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October 2017 update

Website

  • Magic Book. The Magic Book is a database of contact details. It is a new addition to MHLO - but it can be expanded and be a success if everybody joins in, including you. To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book
  • 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.

Case law

  • Religious beliefs and tribunal expertise. DL-H v West London MH NHS Trust [2017] UKUT 387 (AAC) — Judicial summary from Gov.uk website: (1) "In deciding whether a patient is manifesting religious beliefs or mental disorder, a tribunal is entitled to take account of evidence from both religious and medical experts." (2) "A tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision."
  • Child, no approved secure accommodation available, deprivation of liberty. A Local Authority v AT and FE [2017] EWHC 2458 (Fam) — "Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so."
  • JR of decision not to resume inquest. R (Silvera) v HM Senior Coroner for Oxfordshire [2017] EWHC 2499 (Admin) — "In this claim for judicial review Muhammad Silvera challenges the decision of the Senior Coroner for Oxfordshire not to resume the inquest into the death of his mother, Ms Vittoria Baker. It is submitted that the decision of the Senior Coroner not to resume the inquest and thereby to hold a full inquest into this death was unlawful. It is submitted that the Senior Coroner breached the investigative duty under Article 2 of the European Convention on Human Rights and was irrational and in breach of the duty at common law to fully investigate this death. ... The Senior Coroner refers in his letter of February 2016 to the 'Crown Court Trial' together with the two reports as being sufficient to satisfy Article 2 of the Convention. There was, in fact, no Crown Court trial. At an early hearing an acceptable plea was tendered and 'K' was made the subject of a hospital order. The two other investigations comprised an internal NHS Trust investigation that was carried out in private and the DHR was expressed to be private and confidential. ... In all the circumstances, this claim for judicial review should be allowed."
  • Unsuccessful life sentence appeal. R v Bala [2017] EWCA Crim 1460 — The appellant unsuccessfully argued that he should have received a s37/41 restricted hospital order instead of a life sentence. Extract from judgment: "His applications for an extension of time of 10 years to apply for leave to appeal against sentence and to call fresh evidence were referred to the full court by the single judge. It is the appellant's case that instead of a sentence of Custody for Life the judge should have imposed a hospital order under section 37 Mental Health Act (MHA) 1983 together with a Restriction Order under section 41. ... In R v Vowles; R (Vowles) v SSJ [2015] EWCA Crim 45, [2015] EWCA Civ 56, [2015] MHLO 16 this court set out in detail the approach to be taken by sentencing judges dealing with offenders with mental disorders. At paragraph 54, having earlier set out the statutory framework, the court described the situation in which a section 37/41 order is likely to be the correct disposal in a case where a life sentence is being considered. It is that 1) the mental disorder is treatable 2) once treated there is no evidence the offender would be in any way dangerous, and 3) the offending is entirely due to that mental disorder. In this case the new evidence does not demonstrate that the offending was entirely due to the mental disorder. We are quite satisfied, on the evidence available at the time and the more recent evidence, that the appellant's behaviour when committing the offence was affected by both mental illness and his personality disorder. On the face of it therefore this case did not come within the situation described as likely to lead to a section 37/41 order as described in Vowles. To that we would add the reminder in Vowles that consideration should be given to whether the powers of the Secretary of State under section 47 to transfer a prisoner for treatment would, taking into account all the other circumstances, be appropriate. It is clear from the court log that the judge had well in mind those powers, in the light of Dr Payne's reference to a further review after three months. We are satisfied therefore that even on the fresh evidence the judge could not have concluded, as required by section 37(2)(b), that 'having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under [section 37.]' In short the judge's conclusion was correct at the time and, with hindsight and fresh evidence, remains correct. The real purpose of this appeal was to move the appellant from the release regime consequent upon a life sentence to the regime consequent on a hospital order. That is not a proper basis for an appeal if the original sentence was not wrong in principle. There are some, relatively few, cases where medical evidence obtained years after sentence convincingly demonstrates that the sentencing court proceeded on the wrong basis because of an error by an expert – see eg R v Ahmed [2016] EWCA Crim 670, [2016] MHLO 19. On analysis that is not this case. The sentence was not wrong in principle."

Independent review of MHA

  • Department of Health, 'Policy paper: Terms of Reference - Independent Review of the Mental Health Act 1983' (4/10/17). Extract from website: "The independent review of the Mental Health Act will: (a) look at how the legislation is currently used; (b) look at its impact on service users, families and staff; (c) make recommendations for improving the legislation and related practices. The review will be chaired by Professor Sir Simon Wessely, a former President of the Royal College of Psychiatrists. He will produce an interim report in early 2018 and develop a final report containing detailed recommendations, by autumn 2018." See Department of Health#Independent review of the MHA 1983

Law Society

  • Mental health panel re-accreditation process. Jane Sweetman, 'Mental Health Accreditation: changes to the re-accreditation process' (email from Law Society, 19/10/17) — This email describes changes to the re-accreditation process: (1) from 1/3/18 re-accreditation applicants may, and from 1/6/18 must, adhere to the following new requirements: (a) provide details of two (rather than four) case reports, and (b) "undertake one case study, which will be either a s2, s3 or restricted case, plus questions to draw out not only your legal knowledge, but also an understanding of how you would approach and represent such a client"; (2) from the next renewal date, applicants must undertake six tribunals per accreditation year (with discretion applied, for example, for those taking a career break or undertaking high profile work). The changes are subject to reasonable adjustments for applicants with a disability. The changes in this email never made their way into any of the official guidance documents.§

CQC

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Events

  • Edge Training: AMHP Conference - London, 15/12/17 — No results
  • Edge Training: DOLS MH Assessor Annual Refresher Course - London, 13/10/17 — No results
  • Edge Training: BIA assessments with People who have Learning Difficulties - London, 13/10/17 — No results
  • Edge Training: Best Interests Assessors Legal Update Course - London, 13/11/17‎ — No results
  • Edge Training: DOL in children and young people - London, 17/11/17‎ — No results
  • Edge Training: Deprivation of liberty in the community - London, 1/12/17‎ — No results
  • Edge Training: DOLS MH Assessor Annual Refresher Course - London, 4/12/17‎ — No results
  • Edge Training: DOLS Authorised Signatories - London, 8/12/17 — No results
  • Edge Training: Best Interests Assessors Legal Update Course - London, 18/12/17 — No results

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