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28/06/15 (2): MHLA re-accreditation course. The Mental Health Lawyers Association are running a Refresher and Re-accreditation course on Thursday 9/7/15 in Manchester. This new course will be suitable for those seeking re-accreditation and will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website for further information and to book online. See Events
28/06/15 (1): MHLA Legal Aid course. The Mental Health Lawyers Association are running a Legal Aid and Peer Review course on Monday 6/7/15 in London, and on Friday 10/7/15 in Manchester. This course provides guidance on the Legal Aid provisions in mental health cases, including escape-fee cases and requirements for means testing. It will also broaden practitioners’ knowledge of the peer review process and the peer review ‘Improving your Quality’ guidance. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website for details of the London and Manchester courses, and to book online. See Events
26/06/15 (1): Capacity/housing case.R (MT) v Oxford City Council (2015) EWHC 795 (Admin), (2015) MHLO 47 — The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the Housing Act 1996. (1) The claimant's argument that Article 14 (with Article 8) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 National Assistance Act 1948).
24/06/15 (2): Unfitness to plead case.R v Wells (2015) EWCA Crim 2, (2015) MHLO 46 — "Where a defendant's disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances."
24/06/15 (1): Miscellaneous case.Re A (2015) EWHC 1709 (Fam), (2015) MHLO 45 — "The Local Authority applies for a secure accommodation order in respect of her under s.25 of the Children Act 1989. The Local Authority's case is that A is a danger to herself and others, and that she is no longer containable in any form of ordinary residential unit. ... Put in lay language, the expert consensus of CAMHS is that A's problems, although recognised as being severe and extreme, are not of a mental health or psychiatric nature; but rather are of a behavioural nature. Therefore, admission to a Young Person's Psychiatric Unit for assessment and potential subsequent treatment is not currently 'on offer' as a way of dealing with A's problems. ... Conventionally, a specific placement is identified before a secure accommodation order is made. However, that is simply not possible here, and both the Local Authority and the Children's Guardian invite me to make the order in general terms, leaving it to the Local Authority, on consultation with the Children's Guardian, to place A at an appropriate unit as and when one is identified. ... A can be seen as falling between two stools. She is not amenable to a psychiatric disposal on the expert report available, but she is unable to be contained in ordinary residential homes. It is clearly unsatisfactory that no secure arrangements can readily be found for her, and that she remains currently at some measure of risk, howsoever hard the staff struggle to contain it, in the ordinary residential unit where she is placed. The Local Authority must, and will, therefore continue its efforts to find secure accommodation. They tell me that funding is not a problem in this case. The Local Authority will also be considering the possibility of obtaining an independent psychiatric report into her situation, which could then be shared with the local CAMHS team to see if it affected their current opinion."
18/06/15 (1): Editable versions of section papers. Following a request, rich text format (RTF) versions of forms A2, A3 and A4 (the section 2 detention papers) have been uploaded. If there is sufficient demand, other forms can be converted from PDF and made available. See Mental Health Act 1983 Statutory Forms
17/06/15 (1): Deprivation of liberty procedure.Re X (Court of Protection Practice) (2015) EWCA Civ 599, (2015) MHLO 44 — This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (MCA 2005 s53), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, so the streamlined "Re X" procedure was not compliant with Article 5. (Detailed summary on case page.)
12/06/15 (4): New book: Matthew Graham and Jakki Cowley, A Practical Guide to the Mental Capacity Act 2005 (JKP 2015). Foreword by Alex Ruck Keene. Available from Amazon. See Books
11/06/15 (2): Dept of Health, 'Section 67 of the Mental Health Act' (v4, 23/4/13). This version contains updated contact details. See MHA 1983 s67
11/06/15 (1): Correction. The correct telephone number for DH s67 references is 0207 210 5359 (not 5357). See MHA 1983 s67
09/06/15 (1): Social circumstances evidence.AF v Nottinghamshire NHS Trust (2015) UKUT 216 (AAC), (2015) MHLO 43 — "There is nothing in the law that requires the social circumstances report to have been written by a social worker or CPN and not a nurse, or requiring that the nursing report and social circumstances reports must have different authors, and the tribunal therefore did not err in law in having those two reports before it. Nor was there any legal requirement on the report’s author to attend the hearing and so the tribunal did not err in law in allowing another nurse to attend and speak to that report. Further, the question of whether any deficits in the report (assuming there were such) led the tribunal to err in law must be judged on the facts of the individual case. In a case where the tribunal decided that the appellant had not got to the point of being able to be discharged and needed to remain under section, the relevance of any after-care package in place simply falls away. And the tribunal adequately explained why it was not adjourning."
08/06/15 (2): Job advert (ODonnells). ODonnells Solicitors in Preston are seeking to recruit a mental health lawyer. Panel membership is not essential. For further details see Job adverts
08/06/15 (1): Guardianship and DOLS case.KD v A Borough Council (2015) UKUT 251 (AAC), (2015) MHLO 42 — "Permission to bring this appeal was granted by the First-tier Tribunal (the FTT) because in the view of the judge it raises points upon which guidance is needed. Those points concern the relationship between the functions and powers of the FTT under the Mental Health Act 1983 (the MHA) and those of the Court of Protection, managing authorities and supervisory bodies under the Mental Capacity Act 2005 (the MCA) and its Deprivation of Liberty Safeguards (DOLS). The most relevant provisions of the MHA in this case are those relating to guardianship."
01/06/15 (1): DH contact details. New Department of Health contact details added for use when seeking Tribunal references. See s67
26/05/15 (1): Just Giving, 'Paul's British Isles Walk: Walking through The British Isles for Big C' (April-May 2015). Paul Veitch is a great mental health solicitor who has given permission this link to be included here. Introductory story from website: "Two years ago I was diagnosed with incurable bowel cancer as it had secondaried into my lymph system. So far I have responded very well to treatment and so I am embarking on a two month walk mainly because I love nature and walking. If all goes well I plan to walk part of the east coast of Suffolk and Essex, the Ridgeway National Trail, the South Downs Way and Saint Cuthberts Way. I will then spend a week with the community on Iona and then in May walk up the West Coast of the outer Hebrides. I should be walking approximately 400 miles. While we all want to be cured of cancer, just as important is to be cared for, and that is why I have chosen the Big C as a charity if you would like to make a donation. Big C provides that care by giving sufferers the space to relax in their centres. They also give practical help and advice, friendship and support as well as supporting research." See Just Giving website (and Miscellaneous external links page)
24/05/15 (1): Best interests case.Re MN (An Adult) (2015) EWCA Civ 411, (2015) MHLO 41 — "The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself."
23/05/15 (2): COP costs case.LB Redbridge v G (No 6) (2015) EWCA Civ 446, (2015) MHLO 40 — The Official Solicitor unsuccessfully appealed against an order that Associated Newspapers Limited should pay (only) 30% of his costs. (1) The primary ground of appeal - that the COP Rules did not apply - was described by the Court of Appeal as "simply a device to suggest that the costs presumption should be reversed". (2) The alternative ground was that if the COP Rules did apply then the judge had erred in the exercise of his discretion in the proportionate costs order that he made. In relation to this the Court of Appeal held that (a) given that inaccurate letters from the OS (stating that that ANL were prevented from visiting G) had triggered ANL's application, and that the OS had not understood the public importance of the media's general role, a proportionate costs order was unsurprising; and (b) multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs.
23/05/15 (1): Negligence claim.ABC v St George's Healthcare NHS Trust (2015) EWHC 1394 (QB), (2015) MHLO 39 — The claimant's father had killed his wife, was detained under s37/41, and refused to allow the Trust to inform his pregnant daughter of his Huntingdon's disease diagnosis. She claimed that the failure to inform her: (a) was negligent and breached Article 8; and (b) had caused psychiatric damage, and (if her daughter also has the disease) additional expense which she would have avoided by an abortion. Her claim was struck out.
14/05/15 (5): Taking Stock Conference, 16/10/15. The 2015 Annual Taking Stock Conference (The Mental Health & Mental Capacity Acts in Practice) will take place on Friday 16/10/15 at the Royal Northern College of Music, Manchester. Confirmed speakers (others TBC): Diana Rose, Alistair Burns, Neil Allen, Mathieu Culverhouse, Mat Kinton, Jenny Shaw. CPD: 4.5 SRA-accredited hours (0930-1600). Fee: £125; £100 for bookings made before 27/6/15; reduced-price places for voluntary sector organisations. See flyer for further details and booking information. See Events
14/05/15 (4): Legal Aid Agency, 'Keycard 51' (April 2015). This document is helpful when working out financial eligibility for civil Legal Aid. In force 6/4/15. See Legal Aid#Guidance documents