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October 2013 update

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Cases

  • ECHR case. MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94(1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case to the tribunal). (b) The period between the extension of s2 by s29 displacement proceedings and the tribunal's decision not to discharge. The Secretary of State, in circumstances where refusal would prevent a speedy judicial decision, has no discretion but is under a duty to make a tribunal reference. In this case: (i) there was such a tribunal within a month, which was not an unreasonably long period; and (ii) the fact that there was a tribunal meant that the patient was not a victim of the alleged shortcoming in the mental health system. There was no Article 5 breach. The situation of a patient without a nearest relative willing and able, through solicitors, to seek a reference was raised by the court but not considered. (c) The period between the tribunal decision and the patient's move from hospital. During this period, the legal basis of detention was no longer s29 but was the tribunal's judicial decision not to discharge. A judicial decision does not endure eternally, so a patient detained for an indefinite or lengthy period is subsequently entitled to take proceedings at reasonable intervals, but the four-month period in this case was not sufficient to breach Article 5. (2) No claim for just satisfaction was made so no compensation was ordered. (3) Legal costs were reduced to €5250 from the €5825.06 sought.§
  • Upper Tribunal case. DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93This is the latest in a series of cases considering personality disorder, refusal to engage in treatment, and the question of whether the 'appropriate medical treatment is available' test in s72 is met. (1) Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration - although a patient may well continue to satisfy the conditions for detention despite refusing to engage. (2) In this case, the tribunal did not seem to have asked itself whether the deterioration after recall might not have been a response to detention rather than a manifestation of his mental disorder: this was relevant to the questions of 'nature/degree' and of whether the available treatment was appropriate, so the decision was set aside.§
  • Medical case. Aintree University Hospitals NHS Foundation Trust v David James [2013] UKSC 67, [2013] MHLO 95 — "This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?" [Summary required.]§
  • Best interests case. A Local Authority v ED [2013] EWHC 3069 (COP), [2013] MHLO 92 — "The issues: (1) Does she have litigation capacity? (2) Does she have capacity to make decisions as to: (i) Where she should live; (ii) Contact; (iii) Her personal care needs; (iv) The removal of her pubic hair; (v) Whether or not she can consent to give an Achieving Best Evidence interview. (3) If the answer to any of the above is 'no', what are her best interests in respect of each? (4) Should there be a protocol governing the enquiries to be made, (which could be used in the investigation by the police/Local Authority and/or Official Solicitor if in post), of purported allegations made by her as to, for example, physical assaults upon her? If yes, what should be the operative terms and conditions of such a protocol?" [Summary required.]§
  • Sex case. A Local Authority v TZ [2013] EWHC 2322 (COP), [2013] MHLO 91 — "The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations." [Summary required.]§

Law Society

  • Law Society, 'Hazards with the use of Court-approved Deprivation of Liberty Safeguards (DoLS) and Legal aid' (4/10/13). See Law Society
  • Law Society, 'House of Lords Select Committee: Mental Capacity Act 2005: [Response to] Call for Evidence' (September 2013). See Law Society

Articles/newsletter

  • Vicky Ling, 'Mental Health, Public Law, Actions Against the Police etc., Clinical Negligence, Community Care Contracts – What’s happening?' (Legal Aid Handbook Blog, 21/10/13). See Legal Aid
  • Andy McNicoll, 'CQC to appoint senior mental health inspector to "root out poor services"' (Community Care, 11/10/13). See CQC#Other

Event

  • Event. Fenners Chambers in Cambridge will be running their second Annual Mental Capacity Symposium, 'Vulnerable Adults in the Justice System', over 5 evenings from Monday 11/11/13 to Friday 15/11/13. Seminars will cover the following practice areas: Mental Health and Capacity, Employment, Crime, Public Law, Family, Elderly Client, and Property. The Keynote Address on 15/11/13 will be given by Dr Jan Wise, Chair of the BMA's Medico-Legal Committee, on Capacity Assessments and Best Interests Decision-Making. Price: £30 including VAT per seminar before 25/10/13; £36 including VAT after 25/10/13. CPD approval has been applied for: 1.5 hours for for the seminars; 1 hour for the Keynote Address. See Fenners Chambers website for further details. See Events

Website

  • Email discussion list. The discussion list is now back online. For details of the list, see Discussion
  • CPD. LSC category supervisors must 'undertake a minimum of 6 hours of Continuing Professional Development per year in the Mental Health Category of Law of which no fewer than 3 hours must be on the Mental Capacity Act 2005'. The CPD questionnaires currently online are sufficient for this purpose. All questions are mental-health-related, but the following are MCA-related: Sep 2012 (0.5 hours), Oct (0.5), Nov (0.5), Dec (0.25), Jan 2013 (0.5), Feb-Mar (0.5), Mar (0.5), Apr (0.75), May (0.5), Jun-Jul (0.75), Jul (0.25), Aug (0.5). See CPD scheme

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