Mind, 'Legal Newsletter' (December 2017)

This newsletter contains news under the following headings: (1) Thriving at Work - The Stevenson/Farmer Review of mental health and employers; (2) Mental Health and Fair Trial; (3) Section 117 and multiple diagnoses; (4) Damien Tinsley v Manchester City Council [2017] EWCA Civ 1704; (5) R(CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin); (6) Burden of Proof in discrimination claims in the Employment Tribunal - Ayodele v Citylink [2017] EWCA Civ 1913.

Newsletter

The text is reproduced below and can also be viewed on Mind's website via the link at the bottom of this page.

Thriving at Work - The Stevenson/Farmer Review of mental health and employers 2017

Mind’s Chief Executive Paul Farmer, together with Lord Dennis Stevenson, was asked in January 2017 by the government to carry out an independent review into how employers can better support individuals with mental health problems remain in and thrive in work. The result of the extensive review were published on 26 October 2017.

The review was supported by an independent study on the cost to employers of the mental health problems of staff which was carried out by Deloitte. This found:

  • There is an annual cost to employers of between £33 billion and £42 billion each year made up of the cost of presenteeism (when individuals attend work but are less productive because of their mental health problem), sickness absence and staff turnover
  • Poor mental health costs government between £24 billion and £27 billion in lost tax revenue, benefits and NHS cost each year
  • Poor mental health costs the UK economy as a whole between £74 billion and £99 billion per year
  • Around 300,000 with a long-term mental health condition lose their jobs each year.

These figures are shocking. They also make clear that it is massively in both employers’ and the government’s interest to invest more in improving the nation’s mental health. Mind is more concerned about the human cost behind these numbers.

The vision

Thriving at Work sets out a vision as to how progress can be achieved. The report’s authors envisage that in ten years’ time a number of changes will have happened:-

  • Employees in all types of employment will have “good work” (consisting of autonomy, fair pay, work life balance, opportunities for progression and the absence of bullying and harassment)
  • All of us will have the knowledge, tools and confidence to look after our own mental health and those around us
  • All employers of all sizes will be:
    • Equipped with the awareness and tools to address and prevent mental ill-health caused or worsened by work
    • Equipped to support individuals with mental health problems to thrive within the organisation
    • Aware of how to access help to reduce sickness absence caused by mental ill-health
    • The numbers of people with mental health problems leaving employment each year will dramatically reduce.

How the vision can be achieved

Core standards

The report recommends that all employers adopt a set of “mental health core standards” which all employers should be capable of implementing. Employers should:

  • Produce and implement a mental health at work plan
  • Develop mental health awareness among its employees
  • Encourage open conversations about mental health and what support is available when people are struggling
  • Provide good working conditions
  • Promote effective people management
  • Routinely monitor employee mental health and wellbeing.

Enhanced standards

The report calls for public sector employers and private sector ones with more than 500 employees to deliver enhanced standard which should:

  • Increase transparency and accountability through internal and external report of the organisation’s approach to mental health
  • Demonstrate accountability by nominating a health and wellbeing lead
  • Improve the process for employees disclosing mental health problems, making sure people know why information is needed and providing support for people
  • Ensure that tailored in-house mental health support is provided together with good signposting to clinical help.

External support for employers

Employers alone cannot the cultural change envisaged in the report, which sees a role for trade unions, industry groups, professional bodies and accrediting organisation to provide support. This can be by way of industry groups such as the Federation of Small Businesses providing guidance on how to implement the core standards, or professional bodies such as the Federation of Master Builders including mental health awareness in their training and accreditation programmes. These bodies can also advise employers on occupational health services and insurance products to help support the mental health of their staff.

The government

Predictably a substantial role in effecting change is envisaged for the government. It should:

  • Streamline the fragmented and confusing array of information available from the government, voluntary sector and private providers. The report recommend the creation of a single mental health online information platform to promote best practice and help employers implement the core standards
  • Streamline the fragmented practical support available to employers to an integrated support service for mental health (as well as other physical health conditions and disabilities)
  • Incentivise employers to adopt the core standards with tax incentives
  • Introduce supply chain initiatives to encourage suppliers to public bodies implement the core standards
  • Legislate to provide further protection for workers and clarity for employers. A more proactive monitoring and enforcement role for the Equality and Human Rights Commission is encouraged.
  • Responsibility for completing fit notes should be extended beyond doctors to other mental health professionals and there should be improved (but secure) data and information sharing between health professionals and employers.

Implementation and delivery

Thriving at Work presents an ambitious vision and one that will not be easy to achieve. It envisages that a ten years plan will be needed to achieve the levels of cultural changed needed amongst employers. Mental health campaigns including information and support for improving workplace mental health are needed, and particular support should be given to small and medium sized employers and to the self-employed. Crucially, more evidence about how workers’ mental health and wellbeing can be best supported is needed and there should be further research and evidence building at the heart of the ten year plan.

As we write, the government has announced, but not fleshed out, a ten year strategy to help more disabled people into work.

The report can be found here.

Mental Health and Fair Trial

The Mental Health and Fair Trial report was published on 27 November 2017. It makes 52 recommendations on various aspects of the criminal justice process.

JUSTICE is a law reform and human rights organisation that works to improve the justice system. They are a membership organisation of legal professionals at all stages of their career.

A group of them worked together to research and publish a report about people with mental health problems in the criminal justice system. There has been a concern about the increasing number of people with mental health problems that end up in police custody and prison.

They made 52 recommendations about how the system can be improved from all stages of the process including making sure that people with mental health problems are identified so that they have proper support and to make sure that they aren’t sent to prison inappropriately.

The report can be found here.

Section 117 and multiple diagnoses

Do aftercare services under section 117 extend to meeting needs arising from mental disorders other than the one for which the patient was originally detained?

This question arose at the annual conference of the Mental Health Lawyers Association in November to much head-scratching. I hope that this note can clear up this important issue. The question was something like this:

Mr P is detained under the Mental Health Act under a diagnosis of schizophrenia. He is later discharged and receives a package of aftercare under section 117 which meets needs arising out of that condition. Mr P later develops dementia and has additional needs. Must his aftercare package meet all needs or only those arising from the original condition?

The answer, in brief, is yes, and is found in the passage through the House of Lords of the definition of aftercare services now set out in section 117(6).

The original definition was this (emphasis added):

In this section, “after-care services” means services which have both of the following purposes:

(a) meeting a need arising from or related to the mental disorder of the person concerned; and

(b) reducing the risk of a deterioration of the person’s mental condition (and, accordingly, to reduce the risk of the person requiring admission to a hospital again for treatment for the disorder).

It was raised in the committee stage that the underlined "the" suggested that aftercare services were only those that met needs arising from the mental disorder for which the patient was detained. As such the relevant part was changed to:

(b) reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder)

The reasons for the change were made explicit in the report stage:

"… [we have] changed the clause to remove the definitive article when referring to “mental disorder”…This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which the person was previously detained under the Act and which gave rise to the right to aftercare." (16.10.2013 Column 600)

So, if Mr P’s needs increased due to his developing dementia his aftercare package must be reassessed and support provided that meets the statutory definition in relation to either condition.

Damien Tinsley v Manchester City Council (2017) EWCA Civ 1704

The Court of Appeal confirms that personal injury settlements cannot be taken into account when arranging aftercare services under section 117 of the Mental Health Act 1983.

We reported on the High Court decision in this case in our June 2017 newsletter. For the reasons set out in that article we are pleased that the Court of Appeal dismissed the appeal by the local authority, the grounds of which were that:

  1. on proper construction of section 117 the local authority is not required to provide aftercare services to a person who has received damages for their future care; and
  2. to allow free aftercare where there was such an award would offend the principle of double recovery - the claimant having received damages to pay for care which later had to be provided for free.

The Court of Appeal considered that the first ground was "an impossible argument" given the clear decision from the House of Lords in Stennet [2005] that section 117 services cannot be charged for:

"Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front."

On the second ground, the local authority submitted that it should not be required to provide aftercare until Mr Tinsley can show that the funds awarded to him for his care are about to run out. Otherwise, they suggested, a person could receive a sum of money for future care then simply turn to the local authority for free care and pocket the rest.

The court considered that in even such an “extreme case” this would be a matter for the proceedings in which damages are claimed - calling into question the truth of the claimant’s account that they intended to fund their care privately – and would not permit the local authority to refuse to provide aftercare. While the court acknowledged the concerns of the local authority in cases such as these Lord Justice Longmore suggested that in reality most people would not turn to local authority support while they have the option of funding their care privately.

The report can be found here.

R(CXF) v Central Bedfordshire Council (2017) EWHC 2311 (Admin)

Patients on section [17] leave will not necessarily receive section 117 aftercare services.

CXF was 18 years old with autism and detained under section 3 of the Mental Health Act 1983 (MHA). He was detained around 240 miles away from his mother, who visited him weekly at significant cost to herself. During her visits she would accompany CXF on outings by bus and supervised by hospital staff.

Before he turned 18 CXF’s mother was reimbursed the expenses of these visits under section 17 of the Children Act 1989. This was stopped following his 18th birthday. CXF, through his mother, brought a judicial review claiming that these costs now fell to be met as an aftercare service under section 117 MHA.

Miss Rose QC set out four issues raised in the appeal, including whether the transport costs claimed could fall within the ambit of section 117, but dismissed the claim on the basis that section 117 was not triggered when CXF went on his bus trips. She referred to "pre-conditions" in section 117(1) and ruled that aftercare will only be triggered when a person has "ceased to be detained and left hospital", which CXF had not:

"On the facts of this case, I consider that it is clear that the Claimant remained at all times detained in the Hospital, and that he had not 'left hospital', even when he was enjoying leave of absence under s.17. The leave of absence granted to him permitted short excursions by bus, and required him to be escorted and supervised at all times by two members of the Hospital's staff. He was at all times deprived of his liberty, and under the care and control of the Hospital." [at 42]

CXF’s leave was contrasted with that in R v Richmond London Borough Council, ex parte Watson (1999) where a period of trial leave at a care home did correctly trigger section 117.

Miss Rose QC noted paragraph 27.26 of the Code of Practice which states that the duty under section 117 "applies to those patients while they are on leave of absence", but considered that this did not undermine the need for the patient to have ceased to be detained and left hospital.

Comment

There is very little case law on what constitutes an aftercare service, and most of this has been in the context of accommodation. It is unfortunate from our perspective that instead of consideration on this point this judgment has unravelled one of the few clear points of law relating to section 117: that those on section 17 leave are entitled to it. The clear statement to this end has been included in the 1999, 2008 and 2015 versions of the Code of Practice and, as far as we are aware, was accepted in practice.

Patients who require support while on leave will now be in a very difficult position. We know that support under section 117 is already very difficult for people to understand, and this judgment may worsen that. A patient may now be told that aftercare is not triggered in their case and they could be left without the support they need to have leave. This refusal could be challenged by judicial review but this will not be an option for most.

While the judgment does not provide much guidance as to when section 117 will be triggered in any particular case, we would suggest that the following factors will need to be considered:

  1. The length of the leave
  2. The level of restriction while on the leave, including whether they amount to a deprivation of liberty; and
  3. The purpose of the leave.

The judgment can be found here.

Burden of Proof in discrimination claims in the Employment Tribunal – Ayodele v Citylink (2017) EWCA Civ 1913

The Claimant again bears an initial burden of proof in discrimination cases.

In the last newsletter we reported on the case of Efobi v Royal Mail Group UKEAT/023/16, UKEAT/0203/16, a case decided by the Employment Appeal Tribunal, which had turned on its head many years of settled law on the burden of proof in discrimination claims.

Well, Efobi turned out to be short lived, and the Court of Appeal in the case of Ayodele has decided that the “interpretation placed on section 136 by the EAT in Efobi is wrong and should not be followed”.

To be clear, a Claimant in a discrimination claim in the Employment Tribunal must prove facts from which an inference of discrimination could be drawn before the burden of proof shifts to the employer to provide a non-discriminatory explanation.

Basically the law as it has been all along until the temporary blip created by Efobi.

The judgment in Ayodele can be found here.

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Mind, 'Legal Newsletter' (December 2017)

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