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June 2010 update

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Case law

  • KF v Birmingham and Solihull Mental Health NHS Foundation Trust [2010] UKUT 185 (AAC) — Various issues including (1) what should happen where an appeal from a First-tier Tribunal's substantive decision on a s2 application is overtaken by events and (2) whether a s3 reference to the First-tier Tribunal lapse once a CTO is made. [Summary required.]§
  • SSHD v AP [2010] UKSC 24 — Control order/deprivation of liberty case. [Summary required.]§
  • R (Mwanza) v LB of Greenwich [2010] EWHC 1462 (Admin)The claimant was an illegal overstayer who tried to use a s3 admission eight years earlier to obtain free accommodation. (1) An after-care service under s117 must be a service that is necessary to meet a need arising from a person's mental disorder. It does not cover any and all services simply because those services do or may prevent deterioration of relapse of a mental condition. Employment and ordinary accommodation are common needs which do not arise from mental disorder, although mental disorder may give rise to a need for assistance in finding them. However, as a matter of law, ordinary accommodation could fall within s117, although it is difficult readily to envisage any practical examples. (2) On the facts, there could be no duty under s117 to provide what was sought. (3) In any event, eight years earlier a lawful decision had been made to discharge the s117 responsibilities of the local authority and the Trust, so no s117 duty arose. (4) Furthermore, it would be inappropriate to extend the time for this judicial review claim by eight years: the claimant was aware of the discharge decision and had taken no action. (5) The claimant was not in need of "care and attention" under s21 National Assistance Act 1948, as he was looked after by his wife and only needed accommodation. (6) In any event, the council were forbidden from providing s21 assistance because neither he nor his wife had leave to remain and refraining from providing assistance could not arguably breach their human rights.§
  • TTM v LB Hackney [2010] EWHC 1349 (Admin)(1) There was a division of opinion in the treating team so it was considered ‘impracticable’ to obtain two medical recommendations from doctors with previous acquaintance of the patient: this was lawful as a reasonable and proper exercise of judgment of what was in the patient’s best interests. (2) The hospital were entitled to rely on the s6(3) protection (that any application which appears to be duly made etc may be acted upon without further proof) because the managers were entitled to rely on the AMHP’s confirmation that there had been no objection from the NR and because there had been no breach of s12(2). (3) As an AMHP is treated as acting on behalf of the LSSA the relevant council is vicariously liable for any lack of care or bad faith on the part of an AMHP: the council was therefore the correct defendant. (4) The proposed claim was based on the AMHP’s mistaken belief that the NR had not objected. A duty of care existed but there was no reasonable prospect of success in any negligence claim: therefore leave under s139(2) was not given. (5) Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow. The claimant’s detention was lawful until prospectively declared unlawful in the habeas corpus proceedings. It followed that the detention was not unlawful in domestic law so that there was no breach of Article 5, and so no claim for compensation under Article 5(5). (6) In the circumstances there is no Convention incompatibility in either s139 or s6(3). [Caution.]§
  • R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)RB was conditionally discharged with a condition that he should not leave a care home without an escort; the MoJ sought a review on the basis that the condition constituted a deprivation of liberty and there was therefore no lawful discharge; the Regional Tribunal Judge set aside the conditional discharge, remitted the case to the First-tier Tribunal, and refused permission to appeal to the Upper Tribunal. (1) It is only appropriate for the First-tier Tribunal to exercise its set-aside powers where there has been a clear error of law; where the legal points are contentious the case should be allowed to proceed to the Upper Tribunal. (2) The RTJ's decisions were quashed/set aside, and permission was given to the MoJ to appeal against the conditional discharge.§
  • Watts v UK 53586/09 (2010)The challenge to a care home closure, based on Articles 2, 3, 8 and 14, was declared inadmissible.§

Other documents

  • On 17/6/10 the LSC published a statement on Mental Health contract awards. See Legal Aid
  • "Court of Protection: 2009 Report" published on 10/6/10. This first report of the Court of Protection, covering the period from 1/10/07 to 31/12/09, describes the work undertaken by the court and summarises several reported decisions. See Court of Protection
  • Notifications for the award of contracts in mental health law were sent out on 10/6/10 via the Bravo e-tendering message boards. These inform applicants of the number of Matter Starts awarded to them in each Strategic Health Authority Procurement Area. See Legal Aid
  • New page. National Policing Improvement Agency — The NPIA is a non-departmental public body which, among other things, develops guidance on behalf of the Association of Chief Police Officers. The ACPO is a private limited company. Recent guidance, published on 27/5/10, is entitled "Guidance on Responding to People with Mental Ill Health or Learning Disabilities 2010". The associated briefing notes are on (1) Recognising Mental Ill Health and Learning Disabilities, (2) Establishing Multi-Agency Protocols for Responding to Mental Ill Health and Learning Disabilities, (3) Providing Assistance with Pre-Planned Mental Health Assessments on Private Premises, and (4) Applying the Mental Capacity Act 2005.§
  • On 4/6/10 the Scottish Government published a "Memorandum of Procedure on Restricted Patients". See Mental health law in Scotland
  • The MHT contact page has been updated. It now contains details of (1) the case progression teams (north and south), (2) the section 2 team, (3) the reports team, (4) the judicial booking team, and (5) the decision team. The email for complaints remains ocuhelpdesk@tribunals.gsi.gov.uk See Mental Health Tribunal#External links
  • New chapter on "Mentally disordered indeterminate sentence prisoners" inserted into PSO 4700: Indeterminate Sentence Manual with effect from 19/4/10. See Transfer direction

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