From Mental Health Law Online
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- 19/04/12 (2): Please subscribe to Mental Health Law Online's new email discussion group. It will cover all aspects of mental health law in England and Wales, from the Mental Health Act 1983 and the Mental Health Tribunal, to the Mental Capacity Act 2005 and the Court of Protection. See Discussion
- 19/04/12 (1): Mental Health Law Online is six years old today! Many thanks to all readers, contributors and subscribers.
- 18/04/12 (2): Legal Action articles on the required content of social circumstances reports and responsible authority statements, reproduced by kind permission: (1) Christopher Curran, Malcolm Golightley and Phil Fennell, 'Social circumstances reports for mental health tribunals - Part 1' (Legal Action, June 2010); (2) Christopher Curran, Malcolm Golightley and Phil Fennell, 'Social circumstances reports for mental health tribunals - Part 1' (Legal Action, July 2010); (3) Christopher Curran, Phil Fennell and Simon Burrows, 'Responsible authority statements for mental health tribunals' (Legal Action, March 2012). See Tribunal Rules
- 18/04/12 (1): David Hewitt, 'Purpose alone can no longer determine if there is a deprivation of liberty' (Solicitors Journal, 16/4/12). This article argues that the reference in the Court of Appeal decision in Cheshire West to 'purpose' as being relevant to the objective element of deprivation of liberty is not supported by the subsequent ECtHR decision in Austin. See Cheshire West and Chester Council v P (2011) EWCA Civ 1257
- 10/04/12 (4): New version. Guidance Booklet: Reports for Mental Health Tribunals — This booklet contains and expands on Practice Direction: Health Education and Social Care Chamber: Mental Health Cases. It was first published on 7/9/10, and was updated on 4/4/12 to reflect changes made by the Tribunal Procedure (Amendment) Rules 2012.
- 10/04/12 (3): Mark Hinchliffe, 'Important Notice' (29/3/12). This document describes the changes made by the Tribunal Procedure (Amendment) Rules 2012 on 6/4/12. In relation to the tribunal's requirement, in CTO reference cases, for evidence from the RC about the patient's capacity to decide not to attend or be represented, it states: 'We do not see that this should present a difficulty or a conflict of interest. The Responsible Clinician, as an expert witness, has no "interest" one way or the other and, in any event, has a responsibility to assess capacity in many situations...' See Mental Health Tribunal#Messages from Deputy Chamber President
- 10/04/12 (2): New Practice Direction on reports. Practice Direction: First-tier Tribunal Health Education and Social Care Chamber: Statements and Reports in Mental Health Cases — This Practice Direction relates to the contents of reports required for mental health cases. It supersedes Practice Direction: Health Education and Social Care Chamber: Mental Health Cases and reflects changes made by the Tribunal Procedure (Amendment) Rules 2012. In force 6/4/12.
- 10/04/12 (1): LSC, 'New Keycard 48 to be introduced from 9 April' (5/4/12). Keycard 48 reflects an increase in the standard dependants' allowances assessed for a partner or child living within the client's household; the new rates are applicable to new applications or further assessments made on or after 9 April 2012. Eligibility limits are unchanged. See Legal Aid News
- 06/04/12 (1): Case (detained patient paying for treatment): transcript and neutral citation now available. Coombs v Dorset NHS PCT (2012) EWHC 521 (QB), (2012) MHLO 13 — Whether the claimant, who had sustained a serious head injury while a detained patient, should be permitted to fund his future care. (1) The defendant argued that (a) a detained patient could not choose to pay for his treatment, particularly because the RC chose where and how he was treated; (b) allowing payment would create a contract, contrary to the purpose of the MHA to take care and treatment out of patients’ hands; (c) there was no significant difference compared with prisoners, whose expenses are met by the government under s51 Prison Act 1952; (d) while the statute did not prohibit payment, it would be contrary to public policy to allow a patient to use his own funds. (2) The claimant argued that (a) there was no reason why a detained patient should not be able to pay if he wishes; (b) while the patient could not choose where or how he was treated, he should be able to top-up payments if he preferred a placement for which the funding authority were unwilling to pay; (c) denying the right to pay would breach Article 5. (3) Held: (a) the relationship between care providers and a detained patient was different to that with ordinary patients, as the RC has the right to decide on appropriate placement and treatment, but if the patient could pay for a particular appropriate placement or treatment there was nothing to prevent this; (b) prisoners and detained patients should not be regarded in the same way: with patients there was no punitive element; patients are not detained for finite periods; the purpose and effect of s51 Prison Act 1952 had no application to patients; (c) Article 5 relates to lawfulness of detention, not conditions of detention (which concerned Article 3); (d) public policy considerations amounted to mere repetition of other arguments; (e) a detained patient is not prevented from paying for his own care or treatment. The defendant was granted permission to appeal. [Based on Lawtel summary.]
- 05/04/12 (1): The following was asked on a discussion page on 2/4/12. 'Does anyone know: if a CTO inadvertently lapses (i.e. is not renewed by accident) does the original section 3 which the CTO was suspending come back into being? I know if you discharge someone from the CTO that discharges from the section 3. If you revoke the CTO then the Section 3 will come back into being. But if the CTO just lapses does that also mean that the Section 3 that was suspended has lapsed by default as well? I don't know the answer but if anyone does that would be really helpful. Thanks'. The answer is that when the CTO expires the s3 ceases to have effect: see s20B.
- 01/04/12 (1): The government have announced that from 1 April 2012, following the Court of Appeal decision in Cheshire West and Chester Council v P (2011) EWCA Civ 1257 and the subsequent High Court decision in Re C; C v Blackburn and Darwen Borough Council (2011) EWHC 3321 (COP), the entire Mental Health Act 1983 will be repealed. The government spokesman, Avril Poisson, said: “Those subject to the Act lack capacity, as demonstrated by their inability to comply with voluntary inpatient treatment, and they should be treated equally to others who lack capacity. Recent case law on deprivation of liberty has shown that the relevant contrast when assessing ‘relative normality’ is not ‘the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead’ but rather ‘the kind of lives that people like X would normally expect to lead’ (Cheshire West, para 102). Periods of hospital inpatient treatment are normal, as an inevitable corollary of psychiatric disabilities: during those periods there are no realistic alternatives and no deprivation of liberty within the meaning of Article 5 of the European Convention.” She said that the 29-year-old Act would be abolished with immediate effect because it is no longer fit for purpose, and that the “so-called” deprivation of liberty safeguards would also come under scrutiny. “When I use a word,” she said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.” [Hope you enjoyed the April Fools' Day joke!]
- 30/03/12 (1): The March 2012 CPD questionnaire is now online. Obtain 12 accredited CPD points for £60. See CPD scheme
- 28/03/12 (6): CQC, 'The operation of the Deprivation of Liberty Safeguards in England, 2010/11' (March 2012). Key findings: '(1) 8,982 applications to deprive a person of their liberty were processed, of which 50 per cent were authorised. (2) Many services have developed good practice on the use of the safeguards, especially in involving people and their families in the decision-making process, but some were confused as to when restraints or restrictions on a person amounted to a deprivation of liberty. (3) Between a third and a quarter of care homes had not provided their staff with training on the safeguards, and in some cases only the manager had received training. (4) Most hospitals had held some training, but the proportion of staff involved ranged between 20-100 per cent.' See also: CQC, 'Summary: The operation of the Deprivation of Liberty Safeguards in England, 2010/11' (March 2012); Lucy Series, 'CQC's second monitoring report on the deprivation of liberty safeguards' (Small Places blog, 27/3/12). See CQC
- 28/03/12 (5): LSC, 'Accreditation contribution scheme update' (28/3/12). From 2/4/12 the LSC will reduce the amount it contributes to the costs of mental health panel membership by 50% to £73.44; from 1/4/13 there will be no contribution at all. In recent weeks the Law Society's accreditation fees doubled to £500 plus VAT. See Legal Aid News
- 28/03/12 (4): Case transcript. A London Borough v VT (2011) EWHC 3806 (COP) — "The primary matters on which decisions need to be made by the court are: (1) Should ST live at L (or possibly some other care home type accommodation in London) or in his property at X, Nigeria; (2) If ST remains at L, is he being deprived of his liberty and, if he is being so deprived, does that remain appropriate; (3) Should ST's property and affairs deputy be AT or Mr G, the current interim independent professional deputy?" [Summary required.]
- 28/03/12 (3): Case transcript. EB v RC (2011) EWHC 3805 (COP) — "This is an application by the applicant, IB, for the removal of the respondent as his mother's deputy for property and affairs. There is also a counter-application by the respondent, RC, for orders that the applicant sign letters of authority in relation to two bank accounts that are held in the joint names of EB and the applicant." [Summary required.]
- 28/03/12 (2): Neutral citation available. Re JDS; KGS v JDS (2012) EWHC 302 (COP), (2012) MHLO 4 — "This is an application for a gift to be made to the parents of a young man who has been awarded damages for clinical negligence. The purpose of the gift is to reduce the amount of Inheritance Tax that they may have to pay on his death." [Summary to follow.]
- 28/03/12 (1): Case summary. DL v A Local Authority (2012) EWCA Civ 253, (2012) MHLO 32 — The local authority brought proceedings under the High Court’s inherent jurisdiction to protect his parents from DL; these proceedings could not have been brought under the MCA 2005 as the parents did not lack capacity under that Act; DL argued that the MCA, by establishing a comprehensive scheme for adults, had displaced the inherent jurisdiction. (1) The inherent jurisdiction of the High Court in relation to vulnerable adults survives the implementation of the MCA 2005, which only relates to adults who lack capacity as defined in the Act. (2) The absence of any express provision in relation to the inherent jurisdiction implies that it continues to be available, as 'the great safety net', where the Act does not apply; in any event, there is a strong policy justification, the protection of vulnerable adults, for this conclusion. (3) The jurisdiction is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (a) under constraint; or (b) subject to coercion or undue influence; or (c) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.