December 2010 update

Website/CPD

  • CPD questionnaires have been added for all months up to and including December 2010. For £50 you can earn 12 CPD credits online. See CPD scheme for further details.

Cases - summaries added

  • Public Interest Lawyers v LSC [2010] EWHC 3277 (Admin)(1) The verification process following the LSC's public law and mental health tendering process fell short of what was required by the Public Contract Regulations 2006. No objection was taken, nor could it be, to self-certification. But the self-certification supervisor forms did not require supervisors to confirm specifically the nature of the employment arrangements between them and the organisation or whether they had complied with the supervision standards set out in the contract, in particular the supervision experience or training course requirement (clause 2.28) and the 1:6 supervisor ratio requirement (clause 2.35). There may therefore be a number of firms with contracts who did not meet the supervision criteria, for example who have an external non-employed supervisor, or a part-time supervisor who is not employed for sufficient hours. The LSC must ensure, within a limited period, that all firms currently comply with the supervision standards; those who do not must have their contracts removed and the matter starts redistributed pro rata. (2) The disability equality duty challenge to the HSH contract under s49A Disability Discrimination Act 1995, as originally raised, was essentially a challenge to the consultation and the formulation of the tender proposals; as it was brought eight months after the proposals were available, it was out of time. However, the outcome of the of the tender exercise was only recently known: in particular, senior psychiatrists had given evidence of the distress changing solicitors would cause to a considerable number of patients in the light of the reduction in number of solicitors with contracts (of 98 existing providers, 43 did not bid; of those who bid, six firms were successful at Ashworth, and five at each of Broadmoor and Rampton). The outcome engaged the s49A duty so the LSC must gather information, consult with interested stakeholders, and have due regard to whether they need to take steps to ameliorate the result of the contracting exercise. (3) The public law tender, and the reduction in matter starts, met the LSC’s legal obligations under s4 Access to Justice Act 1999.
  • Re P (Scope of Schedule A1) (2010) COP 30/6/10 — #REDIRECT Re ADE (Scope of Schedule A1) (2010) COP 11821802
  • Seal v UK 50330/07 [2010] ECHR 1976The claimant issued his claim on the eve of the limitation period without seeking leave under s139; the House of Lords had found that his claim was therefore a nullity. (1) No breach of Article 6 was found because (a) the six-year limitation period pursued a legitimate aim, (b) s139 was to restrict access to the court only where the claim was manifestly unmeritorious, and its general aim of protecting those who exercise powers under that Act, including the police, pursued a legitimate aim, (c) the decision to strike out did not impair the very essence of the applicant's right of access to court and was not disproportionate: he had not explained his delay or failure to seek leave, and should bear the consequences of his own decisions, and in any event could continue his non-MHA claims (2) No breach of Article 6 taken with Article 14 was found because he did not argue it in any substance and, by not having argued it previously, had failed to exhaust domestic remedies.
  • R (SP) v SSJ [2010] EWCA Civ 1590The Secretary of State for Justice was entitled to rely on a medical recommendation under s47 which did not explicitly address the new 'appropriate treatment' test: (1) his case workers are not concerned to pursue medical reasoning, but only to see whether the expert had given some reasons which they considered adequate and did not conflict with the facts known or the statutory requirements; (2) he was entitled to give the reports a sensible meaning, and to satisfy himself that the 'appropriate treatment' test was met by reference to matters which had been in the report by necessary implication. [Summary based on All ER (D) report of ex tempore judgment]
  • AG's ref (nos 37, 38 and 65 of 2010) sub nom R v Khan [2010] EWCA Crim 2880Sentencing case which includes an illustration of the principle that there is no presumption that a hospital order will be made as a consequence of the satisfaction of the conditions in s37(2). The court noted that 'there were recognised symptoms of a depressive illness which in Mrs Khan's case were absent or equivocal. She was sleeping well; she could concentrate; she had been fit to give evidence but declined to do so; she was selective in her submission to treatment. These features of Mrs Khan's illness were relevant to her ability to serve a sentence of imprisonment which, as the judge found, was richly deserved. This was not a case in respect of which it could be argued that Mrs Khan's mental condition had any causative influence upon her offending.'
  • R v Maynard [2010] EWCA Crim 2854On appeal the conviction for murder had been reduced to diminished responsibility manslaughter, and a restricted hospital order was imposed. The appellant remained in prison 18 months later, largely because he had refused to cooperate in the belief that he would be released sooner if given a prison sentence. Based on his dangerousness, the gravity of the offence and the level of culpability, the court imposed a life sentence with a 10-year tariff.
  • SSWP v SS (DLA) [2010] UKUT 384 (AAC)The decision under challenge was stated to have been made unanimously when in fact it was made by majority. (1) There is no obligation on the First-tier Tribunal (Social Entitlement Chamber) to state whether a decision is made by a majority or is unanimous; however, any statement given must be accurate. (2) If the decision notice accurately records that the decision was by a majority then any statement of reasons must contain at least a brief statement of the reasons for the dissent of the minority member. (3) An inaccurate statement that a decision is unanimous amounts to an error of law. (4) The decision was therefore set aside and remitted to a freshly constituted Tribunal for reconsideration.
  • R (Khela) v Brandon MH Unit [2010] EWHC 3313 (Admin)This renewed application for permission to judicially review a Tribunal decision and to quash the RC's previous diagnosis was dismissed and the claim found to be totally without merit.
  • Re Freeman (2010) COP 7/9/10The donor signed Part B of the EPA instrument on 14 April 2006, but the attorney did not sign Part C until 3 October 2008. The Public Guardian refused to register on the ground that an instrument could not be a valid EPA unless the attorney had signed before 1 October 2007. Section 66(2) of the Mental Capacity Act 2005 provides that an EPA cannot be "created" after commencement. On the attorney's application the court declared that the instrument was not a valid EPA. (The attorney applied for a reconsideration but the Judge confirmed his earlier decision by an order made at a hearing on 28 February 2011.) (Note: The Public Guardian will register an EPA appointing joint and several attorneys if at least one attorney signed before 1 October 2007 even though other(s) did not, in which case registration will be limited to the attorney(s) who signed before that date.) [OPG summary - EPA case.]

Cases - transcripts added

  • Re KS (2010) COP 99162476 — Costs under the Court of Protection Rules. [Summary required.]
  • Re MM; City of Sunderland v MM [2011] 1 FLR 712 — P's partner's Article 8 rights were breached by the denial of contact between them. [Summary required.]
  • R (Faulkner) v SSJ [2010] EWCA Civ 1434 — Delay in Parole Board hearing led to Article 5(4) breach. [Summary required.]
  • Perrins v Holland [2010] EWCA Civ 1398 — Unsuccessful costs appeal. [No summary.]
  • R v Dunn [2010] EWCA Crim 2935Dunn had been convicted of four counts of ill-treating a person without capacity contrary to MCA 2005 s44 against three victims at the residential care home of which she was manageress. The judge had directed that 'a person without capacity' meant a person unable to make decisions for himself because of a disturbance or impairment of function of the mind or brain, that a diagnosis of dementia was not enough, that 'impairment' could be permanent or temporary, that capacity was presumed unless disproved on the balance of probabilities, and that this direction applied to all three victims. The defendant appealed on the basis that the direction on 'a person without capacity' was inadequate, failed to focus on the capacity of each victim to make a decision at the relevant time, and failed to identify the questions required by s3. Appeal dismissed. (1) The legislation, including s2, was convoluted and did not appropriately define the elements of the offence (including 'matter' and 'disturbance or impairment'). (2) Lack of capacity had to be decided on the balance of probabilities. (3) There was a disconnect between s44 (referring to 'persons without capacity') and the elaborate definition sections (ss2 and 3), but it was open for the jury to conclude that the decisions regarding care (the 'matter') were taken had been made because the victims lacked capacity. (4) It was unnecessary for the judge to complicate matters by referring to s3, and the conviction was safe. [Summary based on All ER (D) summary in absence of transcript.]

Cases - other

  • Summary of settled case added. Negligence claim concerning inappropriate dosage of lamotrigine settled for £450,000 (including £60,000 general damages) with liberty to apply for future damages. Information from: Alexandra Johnstone, 'Damages for Negligent dosage of Lamotrigine', RadcliffesLeBrasseur MH Law Briefing 160, December 2010. See Settled cases and forthcoming judgments

Legislation

  • The Mental Health (Wales) Measure 2010 received Royal Assent on 15/1/10. Mental Health (Wales) Measure 2010 — Preamble: 'A Measure of the National Assembly for Wales to make provision about primary mental health support services; the coordination of and planning for secondary mental health services; assessments of the needs of former users of secondary mental health services; independent advocacy for persons detained under the Mental Health Act 1983 and other persons who are receiving in-patient hospital treatment for mental health; and for connected purposes. This Measure, passed by the National Assembly for Wales on 2 November 2010 and approved by Her Majesty in Council on 15 December 2010, enacts the following provisions...'

Legal Aid

  • On 17/12/10 the LSC published details of the outcomes of each of the main civil tender processes, including for the mental health SHA tender and HSH tender. These documents list each firm and the number of matter starts awarded to them, sorted by procurement area; the lists may change as contract validation is still ongoing and some contracts are yet to be issued. The five firms for Ashworth are: Peter Edwards Law (125 matter starts), Duncan Lewis & Co (108), Jackson & Canter LLP (30), RMNJ Solicitors (30), Swain & Co (30). The five firms for Broadmoor are: Scott-Moncrieff, Harbour & Sinclair (120), Blavo & Co (94), Burke Niazi Solicitors (40), Gledhill Solicitors (30), Wolton and Co (30). The six firms for Rampton are: Scott-Moncrieff, Harbour & Sinclair (110), Cartwright King (96), Switalskis (75), Burke Niazi Solicitors (40), Donovan Newton Solicitors (30), Peter Edwards Law (30). Using totals across SHA procurement areas, the largest firms in the SHA tender are: Duncan Lewis & Co (3262), Blavo & Co Solicitors (2910), CMHT Solicitors (1305), Cartwright King (1155), Switalskis (860), Peters & Co (804), Guile Nicholas (759), Dozie & Co (732), Peter Edwards Law Ltd (710), Andrew Markham & Co (702), Scott-Moncrieff Harbour & Sinclair (653), Burke Niazi Solicitors (606), Thaliwal Bridge (581), Corper Solicitors (519), RMNJ Solicitors (506). See Legal Aid News
  • The LSC published 'Civil Tenders Update' on 13/12/10. In relation to the mental health JR it is stated that 'In the Public Interest Lawyers case, a wide range of challenges were made relating to the Mental Health and Public Law tenders. The majority of grounds of challenge were abandoned before the final hearing and others apart from one were rejected by the court.' This is misleading: the LSC lost both on verification and the general disability equality duty. Apparently most of the remaining challenges arising out of the 2010 tender process relate to individual tender or appeal decisions and are therefore unlikely to affect other contracts. See Legal Aid News
  • LSC news item 'Civil legal aid, bank statements and wage slips' published on 7/12/10. A reminder that in some circumstances, bank statements and wage slips are required for Legal Representation. See Legal Aid News
  • The LSC published their Annual Report and Accounts for 2009-10 on 30/11/10. See Legal Aid News

Other documents

  • New Tribunal Practice Statement added. Practice Statement: Delegation of functions to staff on or after 2 November 2010 — On 2/11/10 the Senior President of Tribunals issued a Practice Statement delegating the following functions to the appropriate administrative staff: (1) the issue of non-compliance directions in relation to late reports; (2) the giving of consent to a notice of withdrawal if (a) lodged by a legal representative, (b) received not less than seven days before the hearing, (c) there is no concurrent application/reference, (d) there is no reason to believe it is a 'tactical ploy'; (3) the correction of clerical mistakes, and accidental slips and omissions, in written decisions and directions, if clear and obvious. Within 14 days of the administrative decision being sent, the receiving party may apply for the decision to be considered by a judge. Now see Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 [2015] MHLO 36.
  • The Office of the Public Guardian published 'In The "Best Interests" Of Us All: The Public Guardian Board’s Annual Report 2010' on 8/12/10. See Office of the Public Guardian
  • On 24/11/10 the Dept of Health updated their 'Section 67 of the Mental Health Act' document, to clarify which Tribunal form should be completed when requesting a reference under s67(1). See Department of Health
  • The MoJ is consulting on 'Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders' from 7/12/10 to 4/3/10. These proposals 'aim to break the destructive cycle of crime and protect the public, through more effectively punishing and rehabilitating offenders and reforming the sentencing framework'. The proposals in relation to managing offenders with mental health problems are as follows: 'We want to ensure that our valuable resources are targeted on the people who are committed to changing their lives and being rehabilitated. In some cases, the criminal justice system is not the best place for them. This is particularly the case for offenders with mental health problems. We propose to: (a) work with the Department of Health and the Home Office to pilot and roll out liaison and diversion services nationally by 2014 for mentally ill offenders; and (b) increase the treatment capacity for offenders who present a high risk of harm where this is linked to severe personality disorders.' See Consultations#Ministry of Justice
  • The MoJ published 'A Platform for the Future' on 30/11/10, a consultation running until 25/2/11 about the proposed merger of Her Majesty’s Courts Service (HMCS) and the Tribunals Service. See Consultations#Ministry of Justice
  • The Office of Fair Trading is consulting on 'Mental Capacity Guidance' for creditors, relating to the issue of mental capacity as it impacts on borrowing decisions, from 6/12/10 to 4/3/11. See Consultations#Office of Fair Trading
  • The Mental Health Tribunal in England have published their 'Office Hours Over Christmas/New Year 2010/11'. The secretariat will be closed on Friday 24/12/10, in addition to the Bank Holidays (Monday 27/12/10, Tuesday 28/12/10, and Monday 3/1/11); on other days the office hours remain 0900-1700. See Mental Health Tribunal