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September 2010 update

Case law - new summaries

  • LC v DHIH [2010] UKUT 319 (AAC) — (1) The MHRT for Wales's decision not to discharge the patient, following a deferred conditional discharge, was inadequately reasoned because: (a) it took into account matters to which it had not referred in its original decision; (b) in relation to the newly-identified risk factors, either they must have been risk factors at the time of the original decision, or something unidentified must have happened to make them risk factors; (c) the tribunal could have deferred its decision for a report from the RC at the proposed accommodation, given that all staff agreed with the transfer; (d) the transfer was recommended despite the above; (e) given the liability to recall inherent in a conditional discharge, no reason was given as to why it was necessary to retain the "support of the MHA for the time being" during the accommodation move. (2) The second decision was set aside, so the original deferred conditional discharge decision remained effective, and the matter was referred to the First-tier Tribunal President for directions to arrange a further hearing.§
  • Minister for Justice, Equality and Law Reform v Murphy [2010] IESC 17 — (1) A 'sentence of detention' under (Irish) European Arrest Warrant Act 2003 s10(d), read with the aid of the relevant Framework Decision, is any order involving deprivation of liberty which has been made by a criminal court in addition to or instead of a prison sentence. (2) This therefore includes a restricted hospital order made under s37/41 MHA 1983. (3) The appellant, who had escaped having been convicted of extraditable offences, was surrendered to the UK.§
  • J v DLA Piper UK LLP (2010) UKEAT 0263/09/1506 — (1) In holding that at the material time (June 2008) the claimant was not suffering from 'clinical depression' amounting to a disability within the meaning of the DDA 1995, the Tribunal had (a) wrongly declined to give weight to the evidence of Claimant's GP, on the issues both of impairment and of 'deduced effect', because she was not a specialist; and (b) made a perverse finding as to whether the claimant's past depression had amounted to an impairment having a substantial adverse effect on her ability to carry out normal day-to-day activities, which was material both to the question of whether she had an impairment in June 2008 and to the potential application of para 2(2) of Schedule 1. (2) The appeal was allowed and the issue remitted. (3) Discussion of: (a) correct approach to issue of 'impairment' in cases involving a mental disability following the repeal of para 1(1) of Schedule 1; (b) distinction between 'clinical depression' and reactions to stress or other adverse circumstances producing similar symptoms; (c) whether claimant with a history of recurrent depressive episodes can be said to suffer an impairment in the intervals between episodes. (4) Claimant refused permission to advance a point not raised before the Tribunal to the effect that even if she was not in fact disabled at the time of the acts complained of the Respondents perceived her to have been; that discrimination on the basis of such "perceived disability" was contrary to EU law; and that the 1995 Act could be construed so as to give effect to that prohibition, by analogy with EBR Attridge LLP v Coleman [2010] ICR 242. [Summary based on judgment headnote.]§
  • A Primary Care Trust v P [2009] EW Misc 10 (EWCOP) — (1) P lacked capacity to decide where and with whom he should reside. (2) The removal of P from AH's care at home, as a manifest breach of Article 8, could only be proportionate if the best interests of P compellingly required it. (3) It was in P's best interests to be moved to independent living accommodation. (4) There would be a deprivation of liberty due to (a) the degree of control to be exercised by staff, (b) the constraint on P leaving if he intends to return to AH, (c) the power to refuse a request from AH for P's return, (d) the restraints on contact, (e) the fairly high degree of supervision and control. (5) Directions were given in relation to the conduct of further court reviews. (6) Contact would be dealt with separately in an Order.§
  • Re MIG and MEG [2010] EWHC 785 (Fam) — Neither MIG (aged 18, in a foster placement) nor MEG (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court judgment.]§
  • LM v MHTS [2010] ScotSC 150 — The appellant had been subject to a Short-Term Detention Certificate (STDC), which was followed by an (unlawful) Extension Certificate, which was then followed by a subsequent STDC. Section 44(2) Mental Health (Care and Treatment) (Scotland) Act 2003 prohibits the granting of a STDC when the patient is subject to an Extension Certificate. An application under s50 was made to revoke the second STDC; the MHTS considered the detention criteria and refused the application. This decision was subject to an appeal to the Sheriff Principal who held that as the appellant had not been "subject to" the Extension Certificate (it being unlawful) the second STDC was valid. The Sheriff noted that the appellant could have made an application in terms of section 291 to challenge the lawfulness of his detention; this option met Article 5 requirements and would have been more appropriate as the detaining party would have been the respondent.§
  • Re Farrow (2010) COP 18/8/10 — The donor appointed A to be her attorney and then appointed B to act in the event that A should be unable or unwilling to act or died. The donor then stated that A and B should act jointly and severally. On the application of the attorneys the court severed the words "jointly and severally", so that the instrument could be registered as an EPA appointing A as primary attorney and B as substitute attorney. [OPG summary - EPA case.]§
  • Re Lan (2010) COP 10/8/10 — The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "Any major decisions should be discussed between my attorneys so that a joint agreement to the matter can be achieved." On the application of the Public Guardian this restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.]§
  • ‎Re M Crook (2010) COP 16/7/10 — The donor's Health and Welfare LPA included an invalid restriction. A further defect was that she had not entered the date on which she executed Part A of the instrument in section 10, nor had she dated section 5 when selecting Option A. The Public Guardian does not regard a failure to execute the Options section as invalidating the instrument, but a failure to date Part A will normally do so. However, in this case the Public Guardian was prepared to infer that both sections had been executed on 13 October 2009, as Continuation Sheet A1 had been signed on that date, and so was the Part B certificate. In addition, the certificate provider had witnessed the Part A signatures. When applying for severance of the invalid restriction, the Public Guardian requested the court to direct that Part A was to be treated as having been signed on 13 October 2009, to avoid any challenges by third parties. The court accordingly included a provision in the order to the effect that sections 5 and 10 of Part A were to be treated as having been executed on 13 October 2009. [OPG summary - LPA case.]§

Case law - Other

  • Transcript added to existing page. Re Mark Reeves (2010) COP 5/1/10 — The Council, relying on a recent Court of Appeal judgment in relation to double recovery, compelled P's deputy to make an application to the Court of Protection for authorisation to apply for public funding. (1) The application was misconceived in seeking to apply the recent CA decision to this case which had been determined six years previously; (2) the Court of Protection is not an appropriate forum to adjudicate on double recovery in personal injury proceedings.§

Mental Health Tribunal

  • The Tribunal's guidance on CTO references was amended slightly on 23/09/10. Guidance: References made under section 68(7) Mental Health Act 1983 (updated 22/9/10) — On 22/7/10 the Deputy Chamber President issued guidance to the effect that a reference made under s68(7), triggered by the revocation of a CTO, will be treated as having lapsed if the patient subsequently is placed on a new CTO. The guidance was amended slightly on 22/9/10. The guidance also asserts that (1) ignoring the reference means that it is treated for the purposes of s68(3)(c) as if it had never been made, so that the normal s68(2) six-month duty to refer still applies; (2) if a six-month reference is made prematurely then, even if the six months will have elapsed by the time of the hearing, the Tribunal must strike out the proceedings under Rule 8(3)(a) for lack of jurisdiction; (3) a reference made under s75(1)(a), triggered by the recall of a conditionally-discharged patient, lapses if the patient subsequently is again conditionally discharged. Insofar as it relates to the lapsing of references, this policy is unlawful: PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC).
  • The Tribunals Service published a Reports Guidance Booklet on 07/09/10. See MHT, 'Guidance Booklet: Reports for Mental Health Tribunals' (published 7/9/10, updated 4/4/12)

Dept of Health

  • On 2/9/10 the DH published "Section 67 of the Mental Health Act 1983: References by the Secretary of State for Health to the First-tier Tribunal". This sets out the procedure for requesting a reference under s67(1). See Dept of Health
  • On 2/9/10 the DH published "Applications to the First-tier Tribunal (Mental Health)". This contains a summary of when and by whom applications may be made to the First-tier Tribunal. See Dept of Health
  • New page on Dept of Health website entitled "Cross-border transfers of patients under the Mental Health Act" added 2/9/10. This page contains links to the following documents: (1) Cross border patient transfer; (2) Transfer of non-restricted patients to a hospital outside England and Wales; (3) Transfer of responsibility of supervised community treatment patients. See DH
  • On 14/9/10 the Dept of Health published "The Government response to Law Commission consultation paper 192. Review of the law on adult social care". See Consultations#Law Commission
  • On 14/9/10 the NHS Information Centre published "Quarterly analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) 2010/11". See Statistics
  • The NHS Information Centre published "Guardianship under the Mental Health Act 1983, England 2010 on 8/9/10. This report contains the latest statistics about cases of guardianship under Sections 7 and 37 of the Mental Health Act 1983 in England. See Statistics

Legal Services Commission

  • CLS News item "Law Society Judicial Review of family tender" published on 6/9/10. Current contracts will now expire on Sunday 14/11/10; new contracts will commence on 15/11/10; current contact holders will receive an additional 1/12 of their matter start allocation. See Legal Aid News
  • The LSC published "Unified Contract Extension Guidance" on 20/09/10, which explains the one-month extension to civil legal aid contracts. See Legal Aid News
  • On 3/9/10 the Law Society published a news item entitled "Judicial review update: expedited hearing and civil contracts to be extended". Existing civil legal aid contracts will be extended by a month due to the Law Society's JR of the tendering process for family legal aid contracts (the judgment in which is expected on 24/9/10). See Law Society
  • The LSC published Version 6 of "Civil Contract 2010 Verification: Frequently Asked Questions" on 01/09/10. This version corrects a previously incorrect answer to question 3.2 (I am concerned that I will not be able to deliver all the matter starts that I have been allocated, what should I do?) The answer in version 2 was: "If you are in any doubt as to whether you can deliver all your matter starts, please contact us through the message board and let us know how many you would like. We will then adjust your total. It is important that you receive the right allocation at the start of the contract." The current answer is: "You will be required to deliver both the volume and breadth of services for which you have successfully tendered and been allocated matter starts in accordance with your bid and ranking (if applicable to your tender). However, as part of the verification process the LSC is giving successful applicants who are concerned that they will not be able to deliver the volume allocated to them an opportunity to review their allocation and request a reduction. Where such requests are received we will consider the implications for the procurement area with a view to reallocating any surplus matter starts to other providers in accordance with the allocation process set out in the IFA." See Legal Aid News

Other updates

  • On 1/9/10 the Law Society's web page on the Mental Health Accreditation Scheme was updated with the intention of making the information easier to understand and the documents easier to access. The list of current members of the scheme (as at 1/9/10) has also been reinstated. See Law Society
  • Text of MCA Update email 27/8/10 added to website. Headings are: OPG Annual Report 2009/2010 Published; Panel Deputy Recruitment Campaign; Change in Court of Protection Process from 1st September 2010 (Issue of orders appointing a property & affairs deputy - security bonds). See OPG
  • The Scottish Government are running a consultation entitled "Disclosure of Information to Victims of Mentally Disordered Offenders" from 30/8/10 to 22/11/10. The description is "Consultation on the possible introduction of a scheme for victims of mentally disordered offenders similar to the current criminal justice Victim Notification Scheme". See Consultations#Scotland

Website/CPD

  • Wikimentalhealth is now called Mental Health Law Online. The website menu system has changed, but the content remains the same. Please contact jonathan at mentalhealthlaw.co.uk if you have any comments about the new layout.
  • CPD questionnaires have been added for all months up to and including August 2010. For £50 you can earn 12 CPD credits online. The subscription can straddle two CPD years: for instance, if you only need 4 more hours this year, you can do 4 tests at any time before November and 8 tests after. See CPD scheme
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