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March 2015 update

Case law

  • Deprivation of liberty case. Rochdale MBC v KW [2015] EWCOP 13, [2015] MHLO 24 — (1) The Court of Appeal's decision to allow an appeal against the judge's earlier decision (that KW was not being deprived of her liberty at home) by consent, and without an oral hearing or judgment, was procedurally impermissible. (2) Although the Court of Appeal had set aside the decision, it had not actually declared that KW was deprived of her liberty: therefore, her status will be in limbo until the judge decides the matter at an oral 12-month review hearing. (3) The provisions for a review on the care plan becoming more restrictive would only be triggered if the changes amount to bodily restraint comparable to that which obtained in Cheshire West, as any restrictions short of that would amount to no more than arrangements for her care in her own home and would not amount to state detention. (4) The judge concluded that: "In this difficult and sensitive area, where people are being looked after in their own homes at the state's expense, the law is now in a state of serious confusion." §
  • Reporting restrictions case. A Healthcare NHS Trust v P and Q [2015] EWCOP 15, [2015] MHLO 23 — "The Trust ... applied to the Court for a declaration in P's best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. ... At the same time they also applied for a reporting restriction order with accompanying documentation. When they sought to serve that material on the Press Association through the service known as CopyDirect, but now in fact called the Injunctions Alert Service, the second respondent objected to the disclosure of any identity either of P or of P's family. ... As a result I listed a hearing ... for the Court to consider four questions: (Generally) (1) Whether in applications for reporting restrictions orders the applicant, when notifying the Press of the application, is required to identify the parties and or P. (Specifically in this application) (2) Whether further hearings in these proceedings should be heard in public. (3) Whether there should be any reporting restrictions in relation to these proceedings and if so those restrictions. (4) Such further directions as seemed appropriate to the Court."§
  • Negligence claim. Baker v Cambridgeshire and Peterborough NHSFT [2015] EWHC 609 (QB), [2015] MHLO 29 — "This action arises out of the tragic suicide of Philip Baker ... The claim is brought on behalf of his widow, Pauline Baker ... It is alleged that the treatment plan provided by Dr Kabacs on 29 September was inadequate and her decision on 26 October 2010 to discharge Mr Baker to the care of his general practitioner, caused him to take his own life."§
  • Criminal case. R v Marshall [2015] EWCA Crim 474, [2015] MHLO 32 — "On 12th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986. On 12th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years. With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order. ... Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal."§
  • Repatriation case. Sekerani v SSHD [2014] UKAITUR DA/00301/2014, [2014] MHLO 144 — "The appellant had claimed asylum on the bases that he fears the ZANU PF in Zimbabwe which claim was rejected in 2003. The appellant no longer relies on his asylum claim but on his claim for humanitarian protection. The appellant claims he cannot return to Zimbabwe because of his mental health problems as he has been diagnosed as suffering from paranoid schizophrenia. He relies on a report from Dr Gillian Wainscott, a consultant psychiatrist dated 27 February 2014. The appellant claims that he has established a family and private life in the United Kingdom because he has a cousin in this country who has been helping him."§
  • Deputyship case. Donna v Martin [2015] EWCOP 23, [2015] MHLO 31 — "This is an application under rule 89 of the Court of Protection Rules 2007 inviting me to reconsider an order I made on the papers on 27 November 2014. As this is a case in which there is a dispute as to who should act as a deputy, I am required ... to publish this judgment."§
  • Deputyship case. Re CJ: Public Guardian v MP [2015] EWCOP 21, [2015] MHLO 30 — "This is a reconsideration of a decision made on the papers on 4 November 2104 by District Judge S. E. Rogers, who made an order: (a) revoking the respondent's appointment as his partner's deputy for property and affairs; and (b) inviting a panel deputy to apply to be appointed as deputy in his place. ... I am absolutely certain that there has been no dishonest misappropriation of CJ's funds by MP, but that's not the point. ... To turn a blind eye to MP's wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG's supervision and compliance teams, which cannot possibly be in the public interest. It would also ride roughshod over the court's obligations under international human rights law to ensure that the protective measures it makes contain appropriate and effective safeguards to prevent abuse: United Nations Convention on the Rights of Persons with Disabilities, Article 12.4. ... Accordingly, I confirm District Judge Rogers' order revoking MP's appointment as deputy and inviting a panel deputy to apply to be appointed in his place."§
  • LPA case. Re BN [2015] EWCOP 11, [2015] MHLO 22 — "This is an application under rule 89 of the Court of Protection Rules 2007 for me to reconsider an order I made on the papers. ... BN does not lack capacity to revoke the LPAs and, indeed, she has no wish to revoke them, so the court is powerless to intervene. ... CN acted in bad faith, was motivated by spite, and was unsuccessful. BN responded to the application by taking advice from her solicitors, who sensibly narrowed the matter down to a single issue. It would be unjust to expect BN to pay the legal costs she had to incur in order to resist such an unmeritorious application."§
  • EPA case. Re DT: Public Guardian v IT [2015] EWCOP 10, [2015] MHLO 21 — "This is an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney. It is unusual for me to dismiss an application by the Public Guardian, but on this occasion I am not satisfied that the order he is seeking: (a) is proportionate; (b) is less restrictive in terms of DT's rights and freedom of action; (c) respects DT's rights, will and preferences; (d) warrants public interference in his private and family life; or (e) is in his best interests."§
  • EPA case. This old case was recently published on Bailii. Re F [2004] EWHC 725 (Ch) — "This is an appeal from the refusal of Master Lush, the Master of the Court of Protection, to register an enduring power of attorney dated 10th July 2000 which was made by the donor (Mrs F) in favour of her son (Mr A). The Master upheld an objection to registration on grounds of the unsuitability of Mr A to be the donor's attorney, which was lodged by his sister (Mrs B)."§
  • LPA case. Re GW [2015] EWCOP 9, [2015] MHLO 20 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs because the attorney has behaved in a way that contravenes his authority and is not in the donor's best interests."§
  • Scottish case. BG v MHTS [2015] CSIH 18, [2015] MHLO 26 — "This is an appeal by JG’s son from a decision of the sheriff principal of Lothian and Borders refusing his appeal against a decision of the Mental Health Tribunal for Scotland. The decision of the MHTS which he had appealed against was a decision to make a compulsory treatment order in relation to his mother."§

Department of Health

  • Department of Health, Reference Guide to the Mental Health Act 1983 (2015). A new Reference Guide was published in England to coincide with the coming into force of the new Code of Practice on 1/4/15. Description from Government website: "It is a reference source for people who want to understand the main provisions of the Mental Health Act 1983 and the regulations under the Act, as amended at 1 April 2015, including by the Mental Health Act 2007, Health and Social Care Acts 2008 and 2012 and Care Act 2014. The revised reference guide complements the revised Mental Health Act Code of Practice, with the Code giving guidance on how the Act should be applied." See Reference Guide to the Mental Health Act 1983
  • Department of Health, 'No voice unheard, no right ignored - a consultation for people with learning disabilities, autism and mental health conditions' (Cm 9007, March 2015). Consultation from 6/3/15 to 29/5/15. Extract from consultation page (paragraphs replaced with numbering): "(1) The consultation ‘No voice unheard, no right ignored’ explores options on issues such as how people can: (a) be supported to live independently, as part of a community; (b) be assured that their views will be listened to; (c) challenge decisions about them and about their care; (d) exercise control over the support they receive with a Personal Health Budget; (e) expect that different health and local services will organise themselves around their needs; (f) know that professionals are looking out for their physical health needs as well as their mental health needs. (2) The document also seeks to explores views on a number of issues relating to the Mental Health Act which were raised during the recent consultation on the revised Mental Health Act Code of Practice. (3) Since ‘Transforming Care: A National Response to Winterbourne View Hospital’ was published there have been some improvements but the system has not gone far enough fast enough to respond to the needs and wishes of people who need services, and their families." See Consultations

Mental Health Tribunal

  • Tribunal policy. Tribunal Policy: Withdrawals (23/2/15) — (1) Late withdrawals (where the request is received less than 48 hours, not counting non-working days, before the hearing) and "merely tactical" withdrawals ("such as where the case is part-heard, or if there are two cases that ought to be heard together and an attempt is made to withdraw one of them, or if an application for a postponement or adjournment has been made and refused and the withdrawal appears to be an attempt to get round the refusal") will be referred either to a registrar, salaried judge, or panel. (2) For late withdrawals: (a) the tribunal must be provided with full reasons why the patient wants to withdraw the application (and thus agrees to the continuation of detention or MHA order); (b) the tribunal will bear in mind that the need for, and right to, a periodic review of a patient's detention is an important safeguard which is necessary for Article 5 ECHR purposes, and which should not be abandoned lightly, especially if the hearing may achieve some good, and if in doubt the tribunal should refuse to consent. (3) Requests received after 4.30pm on the working day before the hearing will be considered by the panel.

HMIC

  • HMIC, 'The welfare of vulnerable people in police custody' (March 2015). See s136

Journal

The Journal of Mental Health Law has been relaunched as the International Journal of Mental Health and Capacity Law. It is an open-access online journal hosted by the University of Northumbria. The editor-in-chief is Kris Gledhill. On the Northumbria Journals website it is now possible to view back issues of the JMHL, in addition to the IJMHCL itself. Some older information is available at International Journal of Mental Health and Capacity Law archive.§

Articles and newsletters

  • Fenella Morris and Benjamin Tankel, 'The Care Act 2014: Overview' (39 Essex Chambers, January 2015). See Care Act 2014
  • Local Government Lawyer, 'Supreme Court to hear battle among councils over "ordinary residence" in care case' (17/3/15). The case was heard by Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Toulson on 18 and 19 March 2015. See R (Cornwall Council) v SSH [2014] EWCA Civ 12

Wales

  • Welsh Government, 'Consultation Document: Service Framework for the Treatment of People with a Co-occurring Mental Health and Substance Misuse Problem 2015' (5/3/15). Consultation from 5/3/15 to 23/4/15. See Consultations

Books

Events

  • Event. Edge Training are running an event entitled "Mental Capacity Act 2005 & Tenancy Agreements" on Friday 29/5/15 in London. Speaker: Aasya Mughal. Cost: £115 +VAT including refreshments (but not lunch) and all course materials. See flyer for full details and booking information.
  • Event. Edge Training are running an event entitled "Mental Capacity & Best Interests Assessments - Advanced" on Friday 15/5/15 in London. Speaker: Aasya Mughal. Cost: £115 +VAT including refreshments (but not lunch) and all course materials. See flyer for full details and booking information.
  • Event. Edge Training are running an event entitled "The New Mental Health Act Code of Practice 2015" on Friday 8/5/15 in London. Speaker: Rob Brown. Cost: £115 +VAT including refreshments (but not lunch) and all course materials. See flyer for full details and booking information.
  • Event. Edge Training are running a DOLS Assessors Conference on Thursday 12/3/15 in London. The conference may be used as part of the annual refresher training for either BIAs or Mental Health Assessors and a certificate will be provided for each delegate according to his or her role. Speakers: Alex Ruck Keene, Nicholas Paines QC, Steven Richards, Javeda Jafri and Aasya Mughal. Cost: £125 plus VAT including refreshments, lunch, and all course materials. See flyer for further information and booking details. See Events

Website and CPD

  • MHLO Annual Review 2014 now available. 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.
  • Website upgraded. The software running the website has been upgraded and a new mobile-friendly visual theme has been installed. Please get in touch if you run into any difficulties. See Help page for contact details.
  • 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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