January 2017 update

Website

  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.

Case law

  • Strike-out/capacity case. R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have jurisdiction", but only after "giving the applicant an opportunity to make representations in relation to the proposed striking out". (3) The solicitor accepted that the patient had lacked capacity to make the application, but argued: (a) that R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 (in which the House of Lords had decided that the MHA scheme was Convention compliant) was distinguishable, as MH related to section 2 where different timescales applied; and, therefore, (b) that s66 (Applications to tribunals), in order to be Convention compliant, should be read as applying to a patient "with the assistance of a litigation friend if needed". (4) The First-tier Tribunal judge's subsequent decision "that the matter may be closed as an invalid application", which was effectively a rule 8 strike-out decision, was the decision considered by the Upper Tribunal. (5) The challenge was made by way of judicial review, but there was a right of appeal so that route would have been more appropriate. (6) UTJ Jacobs, dismissing the JR application, decided that MH could not be distinguished (the timescales in the MH case were not significant, still less decisive) and there was no Convention breach: any apparent gap in the Tribunal rules (in the protection of a patient's right to bring his case to the Tribunal) disappeared when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. In conclusion, he stated that "[a]n application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review". (6) The Upper Tribunal decision makes no reference to the later ECHR decision in the MH case (MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94), which found that, during part of MH's detention, neither the Secretary of State referral process nor habeas corpus were adequate remedies ..→
  • Deprivation of liberty/inquests case. R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a ..→
  • Immigration detention case. ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 1 — "In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4. ... For the avoidance of doubt, I therefore find that the Claimant's detention was unlawful at common law under the Hardial Singh principles from 30 June 2012 (see paragraphs 133 and 137 above). I find that her detention was unlawful by reason of public law error in relation to her report of torture in the Rule 35 report from 2 weeks from the date of receipt of that report, that is 16 March 2012 (see paragraph 144 above) and in respect of her mental illness from receipt of the last of the Part C reports in May 2012 (see paragraph 141 above). I find that. as somebody suffering from serious mental illness, aspects of the Claimant's detention from mid May 2012 amounted to a breach of her Article 3 rights (see paragraph 148 above)."

Jobs

This is an archive of the month's updates so by the time you read this the information may be out of date.

Events

This is an archive of the month's updates so by the time you read this the information may be out of date.

  • MHLA: Panel course - Leeds, 2/3/17 and 3/3/17 — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and to book online.
  • MHLA: Panel course - London, 27/2/17 and 28/2/18 — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and to book online.
  • MHLA: Foundation course - Manchester, 20/2/17 — This course is aimed at new practitioners and those intending to attend the Panel course in the near future. Attendance at the Foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day Panel course, which is a pre-requisite for application to The Law Society’s mental health panel. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and to book online.
  • Edge Training: DoLS Assessors Conference - London, 10/3/17 — Edge Training's next conference for DOLS Assessors will be held at Inner Temple in London. The conference may be used as part of the annual refresher training for either BIAs or Mental Health Assessors and certificates will be provided for delegates according to their roles. Speakers: Nageena Khalique QC, Alex Ruck Keene, Steven Richards, Professor Clive Bowman, and Aasya Mughal. Cost: £135 plus VAT (10% discount for groups of 10 or more in one booking). See flyer for further details and booking information.
  • Edge Training: MHA administration and management skills - London, 6/3/17 and 7/3/17 — This course aims to provide mental health administration staff and hospital managers with the skills and knowledge needed to effectively manage the Act in practice. It considers the necessary tools to ensure effective compliance with the legislation and Code of Practice. Speakers: Stephen Klein and Cassie Finnigan. Price: £260 + VAT (£312). See flyer for further details and booking information
  • PELT: Introduction to COP, including s21A appeals - Hoylake, 14/2/17 — Course description: "There was a time when the Court of Protection was just about financial issues. The Court is now the place where deprivation of liberty safeguards and procedures are authorised or challenged and where arguments about adult protection and best interests are resolved. It is essential that all those working with vulnerable people/safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Introduction to the Mental Health Act - Hoylake, 14/3/17 — This course is for all those who need a basic understanding of the basics of the MHA. Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Introduction to MCA and DOLS - Hoylake, 28/3/17 — Course description: "This is an intensive introduction to all those who need a basic understanding of the MCA and DOLS. Identifying the ‘decision maker’ as the person responsible for the outcome of that particular decision is the key to lawful decision making on behalf of those who lack capacity. Realising that depriving a person of their liberty removes the legal protection given to decision makers unless the deprivation is ‘prescribed by law’ catches many people out. Not knowing what you don’t know promotes risky practice." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Depriving Children and Young People of their liberty lawfully - Hoylake, 25/4/17 — Course description: "DOLs start at 18. MCA 16. MHA no minimum age for detention. How to lawfully deprive a child or young person of their liberty requires great care. What is a DOL and where does parental responsibility fit? The course will look at the complex inter relationship between the MCA, MHA and Children Act. When should a child or young person be sectioned? What alternatives are there? Where does s.25 Children Act (secure accommodation) fit in?" Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Court of Protection Masterclass - Hoylake, 16/5/17 — This course will review the all the recent developments in Court of Protection case law especially the last 12 months. It will include the latest COP cases on deprivation of liberty, capacity, health and welfare, legal aid and treatment. It will consider what practitioners can learn from these cases that will promote effective and lawful practice. It will examine you the practice directions and rules are working in practice. Any decision maker under the MCA has got to follow procedures ‘prescribed by law’ in order to protect not only the rights of those using services but also their own professional position. Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Mental Health Act masterclass and legal update - Hoylake, 18/5/17 — This course will allows Mental Health Act practitioners to reflect on and update their practice by ensuring they have an up to date understanding of the law. To act lawfully, decision makers are required to follow ‘procedures prescribed by law’. These can be found not only in the Act but importantly in the Code (2015) and developing case law. How important is it to incorporate the Code into your practice? The Code states:“Where the principles and guidance of the Code are not implemented, the CQC may use its regulatory powers to facilitate change and improvement in local services as a failure to apply the Act and its Code may show a breach of one of the registration requirement.” Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Introduction to Care Act for those working with MHA or MCA - Hoylake, 15/6/17 — As the MHA new Code states: "[P]rofessionals ... should also consider the general responsibilities of local authorities under Part 1 of the Care Act 2014 (eg duty to promote wellbeing, promote integration and co-operation duties), which applies to the care and support arranged or provided by local authorities to patients in the community, such as patients subject to CTOs, guardianship or leave from hospital. Professionals should consider the principles that the Care Act introduces about the centrality of the patient and a holistic approach to care and support. These are in line with the guiding principles proposed in [the MHA] Code." The course will examine the way that the following dovetail with duties under the MHA and MCA (including deprivation of liberty) including: (a) Independent advocacy; (b) Safeguarding to protect vulnerable people; (c) Assessments under the Care Act 2014; (d) The impact on Children and Young People in transition to adult services; (e) The duty to Involve carers; (f) Changes to s.117 MHA. Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: Introduction to Forensic Patients - Hoylake, 11/7/17 — Full title: "Introduction to Forensic Patients - A journey through the system". Course description: "Professionals working in the criminal justice system often have little understanding of what happens once a person enters the mental health system. The opposite is also true. Forensic patients are those sent to hospital by the criminal justice system. This course will take you on a journey from arrest to charge to sentence and then into hospital with Tribunals/Hospital Managers hearings and then back into the community. The course will focus on the different law and procedures of those who are subject to the powers of the Ministry of Justice. It will be of particular value to mental health lawyers who want to obtain a greater understanding of the world of the forensic patient and criminal lawyers who need to understand the journey that those sentenced under the MHA take. It will assist managers who are often faced with particular difficulties in admitting forensic patients and will be of value to all those whose work involves contact with this patient group." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • PELT: DOL made simple, including MHA or MCA - Hoylake, 20/7/17 — Course description: "The disagreements between the judiciary have not helped our understanding of DOLs. This course will leave you feeling much more confident. The CQC has made DOL a priority on inspections. The Supreme Court leaves us in no doubt what is and is not a DOL. But how is all this applied in practice to protect not only the service user, but the professionals and service providers as well? How does this impact on ‘informal’ patients under the MHA and the role of AMHPs and Tribunals? What does ‘continuous supervision and control’ really mean? What is ‘free to leave’? Damages for unlawful DOL. This course will leave you feeling confident in how the law should be applied." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.

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