August 2009 update

Caselaw

August 2009 cases

  • KM v MHTS (2009) case B186/09 — (1) In granting a Community Treatment Order, the Mental Health Tribunal for Scotland misdirected itself in law, so its decision was set aside: in considering Regulation 5 (permitted conflicts of interest between the two recommending doctors) the Tribunal applied a subjective test of what was in the RMO's mind, rather than objectively considering whether "failure to carry out the [independent second] medical examination would result in delay which would involve serious risk to the health, safety or welfare of the patient or to the safety of other persons" (Reg 5(1)(b)). (2) No facts were found by the Tribunal which could have justified a CTO so, rather than remitting the case to the Tribunal, the application for a CTO was refused.

July 2009 cases

  • R (Purdy) v DPP [2009] UKHL 45(1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy.
  • R (McKinnon) v SSHA [2009] EWHC 2021 (Admin)Because of the claimant's Asperger's Syndrome, extradition to the US would cause his mental health to suffer and would create risks including suicide; however, his case did not approach Article 3 severity: the SSHA's decision to order extradition, and the DPP's decision not to prosecute in the UK (although he had admitted certain offences), were lawful.
  • R (Chahboub) v SSHD [2009] EWHC 1989 (Admin)Failed asylum seeker's challenge to detention in prison rather than immigration centre. (1) The first of the two periods of detention was outside the 3-month JR time limit so permission was refused in respect of that period. (2) The policy with respect to whether mentally ill people should be detained did not apply to the claimant, who had a personality disorder rather than mental illness. (3) The detention was justified under common law (intention to deport, detention for reasonable period, deportation possible in reasonable period, reasonable diligence to deport). (4) His transfer from the immigration centre to prison, because he had proved unmanageable, was in accordance with policy. (5) The manner of his detention in prison (required to share cell with convicted prisoner, dietary requirements ignored, 23-hour lock-up, limited access to telephone and visitors) was contrary to policy and breached his Article 5 rights.
  • R v C [2009] UKHL 42For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.
  • Perrins v Holland [2009] EWHC 1945 (Ch)The testator had testamentary capacity at the time that he gave instructions for the will, but not when he executed it; however, when he executed the will he believed that it gave effect to his previous instructions, it did in fact do so, and the instructions remained his testamentary wishes. Therefore the court pronounced in favour of the will.
  • Rabone v Pennine Care NHS Trust [2009] EWHC 1827 (QB)The Article 2 "Osman" operational obligation to protect life applied to detained patients, but not to the claimant who was an informal patient on leave from the hospital at the time she committed suicide. [Caution.]

Older cases

  • Re GC [2008] EWHC 3402 (Fam)‎‎(1) The principle governing State intervention under the Mental Capacity Act 2005 is the same as under the Children Act 1989, namely that the State does not interfere in the private family life of an individual unless the continuance of that private family life is clearly inconsistent with the welfare of the person whose best interests the court is required to determine. (2) The closer the person is to having capacity the more weight his views are to be given. (3) Contrary to the professional evidence, it was in GC's best interests to return home as an interim measure: this decision was reached having regard to (a) the concept of least intervention, (b) GC's consistently-expressed wishes and feelings, (c) a finding that a trial at home was necessary and now was the best time, and (d) the importance of the emotional, as opposed to physical, component of best interests to very elderly (or young) people.
  • Re F (2009) COP 11649371The "gateway" test for the engagement of the court’s powers under s48 (Interim orders and directions) is lower than that of evidence sufficient, in itself, to rebut the presumption of capacity. The proper test in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made.
  • R (Krishnapillai) v SSHD [2008] EWHC 2737 (Admin)Mental health problems can engage Article 8 and render it disproportionate to separate a failed asylum seeker from the support of his family (in this case the mental health element involved PTSD, depression and the threat of suicide); however, deportation in this case was lawful.

Legislation added

  • Hague Convention on the International Protection of Adults 2000 — "This Convention was drawn up by the Hague Conference on Private International Law and unanimously adopted by those of the Member States present at its plenary session on 2 October 1999. Its purpose is to improve the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not able to safeguard their own interests. It does so by laying down rules on jurisdiction, applicable law and international recognition and enforcement of protective measures which are to be respected by all States, thus reducing the potential for confusion and conflict. There is also provision for administrative co-operation to support the workings of the Convention. 'Adult' is defined in Article 2 of the Convention as a person who has reached the age of 18 years." (text from FCO explanatory memorandum)
  • Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005 — These Scottish Regulations provide for the circumstances where there is, or is not, to be taken to be a conflict of interest, and where such a conflict of interest is permitted, in relation to certain medical examinations carried out under the Mental Health (Care and Treatment) (Scotland) Act 2003. In force 5/10/05.

Other documents etc

Dept of Health

  • Lists of Supervisory Body contact details (PCTs and local authorities) updated on 13/8/09. See DOLS
  • Consultation "Safety and Security Directions – High Secure Psychiatric Services" runs from 10/8/09 to 2/11/09. See Consultations
  • "Reference guide to consent for examination or treatment, second edition 2009" published. See Consent to treatment

CQC

  • "Consultation on the CQC mental health strategy" deadline has been extended from 17/8/09 to 7/9/09. See Consultations
  • Consultation "Help shape the regulation of health and adult social care services" runs from 1/6/09 to 24/8/09. See Consultations

Law Society, Tribunals Service, etc

  • New guidance published. Law Society practice note on representation before Mental Health Tribunals — This practice note advises on providing legal advice to clients appearing before the First Tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales. It has information under the following headings: (1) Introduction; (2) The right to legal advice and representation before the tribunal; (3) Communication with the client; (4) Taking instructions; (5) Your duties towards your client; (6) Good tribunal practice; (7) Representing children and young people before the tribunal; (8) More information. It was last updated on 27/5/16 to cover recent case law including YA (see para 4.1), Care and Treatment Reviews (see para 6.2.1) and includes other more minor amendments.
  • Hearing questionnaire added. Mental Health Tribunal hearing questionnaire — [This page is out of date.] The Mental Health Tribunal in England began using a hearing questionnaire on 27/4/09 but its use has died out (new forms are the subject of consultation). It was used in restricted cases and sent out with the letter confirming the hearing date. It was used by the full-time presidents for case management purposes, especially in relation to the use of independent evidence and avoiding postponements once the hearing has been listed. If the questionnaire was not returned then directions could be issued. There is a duty to "co-operate with the Tribunal generally" in Tribunal rule 2(4).
  • The LSC announced on 31/7/09 that it will postpone the tender for the new civil legal aid contracts until late 2009 or early 2010, the new 3-year contracts will commence in October 2010, and current contracts will be extended for 6 months. See Legal Aid#Changes
  • The MoJ consultation "Legal Aid: refocusing on priority cases" runs from 16/7/09 to 8/10/09. See Consultations

Other

  • Met Police news bulletin "Nurse conviction makes legal history" (dated 12/8/09) link added. See MCA 2005 s44
  • The Scottish Government are consulting on the review of the Mental Health (Care and Treatment) (Scotland) Act 2003, from 7/8/09 to 6/11/09. They are also consulting on the future structure of the Mental Welfare Commission for Scotland, from 1/8/09 to 25/9/09. See Mental health law in Scotland

Website