February 2017 chronology

See February 2017 update for a thematic summary of these changes.

  • 23/02/17 (4): Upper Tribunal capacity case. PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity." The Tribunal panel must keep the patient’s capacity in relation to Tribunal rule 11 under review during the hearing, and an appointment may be made for a patient with fluctuating capacity who had previously appointed his own representative.§
  • 23/02/17 (3): Northern Irish best interests/DOL case. Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 61 — "This case relates to an elderly lady, NS. She has been represented by the Official Solicitor (OS) throughout these proceedings. ... The case therefore first came to court when the Trust sought to place NS in a residential facility after the hospital admission in May 2016. This was at a time when a stay in hospital was no longer required. The issue in the case was really whether NS should be discharged to a residential facility or to the care of MS with a care package. ... This case therefore involves consideration of a number of questions which I summarise as follows: (i) Is the patient incapable of making a decision regarding the particular issue put before the court? (ii) If so is the plan/treatment proposed in the best interests of the patient? (iii) Is the intervention necessary and proportionate pursuant to Article 8 of the ECHR? (iv) If the plan involves a deprivation of liberty under Article 5 of the ECHR should that be authorised by the court and if so under what terms regarding duration and review?"§
  • 23/02/17 (2): Northern Irish DOL case. Belfast Health and Social Care Trust v PT [2017] NIFam 1, [2017] MHLO 7 — "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ..→§
  • 23/02/17 (1): Mental health accreditation scheme. (1) A new accreditation application form has been published (dated 17/2/17). The main changes are the removal of question 20 ("Please state the number of CPD hours attributable to mental health related courses that you have undertaken") and a new professional development statement (referring to "Learning outcomes", "Category of learning and relevant competence" etc). (2) A new re-accreditation application form has been published (dated 20/2/17). The main change is a new format for each year's Professional development training record. See Law Society mental health accreditation scheme
  • 19/02/17 (3): Updated DH contact details for seeking tribunal references. The current details are as follows. Department of Health, Mental Health Legislation, Area 226, Richmond House, 79 Whitehall, London SW1A 2NS. Email: mentalhealthact2007@dh.gsi.gov.uk Fax: 0115 902 3211 or 0207 451 7978. Tel: Matthew Lees , MHA Policy lead (020 7210 5774), Gillian Baker , MHA Policy Manager (0113 254 6787) or Rose Cofie (020 7210 5548). See MHA 1983 s67
  • 19/02/17 (2): COPPA: Costs in the Court of Protection - Bristol, 22/2/17 — This training event will include an update on fixed costs and interim billing options in the Court of Protection, file management/time recording, and key cases in the Court of Protection. Times: 1730-1915. Price: £10 (free for COPPA members). For further details and booking information see the Court of Protection Practitioners Association website
  • 19/02/17 (1): Law and Compassion Research Network: Symposium on Law, Compassion, and Healthcare - London, 18/5/17 — A symposium exploring compassion in relation to law and healthcare - through presentations and discussion, with speakers from academia, practice, and the judiciary. Speakers: Sir Mark Hedley, Prof Hazel Biggs, Paul Bowen QC, Dr Paquita de Zulueta, Kate Rohde, Dr. Phil Bielby, Dermot Feenan. Chairmen: Dr Glenys Williams, Katy Peters. Price: £59.00. Times: 1400 to 1730. For further details and booking information see Eventbrite website
  • 16/02/17 (2): Peter Edwards Law, 'The Signpost' (February 2017). See Newsletters
  • 16/02/17 (1): Lucy Series, Phil Fennell and Julie Doughty, 'The Participation of P in Welfare Cases in the Court of Protection' (Cardiff University, 16/2/17). See Court of Protection#Participation of P
  • 15/02/17 (1): Ministry of Justice, 'Transforming our justice system: assisted digital strategy, automatic online conviction and statutory standard penalty, and panel composition in tribunals: Government response' (Cm 9391, February 2017). In the consultation document it was proposed to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the Senior President of Tribunals (SPT) "greater freedom to adopt a more proportionate and flexible approach to panel composition", by (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT; and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system. Following the consultation, the government will proceed with proposal (b) as the existing requirement is "an unnecessary restriction to the SPT to base decisions on what is the most appropriate and proportionate approach", but will not proceed with proposal (a) because of concerns arising from "the assumption that this will apply in all cases" (although it appears that this concession is not intended to make any difference in practice). To this end, the Order will be amended so that that "the SPT may provide that a panel should consist of one, two or three members, as required, in order to determine the matters before the tribunal justly and fairly". The consultation response envisages that the SPT will consult with both the tribunal judiciary and wider stakeholders before making any changes to panel composition. See Ministry of Justice, 'Transforming our justice system' (consultation from 15/9/16 to 27/10/16)
  • 14/02/17 (3): Best interests (residence) case. Devon County Council v Manuel Martins and Teresa Kirk [2016] EWCOP 45, [2016] MHLO 60A consent order signed on 9/2/17, which followed an application notice dated 23/1/17 and the death of Manual Martins on 1/2/17, led to the publication of this judgment of 10/6/16, together with the lifting of all reporting restrictions. Extract from judgment: "These proceedings in the Court of Protection concern an 81 year old man called Manuel Martins, now suffering from dementia. He is currently in Portugal, having been taken there by his sister, Teresa Kirk. Previous orders have been made by other judges of this court ordering his immediate return. To date, Mrs Kirk has failed to comply with those orders and it may be therefore that she is in contempt of court as a result. That is not however a matter for this hearing. Because of the passage of time, I considered it appropriate at an earlier hearing to direct a further assessment of where Mr Martins' best interests lay. The fact is that he has now been living in Portugal for some time and I considered that it would be right in the circumstances to direct a further assessment. That assessment having now been carried out, I have today conducted a hearing to determine whether it is in Mr Martins' best interests to return to this country, to reside at a unit hereafter referred to as "A House" in the town where he lived for many years before going to Portugal, or rather to remain in his current residential unit in Portugal. ... I conclude that the balance plainly comes down in favour of a return to this country and a placement at A House."§
  • 14/02/17 (2): Daily Telegraph, 'Ian Brady begins "unique" High Court fight over tribunal lawyer' (14/2/17). See Ian Brady
  • 14/02/17 (1): Sue Reid, 'Touching picture of sibling devotion that was BANNED until now: Pensioner who was jailed by a secret court can finally tell the story of how she tried to protect her brother because, shortly after these photographs were taken, he died' (Daily Mail, 13/2/16). See Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, [2016] MHLO 51
  • 12/02/17 (1): Habitual residence case. Re DB [2016] EWCOP 30, [2016] MHLO 59 — "DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court."§
  • 11/02/17 (1): SDT case. Victoria Wadsworth (strike off) [2016] MHLO 58 (SDT)Since 2007 Victoria Wadsworth had been in charge of a law firm's mental health department, and had invented another firm called "Healthy Minds" to pretend to write medical reports for clients, at the Legal Services Commission's expense. In the Crown Court she had admitted to obtaining £25,000 between 2007 and 2012 (though the law firm stated it had repaid £181,887.72, and the Legal Aid Agency statement referred to a value exceeding £134,000 being repaid). At the time of the hearing, she was in prison having been sentenced to three years (reduced to two on appeal) for fraud, but the Solicitors Disciplinary Tribunal proceeded in her absence. The Tribunal agreed that the rule 5(2) allegations which had commenced its proceedings had been superseded by the conviction and should lie on file. The Tribunal found breaches of Principle 1 (which requires a solicitor to uphold the rule of law and the proper administration of justice), Principle 2 (which requires a solicitor to act with integrity) and Principle 6 (which requires a solicitor to behave in a way that maintains the trust the public places in him and in the provision of legal services). The mitigation related to Proceeds of Crime Act 2002 proceedings, financial hardship, and caring responsibilities for her severely disabled adult son. She was struck off the roll of solicitors and ordered to pay the agreed costs of £21,864.10.§
  • 09/02/17 (2): Mental Health Law Reports. Kris Gledhill has kindly provided short summaries of 24 cases from 2016. The full reports can be purchased from Southside Online Publishing. See Text:MHLR 2016
  • 09/02/17 (1): Immigration detention. R (ASK) v SSHD [2017] EWHC 196 (Admin) — "The issue in this case concerns an allegation that in 2013 the Claimant - 'ASK' - was unlawfully detained in an Immigration Removal Centre pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts. The case raises a number of issues. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19! and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45!. In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained? Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law? Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends? Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 what is meant by'"`UNIQ--nowiki-00000049-QINU`"'prompt'"`UNIQ--nowiki-0000004A-QINU`"' transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee? Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports."
  • 08/02/17 (3): Criminal appeal case. R v Holloway [2016] EWCA Crim 2175, [2016] MHLO 57 — "The applicant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. ... Subsequently, the judge decided to appoint counsel, a Mr David Malone, to assist the court and the applicant with legal issues. ... Ms Tayo asserts that the judge should have refused to allow the applicant to represent himself. She conceded, as she must, that he had been deemed fit to plead and stand trial and in principle had a right to defend himself but she maintained that the judge was obliged to force legal representation on him because of the nature and extent of his mental illness. ... Our conclusion on ground 1 can be stated shortly. This applicant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. ... It is clear that a defendant who is fit to stand trial cannot dismiss his legal representatives, insist on representing himself and then come to this court claiming he should not have been allowed to represent himself. ... The circumstances in which an advocate is appointed are very restricted. A memorandum dated 19 December 2001 agreed between the then Attorney General and Lord Chief Justice states in clear terms that an amicus will not be appointed for the purposes of cross‑examination in criminal trials and they will not be appointed 'simply because a defendant in criminal proceedings refuses representation'. Her Majesty's Attorney may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. Mr Little invited us to note that in such a situation, it is not the court who appoints the advocate but the Attorney and the advocate does not act on behalf of an accused in cross‑examining witnesses or presenting arguments before a jury. ... It is now accepted that a court has an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. In this case, however, an intermediary was not necessary. HHJ Lyons, with the best of intentions, purported to appoint an amicus 'to assist the court' who in truth was appointed to act as a defence advocate and adviser. We see considerable force in Mr Little's submissions that, save where statute provides, there is no power to appoint an advocate in these circumstances to perform such a role. Further, there is no need for any such power. The court now has ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation has been refused. Accordingly, we can find no basis for the appointment of Mr Malone, as helpful as he undoubtedly was to the court and to the applicant. Through no ..→§
  • 08/02/17 (2): Extradition case. Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 5 — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?"§
  • 07/02/17 (1): Link added to Government website: EC-CLAIM 1: escape fee case claim form. "Forms and checklists to submit escape fee case claims under the 4 different categories." The following documents are relevant to mental health law: (1) LAA, 'EC-CLAIM 1 MH: escape fee case claim form - mental health' (v8, April 2015); (2) LAA, 'Escape claim checklist - mental health' (v1.4, September 2016). See Legal Aid forms
  • 04/02/17 (5): Legal Aid Agency, 'Headline intentions for civil legal aid contracts from April 2018 (20/1/17). The LAA anticipate the procurement process for 2018 contracts is likely to start in April 2017, with services commencing on 1/4/18. Details of the process can be found in the document. It states the following in relation to mental health law: "We intend to change the case requirements under the current mental health supervisor standard to increase the number of tribunal cases to be evidenced from 5 to 10. We also intend to introduce a secondary route for supervisors that supervise a mixture of tribunal work and mental capacity work. Supervisors following this route will need to evidence 5 tribunal cases and 5 mental capacity cases. All supervisors following either route will additionally need to evidence 2 non-tribunal mental health cases. We also intend to limit the number of hearings where representation can be conducted either by counsel or an agent who do not carry out contract work for the provider for at least 14 hours per week. The Law Society is currently developing and implementing specialist panel accreditation for Mental Capacity (Welfare) Cases. Once introduced we wish to use this panel accreditation as the basis to restrict authorisation for Court of Protection work to offices with at least one accredited individual who is actively involved in delivering this work. We intend to implement this at the earliest practical opportunity and further information will be published once details of the accreditation scheme and implementation timescale are clearer." See Legal Aid#2018 contract
  • 04/02/17 (2): Legislation. Policing and Crime Act 2017 — Chapter 4 (sections 80-83) of this Act amended MHA 1983 s135 (Warrant to search for and remove patients), s136 (Removal etc of mentally disordered persons without a warrant) and s138 (Retaking of patients escaping from custody), and added new s136A (Use of police stations as places of safety), s136B (Extension of detention) and s136C (Protective searches). In force 11/12/17. The text of the Act on MHLO has been updated accordingly (note that there are errors on the Legislation.gov.uk website: some of the old text has not been deleted).§
  • 04/02/17 (1): Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2015-17' (26/1/17). See Newsletters#Edge Training
  • 02/02/17 (2): HRA limitation case. AP v Tameside MBC [2017] EWHC 65 (QB), [2017] MHLO 4 — "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant."§