View source for Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022)

{{Resource
|Title=Mental health case law: update
|Author=Wilson, Jonathan
|Organisation=Legal Action
|Date=May 2022
|URL=https://www.lag.org.uk/article/212532/mental-health-case-law-update-may-22-
|Type=Journal article
|Sentence=Case law update
|Abstract=This article considers mental health case law from the past year relating to remote MHA assessments, after-care responsibility, discharge from long-term leave, deprivation of liberty during conditional discharge, removing all conditions of discharge, change in status before a tribunal hearing, and other matters.
|Detail===About the article==
{{Legal Action intro|prev=March 2021|next=May 2022}}

==Remote Mental Health Act assessments==
* '''Devon Partnership NHS Trust v Secretary of State for Health and Social Care'''
* [2021] EWHC 101 (Admin),
* 22 January 2021

An application for admission to hospital (under Mental Health Act (MHA) 1983 s2, s3 or s4) or for guardianship (under s7) must be founded on medical recommendations ‘given by practitioners who have personally examined the patient either together or separately’ (s12(1)). An approved mental health professional (AMHP) relying on those recommendations must ‘interview the patient in a suitable manner’ (s13(2)) and must have ‘personally seen the patient’ (s11(5)).

Near the beginning of the coronavirus pandemic, the NHS issued legal guidance (Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic, v2, 19 May 2020) stating that:

<blockquote>
This guidance has been prepared for use during this particular pandemic only … It is the opinion of NHS England and NHS Improvement and the [Department of Health and Social Care (DHSC)] that developments in digital technology are now such that staff may be satisfied, on the basis of video assessments, that they have personally seen or examined a person in a ‘suitable manner’ … [P]roviders should be aware that only courts can provide a definitive interpretation of the law.
</blockquote>

The trust, although it had so far only carried out one remote assessment, sought a definitive interpretation in the form of declarations from the High Court. Ordinarily, the court would not give advisory opinions on statutory construction, but it agreed that this was an exceptional case: there was a real (not hypothetical or academic) question; the trust had a real interest in it; and the court had heard proper argument.

The High Court decided that both phrases – ‘personally examined’ and ‘personally seen’ – require the physical attendance of the person in question on the patient, because of the following six considerations:

# in this country, powers to deprive people of their liberty are generally exercised by judges and where, exceptionally, statute authorises administrative detention, the powers are to be construed particularly strictly;
# splitting up the compound phrases into individual words fails to capture their true import as understood when enacted;
# parliament understood the medical examination as necessarily involving physical presence (confirmed by the word ‘visiting’ used elsewhere, and the fact that psychiatric assessment may involve a multi-sensory assessment);
# it is not appropriate to apply an ‘updating construction’, as the words were intended to be restrictive and circumscribed, and when enacted were understood as connoting physical presence;
# medical examinations should ideally be carried out face to face (Mental Health Act 1983: code of practice (January 2015) and the NHS guidance both state this is preferable), and it is for parliament to weigh up the competing interests (namely, the need to ensure that administrative deprivations of liberty are properly founded on objective evidence and the need to maintain the system of MHA 1983 detention given the exigencies of the pandemic); and
# interpretation by the court would be applicable immediately and may remain in force for some time after the end of the current pandemic, but modifications by parliament could involve ongoing judgement on whether to bring them into force and whether to make them time limited.

'''Comment:''' Within days of the Devon decision, the NHS published a [[NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v4, 25/1/21)|new version]] of its legal guidance with the offending section removed (v4, 25 January 2021).

The judgment did not discuss other scenarios with different statutory wording, such as detention and community treatment order (CTO) renewal, which requires the responsible clinician to ‘examine the patient’ (ss20(3)(a) and 20A(4)(a) respectively); or discharge onto CTO, where the requirement for the AMHP to ‘meet with the patient’ is only in the code of practice (para 29.22); or detention under s136, where the purpose is enabling the patient ‘to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional’ (s136(2)). However, subsequent guidance (including from NHS England, and from the Association of Directors of Adult Social Services and the Local Government Association) addressed these scenarios and, although contradictory in some respects, generally advised a cautious approach of avoiding remote assessments.

No judgments have been published either in relation to further statutory interpretation or damages awards. This is probably because, instead of seeking further court guidance, the cautious approach was taken. It may also be that the prospect of nominal damages meant any challenges by patients were settled or abandoned.

The First-tier Tribunal (FtT) issued guidance ([[Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)|Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case, 30 June 2021)]] stating that if proceedings began in relation to an unlawful section (based on a remote assessment) but the patient is now on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application or reference, but facilitate the patient in making a new application. The guidance only deals with the possibility of the patient making an application. It would arguably be better for the patient to seek a reference, which would preserve the right to make an application later in the eligibility period and so ensure the patient is not prejudiced by the unlawful acts of others. The tribunal issued guidance in another context ([[Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21)|SM v Livewell Southwest – new process for references]], 30 June 2021) stating that the DHSC will make an urgent reference on the day of a hearing when the tribunal finds that the hearing should go ahead despite the patient having lacked capacity to make the application.

==After-care responsibility==
* '''R (Worcestershire CC) v Secretary of State for Health and Social Care'''
* [2021] EWCA Civ 1957,
* 22 December 2021

MHA 1983 s117 deals with after-care services, and in relation to the responsibility for providing these services states:

<blockquote>
(2) It shall be the duty of the clinical commissioning group or local health board and of the local social services authority to provide or arrange for the provision of, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the clinical commissioning group or local health board and the local social services authority are satisfied that the person concerned is no longer in need of such services; ...

[…]

(3) In this section ‘the clinical commissioning group or local health board’ means the clinical commissioning group or local health board, and ‘the local social services authority’ means the local social services authority –
:(a) if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in which he was ordinarily resident;
:(b) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or
:(c) in any other case, for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.
</blockquote>

JG was first detained under s3 in a Worcestershire hospital. Worcestershire CC was the local social services authority that funded her after-care when she was discharged to a care home in Swindon to be closer to her daughter, and when she was later moved to a second care home there. The following year, she was detained again, first under s2 then under s3, in a Swindon hospital, during which time Worcestershire CC issued a termination notice to the Swindon care home. After a few months of detention, and nearly two years as an informal patient, she was again discharged from hospital.

The two local authorities disagreed about who was now responsible. The health and social care secretary decided under Care Act 2014 s40(1) that it was Swindon BC, as she was living in that area immediately before her second period of detention. On review, the health and social care secretary decided that it was Worcestershire CC, as she was ordinarily resident there for ‘fiscal and administrative purposes’ (using a phrase from R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46; October 2015 Legal Action 34 at para 60, a case on the meaning of ordinary residence under community care legislation).

The High Court then said Swindon BC was responsible, because Worcestershire CC’s duty ceased by operation of law at the moment that JG was released from her second period of detention because immediately before that period she was ordinarily resident in Swindon ([2021] EWHC 682 (Admin)). The High Court also decided that the termination notice was not a decision under s117(2) that JG was ‘no longer in need’ of after-care services, and this was not challenged on appeal.

The Court of Appeal based its decision primarily on statutory construction:

<blockquote>
The starting point is that the words of s117(2) could not be clearer. It provides that the duty continues ‘until such time as’ a decision is taken by the relevant medical/social care staff at the authority that they are satisfied that the person concerned is no longer in need of after-care services. As the judge found, there was no such decision here. So this whole debate really boils down to trying to find a way round the express provisions of s117(2), and to alight upon some other way in which it might be said that the duty came to an end. No matter how ingenious such an answer might be, it will always be met with the response: that is not what the Act says (para 49).
</blockquote>

There was no reason to depart from that starting point so, as there had been no decision under s117(2), Worcestershire CC remained the responsible local authority throughout.

The Court of Appeal did not, therefore, have to deal with the question of where JG was ordinarily resident immediately before her second admission, but made detailed obiter comments nevertheless. According to the ordinary meaning of the words, the answer to the question ‘Where did she live?’ was Swindon. The same conclusion is reached having regard to the leading case on the subject, R v Barnet LBC ex p Shah [1983] 2 AC 309, which stated:

<blockquote>
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.
</blockquote>

The question then was whether there was any statutory provision or any authority obliging the court to come to a different conclusion. The earlier Court of Appeal decision in R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 was correct in refusing to declare that ‘is resident’ in the MHA 1983 was the same as ‘is ordinarily resident’ in the National Assistance Act 1948. Neither the subsequent amendment to the MHA 1983 by the Care Act 2014 (replacing ‘is resident’ with ‘is ordinarily resident’) nor the provisions of the Care Act 2014 itself justified departing from Hertfordshire. The reasoning of the Supreme Court in the more recent Cornwall case, relating to a person being ordinarily resident under community care legislation for ‘fiscal and administrative purposes’ in a different place from where he lived, cannot be extended to the MHA 1983, particularly since those statutes have a relevant deeming provision that is absent from the MHA 1983.

'''Comment:''' In a situation where a person is detained under a relevant section when living in area 1, then is detained again when living in area 2, the orthodox view for many years was that the local authority in area 2 would become responsible for after-care. Following this Court of Appeal decision, the answer is now that area 1 remains responsible unless a decision is taken that the patient is no longer in need of after-care services at all.

Worcestershire CC has appealed. The DHSC position, stated in the statutory guidance, [[DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 27/1/22)|DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case]] (updated 27 January 2022), is that:

<blockquote>
Ordinary residence disputes raising similar issues to those in the Worcestershire case will continue to be stayed until we have a final decision by the Supreme Court.
</blockquote>

The case concerned the local social services authority responsible for after-care. The situation in relation to the responsible clinical commissioning group (CCG) in England or the local health board in Wales is the subject of guidance in NHS England’s [[NHS England, 'Who Pays? Determining which NHS commissioner is responsible for making payment to a provider' (25/8/20)|Who pays? Determining which NHS commissioner is responsible for making payment to a provider]] (25 August 2020) and the Welsh government’s [[Welsh Government, 'Responsible Body Guidance for the NHS in Wales' (5/4/13)|Responsible body guidance for the NHS in Wales]] (5 April 2013) respectively.

==Discharge from long-term leave==
* '''DB v Betsi Cadwaladr University Health Board'''
* [2021] UKUT 53 (AAC),
* 3 March 2021

This case concerned the proper exercise of the tribunal’s discharge power, which for most cases is set out in MHA 1983 s72(1)(b):

<blockquote>
[T]he tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied –
: (i)that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
: (ii)that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
: (iia)that appropriate medical treatment is available for him …
</blockquote>

DB had been detained in hospital under s3, but for the previous 11 months had been subject to s17 leave: he was living in a care home with supervised community leave and had not set foot in a hospital. The responsible clinician’s evidence to the Mental Health Review Tribunal (MHRT) for Wales was that DB would neither take his medication nor remain at the care home without continuing to be liable to be detained in hospital.

The patient argued that it was not ‘appropriate for him to be liable to be detained’ because the care package did not contain a significant component of hospital treatment. In this regard, he relied on R (CS) v Mental Health Review Tribunal [2004] EWHC 2958 (Admin), which refined the statutory test in s72(1)(b)(i) to this question:

<blockquote>
[W]as CS’s mental illness of a nature or degree which made it appropriate for her to receive treatment, a significant and justified component of which was treatment in a hospital? (para 39).
</blockquote>

The Upper Tribunal (UT) decided that the tribunal had used the language of the patient’s argument – by regularly quoting ‘significant component’, for instance that ‘medication, support and review are significant components of [his] treatment plan’ – but had failed to address its substance and so had not interpreted the test in accordance with the CS case. The tribunal should have analysed the components of his treatment, as broadly defined in s145, then decided the extent to which they were being delivered in hospital, but had failed to do so.

The risk of this approach leading to an ‘inevitable new admission’ and an ‘unending cycle of discharge and admission’ (para 12) can, in the UT’s view, be avoided by using a CTO, a conditional discharge, or the Mental Capacity Act 2005, as appropriate. The UT guessed that maybe the clinical team had not taken account of CS when discounting the option of a CTO, which in turn had led the tribunal to choose detention over discharge and early readmission, but concluded:

<blockquote>
Whether that was part of the tribunal’s thinking or not, liability to detention is not a fallback when the 
possible options are not suitable or not available. To repeat, if the statutory conditions for detention are not met, the tribunal must direct their discharge. Section 3 is not available just because none of the other options is suitable for the patient. If there are no options under the Act, the proper and only course is to discharge the patient (para 13).
</blockquote>

Instead of discharging the patient, the UT passed the matter back to the MHRT for the case to be decided ‘in the light of up-to-date evidence of his condition and treatment’ (para 14).

'''Comment:''' This case confirmed the conventional wisdom on the subject, but should be read in light of the Cumbria case below.

==Deprivation of liberty during conditional discharge==
* Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust and Secretary of State for Justice v EG
* [2021] EWHC 2990 (Fam),
* 9 November 2021

For six years, EG had been a conditionally discharged patient living in a care home, and since discharge he had never visited any hospital as an inpatient or outpatient. The effect of his care plan – including that staff were aware of his location at all times and that he received one-to-one support when accessing the community – amounted to a deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights (ECHR).

The legal situation changed after the Supreme Court’s decision in Secretary of State for Justice v MM [2018] UKSC 60; February 2019 Legal Action 17 that the MHA 1983 does not permit either the FtT under s73(2) or the secretary of state under s42(2) to impose conditions amounting to detention or a deprivation of liberty on a conditionally-discharged restricted patient. That case in turn led to HM Prison and Probation Service’s [[Guidance: discharge conditions that amount to deprivation of liberty|Guidance: discharge conditions that amount to deprivation of liberty]] (January 2019). Pursuant to that guidance, EG was recalled by the justice secretary, but was not returned to hospital; instead, he was immediately granted s17 leave subject to the same conditions as had been in place under his conditional discharge. This was referred to as a ‘technical recall’.

This recall led to an automatic reference to the tribunal under s75. The tribunal had to reconcile the case law in relation to long-term s17 leave (requiring discharge in the absence of any treatment in hospital) with that in relation to deprivation of liberty (forbidding a discharge condition amounting to deprivation of liberty). It concluded that it had no choice but to grant a conditional discharge, albeit without any ‘deprivation of liberty’ conditions, but suspended the effect of its decision pending appeal. The consequence of this discharge, if put into effect, would be that EG could not lawfully be deprived of his liberty, that his doctor would therefore recommend that he be recalled to hospital, and that the justice secretary would follow this recommendation.

The judge held that the tribunal had applied the case law impeccably, based on the natural construction of s72(1)(b)(i). However, the evidence was entirely clear that it was strongly against the patient’s therapeutic interests to be treated in hospital, even by going there as an outpatient. There would therefore be a breach of article 5(1)(e) if EG were forced to return to hospital. The question then was whether this outcome could be avoided via Human Rights Act 1998 s3(1), which states:

<blockquote>
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
</blockquote>

The Supreme Court in Gilham v Ministry of Justice [2019] UKSC 44 set out the limits of that duty as being that it was not possible to ‘go against the grain’ of the legislation in question or to interpret it inconsistently with some fundamental feature of the legislation. The High Court described it as ‘a broad power which allows something very close to re-writing’ (para 72), and decided that it was possible to interpret the statutory criteria in such a way as to allow a patient to be deprived of liberty in the community under long-term s17 leave without any part of the care plan involving treatment in hospital. The judge’s words were as follows:

<blockquote>
70.… It is therefore possible to read the sub-section that makes ‘liable to be detained’ mean liable in law to be detained for treatment, even where that treatment is being provided in the community, so long as it could lawfully be provided in hospital.

[…]

73.It is therefore possible to construe s72 as to not require the tribunal to discharge, even where the link to the hospital is tenuous (as here), where such a construction is necessary in order to avoid a breach of article 5 …

[…]

ORDER

[…]

1. Pursuant to section 3 of the Human Rights Act 1998 … where it is necessary to do so in order to avoid a breach of a patient’s Convention rights, the words ‘liable to be detained in a hospital for medical treatment’ under section 72(1)(b)(i) of the Mental Health Act 1983 … should be read to mean ‘liable in law to be detained for treatment’ even where that treatment is being provided in the community.
</blockquote>

The judge stated, obiter, that the inherent jurisdiction does not extend to depriving people with capacity of their liberty: the lack of clear principles and appropriate legal safeguards would lead to the same concerns as noted in HL v UK App No 45508/99, 5 October 2004; [2004] ECHR 471, and the inherent jurisdiction in respect of vulnerable adults is a facilitative one (to allow the vulnerable person to have the space, away from the factor that is overbearing their capacitous will, to make a fully free decision) rather than a dictatorial one. It could not be used in this case and should not have been used in Hertfordshire CC v AB [2018] EWHC 3103 (Fam); February 2019 Legal Action 18.

'''Comment:''' This decision demonstrates the Heath Robinson nature of today’s mental health law. The government’s proposal to introduce a new ‘supervised discharge’ (a convoluted way of reintroducing deprivation of liberty conditions to conditional discharge) is designed to address the problem (see [[SSHSC, LC and SSJ, 'Reforming the Mental Health Act: Government response to consultation' (CP 501, July 2021)|Reforming the Mental Health Act: government response to consultation]], DHSC, CP 501, July 2021).

In the meantime, it is possible for s17 leave to be used in lieu of conditional discharge in these circumstances if either: (a) a significant and justified component of the patient’s treatment is treatment in hospital (see DB above); or (b) return to hospital would breach the patient’s ECHR rights, which in turn justifies the contorted reading of the discharge criteria.

==Removing all conditions of discharge==
* '''DA v Central and North West London NHS Foundation Trust'''
* [2021] UKUT 101 (AAC),
* 23 April 2021

DA was a conditionally-discharged restricted patient who had made an application under MHA 1983 s75 to the FtT seeking an absolute discharge. There are no statutory criteria in relation to this decision, but various relevant factors were set out in R (SC) v Mental Health Review Tribunal [2005] EWHC 17 (Admin), along with the following:

<blockquote>
[S]ection 73 also points the way to a crucial question which the tribunal will need to consider when exercising its powers under section 75(3). The consequence of an order under section 75(3)(b) is that the restriction order ceases to have effect; in other words, that what was previously only a conditional discharge becomes in effect an absolute discharge. But, as section 73 demonstrates, the difference between the two is the difference between the patient who is, and the patient who is no longer, liable to be recalled to hospital for further treatment. So, in effect, one of the key questions that the tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is – as section 73(1)(b) puts it – ‘satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.’ If the tribunal is not so satisfied, then it is difficult to see that it could be appropriate for it to make an order under section 75(3)(b) (para 59, cited at para 15 of the present decision).
</blockquote>

The treating team gave unanimous evidence that DA should be granted an absolute discharge. The present and intended future responsible clinicians both acknowledged that transfer from the forensic team to the community mental health team (CMHT) was ‘a possible stress point with associated dangers’ (see para 6(a)) but gave evidence on how it would be managed.

The tribunal concluded that ‘the very slight restriction upon the patient of his being liable to recall’ was a proportionate measure given the ‘extreme risk to the public in the event of the patient becoming mentally unwell again’ and the fact that transfer to the CMHT was an ‘untested change which creates the possibility of some uncertainty’ (see para 18). It therefore refused to grant an absolute discharge, and the conditional discharge remained in place. However, as the evidence was ‘all one way’ in relation to compliance, the tribunal removed all conditions and noted that ‘on a future occasion a panel may well be significantly assisted by evidence of compliance with his care plan by the patient, despite there being no conditions requiring this’ (see para 18). The patient appealed.

In relation to the three grounds of appeal, the UT held:

<blockquote>
# There is nothing intrinsically irrational in imposing a conditional discharge without conditions: what makes a conditional discharge ‘conditional’ is the liability to recall, as the statute specifically provides for conditional discharge without conditions, and provides no direct sanction for breach of a specific condition. The tribunal’s reasons for removing the conditions were entirely rational, as was (although not fully argued before the UT) its view on a future panel’s approach.
# The tribunal’s consideration of whether continued liability to recall was ‘proportionate’ was relevant in assessing whether it was ‘appropriate’ and so was unobjectionable.
# The tribunal had failed to explain what it was about the transfer between teams that created a ‘possibility of some uncertainty’ (given the evidence about how that transfer would be managed) (see para 33) or how the uncertainty was thought to impact on the likelihood of the appellant becoming mentally unwell. Alternatively, the tribunal had failed to give reasons for rejecting the ‘least restrictive option’ (absolute discharge and CMHT management) (para 35) as proposed by the responsible clinician. Also, the tribunal had not addressed the psychological burden on the patient of being liable to recall.
</blockquote>

Given the UT’s decision on the third ground, the appeal was allowed and the matter remitted to a new panel.

'''Comment:''' It seems fairly clear that the tribunal’s reason for not granting absolute discharge was that the ‘associated dangers’ of the pending transfer between teams was what created the ‘possibility of some uncertainty’, this uncertainty being in relation to the question of whether the patient would remain mentally well during that period.

==Change in status before a tribunal hearing==
* '''CS v Elysium Healthcare and Secretary of State for Justice'''
* [2021] UKUT 186 (AAC),
* 29 June 2021

While subject to a sentence of imprisonment for public protection, CS was transferred to hospital under an MHA 1983 s47/49 restricted transfer direction. His appeal against sentence was successful, with the Court of Appeal replacing it with a s37/41 restricted hospital order.

The Court of Appeal made this decision after CS had made an application to the MHRT for Wales, but before any tribunal hearing had taken place. In light of the change in status, the MHRT decided that the application ‘ceased to have effect and cannot be entertained’ (see para 13). CS appealed.

The UT noted that CS had ‘remained throughout a restricted patient’ and that s70, under which he had made his tribunal application, applies to ‘restricted patients at large’ without distinguishing between hospital order patients and transferred prisoners (para 52); that there is nothing in the differences between ss73 and 74 that necessarily nullifies an application made in circumstances such as those of CS; and that if parliament had intended such a disadvantageous consequence then clear wording to that effect (or making the advantageous consequence impossible) would be expected but was absent.

The UT set aside the MHRT’s decision and remade it accordingly.

'''Comment:''' The cases on change of status so far have decided that:

<blockquote>
# The tribunal retains jurisdiction following any changes between s2, s3 and CTO; following transfer from s3 to s7 (guardianship); and following a change on appeal from s47/49 (restricted transfer direction from prison) to s37/41 (restricted hospital order).
# The tribunal loses jurisdiction following a change from s47/49 to s47 (notional s37 hospital order), and following a change from s3 to s37 (hospital order imposed by court).
</blockquote>

== Other cases ==
Other cases from the past year, not reported in detail above, include:

* R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin), 11 June 2021 – this case involved an unsuccessful argument that there was a duty to hold a Middleton inquest (an inquest that fulfils the enhanced investigative duty required by ECHR article 2 – see R v HM Coroner for the Western District of Somerset ex p Middleton [2004] UKHL 10) following the death of a voluntary inpatient of a psychiatric rehabilitation unit due to an overdose of recreational drugs when she was at home in the community.
* A Midlands NHS Trust v RD [2021] EWCOP 35, 12 January 2021 – the trust decided against compulsory treatment of RD’s anorexia, and successfully sought legal protection from the Court of Protection in the form of declarations that RD lacked capacity and that the proposed care plan was lawful and in her best interests. Other recent cases involving non-treatment of eating disorders are A Mental Health Trust v ER [2021] EWCOP 32, 30 April 2021 and Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6, 24 February 2022.
* R (ZK) v Norfolk CC [2021] EWHC 1249 (Admin), 12 May 2021 – ZK unsuccessfully argued that to return her to her sheltered accommodation one-bedroom flat would be in breach of the defendant’s MHA 1983 s117 duties.
* Complaint against Lewisham LBC [[London Borough of Lewisham (20 006 910) (2021) MHLO 5|Local Government and Social Care Ombudsman (LGSCO) Complaint No 20 006 910]], 13 April 2021 – Lewisham LBC, the NHS South East London CCG and the South London and Maudsley NHS Foundation Trust initially reneged on a promise to update their MHA 1983 s117 policy, but eventually changed it to state: ‘If accommodation is included as part of after-care, it should not be charged for, nor should person be told to claim housing benefit. Service and utility charges should be deemed part of the s117 accommodation’ (para 31).1
* R (Gisagara) v Upper Tribunal (Administrative Appeals Chamber) [2021] EWHC 300 (Admin), 16 February 2021 – Mr Gisagara unsuccessfully argued that as he had been placed on MHA 1983 s17 leave pending commencement of a CTO, he should have been discharged from s3 by the tribunal.
* R v Lall [2021] EWCA Crim 404, 19 March 2021 – the attorney general unsuccessfully sought leave to refer the MHA 1983 s37/41 sentence to the Court of Appeal as being unduly lenient, arguing that the correct order should have been life imprisonment with a s45A hybrid order.
* R v Hunnisett [2021] EWCA Crim 265, 4 March 2021 – the appellant wanted a murder conviction and 18-year-tariff life sentence quashed, to be substituted with manslaughter on the ground of diminished responsibility and an MHA 1983 s45A hybrid order, on the basis of fresh evidence (a prosecution psychiatrist had changed her mind), but the Court of Appeal refused to admit this evidence.
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