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November 2015 update

Case law

Mental Health Act

  • Conditional discharge and DOL. MM v WL Clinic [2015] UKUT 644 (AAC) — (1) For the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in KC at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case. (Caution: see Court of Appeal decision.)

Capacity

  • DNACPR/capacity case. Winspear v City Hospitals Sunderland NHSFT [2015] EWHC 3250 (QB), [2015] MHLO 104 — (1) The core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity. If it is both practicable and appropriate to consult before doing so then, in the absence of some other compelling reason against consultation, it would be procedurally flawed to proceed without consultation. It would not meet the requirements of MCA 2005 s4(7); it would accordingly not be in accordance with the law. It would be an interference with Article 8(1) that is not justified under Article 8(2). (2) The claimant (patient's mother) sought damages both personally and as personal representative. The judge was not persuaded that she has any personal claim for damages, and decided that a declaration reflecting the procedural breach of Article 8 was sufficient.§
  • Medical treatment case. M v Mrs N [2015] EWCOP 76, [2015] MHLO 102 — It was in the best interests of N, who was in a minimally-conscious state, not to continue to receive clinically assisted nutrition and hydration. The judge concluded that: "Ultimately, I have concluded that her wishes, so thoughtfully presented by her family, coupled with the intrusive nature of the treatment and its minimal potential to achieve any medical objective, rebut any presumption of continuing to promote life. Quite simply, I have come to the conclusion that it would be disrespectful to Mrs. N to preserve her further in a manner I think she would regard as grotesque."§
  • Best interests/DOL case. A Hospital NHS Trust v CD [2015] EWCOP 74, [2015] MHLO 94 — CD was willing to have the total abdominal hysterectomy, in order to remove two very large ovarian growths, which the medical experts recommended. (1) Mostyn J held that she lacked capacity in relation to this but that it was in her best interests to have the surgery. (2) The correct way to interpret the MCA ineligibity rules is as follows: "if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn't (obviously) so she isn't ineligible." (3) In relation to deprivation of liberty the judge noted: "In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054M at para 32 the Court of Appeal stated 'even if Cheshire West is wrong, there is nothing confusing about it'. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court's test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated 'anyone who deals with this day by day knows this is confusing'. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS [2015] EWCOP 39, [2015] MHLO 112, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that 'there is nothing confusing' about the test. I do not accept the criticism that my approach to these cases is 'distorted' by my 'passionate' and 'tenacious' belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court's test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse. The confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to."§
  • Best interests/DOL case. A Local Health Board v AB [2015] EWCOP 31, [2015] MHLO 95 — "I conclude that: (a) AB lacks capacity to conduct these proceedings herself. (b) AB lacks capacity to make her own decisions about whether to consent to medical treatment for her cardiac condition including dental surgery. (c) Insofar as the jurisdiction of the court is excluded because of the operation of the MHA and MCA, the inherent jurisdiction should be exercised to grant a declaration that it is lawful and in AB's interests to have the proposed medical treatment administered by the Applicant to her. (d) The inherent jurisdiction should be exercised to grant a declaration that it is lawful and in her best interests for AB to be deprived of her liberty to travel to and to remain at the hospital for the proposed medical treatment but that such physical and/or chemical restraint as may be required to deliver the treatment shall bear in mind the need to maintain her dignity to the maximum extent reasonably possible." (Caution: in relation to paragraph [54], on the MCA eligibility test, see An NHS Trust v A [2015] EWCOP 71, [2015] MHLO 91.)§

Lasting Power of Attorney

  • LPA case. XZ v The Public Guardian [2015] EWCOP 35, [2015] MHLO 98 — "This is an application regarding the effectiveness of some provisions contained in a Lasting Power of Attorney ('LPA') for property and financial affairs. It is not a type of application for which permission would normally be given for a judgment to be published. However, paragraph 16 of the Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5, says that "permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest." I can't imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication. ... XZ wants his attorneys to act only when he lacks capacity. In his LPA he has described in intricate detail the circumstances in which he can be identified as no longer having the capacity to make a relevant decision, whereupon his attorneys may make the decision on his behalf and in his best interests. ... XZ acknowledges that his LPA will be less effective because of these provisions but, nevertheless, he wishes them to remain as an integral part of the registered instrument for his own reassurance and peace of mind. Some people may think that this is unwise, but it is his will and preference and it should be treated with respect. The Public Guardian has no right to make a paternalistic judgment on his behalf and decide that it would be in his best interests for these provisions to be severed. ... The Public Guardian's function under paragraph 11 of Schedule 1 to the Act is limited to considering whether the conditions and restrictions are (a) ineffective as part of an LPA or (b) would prevent the instrument from operating as a valid LPA. ... I also order the Public Guardian to register the LPA."§
  • LPA case. Re DWA [2015] EWCOP 72, [2015] MHLO 92 — "On 1 October 2014 I made an order on the papers revoking a Lasting Power of Attorney ('LPA') for property and financial affairs in respect of one of three attorneys because I was satisfied that the donor was incapable of revoking the appointment herself and that the attorney in question had behaved in a way that contravened her authority or was not in the donor's best interests. This is an application by the attorney whose appointment was revoked for me to reconsider that decision pursuant to rule 89 of the Court of Protection Rules 2007."§

Deputyship

  • Deputyship case. L v NG [2015] EWCOP 34, [2015] MHLO 97 — Headnote from judgment: "Application by the sister of NG to be appointed as his deputy for property and affairs together with her sons – Even if NG lacked capacity to manage his property and affairs it was not in his best interests to appoint a deputy to manage his property and affairs." The main part of the decision is the following: "Section 16(4) of the Act provides that when deciding whether it is in the relevant person's interests to appoint a deputy, the court must have regard to section 4 (best interests) and the principle that a decision by the court is to be preferred to the appointment of a deputy to make a decision. The fact that a person generally lacks capacity to manage their property and affairs does not automatically mean that it is in their best interests to appoint a deputy to manage their property and affairs. The best interests requirements of section 4 require the court to consider the wishes, feelings, beliefs and values of the person concerned. One of the principles of the Mental Capacity Act 2005 is that before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. On the evidence a deputyship order is either unnecessary or not in NG's best interests provided that a restriction is entered in the Land Registry requiring the court to authorise any dealings with his home. Any risks in respect of NG's other property and financial affairs which would be minimised by the appointment of a deputy are outweighed by the effect of such an order on his self-esteem, the resulting interference with his autonomy and the impact on family relationships. The sole purpose of the restriction is to act as a light touch safeguard. The court will only not authorise a proposed transaction if NG is being taken advantage of by a third party during a period of illness or is acting in a way that he will be likely to regret on recovering from a period of illness."§
  • Deputyship case. Re HS [2015] EWCOP 33, [2015] MHLO 96 — "I have been asked to reconsider two orders I made on the papers. The first was an order dated 29 October 2014 revoking HS's Enduring Power of Attorney and the second was an order made on 10 December 2014 appointing Essex County Council to be HS's deputy for property and affairs."§
  • Deputyship case. Re AFR [2015] EWCOP 73, [2015] MHLO 93 — "This is an application by the Public Guardian to discharge two joint and several deputies for property and affairs on the grounds that they have behaved in a way that has contravened their authority or is not in their father's best interests."§
  • Receivership/deputyship case. This 2013 judgment was only recently published. Tricker v Church [2013] EWCOP 2, [2013] MHLO 152 — The application for an order to enforce the receiver's security bonds was rejected, and costs were to be paid by the applicant personally.§

Other cases

  • Legal Aid case. R (Howard League for Penal Reform) v Lord Chancellor [2015] EWCA Civ 819, [2015] MHLO 101 — This was an appeal against the refusal of permission to apply for judicial review of changes introduced to criminal legal aid for prison law by the Criminal Legal Aid (General) (Amendment) Regulations 2013. (1) The 'lack of consultation' challenge was unarguable. (2) The appellants also challenged the removal of criminal legal aid funding in seven principal areas of prison law (including pre-tariff reviews and return to open condition cases before the Parole Board) on the basis that they either impact upon the liberty of the prisoner or they engage his or her Article 8 Convention rights in a way that is systemically unfair. The Court of Appeal accepted that it was arguable that, without appropriate assistance, the system could carry an unacceptable risk of unlawful decision making in relation to those with mental health, learning or other difficulties which effectively deprive them of the ability effectively to participate in the relevant decisions.§
  • Criminal appeal case. R v Brown (formerly Latham) [2015] EWCA Crim 1328, [2015] MHLO 100 — "The central ground of appeal is that the appellant's conviction is unsafe because the ruling of the judge – viz. that the appellant's conferences at court with his lawyers were to take place in the presence of two nurses from Rampton Hospital – breached his right at common law to consult privately with his lawyers and under Article 6(3)(c) European Convention on Human Rights to "defend himself through legal assistance of his own choosing" (with the concomitant right to private discussions with his lawyers). ... In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step."§
  • Repatriation case. R (Drammeh) v SSHD [2015] EWHC 2984 (Admin), [2015] MHLO 99 — "This is a claim for judicial review of (i) the Defendant's decision of 6 February 2015 (confirmed after further consideration on 16 June 2015) refusing to accept the Claimant's representations as a fresh asylum and human rights claim, and (ii) the lawfulness of the Claimant's detention under immigration powers from 21 November 2014 to 17 April 2015. The Claimant is a foreign criminal with an appalling immigration history, who is liable to deportation in consequence of having been sentenced to 12 months' imprisonment for being concerned in the supply of class A drugs. He has been diagnosed with schizo-affective disorder, which appears to be well-controlled provided that he takes his anti-psychotic medication. Having exhausted his rights of appeal against the refusal of a very belated claim for asylum, he has done everything within his power to avoid being deported."§

Legislation

  • Private Member's Bill. Mental Health (Independent Advocacy) (England) Bill 2015 — Summary from Parliament website: "A Bill to amend the Mental Health Act 1983 to make further provision for powers and responsibilities of independent mental health advocates for qualifying patients in England; and for connected purposes." Further extract: "This Bill is expected to have its second reading debate on Friday 26 February 2016. The Bill was presented to Parliament through the ballot procedure on 24 June 2015. This is known as the first reading and there was no debate on the Bill at this stage. This Bill is a Private Member’s Bill. If you wish to know more about this bill please contact its sponsor, Geoffrey Cox." Did not get beyond First Reading.
  • Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015. — These Regulations relate to appeals to the Mental Health Tribunal for Scotland on the ground that detaining the patient in the current hospital entails subjecting the patient to an excessive level of security. In force 16/11/15.
  • Mental Health (Scotland) Act 2015. — Preamble: "An Act of the Scottish Parliament to amend the Mental Health (Care and Treatment) (Scotland) Act 2003 in various respects; to make provision about mental health disposals in criminal cases; to make provision as to the rights of victims of crime committed by mentally-disordered persons; and for connected purposes."
  • Mental Health (Scotland) Act 2015 (Commencement No 1, Transitional and Saving Provisions) Order 2015. — This Order brings into force certain provisions of the Mental Health (Scotland) Act 2015 in relation to detention in conditions of excessive security, as described in the Explanatory Note and Policy Note. In force 16/11/15.

Office of the Public Guardian

  • Office of the Public Guardian, 'Gifts: Deputies and EPA/LPA Attorneys' (Practice Note no 02/2012, September 2015). Summary from Government website: "Attorneys and deputies can give gifts on behalf of the person who they have been appointed to help make decisions for. They can only make gifts in some situations and only if it is in the person’s best interests. The practice note explains the Office of the Public Guardian’s (OPG) policy on gifts. It also explains what OPG will do if an attorney or deputy makes a gift that they should not have given." See Office of the Public Guardian

College of Policing

  • Police consultation. The College of Policing are consulting on new police guidance for mental health, from 11/11/15 to 1/1/16. Extract: "The College of Policing has published new draft national guidance clarifying the police's role in dealing with incidents involving people in mental health crisis. The draft Authorised Professional Practice (APP) is now open for consultation and sets out guidance for police officers and staff when investigating an offence or assisting people with mental health problems, learning disabilities and difficulties and other vulnerabilities." See Consultations

Other

  • Catherine Fairbairn, 'Powers of attorney and decision-making for another person' (House of Commons Library Briefing Paper number 03898, 4/11/15). This paper discusses powers of attorney (ordinary, enduring and lasting), the Court of Protection (decisions and deputies) and social security appointees. See Lasting Power of Attorney
  • Alan Erwin, 'Northern Irish anorexic woman will continue fight against treatment in England, court hears' (Belfast Telegraph, 5/8/15). Also: Belfast Telegraph, 'Anorexic woman in legal fight against being sent to England for treatment' (27/7/15). See Forthcoming judgments
  • Monidipa Fouzder, '"Urgent review" of appropriate adults needed (Law Society Gazette, 26/8/15). See Appropriate adult
  • National Appropriate Adult Network, 'Ensuring provision of appropriate adults for mentally vulnerable adults detained or interviewed by police' (August 2015). details. See Appropriate adult

Wales

  • Welsh MHA Code of Practice consultation. The Welsh Government are consulting on creating their own version of this year's Code of Conduct for England. Closing date 27/11/15. See Consultations

Jobs

  • Job advert. ODonnells Solicitors in Preston are recruiting for a mental health panel member. For further details of this position, see Jobs
  • Job advert. Peter Edwards Law in Hoylake are recruiting for a Court of Protection lawyer. Closing date 11/12/15. For further details of this position, see Jobs

Website and CPD

  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.
  • Redesigned Consultations page. The consultations page is now easier to navigate, with consultations categorised into the year in which they ended. There is also a special page allowing you to do detailed searches on the database of consultations. See Consultations
  • Monthly updates now contain embedded tweets. All monthly update pages now contain tweets (including retweets) from the relevant month. These can be interacted with in the same way as is possible on the Twitter website. For an example, see November 2015 update#Twitter
  • Redesigned Jobs page. The Jobs page has been improved to make it more professional and accessible - please let your HR department know. Job vacancies can be listed for £60. See Jobs

Twitter

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