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LSA Mental Health event 21 March 2012.pdf

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Scott Blair, 'A Summary of Mental Health Caselaw' (21/3/12)

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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.

The following are the case summaries which were copied without attribution:

  1. Page 55: RN v Curo Care [2011] UKUT 263 (AAC)(1) If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a CTO recommendation, then reaching that firm conclusion (as opposed to an provisional opinion), and preventing the patient from arguing to the contrary, was a breach of natural justice and the ECHR right to a fair hearing. (2) In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. (3) There would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future: the Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. (4) The decision was set aside and remitted to a differently-constituted panel for reconsideration.§
  2. Page 56: CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC)(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests.
  3. Page 57: JLG v Managers of Llanarth Court [2011] UKUT 62 (AAC)(1) An appeal to the Upper Tribunal can only succeed if 'the making of the decision concerned involved the making of an error on a point of law'. The issue is whether the Tribunal did its job properly: whether (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; (iii) it answered the legal questions appropriately given its findings of fact; (iv) it gave the parties a fair hearing; and (v) it provided adequate reasons. (2) The UT is entitled to assume that the members of the Tribunal understand the basic legal concepts which they must apply, particuarly with a specialist tribunal applying the same limited range of criteria repeatedly; the claimant's argument was essentially that the Tribunal failed to mention these matters, but there was nothing in the reasons to show that they did not understand them. (3) The reasons, albeit discursively, had soundly and rationally addressed the statutory criteria. (4) There is no separate issue of proportionality: this is amply covered by the terms of legislation and the allocation of the burden of proof.§
  4. Page 58: DL v South London and Maudsley NHS Foundation Trust [2010] UKUT 455 (AAC)The Tribunal failed to explain why it rejected medical and social reports which recommended absolute discharge. Their decision was set aside and the case remitted to the First-tier Tribunal for a rehearing.§
  5. Page 58: LC v DHIH [2010] UKUT 319 (AAC)(1) The MHRT for Wales's decision not to discharge the patient, following a deferred conditional discharge, was inadequately reasoned because: (a) it took into account matters to which it had not referred in its original decision; (b) in relation to the newly-identified risk factors, either they must have been risk factors at the time of the original decision, or something unidentified must have happened to make them risk factors; (c) the tribunal could have deferred its decision for a report from the RC at the proposed accommodation, given that all staff agreed with the transfer; (d) the transfer was recommended despite the above; (e) given the liability to recall inherent in a conditional discharge, no reason was given as to why it was necessary to retain the "support of the MHA for the time being" during the accommodation move. (2) The second decision was set aside, so the original deferred conditional discharge decision remained effective, and the matter was referred to the First-tier Tribunal President for directions to arrange a further hearing.§
  6. Page 58: RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC)(1) The Tribunal's reasons for refusing to grant the absolute discharge of a conditionally-discharged patient, against the unanimous evidence of the treating team and an independent psychiatrist, were adequate. (2) The Tribunal disagreed not with the witness's assessments but with their conclusions as to whether the restriction order should cease to have effect: that was the kind of judgment for which it is difficult to give reasons beyond those required to show that the tribunal has directed itself correctly as to the law and to show to what matters the tribunal has had regard. (3) The extensive references to the SC case were enough to show that the Tribunal had the correct legal test in mind. (4) The restrictions can continue in the absence of any mental disorder, and risk from possible future disorder is relevant, so the criteria here are very different from those for discharge of a CTO: in the latter a focus on the short-term position might be appropriate, whereas the Tribunal here had also to consider what might happen in the long term. Manslaughter can be punished by a life sentence with release being on life licence: this is a powerful indication that Parliament intended a long-term view of risks to be taken; it is unsurprising that restrictions should in some cases remain in force for life. (5) The mere existence of current, or possible future, mental disorder is not enough to justify the continuation of a restriction order: regard must also be had to the seriousness of any risk of harm to others. (6) As under the new appeal system the First-tier Tribunal is not a party to proceedings, it is unsatisfactory for public authority respondents (the responsible authority and, in restricted cases, the Secretary of State) to make no submissions at all; submissions would assist even if drafted by non-legally-qualified caseworkers; for instance, the respondent might concede that the Tribunal erred in law but ask the Upper Tribunal to substitute its own decision rather than remit the case.§
  7. Page 59: R (Manns) v London North and East MHRT [1999] EWHC 497 (Admin)A Tribunal had been entitled to find that there was an enduring mental illness based on symptoms before transfer to hospital and that it was asymptomatic because of a response to medication; this entitled it to reject an opinion in favour of discharge which was based on the view that there was no enduring illness. [MHLR.]§
  8. Page 59: R (SSHD) v MHRT, re CH [2005] EWHC 746 (Admin)No discernible reasons given for preferring patient's evidence to RMO's; material reason given in subsequent witness statement which had not originally been recorded.§
  9. Page 59: B v Croydon Health Authority [1995] Fam 133(1) Medical treatment for mental disorder under s63 includes treatment of the symptoms of the disorder (as well as the disorder itself) and includes a range of acts ancillary to the core treatment; (2) on the facts, nasogastric feeding was treatment ancillary to treatment for psychopathic disorder.§
  10. Page 59: R (SC) v MHRT [2005] EWHC 17 (Admin)(1) In deciding not to discharge, Tribunal can consider disorders other than the those from which the patient is classified as suffering. (2) Section 75 is compatible with ECHR even though it includes no express criteria for consideration.§
  11. Page 60: R (DJ) v MHRT; R (AN) v MHRT [2005] EWHC 587 (Admin)The correct standard of proof, where one applies, for the MHRT to apply is the civil standard.§
  12. Page 60: R (AN) v MHRT [2005] EWCA Civ 1605MHRT should apply the standard of proof on the balance of probabilities to all the issues it has to determine.§
  13. Page 62: R (H) v MHRT North and East London Region [2001] EWCA Civ 415Section 73 incompatible with Article 5 because burden of proof was placed on patient.§
  14. Page 62: DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC)(1) The Tribunal gave inadequate reasons for its decision not to discharge the patient; this decision was set aside and a re-hearing directed. (2) In principle, and in this case, it would not be fair and just to restrict the scope of an appeal to the grounds in the application. (3) Discussion of the meaning of mental disorder and its classification for the purposes of the Mental Health Act. (4) Detention is authorised by reference to the twin requirements of treatment and protection, moderated by the word “necessary”; that demanding test provides ample protection without the need for any additional consideration of proportionality. (5) Discussion of "appropriate treatment available" test in context of personality disorder and refusal of treatment.§
  15. Page 65: R v Nottingham MHRT, ex p Secretary of State for the Home Department (Thomas) [1988] MHLO 1The Tribunal has no power to adjourn to give an opportunity for the patient's condition to improve or to see if an improvement already made is sustained.§
  16. Page 65: McGrady, Re Application for Judicial Review [2003] NIQB 15(1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 [2001] ECHR 235 distinguished.§
  17. Page 65: R (RD) v MHRT [2007] EWHC 781 (Admin)(1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate.§
  18. Page 65: R (PD) v West Midlands and North West MHRT [2004] EWCA Civ 311No appearance of bias when Tribunal medical member was employed by same Trust.§
  19. Page 66: SSJ v RB [2011] EWCA Civ 1608The Mental Health Tribunal may not grant a conditional discharge in circumstances where the conditions would inevitably lead to an Article 5 deprivation of liberty. Postscript: see PJ v A Local Health Board [2015] UKUT 480 (AAC), [2015] MHLO 63.§
  20. Page 69: R (Brady) v Dr Collins [2000] EWHC 639 (Admin)(1) The hunger strike was a manifestation or symptom of the patient's personality disorder, and the commencement of force-feeding was justified under s63 as medical treatment for mental disorder; even if s63 did not apply, the patient lacked capacity and the doctors had acted in what they lawfully believed was his best interests; (2) The appropriate test when considering challenges to compulsory treatment under s63 was the "super-Wednesbury" test [caution: the law has since changed]§
  21. Page 105: Halilovic v Bosnia and Herzegovina 23968/05 [2009] ECHR 1933(1) The appellant's detention for 4 years 5 months was pursuant to an administrative decision, as opposed to a decision of the competent civil court as required by the amended domestic legislation, and so breached Article 5(1); compensation of €22,500 was awarded. (2) The Article 3 claim relating to conditions of detention failed.§
  22. Page 106: Shulepova v Russia 34449/03 [2008] ECHR 1666(1) Violation of Article 5(4): Applicant not detained in accordance with a procedure prescribed by domestic law. (2) Violation of Article 6(1): By appointing the hospital's employees as psychiatric experts, the domestic courts placed the applicant at a substantial disadvantage, in breach of the principle of equality of arms.§
  23. Page 106: DN v Switzerland 27154/95 [2001] ECHR 235The psychiatrist who sat as judge rapporteur on the Administrative Appeals Commission had, before the hearing, concluded that the patient should not be released; the patient had legitimate fears that the doctor had a preconceived opinion and was not acting impartially; this was reinforced because he was sole the psychiatric expert and the only person who had interviewed her; Article 5(4) having been breached, damages and costs were awarded§
  24. Page 107: S v Estonia 17779/08 [2011] ECHR 1511Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of Article 5(1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded.§
  25. Page 108: 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.§
  26. Page 108: Hadzic and Suljic v Bosnia Herzegovina 39446/06 [2011] ECHR 911The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of Article 5(1); the applicants were awarded compensation of €15,000 and €25,000 respectively.§
  27. Page 109: Romanov v Russia 63993/00 [2005] ECHR 933(1) Violation of Article 3: The applicant's conditions of detention, in particular the severe overcrowding and its detrimental effect on the applicant's well being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment. (2) Violation of Article 5(3): the length of the proceedings (and detention on remand) was attributable neither to the complexity of the case nor to the conduct of the applicant but to the lack of diligence and expedition on the part of court. (3) Violation of Article 6(1) and (3)(c): In view of what was at stake for the applicant the District Court could not, if the trial was to be fair, determine his case without a direct assessment of the applicant's evidence, and the presence of the applicant's lawyer could not compensate for his absence.§
  28. Page 111: Wilkinson v UK 14659/02 [2006] ECHR 1171The applicant's complaints were all declared inadmissible. He had complained that: (1) medical treatment against his will was a breach of the negative obligations under Articles 3 and 8; (2) the authorities failed in their positive obligation under Articles 3 and 8 to provide suitable safeguards against the imposition of treatment that would violate his rights, in particular that the authorities should have sought approval from a court before imposing treatment and that he should have been able to bring a challenge against the treatment, before it took place, in a court which would have been able to provide a suitable level of review; (3) the inability to have a determination of his ‘civil right’ to autonomy in a court that would have provided a review on the merits was a violation of Article 6; (4) the lack of effective remedy was a breach of Article 13; (5) discrimination on the basis of his status as a detained patient was a breach of Article 14.§

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