Annual Review 2012

Alternative formats (via Amazon): Paperback | Kindle

See also: Annual Review 2011

Introduction

The Annual Review 2012 contains all Mental Health Law Online news which appeared in the monthly updates for 2012.

It is available online (at http://www.mentalhealthlaw.co.uk/Annual_Review_2012) and in Kindle and printed book format.

Further details (often including detailed summaries and case transcripts) can be read by clicking on the relevant links. Readers of the printed book version can either use the website search facility or use the online version of the Annual Review to find the relevant pages.

Some cases are marked as '[Summary required]': when summaries are added the online version will automatically be updated.

Comments and suggestions are welcome.

Jonathan Wilson

jonathan@mentalhealthlaw.co.uk

January 2013


Mental Health Law Online

Features of Mental Health Law Online include:

  • CPD scheme. Obtain 12 CPD points per year by completing online multiple-choice questionnaires based on the monthly updates. Suitable for solicitors (SRA-accredited), barristers (established practitioners), psychiatrists, social workers and psychiatric nurses.
  • Email and Kindle updates. You can choose whether to receive emails on a monthly or more frequent basis.
  • Email discussion list. Discuss all aspects of mental health law in England & Wales with other mental health practitioners.
  • Books. A selection of books is available from the online bookshop.
  • Donations. Mental Health Law Online is free to use and maintained on a voluntary basis. If you or your organisation find the website useful, please consider making a donation to contribute to its upkeep.

See http://www.mentalhealthlaw.co.uk for further details.

_

Contents

_

Cases

Mental Health Act detention

Tribunal procedure

  • Deferred conditional discharge. DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), [2012] MHLO 53(1) The tribunal cannot grant a deferred conditional discharge until (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge. (2) A deferred conditional discharge is not a device for gathering information on whether a conditional discharge would be possible or what conditions might be appropriate. (3) On the facts (where the tribunal had decided that 'with the exception of the availability of suitable after-care for the Patient, none of the criteria for his detention in hospital for treatment are met' but had not drafted conditions) the decision to adjourn was correct.
  • Extra-statutory recommendation. EC v Birmingham and Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC), [2012] MHLO 70(1) Appeals against tribunals' refusals to hear arguments in relation to extra-statutory recommendations were dismissed as (a) there is no legal right to advance these arguments (this is a sufficient reason for not making an extra-statutory recommendation which can be implied if not stated), (b) refusal to consider a extra-statutory recommendation is neutral rather than disadvantageous to the patient, and (c) a flawed extra-statutory should have no effect because of its legal status. (2) The judge made further comments about (a) potential guidance to hospital managers about UT procedure, (b) secondary challenges by the appellants, and (c) tribunal procedure generally in relation to extra-statutory recommendations.
  • Delayed discharge of community patient. CNWL NHS Foundation Trust v HJ-H [2012] UKUT 210 (AAC), [2012] MHLO 88The tribunal granted discharge from a CTO, deferred for 3 months, expressing the hope that in the meantime the RC would consider reducing the level of the patient's medication. The Trust appealed. (1) The challenge to the decision to discharge was essentially an attempt to re-argue the tribunal’s assessment of the evidence, and was therefore unsuccessful. In deciding on whether there is an error of law, the UT must respect the FTT's assessment of the evidence and fact-finding role (provided this was carried out rationally and explained): (a) the UT's statutory jurisdiction is limited to points of law; (b) the expert composition of the FTT means its fact-finding is worthy of such respect. (2) The challenge to the deferral also failed, as there was no evidence that the tribunal had misdirected itself by granting the deferral with the intention that that the patient's medication could be reduced in order to make her ready for discharge on a future date. (3) If the FTT's reasons for the deferral had not been set out adequately (ironically, the judge said the reasoning was 'not pellucid') then its decision would still not have been set aside; if anyone had cause to complain about the deferral it was the patient rather than the Trust. (4) If a CTO patient's condition deteriorates after a deferred discharge decision: (a) before the discharge date, he can be recalled under the CTO which still remains in force, and/or have his medication changed; (b) after the discharge date, he can be detained under s2 or s3, if there is information which was not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.
  • Adjournment for information. AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'.
  • Consent to treatment. SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC), [2012] MHLO 143The appellant was subject to a CTO. When he attended for his depot injection, he said that he did not consent to it but nonetheless he submitted to receive it without resistance. He argued that his lack of consent meant that the 'appropriate medical treatment is available for him' test was not met, but the tribunal did not discharge. The UT held that the issue of consent is outside the jurisdiction of the tribunal: (a) the tribunal can only consider the statutory criteria (consent does not arise until the decision to treat has been made, whereas appropriateness and availability are issues that arise prior to that decision); (b) it is the courts which provide judicial oversight of treatment under the Act.
  • Exclusion of evidence. LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC) — "This is an interlocutory appeal against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber), whereby the First-tier Tribunal declined to exclude evidence. ... the issue for the First-tier Tribunal is not whether evidence is admissible, i.e., whether it can be admitted, but is whether it should be admitted. Relevance is a key consideration. Irrelevant evidence should not be admitted. However, relevance is not the only consideration. The First-tier Tribunal is also entitled to consider the weight of evidence when deciding whether to admit it. ... It is wholly inconsistent for the primary care trust to say that it is confining its case to ten specific incidents and for it then to adduce evidence of complaints or other allegations relating to other incidents in order to show that those ten specific incidents are not isolated. ... In my judgment, the First-tier Tribunal erred in not considering whether any specific evidence should be excluded or redacted at the beginning of the hearing or whether there needed to be a clearer ruling as to the potential relevance of the evidence. It erred in law because it failed to rule that there was an inconsistency in the way the Respondent presented its case and it failed to require the Respondent to give the Appellant adequate notice of the inference it wished the First-tier Tribunal to draw from evidence of uninvestigated complaints and allegations that was not being admitted to prove the contents of the complaints and allegations." [Not an MHT case. Summary required.]

Nearest relative

  • Barring order. DP v Hywel DDA Health Board [2011] UKUT 381 (AAC)WP's order for his son DP's discharge was barred by the Responsible Clinician; WP was then advised by the responsible authority that he was not the nearest relative, and that therefore his order and the barring report were of no effect; on this basis the Tribunal rejected WP's subsequent application. DP appealed. (1) The judge treated the barring report as having been withdrawn (rather than never having been valid): because there was no report, the Tribunal had no jurisdiction, so it had been correct to reject the application. (2) If the barring report had not been withdrawn, the question would have been whether a nearest-relative application made by a non-nearest-relative can be rejected: this was left undecided (despite the clear wording of s66).
  • Inadequate consultation. GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58The claimant applied for a writ of habeas corpus, challenging the AMHP's decision not to consult the nearest relative (under s11) before making a s3 application. The AMHP's evidence was that, having tried to telephone the NR on five or six occasions, he dispensed with consultation because nursing staff were anxious about the patient's presentation and needed him on s3 to move him to a psychiatric intensive care unit. (1) The question which arises on an application of this sort is whether the AMHP's decision was plainly wrong, or whether it was within the range of appropriate decisions available. (2) In the circumstances his decision was unlawful, in particular because: (a) the notes showed that the claimant had essentially been stable (and, in the event, had not been transferred to the PICU for over two weeks after the s3 began); and (b) the s3 assessment finished about 4.30pm and the s2 was due to expire at midnight, so to drive about 30 minutes to the NR's house would not have taken a disproportionate amount of time. (3) The judge added that: (a) the position would have been different if admission to the PICU would only be possible if the patient were on s3, and if there had been a spiralling and acute deterioration of condition coupled with evidence of significant risk to nursing staff, and (b) s11 provides constitutional protection for those that are faced with detention under the Mental Health Act and there is a heavy duty on those who carry out these tasks to ensure that those statutory provisions are complied with.

Transfers

  • Transfer to prison from DSPD. R (W) v Dr Larkin [2012] EWHC 556 (Admin), [2012] MHLO 23A warrant for the claimant's transfer to prison was issued on the RC's advice in the context of Broadmoor's DSPD unit being about to close on 29/3/12. (1) It is not unlawful for an RC to tick both the 'no longer requires treatment in hospital for mental disorder' and the 'no effective treatment for his disorder can be given in the hospital to which he has been removed' boxes on the s50 proforma. (2) There was no evidence that the views expressed on the form were not those of the RC or that he had subordinated his clinical judgment to expediency or national strategies. (3) No relief would have been granted even had there been unlawfulness: the claimant had to leave Broadmoor, no MSU would then take him, so he had to return to prison in any event.
  • Transfer to prison. R (RW) v SSJ [2012] EWHC 2082 (Admin), [2012] MHLO 87The responsible clinician and tribunal were of the view in March 2011 that the patient required continued treatment in detention in hospital, and the tribunal recommended transfer from Broadmoor to a medium secure unit; in June the RC sought permission for trial leave to a MSU, with return to prison being the planned consequence if it were unsuccessful; trial leave in September was unsuccessful and, that month, the Secretary of State remitted the patient to prison on the RC's advice. (1) There had been new information since the tribunal which put a different complexion on the case, namely the unsuccessful trial leave, so the Secretary of State was entitled to take at face value the RC's new opinion that the patient did not require treatment in hospital for mental disorder. (2) It was not necessary for the Secretary of State to consider that lack of treatment in prison might breach Article 3 or require almost immediate re-transfer to hospital; the correct approach was to consider the remission request when made, and consider transfer to hospital later if necessary. (3) Permission to amend the grounds to challenge the alleged ongoing failure to transfer under s47 was refused, but the judge directed that if a fresh application were made within six weeks that the permission application be referred to him.
  • Lawfulness of hospital transfer decision. R (L) v West London MH NHS Trust [2012] EWHC 3200 (Admin), [2012] MHLO 114The claimant began proceedings to challenge the decision to transfer him from a medium secure unit to Broadmoor high secure hospital. (1) The claimant no longer wished to challenge the transfer decision, but the claims were of general importance and merited review, and were not merely academic, so the judge proceeded to hear the case and set out his reasons at extraordinary length. (2) The potential adverse consequences of a transfer to high security are: (a) the potential for delaying the ultimate date of discharge from detention; and (b) the potential for more restrictive detention conditions. (3) The nature of the decision making process as to whether a patient should be transferred from medium to high security is such as to engage a common law duty of fairness. (4) Subject to the need to protect persons from the risk of harm or some other substantial reason, that duty of fairness requires: (a) the patient and his advisers to be informed of any intention to refer him to high security; (b) the gist of the reasons for referral and any relevant reports to be provided; (c) the gist to be sufficiently detailed to enable meaningful and focussed representations, and reasons to be given if reports are withheld; (d) requests for additional information to be considered; (e) all such information to be communicated in time for the patient to make representations before the earliest possible of (i) the admissions panel meeting, (ii) the high security hospital accepting, (iii) the medium secure hospital deciding to transfer, or (iv) the decision being implemented; (f) all such information to be communicated immediately upon transfer at the latest; (g) reasons for the various decisions to be communicated, and to be sufficiently detailed to enable the patient to decide whether a worthwhile challenge can be made (see para 557-8). (5) In this case, in various ways, the requirements of the common law duty of fairness were not complied with and a declaration to that effect was made. (6) In relation to the Article 6 claim: (a) the transfer decision is not a 'determination' of his 'civil rights', so Article 6 does not apply; (b) but, if it did apply, and if there were a good arguable Article 8 claim, then the judicial review court would be required to exercise a fact-finding function; (c) it was inappropriate in this case for the judge to decide whether (if Article 6 applies and judicial review is inadequate) an independent panel (at least in a case turning on a disputed issue of fact) should decide on transfer; (d) similarly, it was inappropriate to decide whether (if Article 6 applies, judicial review is inadequate, and no hospital is empowered to contract out its function to a panel) the lack of provision for an independent panel makes the MHA incompatible with Article 6.

First-tier Tribunal decisions

  • Public hearing and publicity. Re Ian Brady [2012] MHLO 19 (FTT)(1) Ian Brady's Mental Health Tribunal hearing will be held on 9/7/12 with a time estimate of 8 days; (2) the hearing at Ashworth will be broadcast at the Civil Justice Centre Manchester where the public and media can observe; (3) in relation to the hearing itself, the public will not be allowed to attend, and the position of the media will be the subject of further directions.
  • Wesley Johnson, 'Ian Brady to face mental health tribunal in public' (Independent, 10/3/12).
  • Media presence. Re Ian Brady [2012] MHLO 75 (FTT)The media's request for one or more representatives to be present in the tribunal room at Ashworth was refused.
  • Adjournment. Re Ian Brady [2012] MHLO 76 (FTT)The tribunal hearing was adjourned from 9/7/12, to a date to be fixed, because of the patient's (physical) medical condition.
  • Sam Jones and Helen Carter, 'Moors murderer Ian Brady's mental health advocate arrested' (Guardian, 17/8/12).
  • Gordon Rayner, 'Ian Brady "right to die" tribunal postponed after seizure' (Telegraph, 6/7/12).
  • Hearing date in 2013. Re Ian Brady [2012] MHLO 145 (FTT)The tribunal's decision is as follows: "The hearing in public of the application by Mr Ian Brady has been re-listed for Monday 17/6/13. The arrangements for the hearing will be the same as those made for the hearing which had to be adjourned last July namely that the Tribunal will hear the case at Ashworth Hospital and it will be relayed to the Civil Justice Centre Manchester for members of the public and press to watch the proceedings. The precise details of those arrangements will be published as soon as possible."

Leave to appeal

See also: #Northern Ireland

  • Section 139 case. DD v Durham County Council [2012] EWHC 1053 (QB), [2012] MHLO 51The claimant was gate sectioned at Durham prison and detained under s2, then s3, in a Middlesborough hospital. He had complaints of false imprisonment and breaches of Article 3 and 8 relating to matters such as his being kept in seclusion, the lighting in his room, the number of people supervising his activities and a general lack of privacy. (1) He needed leave under s139 to bring civil proceedings against Durham County Council and Middlesborough City Council. This was refused: there was no realistic prospect of establishing illegality against the AMHPs who made the recommendations for s2 and s3 as AMHPs are (a) not required to choose or investigate the quality of the place of detention, (b) not required to research medical views earlier than those in the statutory recommendations, (c) not responsible for the medical or other regimes to which a detained person is subjected. (2) The AMHP who applied for s3 detention was employed by Middlesborough, so Durham claimed that Middlesborough would be vicariously liable. This was incorrect: Durham would have been liable for any wrongdoing, because vicarious liability arises not as a result of employment law but through the statutory relationship in s13.

After-care and community care

Judicial review

  • Section 117 responsibility. R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232, [2012] MHLO 117The chronology in this s117 responsibility dispute was as follows: (a) SF lived at a college hall of residence in Sunderland, (b) she had voluntary admissions to various hospitals, (c) she was voluntarily admitted to a South Tyneside hospital, (d) the college terminated her placement and her licence to remain at the hall of residence, (e) she was detained under s2 then s3 at the South Tyneside hospital. (1) It was common ground that (a) the relevant s117 authority is the relevant LSSA for the area in which a patient is resident when he is detained (Hall), (b) during a period of detention the patient is not 'resident' for s117 purposes in the place of detention (JM); and (c) SF remained resident in Sunderland during the hospital admissions, at least until the Sunderland placement was terminated: therefore the question was where she was resident after that. (2) The High Court judge had decided she remained resident in Sunderland: (a) the South Tyneside placement was 'not compulsory, but it was closely analogous to a compulsory admission' so was to be disregarded, as if it were a place of detention; (b) she was not in hospital 'as part of the regular order of her life for the time being' (applying the test in Shah); (c) the loss of her Sunderland accommodation was not voluntary (as in JM) so did not affect her area of residence. (3) The Court of Appeal overturned that decision: (a) a voluntary period in the same hospital as subsequent detention is not to be treated the same as the period of detention; (b) the judge had wrongly followed the approach in Shah (which related to ordinary residence in a very different statutory context); the approach in Mohamed was more helpful (this included that 'so long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence'); (c) decisively, voluntary and third-party termination of accommodation have the same effect: when the Sunderland accommodation ceased to be available SF was either resident in South Tyneside or not resident anywhere (and the case of 'no residence' is a last resort for extreme and clear circumstances). (4) The court raised two scenarios which it did not need to rule upon: (a) the last place a patient was eating and sleeping might not be his place if residence in some cases: for example if he were in prison, or temporarily away from an established home as a matter of choice (though a hospital stay of more than five years might not be considered temporary); (b) if a patient has a family home which is available upon discharge that might be his residence even if, because of action taken by the family, its location changes during the period of detention.
  • After-care. R (BA) v LB Hillingdon [2012] EWHC 3050 (Admin), [2012] MHLO 148 — "This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 against both defendants and/or section 21 of the National Assistance Act 1948 against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990." [Summary required.]
  • Safeguarding vulnerable adults. Community care case. Davis v West Sussex County Council [2012] EWHC 2152 (QB), [2012] MHLO 83At a safeguarding vulnerable adults case conference the local authority determined that certain allegations of abuse at a care home were substantiated or inconclusive, made recommendations, and decided to refer three members of staff to their professional bodies. The claimants sought judicial review of the decisions (and of a subsequent Default Notice, although this was not pursued). (1) The local authority's procedure was unfair, in breach of the rules of natural justice, its own guidance (based on government guidance), and legitimate expectations - a precis cannot do justice to how disgraceful the procedure was. (2) Two defences, arguing that no public law rights arose, failed: (a) there was no respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner; (b) there was a sufficient public flavour to make the process of investigation and decision a public function distinct from the contractual relationship. (3) The defendant's arguments that no remedy should follow failed: in particular, because the decisions were unfair, inconsistent with or unsupported by the findings of external bodies, and had a serious continuing impact on the claimants and their residents and staff, and because the defendant showed an inability to recognise, even in hindsight, some basic requirements of fairness.
  • RAS. R (KM) v Cambridgeshire CC [2012] UKSC 23, [2012] MHLO 57 — "In the proceedings, brought by way of judicial review, the appellant challenges a determination made by Cambridgeshire County Council and communicated, at the latest, by a letter dated 3 June 2010 to pay him (in round numbers and as an annual sum) £85k in discharge of its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He contends that the determination was unlawful either because it was not adequately supported by reasons or because it was irrational. He asks that the determination be quashed and either that Cambridgeshire should conduct a re-determination of it or that the court should itself substitute for it a determination that the annual sum payable to him be £120k." [Summary required.]
  • Needs assessment. R (NM) v LB Islington [2012] EWHC 414 (Admin), [2012] MHLO 11A prisoner whose release was about to be considered by the Parole Board sought judicial review of the local authority's decision not to conduct a s47 NHSCCA 1990 needs assessment with a view to provision of accommodation and support services if he were released from prison. (1) The connection between the Parole Board's consideration of NM's particular case and his release was too 'conditional and speculative' to fall within s47, or within the pragmatic 'about to be in need' or 'may reasonably be considered to be liable' tests from the B case. (2) In other cases of discharge from hospital or prison it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority. (3) Consideration of whether the Convention on the Rights of Persons with Disabilities can be relied upon.

Local Government Ombudsman

  • Choice. LGO decision: Kent County Council 11 001 504 [2012] MHLO 101 — "In her report concerning the elderly woman's residential care payment, the Ombudsman says: 'The Council’s internal guidance said that staff could only use the Council's own homes, or places it had 'pre-purchased', or community hospitals. The requirement to offer service users a genuine choice of placement when they are assessed as needing residential care is enshrined in law. The guidance did not adhere to these principles.'"
  • Turning 18. LGO decision: Kent County Council 10 012 742 [2012] MHLO 102 — "In her report concerning services for a young woman with learning disabilities, the Ombudsman says: 'The Council’s failure to complete an assessment before the young woman was 18 caused her the injustice of losing services she was assessed as needing. The support plan that was eventually produced did not include services to meet these needs.' In addition, the Council’s poor communication led to uncertainty, confusion and frustration for the young woman and her family, and she was denied a direct payment and the choice to arrange her own respite care."
  • Section 117. Avon and Wiltshire MH Partnership NHS Trust and Wiltshire Council 09 005 439 [2012] MHLO 147 (LGO) — "Citing section 117 of the Mental Health Act, which makes provision for patients who have been compulsorily detained under the Act to receive free aftercare, Miss M complained it was wrong for Mrs M to have funded her own care during the five years she spent as a resident of the care home. The Ombudsmen did not uphold any of Miss M’s complaints. Although they found there was no doubt Mrs M had had a severe and enduring mental illness over many years, they could not conclude that her period of residence in a care home, in the last years of her life, was linked to aftercare arising from compulsory detention in hospital some 15 years earlier. Because Mrs M’s general deterioration could not be definitely attributed to her mental health problems, the Ombudsmen could not therefore conclude that the care home’s fees should have been met from public funds. They also found that, despite some procedural failings, Mrs M did not fail to receive the medical or social care services that she needed from the trust or the council." [Summary required.]
  • DOLS. LGO decision: Dorothy 10 013 715 [2010] MHLO 198 — "A case where a DoL application was not made promptly and the care home's/council's approach to restrictions placed on the complainant and her mother was flawed." [Summary required.]

Court of Protection

Welfare

See also: #Articles in relation to unreported judgments

  • Suitability of expert. Re BS; SC v BS [2012] MHLO 78 (COP)The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed.
  • Contact with friend. Re MW; LB Hammersmith and Fulham v MW [2012] MHLO 82 (COP)(1) MW lacked capacity to make decisions in relation to contact with his childhood friend JC. (2) It was not in MW's best interests for JC to visit MW's home, so an order was granted restraining JC from doing so; this was endorsed with a penal notice because of previous breaches of an injunction. (3) The local authority and Official Solicitor's requested that MW, who lacked litigation capacity, should not attend the hearing because this would be stressful and not conducive to the maintenance of his good mental health: the court acceded to this application. (4) Sensitive evidence was withheld from JC, at the request of the local authority and Official Solicitor, but the court came to its final decision based on the open evidence.
  • Property sale to fund care. Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107Following an accident, Ann Clarke suffered brain injuries and was awarded damages of £775,000. This money was used to pay for care and buy a home in Blackpool which was worth £200-250,000. The deputy proposed to sell the house to pay for care when the remainder of the money ran out, but Michael Clarke (son and carer) applied to court to prevent this. (1) Ann Clarke had the mental capacity to make a will (in particular, one leaving the house to the applicant and nothing to his siblings). (2) Whether or not Ann Clarke had mental capacity to manage her state pension and benefits it was lawful and in her best interests for these to be paid to her carer(s) to be applied for her benefit. (3) Ann Clarke did not have the mental capacity to decide whether or not her Blackpool property should be sold.
  • Property sale to fund care. Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108Michael Clarke objected to the deputy selling of his elderly mother's (Ann Clarke's) house to pay for future care as he considered it to be his. (1) No party asked for an oral hearing and the judge was satisfied that there was nothing to be gained by that. (2) Thre was a balance to be struck between the consequences of (a) retaining the property and leaving Ann Clarke on a low income, or (b) selling the property and maintaining a higher standard of living for Ann Clarke until the funds are exhausted, with her having no familiar home and, if she lived long enough, no money either. (3) Mrs Clarke's Blackpool property shall not be sold or charged during her lifetime without an order of this Court. (4) The deputyship was therefore discharged. (5) Publication of the judgments was authorised as, given Michael Clarke's comprehensive and long-standing breaches of his mother's entitlement to privacy, the court's reasons should be made known.
  • Various capacity issues. A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, if unaccompanied by contemporary medical evidence asserting capacity, might be seriously open to challenge. (3) The same observations applied to X's capacity to revoke or create lasting or enduring powers of attorney. (4) X lacked capacity to manage his own affairs: although a snapshot of X's condition at certain times would reveal an ability to manage his affairs, the general concept of managing affairs is an ongoing act and relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. (5) X also lacked capacity to litigate: this required separate consideration because the time frame involved is different to managing affairs on the one hand, or making a will or granting power of attorney on the other. The basis for this assessment was stated in Masterman-Lister: 'whether the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings'. (6) No finding was sought in relation to capacity to decide on contact, and the judge thought 'the idea that this distinguished elderly gentleman’s life should be circumscribed by contact provisions as though he was a child in a separated family' to be deeply unattractive. (7) There should be (a) a greater emphasis on judicial continuity in the COP, and (b) a pre-hearing review in any case estimated to last three days or more.
  • Article 8 safeguards. J Council v GU [2012] EWHC 3531 (COP), [2012] MHLO 137 — "Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts." [Detailed summary available.]
  • Alison Easton, 'J Council v GU & Ors' (Family Law Week, 13/12/12).
  • Return to live with mother. LB Haringey v FG (No. 2) [2011] EWHC 3933 (COP) — "There are many issues that have arisen in this case, but now the critical welfare issue is whether or not H should be returned home to live with her mother. This is an outcome sought by the mother, but opposed both by the Local Authority and by the Official Solicitor as litigation friend to H." [Summary required.]
  • Various capacity issues. LB Haringey v FG (No. 1) [2011] EWHC 3932 (COP) — "In this case there are a number of matters: does H have capacity to conduct litigation; does she have capacity to decide where she should live, or capacity to decide where she should be educated, or capacity to decide on the extent of the contact and relationship she should have with her natural family; capacity to deal with her financial affairs, or to enter into what has been described as a tenancy agreement, and capacity in a sense to judge her own best interests in those respects?" [Summary required.]

Deprivation of liberty

See also: #Paying for treatment; #European Court decisions; #Local Government Ombudsman

  • Placement in care home. Re VW; NK v VW (2011) COP 27/10/10 11744555NK sought (a) to have his mother VW removed from a care home (where she was detained under a DOLS authorisation) and placed in one more local to him, and consequently (b) to have more frequent contact than permitted by the current DOLS authorisation and (c) to be appointed welfare and financial deputy. He was refused permission to make his applications, because of medical evidence that to move VW would be detrimental to her welfare.
  • Guardianship. Re C; C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP)C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship.
  • Jonathan Butler, 'C (by his litigation friend, the Official Solicitor) v Blackburn with Darwen Borough Council & A Care Home & Blackburn with Darwen Teaching Care Trust' (commentary) (11/1/12).
  • Holiday cruise. (Transcript added and summary updated.) Cardiff Council v Peggy Ross (2011) COP 28/10/11 12063905Cardiff Council used the Deprivation of Liberty Safeguards to prevent an elderly couple going on holiday cruise; the court decided that it was in the respondent's best interests to go on the cruise, and gave permission for ITV Wales to report that decision and broadcast interviews; later the court decided that the respondent herself had capacity to decide whether or not to go.
  • Return to Nigeria. A London Borough v VT [2011] EWHC 3806 (COP) — "The primary matters on which decisions need to be made by the court are: (1) Should ST live at L (or possibly some other care home type accommodation in London) or in his property at X, Nigeria; (2) If ST remains at L, is he being deprived of his liberty and, if he is being so deprived, does that remain appropriate; (3) Should ST's property and affairs deputy be AT or Mr G, the current interim independent professional deputy?" [Summary required.]
  • DOLS appeal. EM v SC [2012] EWHC 1518 (COP), [2012] MHLO 56 — "This is an application made by the Official Solicitor on behalf of the Applicant EM, for the discharge of the latest of a series of standard authorisations made on 16 January 2012 pursuant to the Mental Capacity Act 2005. The effect of the standard authorisation is to deprive EM of his liberty and oblige him to live at a nursing home, RH, rather than at the home which he had shared with his wife and son for many years." [Summary required.]
  • DOLS appeal. Re HA [2012] EWHC 1068 (COP), [2012] MHLO 67 — "This case comes before me for directions today. The person whose best interests have to be considered by the court is a HA. The Official Solicitor now acts for her as her litigation friend and in that capacity has continued an application under s.21A of the Mental Capacity Act 2005 (the Act) that was instigated before his appointment." [Summary required.]
  • Capacity and DOL. Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under MCA 2005 s21A. (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty.

Sex

  • Sexual relations. Re H; A Local Authority v H [2012] EWHC 49 (COP), [2012] MHLO 3 — "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.]
  • Martin Beckford, 'Autistic woman banned from having sex in latest Court of Protection case' (Daily Telegraph, 3/2/12).
  • Arranged marriage. XCC v AA [2012] EWHC 2183 (COP), [2012] MHLO 80An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: 'in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.'
  • Martin Beckford, 'Judge attacks forced marriage that put disabled woman "at risk"' (Telegraph, 16/8/12).
  • Resumption of married life. CYC v PC and NC [2012] MHLO 103 (COP)(1) PC lacked capacity to litigate and lacked capacity to decide whether to resume married life with NC (upon the expiry of a 13-year sentence for his sexual offences against previous wives). (2) The resumption of married life with NC was lawful as being in her best interests.

Medical

  • PVS case. Re D; An NHS Trust v D [2012] EWHC 885 (COP), [2012] MHLO 47(1) P was in a permanent vegetative state so continued medical treatment is of no benefit to him because it is futile. (2) His letter refusing life-sustaining treatment did not comply with the MCA requirements for an advance decision so could not have been relied upon; however, had the evidence on PVS not been clear cut, the judge would have given P's previous wishes and feelings great weight.
  • Anorexia treatment. Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP), [2012] MHLO 55 — "E is a 32-year-old woman who suffers from extremely severe anorexia nervosa, and other chronic health conditions. On 18 May 2012, an urgent application was made to the Court of Protection by her local authority, which was concerned that her position should be investigated and protected. E's death was imminent. She was refusing to eat, and was taking only a small amount of water. She was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort. ... I found that E lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes with all that this entails." [Summary required.]
  • Daniel Sokol, '"As hard as it gets": the case of anorexic E and the right to die' (Guardian, 19/6/12).
  • Advance decision. X Primary Care Trust v XB [2012] EWHC 1390 (Fam), [2012] MHLO 54 — "This matter concerns an application by the XPCT for declarations under s.26(4) of the Mental Capacity Act 2005 as to the validity of an advance decision made by XB on 2nd November 2011 that he wished, amongst other things, to have his ventilation removed in certain defined circumstances." [Summary required.]
  • Steve Doughty, 'Father of two with motor neurone disease wins right to die by blinking his eye after judge's landmark ruling' (Daily Mail, 1/5/12).
  • Removal from ventilator. NHS Trust v Baby X [2012] EWHC 2188 (Fam), [2012] MHLO 99 — "The question in this case is whether a baby known as X should be removed from a ventilator and made the subject only of palliative care. As the evidence is that he will almost certainly die within minutes, or at best hours, of such removal, it will be readily apparent that this case is both tragic and difficult. Given the nature of the question, I have thought it right to deliver this judgment in open court but nothing of course may be reported which might reasonably lead to the identification of X or his parents. An issue has arisen over the reporting restrictions order in this case; I intend to deal with this matter quite separately to this judgment." [Detailed summary available.]
  • Martin Beckford, 'Judge says religious couple's brain-damaged baby can be allowed to die' (Telegraph, 31/7/12).
  • Withholding future life-sustaining treatment. An NHS Trust v DJ [2012] EWHC 3524 (COP), [2012] MHLO 138 — "As a result of his illness, DJ does not have the capacity to make decisions about his medical treatment. The trust has brought the proceedings because there is longstanding disagreement between the family and the doctors about what treatment should be given. This requires the court to make an assessment of DJ's best interests within the framework of the Mental Capacity Act 2005. If that assessment supports the view taken by the doctors, a declaration may be granted endorsing the lawfulness of their approach." [Summary required.]
  • Daily Telegraph, 'Family fight to keep father alive in court battle' (7/12/12).
  • Withholding future life-sustaining treatment. Re KH (A child); An NHS Trust v Mr and Mrs H [2012] EWHC B18 (Fam), [2012] MHLO 142 — "This is an application by an NHS Trust for declarations in relation to the best interests of a boy known in the proceedings as KH. The Trust seeks approval of a medical treatment plan which comes before the court because there are some matters that are not agreed and because the treatment plan involves the withholding of life-sustaining treatment in the event of a serious deterioration in KH's condition." [Summary required.]
  • Cancer surgery. NHS Trust v K [2012] EWHC 2922 (COP), [2012] MHLO 150The Trust proposed to carry out surgery on K which could potentially cure her of cancer but which itself (given her co-morbidities including her 20-stone weight) raised a considerable risk of death. (1) K lacked capacity due to her chronic mental illness, and in particular her delusional belief that she did not have cancer, to make informed decisions about major medical treatment. (2) Orders were made that certain specified treatment would be lawful, subject to powers of veto given to specified people.
  • Vegetative state. A Local Health Board v J [2012] MHLO 158 (COP)(1) The court made the following declaration and orders as sought by the Health Board: (a) J lacked capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of ANH and other life-sustaining treatment; (b) J was in a permanent vegetative state and had no prospect of recovery; (c) there were no further investigations/treatment which should be undertaken; (d) it was in J's best interests for ANH to be withheld; (e) ANH might be withdrawn lawfully by the applicant, or responsible attending medical practitioners or nursing staff; and (f) it was in her best interests to receive such treatment and nursing care as was appropriate to ensure that she retained the greatest dignity until her life came to an end. (2) In relation to the second declaration, the court considered evidence that J had said 'die' several times, and concluded that this had been (misinterpreted) 'vocalisation' (a moan or groan often repeated, and often seen in PVS) rather than 'verbalisation' (which would be consistent with a minimally-conscious state). [Summary based on All ER (D) report of ex tempore judgment.]
  • John Aston, 'Brain damaged woman allowed to "die with dignity", judge rules' (Independent, 13/11/12). This article sets out some further details of the evidence which do not appear in the All ER (D) report of the ex tempore judgment.
  • Withholding future treatment. Re L; The NHS Trust v L [2012] EWHC 2741 (COP), [2012] MHLO 159The Trust sought a declaration that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared (to paraphrase) that: (1) L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, specifically, (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes. (2) L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores. (3) In L's best interests, the clinicians were permitted: (a) to provide nutrition and hydration and medical treatment where L complies; (b) to administer dextrose solution to L despite her objections where immediately necessary to save life; (c) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L's co-operation having been taken); (d) to provide palliative care in the terminal stage of L's illness.
  • BBC, 'Anorexic woman not to be force-fed, judge rules' (24/8/12).

Financial

  • Inheritance tax. Re JDS; Kevin Smyth v JDS (2012) COP 19334473 19/1/12, [2012] MHLO 4 — "This is an application for a gift to be made to the parents of a young man who has been awarded damages for clinical negligence. The purpose of the gift is to reduce the amount of Inheritance Tax that they may have to pay on his death." [Summary to follow.]

Costs

  • OS's application for costs. B v B [2010] EWHC 543 (Fam) — "This is an application by the Official Solicitor for an order that Mr B do pay the Official Solicitor’s costs, on an indemnity basis, of acting on behalf of Mr B as his guardian ad litem, until the Official Solicitor was discharged by order of 19th August 2009." [Summary required.]
  • Costs order against local authority. Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 3522 (COP)(1) Each application for costs must be considered on its own merit: the previous cases were illustrative only and provided no guidance on the Rules. (2) The judge departed from the general rule in welfare cases (that each party bears his own costs) as this was not a typical case: Hillingdon's actions were significantly unreasonable in relation to the illegality of its actions, its disorganised decision-making, the lack of a proper best interests assessment, its uncooperative attitude to Stephen's father, its delay in referring the matter to the court (thereby increasing costs), and its attempt to defend its actions to the end, both in court and in the media. (3) Hillingdon were ordered to pay the OS's costs from the date of issue to the conclusion of the main hearing in May 2011 but not (a) costs in relation to the press issue, which raised issues of general public importance, or (b) costs following the main hearing, during which Hillingdon adopted a cooperative stance. (4) The application for indemnity costs was respectable, but an award on the standard basis was sufficient.
  • What Do They Know website, 'Cost to HBC of legal proceedings in Neary v Hillingdon' (FOI request made 27/7/12). The FOI reply, dated 24/8/12, states that the costs to LB Hillingdon were: (1) solicitor costs 464.35 in-house hours (£32,318.31 at notional charge-out rate of approx £69.60ph); (2) counsel £32182; (3) expert reports £5231.65; (4) compensation £35,000; (5) court costs ordered and future costs not known at time of reply.
  • Costs order. Re AH (Costs); AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 3524 (COP)The relevant respondents were ordered to pay the costs of the nine applicants in this welfare case: (1) half the costs between issue of proceedings and settlement or final hearing, and (2) full costs of the costs application. The judge concluded: 'The conclusion I have reached in this case represents a partial departure from the general rule that there should be no order for costs. It is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognise the weakness of their own cases and the strength of the cases against them. In such circumstances they cannot invoke Rule 157 at the expense of others.'
  • Costs. Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109(1) Michael Clarke's application that the court postpone a decision on costs (and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian) was refused. (2) The costs of the other family members and the deputy would be charged from Ann Clarke's estate. (3) In the light of the one-sided publicity that Michael Clarke gives to the affairs of the family, the three judgments were placed into the public domain.
  • Costs order against local authority. Re CP; WBC v CP [2012] EWHC 1944 (COP), [2012] MHLO 144LPM, the brother of CP (called C in the 'blue room' judgment) sought a costs order against the local authority. (1) The court should follow the general rule in welfare cases (that there be no order as to costs: rule 157) where it is appropriate, and it is only local authorities who have broken the law, or who are guilty of misconduct (that falls within rule 159) that have reason to fear a costs order (G v E). (2) The questions to be addressed are (a) is the departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the Applicant as a public body?; and (b) if so, what order should be made? (Neary). (3) The judge concluded that (a) the local authority's actions were tainted with illegality, (b) the local authority's decision making was impoverished and disorganised, (c) the local authority was responsible for the delay in referring CP's circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictions, and (d) the local authority could have arrived at the position concluded by the court many months earlier. (4) The local authority was ordered to pay LPM's costs to be assessed if not agreed.
  • Alison Easton, 'WBC v CP & Ors' (Family Law Week, 30/10/12).

Foreign orders

  • Hague Convention on International Protection of Adults. Re M [2011] EWHC 3590 (COP)Under MCA 2005 s63 and schedule 3, which incorporates the Hague Convention on the International Protection of Adults 2000 into domestic law, the High Court recognised and gave effect to an order of the Southern Irish High Court which required M's transfer to and treatment at an English psychiatric hospital.
  • Brussels II Revised. HSE Ireland v SF (A Minor) [2012] EWHC 1640 (Fam), [2012] MHLO 69 — "This application is made by the Health Service Executive of Ireland ('the HSE'), the statutory authority with responsibility for children taken into public care in the Irish Republic, for an urgent order under Article 20 of the Council Regulation (EC) 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No.1347/2000 (commonly known as 'Brussels II Revised') in respect of a 17-year-old girl whom I shall refer to as SF. At the conclusion of the hearing on 4th May 2012, I made the order sought by the HSE. This judgment sets out the reasons for my decision." [Summary required.]

Inherent jurisdiction

  • Inherent jurisdiction survives MCA. DL v A Local Authority [2012] EWCA Civ 253, [2012] MHLO 32The local authority brought proceedings under the High Court’s inherent jurisdiction to protect his parents from DL; these proceedings could not have been brought under the MCA 2005 as the parents did not lack capacity under that Act; DL argued that the MCA, by establishing a comprehensive scheme for adults, had displaced the inherent jurisdiction. (1) The inherent jurisdiction of the High Court in relation to vulnerable adults survives the implementation of the MCA 2005, which only relates to adults who lack capacity as defined in the Act. (2) The absence of any express provision in relation to the inherent jurisdiction implies that it continues to be available, as 'the great safety net', where the Act does not apply; in any event, there is a strong policy justification, the protection of vulnerable adults, for this conclusion. (3) The jurisdiction is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (a) under constraint; or (b) subject to coercion or undue influence; or (c) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.
  • Martha Spurrier, 'The great safety net' (Solicitors Journal, 2/4/12).
  • Moira Sofaer, 'Can the Court Protect Vulnerable Adults who have Capacity?' (Family Law Week, 27/9/12.
  • Inherent jurisdiction invoked. Re G [2012] EWCA Civ 431, [2012] MHLO 52 — The local authority issued proceedings under the court's inherent jurisdiction in relation to a 30-year-old with Downs Syndrome history who was in the exclusive care of her mother. This decision relates to an unsuccessful appeal against case management orders. [Summary required.]

Statutory will

  • Statutory will. Re JC; D v JC [2012] MHLO 35 (COP)JC's daughter D, who had been conceived following a post-marital rape of JC’s ex-wife and adopted by other parents very shortly after her birth, and who had never met or had any contact with JC, sought a statutory will giving her an equal share JC's £3.5m estate alongside his other children (A, B and C). (1) The criterion now for making statutory wills on behalf of adults who lack testamentary capacity is what is in their best interests rather than substituted judgment; however, best interests contains a strong element of substituted judgment. (2) The value of the 'balance sheet' approach is of doubtful effectiveness in statutory will applications, and in this case it was a struggle to identify benefits or disbenefits, but usually there is at least one factor of 'magnetic importance'. (3) In this case, the idea of being remembered with affection for having done the 'right thing' was of no assistance: 'JC has an appalling track record. He has spent his entire lifetime doing precisely "the wrong thing" in his relationships with others, and his malevolence is such that he would rejoice at being remembered by them with disaffection.' (4) A substituted judgment approach would lead to JC dying intestate, but it was in his best interests to make a will in order to appoint independent professional executors who are familiar with the background and can provide continuity in the administration of his estate before and after his death. (5) JC had poor relationships with his other children, but none at all with D: this factor was of 'magnetic importance' so the statutory will would be in favour of A, B and C only. (6) A, B and C would be allowed to decide the devolution of their shares of the estate if any of them predeceased JC, as it was unlikely that they would want their shares to go to each other. (7) The normal rule on costs (that in property and affairs cases the costs be paid by P) was not departed from.

Deputyship

  • Removal of deputy. Re EB; IB v RC [2011] EWHC 3805 (COP) — "This is an application by the applicant, IB, for the removal of the respondent as his mother's deputy for property and affairs. There is also a counter-application by the respondent, RC, for orders that the applicant sign letters of authority in relation to two bank accounts that are held in the joint names of EB and the applicant." [Summary required.]
  • Order of preference. Re AS; SH v LC [2012] MHLO 113 (COP)AS's niece objected to a panel solicitor's application to be appointed deputy with specific authority to sell a property. (1) Generally speaking the order of preference for the appointment of a deputy is: (a) P's spouse or partner; (b) any other relative who takes a personal interest in P’s affairs; (c) a close friend; (c) a professional adviser, such as the family's solicitor or accountant; (d) a local authority's Social Services Department; and finally (e) a panel deputy, as deputy of last resort. (2) The court prefers to appoint a family member or close friend because of: (a) familiarity with P’s affairs, wishes and communication methods; (b) likely greater ability to consult with P and encourage participation; (c) reasons of economy; (d) the concept of deputyship of last resort. (3) The appointment of a family member will generally be a less restrictive alternative, though the question remains as to whether this will achieve the desired objective as effectively as the appointment of a panel deputy. (4) The court would not appoint a family member in cases involving, for example: (a) financial or other abuse; (b) conflict of interests; (c) an unsatisfactory track record in managing financial affairs; and (d) ongoing friction between various family members. (5) On the facts, the niece was appointed as there was no need for a deputy of last resort. (6) The general rule as to costs (that AS pay) was followed.

Other

  • Joinder. Re SK [2012] EWHC 1990 (COP), [2012] MHLO 98 — "This is an application by the parties to certain Queen's Bench personal injury proceedings who seek in effect to be joined in these Court of Protection proceedings. The subject of both sets of proceedings is SK, a mentally incapacitated adult aged 55. The issue which arises one way or another in both sets of proceedings is as to his care, accommodation and rehabilitation. The two applicants for joinder to these proceedings are (a) CK, aged 52, brother of SK and (b) GA Group PLC, a bus company whose bus struck SK in November 2008, causing him severe lasting brain and physical injuries. That company is the defendant in the Queen's Bench proceedings." [Summary required.]
  1. REDIRECT Stoke City Council v Maddocks [2012] EWHC B31 (COP), [2012] MHLO 111

Capacity generally

See also: #Criminal law

  • Police detention. ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. (1) The police actions constituted assault, battery and false imprisonment. There was no need for the police to be aware of the Mental Capacity Act 2005 for the defence in ss5-6 to be made out, but on the facts it was not. When the MCA applies, the common law defence of necessity has no application, but had it applied it would have failed. (2) There was a breach of the DDA 1995 duty to make reasonable adjustments to the normal practice, policy or procedure, and the defence of justification failed. (3) The inhuman or degrading treatment breached Article 3. (4) Even treating purpose and intention as relevant, there was a breach of Article 5. (5) The intereference with ZH's private life under Article 8 was not in accordance with the law or proportionate. (6) Quantum: PTSD £10,000; exacerbation of epilepsy £12,500; DDA £5,000; trespass to the person (loss of liberty £500, pain and distress from assault £250); total £28,250; no aggravated or exemplary damages; no additional HRA damages.
  • Owen Bowcott, 'Autistic teenager wins damages from police after being restrained' (Guardian, 14/3/12).
  • Capacity to settle claim. Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33(1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court.
  • Supreme Court permission granted on 23/10/12
  • Application of compromise rule. Dunhill v Burgin [2012] EWHC 3163 (QB), [2012] MHLO 115The 'compromise rule' in the Civil Procedure Rules provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court. (1) The rule applies to a claim settled at the door of the court where at the time of the settlement the claimant was not known to lack capacity. (2) The claimant was a protected party ('a party, or an intended party, who lacks capacity to conduct the proceedings') and the Court of Appeal had decided that she lacked capacity to settle her claim. (3) The compromise in this case was invalid; the judgment based on it must be set aside, and the substantive claim should proceed to a trial on the merits. (4) The judge granted a certificate under s12 Administration of Justice Act 1969 to enable an application to be made to the Supreme Court for permission to bring a 'leapfrog' appeal from this decision. [Detailed summary available.]
  • Capacity to consent under Children Act. Re CA (A Baby); Coventry City Council v C [2012] EWHC 2190 (Fam), [2012] MHLO 110The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge seriously doubted the social worker's assessment that she had such capacity. (3) There was no informed consent because (a) the mother was never told that continued refusal of consent would result in the child staying in hospital with her for another day or two, and (b) she was told that removal was only a temporary arrangement when it was highly unlikely to be anything of the sort. (4) In relation to fairness, the local authority had settled an HRA damages claim, accepting that (a) s20 consent should not have been sought on the day it was, and (b) removal was not a proportionate response to the risks that then existed. (5) The court made the care order and (adoption) placement order which the local authority had sought, as the case for that was overwhelming.
  • Rick Dewsbury, 'Social workers took newborn baby from mother by obtaining her consent while she was dosed up with morphine' (Mail, 16/8/12).

Criminal law

  • Provocation defence. R v Clinton [2012] EWCA Crim 2, [2012] MHLO 2In the new 'loss of control' partial defence to murder, which replaces the provocation defence, when determining whether a loss of self-control had a 'qualifying trigger' (as set out in s55(3) and (4) Coroners and Justice Act 2009) 'the fact that a thing done or said constituted sexual infidelity is to be disregarded' (s55(6)(c)). The Court of Appeal held that where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.
  • Hybrid order granted. R v Stead [2012] EWCA Crim 92, [2012] MHLO 9The appellant, who had been sentenced to ten years' detention in a young offender institution together with an indefinite Sexual Offences Prevention Order, successfully argued for the imposition of a hybrid order under MHA 1983 s45A.
  • Appeal against restriction order. R v Chiles [2012] EWCA Crim 196, [2012] MHLO 10The judge should not have should not have taken into account her concerns about the future of the NHS (she had said, 'I cannot be confident in the current fluctuating state of the NHS that the security that the public needs to be protected from you will be ensured unless there is an another government department which has input into the issue of your release and that is what I will achieve by the section 41 order') but there was ample material to justify the conclusion that a restriction order was necessary for the protection of the public from serious harm.
  • Appeal against restriction order. R v Lucas [2012] EWCA Crim 182, [2012] MHLO 16The renewed application for extension of time (the delay being caused by the appellant pondering negative legal advice before deciding to appeal anyway) in which to apply for leave to appeal against restriction order was refused, as there was ample material to justify the restriction order.
  • Diminished responsibility. R v Dowds [2012] EWCA Crim 281, [2012] MHLO 18The appellant argued that voluntary acute intoxication (voluntary and uncomplicated by any alcoholism or dependence) is capable of giving rise to the partial defence of diminished responsibility on an indictment for murder under the amended Homicide Act 1957 because it is a 'recognised medical condition'. Held: (1) the presence of a 'recognised medical condition' is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility; (2) voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility.
  • Appeal against tariff. R v Levey [2012] EWCA Crim 657, [2012] MHLO 34Tariff in life sentence for murder reduced from 24 years to 22 years, partly because the sentencing judge made insufficient allowance for the borderline personality disorder which played a significant part in the killing.
  • Appeal against IPP. R v Ahmed [2012] EWCA Crim 708, [2012] MHLO 40The appellant was found unfit to plead, spent 35 years subject to s37/41, pleaded guilty to diminished responsibility manslaughter, was given an IPP sentence with a 63-month tariff, and was transferred back to hospital under s47/49. (1) The appropriate minimum term was 39 months. (2) The appeal was adjourned to obtain medical evidence and for future consideration of whether a hospital order ought to have been imposed.
  • Voyeurism. R v B [2012] EWCA Crim 770, [2012] MHLO 42The appellant, an autistic young man who was prosecuted for voyeurism for looking into a swimming pool cubicle, was found by the judge to be unfit to be tried and by the jury to have committed the act charged against him. Voyeurism consists of, for the purpose of obtaining sexual gratification, observing another person doing a private act, knowing that the other person does not consent to being observed for sexual gratification (s67 Sexual Offences Act 2003). (1) Contrary to the judge's direction, the 'act' includes 'for the purpose of obtaining sexual gratification' (only the knowledge was part of the state of mind); hence, the jury's determination was unsafe and the appeal would be allowed. (2) The question of whether the jury should have had expert evidence on whether the appellant had committed the act was (although treated with some doubt) left open for argument in a future case. (3) A Sexual Offences Prevention Order could only be made 'for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant'; (obiter) there was no proper basis for making this order. (4) Because of a gap in the legislation, there was no power to order a retrial, even if the court had wanted to: s16(4) Criminal Appeal Act 1968 requires the court, when allowing such an appeal, to quash the finding and direct that a verdict of acquittal be recorded.
  • Apparent consent to sexual relations. C v R [2012] EWCA Crim 2034, [2012] MHLO 104The appellant appealed against his convictions for sexual offences on the basis that there had been no sexual relationship with the complainant (his step-daughter) before she was 16 years of age, and that thereafter the sexual relationship had been consensual. There was a substantial body of evidence which showed apparent consent to sexual activity after the complainant was 16 years old. But once the jury were satisfied that sexual activity had occurred when the complainant was a child, and that it impacted on and reflected the appellant's dominance and control over the complainant, it was open to them to conclude that the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting.
  • Appeal against life sentence. R v Petrolini [2012] EWCA Crim 2055, [2012] MHLO 105The appellant had unsuccessfully argued diminished responsibility at trial, but subsequently it became apparent that he had indeed been in the prodromal stage of schizophrenia at the time of the offence. The Court of Appeal (1) granted an extension of time of 16 years and 16 months, (2) quashed the conviction for murder and substituted for it a verdict of manslaughter by reason of diminished responsibility, and (3) made a restricted hospital order in place of the 16-year-tariff life sentence. The hospital order was made for admission to Broadmoor, but the intention was that the patient would remain in Carstairs hospital in Scotland.
  • Unfitness and exclusion of evidence. R v B [2012] EWCA Crim 1799, [2012] MHLO 119The trial judge found the appellant unfit to plead. The appellant had admitted the act charged during an interview under caution, and the judge refused to exclude that evidence. On the basis of that evidence, the jury found that the appellant had done the act charged. (1) Given that the appellant's mental state was the same during interview as when found unfit to plead, the Court of Appeal found it impossible to understand how the interview could have been admitted: the finding that he had done the act was therefore set aside. (2) The Court of Appeal would have ordered a retrial but has no power to do; the court noted that it was 'high time that Parliament remedied this most unfortunate error in the law'.
  • Appeal against IPP. R v Tudor [2012] EWCA Crim 1507, [2012] MHLO 127Following receipt of a psychiatric report which did not recommend a hospital order, the trial judge was entitled to impose an IPP sentence without adjourning for a second psychiatrist's report.
  • Neglect under s44 MCA. R v Ligaya Nursing [2012] EWCA Crim 2521, [2012] MHLO 134 — "This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005." [Detailed summary available.]
  • Sentencing and personality disorder. AG's reference (no 60 of 2012) sub nom R v Edwards [2012] EWCA Crim 2746, [2012] MHLO 135 — "This is a case which presented to the judge an intractable but by no means unknown sentencing problem. ... The intractable difficulty presented by this defendant and by, sadly, a number of others is this: he has a variety of personality disorders, but the doctors all report that there is no medical treatment available." [Summary required.]
  • Capacity issues in Youth Court. G v DPP [2012] EWHC 3174 (Admin), [2012] MHLO 140At the Youth Court it had been argued that the case should be stayed since it would be an abuse of the court's process to proceed to an adjudication when the appellant was unfit to plead, to participate in his trial and to instruct his defence. Having heard medical evidence from both sides, the District Judge declined to stay the proceedings, arranged for the appointment of an intermediary and accepted the intermediary's advice as to the way in which the appellant should be assisted during the course of the hearing; he found the charge proved. This was an appeal by way of case stated in relation to the appellant's conviction at the Youth Court. (1) The High Court set out the rules for appeals and commented that the way in which the appeal had been prepared is was lamentable. (2) The District Judge had correctly followed the guidance (from DPP v P) for proceedings in the Youth Court in which capacity is relevant. (3) The defence expert confused the propriety of a prosecution with the ability to understand the nature of proceedings and communicate instructions and the District Judge was entitled to disagree with her.
  • Appeal against hybrid order. R v Jenkin [2012] EWCA Crim 2557, [2012] MHLO 141Having pleaded guilty to GBH with intent (for gouging his girlfriend's eyes out), the appellant was sentenced to life imprisonment with a six-year minimum term, combined with a hospital direction and limitation direction under s45A MHA 1983. He appealed against sentence, arguing for a restricted hospital order or alternatively an IPP sentence. (1) A hospital order means that 'release is dependent on the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition': this would be inadequate as, irrespective of his delusional disorder, the appellant posed a significant risk of serious harm to the public. (2) A life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave (R v Kehoe): both those limbs were met in this case. (3) The s45A hybrid order was appropriate as the criteria were met and the disorder was treatable, but when treatment is no longer necessary the risk to the public required that he be released from hospital to prison and for the Parole Board to make the release decision.

Repatriation/immigration

  • Extradition case. Republic of South Africa v Dewani [2012] EWHC 842 (Admin), [2012] MHLO 37 — "The appellant appeals against the decision of the Chief Magistrate, Senior District Judge Riddle, dismissing all the grounds on which those acting for him sought to oppose his extradition to South Africa to face the charge of murdering his wife and other related charges. Although we were provided with 80 authorities, the issues are specific to the appellant's mental state and the prison conditions in South Africa which would be applicable to him if extradited." [Summary required.]
  • Immigration case. MM (Zimbabwe) v SSHD [2012] EWCA Civ 279, [2012] MHLO 38 — Immigration case. "In my view, the Upper Tribunal was diverted, by reason of the arguments advanced, from an important aspect of the case, namely, whether it was disproportionate to deport the appellant on the grounds of his previous convictions in the light of the evidence of the prognosis and the relationship between his mental illness and his offending. The judge never seems to have reached any clear conclusion based on an assessment of the risk of re-offending despite continued medication and support from his family here. If the correct view is that there is no realistic risk of further offending and the prognosis is excellent then it is difficult to see how it could be proportionate to deport this appellant. He has been in this country for 12 years and he has nothing to go back to save his grandmother and great-aunt, if they are still alive." [Summary required.]
  • Unlawful detention. R (HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin), [2012] MHLO 41(1) The claimant's immigration detention (firstly 1/5/10-5/7/10, then 5/11/10-15/12/10) had been unlawful; (2) the time it took to transfer him to hospital (i.e. 1/5/10-5/7/10) was manifestly unreasonable and unlawful; (3) the policy introduced on 26/8/10 in relation to detention of people with mental illness was unlawful in breach of the defendant's duties under s71 Race Relations Act 1976 and s49A Disability Discrimination Act 1995. (4) The circumstances of the claimant's detention breached Article 3 during both periods.
  • Extradition case. Turner v Government of the USA [2012] EWHC 2426 (Admin), [2012] MHLO 84The appellant was unable to demonstrate that the evidence that was before the High Court was 'decisive' such that if it had been before the District Judge he would have concluded that she had demonstrated that her mental condition was such that it would be oppressive to extradite her to the USA.
  • Immigration case. C v SSHD [2012] EWHC 1543 (Admin), [2012] MHLO 125 — Immigration case with mental health background: "In essence, the claimant's case is that the length of the detention, the unlikely prospect of removal, the deterioration in the mental health of the claimant together with independent evidence of torture, were all factors which would lead to a conclusion that the claimant's detention was unlawful, even taking account of an absconding risk which, when properly examined, was not of the highest." [Summary required.]
  • Deportation of EU citizen. JO (qualified person - hospital order - effect) Slovakia (2012) UKUT 237 (IAC), [2012] MHLO 132The respondent had been charged with attempted murder, found not guilty by reason of insanity, and made subject to a restricted hospital order. The Secretary of State made a deportation order under the Immigration (European Economic Area) Regulations 2006. Under those regulations, (a) a 'qualified person' (jobseeker or worker) is entitled to reside in the UK while he remains a qualified person, (b) after five years of such residence he is entitled to reside in the UK permanently, (c) a worker or self-employed person's periods of inactivity due to illness or accident are treated as if they were periods of activity. (1) The term 'illness' should not be given a narrow or restricted meaning, either in terms of the type of illness (to exclude mental illness) or the period of incapacity (to exclude long-term illnesses). (2) Although a prison sentence does not count towards the qualifying period for permanent residence, time spent subject to a hospital order does: 'The distinction is that a prison sentence follows the choice of an individual to act in a criminal manner, whereas a Hospital Order results from a finding that the individual suffers from a mental disorder and is not therefore criminally responsible for their otherwise culpable behaviour.' [This distinction is fallacious, as it is mental state at sentencing that is relevant and most hospital orders follow a criminal conviction.] (3) The Secretary of State's challenges in relation to the respondent's 'integration' and work history were rejected as (respectively) integration was not relevant because the respondent fell within the regulations, and the FTT were entitled to reach the view it did as to work history.

European Convention on Human Rights

Cases are listed under one heading but may involve more than one Article. See also relevant thematic headings.

Article 2

  • Article 2 and informal patients. Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] MHLO 6(1) The operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA. (2) There was a 'real and immediate' risk to the patient's life of which the Trust knew or ought to have known and which it failed to take reasonable steps to avoid, so the obligation was breached. (3) The patient's parents were 'victims' within the meaning of Article 34 of the Convention. (4) They had not lost their victim status by settling a negligence claim, as (although it had in substance acknowledged its breach) the Trust had not made adequate redress. (5) The one-year limitation period in s7(5) HRA 1998 was extended becuase the extension was short, the Trust suffered no prejudice, the claimants acted reasonably in delaying, and there was a good claim. (6) The Court of Appeal's assessment of damages was upheld, and £5000 was awarded to each parent.
  • Mind, 'Supreme Court ruling welcomed by Mind and leading human rights organisations' (8/2/12).
  • Neil Munro, 'Rabone v Pennine Care NHS Trust – some scattered reflections' (Mental Health and Mental Capacity Law Blog, 7/3/12). This article concludes: 'If risk averse mental health services take Rabone to heart we may be looking at a situation where all patients regardless of legal situation are subject to a very high degree of de facto control over their movements in order to avert even a small likelihood that they may leave the hospital and kill themselves.'
  • Press articles about Supreme Court decision in Rabone case: Matthew Hill, 'Rabone and the rights to life of voluntary mental health patients' (UK Human Rights Blog, 12/2/12); Kirsten Sjøvoll, 'Case Comment: Rabone & Anor v Pennine Care NHS Trust [2012] UKSC 2' (UKSC Blog, 15/2/12); Nigel Poole, 'Protecting the vulnerable' (Local Government Lawyer, 15/2/12); BBC News, 'Suicidal woman failed by Stockport mental health trust' (8/2/12).
  • Article 2 and informal patients. Reynolds v UK 2694/08 [2012] ECHR 437, [2012] MHLO 30(1) A voluntary in-patient killed himself by breaking and jumping out of a sixth-floor window: the court held that there was an arguable claim that an operational duty under Article 2 arose to take reasonable steps to protect him from a real and immediate risk of suicide and that that duty was not fulfilled. (2) There were no domestic civil proceedings available to his mother to establish any liability and compensation due as regards the non-pecuniary damage suffered by her on her son’s death, and therefore there was a violation of Article 13 in conjunction with Article 2. In particular: (a) neither the inquest nor the internal inquiry were an effective remedy; (b) the HRA claim under Article 2 was struck out by the county court because of domestic case law at that time which required gross negligence; (c) the mother had no prospect of obtaining adequate compensation for non-pecuniary damage under the Fatal Accidents Act 1976 (she was not a dependent) or the Law Reform (Miscellaneous Provisions) Act 1934 (death was instantaneous); (d) the lack of adequate compensation would itself reduce access to the civil remedy, as the legal aid 'cost/benefit analysis' would not be met and legal fees were unaffordable. (3) It was not necessary to examine the same complaint under Article 2 alone. (4) €7000 compensation was awarded.

Article 3

  • Section 136. MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and that he was in dire need of appropriate psychiatric treatment - the conditions which the applicant was required to endure were an affront to human dignity and reached the threshold of degrading treatment for the purposes of Article 3. (3) There was no breach of Article 13 as an appropriate remedy was available in domestic law, notwithstanding the fact that he had been unsuccessful. (4) Compensation of €3,000 was awarded.
  • ECtHR, 'Prolonged police detention of mentally-ill man without adequate medical care violated his Convention rights' (Press release ref ECHR 195 (2012), 3/5/12). This is the court's summary of the judgment.
  • Rosalind English, 'Delay in transferring mental health patient for treatment amounted to "inhumane treatment"' (3/5/12). This article concludes: 'This is a prime example of using Article 3 as a social and economic right, not a basic civil right, and thus extended leaves publicly funded authorities to carry out difficult jobs with threats of litigation looming on all sides. The UK courts recognised this claim for what it was, and dismissed it. Strasbourg should have done the same.' See MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46
  • Mental Health Cop Blog, 'MS v UK' (4/5/12). This article is in favour of the MS v UK judgment and makes points in relation to (1) place of safety arguments, (2) accessing psychiatric beds, (3) media coverage, and (4) implications.
  • Neil Munro, 'Dordevic v Croatia' (Mental Health and Mental Capacity Law Blog, 26/7/12).

Article 5

  • Social care home. Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1(1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded.
  • European Court of Human Rights, 'Bulgaria breached human rights of man forced to live for years in inhuman conditions in psychiatric institution' (press release, 17/1/12); Lucy Series, 'Mr Stanev's fine achievement' (The Small Places Blog, 20/1/12); Mental Disability Advocacy Center, 'Europe’s highest human rights court issues landmark disability rights ruling' (17/1/12); Neil Munro, 'Stanev v Bulgaria' (commentary) (Mental Health and Mental Capacity Law Blog, 19/1/12).
  • Seclusion. Munjaz v UK 2913/06 [2012] MHLO 79 (ECHR)The applicant, C. Munjaz, is a British national who was born in 1947. Suffering from mental health problems, he has spent a number of periods in prison and hospital. The case concerned Mr Munjaz’s complaint about his placement in seclusion in Ashworth Special hospital (a high security hospital) where he was transferred in March 1994 as a result of his increasingly psychotic, aggressive and violent behaviour. Relying in particular on Article 8 (right to respect for private and family life), he alleged that Ashworth’s in-hospital policy on seclusion, which had not complied with the Code of Practice under the Mental Health Act, had adversely affected his right to personal development and to establish and develop relationships with the outside world. Further relying on Article 5 (right to liberty and security), he also claimed that his seclusion had amounted to a further deprivation of his liberty lacking any basis in law and without possibility of bringing an external appeal. No violation of Article 5. No violation of Article 8. [Summary from court press release.]

Article 6

  • Compulsory treatment. X v Finland 34806/04 [2012] ECHR 1371, [2012] MHLO 128 — "The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication." [Detailed summary available via external link.]
  • Mental Health and Mental Capacity Law Blog, 'X v Finland - Are we in trouble?' (18/7/12). This article argues that '[i]t is at best highly doubtful that the approach in the Mental Health Act 1983, where compulsory treatment flows from detention automatically and with limited distinct procedural and substantive safeguards, is consistent with Article 8 of the ECHR'.

Powers of Attorney

Lasting Power of Attorney

These are the official summaries from the Justice website

  • Severance of invalid restrictions as to when a replacement attorney may act. Re Evans (2011) COP 24/11/11The donor appointed A (his wife) and B as attorneys, to act jointly and severally, and C as replacement attorney. He then directed as follows: "My replacement attorney will replace both my attorneys and act alone if and when my wife becomes unable or unwilling to carry out her duties as my attorney." On the application of the Public Guardian the direction was severed because the donor was attempting to provide for attorney B to be replaced even though one of the triggering events for his replacement listed in section 13(6)(a)-(d) of the MCA had not occurred. [OPG summary - LPA case.]
  • Severance of invalid restrictions as to when a replacement attorney may act. Re Tucker (2011) COP 9/12/11The donor appointed one attorney and one replacement attorney and then directed as follows: "My replacement attorney shall only act if my attorney is unable to act by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated by reason of the death, disclaimer or other incapacity of my attorney to act as my attorney; whichever shall first occur. For the avoidance of doubt my replacement attorney shall act alone if my attorney is not able to act." On the application of the Public Guardian the words "by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated" were severed because revocation of the attorney's appointment is not one of the events listed in section 13(6)(a)-(d) of the MCA that trigger the activation of the appointment of a replacement attorney. [OPG summary - LPA case.]
  • Capacity to make an LPA. Re Lane [2012] MHLO 15 (LPA)The donor made an LPA on 3 May 2011 using the 2007 prescribed form. The transitional provisions of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment Regulations) 2009, which introduced new prescribed forms, provide that an instrument executed by the donor before 1 April 2011 on the 2007 prescribed form is capable of being a valid lasting power of attorney. The Public Guardian made an application to the court for the severance of an invalid restriction, and drew the court's attention to the date of execution, submitting that the 'old' forms were not materially different from the 'new' forms. The court accepted that the 'old' forms differed from the 'new' forms in an immaterial respect and were accordingly within paragraph 3(1) of Schedule 1 of the MCA, which provides that an instrument which differs in an immaterial respect in form or mode of expression from the prescribed form is to be treated by the Public Guardian as sufficient in point of form and expression. [OPG summary - LPA case.]
  • Severance of invalid restrictions relating to gifts Re Forrest [2012] MHLO 20 (LPA)The donor included the following guidance: "I hereby express the wish that my Attorneys will continue to pay my contribution to the school fees of my granddaughters, A and B, as per my previous pattern of contributions." On the application of the Public Guardian the guidance was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]
  • Whether the instrument has been correctly executed. Re H [2012] MHLO 21 (LPA)The donor used the 2007 version of the LPA prescribed form and failed to tick the box to confirm that she had read (or had read to her) the prescribed information on pages 2, 3 and 4. On the attorney's application the court was unable to find on balance of probability that the donor had read (or had read to her) the prescribed information. This was a failure of execution and the court had no discretion to uphold it. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with an LPA. Re Batchelor [2012] MHLO 43 (LPA)The donor of a property and financial affairs LPA included the following provision: "I would ask my attorneys to have regard to any separate guidance note which I may make from time to time and place with this Lasting Power of Attorney." On the application of the Public Guardian the provision was severed on the ground that it contravened the requirements of regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, which do not permit additions to be made to an LPA. [OPG summary - LPA case.]
  • Severance of invalid restrictions relating to gifts. Re Bloom [2012] MHLO 44 (LPA)The donor of a property and financial affairs LPA included the following direction: "I direct my attorneys to use such of my capital and income as they shall at their discretion deem necessary to make provision for my wife's maintenance and benefit." The Public Guardian asked the court to sever either the entire direction or just the words "and benefit". The court severed only the words "and benefit" on the ground that they contravened section 12 of the MCA 2005. The order recited that the donor had a common law duty to make provision for his wife's maintenance. [OPG summary - LPA case.]
  • Severance of invalid restrictions relating to gifts. Re Drew [2012] MHLO 45 (LPA)The donor of a property and financial affairs LPA included the following guidance:" If my father is still alive then my trustees should continue with my contributions to his care (my records make clear from which account) and assume my role in financial responsibility for him." [The reference to "trustees" should have been to "attorneys".] The court severed the provision on the ground that it contravened section 12 of the MCA 2005. The order recited that the case of Bloom was distinguishable because in the present case the donor had no common law duty to make provision for her father's maintenance. [OPG summary - LPA case.]
  • Eligibility of Certificate Provider. Re Phillips [2012] MHLO 60 (LPA)The donor appointed three attorneys, A, B and C. She did not name any persons to be notified, and so there were two certificate providers. The Public Guardian refused to register on the ground that one certificate provider, X, was a member of the family of A. He was the unmarried partner of A but did not live at the same address. In his Part B certificate X said: "I am the partner of A and have known the donor for 3 years." The attorney applied to court for a direction to register and the Public Guardian was joined as respondent. The court decided that X was to be treated as a member of the family of A, and so the instrument could not be registered. The judge said: "In my judgment, anyone who describes himself in this context as the attorney's partner is courting trouble and automatically disqualifies himself from being a person who can give an LPA certificate. This applies regardless of whether he describes himself as the attorney's partner intentionally or inadvertently, whether they live at the same address or at separate locations, whether the relationship is intimate or platonic, and whether the statement is true or false." Although it was unnecessary to the decision, the judge added that, even if X were not to be treated as a family member, he was not independent of the attorney, as required by the prescribed LPA form. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others. Re Llewelyn [2012] MHLO 61 (LPA)The donor appointed attorneys including her husband to act jointly in some matters and jointly and severally in other matters. She stated that decisions were to be made jointly and severally apart from a list of specified decisions which were to be made jointly, but added a proviso to the effect that, provided her husband was able to act as one of her attorneys, all decisions could be made jointly and severally. On the application of the Public Guardian the proviso was severed as being incompatible with an appointment to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.]
  • Appointment of office holder as attorney. Re McGreen [2012] MHLO 62 (LPA)The donor appointed A as attorney and B as replacement attorney and then provided as follows on the A2 continuation sheet: "If my Replacement Attorney is no longer a partner in the firm of XYZ Solicitors, I appoint in his place a suitably qualified partner of that firm or firm which has succeeded that firm and carries on its practice, to be my Replacement Attorney." (Only A and B had signed Part Cs.) The Public Guardian applied for severance of the provision on the ground that it was not possible to appoint a replacement attorney to take over from a replacement attorney (see Re Baldwin, below, under the heading "Replacement for replacement attorney".) The court severed the provision for that reason and also for the following reason: "Section 19(2) of the Mental Capacity Act 2005 states that, in respect of the appointment of deputies, 'the court may appoint an individual by appointing the holder for the time being of a specified office or position'. However, there is no comparable provision in the Act that permits the donor of an LPA to appoint an office holder to be his or her attorney. Section 10(1) states that the donee of an LPA must be an individual who has reached 18 or, if the power relates only to the donor's property and affairs, either such an individual or a trust corporation." [OPG summary - LPA case.]
  • Whether the instrument has been correctly executed. Re Smith [2012] MHLO 63 (LPA)The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney's signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney's name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary - LPA case.]
  • Severance of invalid restrictions relating to gifts. Re Strange [2012] MHLO 64 (LPA)The donor of a property and financial affairs LPA included the following guidance: "I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so." The Public Guardian asked the court to consider whether the guidance needed to be severed as potentially contravening section 12 of the MCA 2005. In the application the Public Guardian referred to the case of Bloom (above), noting that a wife had no common law duty to maintain her husband and that the husband's common law duty would be abolished when section 198 of the Equality Act 2010 came into force, but noting also that various other legislation (see below) imposed a duty on a wife to maintain her husband. The court did not sever the guidance and explained the position in the following terms: "In the context of clauses in an LPA in which the donor makes provision for the maintenance of his or her spouse, there should be no distinction between male and female spouses and, in principle, such clauses should be treated as valid on the basis of the specific maintenance obligations imposed by statutes such as National Assistance Act 1948, section 24(1)(b) and Social Security Administration Act 1992, section 105(3), and the absence of any distinction between husband and wife in other legislation, such as the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975." [OPG summary - LPA case.]
  • Severance of invalid restrictions relating to gifts. Re O'Brien [2012] MHLO 65 (LPA)The donor of a property and financial affairs LPA included the following guidance: "My handicapped son should be adequately provided for." On the application of the Public Guardian this provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]
  • Investigation into and revocation of LPA. Re Harcourt [2012] MHLO 74 (LPA) — "This application relates to an investigation by the Office of the Public Guardian into the management of Mrs Harcourt’s property and financial affairs by her daughter under a Lasting Power of Attorney. It considers the powers of the OPG and the Court of Protection when an attorney impedes an investigation and the circumstances in which the court may revoke an LPA."
  • Severance of restrictions incompatible with an LPA. Re Norris [2012] MHLO 90 (LPA)The donor made LPAs for property and financial affairs and for health and welfare and included the following guidance in both LPAs: "At all times to make decisions in the best interests of [my wife] during her lifetime." On the application of the Public Guardian the provision was severed as being potentially inconsistent with the requirement in section 1(5) of the MCA that any act done or decision made must be done or made in the donor's best interests. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with an LPA. Re Darlison [2012] MHLO 91 (LPA)The donor made an LPA for property and financial affairs. In the guidance section she stated: "Oversee X's financial welfare. X is [my] daughter." On the application of the Public Guardian the guidance was severed on the ground that the donor of an LPA cannot authorise the attorneys to act in relation to the financial affairs of another person. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with a Health and Welfare LPA. Re Kerron [2012] MHLO 92 (LPA)The donor made an LPA for health and welfare, and imposed the following restriction: "If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys." On the application of the Public Guardian the words "jointly" and "myself and" were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with a Health and Welfare LPA. Re Sheppard [2012] MHLO 93 (LPA)The donor of a health and welfare LPA included the following guidance: "My attorneys are to maintain the health and welfare needs of X." On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with a joint and several appointment. Re Dowden [2012] MHLO 94 (LPA)The donor made two LPAs in which she appointed a professional attorney and a lay attorney to act jointly and severally. She directed that the professional attorney should be paid fees "in keeping with the charging rate in force at the time the work is undertaken". She then directed that the lay attorney should be paid a reasonable hourly fee and stated that any sum paid "must be with the approval of my Solicitor/Attorney" and "will be at such rate as he feels is appropriate". On the application of the Public Guardian the provision relating to the lay attorney's fees being approved and set by the professional attorney was severed as being incompatible with a joint and several appointment. The judge added that, to have achieved the desired objective, the donor should have appointed the attorneys to act jointly for some decisions (in this case on agreeing an appropriate level of remuneration for the lay attorney) and jointly and severally for other decisions. [OPG summary - LPA case.]
  • Survivor of original joint appointment cannot act with replacement. Re Krajicek [2012] MHLO 95 (LPA)The donor made two LPAs appointing two attorneys, A and B, and two replacement attorneys, C and D, and directed them to act jointly for some decisions and jointly and severally for other decisions. She provided that "If either of the original attorneys is unable to act then C should step in. D is to step in if the second attorney is unable to act." On the application of the Public Guardian the provision was severed because it appeared to provide for the replacement attorney to act jointly with the survivor of the original attorneys, which was incompatible with the appointment of the attorneys to act jointly for some decisions. [OPG summary - LPA case.]
  • Severance of invalid restrictions relating to gifts. Re Burdock [2012] MHLO 96 (LPA)The donor made an LPA for property and financial affairs and included the following guidance: "(1) If the house is sold I intend to pay off Z's student loan completely. (2) I also intend to give my three daughters, or their issue, as follows: X £30,000, Y £30,000, Z £50,000. (3) The remainder to be used for my care and needs." On the application of the Public Guardian the provision was severed as it gave the attorneys greater gift making powers than are permitted under section 12 of the MCA 2005. [OPG summary - LPA case.]
  • Whether the instrument is in prescribed form. Re Gunn [2012] MHLO 97 (LPA)The donor made LPAs for property and financial affairs and for health and welfare. The donor's signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney's application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary - LPA case.]
  • Severance of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others. Re Edmonds [2012] MHLO 129 (LPA)The donor appointed a sole attorney and then two replacements, the latter to act jointly for some decisions and jointly and severally for others. She then directed as follows: "I would like my replacement attorneys to act jointly as much as possible and always where any transaction is valued at more than £5,000." On the application of the Public Guardian the words "as much as possible and always" were severed on the ground that they were uncertain and incompatible with the appointment type. [OPG summary - LPA case.]

Enduring Power of Attorney

These are the official summaries from the Justice website

  • Severance of restrictions incompatible with a joint and several appointment. Re Taylor [2012] MHLO 24 (EPA)(1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally'. [OPG summaries - EPA cases.]
  • Unsuitable attorney. Re Stapleton [2012] MHLO 72 (EPA)(1) The court directed the Public Guardian to cancel the registration of the EPA, because the attorney's financial abuse made him unsuitable. (2) A panel deputy was appointed instead. (3) D was ordered to pay his own costs (a departure from the general rule in property and affairs cases that P pays) because of D's conduct before and during proceedings.
  • Immaterial differences from the prescribed form. Re Newman [2012] MHLO 73 (EPA)The donor made an EPA in which, amongst other defects, he failed to select either of the following alternatives: "with general authority to act on my behalf" or "with authority to do the following on my behalf". The court confirmed that this failure did not invalidate the EPA, because it was an immaterial difference from the prescribed form within paragraph 2(4) of Schedule 4 of the MCA. [OPG summary - EPA case.]
  • Severance of restriction fettering attorney’s authority. Re Johnston [2012] MHLO 130 (EPA)The donor appointed two attorneys to act jointly and severally. The donor included the following restriction: "The property at [address] shall not be disposed of without the agreement of A, B and C, as children of [the donor] in addition to the attorneys." On the attorneys' application the restriction was severed as being ineffective as part of an EPA. [OPG summary - EPA case.]

Other jurisdictions

Scotland

  • Preliminary decision. JB v MHTS [2012] MHLO 17 (ScotSC)The MHTS declared under section 257 Mental Health (Care and Treatment) (Scotland) Act 2003 that JB was no longer to be the named person on the basis that it was inappropriate for her to continue as such. The decision was made by a Convenor (legal member) sitting alone, but should have been made by a full panel: the tribunal was faced with an important substantive decision; there was no emergency; even if there had been extant proceedings, this was not a 'preliminary' or 'interim' decision within the rules. The tribunal was therefore improperly constituted, and the appeal was allowed.
  • Excessive security. RM v Scottish Ministers [2012] UKSC 58, [2012] MHLO 133 — "This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions "shall come into force" on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. ... These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security." [Detailed summary available.]

Northern Ireland

  • Leave to appeal. X v MHRT for NI [2012] NIQB 1, [2012] MHLO 31In previous judicial review proceedings, X had established that in NI where there is a mandatory duty to discharge it cannot lawfully be deferred. He now sought to bring a negligence and false imprisonment claim against the Tribunal and the Trust for his detention during a six-week deferral period. To sue the Tribunal he required leave of the High Court (under Article 133 Mental Health (Northern Ireland) Order 1986, the equivalent of s139): the test is whether on the materials immediately available to the court the complaint deserves fuller investigation. Leave was refused because there had been a difficult question of statutory construction and no bad faith or lack of reasonable care.

Southern Ireland

  • Detention challenge. Han v President of the Circuit Court (2008) IEHC 160 — "In the relatively recent past, the applicant was involuntarily committed to a mental hospital under the Mental Health Act 2001. The detention was reviewed by a Mental Health Tribunal and affirmed as correct. The applicant then appealed to the Circuit Court. Before he could process that appeal, he became well and was discharged from the mental hospital. Deery J, the President of the Circuit Court, struck the matter out from the hearing list as, the applicant then being well, he considered the matter to be moot. The applicant now challenges this decision."
  • Treatment in best interests. Re JO'B; HSE v JO'B (2011) IEHC 73 — "In these proceedings the Health Service Executive ('H.S.E.') seeks declarations that Mr. J. O'B. is a person who lacks capacity to make decisions in relation to his treatment care and welfare; that Mr. O'B. is a person in need of an appropriate and continuous regime of clinical, medical and nursing treatment in an environment of therapeutic security, this being in his best welfare and interest; that the clinical, medical, nursing, therapeutic security, welfare services and treatment at the Central Mental Hospital (C.M.H.), Dundrum, are appropriate to his needs; and for an order directing the H.S.E. to detain Mr. O'B in the C.M.H., as well as seeking various ancillary reliefs. What makes this application very unusual, if indeed not entirely unique, is that it is agreed on all sides that Mr. O'B. is not suffering from a mental illness or mental disorder as that term is defined in s. 3 of the Mental Health Act 2001, and accordingly it is agreed that the provisions of that Act are of no application." [Summary required.]
  • Preventive detention. The People (at the suit of the Director of Public Prosecutions) v McMahon (2011) IECCA 94The Southern Irish DPP appealed an 11.5-year sentence and invited the Criminal Court of Appeal to impose a life sentence as a form of preventive detention (akin to the English IPP sentence). The court held: 'The protection of the public is an appropriate factor in the exercise of the sentencing function, but it cannot be extracted from that function to create a self-standing judicially created jurisdiction to impose a form of preventive detention. Whether sentencing courts should have the power to order the detention of individuals deemed to posed an immediate threat to the public, over and beyond any appropriate sentence for the crime committed, is a matter which should be addressed in the first place by detailed legislation by the Oireachtas after appropriate research and debate, and subject to Constitutional and Convention review if appropriate.'

Other cases

Paying for treatment

  • Paying for deprivation of own liberty. DM v Doncaster MBC [2011] EWHC 3652 (Admin)DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) domestic legislation required this result and it was not suggested that the legislation was incompatible with European obligations.
  • Michael Kennedy and Bilkiss Bashir, 'Short Changed' (Private Client Adviser, February 2012). This article concludes: 'For now, the argument as to the legality and power for a local authority to charge someone deprived of their liberty and compelled to live in a care home remains open to lively debate.'
  • Paying for treatment. Coombs v Dorset NHS PCT [2012] MHLO 13 (QBD)Whether the claimant, who had sustained a serious head injury while a detained patient, should be permitted to fund his future care. (1) The defendant argued that (a) a detained patient could not choose to pay for his treatment, particularly because the RC chose where and how he was treated; (b) allowing payment would create a contract, contrary to the purpose of the MHA to take care and treatment out of patients’ hands; (c) there was no significant difference compared with prisoners, whose expenses are met by the government under s51 Prison Act 1952; (d) while the statute did not prohibit payment, it would be contrary to public policy to allow a patient to use his own funds. (2) The claimant argued that (a) there was no reason why a detained patient should not be able to pay if he wishes; (b) while the patient could not choose where or how he was treated, he should be able to top-up payments if he preferred a placement for which the funding authority were unwilling to pay; (c) denying the right to pay would breach Article 5. (3) Held: (a) the relationship between care providers and a detained patient was different to that with ordinary patients, as the RC has the right to decide on appropriate placement and treatment, but if the patient could pay for a particular appropriate placement or treatment there was nothing to prevent this; (b) prisoners and detained patients should not be regarded in the same way: with patients there was no punitive element; patients are not detained for finite periods; the purpose and effect of s51 Prison Act 1952 had no application to patients; (c) Article 5 relates to lawfulness of detention, not conditions of detention (which concerned Article 3); (d) public policy considerations amounted to mere repetition of other arguments; (e) a detained patient is not prevented from paying for his own care or treatment. The defendant was granted permission to appeal. [Based on Lawtel summary.]

Limitation periods

  • Limitation periods. Seaton v Seddon [2012] EWHC 735 (Ch), [2012] MHLO 28Chancery case partly involving, in relation to the fourth claimant, consideration of the effect of mental incapacity on statutory limitation periods. (1) If a claimant is under one disability (minority) when the cause of action accrued, and subsequently under a second overlapping disability (mental incapacity), the limitation period does not run until he is no longer under the second disability. (2) The question of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced (in this case: whether he was 'of unsound mind [meaning that he] by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing or administering his property and affairs' rather than the new test of whether he 'lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings'. (3) On the facts, the fourth claimant was not 'of unsound mind'; hence he would not meet the new test either.
  • Limitation periods. RAR v GGC [2012] EWHC 2338 (QB), [2012] MHLO 154(1) In relation to limitation the court held as follows: 'I am satisfied that it would be fair and just to invoke the discretion afforded to the court by section 33 of the 1980 Act and permit this trial to proceed. I do so for the following reasons: (i) Having read the lengthy report of Dr Roychowdhury, it is clear that as a result of the abuse perpetrated upon her, the mental health of the claimant has been adversely affected. It has fluctuated over the years, at its worst, it has entailed compulsory hospitalisation. I find that the mental health of the claimant played a real part in the delay which has occurred in the bringing of the civil claim. I accept that the nature of the matters to be explored in this case are of themselves a deterrent for a person in the position of the claimant in bringing such a claim. (ii) In 1977/1978 the defendant had cause to consider allegations of sexual assault upon the claimant by reason of the criminal proceedings. That he did so, and that his memory remains to this day, is evidenced by the detailed witness statement which the defendant has filed in these proceedings. (iii) This case depends upon the evidence of two people, the claimant and the defendant. Although the claimant will find it distressing to give evidence, the detail contained in her witness statement demonstrates that she is able to remember and articulate her memories, however unpleasant. There is nothing in the witness statement of the defendant which demonstrates any difficulty on his part remembering the detail of relevant periods. The evidence of both parties remains sufficiently cogent to enable a fair trial to take place. (2) The other issues considered were: (ii) What was the nature and extent of the alleged assaults perpetrated by the defendant upon the claimant? (iii) What is the nature and extent of any resultant personal injury and loss? (iv) What is the appropriate level of damages?

Housing benefit

  • Housing benefit. Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC), [2012] MHLO 5The UT judge reviewed his previous decision because he had overlooked a legislative provision which could have had a material effect on the decision: in this case MCA 2005 s7, which provides that 'If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.' (1) Although the purported tenancy agreement between P and her father was void because the lack of capacity was known, under s7 P was still 'liable to make payments in respect of the dwelling which she occupies as her home' so she was entitled to benefits under the Housing Benefits Regulations 2006. (2) Even if 'services' in s7 is not wide enough to cover the provision of accommodation, the common law rules as to necessaries survive and the provision of accommodation is an obvious necessary.
  • Anthony Collins Solicitors, 'Tenants lacking mental capacity signing tenancy agreements' (23/2/12). This briefing summarises the Wychavon case and sets out the consequences for housing providers.

Negligence

  • Interim payment for trial accommodation. Sedge v Prime [2012] MHLO 66 (QB) — "This is an application for an interim payment of £300,000 to enable the Claimant to move from the 'Little Oyster' residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely." [Summary required.]
  • Member of public assaulted by patient. Buck v Norfolk and Waveney MH NHS Foundation Trust [2012] MHLO 123 (CC)The defendant Trust granted unescorted leave to a detained patient who then ran in front of a bus. The claimant bus driver suffered PTSD and sued the Trust. The court held that a custody authority responsible for the negligent release of a patient did not owe a duty to a victim unless that victim had been identifiable: the Trust therefore owed no duty of care to the driver.
  • Employee assaulted by patient. Selwood v Durham CC [2012] EWCA Civ 979, [2012] MHLO 160 — "This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it is reasonably arguable that such a duty was owed in the circumstances of the case. The claimant had also pleaded that there had been a breach by the second and third defendants of her right under article 2 of the European Convention of Human Rights. The judge also struck out those claims and that issue is raised in this appeal." Appeal allowed and all issues sent for trial. [Detailed summary available.]

Housing law

  • Possession order. Southend-on-Sea BC v Armour [2012] EWHC 3361 (QB), [2012] MHLO 152The recorder's decision to refuse to grant a possession order (on the basis that by the time of the delayed hearing possession was no longer appropriate because there had been full compliance with the terms of the tenancy for the 12 months prior to the hearing) was upheld on appeal.
  • Nearly Legal Blog, 'Proportionality - between claim and hearing' (21/10/12).
  • Possession order. Southend-on-Sea BC v AR (2012) EW Misc 25 (CC), [2012] MHLO 151The claimant local authority sought possession of an introductory tenancy on the basis of the defendant's antisocial behaviour. (1) The procedure was followed properly so there was no defence to the claim under the Housing Act 1996. (2) The original decision to seek possession was a necessary and proportionate interference with the defendant's Article 8 rights: in particular, the diagnosis of Aspergers and depression (which led to lack of litigation capacity and appointment of a litigation friend) did not explain the defendant's conduct and was properly considered by the claimant. (3) However, there had been full compliance with the terms of the tenancy for the 12 months prior to the delayed final hearing, so possession was no longer proportionate. (4) No order for costs (despite the claimant seeking costs).

Legal Aid

  • Rejection of Legal Aid tender. R (Hossacks) v Legal Services Commission [2012] EWCA Civ 1203, [2012] MHLO 106This appeal followed an unsuccessful judicial review of the LSC's rejection of the appellant's tender in relation to community care law in 2010. (1) The issues were set out by the court as follows: (a) Were any of the Appellant's applications acceptable without clarification or amendment? (b) Leaving aside the evidence of the Commission's communications with other applicants, should the Commission have sought clarification or suggested amendment of any of the applications, and if so should the Commission have accepted the resulting application(s)? (c) Do the Commission's communications with other applicants show that by rejecting the Appellant's applications, it acted in breach of its duty to treat all applicants equally? (2) The appeal had no real prospects of success and therefore permission was refused. (3) The LSC were awarded its costs: (a) the appellant's impecuniosity and the fact that her activity both as a solicitor and as a proposed foster parent may be or indeed are in the public interest does not justify depriving the Commission of the normal order; (b) the Appellant was clearly warned of the costs risks of pursuing her application for permission to appeal and her application for disclosure, which was liable to be very expensive indeed; and (c) the court directed a rolled up hearing for her benefit, so that her claim could be determined as soon as possible, as she sought.

Articles in relation to 2011 cases

  • DOLS and holiday. Cardiff Council v Peggy Ross (2011) COP 28/10/11 12063905Cardiff Council used the Deprivation of Liberty Safeguards to prevent an elderly couple going on holiday cruise; the court decided that it was in the respondent's best interests to go on the cruise, and gave permission for ITV Wales to report that decision and broadcast interviews; later the court decided that the respondent herself had capacity to decide whether or not to go.
  • Martin Beckford, 'Elderly couple forced to go to court over council holiday ban' (Telegraph, 20/1/12).
  • Permission to appeal to Supreme Court refused on 28/11/11.
  • John O'Donnell, 'Defining Liberty' (Solicitors Journal, 14/2/12).
  • Community care. R (KM) v Cambridgeshire CC [2011] EWCA Civ 682(1) The assessment of needs was adequate. (2) There has to be a rational link between the needs and the assessed direct payments, but there does not need to be a finite absolute mathematical link, so the use of the Resource Allocation System (RAS) was lawful. (3) The explanation of the personal budget figure was rational.
  • Local Government Lawyer, 'Supreme Court decides not to review key 1997 community care resources ruling' (20/2/12).
  • Deprivation of liberty. Re C; C v Wigan Borough Council [2011] EWHC 1539 (Admin) — Judgment in related COP and Admin Court proceedings relating to an 18-year old with severe autism and severe learning disabilities living at a residential special school. Issues considered include deprivation of liberty and seclusion. [Summary required.]
  • Irwin Mitchell Solicitors, 'Mother Proved Right As Son Freed From Padded Room Hell Makes Progress' (29/3/12). 'Court Anonymity Order Lifted Naming Wigan Borough Council As Local Authority Which Locked Up Her Autistic Son.'

Articles in relation to Cheshire West

  • Definition of deprivation of liberty. Cheshire West and Chester Council v P [2011] EWCA Civ 1257P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.]
  • David Hewitt, 'Purpose alone can no longer determine if there is a deprivation of liberty' (Solicitors Journal, 16/4/12). This article argues that the reference in the Court of Appeal decision in Cheshire West to 'purpose' as being relevant to the objective element of deprivation of liberty is not supported by the subsequent ECtHR decision in Austin. See Cheshire West and Chester Council v P [2011] EWCA Civ 1257
  • Morgan Cole Solicitors, 'Deprivation of Liberty case update' (January 2012). The 'Action required' conclusion of this briefing states: 'The guidance contained in this judgment should be disseminated to those who work with patients and service users who lack capacity and are responsible for care planning. The case clarifies that where there is no evidence to show that an individual’s living arrangements in a hospital or care home are significantly different from the kind of life that anyone with their disability could normally expect wherever and in whatever setting they were living, the provision of their care and treatment will not, of itself, amount to a deprivation of liberty.' See Cheshire West and Chester Council v P [2011] EWCA Civ 1257#External_links
  • O'Donnells Solicitors, 'Latest news: Cheshire West' (May 2012, no 1) and O'Donnells Solicitors, 'Cheshire West Latest' (May 2012, no 3). The Supreme Court is expected to decide on leave to appeal in the Cheshire West and P & Q cases by the end of June 2012. See Cheshire West and Chester Council v P [2011] EWCA Civ 1257
  • The Supreme Court may hear the Cheshire West case from 22/10/13 to 24/10/13... but the Supreme Court registry say the hearing dates have not been confirmed.

Articles in relation to unreported judgments

Details at: Settled cases and forthcoming judgments

  • Re GR (deprivation of liberty and contact, Hedley J). Sarah Cassidy, 'Foster parents told to stay away from "autistic" man' (Independent, 11/2/12).
  • Re S (Kidney dialysis, Parker J). Stephen Adams, 'Kidney failure patient forced to have dialysis' (Telegraph, 29/5/12).
  • Re HH (needle phobia etc, Pauffley J). Cathy Gordon, 'NHS trust wins intervention ruling over man's life-prolonging treatment' (9/8/12). The judge decided that '[i]t would be not only inappropriate, it would be distressing for him to be subjected to any aggressive forms of treatment of a kind that may result in some short prolongation of what has to be seen as a distressing life.'
  • Re AWA (do not resuscitate). Jane Dreaper, 'Down's syndrome patient challenges resuscitation order' (BBC, 13/9/12). The basis of the claim is that a do-not-resuscitate order was placed on the patient's file (on account of 'Down's syndrome, unable to swallow (Peg [percutaneous endoscopic gastrostomy] fed), bed bound, learning difficulties') without consulting or informing him or his family and without provision for review.
  • Re L (minimally-conscious state, Moylan J). Terri Judd, 'Family "devastated" as court orders life saving treatment is to be withheld if the condition of their severely ill father deteriorates significantly' (Independent, 8/10/12). Although L was in a minimally-conscious state rather than a vegetative state (as originally asserted by the Trust), Moylan J held that it would be in L's best interests to withhold life saving treatment if his condition deteriorated significantly.

Miscellaneous

  • Employment case. Crawford v Suffolk MH Partnership NHS Trust [2012] EWCA Civ 138, [2012] MHLO 14The employees had been dismissed for gross misconduct for restraining a patient on a chair which was tied to a table; they disputed the allegation that they tied the patient to the chair with a sheet. (1) The Employment Tribunal had been entitled to conclude that there had been two procedural errors (in failing to obtain the witness's first statement, and in carrying out a practical experiment on the chair without notification to the appellants) and that they were errors that a reasonable employer would not have made; although the ET went too far in saying no reasonable employer could have preferred the witness's evidence over the employees', this did not invalidate the finding of unfair dismissal. (2) The case was remitted to the ET to consider the Polkey point (reduction in compensation based on chance of dismissal following fair procedure) but the 25% reduction for contributory fault (failure to report the incident) was upheld. (3) (Obiter) The court expressed scepticism about the need for suspension during the disciplinary process, and stated that, as the conduct did not deserve the epithet 'criminal', the police should never have been involved: while the hospital must act transparently it also owes duties to long-serving staff.
  • PI quantum case. Verlander v Rahman [2012] EWHC 1026 (QB), [2012] MHLO 49Personal injury quantum judgment including the following issues: (1) whether and to what extent the claimant's disabilities were due to frontal lobe brain damage (and are now incapable of significant improvement) or due depression or psychological factors (which may well improve over time); (2) whether the claimant had capacity to manage her properties and affairs.
  • Mercy killing case. R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin), [2012] MHLO 77(1) Voluntary euthanasia is not a possible defence to murder. (2) The DPP is not under a legal duty to provide further clarification of his policy. (3) Section 2 Suicide Act 1961, in obstructing the claimants from exercising a right in their circumstances to receive assistance to commit suicide, is not incompatible with Article 8. (4) The GMC and the SRA are not under a legal duty to clarify their positions. (5) It was unnecessary in this case to decide whether or not the mandatory life sentence for murder, in a case of genuine voluntary euthanasia, is incompatible with the Convention.
  • Costs case. Re T (Children) [2012] UKSC 36, [2012] MHLO 100A local authority should not be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded; the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. (This case related to care proceedings.)
  • Court Martial. Court Martial in the case of Sergeant Nightingale [2012] MHLO 116(1) The accused pleaded guilty of possessing (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm. (2) In mitigation he relied, inter alia, on evidence from a neuropsychologist and a clinicial psychologist to the effect that a brain injury had caused memory problems and confabulation. (3) He was sentenced to 18 months for the Glock and 6 months concurrently for the ammunition.
  • Enforceability of mortgage. Calvert v Clydesdale Bank Plc [2012] EWCA Civ 962, [2012] MHLO 131There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor's lack of capacity.
  • Do not resuscitate. R (Tracey) v Cambridge University Hospital NHS Foundation [2012] EWHC 3670 (Admin), [2012] MHLO 146 — "This is a claim for judicial review and a claim pursuant to section 7 Human Rights Act 1998 in respect of: (i) the failure by the first defendant to treat the claimant's late wife, Janet Tracey lawfully; (ii) the failure by the first defendant to treat Janet Tracey in a manner that respected her rights under Articles 2, 3 and 8 ECHR, and in a manner that respected the claimant's rights under Article 8 ECHR; and (iii) the failure by the first defendant to have in place and to operate lawfully an appropriate policy on the use of Do Not Attempt Cardio-Pulmonary Resuscitation orders; (iv) the failure by the second defendant effectively to promulgate any clear policy or guidance on the use of DNACPRs, which is accessible to patients and their families, and which properly informs them of their rights and legitimate expectations in respect of the use of DNACPRs by hospitals such as that operated by the first defendant." [Summary required.]

Legislation

UK and English

See also: #Mental Health Tribunal

  • Department of Health, 'Draft Care and Support Bill published' (11/7/12); Robert Long and Tom Powell, 'Draft Care and Support Bill 2012-13 - Commons Library Standard Note' (6/8/12); Law Society, 'Overhaul of social care is long overdue, says Law Society' (press release, 11/7/12).
  • Health and Social Care Act 2012 — This Act will amend the Mental Health Act 1983 so that the 'certificate requirement' for the treatment of CTO patients who have capacity and consent can be met by the RC filling in a Part 4A certificate rather than requiring a SOAD to do so. It makes various other changes which are summarised on this page. The provisions which affect the MHA will come into force on such day as the Secretary of State may by order appoint.
  • Mental Health (Approval Functions) Act 2012 — This Act states: 'Any person who before the day on which this Act is passed has done anything in the purported exercise of an approval function is to be treated for all purposes as having had the power to do so.' It defines 'approval function' as: '(a) the function of giving an approval for the purposes of section 12 of the Mental Health Act 1983 (practitioners approved to give medical recommendations), or (b) the function of approving a person as an approved clinician for the purposes of that Act.' The Secretary of State's approval functions were lawfully delegated to Strategic Health Authorities on their formation in 2002. This Act was passed with it was discovered that four SHAs had unlawfully delegated these functions to NHS mental health trusts. In force 31/10/12.
  • External links in relation to Mental Health (Approval Functions) Act 2012: (1) Legislation.gov.uk (text of Act); (2) Parliament website: Mental Health (Approval Functions) Act 2012-13 (progress of the Bill and explanatory notes); (3) Parliament website, 'Lords considers Mental Health (Approval Functions) Bill' (1/11/12); (4) They Work For You: Commons debates on 30/10/12; (5) Dept of Health, 'Action to clarify processes under the Mental Health Act' (press release, 29/10/12); (6) Dept of Health, 'Technical change to the process for approving doctors working under the Mental Health Act' (letter to Local Authority Directors of Adult Social Services, 29/10/12).

Welsh

  • Mental Health (Care Co-ordination and Care and Treatment Planning) (Wales) Regulations 2011 — 'These Regulations contain provisions about care co-ordination and care and treatment planning for patients using secondary mental health services... They also contain provision about the identification of relevant mental health service providers, and transitional provisions for patients who are already in secondary mental health services at the coming into force date of these Regulations' (extract from Explanatory Note). Made 6/12/11. In force 6/6/12.

Scottish

  • Mental Health (Safety and Security) (Scotland) Amendment Regulations 2012 — "These Regulations amend the Mental Health (Safety and Security) (Scotland) Regulations 2005 ('the principal Regulations') to add the Medium Secure Service, Rohallion Clinic, Murray Royal Hospital, Muirhall Road, Perth to the list of institutions specified in regulation 2(2)(a) of those Regulations (regulation 2). The principal Regulations provide for 'specified persons', who may be made subject to measures to protect the safety and security of themselves and others. A person is only a 'specified person' if certain conditions exist, one of which is that the person is detained in a state hospital or other place specified in regulation 2(2)(a) of the principal Regulations. The Mental Health (Safety and Security) (Scotland) Amendment Regulations 2007 are revoked." [Explanatory Note.] In force 1/8/12.
  • Mental Health (Cross-border Visits) (Scotland) Regulations 2008 — "These Regulations make provision in connection with escorted mental health patients who visit Scotland whilst on leave of absence under the law of England and Wales, Northern Ireland, the Isle of Man or any of the Channel Islands." In force 6/5/08.


General information

Mental Health Tribunal

  • Senior President of Tribunals, 'Senior President of Tribunals' Annual Report' (February 2012). This report contains the following in relation to the mental health jurisdiction: (1) A periodic digest of common errors, arising in 'review' decisions (First-tier appeals on points of law), is issued so that members can 'learn from the experience of colleagues who are faced with difficult legal questions': this digest is available to legal, medical and lay members, but surprisingly not to patients, their representatives or the public. (2) There was a 3% increase in receipt of cases from 2009-10 to 2010-11, mostly due to CTOs, changes in status, and increased use of s2. (3) The 'continuing improvement' and 'excellent progress' by the secretariat, and the duty judge scheme, has led to improved case management and reduced the adjournment rate within two years from 20% to 7%. (4) The AH case on publicity and the RB case on discharge conditions are noted as interesting cases. (5) Use of secure email will be encouraged (6) Twelve salaried tribunal judges were appointed to the Restricted Patients Panel in 2011.
  • HMCTS, 'Mental Health Tribunal Stakeholder Bulletin April 2012' (17/4/12). The following are the headings: Contacting the Tribunal; Reports Processing Team; Section 2 Cases; Scanned Reports; Password protection; Notification to the Tribunal of Patient Withdrawals and RC Discharges; HQ2 Questionnaire; FTT Mental Health Policy update; Clerking; Facilities for the Hearing impaired; Olympics and Paralympics 2012 and the potential impact; Relist Team; Customer Survey; Feedback. In relation to the new forms: Form CNL2 ('Case Notification Letter 2'), which from May 2012 will be sent to the representative with the RC's report, demands that the representative complete Form HQ2 ('Hearing Questionnaire 2'). HQ2 asks the following questions: (1) What is the Patient seeking from the tribunal, and what are the principal areas of dispute? (2) Do you intend to call an independent expert? If so, please give details. (3) What is your hearing time estimate? (4) Would this case benefit from pre-hearing review by a tribunal judge? If so, please say why (e.g. change of status under the Act, or recent hospital transfer). (5) Are there any other matters that you feel that the panel should know in order to dispose of this matter justly, fairly and without delay? (6) Does the patient need an interpreter? If so, please give details of language and dialect.
  • HMCTS, 'T128: Options for your Tribunal Referral Hearing: Community Patients' (April 2012). This is the form which is sent to CTO patients inviting them to cancel their tribunal referral hearings. See Tribunal Procedure (Amendment) Rules 2012
  • Updated room specification. HMCTS, 'Room Specification Recommendations for Tribunal Hearings' (March 2012).
  • Mark Hinchliffe, 'Important Notice' (29/3/12). This document describes the changes made by the Tribunal Procedure (Amendment) Rules 2012 on 6/4/12. In relation to the tribunal's requirement, in CTO reference cases, for evidence from the RC about the patient's capacity to decide not to attend or be represented, it states: 'We do not see that this should present a difficulty or a conflict of interest. The Responsible Clinician, as an expert witness, has no "interest" one way or the other and, in any event, has a responsibility to assess capacity in many situations...'
  • Legal Action articles on the required content of social circumstances reports and responsible authority statements. Reproduced by kind permission: (1) Christopher Curran, Malcolm Golightley and Phil Fennell, 'Social circumstances reports for mental health tribunals - Part 1' (Legal Action, June 2010); (2) Christopher Curran, Malcolm Golightley and Phil Fennell, 'Social circumstances reports for mental health tribunals - Part 1' (Legal Action, July 2010); (3) Christopher Curran, Phil Fennell and Simon Burrows, 'Responsible authority statements for mental health tribunals' (Legal Action, March 2012).
  • Rules amendments. Tribunal Procedure (Amendment) Rules 2012 — By amending Tribunal Rules 32 and 35, these rules: (1) add 'date of birth' to the items which an application must, if possible, include; (2) remove a reference to after-care under supervision; (3) prescribe information which a reference must, if possible, include; (4) amend the rules for reports following recall of s37/41 patients (rather than the Secretary of State being required to submit reports within 6 weeks, he must immediately provide details of the RC and social supervisor who are then given 3 weeks to provide reports); (5) amend the rules for section 2 cases (the responsible authority must now provide the documents specified in the Practice Direction, rather than that which 'can reasonably be provided in the time available'); (6) clarify the wording in relation to other cases (explicitly stating that if the responsible authority made the reference then the 3 weeks runs from the date of the reference); (7) prescribe the information required from the Secretary of State (summary of index offence, record of previous convictions, full details of liability to detention since restrictions were imposed, any further relevant information); (8) clarify that a case may be struck out without a hearing for want of jurisdiction under r8(3); (9) allow a s68 CTO reference to be disposed of without a hearing if the patient is 18 or over and either (a) the patient states in writing he does not wish to attend or be represented and the tribunal is satisfied he has the capacity to decide whether or not to make that decision (it is assumed this is intended to mean the capacity to make the decision) or (b) the representative states in writing that the patient does not want to attend or be represented. The consultation response states that the decision on capacity will be based on the responsible clinician's opinion and the reports. In force 6/4/12.
  • Tribunal Procedure Committee, 'Response to consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (1 June 2011 - 29 August 2011)' (February 2012).

Court of Protection

  • Court of Protection, 'Listing Deprivation of Liberty Safeguarding cases' (15/3/12). From 15/3/12, it is no longer necessary for DOLS cases to be heard by High Court judges. The full text is as follows: 'The President and the Judge in Charge of the Court of Protection have determined that it is no longer necessary for all cases where the issue of Deprivation of Liberty Safeguarding is raised to be heard by a High Court Judge. The judges at the issuing court based in the Thomas More building of the Royal Courts of Justice will consider whether the issues raised in the case appear to require the consideration of a High Court Judge and allocate the case to the appropriate level of judge accordingly. The question of allocation may be reconsidered if and when further information relevant to the issue arises. If the judges at Thomas More, or their colleagues in any court on reconsideration of the appropriate level of judge to hear the case, are unclear on whether the case should be heard by a High Court judge, they should seek guidance from the Family Division Liaison Judge for the circuit which will be hearing the case. This change regarding the listing of Deprivation of Liberty Safeguarding cases has immediate effect.'
  • HMCTS, 'Court of Protection: Listing Policy - information for court users' (September 2011).

Practice Directions

Statutory forms

  • CTO treatment form. Form CTO12 section 64C(4A) - certificate that community patient has capacity to consent (or if under 16 is competent to consent) to treatment and has done so (Part 4A consent certificate).

Official Solicitor

These documents are available at: Official Solicitor

  • Martin Hickman, 'Cash crisis slows justice for the vulnerable at Court of Protection' (Independent, 4/2/12). This article includes the following statistic: 'When [the Official Solicitor] started in April 2008, he had 42 cases. That's gone up to 650 on his books currently.'
  • Official Solicitor, 'Official Solicitor: Court of Protection: Acceptance of Appointment as Litigation Friend' (21/2/12). This document sets out the OS's general acceptance criteria (evidence of lack of capacity, no-one else suitable and willing to act, funding available) and the new dispensation in relation to health and welfare cases (refusal to act 'in any except the most urgent cases, namely serious medical treatment cases and section 21A appeals, other than those brought by the relevant person's representative' and a waiting list for cases to be accepted). In relation to the OS's reaching 'the limit of his resources' in regard to health and welfare cases, a distinction is drawn between money (which has not reached the limit) and staffing levels (which have). See Official Solicitor
  • Westminster Hall debate on Litigation Friends (HC Deb, 21 March 2012, c244WH).

Care Quality Commission

These documents are available at: Care Quality Commission

  • CQC, 'The operation of the Deprivation of Liberty Safeguards in England, 2010/11' (March 2012). Key findings: '(1) 8,982 applications to deprive a person of their liberty were processed, of which 50 per cent were authorised. (2) Many services have developed good practice on the use of the safeguards, especially in involving people and their families in the decision-making process, but some were confused as to when restraints or restrictions on a person amounted to a deprivation of liberty. (3) Between a third and a quarter of care homes had not provided their staff with training on the safeguards, and in some cases only the manager had received training. (4) Most hospitals had held some training, but the proportion of staff involved ranged between 20-100 per cent.' See also: CQC, 'Summary: The operation of the Deprivation of Liberty Safeguards in England, 2010/11' (March 2012); Lucy Series, 'CQC's second monitoring report on the deprivation of liberty safeguards' (Small Places blog, 27/3/12).
  • Department of Health, 'Performance and Capability Review - Care Quality Commission' (gateway ref 17277, 23/2/12).
  • CQC, 'CQC inspector dismissed for gross misconduct' (27/4/12). 'A CQC inspector has been dismissed for gross misconduct after an internal investigation revealed that the impartiality of their regulatory judgements had been seriously compromised. This came to light as a result of whistle-blowing information to the CQC. No additional detail can be provided as CQC has now referred this matter to the police.'
  • CQC, 'Changes to consent to treatment for patients subject to a CTO' (May 2012). This page explains the change to the regulations.
  • Nina Lakhani, 'NHS watchdog claimed that whistleblower Kay Sheldon was "mentally ill"' (Independent, 15/8/12).
  • Andy McNicoll, 'CQC chief "sorry" for "very personal" comments on whistleblower's mental health' (Community Care, 12/9/12).

39 Essex Street newsletter

These documents area available at: 39 Essex Street COP Newsletter

  • 39 Essex Street, 'Court of Protection Newsletter' (issue 18, February 2012). The cases mentioned in this issue are: Re H; A Local Authority v H [2012] EWHC 49 (COP), [2012] MHLO 3, Re M [2011] EWHC 3590 (COP)Not on Bailii, Re JDS; Kevin Smyth v JDS (2012) COP 19334473 19/1/12, [2012] MHLO 4, Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1, DM v Doncaster MBC [2011] EWHC 3652 (Admin)., Re AH (Costs); AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 3524 (COP), SBC v PBA and Others [2011] EWHC 2580 (Fam)Not on Bailii. Also included is news that the Official Solicitor is currently unable to accept invitations to act except in (a) serious medical treatment cases, and (b) s21A appeals which are not brought by the relevant person's representative.
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 20, April 2012). The cases mentioned in this issue are: Austin v UK 39692/09 [2012] ECHR 459, [2012] MHLO 22, DD v Lithuania 13469/06 [2012] ECHR 254, [2012] MHLO 29, DL v A Local Authority [2012] EWCA Civ 253, [2012] MHLO 32, Long v Rodman [2012] EWHC 347 (Ch), [2012] MHLO 12, ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25, Seaton v Seddon [2012] EWHC 735 (Ch), [2012] MHLO 28, Coombs v Dorset NHS PCT [2012] EWHC 521 (QB), [2012] MHLO 13. Also mentioned are: CQC report on DOLS; Listing Deprivation of Liberty Safeguarding cases; COP Cases Online and all previous newsletters in one PDF document.
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 21, May 2012). The cases mentioned in this issue are: B v B [2010] EWHC 543 (Fam) — LB Haringey v FG (No. 1) [2011] EWHC 3932 (COP) — LB Haringey v FG (No. 2) [2011] EWHC 3933 (COP) — Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33 — Re JC; D v JC [2012] MHLO 35 (COP) — Re D; An NHS Trust v D [2012] EWHC 885 (COP), [2012] MHLO 47 — Re D (Official Solicitor's costs); An NHS Trust v D [2012] EWHC 886 (COP), [2012] MHLO 48 — Verlander v Rahman [2012] EWHC 1026 (QB), [2012] MHLO 49.
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 22, June 2012). The cases mentioned in this issue are: Re HA [2012] EWHC 1068 (COP)Not on Bailii, [2012] MHLO 67 — Re G [2012] EWCA Civ 431Not on Bailii, [2012] MHLO 52 — A Local Authority v DS [2012] EWHC 1442 (Fam), [2012] MHLO 68 — Sedge v Prime [2012] MHLO 66 (QB).
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 23, July 2012). The cases mentioned in this issue are: X Primary Care Trust v XB [2012] EWHC 1390 (Fam), [2012] MHLO 54 — Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP), [2012] MHLO 55 — Re BS; SC v BS [2012] MHLO 78 (COP) — R (KM) v Cambridgeshire CC [2012] UKSC 23, [2012] MHLO 57 — HSE Ireland v SF (A Minor) [2012] EWHC 1640 (Fam), [2012] MHLO 69 — LGO decision: Dorothy 10 013 715 [2010] MHLO 198 — LGO decision: Jones 10 010 739 [2010] MHLO 199.
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 24, August 2012). The cases mentioned in this issue are: Munjaz v UK 2913/06 [2012] MHLO 79 (ECHR) — XCC v AA [2012] EWHC 2183 (COP), [2012] MHLO 80 — Re SK [2012] EWHC 1990 (COP), [2012] MHLO 98 — NHS Trust v Baby X [2012] EWHC 2188 (Fam), [2012] MHLO 99 — Re T (Children) [2012] UKSC 36, [2012] MHLO 100 — LGO decision: Kent County Council 11 001 504 [2012] MHLO 101 — LGO decision: Kent County Council 10 012 742 [2012] MHLO 102 — Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP).
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 25, September 2012). The cases mentioned in this issue are: Re MW; LB Hammersmith and Fulham v MW [2012] MHLO 82 (COP) — Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam) — Davis v West Sussex County Council [2012] EWHC 2152 (QB), [2012] MHLO 83 — Further information is given under the following headings: Funding; MCA literature review; Consultation on new safeguarding power.
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 26, October 2012). The cases mentioned in this issue are: Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89 — Re J (A Child: Disclosure) [2012] EWCA Civ 1204. Further information is given under the following headings: Amendment of Schedule 3 to the MCA 2005; Serious Case Review into the murder of Martin Hyde; Draft Indian Rights of Persons with Disabilities Bill.
  • 39 Essex Street, 'Court of Protection Newsletter' (issue 27, November 2012). The cases mentioned in this issue are: CYC v PC and NC [2012] MHLO 103 (COP) — A, B and C v X, Y and Z [2012] EWHC 2400 (COP)Not on Bailii — An NHS Trust v (1) K and (2) Another Foundation Trust [2012] EWHC 2922 (COP) — An NHS Trust v Mr and Mrs H & Ors [2012] EWHC B18 (Fam) — Re AS (unreported, 7.12.11) — Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107, Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108, Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109 — SCC v JM & Ors (unreported, 31.8.12) — R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232 — Kedzior v Poland [2012] ECHR 1809, Application No. 45026/07) — Bureš v. the Czech Republic [2012] ECHR 1819 (Application No. 37679/08) — RP v UK 38245/08 [2012] ECHR 1796, [2012] MHLO 102. Further information is given under the following headings: Practice and procedure - liaison with the Home Office; Guide for social workers upon when to consider making an application to the Court of Protection.

Mind newsletter

These documents are available at: Mind (Charity)

  • Mind, 'Legal enewsletter' (Issue 11, April 2012). This newsletter contains: (1) Articles: (a) Making best interests decisions under the Mental Capacity Act 2005, (b) Listening to experience - Mind's report into acute and crisis mental healthcare, (c) The right to life under Article 2 of the ECHR, (d) The right to independent living - is it working?; (2) Case reports: (a) SSJ v RB [2011] EWCA Civ 1608, (b) Cheshire West and Chester Council v P [2011] EWCA Civ 1257, (c) O'Cathail v Transport for London [2012] EWCA Civ 92; (3) Updates: (a) Discrimination news, (b) Section 117 MHA 1983 and the Health and Social Care Bill 2012, (c) Changes to mental health tribunal rules and procedure, (d) Care Quality Commission, (e) Chartered Institute of Personnel and Development (CPID) Toolkit, (e) Proposed DVLA changes: fitness to drive, (f) Court of Protection.
  • Mind, 'Legal Newsletter' (Issue 12, October 2012). This newsletter contains: (1) Articles: (a) 358 days by Mark Neary; (b) Legal capacity and the UN Convention On The Rights Of Persons With Disabilities by Lucy Series. (2) Case reports: (a) GP v Derby City Council [2012] EWHC 1451 (Admin)Not on Bailii, [2012] MHLO 58; (b) X Primary Care Trust v XB [2012] EWHC 1390 (Fam), [2012] MHLO 54; (c) Munjaz v UK 2913/06 [2012] MHLO 79 (ECHR); (d) MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46; (e) X v Finland [2012] ECHR 34806Not on Bailii/04; (f) Discrimination case report. (3) Mental health and human rights update. (4) Legal Aid update. (5) News: (a) Care And Support Bill 2012; (b) Eligibility for IMHA support in Wales; (c) SOAD opinions for consenting patients on supervised CTOs; (d) Safeguarding vulnerable groups: changes to vetting and barring; (e) Mental Health (Discrimination) Bill; (f) Department Of Health Suicide Prevention Strategy; (g) Replacement of Equality and Human Rights Commission helplines.

Criminal cases

  • West Mercia Police, 'Bromsgrove Care Staff Sentenced For Neglect' (28/8/12). The victim, who had not been helped into bed or attended to in the evening, was found in the morning lying on the floor in the corner of his room in Breme House, partly dressed and in a distressed state, suffering from borderline hypothermia and complaining of hip pain. He subsequently needed to spend five weeks in hospital. For the offence of ill treating or wilfully neglecting a person without capacity, under s44 MCA 2005: Glen Walsh, aged 23 (date of birth 18/4/89), of Granary Road, Stoke Heath, Bromsgrove, and Gail Broadway, aged 38 (dob 19/3/74), of Lyttleton Avenue, Bromsgrove were both given four month jail sentences suspended for 12 months, 12 month community orders with supervision and told to carry out 125 hours of unpaid community work; Maxine Turbill, aged 46 (dob 15/9/65), of Grayshott Close, Sidemoor, Bromsgrove, was given a two month jail sentence suspended for 12 months and a 12 month community order with supervision; all three were each told to pay £500 costs and an order was made barring them from working with children under the age of 16 and vulnerable adults. They had denied the offence but were found guilty by a jury following a seven-day trial in July this year. See MCA 2005 s44
  • BBC, 'Winterbourne View: Care workers jailed for abuse' (26/10/12). Eleven staff were jailed for offences under s127 Mental Health Act 1983. The article sets out the sentences as follows: (1) Wayne Rogers, 32, of Kingswood, jailed for two years after admitting nine charges of ill-treatment; (2) Alison Dove, 25, of Kingswood, was jailed for 20 months for seven counts of abuse; (3) Graham Doyle, 26, of Patchway, was jailed for 20 months for seven counts of abuse; (4) Nurse Sookalingum Appoo, 59, of Downend jailed for six months for wilfully neglecting patients; (5) Nurse Kelvin Fore, 33, from Middlesbrough, also jailed for six months for wilfully neglecting patients; (6) Holly Laura Draper, 24, of Mangotsfield, pleaded guilty to two charges of abuse and was jailed for 12 months; (7) Daniel Brake, 27, of Downend, pleaded guilty to two charges of abuse and was given a six month jail sentence suspended for two years and ordered to carry out 200 hours of unpaid work; (8) Charlotte Justine Cotterell, 22, from Yate, pleaded guilty to one charge of abuse and was given a four-month jail term suspended for two years. Cotterell was ordered to do 150 hours of unpaid work and complete 12 months supervision; (9) Michael Ezenagu, 29, from Shepherds Bush, west London, admitted two counts of abuse and was given a six month jail sentence suspended for two years and ordered to carry out 200 hours of unpaid work; (10) Neil Ferguson, 28, of Emerson Green, admitted one count of abuse and was given a six month jail term was suspended for two years and ordered to carry out 200 hours of unpaid work; (11) Jason Gardiner, 43, of Hartcliffe, who admitted two charges of abuse, was given a four month jail term was suspended for two years and ordered to carry out 200 hours of unpaid work. See MHA 1983 s127
  • Avon and Somerset Police, 'Freedom of Information: Investigations at Winterbourne View Care Home (Investigations/Operations): Question' (17/8/12). This page gives some details of the investigation and prosecution. See MHA 1983 s127

Consultations

  • Department of Health: Consultation on low secure services and psychiatric intensive care (19/1/12 to 19/4/12). See Consultations

Legal Aid

  • LSC, 'Civil forms preview - February 2012' (5/1/12). A new CW1&2(MH) form becomes mandatory on 1/2/12. Other changed civil/family forms are : CW1, CW2(IMM), CLSMEANS1 & CK3, CLSAPP3, CLSAPP5, CLSAPP8, CLSAPP8A, CLSCLAIM1A Guidance & CLSCLAIM5A Guidance. Old versions signed and dated on or before 1/2/12 will be accepted until 29/2/12. See Legal Aid News
  • Jonathan Rayner, 'Judge slams quality of mental health advocacy' (Law Society Gazette, 19/1/12). See Law Society
  • LSC, 'Accreditation contribution scheme update' (28/3/12). From 2/4/12 the LSC will reduce the amount it contributes to the costs of mental health panel membership by 50% to £73.44; from 1/4/13 there will be no contribution at all. In recent weeks the Law Society's accreditation fees doubled to £500 plus VAT. See Legal Aid News
  • LSC, 'Headline intentions for future tenders' (February 2012). The main points are: (1) To implement scope changes in April 2013, the LSC plans to tender for face-to-face contracts over the next year in the following areas: Family; Asylum (including residual non-asylum work); Housing and Debt; Housing Possession Court Duty Schemes. (2) Existing contracts will amended, not terminated, in the following areas: Community Care; Mental Health; Actions Against the Police; Public Law. (3) Contracts for categories being removed from scope will be terminated. (4) Crime contracts will not be re-tendered before 2015. (5) A tender exercise for mediation work will be carried out to increase provision. (6) The telephone gateway (operator service and specialist telephone advice) plans, which are set out in detail, apply to community care but not mental health. (7) All supervisors in Public Law Children work may have to be Children Panel members, but there are no other changes to accreditation planned. (8) All providers must hold either SQM or Lexcel. See Legal Aid News
  • Sir Bill Callaghan, LSC Chairman, 'The Future of Legal Aid' (Speech to Liverpool Law Society, 8/2/12). This speech suggested that the matter-start system will be abolished in the next contract: 'The ongoing administration of new matter start allocations is now attracting particular attention because it takes a great deal of effort for both providers and LSC staff. The removal of a fixed allocation of new matter starts is one idea that has been put to us by representative bodies. Fixed allocations mean that more popular providers often run out of work and are refused an increase while other providers in the area have unused matter starts. A more open competition at client level would be one way of dealing with this issue and we think it should improve the quality of provision and client care. What we’re talking about here is licensing civil contract work rather than simply allocating a fixed number of new matter starts. There is still a lot discussion to be had about the detail of how this will work. But we envisage introducing this approach in April 2013 at the same time as the LSC is abolished and the new Executive Agency takes over.' See Legal Aid News
  • Legal Aid Handbook, 'LSC concede judicial review; specialist support reprieved' (1/3/12). The LSC conceded a JR claim brought by the Public Law Project of the decision, made without consultation, to abolish the specialist support service. Instead of the contracts expiring in March 2012 they will be extended until 30/6/12 pending a consultation process. The mental health specialist support service, run by Scott Moncrieff Solicitors, can be called on 0844 800 3364 from Monday to Friday 10am to 4pm. See Legal Aid News
  • Specialist Support Service. The LSC is consulting on their proposal to discontinue funding for the Specialist Support Service, as a result of conceding a judicial review of their decision to do so. The consultation runs until 11/5/12. The specialist support service for mental health is run by Scott Moncrieff Solicitors, and is available from Monday to Friday, 10am to 4pm, on 0844 800 3364. Related articles: Legal Aid Handbook Blog, 'LSC concede judicial review; specialist support reprieved' (1/3/12); Legal Aid Handbook Blog, 'Weekly round up' (1/4/12). See Consultations#Legal Services Commission
  • Specialist Support Service. Following a consultation process (held as a result of judicial review proceedings) the LSC has decided to discontinue the Specialist Support Service. Contracts will end on 6/7/12. See Consultations#Legal Services Commission
  • LSC, 'New Keycard 48 to be introduced from 9 April' (5/4/12). Keycard 48 reflects an increase in the standard dependants' allowances assessed for a partner or child living within the client's household; the new rates are applicable to new applications or further assessments made on or after 9 April 2012. Eligibility limits are unchanged. See Legal Aid News
  • LSC, 'Legal Aid Bill gets Royal Assent' (1/5/12). The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is due to amend the scope, eligibility and other aspects of the legal aid scheme on 1/4/13. In order to implement the changes, the Legal Services Commission will tender for new contracts for face-to-face advice and/or telephone advice in certain areas of law (not mental health or community care). The Commission will be replaced by the Legal Aid Agency, which will be an Executive Agency of the Ministry of Justice. See Legal Aid News

The reasoning given in a Costs Appeal Committee decision on a proposed Point of Principle on 17/10/12 would mean means-testing does not apply to matters where 'advice about the Tribunal and possible applications and timing of such' is provided to the client; however, the LAA has since published detailed guidance on the topic.

  • Legal Aid forms. The following Legal Aid forms relevant to mental health law are being updated from 1/10/12: CLSAPP1 (application for Legal Aid certificate), CLSMEANS1 (financial assessment form), MEANS1P (supplementary means assessment form for completion by prisoners), CLSMEANS2 (financial assessment form). All forms signed and dated on or after 1/10/12 must be new versions. Old forms signed before that date will be accepted until 30/10/12. New means assessment forms may be used immediately. See LSC, 'Masterpack Forms Change Guide October 2012' (28/9/12). See Legal Aid forms
  • Legal Services Commission, 'Guidance on the use of agents' (10/10/11). This document sets out the LSC's interpretation of the Standard Civil Contract 2010 that a firm with a high secure hospital contract may do the following, either separately or in combination: (1) use agents to allow firms without HSH contracts to represent HSH patients, or (2) use 30% of their own HSH matter starts at HSHs for which they do not have a contract. See Legal Aid

Statistics

  • Ministry of Justice, 'Annual statistics on Multi-agency public protection arrangements (MAPPA) eligible offenders' (16/3/12). Summary: 'This annual publication presents the number of MAPPA eligible offenders in England and Wales, and information related to these offenders, including a summary of the information provided in the MAPPA reports published by each of the areas.' See MAPPA
  • Ministry of Justice, 'Annual Tribunals Statistics, 2011-12: 1 April 2011 to 31 March 2012' (28/6/12). The following paragraphs, together with their associated tables, are relevant to mental health: (1) 23. The adjournment and postponement rates for Mental Health have remained at the same levels as 2010-11 (but had previously fallen probably as a result of improved case management processes). In 2011-12, the adjournment rate was 7%, whilst that for postponements was 13%. (2) 25. Of the 222,900 total jurisdictional sitting days, 72% were for fee-paid judiciary and 28% were for salaried judiciary. The ratio of fee-paid to salaried judiciary varies by jurisdiction. In 2011-12, 97% of judicial sitting days for Mental Health were for fee-paid judiciary, whilst this was 15% for the Asylum Support tribunal. (3) 40. For the Mental Health jurisdiction, the time from receipt to disposal has been examined for the three main case types. Unfortunately, the reporting system is not able to produce analysis by single week of age, thus there is some inaccuracy regarding the median and lower and upper quartiles. 41. Given the statutory requirement for Section 2 cases to be listed within 7 days of receipt, it is not surprising that this type of case has the shortest clearance times. The waiting times have reduced when compared with previous periods due to improvements made in administrative processes. See Statistics#Annual Tribunal Statistics
  • NHSIC, 'Guardianship under the Mental Health Act 1983 - England 2012' (18/9/12). Key facts: (1) The number of new Guardianship cases fell by 5 per cent between 2010/11 and 2011/12 from 347 to 331 cases. This is a much smaller reduction than between the previous two reporting years, which saw a notable fall of 21 per cent, possibly attributable to the introduction of new Mental Capacity Act Deprivation of Liberty Safeguards and Community Treatment Order legislation. The number of new cases in 2011/12 was 31 per cent lower than in 2002/03 when 477 new cases were reported. (2) This is the seventh consecutive decrease in the numbers of continuing cases. The number of cases continuing at the end of the year decreased by 26 per cent (from 923 in 2002/03 to 682 in 2011/12). The number of cases closed during the reporting year was 357; a decrease of 33 per cent since 2002/03 from 534. See Statistics
  • NHSIC, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards assessments - England, 2011-12, Third report on annual data' (17/7/12). Key facts: (1) There has been a year-on-year increase in the number of applications completed for Deprivation of Liberty Safeguards (DoLS) since the safeguards were first introduced in 2009/10. There were 11,393 applications in 2011/12, which represents a 27per cent increase on the 8,982 in 2010/11 and a 59 per cent increase on the 7,157 applications in 2009/10 (the first year of the new safeguards). (2) The number of people subject to a standard authorisation at the end of the quarter had increased each quarter since the safeguards were introduced, from 536 at the end of June 2009 to 1,976 at the end of December 2011. However, between the end of December 2011 and March 2012 the numbers decreased by 16 per cent, the first fall in numbers seen. (3) Dementia accounted for 53 per cent of all applications and this is reflected in the age profile of people who are the subject of DoLS applications. (4) Fifty-eight per cent of applications relate to people over 74 and the population-based rate of applications is much higher for over 74s and over 84s. For the over 84s the application rate is 25 in 10,000. This compares to 12 in 10,000 for 75-84 year olds, 3 in 10,000 for 65-74 year olds and just 1 in 10,000 for 18-64 year olds (working-age adults). (5) There are wide variations in population-based application rates by region. The East Midlands has the highest rate of applications at 51 per 100,000, whilst London had the lowest rate at just 17 per 100,000. These compare to a rate for England as a whole of 28 per 100,000.
  • NHSIC, 'Bi-annual analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) - October 2011 - March 2012' (12/6/12). Key facts: The figures show that between 01 October 2011 and 31 March 2012: (1) 5,933 authorisation requests were completed. 4,255 (71.7 per cent) were received by LAs and 1,678 (28.3 per cent) were received by PCTs. (2) 3,277 (55.2 per cent) of the completed requests resulted in an authorisation. - 2,400 (56.4 per cent) of the assessments received by a LA resulted in an authorisation. - 877 (52.2 per cent) of the assessments received by a PCT resulted in an authorisation. (3) Of the total assessments completed, a slightly higher proportion was for females 3,190 (53.8 per cent) than males 2,743 (46.2 per cent). (4) At the end of the reporting period, 31 March 2012, 1,667 people were subject to a current standard authorisation. 1,421 (85.2 per cent) followed a granted LA authorisation and 246 (14.8 per cent) followed a granted PCT authorisation. See Statistics
  • Statistics. NHSIC, 'Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment, Annual figures, England, 2011/12' (24/10/12). Key facts: (1) On the 31st March, 22,267 people were subject to detention or CTO restrictions under The Act in NHS and independent sector hospitals. This represents a 6 per cent increase since the previous year and includes 17,503 people were detained in hospital and 4,764 people subject to a CTO. (2) There were a total of 48,631 detentions in NHS and independent hospitals during 2011/12. This number was 5 per cent (2,283) greater than during the 2010/11 reporting period. Total detentions in independent sector hospitals increased by 21 per cent; a large proportion of this increase was attributable to a 45 per cent increase in uses of Section 2. (3) There were 4,220 CTOs made during 2011/12, an increase of 386 (10 per cent) since 2010/11. The number of CTO recalls increased by 30 per cent and it is estimated that around 70 per cent ended in a revocation (an increase of approximately 10 percentage points since last year). The rise in CTO recalls and revocations may be linked to the 6 per cent reduction (473) in uses of Part II Section 3 of The Act. (4) There were 15,240 uses of place of safety orders (Sections 135 and 136) in hospitals during 2011/12; this figure was 6 per cent (841) greater than during 2010/11. New experimental figures estimate that 8,667 orders were made in hospitals, accounting for at least 37 per cent of all place of safety orders. (5) This report also includes some new experimental analysis on The Act using data from the MHMDS quarterly data submission files as the data source. See Statistics

Books

These are available at: Books

  • Richard Jones, Mental Health Act Manual (15th edn, Sweet & Maxwell 2012). See Books

Other jurisdictions

Wales

  • Text of 16/1/12 Welsh circular email added: 'Further to the emails below, please find attached Welsh and English language versions of the Care and Treatment Plan template which was agreed by the National Assembly for Wales in December 2011. From 6 June 2012 mental health services in Wales will be required to deliver the care coordination and care and treatment planning provisions of Part 2 of the Mental Health (Wales) Measure 2010 and the Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011. The Care and Treatment Plan templates attached here meet the requirements of this legislation.' See Mental Health (Wales) Measure 2010#Update emails
  • CSSIW and HIW, 'Deprivation of Liberty Safeguards: Annual Monitoring Report for Health and Social Care' (February 2012). An information brief and table of statistics is also available. For a discussion of this report, see Mithran Samuel, 'Latest on the Deprivation of Liberty Safeguards in Wales' (Community Care Adult Care Blog, 13/2/12). See DOLS#HIW and CSSIW
  • Text of two Welsh Government updates added: 25/4/12 (Mental Health - Primary Care Referrals and Eligibility to Conduct Primary Care Assessments - Wales - Regulations 2012) and 24/4/12 (Laying of the Code of Practice to Parts 2 and 3 of the Mental Health (Wales) Measure 2010). See Mental Health (Wales) Measure 2010
  • Consultation on a Separate Legal Jurisdiction for Wales (27/3/12 to 19/6/12). The Welsh Government are consulting on making things even more unnecessarily complicated, by creating an entirely separate legal jurisdiction for Wales. See Consultations#Wales
  • The text of various Welsh Assembly emails has been added. 17/5/12: 'Making of the Mental Health (Primary Care Referrals and Eligibility to Conduct Primary Care Assessments) (Wales) Regulations 2012' — 9/5/12: 'The Mental Health (Secondary Mental Health Services) (Wales) Order 2012' — 9/5/12: 'Making of the Mental Health (Regional Provisions) (Wales) Regulations 2012' — 23/2/12: 'Consultation on draft Regulations under the Mental Health (Wales) Measure'. See Welsh Assembly emails

Scotland

  • Scottish Government, 'Multi Agency Public Protection Arrangements (MAPPA) National Guidance 2012 Version 1 and Covering Justice and Communities Circular JD/01/2012' (12/1/12). See MAPPA
  • Mental Welfare Commission for Scotland, 'An investigation into the response by statutory services and professionals to concerns raised in respect of Mr and Mrs D' (January 2012). This investigation into alleged abuse of powers of attorney concludes with recommendations for the council, NHS Board, Office of the Public Guardian, Law Society of Scotland, and the Scottish Government. See Mental Welfare Commission for Scotland.
  • Scott Blair, 'A Summary of Mental Health Caselaw' (21/3/12). Plagiarism is the copying of someone else's words or ideas without attribution, intentionally or otherwise. In any place where you reproduce anything from this website, please remember to acknowledge the source and provide a link back to the relevant page. Scott Blair, a Scottish Advocate, immigration judge, MHT for Scotland legal convener, and Glasgow University external examiner, spoke on a paper entitled 'A Summary of Mental Health Caselaw' at a seminar on 21/3/12. In three parts it deals with cases from Scotland, England & Wales, and the ECtHR: all 20 case summaries in the second part, and eight in the third part, incorporate case summaries copied from Mental Health Law Online without any attribution (see pages 55-60, 62, 65-66, 69, 105-109, and 111). The document ends '© Scott Blair, Advocate' but there is no legal entitlement to claim copyright for material copied from Mental Health Law Online. See Scotland
  • Valerie Mays, 'Mental Health Tribunal for Scotland: Case Digest' (December 2011). See Scotland
  • Scottish Law Commission, 'Discussion Paper on Adults with Incapacity' (discussion paper 156, 31/7/12). Consultation from 31/7/12 to 31/10/12. Extract from news release: 'The main questions raised by the Discussion Paper are: (1) Is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area? and (2) If not, how should it be changed? In particular, there is a need to decide if there should be a new procedure for authorising deprivation of liberty in residential care for adults with incapacity. If there should, what should that process be? And, very importantly, what sorts of care and what type of facilities should be regarded as involving deprivation of liberty for those who live there?' See Consultations#Scotland

Southern Ireland

  • Mary Carolan, 'Voluntary mental patient not being held unlawfully' (25/1/12). This article describes what seems like a Southern Irish 'Bournewood' case. See DOLS#Other links
  • Mary Donnelly, '"Voluntary" psychiatric patients need protection' (Irish Times, 9/2/12). This article, following on from a Southern Irish High Court decision that a voluntary patient was not held unlawfully despite making several requests to leave the locked unit, argues that it is highly doubtful that the Southern Irish Mental Health Act 2001 would withstand scrutiny under the ECHR, and that the statute contravenes the CRPD. See DOLS#Other links
  • Thomas Hammarberg, 'Rights-based approach needed in new law on legal capacity' (Irish Times, 1/3/12). This article argues that reform of the Southern Irish Lunacy Act 1871 should comply with the UN Convention on the Rights of Persons with Disabilities. See CRPD
  • Harry Kennedy, '"Libertarian" groupthink not helping mentally ill' (Irish Times, 12/9/12). See Southern Ireland

Other articles

  • Peter Bartlett, 'Sex, Dementia, Capacity and Care Homes' (2010) 31 Liverpool Law Rev 137. Abstract: 'This paper addresses the appropriate legal and policy approach to sexual conduct involving people with dementia in care homes, where the mental capacity of one or both partners is compromised. Such conduct is prohibited by sections 34–42 of the Sexual Offences Act 2003, but this article asks whether this blanket prohibition is necessarily the appropriate response. The article considers a variety of alternative responses, eventually arguing that clearer guidance regarding prosecution should be issued.' See Capacity to consent to sexual relations
  • Antal Szerletics and Tom O'Shea, 'The Deprivation of Liberty Safeguards' (Essex Autonomy Project Briefing, December 2011). See DOLS#Academic articles
  • Mental Disability Advocacy Center, 'Venice Commission backs right to vote' (19/12/11). In December 2011 the Venice Commission amended a key document to reverse an anomaly which allowed countries to disenfranchise those with 'genuine mental disabilities'. See Voting rights for detained patients
  • Jerome Taylor, 'Appeals soar after secret courts are opened to public' (Independent, 2/1/12). See DOLS#Other_links
  • The Commission on Assisted Dying, 'The current legal status of assisted dying is inadequate and incoherent...' (5/1/12). See Assisted suicide
  • Essex Autonomy Project, 'Deprivation of Liberty and DoLS Roundtable Digest' (26/1/12). Presentations were given on 16/1/12 by Munby LJ, Alistair Pitblado, Dr Ruth Cairns, Neil Allen, John Leighton and Lucy Series. See DOLS#Academic articles
  • Val Williams et al, 'Making Best Interests Decisions: People and Processes' (Mental Health Foundation, 31/1/12). The accompanying press release is entitled 'MCA Code of Practice needs revising to enable more effective best interests decisions to be made'. See Mental Capacity Act 2005 Code of Practice
  • Bevan Brittan, 'Patient privacy and the use of mobile phones in hospitals' (15/2/12). See Article 8
  • Anna Nilsson, 'Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities' (Council of Europe, CommDH/IssuePaper(2012)2, 20/2/12). This paper sets out the following recommendations: (1) Ratify the UN CRPD and its Optional Protocol. (2) Review existing legislation on legal capacity in the light of current human rights standards and with particular reference to Article 12 CRPD. The review should identify and remedy possible flaws and gaps depriving persons with disabilities of their human rights in relation to legislation concerning, inter alia, guardianship, voting rights and compulsory psychiatric care and treatment. (3) Abolish mechanisms providing for full incapacitation and plenary guardianship. (4) Ensure that persons with disabilities enjoy the rights to property, including the right to inherit property and to control their own financial affairs, to family life, to consent to or reject medical interventions, to vote, to associate freely and to access justice on an equal basis with others. No one should be automatically deprived of these rights because of an impairment or disability or due to being subjected to guardianship. (5) Review judicial procedures to guarantee that a person who is placed under guardianship has the possibility to take legal proceedings to challenge the guardianship or the way it is administrated as long as guardianship regimes still remain valid. (6) End 'voluntary' placements of persons in closed wards and social care homes against the person’s will but with the consent of guardians or legal representatives. Placement in closed settings without the consent of the individual concerned should always be considered a deprivation of liberty and subjected to the safeguards established under Article 5 of the European Convention on Human Rights. (7) Develop supported decision-making alternatives for those who want assistance in making decisions or communicating them to others. Such alternatives should be easily accessible for those in need and provided on a voluntary basis. (8) Establish robust safeguards to ensure that any support provided respects the person receiving it and his or her preferences, is free of conflict of interests and is subject to regular judicial review. The individual concerned should have the right to participate in any review proceedings along with the right to adequate legal representation. (9) Create a legal obligation for governmental and local authorities, the judiciary, health care, financial, insurance and other service providers to provide reasonable accommodation to persons with disabilities who wish to access their services. Reasonable accommodation includes the provision of information in plain language and the acceptance of a support person communicating the will of the individual concerned. (10) Involve persons with intellectual and psychosocial disabilities and the organisations representing them actively in the process of reforming legislation on legal capacity and developing supported decision-making alternatives. See CRPD
  • Owen Bowcott, 'Human rights groups call for end to surgical castration of sex offenders' (Guardian, 22/2/12). This article relates to the European Committee for the Prevention of Torture's call for voluntary surgical castration in Germany to be discontinued. In the UK only voluntary chemical castration is permitted, under s57 MHA 1983. See also: Council of Europe, 'Council of Europe anti-torture Committee publishes report on Germany' (press release, 22/2/12). See MHA 1983 s57
  • David Lock, 'Best Interest decision-making in the Court of Protection' (28/2/12). See Court of Protection
  • Mithran Samuel, 'Many deprived of liberty without safeguards, warn experts' (29/2/12). This article discusses deprivation of liberty in supported living, and the Official Solicitor's view that the Court of Appeal decisions in Cheshire and P & Q meant protections for people 'had gone backwards'. See DOLS#Other links
  • Royal College of Psychiatrists, 'CR171: Independent Advocacy for People with Mental Disorder' (February 2012). This document contains the following chapters: (1) Introduction and context; (2) Definition of independent advocacy; (3) Key principles in individual advocacy; (4) How do advocates work?; (5) Different types of advocacy; (6) Statutory advocacy; (7) Advocacy and equality; (8) Advocacy in different clinical areas; (9) Myth busting; (10) Useful contacts. See RCPsych
  • LGO, 'Fact Sheet S1: Complaints about adult care services' (updated 1/3/12); LGO, 'Fact Sheet S3: Complaints about councils that arrange and fund residential care placements' (updated 1/3/12). See Local Government Ombudsman
  • Health Bill amendment. Mind, 'Mind welcomes Health Bill amendment which protects vital aftercare for people who have been sectioned' (1/3/12); Hansard, HL Deb 29/2/12, vol 725 col 1364: transcript of House of Lords debate, in which the government agree to the proposed amendment. The only changes to s117 MHA 1983 to be made by clause 39 Health and Social Care Bill 2010-12 will relate to the change from Primary Care Trusts to clinical commissioning groups. See Mind (Charity)
  • Anna Raccoon, 'Rotten Borough? - the Vicious Borough of Hillingdon' (20/3/12). Mark Neary's application for occasional respite care in the form of a carer staying overnight was rejected: respite care is only available at the Positive Behaviour Unit (at which his son was unlawfully deprived of his liberty for a year). See Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP)
  • Jerome Taylor, 'Huge spike in use of controversial new 'deprivation of liberty' orders despite critics arguing they are not fit for purpose' (Independent, 18/7/12). See DOLS#Other links
  • Mental Health Foundation, 'Mental Capacity and the Mental Capacity Act 2005 - A literature review' (August 2012). Their summary: 'This literature review was carried out to collate academic literature relating to mental capacity issues and to the implementation of the Mental Capacity Act 2005. Mental capacity is the ability to make one’s own decisions. The Mental Capacity Act (MCA), which came into force in 2007 and covers England and Wales, provides a statutory framework for supporting people to make decisions for themselves wherever possible as well as processes and safeguards for decision-making involving people who lack capacity to make their own decisions because of illness, injury or disability. This review has collated a broad range of literature investigating various issues relating to mental capacity and the implementation of the MCA with the aim of identifying consistent themes, problem areas and any gaps in the existing literature. The largest proportion of literature relating to the MCA in England and Wales relates more specifically to issues with older people and people who have dementia.' See Mental Capacity Act 2005 Overview#Other external links
  • Mark Neary, 'Pay Back Time?' (Love, Belief and Balls Blog, 12/9/12). In this blog post, Mark Neary states that the effect of the London Borough of Hillingdon's decision to cease paying Housing Benefit will be that from 16/10/12 he and his son Stephen will no longer be able to live together in the borough. See Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP)
  • Jimmy Savile and Broadmoor. (1) Soundcloud: clips from Jerry Sadowitz's 1987 Gobshite album and 2011 Leeds gig (it will be interesting to see which allegations make the news: '... a gangster, a villain, a murderer, a rapist, a ... paedophile, a necrophiliac, a gerontophiliac, into ... bestiality, hung round with his pals in Broadmoor ...'); (2) Esther Addley, 'Jimmy Savile's Broadmoor role came with a bedroom and keys' (Guardian, 12/10/12); (3) Esther Addley, 'Jimmy Savile police investigate Broadmoor rape claims' (Guardian, 15/10/12); (4) Ether Addley et al, 'Jimmy Savile: nurse's Broadmoor claim adds to 'cascade' of abuse allegations' (Guardian, 11/10/12); (5) Richard Alleyne, 'Sir Jimmy Savile organised all-girl "therapeutic" parties at Broadmoor' (Telegraph, 16/10/12); (6) Larisa Brown, 'Jimmy Savile's older brother sacked from hospital after being accused of raping psychiatric patient' (Daily Mail, 14/10/12). See High secure hospital
  • Julian Mason et al, 'Compulsion under the Mental Health Act 1983: audit of the quality of medical recommendations' (2012) 36 The Psychiatrist 11 (subscription required). See RCPsych
  • The government have announced that from 1 April 2012, following the Court of Appeal decision in Cheshire West and Chester Council v P [2011] EWCA Civ 1257 and the subsequent High Court decision in Re C; C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP), the entire Mental Health Act 1983 will be repealed. The government spokesman, Avril Poisson, said: “Those subject to the Act lack capacity, as demonstrated by their inability to comply with voluntary inpatient treatment, and they should be treated equally to others who lack capacity. Recent case law on deprivation of liberty has shown that the relevant contrast when assessing ‘relative normality’ is not ‘the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead’ but rather ‘the kind of lives that people like X would normally expect to lead’ (Cheshire West, para 102). Periods of hospital inpatient treatment are normal, as an inevitable corollary of psychiatric disabilities: during those periods there are no realistic alternatives and no deprivation of liberty within the meaning of Article 5 of the European Convention.” She said that the 29-year-old Act would be abolished with immediate effect because it is no longer fit for purpose, and that the “so-called” deprivation of liberty safeguards would also come under scrutiny. “When I use a word,” she said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.” [Hope you enjoyed the April Fools' Day joke!]

Acknowledgements

Thanks are due to the following people for contributing case transcripts which were not available elsewhere. If you have anything which is not yet on the internet (e.g. court results or transcripts) then please send it in.

  • Tim Baldwin, Garden Court Chambers
  • Jonathan Butler, Deans Court Chambers
  • Oliver Carter, Irwin Mitchell Solicitors
  • Mathieu Culverhouse, Irwin Mitchell Solicitors
  • Sophy Miles, Miles & Partners LLP
  • Barbara Rich, 5 Stone Buildings
  • Alex Ruck Keene, 39 Essex Street

Publication information

Published January 2013

See Copyrights and Disclaimer