November 2010 update

Case law - summaries of new cases

  • R v Dunn [2010] EWCA Crim 2935 — Dunn 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.]§
  • Re G (TJ) [2010] EWHC 3005 (COP) — The court considered the meaning of 'best interests' when deciding whether or not to direct a deputy to make maintenance payments from P's funds to her daughter. (1) The balance sheet of facts which P would draw up if he had capacity to make the decision (taking into account actual wishes, beliefs and values, and other factors) is a relevant factor for the court's decision: thus a substituted judgment can be subsumed into the consideration of best interests. (2) 'Best interests' does not only include the self-interest of P: it includes wishes (or those he would have formed had he capacity) even if altruistic and not self-interested, and even if P has no awareness of the fact that such wishes are being respected. (3) On the facts: (a) no weight would be given to the possibility that P might be thought to have done the 'right thing', principally because she could not participate in the decision in any way, and partly because the family disagreed about what was the right thing; (b) overall, given the absence of any countervailing factors, respect for what would have been P's wishes defined what is in her best interests; (c) the order for maintenance payments was made.§
  • C v D [2010] EWHC 2940 (Ch) — (1) A settlement offer which is time-limited (in this case it was open for acceptance for 21 days) is not capable of being a Part 36 offer; (2) on the facts, the offer had expired after 21 days and was not capable of acceptance. [Caution: partly overturned on appeal.]§
  • RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273 — (1) The SC case stated that one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is - as section 73(1)(b) puts it - 'satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment'. The putting of the burden of proof on the patient is not in breach of the ECHR: Article 5 does not apply; conditions imposed may engage Article 8, but it is justified to require a patient made subject to a restriction order following a criminal trial/conviction to satisfy the FTT that the order should cease to have effect. (2) The FTT's reasons were undoubtedly adequate. (3) The FTT had not said that RH's restriction order 'should remain in place essentially for life' (it had said that in some cases this would be the case) so this ground of appeal failed. (4) The FTT's comparison between conditional discharge and life licence was not an equation but merely to explain why the gravity of the index offences was a relevant consideration. (5) The FTT were entitled to order that its decision be placed before any future FTT because, although not binding, earlier decisions are material considerations. (6) Except possibly in relation to the burden-of-proof ground (as an important point of principle), the UT should not have granted permission to appeal. (7) Particular care should be exercised before granting permission to appeal on a ground that was not raised below: had the SSJ been notified of the new grounds (including the burden-of-proof ground) it is likely that the response would have led to permission not being granted.§
  • YA(F) v A Local Authority [2010] EWHC 2770 (COP) — P and his mother brought claims under s7 HRA in the Court of Protection; the other parties asserted that only declaratory relief was possible as the CoP had no jurisdiction to hear and deal with (a) any of the mother's HRA claim or (b) the son's HRA damages claim, and that the claim should have been in the Queen's Bench Division. (1) The common ground that the CoP has jurisdiction to deal with P's HRA claim and grant declaratory relief was correct. (2) The CoP has jurisdiction (a) to hear argument on behalf of the mother that acts done in relation to P constitute breaches of her Convention rights and (b) to make declarations as to the lawfulness of such acts. (3) The CoP is a 'court which has power to award damages... in civil proceedings' under s8(1) HRA 1998 when exercising its HRA jurisdiction either because (a) in exercising its jurisdiction the CoP has the same powers as the High Court, which can award damages in such cases, or because (b) the CoP has power to award damages other than under the HRA. (4) There was therefore no need to transfer the claim to the QBD, but at the next hearing the relevant part of the proceedings would be treated as QBD proceedings, to ensure any award would have a jurisdictional base if the judgment was subsequently found to be wrong. (5) Those bringing the strike out application were ordered to pay half the mother's costs because they had not given any consideration to the negative procedural consequences of success, the other half being reserved because it was a legitimate jurisdictional issue.§
  • Re AVS; CS v A NHS Foundation Trust [2010] EWHC 2746 (COP) — (1) AVS suffered from CJD and at a previous hearing it had been declared that he lacked capacity to instruct solicitors or make medical decisions. (2) The critical question was: 'is it in AVS's bests interests that PPS treatment continues to be administered to him?' The applicant wanted it to recommence; the Trust did not. (3) The applicant brother was not an appropriate next friend as the relationship between him and the clinicians had broken down completely and he lacked the necessary objectivity: the Official Solicitor would be invited to act. (4) The court's 'best interests' analysis embraces all the circumstances of the case, and clinical opinion is not necessarily determinative, but it is unlikely in the extreme that the court would order a clinician to undertake a medical intervention which the clinician did not believe to be in the best interests of the patient. (5) These proceedings would therefore be doomed to failure without a clinical opinion on the applicant's side. A doctor had been identified as willing to take over AVS's care and, it seemed, administration of PPS: proceedings would be dismissed after 14 days unless a report from Dr P were filed to answer the Trust's reports and identifying a proper issue for the court's determination. (6) Directions were given as to medical and non-medical witnesses, disclosure of medical records and evidence, instruction of experts and an experts' meeting.§
  • Re Collis (2010) COP 27/10/10 — An application was made to the court to direct the Public Guardian to cancel the registration of an LPA on the grounds that the instrument was not a valid LPA because the Donor lacked capacity to create an LPA at the date of execution. In the course of his judgment the Senior Judge set out the law relating to capacity to create an LPA. [OPG summary - LPA case.]§
  • Re Baker (2010) COP 12/11/10 — The donor of a property and affairs LPA included the following provision: "I authorise my Attorneys to make gifts from my assets on such terms and conditions as they think fit, for the purposes of inheritance tax planning, including but not restricted to the making of gifts in line with the annual lifetime gift allowance." On the application of the Public Guardian the provision was severed on the grounds that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Jass (2010) COP 26/10/10 — The donor of a property and affairs LPA included the following provision: "I hereby authorise my attorneys to give gifts on my behalf at my attorneys' discretion up to the exempt amount permitted by sections 19 (Annual Exemption), 20 (Small Gifts) and 22 (Marriage/Civil Partnership Gifts) of the Inheritance Act 1984 (or such other legislation or provision as may supersede these sections) for the time being in force." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • Re Moore (2010) COP 26/10/10 — The donor appointed three attorneys to act jointly. She then imposed the following restriction: "At least two attorneys to act on any transactions". On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.]§
  • Re Hartup (2010) COP 28/10/10 — (1) The donor appointed two attorneys, A and B, to act jointly and severally, and two replacement attorneys. He then imposed the following restriction: "My wife A is to take the lead in all decisions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. (2) The donor made two LPAs, one for property and financial affairs and the other for health and welfare. In both instruments he appointed A (his wife) and B as primary attorneys, to act jointly and severally, and C and D as replacement attorneys. In the property and financial affairs instrument he imposed the following restriction: "Should my wife be unable to continue to act severally as my attorney, then B and my two replacement attorneys are to act on my behalf. They must act jointly in relation to decisions about selling my house or they may act jointly and severally in everything else." In the health and welfare instrument he imposed the following restriction: "Should my wife be unable to continue to act severally as my attorney, then B and my two replacement attorneys are to act on my behalf. They must act jointly in relation to decisions I have authorised them to make about life-sustaining treatment and where I live. They may act jointly and severally for everything else." On the application of the Public Guardian the court severed these restrictions on the ground that, where the original attorneys had been appointed to act jointly and severally, the donor could not change the nature of the appointment by directing that the surviving original attorney should act in a different manner when the other original attorney had been replaced. [OPG summary - LPA case.]§
  • Re Ferguson (2010) COP 26/10/10 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restrictions: "I wish my attorneys to act as follows: A to act independently. B and C to act only in the event that A is deceased or unable to act. In these circumstances B and C may act independently." "I wish my attorneys to act only when I lack capacity to act. A may judge for himself when I lack capacity to act. B and C must agree together that I lack capacity to act. Alternatively, should either of them wish, then at my expense they may seek medical and, if necessary, legal advice as to whether or not I have capacity to act." On the application of the Public Guardian both restrictions were severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.]§
  • Re Orriss (2010) COP 20/10/10 — By mistake the donor's surname was omitted from the instrument, which included only his first and second names. The EPA was registered without the mistake being discovered. On the application of the attorney the court directed the Public Guardian to attach a note to the EPA stating that the donor's surname had been omitted in error from Part B. [OPG summary - EPA case.]§
  • Re Williamson (2010) COP 25/10/10‎ — The donor appointed A, B and C to act jointly. He then imposed the following restriction: "The said B and C shall not exercise their authority under this Power whilst my wife is alive and able to act as my attorney." On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.]§
  • Re Dickenson (2010) COP 12/11/10 — The donor appointed two attorneys to act jointly and severally and imposed the following restriction: "My professional Attorneys may at any time appoint a substitute to act as my attorney and may revoke the appointment without giving reason. Every appointment is to be in writing signed by my Attorney. Every substitute has full powers as my attorney, as if appointed by this Deed, except the power to appoint a substitute." On the application of an attorney the court severed the restriction. Paragraph 2(6) of Schedule 4 of the MCA 2005 provides that "A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power." [OPG summary - EPA case.]§
  • R (Royal College of Nursing) v SSHD [2010] EWHC 2761 (Admin) — Previous scheme established under the Safeguarding Vulnerable Groups Act 2006 which automatically prohibited those placed on lists established under the scheme from working with children and/or vulnerable adults was unlawful: the absence of a right to make representations breached their right to a fair trial.§

Case law - other

  • Summary added (transcript already online): Singellos v Singellos [2010] EWHC 2353 (Ch) — (1) The approach in Parker v Felgate (1883) 8 PD 171 (that if a testator gives instructions when he has capacity, the will stands good even though at the time of execution he only understands that he is executing the will which he has instructed) applies also to dispositions inter vivos. (2) Mrs Singellos had the necessary capacity when she gave instructions to her accountant, but when she signed the multiple documents involved she only understood that she was giving effect to her instructions: the documents were declared to be validly executed.§
  • Transcript only: LBL v RYJ [2010] EWHC 2665 (COP) — RYJ had capacity in relation to care, contact, residential education and residence, and was not vulnerable as a result of external factors so as to invoke the inherent jurisdiction; discussion of mother's status as appointee and her application to SENDIST.§

Legislation

  • 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 Services Commission

  • CLS News item 23/11/10: 'New LSC forms mandatory from 15 November'. A reminder that new versions of the following must be used: CLS APP1, CLS APP6, CLSAPP7, CLS APP8, CLS MEANS 1, 1A, 1B, 1C, CLS MEANS 2, CLS MEANS 3, CLS MEANS 4, CLS MEANS 5, Means Guidance & Checklist (CK3), CLS POA1, CW1, CW1&2 (MH), CW2 (IMM), CW Counsel (MH), CW3A, 3B & 3C, Civil Codes Guidance & Guidance for Reporting Controlled Work; some crime forms have also changed. See Legal Aid News
  • On 21/10/10 the LSC published version 8 of 'RM Assurance Process: Guidance for RM Visits'. See Legal Aid News
  • On 15/11/10 the LSC published 'Devolved Powers in Judicial Review cases under the 2010 Contract'. Mental health firms who had 2007 contracts can continue to exercise devolved powers for mental health judicial reviews, but from 1/4/11 this will only be possible if the power has specifically been granted. The LSC will be consulting on criteria for awarding the power to exercise devolved powers. See Legal Aid News
  • On 12/11/10 the LSC published Forms Version List October 2010 (including forms for 15/11/10 onwards). See Legal Aid News
  • CLS News: 'Financial eligibility - changes to evidence rules from 15 November' - 11/11/10 - Wage slips and bank statements must accompany form CLS MEANS1 where appropriate. See Legal Aid News
  • CLS News: '2010 Standard Civil Contract documentation now sent out' - 11/11/10. See Legal Aid News
  • CLS News:' New home for LSC websites' - 10/11/10 - All information on Legal Aid websites will be moved to either the MoJ or Directgov website by March 2011. See Legal Aid News
  • LSC document added. 'Guidance on Completing Civil Supervisor Self Declaration Forms' - filename dated 4/11/10, document dated 5/11/10, published 8/11/10, marked version 4. See Legal Aid News
  • LSC document updated in November 2010: 'Where work is processed'. See Legal Aid News
  • The LSC have refused permission for publication of correspondence clarifying their August 2010 newsletter statement on Level 1/2 fees: 'The only official guidance that can be published is the specification and the principles of MH document'. Further guidance on Level 1/2 fees may be included in an update to the 'Principles' document. You will each need individually to ask the LSC whether or not the newsletter is compatible with the official guidance (it is not: see news item of 7/10/10). See Legal Aid News
  • Legal Aid was mentioned in Parliament on 7/9/10 in response to the written question: 'To ask the Secretary of State for Justice what assessment his Department has made of the adequacy of the level of funding for legal aid for cases relating to mental health legislation compared to that for other legal sectors' (and the same answer was given to a question on 28/10/10). The minister replied that Legal Aid for MHT work is not means-tested, that in order to ensure that demand is met 1,500 more new matter starts will be allocated for 2010-11 than in 2009-10, that the mental health contract tenders were carried out on a non-competitive basis, and that the number of applicants who have been provisionally offered a contract closely matches the number of existing providers. He ignored the high secure tender which was competitive, and which reduced the number of suppliers from 98 to 9 (source: presentation at MHLA conference, 19/11/10). In the general tender there were 288 successful applicants, including 68 new entrants (34 of which are in London) (source: LSC, 'Statement on Mental Health Awards', 17/6/10; figures corrected on 29/11/10). See Legal Aid News

Legal Aid generally

  • On 16/11/10 the Law Society published 'MoJ Green Paper on legal aid', a summary of the Green Paper. See Law Society
  • On 15/11/10 the MoJ published 'Proposals for the Reform of Legal Aid in England and Wales', a consultation running from 15/11/10 to 14/2/11. In relation to mental health law the proposals are to (1) retain legal aid for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeal as to the Court of Protection on deprivation of liberty issues; (2) retain legal aid for judicial review challenges; (3) remove legal aid for tort or other general damages claims unless the claims are of a very serious nature (paras 4.92 to 4.94). The summary for the scope of mental health law is that 'We propose to retain the current provision of Legal Help and Controlled Legal Representation' (Annex F). All civil hourly rates and fixed fees are to be reduced by 10% (paras 7.6 to 7.7) and there are also proposals for reducing experts' fees (see chapter 8). There are less generous rules on financial eligibility and contributions, but these proposals will not affect those cases, such as Tribunal work, which are not subject to means testing (para 5.4). See Consultations#Ministry of Justice
  • On 15/11/10 the MoJ published 'Proposals for reform of civil litigation funding and costs in England and Wales', another consultation running in parallel from 15/11/10 to 14/2/11. See Consultations#Ministry of Justice
  • On 15/11/10 the Law Society published 'Access to justice review: final report'. See Law Society
  • Link to article added: Fiona Bawdon, 'Mental health patients face legal aid delay', Guardian 9/11/10. This article is about the effect of the LSC's refusal to grant additional 'matter starts' to mental health law firms towards the end of the current contract period. See Mental health law in the media
  • Link to article added: Catherine Baksi, 'New legal aid court challenge set to proceed', Law Society Gazette 8/11/10. The claimants, who challenged the selection criteria for the high-secure-hospital contract and the verification process for both contracts, failed to obtain injunction delaying implementation of mental health contracts but obtained protective costs order set at £100,000. See Legal Aid News

Department of Health

  • On 26/11/10 the Dept of Health published 'National Oversight Group Annual Report 2009-10'. ('The National Oversight Group for High Secure Services brings together significant partners to provide oversight for the high secure services on behalf of the Secretary of State for Health'). See DH
  • On 18/11/10 the Dept of Health published 'Making written information easier to understand for people with learning disabilities: Guidance for people who commission or produce Easy Read information. Revised Edition 2010'. See DH
  • On 18/11/10 the Dept of Health published 'The Third Year of the Independent Mental Capacity Advocacy (IMCA) Service 2009-10'. Over 9000 people used an IMHA in 2009/10, which represents a 39% increase in referrals. See IMCA
  • On 18/11/10 the Dept of Health published 'PL/CNO/2010/3: Eliminating mixed sex accommodation'. This professional letter discusses the policy that NHS organisations are expected to 'eliminate mixed-sex accommodation, except where it is in the overall best interest of the patient, or reflects their personal choice'; in particular the reporting of and sanctions for breaches, and the obligatory declaration of compliance by 1/4/11. See DH
  • On 18/11/10 the Dept of Health published 'LAC(DH)(2010)7: The Vision for Adult Social Care and supporting documents'. This circular informs councils of the Government's new Vision for Adult Social Care: Capable Communities and Active Citizens and its consultation on Transparency in outcomes: a framework for adult social care. See Adult Social Care
  • News item added to NMHDU website on 15/11/10: 'Invitation to participate in focus groups - Review of Independent Mental Health Advocate (IMHA) Services by the University of Central Lancashire'. This is part of a £250,000 'Research to review the quality of independent mental health advocate services' paid for by the Dept of Health. See DH
  • On 11/11/10 the Dept of Health published 'Protection of Vulnerable Adults (POVA) scheme: record retention and disposal policy'. See DH
  • On 29/10/10 the Dept of Health updated their 'Guidance on direct payments for community care, services for carers and children's services: England 2009' which was originally published on 4/9/09. See DH

Voting and jury service

  • On 2/11/10 there was a House of Commons debate following an urgent question on the Government's 'plans to give prisoners the vote'. The UK Government has 'no choice' but to obey decisions of the European Court of Human Rights, and active steps are being taken to do so, particularly to help avoid the payment of damages to prisoners who make human rights claims. The relevant judgment is Hirst v UK (No 2) 74025/01 [2005] ECHR 681 which declared unlawful the blanket restriction on voting which applies to all convicted prisoners irrespective of the length of their sentence, the nature or gravity of their offence, or their individual circumstances. In Frodl v Austria 20201/04 [2010] ECHR 508B the ECtHR held that 'Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions'. On 18/10/10 the ECtHR issued a press release confirming that this case would not be referred to the Grand Chamber. Both cases were referred to in R (Chester) v SSJ on 3/11/10; judgment was reserved. In Greens and MT v UK (2010) 60041/08, 60054/08 (23/11/10) the ECtHR gave the UK six months to amend the voting laws, during which time comparable cases will not be considered; no compensation was awarded. See Voting rights for detained patients

Section 1 Juries Act 1974, as amended, disqualifies certain categories of people from jury service, including some people with mental disorders. On 8/11/10 the government minister stated that only about 2% of people summoned for jury service are disqualified on grounds of mental health so to amend the Act would be a 'disproportionate response in view of the limited benefits and the small number of people likely to be affected'. However, the Mental Health (Discrimination) Act 2013, from 15/7/2013, amended the categories of those disqualified.§

Ministry of Justice

  • On 28/10/10 the Ministry of Justice published 'Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Mental Capacity Act 2005'. See Ministry of Justice#MoJ website
  • On 27/10/10 the Ministry of Justice issued a press release entitled 'MAPPA: open and transparent (!) for greater public protection', together with an annual report and statistical tables showing the number of MAPPA-eligible offenders in England and Wales, and related information including a summary of each MAPPA area's report. See MAPPA

Newsletters and updates

  • Issue 3/2010 of 'Mental Capacity Act Update' was published by OPG/DH/WAG on 26/11/10. Articles include: OPG Transformation Project; MCA 2005 Post Legislative Scrutiny; Panel Deputy Recruitment update; Registration Times update; 2007 Lasting Power of Attorney forms; Deprivation of Liberty Safeguards - data and annual report; Best Interests Decisions Study by the Norah Fry Institute; Managing Risk, Minimising Restraint. See Office of the Public Guardian
  • Paper presented to Mental Health Lawyers Association on 19/11/10 added: Hugh Southey QC and Jesse Nicholls, 'Mental Health Law Update', November 2010. See Mental health case law#External links
  • On 12/11/10 Mind's legal unit published the November 2010 issue (number 7) of their legal newsletter. See Mind (Charity)

Other

  • On 23/11/10 the Welsh Assembly Government published 'Patients in Mental Health Hospitals and Units, 2010' and 'Admission of Patients to Mental Health Facilities, 2009-10'. See Statistics#Welsh Assembly Government
  • New SLAM guidelines for disclosure were published on 22/10/10. This Trust's policy is now (a) to provide copies of section papers on request as soon as reasonably practicable; (b) in connection with hearings, to provide access to records if the RC has not objected within 24 hours; and (c) in other circumstances, to provide access to records under the DPA, urgently if appropriate. See Mental Health Act 1983 Statutory Forms
  • Published today on 15/11/10: Victoria Butler-Cole and Alex Ruck Keene, 'Preparing care plans, transition plans and best interests assessments for Court of Protection proceedings', 39 Essex Street, November 2010. See Court of Protection#External resources
  • In October 2010 the CQC published two guidance documents: 'Mental Capacity Act: Guidance for providers' and 'Deprivation of liberty safeguards: guidance for providers'. See CQC
  • In October the Tribunals Service (Mental Health) published an updated version of 'Room Specification Recommendations for Tribunal Hearings' which is dated August 2010. See Mental Health Tribunal

Website

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