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August 2010 update

Case law - new summaries

  • WS v MHTS [2010] CSIH 74WS had been transferred from an English medium secure unit to the state hospital at Carstairs in Scotland under s80 MHA 1983. (1) His appeal to the MHTS under s220 Mental Health (Care and Treatment) (Scotland) Act 2003 ("Appeal to Tribunal against transfer under section 218 to state hospital") was misconceived because he had not been transferred under s218. (2) The appropriate remedies would have been (a) a judicial review in England of the English s80 decision or (b) an appeal under the Scottish s264 ("Detention in conditions of excessive security: state hospitals"). (3) An order under s264 would oblige the Health Board to search for suitable accommodation in England if necessary.
  • Re LD; London Borough of Havering v LD and KD [2010] EWHC 3876 (COP)(1) The practice of the Court to appoint personal wefare deputies only relatively rarely, in the most extreme cases, is the correct approach, considering the intention of s16(4). Specific decisions of the court are to be preferred to the ongoing appointment of a deputy and when a deputy must be appointed it is to be for the narrowest scope and the shortest time reasonably practicable in the circumstances. (2) The local authority's application to be appointed as LD's personal welfare deputy until further order was rejected: the case was not especially unusual or difficult; residence had recently been resolved by the court, and the other issues were either routine (and thus subject to s5) or very major (requiring court scrutiny); the absence of a deputy would not cause problematic delay in decision-making, as as court orders can be obtained very swiftly, and was not preventing care or services being provided; mere convenience to a local authority in avoiding future court applications is not relevant.
  • AH v West London MH NHS Trust [2010] UKUT 264 (AAC)(1) The normal practice that Tribunal hearings are held in private is justified; and the relevant factors in deciding whether to direct a hearing in public are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (2) The First-tier Tribunal decision not to grant a public hearing was set aside. (3) The question will be determined by the Upper Tribunal following a further hearing (at which the Department of Health is invited to appear) for the purpose of considering further evidence as to: (a) the practicalities and potential cost of providing a public hearing (including by use of video facilities); (b) how often public hearings have been applied for in the last five years, the number of occasions on which they have been granted and in practice been held, and how they have been managed; (c) (so far as readily available) practices elsewhere in the United Kingdom, in Europe, and in other common law countries.
  • Re D (Statutory Will); VAC v JAD [2010] EWHC 2159 (Ch)(1) There is no presumption that the Court of Protection should not direct the execution of a statutory will in any case where the validity of an earlier will is in dispute. Such an approach would tend to elevate one factor (a previous written statement) over all others, contrary to the structured decision-making process required by the MCA 2005. (2) On the facts, the doubts about the validity of the previous wills were sufficient to conclude that D's best interests would be served by the execution of a statutory will to prevent her estate being eroded, and her memory being tainted, by a bitter contested probate dispute.
  • ‎Re Lodge (2010) COP 6/8/10Unfortunately by mistake the donor signed Part C and the attorney signed Part B of the EPA instrument. On the attorney's application the Court held that the donor's failure to execute the instrument correctly was a material defect and it was not a valid EPA. The attorney applied for a reconsideration of this order. By an order of the Senior Judge made on 14/3/11 the previous order was affirmed. [OPG summary - EPA case - transcript available.]
  • ‎Re Cotterell (2010) COP 3/8/10The donor appointed two attorneys to act jointly and severally, and imposed the following restriction: "My second named attorney may only act as my attorney if a general medical practitioner certifies that I am mentally incapable of managing my affairs and in this instance, if my first attorney is alive and mentally capable, may only act on my behalf in relation to a sale of the property which at that time is deemed to be my principal place of residence. If however my said first named attorney has passed away or is deemed by a general medical practitioner as incapable then my second named attorney may act generally on my behalf subject to no restrictions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.]
  • ‎Re Porter (2010) COP 26/7/10The donor appointed his wife and two children as attorneys, to act jointly and severally. He added the following restriction: "My wife may act alone during her lifetime and whilst she is mentally capable. My children shall act jointly." On the application of an attorney the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.]
  • G v E, Manchester City Council and F [2010] EWHC 2042 (Fam)(1) The arguments in favour of publication of the local authority's name (openness and accountability) were truly compelling: they amounted to a "good reason" and the balancing exercise came down in favour of publication. It would be a different matter if there was any significant risk that the family might be identified, but Manchester is a large city. (2) It would inappropriate and unfair to name the social workers, because responsibility for what went wrong rested at a much higher level, including the failure to provide any or any adequate training on the introduction of the DOLS. (3) Neither the company running the establishment nor its manager would be identified: (a) they were not represented when the criticisms were made or identification was discussed; (b) it had not been necessary to make findings on the criticisms, the appropriate course being for the OS to raise the issue with the CQC which has some responsibility for such establishments; and (c) crucially, it would lead to a significant risk of the family being identified. (4) In an unreported judgment in May it was ordered that E should return to F's care immediately, and residence and family contact there had been successful. (5) A further judgment will be delivered dealing with: (a) arrangements as to E's future care; (b) whether to appoint G and F as deputies; and (c) whether the OS should be replaced as E's Litigation Friend. (6) A further hearing will deal with: (a) whether the Court of Protection can award damages for human rights breaches; if so, whether to do so; if not, whether to leave or transfer that claim to another jurisdiction; and (b) whether to make a contact order against MCC and if so on that terms.
  • Re RC (Deceased); SC v LB Hackney [2010] EWHC B29 (COP)LBH had successfully applied for a property and affairs LPA to be declared invalid and for residence orders; costs were awarded against the donee, SC; the costs order was appealed; subsequently RC died. (1) The court could hear the appeal against costs (but not other issues) after RC's death under its residual jurisdiction; this was so despite the only relevant rule being narrower in scope than to allow this. (2) The judge was wrong to hold that "the LPA was a personal welfare LPA, and therefore its general rule would fall within rule 157". (The general rules are rule 156, that P pay for property and affairs proceedings, and rule 157, that there be no order for costs in personal welfare proceedings.) (3) As a general rule the incidence of costs in cases where there is an LPA for health and welfare should not necessarily differ from the rule in property and affairs cases, subject to the provisions of rule 159 (departure from general rule if justified in circumstances). (4) Reservations were expressed about the manner in which the LPA was declared to be invalid; also, contrary to the judge's findings, SC did not provoke all the issues which she lost. (5) As well as being wrong, the costs decision was unjust: SC was not properly forewarned about the possibility of an adverse costs order; the judge did not consider SC's ability to pay; he did not fully consider the nature of the relationship between SC and RC and the fact SC acted in good faith; the judge was wrong to say this was an exceptional case, as although litigants like SC would try the patience of a saint they were not untypical in the Court of Protection. (6) Accordingly, the general rule (r157) should apply and the court should only depart from the general rule where the circumstances so justify, for instance clear bad faith, where there has been a careful costs warning and a consideration of ability to pay. (7) The order that SC pay LBH's costs was set aside and in its place no order for costs was made.
  • Re MN [2010] EWHC 1926 (Fam)Whether (and, if so, according to what criteria) the Court of Protection should recognise and enforce an order of a court of competent jurisdiction in California requiring the return of MN to that state. (1) The basis of jurisdiction is habitual residence: the key to that decision is whether the agent (like an English deputy) had authority to remove MN to England. (2) If she had, then MN is likely habitually resident in England and the English court has jurisdiction. The Californian order could only be enforced if indicated by a full best interests enquiry on the evidence. (3) If she did not have the authority, then MN remains habitually resident in California and its courts should exercise primary jurisdiction. The Californian order would likely be recognised and enforced, unless the carrier or the independent doctor advised otherwise; the best interests enquiry would be confined to the journey; however, a full best interests jurisdiction could be adopted at the invitation of the Californian court.
  • BB v AM [2010] EWHC 1916 (Fam)(1) BB was not ineligible to be deprived of her liberty within the meaning of Case E of MCA 2005 sch 1A as the psychiatric evidence was that the criteria under s2 or s3 MHA were not made out. (2) In relation to whether or not there was a deprivation of liberty: on one hand (a) BB was under sedation; staff exercised control over her care, movements, assessments and treatments; staff also exercised control over her residence and the contacts she had with other people; her family were hostile to her placement; the court was refusing to sanction the discharge of BB into the care of her parents pending the conclusion of investigations being carried out by the police; on the other hand (b) BB was apparently happy where she was; she had a degree of freedom within the hospital; in addition if she asked to leave, she was allowed to do so, although only under the supervision of accompanying staff; in conclusion (c) she was being deprived of her liberty as she was away from her family, in an institution under sedation in circumstances in which her contact with the outside world was strictly controlled, her capacity to have free access to her family was limited, now by court order, and her movements were under the strict control and supervision of hospital staff.
  • D County Council v LS [2010] EWHC 1544 (Fam)The original decision in this case, that LS had capacity to consent to sexual relations and marriage, was revisited in light of the House of Lords decision in R v C. (1) The MCA statutory scheme should be applied in preference to the previous civil case law; the approach in R v C clearly applied to both the civil and criminal arenas, and was consistent with s3 MCA, so would be followed. (2) Capacity requires not only an understanding of the relevant information but also the ability to retain and weigh it in the balance: therefore capacity to consent to sexual relations is person- and situation-specific, and there may be factors (such as irrational fear) impeding or undermining a person's capacity to make a choice. (3) This approach applies equally to marriage. (4) On the facts, the conclusion about capacity was the same. [Caution.]
  • Re Mark Reeves (2010) COP 5/1/10The Council, relying on a recent Court of Appeal judgment in relation to double recovery, compelled P's deputy to make an application to the Court of Protection for authorisation to apply for public funding. (1) The application was misconceived in seeking to apply the recent CA decision to this case which had been determined six years previously; (2) the Court of Protection is not an appropriate forum to adjudicate on double recovery in personal injury proceedings.
  • Gale v Gale [2010] EWHC 1575 (Ch)The 2002 and 2004 codicils to a will were forgeries; also, the testatrix did not have testamentary capacity at the time of the 2004 codicil; in any event, neither was signed on the date it purported to be signed but was backdated from a time when the testatrix did not retain testamentary capacity.
  • A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam)(1) The test for capacity to make decisions as to contraceptive treatment should be applied so as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues"), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each. (2) Questions do not need be asked as to the woman's understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care. (3) Mrs A did understand the proximate medical issues. (4) However, her decision not to continue taking contraception was not the product of her own free will: she was unable to weigh up the pros and cons of contraception because of the coercive pressure under which she had been placed both intentionally and unconsciously by Mr A. (5) The judge made no order as to Mrs A's best interests, preferring that an attempt be made to achieve a capacitated decision from Mrs A, through 'ability-appropriate' help and discussion without undue contrary pressure from Mr A. (6) The court has a wide inherent jurisdiction to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions, but on the facts no injunction against Mr A was necessary.
  • R (Mwanza) v LB of Greenwich [2010] EWHC 1462 (Admin)The claimant was an illegal overstayer who tried to use a s3 admission eight years earlier to obtain free accommodation. (1) An after-care service under s117 must be a service that is necessary to meet a need arising from a person's mental disorder. It does not cover any and all services simply because those services do or may prevent deterioration of relapse of a mental condition. Employment and ordinary accommodation are common needs which do not arise from mental disorder, although mental disorder may give rise to a need for assistance in finding them. However, as a matter of law, ordinary accommodation could fall within s117, although it is difficult readily to envisage any practical examples. (2) On the facts, there could be no duty under s117 to provide what was sought. (3) In any event, eight years earlier a lawful decision had been made to discharge the s117 responsibilities of the local authority and the Trust, so no s117 duty arose. (4) Furthermore, it would be inappropriate to extend the time for this judicial review claim by eight years: the claimant was aware of the discharge decision and had taken no action. (5) The claimant was not in need of "care and attention" under s21 National Assistance Act 1948, as he was looked after by his wife and only needed accommodation. (6) In any event, the council were forbidden from providing s21 assistance because neither he nor his wife had leave to remain and refraining from providing assistance could not arguably breach their human rights.
  • Henderson v MHTS (2010) ScotSC xA Curator ad litem appointed by the Mental Health Tribunal for Scotland is appointed to protect and safeguard the interests of the patient during particular proceedings before the Tribunal and has no standing to appeal that Tribunal's decision to the Sheriff Principal.

Case law - other

  • The "Cases pending before Three-Judge Panels" page on Tribunals Service website was updated on 20/8/10 with the following information. Whether it is lawful to conditionally discharge a restricted patient on conditions that he reside in a care home and not leave it without an escort - an oral hearing will be held on 29/9/10. See R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)
  • Alex Ruck Keene and Victoria Butler-Cole of 39 Essex Street published "Court of Protection Update: August 2010". See Court of Protection
  • Case information added. See G v E, Manchester City Council and F [2010] EWHC 2042 (Fam)(1) The arguments in favour of publication of the local authority's name (openness and accountability) were truly compelling: they amounted to a "good reason" and the balancing exercise came down in favour of publication. It would be a different matter if there was any significant risk that the family might be identified, but Manchester is a large city. (2) It would inappropriate and unfair to name the social workers, because responsibility for what went wrong rested at a much higher level, including the failure to provide any or any adequate training on the introduction of the DOLS. (3) Neither the company running the establishment nor its manager would be identified: (a) they were not represented when the criticisms were made or identification was discussed; (b) it had not been necessary to make findings on the criticisms, the appropriate course being for the OS to raise the issue with the CQC which has some responsibility for such establishments; and (c) crucially, it would lead to a significant risk of the family being identified. (4) In an unreported judgment in May it was ordered that E should return to F's care immediately, and residence and family contact there had been successful. (5) A further judgment will be delivered dealing with: (a) arrangements as to E's future care; (b) whether to appoint G and F as deputies; and (c) whether the OS should be replaced as E's Litigation Friend. (6) A further hearing will deal with: (a) whether the Court of Protection can award damages for human rights breaches; if so, whether to do so; if not, whether to leave or transfer that claim to another jurisdiction; and (b) whether to make a contact order against MCC and if so on that terms.

Legal Services Commission

  • CLS News "Update on accreditation contribution scheme" published on 18/8/10. From 14/10/10 the LSC will only pay £146.88 towards accreditation and re-accreditation to the Law Society Mental Health panel (these figures are from a document not on the LSC website). The rationale is that this is 50% of the cost. See Legal Aid News
  • The LSC published "Civil Contract 2010 Verification: Frequently Asked Questions" on 23/8/10. See Legal Aid News
  • LSC Mental Health Newsletter August 2010 was published on 13/8/10. This Legal Services Commission newsletter contains information under the following headings: (1) Running record of costs; (2) Level 1 rates; (3) Application turnaround; (4) Application for prior authorities. It is stated that "If your client has applied to the Tribunal before your initial attendance, then all work undertaken on the date you first attend with the client is deemed to be level 1 and must be claimed at Legal Help rates" but this is inconsistent with specification paragraphs 12.18-12.20 and Principles document paragraph 2. The small print contains the following gem: "The views expressed in this publication may not be the views of the Legal Services Commission." See Legal Aid
  • LSC Tendering process news - 12/8/10: "The appeals process for Mental Health services for Strategic Health Authorities is now complete. Assessment of tenders for work at High Security Hospitals is ongoing and we will notify applicants of the outcome of this tender week beginning 16 August". See Legal Aid
  • CLS News: "Financial stewardship visits – guidance published". On 5/8/10 the LSC published a draft version (marked "version 5" and "first edition" and dated April 2010) of the manual used by "relationship" managers for their "financial stewardship visits". The areas dealt with are: (1) Obtaining and retaining evidence of means (civil only); (2) Case splitting and duplicate claiming (civil only); (3) Family level 1 and 2 fees; (4) Evaluating publicly-funded WIP (civil only); (5) Management of certificated payments on account; and (6) Validation of tolerance claims. It discusses how visits are organised and potential outcomes, including contract sanctions. See Legal Aid

Mental Health Tribunal

  • The Tribunal secretariat have introduced new application and referral forms, and a guidance document. They state that from 1/10/10 incomplete application forms will be rejected unless satisfactory reasons are given, and ask that duplicate forms are not sent. See Tribunal forms
  • On 30/7/10 the Tribunals Service published "Consultation on changes to the listing process: Summary of Consultation Responses". See Consultations#Mental Health Tribunal

Other updates

  • New page added. Legal Ombudsman — From 6/10/10 any complaints about a solicitor in England or Wales will be made to the Legal Ombudsman instead of the Legal Complaints Service.
  • Link to BBC programme "Madness in the Fast Lane" added (broadcast 10/8/10). Tabloid television about a mentally-ill lady's progress through the justice system. See Mental health law in the media
  • Link to Channel 4 News item "Family condemn 'barbaric' council over removal" added (broadcast 5/8/10). This relates to the G v E series of cases. See Mental health law in the media
  • 04/08/10: On 5/7/10 the National Mental Health Development Unit published seven "Mental Health Factfiles". These are short documents outlining key facts and figures: (1) Mental health and employment, (2) Mental health and housing, (3) The costs of mental ill health, (4) Public mental health and well-being, (5) Equalities in mental health, (6) Stigma and discrimination in mental health, and (7) Ensuring greater access to talking therapies. See NMHDU
  • On 29/7/10 the Legislation.gov.uk website was launched. It will replace the OPSI and Statute Law Database websites once the content has all been transferred across. See Legislation.gov.uk
  • The Report of the ad hoc Court of Protection Rules Committee was published on 2/8/10. The proposals include: separate procedures for non-contentious property and affairs applications, contentious property and affairs applications, and health and welfare applications; new forms and amendments to the rules and practice directions for that purpose; some non-contentious property and affairs applications being dealt with by court officers; separate applications for permission being abandoned. See Court of Protection Rules 2007
  • NI Executive Press Release: "McGimpsey launches EQIA for new Mental Capacity Bill and proposals following McDermott case" issued 30/7/10. (1) The Equality Impact Assessment relates to the proposal for a single mental health and capacity Bill. (2) The McDermott case involved two paedophiles who were found unfit to be tried (under article 49 Mental Health (Northern Ireland) Order 1986) but instead of being admitted to hospital under article 50A(2)(a) were given two-year supervision and treatment orders under article 50A(2)(b); the proposal is unclear but appears to be to bring the article 3 definitions of mental disorder etc into line with the current English definitions. See Northern Ireland

Website/CPD

  • CPD questionnaires have been added for all months up to and including July 2010. For £50 you can earn 12 CPD credits online. The subscription can straddle two CPD years: for instance, if you only need 4 more hours this year, you can do 4 tests at any time before November and 8 tests after. See CPD scheme
  • The Wikimentalhealth CPD scheme is accredited with the SRA for solicitors, but not the BSB for barristers; however, barristers can take part on the following terms. Established Practitioners (barristers over 3 years' call) must accrue 12 CPD hours per calendar year. Only 4 hours must be accredited by the Bar Standards Board; the remaining 8 can be claimed as unaccredited. Therefore, Established Practitioners can still subscribe but the CPD hours will have to be claimed as unaccredited. Practitioners would have to satisfy the 4 accredited hours via other means. The subscription period can straddle calendar years, so it is still possible to obtain 12 points per subscription. See CPD scheme
  • The problem with the Paypal and Google Checkout links on the CPD scheme has been fixed. See CPD scheme
  • See August 2010 chronology for this month's changes to the website in date order.
  • On 31/8/10, the website had 808 categorised cases.