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February 2025 update

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This page is automatically generated: it will only be complete at the end of the month. All monthly updates are available here: Archive of monthly updates.

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  • Magic Book. The Magic Book is a database of contact details. The main idea is to add the hospitals and other places you visit (not just your own place of work). 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.
  • Cases. By the end of this month, Mental Health Law Online contained 2438 categorised cases


Cases

  • Case (Jurisdiction over minor with foreign habitual residence). Irwin Mitchell Trust Corporation Ltd v KS [2025] EWCOP 7 (T2) — "This matter concerns a young person under 16 years of age, who has substantial assets in England. Her appointed property and affairs deputy has applied for specific authorities in respect of expenditure from her funds. Her litigation friend contends that the Court of Protection has no jurisdiction to determine the application, and the deputyship appointment should be discharged. The jurisdiction question arises because, as all parties agree, KS is now habitually resident in India."
  • Case (Gender dysphoria). O v P [2024] EWCA Civ 1577 — The High Court had dismissed proceedings rather than adjourn because it could not see any realistic basis for overriding the 16-year-old's consent for cross-sex hormones. The Court of Appeal reversed that decision because: (1) Gender Plus, a private provider, could not satisfy all the Cass Review recommendations, including that every medical treatment case be considered by a national MDT; (2) the Cass Review had only just been published when the judge heard the application, and there was sufficient doubt as to what is proper and appropriate in this area.
  • Case (Insight and capacity). CT v London Borough of Lambeth [2025] EWCOP 6 (T3) — (1) The first instance judge had erred by including knowledge of the patient CT's psychiatric diagnoses and their consequences in the list of relevant information, as such an "insight" requirement is circular and risks leading inevitably to the conclusion that the patient lacks capacity; (2) that approach wrongly failed to delay consideration of mental impairment until after the functional assessment; (3) the judge had not properly taken into account recent evidence that CT had insight into his increasing frailty. The appeal judge added to the "growing industry of checklists" with 10 points to assist those assessing capacity.
  • Case (Negligence claim against police). Dobson v Chief Constable of Leicestershire Police [2025] EWHC 272 (KB) — After arrest and release, the claimant took an insulin overdose and suffered life changing injuries. He argued that the police owed a duty of care, having assumed responsibility to protect him from harm, and had breached that duty by not further detaining him pending a full mental health assessment. The judge held that: (1) the defendant had not assumed responsibility to protect the claimant from self-harm after release: appropriate mental health and risk assessments had been carried out in custody and, in any event, there was no basis to detain him (s136 could not have been used as he was not in immediate need of care or control, and there is no distinct common law right to detain pending a mental health assessment as that would defeat the legislative purpose of s136); (2) counterfactually, were there a duty there would be no breach, and were there a breach there would be no causation; (3) Article 2 was not engaged because there was no evidence of a real and immediate risk to life, and in any event would bring nothing new.
  • Case (Appeal against life sentence). R v Ansell [2023] EWCA Crim 1529 — The unrepresented appellant sought to appeal his life sentence, essentially on the basis that his mental health problems had not properly been addressed at trial, and sought an extension of time of over 20 years as "I did not know until now I could appeal under the Mental Health Act". He was unsuccessful: his mental health problems were known at the time, diminished responsibility had not been raised at trial, and he had been convicted of murder for which the only possible sentence is life.
  • Case (Appeal against murder conviction). R v Ansell [2024] EWCA Crim 1669 — The appellant argued that his murder conviction was unsafe because his mental health problems had not properly been considered. The extension of time application (of over 21 years) was refused, as was leave to appeal (his mental health problems were well known at the time, and it had quite clearly been a drug-fuelled attack).
  • Case (Local authority consent to child's DOL). Re J (Local Authority consent to Deprivation of Liberty) [2024] EWHC 1690 (Fam) — The High Court granted the care order as sought, but said that an order authorising deprivation of liberty was not necessary as the local authority could consent. (1) The judge was constrained by caselaw to find that there was a deprivation of liberty (the situation was not as clear cut as in SM). (2) The parents, and the LA if a care order is made, can give consent to deprivation of liberty: the test for whether a LA can make a decision or grant consent in respect of a child in their care is whether the consequences are "of great magnitude" to the child, but here the restrictions were the obligations of any responsible carer in ensuring J's best interests and were required by Article 2's positive obligations. [The consent point was overturned on appeal.]
  • Case (30-year-old inquest quashed). Whittle v HM Coroner for North West Wales [2025] EWHC 236 (Admin) — The deceased's brother argued that there had been insufficiency of inquiry at the original 1995 inquest (in relation to the risk posed by the deceased, whether he required MHA detention, whether he was de facto detained, whether staff acts/omissions contributed to the death, how he absconded through a window, and the steps then taken to search for him). A new investigation, which might have to be Article 2 compliant, was ordered. A procedural problem was resolved by extending time for service.
  • Case (Revocation of LPA). VX v KX [2024] EWCOP 78 (T2) — SX had executed both types of LPA in favour of different children. (1) The court revoked the health and welfare LPA. (2) For pragmatic reasons, to avoid delaying the move to a new residential care home, the court did not revoke the property and affairs LPA, but said that if the attorneys did not "disclaim their lasting powers of attorney at the first opportunity so that a panel deputy can be appointed" then the LPA would be revoked.
  • Case (Discharge of deputyship). Re AECO [2025] EWCOP 5 (T2) — The public guardian asked the court to revoke the appointment of AECO's mother as property and affairs deputy on the basis that she had contravened her authority and that for her to continue would not be in AECO's best interests.
  • Case (No PB release after MHT decision). Re Davies (Reconsideration) [2023] PBRA 98 — (1) The Parole Board's decision not to release the prisoner after the MHT's decision that he would be entitled to conditional discharge did not meet the test for irrationality (which is that "the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"). (2) The PB decision contained some ambiguous wording but this did not amount to a fundamental mistake of fact.
  • Case (No Ombudsman investigation during court proceedings). Knowsley Metropolitan Borough Council (24 013 803) [2024] MHLO 7 (LGSCO) — Ombudsman's summary: "We will not investigate Mr X’s complaint about the Council’s decisions or its assessments about Ms Y’s care and support needs. The matter is being considered by the Court of Protection and the law will not allow us to consider a complaint where court action has already started."
  • Case (Cancer treatment for MHA patient). A Hospital NHS Foundation Trust v KL [2023] EWCOP 59 — The patient, who was detained under the MHA and on s17 leave to a general hospital, lacked capacity in relation to chemotherapy, which was in her best interests. She was not ineligible for MCA detention so that was authorised, as was restraint for the purpose of giving the chemotherapy
  • Case (Inherent jurisdiction protection from husband). Wakefield Metropolitan District Council v FH [2024] EWHC 830 (Fam) — The local authority sought orders under the inherent jurisdiction to protect a woman from her abusive husband. She had capacity in relation to litigation, residence and contact, but was a vulnerable adult. The court made orders prohibiting her husband from removing her from the current care home or any future accommodation, and prohibiting direct contact without third party support.
  • Case (Residence). Wakefield Metropolitan District Council v FH [2021] EWHC 1233 (Fam) — "In my judgment, FH requires the protection of the court at this stage to ensure that she does not return, at this stage, I emphasise, to the home which she shares with her husband and into his primary care. I am satisfied that the local authority has made out its case for an order which will ensure that FH remains at Dewsbury Hospital until she is fit for discharge, and that upon that stage being reached in her recovery, that she then be transferred to a care home, probably HH Care Home, for the immediate future. I am satisfied that where it is necessary, it is indeed proportionate for modest forms of restraint to be used to ensure that FH is enabled to make that journey and then remain at the care home.
  • Case (No DOL if cannot leave because of disabilities). Re SM: Peterborough City Council v Mother [2024] EWHC 493 (Fam) — The High Court decided that SM was not deprived of her liberty under Article 5 because the reason that she could not leave was her profound disabilities rather than any action of the State (whether by restraining her or by failing to meet the a positive obligations to enable her to leave). She was both physically incapable of exercising her right to liberty, and mentally incapable of asserting it. The Supreme Court in Cheshire West did not deal with the situation of a child such as SM who is incapable of leaving because of a combination of her physical and mental disabilities rather than by reason of any restraints placed upon her. The judge noted: "On a conceptual level it is difficult to see how one can be deprived of something that one is incapable of doing." This common sense approach will not be popular in the legal profession.
  • Case (No DOL if cannot leave because of disabilities). Re V (Profound Disabilities) [2025] EWHC 200 (Fam) — The local authority applied under s100 Children Act 1989 for declarations under the inherent jurisdiction that the proposed restrictions on a looked-after child were lawful under Article 5, Article 2 and Article 3. These restrictions included 2:1 or 1:1 supervision at all times, including when transported by vehicle and when in the community, and being monitored in his room by voice monitor and physical checks. The High Court decided that the reason V could not leave his care placement and required intimate support was because of his disabilities, not by reason of any action of the State, so no order was required. The proposed restrictions on mobile phone use were an appropriate exercise of the local authority's parental responsibility under the care order.
  • Case (Section 117 top-up fees). Buckinghamshire Council (24 003 060) [2024] MHLO 6 (LGSCO) — Ombudsman's summary: "Mrs X complained about top-up fees for accommodation without [there being offered] a suitable and affordable alternative. We did not find fault with the accommodation the Council offered. We found fault with some communication and recommended the Council and the NHS Trust apologise for any distress this caused to Mrs X."
  • Case (Capacity in committal proceedings). Derbyshire County Council v Grundy [2025] EWCOP 1 (T1) — This was an application for committal to prison, including activation of a suspended sentence of imprisonment previously imposed. The court had to decide: (a) Mr. Grundy's capacity to conduct these committal proceedings, to comprehend and make decisions as to the injunction order and the suspended sentence which was handed down on the previous application; (b) whether the four alleged breaches are proven; and (c) whether to deal with sentencing immediately, if capacity is established and the breaches made out.
  • Case (Rule 11(7)(a) and lack of express instructions). IN v St Andrew's Healthcare [2024] UKUT 411 (AAC) — The patient had not appointed a representative but did not wish to conduct his own case, so a representative was appointed under rule 11(7)(a). The patient refused to engage or provide instructions. The solicitor sought an adjournment and said she would not remain as an observer if it were refused, but the tribunal refused to adjourn. The Upper Tribunal said that: (1) Such appointments operate as a retainer (citing a previous case which did not say that). The solicitor should have acted upon inferred instructions to test the detaining authority’s case for his continued detention, because that is the whole purpose of a hearing of a s68(2) reference and the patient preferred to be represented. It was appropriate to seek an adjournment but inappropriate to leave or threaten to leave. (2) When capacity to provide instructions is in issue, the tribunal is not precluded from relying on evidence from the RC or other witnesses, but must consider potential conflicts of interest and the witness's understanding of the relevant issues. (3) The Tribunal’s failure to explain (a) how it balanced the competing factors for and against granting an adjournment, and (b) why it was in the interests of justice to proceed with the hearing in the absence of both the patient and his representative, rendered its reasons for refusing the adjournment application inadequate. The Legal Aid implications were not mentioned.

Resources

  • Criticism of Mental Health Bill. Anselm Eldergill, 'Is it Madness?' (5 February 2025) — This article by the chairman of the Patient Safeguards and Mental Health Tribunals Working Group, which formed part of the Wessely review, is critical of the failure of the Mental Health Bill to act on its recommendations. Liberal reforms of mental health legislation (the 1959 and 1983 Acts and initiating this review) have been initiated by Conservative administrations whereas Labour has focussed on structures and systems more than individual freedom, with unfortunate results. Care homes are the new long-stay wards and there are now far more people detained outside psychiatric hospitals than in them, so a single, fused statute is needed. Lack of intervention prior to psychiatric homicides is not due to lack of legal powers, and no amount of new legislation can improve foresight. An unanswered question is whether statutory grounds for detention actually fetter professional decision-making, or whether doctors make their decisions on other grounds and squeeze that decision into whatever legal framework is provided. In relation to the four protective pillars of the MHA 1983: (1) Tribunal discharge rates have fallen from 20-25% in the mid-1990s to around 6% (3% for CTOs), partly because of defensive decision-making after well-publicised incidents, JAC procedures and judicial culture, and inadequate legal representation following the decimation of Legal Aid. It was disturbing that the tribunal’s representations to the working group proposed curtailing rather than expanding some of the legal rights of detained patients, and placed less emphasis on individual liberty than the old 1959 Act. The proposals to empower the tribunal to authorise deprivation of liberty in the community means it will come to be seen by some as part of the state apparatus that imposes compulsion rather than as a court that exists solely to review and terminate infringements of liberty that are not justified. (2) The nearest relative's removal is for essentially Kafkaesque equality reasons, and is to be replaced by a ridiculously complicated and bureaucratic scheme which involves the citizen or a professional selecting a 'nominated person'. (3) Labour's abolition of the MHAC and its amalgamation into the CQC super-quango led to the predicted increased institutional abuse. What is needed is a multi-disciplinary legally-led Mental Health and Human Rights Commission that is responsible for monitoring and ensuring compliance with the MHA, MCA and ECHR, and which to ensure independence from Ministerial pressure should be accountable to and funded by Parliament, not the DHSC. (4) The hospital managers' focus needs to be on seclusion, restraint, investigating complaints and reporting allegations of ill-treatment or non-compliance with the law to the new Commission. The author is critical of the review for overreliance on civil servants and academic input and insufficient practitioner input: "The consequence is that a legal system that was deficient will remain deficient. ... These Bills are once in a generation events and we shall now have to wait another generation for necessary reforms. Pure madness."
  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 147, February 2025) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: myth-busting about DoLS and strong words about assessment of capacity of D/deaf people; (2) In the Property and Affairs Report: revoking Deputyship for a person no longer present in England & Wales; (3) In the Practice and Procedure Report: litigation capacity and a very clear statement of the ordering of the capacity test, delays in obstetric cases and guidance on neurodiversity before the courts; (4) In the Mental Health Matters Report: the Mental Health Bill progresses and two important Upper Tribunal cases; (5) In the (new) Children’s Capacity Report: deprivation of liberty before the courts and Parliament, when capacitous consent is not enough, and best interests and the clinical circling of the wagons; (6) In the Wider Context Report: The Terminally Ill Adults (End of Life) Bill and capacity (including whether there really is a ‘sliding scale’), CCTV and care homes, and using the arts to be more creative in capacity assessment; (7) In the Scotland Report: Scottish Government’s law reform proposals – the consultation responses, and the OPG digitalises."
  • Mental health Legal Aid form. Legal Aid Agency, 'Form CW 1&2 MH' (v21, February 2025) — The LAA website update dated 3 February 2025 states: "Published new versions of the CW1&2 and CW4 with updated privacy notices." Note that para 3.12 of the 2024 Standard Civil Contract Specification states: "We may amend the Application Forms from time to time upon giving at least 28 days' notice to you."

Social media

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Other items

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