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  • 22/07/14 (4): Criminal appeal. R (M) v Kingston Crown Court (2014) MHLO 50 (DC)M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it.
  • 22/07/14 (3): Ministry of Justice, 'MAPPA guidance' (version 4, 2012). Link to this guidance added. See MAPPA
  • 22/07/14 (2): Transfer procedure. R (L) v West London MH NHS Trust (2014) EWCA Civ 47, (2014) MHLO 49(1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his representative, and that the patient be afforded an opportunity to make written submissions to the panel."
  • 22/07/14 (1): Northern Irish case. MH v MHRT for NI (2014) NIQB 87, (2014) MHLO 48The patient challenged the MHRT's decision on the grounds that "(i) the approach of the MHRT was unlawful and that the MHRT had not adopted the narrow focused based approach required under Article 77(1) and Article 2(4) of the Order and, (ii) the MHRT had misunderstood the meaning of "discharge" and had failed to take into account the applicant's stated intention which was to remain in hospital as a voluntary patient if discharged from detention". These challenges were rejected. The tribunal's decision was the only reasonable one on the evidence.
  • 19/07/14 (3): Guardian, 'Murderer not entitled to remain anonymous while seeking rehabilitation' (Press Association, 16/7/14). A restricted transferred prisoner patient in medium security judicially reviewed the Secretary of State's refusal to grant permission for unescorted community leave. Cranston J refused to make an anonymity order, a decision upheld by the Court of Appeal (Lord Dyson MR; Maurice Kay LJ, VP; Floyd LJ). It is understood that an appeal will be made to the Supreme Court. See Forthcoming judgments#Re X (anonymity)
  • 19/07/14 (2): New journal. International Journal of Mental Health and Capacity Law — The Journal of Mental Health Law is to be relaunched as the International Journal of Mental Health and Capacity Law. It will be an open-access online journal hosted by the University of Northumbria. The editor-in-chief will be Kris Gledhill, and volunteers (academics, legal practitioners, and mental health professionals) are sought for the editorial teams.
  • 17/07/14 (5): Tribunal decision. Re Jared Britton (2013) MHLO 146 (FTT)Extract from decision: "In a decision given on 26 September 2011, the application by Mr Jared Britton that his application dated 4th September 2009 should be held in public was granted. The fact of this decision should be published. The reasons for the decision must not to be made public. An open hearing is now listed at Liverpool Crown Court on Wednesday 3rd April 2013 for an all day hearing starting at 10.30am."
  • 17/07/14 (4): Legal Aid Agency, 'Community care and mental health contract documents' (17/7/14). From 21/7/14 the LAA will (1) issue contract documentation to those who have completed verification and (2) notify those who have not completed verification what information is outstanding and when it is required. See Legal Aid#2014 Contract
  • 17/07/14 (3): Immigration case. R (O) v SSHD (2014) EWCA Civ 990, (2014) MHLO 47 — "This issue on this appeal is whether the Secretary of State for the Home Department ("the Secretary of State") could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. ... Accordingly, I would dismiss this appeal. The new diagnosis of Dr Agnew-Davies proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if O was released into the community and these were not put in place to the satisfaction of the court until 6 July 2011 when she was in fact released on bail."
  • 17/07/14 (1): Legal Aid case. R (Public Law Project) v SSJ (2014) EWHC 2365 (Admin), (2014) MHLO 46The proposed legal aid 'residence test' was unlawful: (1) the statutory instrument containing it was ultra vires and unlawful, as LASPO did not permit such a criterion to be introduced by secondary legislation; (2) residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO. [Detailed WLR (D) summary available.]
  • 12/07/14 (6): 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 47, June 2014). Also: (1) Lucy Series et al, 'Mental Capacity Law Mental Discussion Paper: The Mental Capacity Act 2005, the Adults with Incapacity (Scotland) Act 2000 and the Convention on the Rights of Persons with Disabilities: The Basics' (June 2014); (2) Sally Jones, 'Challenges for the Office of the Public Guardian' (June 2014). See 39 Essex Street Mental Capacity Law Newsletter
  • 12/07/14 (4): 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 45, April 2014). Also: (1) Alex Ruck Keene and Catherine Dobson, 'Deprivation of liberty in the hospital setting' (39 Essex Street, 10/4/14); (2) Adrian Ward, 'Scottish Adult Incapacity Law: Part 2' (April 2014); (3) Alex Ruck Keene et al, 'Mental Capacity Law Guidance Note: A brief guide to carrying out capacity assessments' (31/3/14); (4) Simon Edwards, 'Testamentary Capacity and the Mental Capacity Act' (March 2014); (5) Alex Ruck Keene et al, 'Deprivation of Liberty after Cheshire West: key questions for social workers and medical practitioners' (April 2014). See 39 Essex Street Mental Capacity Law Newsletter
  • 12/07/14 (2): Healthwatch, 'People's inquiry to uncover pitfalls of discharge from hospitals and care homes' (press release, 7/5/14). Extract: "Healthwatch England is today launching our first ever special inquiry to find out why things so often go wrong when people are discharged from health and social care institutions. In contrast to standard public inquiries, this investigation will be led by people with direct experience of unsafe discharge and will reach out to communities right across the country through site visits, focus groups, public hearings, and the mobilisation of the 148 local Healthwatch, to hear real life experiences of the discharge process and learn what can be done to improve outcomes." Website pages include "Tell us your story about leaving hospital or care" and "Get your organisation involved". See Miscellaneous external links
  • 12/07/14 (1): Law Commission, 'Unfitness to plead: An issues paper' (2/5/14). Consultation runs from 2/5/14 to 25/7/14. Extract: ""We are now reviewing our provisional proposals in light of the consultation responses, and taking into account the changes to the criminal justice system since we produced the consultation paper in October 2010. ... These further questions address issues such as: (1) How should special measures to enhance the defendant’s ability to participate in trial be fairly incorporated into the test for unfitness? (2) Should the procedure in the magistrates’ and youth courts mirror that in the Crown Court? (3) What should the process be for dealing with a defendant when he or she has been found unfit to plead? (4) At a hearing to deal with a defendant found unfit, what issues should be considered by the court? (5) What options should the court have in dealing with unfit defendants?"" See Consultations#Law Commission
  • 11/07/14 (4): Department of Health, 'Stronger Code: Better Care: Consultation on proposed changes to the Code of Practice: Mental Health Act 1983' (7/7/14). Extract from press release: "Our consultation ‘Stronger Code: Better Care’ is asking for your thoughts on a new draft Code which includes: (1) five new guiding principles; (2) significantly updated chapter on how to support children and young people, on the use of restraint and seclusion and the use of police powers and places of safety; (3) new chapters on care planning, equality and human rights, links to the Mental Capacity Act and Deprivation of Liberty Safeguards, and support for victims." Related documents: (1) Department of Health, 'Mental Health Act Code of Practice consultation launched' (press release, 7/7/14); (2) Department of Health, 'Mental Health Act 1983: Draft Code of Practice for consultation' (7/7/14). See Consultations#Department of Health
  • 11/07/14 (1): Legislation. Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 — These regulations were required to be made by the European Union's Directive 2011/83/EU. They specify the circumstances in which consumers can cancel contracts and the related information which must be supplied by traders, and create a criminal offence. Legal Aid is not specifically excluded, but the regulations (in relation to the "Information requirements" Part 2 and the "Right to cancel" Part 3) state that "This Part does not apply to off-premises contracts under which the payment to be made by the consumer is not more than £42" (regulations 3(4) and 27(3)). In force 13/6/14.
* To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website (for now), and will be marked with asterisks.

Update archive