place of a determinate sentence.

138

Claes v Belgium - ECtHR – [2018] MHLR 138

Point: The extended detention in prison of a person with mental disabilities breached Art 3 ECHR: psychiatric wings in prisons are not suitable places for detaining people with mental disorders.

145

Shchiborshch and Kuzmina v Russia - ECtHR – [2018] MHLR 145

Points: The death of a man during a police operation to detain him in order to transport him to hospital breached Art 2 ECHR in light of the lack of the failure to plan so as to ensure that recourse to lethal force was minimised; the investigation breached Art 2 because it did not address the planning and control of the operation, and was inadequate from the perspective of Art 13.

182

Mifobova v Russia - ECtHR – [2018] MHLR 182

Point: Detention in a psychiatric hospital breached Art 5(1) ECHR in light of the failure to ensure that the person detained had an adequate representative.

192

Tatar v Switzerland - ECtHR – [2018] MHLR 192

Point: Deporting to Turkey a man with an enduring mental illness would not breach Arts 2 or 3 ECHR on the facts.

200

Ilievska v The Former Yugoslav Republic of Macedonia - ECtHR – [2018] MHLR 200

Point: Although certain injuries received by a person during transfer to a psychiatric clinic were not shown to have been inflicted by the police as opposed to being self-harming behaviour, injuries to her wrist were not shown to be justified by the justified use of handcuffs and so breached Art 3 ECHR.

210

Bataliny v Russia - ECtHR – [2018] MHLR 210

Points: Detention in a psychiatric hospital breached Art 5(1) ECHR because it was not in accordance with domestic law; Art 5(4) ECHR was breached because there was no process for the detainee to secure a review of detention; forced treatment for research purposes breached Art 3; and unexplained injuries consistent with an account of being beaten breached the substantive aspect of Art 3 and, in light of an inadequate investigation, its procedural aspect.

226

Berland v France - ECtHR – [2018] MHLR 226

Point: The imposition of preventive detention on a person found not responsible for a homicide on the basis of insanity was not within Art 7 ECHR because it was remedial rather than a penalty.

236

Kuttner v Austria – ECtHR – [2018] MHLR 236

Points: Proceedings seeking release from a psychiatric institution, which would have led to a transfer to prison, were covered by Art 5(4) ECHR; on the facts, a delay of 16 months between hearings was inadequately speedy.

250

Rooman v Belgium - ECtHR – [2018] MHLR 250

Points: Ongoing preventive detention without treatment breached Art 3 ECHR in light of the level of hardship occasioned; but there was no breach of Art 5(1) as the institution was in principle suitable for those of “unsound mind”.

266

Tekin and Arslan v Belgium - ECtHR – [2018] MHLR 266

Point: The death of a prisoner with a psychiatric condition during restraint breached Art 2 ECHR as the force used was not shown to be absolutely necessary and the officers involved had not been trained adequately.

276

Boukrourou and Others v France - ECtHR – [2018] MHLR 276

Issue: Although the death of a person with mental health problems who was restrained by police breached Art 2 ECHR as the main causative factor was an unknown stress on his heart, there was a breach of Art 3 ECHR because various of the techniques of restraint had not been justified.

288

N v Romania - ECtHR – [2018] MHLR 288

Point: Ongoing detention in a psychiatric hospital breached Arts 5(1) and (4) ECHR in light of the evidence that the nature of the disorder did not warrant detention, delays between hearings and inadequate representation by officially appointed lawyers.

310

M v ABM University Health Board - Upper Tribunal (AAC) – [2018] MHLR 310

Point: A Tribunal erred in finding it proportionate to direct that evidence of covert medication be withheld from a detained patient without capacity to conduct Tribunal proceedings because it had not considered its duty to ensure his participation.

326

Simon Taj v R - Court of Appeal – [2018] MHLR 326

Point: A genuine but mistaken view of the facts resulting from paranoia contributed to by recent intoxication precluded reliance on self-defence because it was “attributable” to voluntary intoxication even though the defendant was not intoxicated at the time.

337

VS v St Andrew’s Healthcare - Upper Tribunal (AAC) – [2018] MHLR 337

Points: The test for capacity to commence proceedings before a First-tier Tribunal is low, in light of the importance of access to a court; whilst a legal representative could seek to withdraw an application of concerned about the lack of capacity, the tribunal did not have to consent and could take into account the need for the efficient operation of the Tribunal.