November 2009 update

Caselaw

November 2009

GJ v The Foundation Trust [2009] EWHC 2972 (Fam) — (1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. (2) In deciding whether P is within the scope of the MHA, the eligibility assessor must ask whether, in his own opinion, P could be detained under the MHA. (3) With respect to objections, what matters is whether P objects generally to what is proposed. (4) The correct overall approach for the eligibility assessor is to (a) look at the reality of the situation, rather than the words of the authorisation, (b) separate the mental treatment from the purely physical treatment, and (c) apply a "but for" test, i.e. whether, but for the physical treatment, P should be detained (and whether the only effective reason for detention is physical treatment); if "no" (and "yes", respectively) then P isn't ineligible for DOLS. (5) On the facts, but for his diabetes, P would not have been detainable, so he was not ineligible. It is worth reading the full summary page and the judgment.
Independent News and Media Ltd v A [2009] EWHC 2858 (Fam) — The media sought, not that the CoP hearing be public, but that they be authorised to attend the hearing and be subject to reporting restrictions. CoP proceedings are excluded from the general 'open justice principle' so the media's Article 10 rights are not automatically engaged, and the court must rather adopt a two-stage approach: (1) Whether a 'good reason' (a gatekeeping test from the Rules, the standard for which is not high) for making the order can be established; (2) If there is a 'good reason', a balancing test must be applied to P's Article 8 rights and the media's Article 10 rights. On the facts: (1) There was a 'good reason' as (a) the issues were already in the public domain, (b) the court's powers can preserve privacy, and (c) it is the public interest to understand how the court operates; (2) The media would be allowed to attend, as the concerns for privacy and publicity could both be met by permitting some reporting but requiring the media to demonstrate what should be allowed. [See appeal judgment.]§
C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) — (1) When trying a young child, and most particularly a child such as C who is only 12 with learning and behavioural difficulties, notwithstanding the absence of any express statutory power, the Youth Court has a duty under its inherent powers and under the Criminal Procedure Rules to take such steps as are necessary to ensure that he has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial; in this case, C required an intermediary. (2) As the MoJ had voluntarily accepted responsibility for the payment of intermediaries, the LSC decision not to provide funding was lawful. (3) The CPS decision to continue with the trial was lawful.§
R (Turner) v Southampton City Council [2009] EWCA Civ 1290 — Unsuccessful challenge to the closure of care homes on Article 2 grounds: the test of a "real and immediate risk" is one that is not readily satisfied, in other words the threshold is high; the evidence in this case fell far short of the threshold. Interesting post-script to judgment, critical of solicitor and her repeated similar claims.§
Re Ellis (2009) COP 17/11/09 — The donor appointed his wife as the original attorney and then appointed his two children as substitute attorneys to act in the event that the original attorney should be unable to act. However, the donor failed to specify whether the substitute attorneys should act jointly or jointly and severally. On the application of the attorneys, the appointment of the substitute attorneys was severed. Although the decision in Re J confirmed that substitute attorneys may be appointed in an EPA, the appointment of two or more substitutes is invalid if the donor has not specified that they are to act either jointly or jointly and severally. [OPG summary - EPA case.]§
Johnston v Chief Constable of Merseyside Police [2009] EWHC 2969 (QB) — (1) A court faced with an application for permission under s139(2) must (a) balance the applicant's interest to be allowed to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interest of the respondent not to be subjected to the risk of being harassed by baseless claims, and (b) consider whether the proposed claim has a real prospect of success. (2) On the facts, permission was granted. (3) Under the relevant test under the Limitation Act 1980 (which was explained) the 3-year limitation period on the assault claim was dis-applied.§
Re RB (A Child) [2009] EWHC B26 (Fam) — Click on link to view page.§
R v Evans [2009] EWCA Crim 2243 — Unsuccessful appeal, which had been on the basis that (1) his guilty plea was based on wrong advice, and (2) memories recovered since his plea would have provided a defence based on (a) provocation or (b) diminished responsibility.§

2009

Re Furlow (2009) COP 1/10/09 — The donor appointed X and Y to act jointly and severally. He included the following provision: "X shall act with general authority on my behalf in relation to all my property and affairs. Y shall act with authority to do the following on my behalf: To deal with my bank accounts and savings and investments in relation to my bank accounts, savings accounts and investments." He then added: "Y may deal with my bank investments subject to my prior approval." On the attorney's application, both provisions were severed. The first was incompatible with a joint and several appointment (as one attorney had more limited powers than the other), and the second was unworkable after the donor's loss of capacity. [OPG summary.)§
R v Charisma [2009] EWCA Crim 2345 — The appellant argued that his mental condition had made it undesirable for him to have given evidence, so no direction under s35 Criminal Justice and Public Order Act 1994 (adverse inference from failure to give evidence) should have been given; he was unsuccessful.§
DCC v KH (2009) COP 11729380 — (1) A DOLS standard authorisation was sufficient to return P on the long journey from contact sessions to the residential accommodation: the Code of Practice paragraphs saying that conveyance may require a court order only apply where no SA is in place. (2) It was inappropriate to seek an anticipatory declaration for the use of force, as MCA 2005 s5 and s6 permitted restraint. (3) The interim residence order should be enough to persuade the police to facilitate P's return.§
EBR Attridge Law LLP v Coleman (2009) UKEAT 0071/09 — The Disability Discrimination Act 1995 should be interpreted so as to prohibit discrimination against employees who, although not themselves disabled, were treated less favourably or harassed on the ground of their association with a person who was disabled.§
Baker v H [2009] EWHC B31 (Fam) — Click on link to view page.§
Re Murdoch (2009) COP 30/10/09 — The donor executed an instrument intended to be a personal welfare LPA. It contained the following defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, (ii) the attorney had failed to tick any of the boxes in Part C, although he had dated and executed it, and (iii) the replacement attorney had ticked the appropriate boxes in his Part C but had not dated or executed it. The Public Guardian refused to register the instrument, and the donor subsequently lost capacity. On the attorney's application, the court directed the Public Guardian not to register the instrument, because "the errors in its execution are too fundamental".§

2008

R (Nottingham Healthcare NHS Trust) v MHRT (Northern Region), Re GK [2008] EWHC 2445 (Admin) — The Tribunal's decision that GK did not suffer from any mental illness and should be discharged from Rampton, which was contrary to all the medical evidence including the independent psychiatrist's, was inadequately reasoned.§
R v Singleton [2008] EWCA Crim 468 — Sentence of 5 years' imprisonment replaced by 3-year community order with residence, supervision and mental health treatment requirements.§

Other cases

Various case summaries from OPG website added. 24 decisions in EPA cases category, and 17 decisions in LPA cases category
Neutral citations now available for Re S and S (Protected Persons); C v V [2008] EWHC B16 (Fam), and Re F [2009] EWHC B30 (Fam)

Legal Aid

Second edition of mental health peer review guidance published. Peer review —

The Legal Aid Agency uses peer review to assess the quality of legal advice given to clients. A sample of files is taken from a firm, and reviewed by an independent peer reviewer who is a lawyer experienced in the relevant area of law. Peer review was introduced to address the lack of legal assessment of files, in contrast with the ‘tick-box’ approach of compliance audits.§

From 30/11/09, all Mental Health Work (including exceptional cases) and work under the TFF Scheme will transfer to the LSC's Merseyside Regional Office. See Legal Aid#CLS News
Law Society issued press release: "As new report finds legal aid lawyers paid less than sewage workers, Law Society says NO to more fee cuts". See Law Society
Fixed fee contract compliance audit update (CLS News, 10/11/09). From 1/10/09, any reduction will count towards the total number of files nil assessed. For example, if there are two nil-assessed files, plus one file reduced by 25%, then the overall figure will be 2.25 rather than 2. See Legal Aid#CLS News
The LSC published a new generic (not specific to any category of law) "Improving Your Quality" peer review guidance document. See Legal Aid#CLS News
New page added. All Party Parliamentary Group on Legal Aid —

The APPG on Legal Aid was established on 15/7/09. Its terms of reference are: “To promote parliamentary and public understanding of the importance of the role of publicly funded legal services as a pillar of the welfare state and in reducing inequalities in society. To scrutinize and influence any proposals for the reform of Legal Aid provision to ensure that access to justice for all members of society is preserved and improved.”§

Website

On 30/11/09 there were 645 cases on Wikimentalhealth
See November 2009 chronology for this month's changes to the website in date order