Annual Review 2013
The Annual Review 2013 contains all news items, arranged thematically, which were added to the website during 2013.
It is available in the following formats:
Chapters 1, 2 and 3 reflect the structure of the website by covering cases, legislation and general information respectively. An innovation in this year’s edition is to set out, in chapters 4 and 5, ‘retweets’ from Twitter and topic headings from the email discussion list. Books published, and events organised, during 2013 are set out in chapters 6 and 7. The final chapter then covers some updates relating to the website itself.
Each item beside a round bullet point is associated with a website page, the title of which is underlined, and which can be located by using the website search function. Arrow bullet points indicate any further resources which are available from the website page.
[Chapter numbering and description of bullet points relate to the paperback version.]
Comments and suggestions are welcome.
Thanks are due to the following people for contributing case transcripts which were not available elsewhere.
- Alex Ruck Keene, 39 Essex Street
- Neil Allen, 39 Essex Street
- James Batey, Court of Protection
If you have any material which has not yet been published, such as case transcripts, please get in touch.
Thanks are also due to Joe Ury of Bailii for assisting with the creation of automatic Bailii links from neutral citation numbers
Copyright and disclaimer
(c) Jonathan Wilson 2014. See http://www.mentalhealthlaw.co.uk/Copyrights
Lasting Power of Attorney summaries are Crown Copyright and are reproduced under the Open Government Licence.
Every effort has been made to ensure accuracy but no legal liability for errors/ormissions is accepted. If you require legal advice please speak with a lawyer rather than rely on this document.
Mental Health Law Online
Mental Health Law Online is an internet resource on mental health law on England & Wales, primarily for mental health practitioners.
All of the features mentioned below are available via the home page, which is at www.mentalhealthlaw.co.uk
Features of Mental Health Law Online include:
- CPD scheme. Obtain 12 CPD points per year by completing online multiple-choice questionnaires based on the monthly updates. Suitable for solicitors (SRA-accredited), barristers (established practitioners), psychiatrists, social workers and psychiatric nurses.
- Email updates. You can choose whether to receive emails on a monthly or more frequent basis.
- Twitter feed. Follow @mhlonline at www.twitter.com/mhlonline - many interesting news items from sources external to the website are 'retweeted' here.
- Email discussion list. Discuss all aspects of mental health law in England & Wales with other mental health practitioners.
- Books. A selection of books is available from the online bookshop.
- Buy me a coffee. Mental Health Law Online is free to use and maintained on a voluntary basis. If you or your organisation find this website useful, please consider making a Paypal donation.
- 1 Introduction
- 2 Acknowledgements
- 3 Copyright and disclaimer
- 4 Mental Health Law Online
- 5 Contents
- 6 Cases
- 6.1 Mental Health Act and the Mental Health Tribunal
- 6.2 Community care and mental health aftercare
- 6.3 Court of Protection and other capacity cases
- 6.3.1 End of life
- 6.3.2 Babies
- 6.3.3 Medical treatment
- 6.3.4 Deprivation of liberty
- 6.3.5 Litigation friend
- 6.3.6 Imprisonment for contempt
- 6.3.7 Residence, contact, personal care
- 6.3.8 Sex and marriage
- 6.3.9 Deputyship
- 6.3.10 Wills
- 6.3.11 Litigation capacity
- 6.3.12 Costs
- 6.3.13 Neglect or ill-treatment under s44 MCA 2005
- 6.3.14 Miscellaneous capacity cases
- 6.4 Criminal law
- 6.5 Legal Aid
- 6.6 Lasting Powers of Attorney
- 6.7 Solicitors Regulation Authority decisions
- 6.8 Welfare benefits
- 6.9 Immigration and extradition
- 6.10 Prison law
- 6.11 Miscellaneous England & Wales cases
- 6.12 European Court of Human Rights
- 6.13 Scottish cases
- 7 Legislation
- 8 General information
- 8.1 Mental Health Tribunal
- 8.2 Court of Protection
- 8.3 Law Society
- 8.4 Dept of Health
- 8.5 Ministry of Justice
- 8.6 Legal Aid / Legal Aid Agency
- 8.7 Law Commission
- 8.8 Official Solicitor
- 8.9 Care Quality Commission
- 8.10 Parliamentary scrutiny
- 8.11 Statistics
- 8.12 Newsletters
- 8.13 Other jurisdictions
- 8.14 Miscellaneous articles and documents
- 9 Twitter
- 10 Email discussion list
- 11 Books
- 12 Updates about the website
- 13 Publication information
- UKUT - Upper Tribunal
- EWHC - High Court
- COP - Court of Protection
- QBD - Queen's Bench Division
- Ch - Chancery Division
- EWCA - Court of Appeal
- UKSC - Supreme Court
Mental Health Act and the Mental Health Tribunal
- MHA/MCA interface. AM v SLAM NHS Foundation Trust  UKUT 365 (AAC),  MHLO 80 — It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.]§
In this case it was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally under s131 MHA 1983 and that, as she lacked capacity, assessment/treatment could be carried out under s5 MCA 2005 instead (and under DOLS if the circumstances required it).
The gist of the case is that the tribunal (and other decision makers) should ask three questions once it is established that admission to hospital (as opposed to treatment elsewhere) is warranted:
- 1. Does the relevant person have the capacity to consent to the arrangements referred to in s131 MHA?
- If the person has capacity then only the MHA is relevant.
- If the person lacks capacity then consider question 2.
- 2. Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the relevant person?
- There are two issues here:
- (a) Is P eligible for DOLS? He is ineligible if he objects.
- i. If the person is a non-compliant incapacitated patient then only the MHA is relevant.
- ii. If the person is a compliant incapacitated patient, then consider the next issue.
- iii. [The situation where the person objects to some but not all treatment was left undecided.]
- (b) Would DOLS be required? It is required 'when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty'.
- (a) Is P eligible for DOLS? He is ineligible if he objects.
- If either answer is 'No' (non-compliant or DOLS not required) then only the MHA is relevant.
- If the answers are 'Yes' (compliant and DOLS required) then consider question 3.
- 3. How should the existence of a choice between reliance on the MHA and the MCA and its DOLS be taken into account?
- In considering the MHA 'necessity' test consider the following:
- (a) Is the MCA regime actually available in practice?
- (b) When would it be available? (Relevant to deferring discharge.)
- (c) Which regime involves the least restrictive way of best achieving the proposed assessment or treatment?
- i. Relevant considerations include fluctuating capacity and the likelihood of continued compliance.
- ii. Ignore the GJ principle (about the MHA having primacy) here.
- iii. If DOLS is less restrictive then it will 'generally but not always' be more appropriate.
On the compliance issue the tribunal had concluded: 'We are satisfied that if the order were discharged, [AM] would be taken home by her daughters although she appeared to be quite happy in the hospital environment herself.' The Upper Tribunal decided the tribunal's various findings had not properly address the question of whether AM would be compliant with informal admission. The decision was therefore unlawful and the case was remitted to a differently-constituted tribunal.
- Adverse inferences and recusal. MM v Nottinghamshire Healthcare NHS Trust  UKUT 107 (AAC),  MHLO 25 — The patient had been visited by an independent doctor but did not rely on a report from him. The hospital argued that the tribunal should infer that the doctor had been instructed to prepare a tribunal report, that this report was not favourable to the patient, and that it concurred with the clinical team's opinion. The patient appealed, arguing that (in light of the hospital's argument) the panel should have recused themselves for there to be a fair hearing. (1) In relation to the hospital's argument: (a) as a matter of practical reasoning, it could never succeed (invalid inferences); (b) as a matter of law, it may not be permissible (requiring inferences to be drawn from other inferences); and (c) it failed to take into account the context: 'The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine any realistic circumstances in which a tribunal, having such evidence, could properly rely on the failure by a patient to produce a report as a basis for drawing inferences that would affect the outcome. The tribunal’s duty, and the only proper course, would be to decide on the evidence available rather than speculate on possible explanations of why the report was not produced.' (2) The arguments for recusal were rejected so the appeal was dismissed.§
- Adjournment for social circumstances evidence. AM v West London MH NHS Trust  EWCA Civ 1010,  MHLO 73 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal.§
- Extra-statutory recommendations. EC v Birmingham and Solihull Mental Health NHS Trust  EWCA Civ 701,  MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.]§
- Discretionary discharge. GA v Betsi Cadwaladr University Local Health Board  UKUT 280 (AAC),  MHLO 50 — (1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.]§
It was a condition of the CTO that the patient 'will take depot injections as prescribed'. At the tribunal the patient argued that he should be discharged as he was not giving true consent - he was only consenting in order to remain out of hospital.
The tribunal concluded that GA did consent. It continued: 'Should the Patient refuse that injection, as is his right, the Tribunal feels that he is aware of the consequences that may follow. The Tribunal unanimously agree this is not undue or unfair pressure but the reality of the situation.'
On appeal, he argued that the tribunal were wrong to find that he consented, that the condition was unlawful which meant the CTO was unlawful, and therefore the tribunal should have discharged under its discretionary power.
The Upper Tribunal judge did not address the tribunal's decision on consent. He considered the case 'for the sake of argument only' on the assumption that GA did not consent and that the tribunal's finding was perverse.
He then considered the scope of the discretionary power. The issue of consent could not be excluded from this (as it was excluded from mandatory discharge in SH v Cornwall Partnership NHS Trust  UKUT 290 (AAC),  MHLO 143). However, tribunal exercising its discretionary power must act consistently with the logic of its reasoning.
The judgment at this point is hard to follow but appears to say this. If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then before discharging the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for. Otherwise the decision would be self-contradictory and perverse. The tribunal could only discharge on the basis that the tribunal was satisfied that (a) the patient would again be placed under the MHA, or (b) the patient lacked capacity and would be treated under the MCA. The discretionary power can therefore be used 'in exceptional circumstances only' such as 'a tribunal using its power to allow a patient to join his parents in the USA, where he could receive treatment'.
This judgment at first glance may appear unduly to narrow the scope of the discretionary discharge power. However, might it not instead be that that the continued existence of the this power is simply a drafting oversight and logically ought to have been removed when the 'burden of proof' was amended in 2001? Postscript: See PJ v A Local Health Board  UKUT 480 (AAC).
- Bias (against patient). Bernard v SW London and St George's MH NHS Trust  UKUT 58 (AAC),  MHLO 26 — The medical member, questioning the RC, had stated 'I have no issues with the nature; it is chronic, relapsing, etcetera' but he had not formed a preconceived and concluded view (actual bias) or expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias).§
- Bias (against RC). Equilibrium Health Care v AK  UKUT 543 (AAC),  MHLO 101 — A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded.§
- Refusal to engage. DL-H v Partnerships in Care  UKUT 500 (AAC),  MHLO 93 — This 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.§
- Relevance of risk. MD v Mersey Care NHS Trust  UKUT 127 (AAC),  MHLO 32 — The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition; risk is as relevant to treatment as any other feature of the disorder.§
- Welsh postponement policy. RC v NHS Islington  UKUT 167 (AAC),  MHLO 34 — "This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. ... The grounds of appeal argue that the ... policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted. ... The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences. Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal. Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been the case. However, since any practical benefit of this appeal has now been overtaken by events, I ... simply declare the tribunal’s refusal of a postponement to have been in error of law."§
- Approach to s74 cases. AC v Partnerships in Care Ltd  UKUT 450 (AAC),  MHLO 163 — AC appealed against the tribunal's rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan's independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal's criticisms of Dr Kahtan's evidence on the link between the index offences and AC's mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the tribunal's statutory function is limited to considering discharge from the scope of the Act; (b) it is true that the tribunal should take into account the practical reality, as in a case where release into the community is impossible and prison is the only alternative (Abu-Rideh), but this reasoning does not apply to a case such as AC's because it is unknown whether the Parole Board will release or what conditions it might impose.§
- Nearest relative applications. MA v SSH  UKUT 474 (AAC),  MHLO 171 — The inability of a nearest relative of a patient detained under s2 (in contrast to s3) to apply to the tribunal following the RC's barring of his order for the patient's discharge did not breach Article 5, 6, 8 or 12.§
- Section 2 and 3 criteria. MS v North East London Foundation Trust  UKUT 92 (AAC),  MHLO 24 — In this case it was argued that the tribunal had addressed the s3 criteria for a patient who was detained under s2. (1) The Upper Tribunal decided that the First-tier Tribunal had not misdirected itself in this way. (2) However, the judge considered the criteria: he set out why he considered them different (primarily the different purpose of each section) but did not define how they were different. He concluded: 'This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.' (3) The tribunal decision was set aside because, faced with a medical report which had wrong language and a confused focus, the tribunal had failed to analyse the evidence to ensure that the doctor’s opinions could properly be related to the relevant criteria. (4) The tribunal had been asked to make a recommendation so its failure to explain its refusal was an error of law, albeit not of a kind to justify setting aside a decision (rather, a tribunal could amend its decision by adding the explanation).§
- Conditional discharge without conditions. SSJ v MP  UKUT 25 (AAC),  MHLO 8 — "The Secretary of State had two grounds of appeal. One related to the tribunal’s finding on diagnosis; the other related to the decision not impose any conditions. ... I can only decide that, despite the errors of law, the tribunal’s decision should not be set aside. The result is that this decision provides in effect a declaration of the errors made in the tribunal’s decision."§
- Conditions amounting to deprivation of liberty. SSJ v SB  UKUT 320 (AAC),  MHLO 56 — Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty.§
- Ian Brady First-tier Tribunal decision. Re Ian Brady  MHLO 89 (FTT) — After a public hearing the tribunal issued a notice on 28/6/13 that: 'Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.' The full reasons, dated 11/12/13, were published on 24/1/14: (1) When deciding to hold a public hearing the tribunal had concluded that it was not satisfied that Ian Brady suffered from schizophrenia but, in reaching the opposite conclusion when considering the detention criteria, it did not consider itself bound by its previous finding of fact. (2) The tribunal set out at length the reasons for concluding that the detention criteria were met in this case.§
- References by Secretary of State. R (Modaresi) v SSH  UKSC 53,  MHLO 63 — The Secretary of State's refusal to refer case under s67 was lawful.§
- Consultation with nearest relative; s139 permission. TW v LB Enfield  EWHC 1180 (QB),  MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that s139(1) is incompatible with the ECHR had not been withdrawn, the judge would have similarly dismissed it. (4) On the facts, it was clear that it was 'not reasonably practicable' to have consulted the nearest relative (the patient had repeatedly sent dictated letters instructing Enfield's staff not to involve her family, and had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality): permission under s139 was therefore refused. [Caution: see Court of Appeal decision.]§
- Lawfulness of detention. R (Z) v Whittington Hospital  EWHC 358 (Admin),  MHLO 29 — "The claimant, Mrs Z, who very ably represented herself, was sectioned under the Mental Health Act shortly after giving birth to her first baby after a prolonged and very difficult labour. ... Miss Z says that looking at the reasons that were given at the time, which are recorded in a document signed by both doctors (Form A3, that is the formal sectioning document) the reasons that are there recorded are insufficient reasons to warrant her detention under the Mental Health Act."§
- Lawfulness of detention. R (Z) v Camden and Islington NHS Foundation Trust  EWCA Civ 1425,  MHLO 100 — Unsuccessful challenge to (1) detention under s2 (a subsequent tribunal decision to discharge was consistent with a lawful initial detention) and (2) decision not to hold hospital managers' hearing (it was reasonable to wait a few days for the tribunal).§
- Unsuccessful appeal by patient. R (S) v Mental Health Tribunal  MHLO 164 (UT) — S unsuccessfully challenged by judicial review (a) the decision of the FTT setting aside its own decision that she be discharged and (b) her continued detention by the hospital.§
- Unsuccessful appeal by patient. JP v South London and Maudsley NHS Foundation Trust  UKUT 486 (AAC),  MHLO 172 — "The grounds of appeal related to the Tribunal’s finding that he suffered from a mental disorder; the insufficiency of the Tribunal’s reasons for their decision that the appellant was to continue to be detained under section 2, and to his view that there had been a breach of his right to a fair hearing under Article 6 of the European Convention on Human Rights. He made seven specific submissions on this which I shall address hereafter. At the hearing the appellant also raised a breach of Article 9 of the Convention – his right to freedom of thought, and submitted that the Mental Health Act 1983 was flawed."§
- Duty of AMHPs. DD v Durham County Council  EWCA Civ 96,  MHLO 31 — DD wished to bring proceedings against local authorities arguing that (a) the two assessing AMHPs owed a duty to him (a legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held); (b) that by making the application for admission, each was in breach of duty; and (c) that the county council was responsible vicariously for that breach of duty. (1) The Court of Appeal (reversing the High Court decision in this respect) decided that the argument was sufficient for leave under s139 to bring proceedings to be granted. (2) DD should not have been made responsible for the costs of Middlesbrough City Council.§
- Payment for services while detained. Coombs v North Dorset NHS PCT  EWCA Civ 471,  MHLO 35 — "Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? ... In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private accommodation or other top-up care facilities available within the applicable Guidance. Of course, it will not be possible to provide for care or treatment which is in conflict with the recommendations of the responsible clinician. Nor may it always or perhaps even often be possible within the NHS system to purchase additional care or treatment facilities without running into the principle of free provision and the limitations upon the exceptions to that principle. However, the cases cited above show that responsible clinicians may recommend treatment or care which the NHS is not under a duty to provide, because it goes beyond its statutory duty. There seems to me no reason in statute or public policy why there should be an absolute bar on the provision of facilities, recommended by or consistent with the recommendations of the responsible clinician, which may be available at a price, within or without the NHS system. Ms Richards submits, as she did below, that private payment may create difficulties of a practical nature, as where private funding previously available breaks down. However, as the judge said, such difficulties of funding may always raise their head, and do not create public policy bars of their own. It seems likely that the same answer is applicable whether the detained patient has a claim against a tortfeasor or whether it is simply a matter of a personal choice to pay. Similarly, it seems also quite possible that even detained patients under Part III have to be assimilated for these, as for other purposes, with detained patients under Part II. However, it is not necessary in this case to determine those matters. It is sufficient to say, in the case of this claimant, who is a detained patient within Part II of the MHA 1983 and has a claim against admitted tortfeasors, that the answer to the issue posed, namely whether there is anything in public policy or otherwise which prevents him paying for his own care or treatment, is No." ..→§
Community care and mental health aftercare
- Accommodation under s117 MHA 1983. R (Afework) v LB Camden  EWHC 1637 (Admin),  MHLO 51 — The judge held that as a matter of law s117(2) is only engaged vis-à-vis accommodation if: '(i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition"); (ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.' No obvious reason is given for the third requirement, which is probably wrongly decided (or, as the COP Newsletter puts it, 'will fall to be considered again in due course').§
- Lee Parkhill, 'The scope of section 117 after-care and accommodation' (Local Government Lawyer, 4/7/13)
- Ordinary residence of dependent. R (Cornwall Council) v SSH  EWHC 3739 (Admin) — PH was a young man born with significant learning and physical disabilities. The Secretary of State decided that when he turned 18 he was ordinarily resident under the NAA 1948 in Cornwall, where his parents lived, despite his physical presence elsewhere. The court held that the Secretary of State had lawfully applied the test in Vale relevant to a person who is so severely handicapped as to be totally dependent upon a parent or guardian (termed 'test 1' in the guidance), which states that such a person is in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base.
- Care and attention. SL v Westminster City Council  UKSC 27,  MHLO 45 — "The short issue raised by this appeal is whether the respondent (SL), a failed asylum-seeker, was at the relevant time in need of 'care and attention', requiring the provision of accommodation by the local authority under section 21(1)(a) of the National Assistance Act 1948. Burnett J decided that he was not, but that decision was reversed by the Court of Appeal ... I consider that Burnett J reached the right result for substantially the right reasons."§
- Youtube, 'UK Supreme Court Judgments 9th May 2013 - Part 2' (9/5/13). Video of Lord Carnwath summarising the SL judgment.
- Care home transfer. R (Chatting) v Viridian Housing  EWHC 3595 (Admin),  MHLO 177 — "This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. ... On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting's best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg's claim and also sought a ruling on two further issues of interpretation of the compromise agreement."§
- Jonathan Auburn and Benjamin Tankel, 'Private care homes and the Human Rights Act' (30/5/13)
- Reconfiguration of services. R (Copson) v Dorset Healthcare University NHS Foundation Trust  EWHC 732 (Admin),  MHLO 30 — "This is a claim by the claimant, Rosalind Copson, for an order quashing the decision of the defendant, Dorset Healthcare University NHS Foundation Trust, on 14 June 2012 to implement its Mental Health Urgent Care Services Project for the reconfiguration of mental health services in the west of Dorset. ... The claim is put on two grounds. First, it is said that the defendant failed, before reaching its decision, to carry out an adequate consultation with users of its mental health services, chiefly in that it failed to provide to those users sufficient information to enable them to engage meaningfully with the proposals. Second, it is said that the defendant failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard, in the exercise of its functions, to the need to advance equality of opportunity. ... The claimant is a user of mental health facilities in Bridport, Dorset. The facilities that she uses include the in-patient facility at the Hughes Unit in Bridport. The defendant's proposed reconfiguration of mental health services in the area will involve the loss of that facility. ... For the reasons given, this claim is dismissed."§
- Needs assessment and deferred conditional discharge. Further detail added to summary. R (B) v Camden London Borough Council  EWHC 1366 (Admin) — (1) Claimant unsuccessfully sought damages for breach of statutory duty under s117 causing delay after deferred conditional discharge. (2) A person who 'may be in need of such services' under s47 NHSCCA 1990 is a person 'who may be in need at the time, or who may be about to be in need': (a) this includes the situation after a deferred conditional discharge decision; (b) obiter, the judge inclined to the view that it also includes a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing.§
- Needs assessment for prisoner. Further detail added to summary. R (NM) v LB Islington  EWHC 414 (Admin),  MHLO 11 — A prisoner whose release was about to be considered by the Parole Board sought judicial review of the local authority's decision not to conduct a s47 NHSCCA 1990 needs assessment with a view to provision of accommodation and support services if he were released from prison. (1) The connection between the Parole Board's consideration of NM's particular case and his release was too 'conditional and speculative' to fall within s47, or within the pragmatic 'about to be in need' or 'may reasonably be considered to be liable' tests from the B case. (2) In other cases of discharge from hospital or prison it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority. (3) Consideration of whether the Convention on the Rights of Persons with Disabilities can be relied upon.§
Court of Protection and other capacity cases
End of life
- Vegetative state. Re AW (Permanent Vegetative State); The NHS Trust v AW  EWHC 78 (COP),  MHLO 3 — AW was in a permanent vegetative state, having suffered a spontaneous, severe intra-cerebral haemorrhage in 2008. The NHS Trust responsible for AW's care sought a declaration that it would be lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, even though this would lead to AW's death. The application was supported by AW's family, by all the medical staff who looked after her, by the evidence of the expert witnesses provided reports, and by the Official Solicitor on behalf of AW herself. (1) The judge's findings were as follows: (a) AW is in a permanent vegetative state; (b) there will be no change or improvement in her condition; (c) there is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and (d) the suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan that has been created for AW. (2) The following declarations were made: (a) AW lacks capacity to litigate in these proceedings or to make decisions about the medical treatment she should receive, including as to the withdrawal of artificial nutrition and hydration and other life-sustaining treatment; (b) it is lawful and in AWs best interests for life-sustaining treatment in the form of artificial nutrition and hydration to be withdrawn; and (c) it is in AW's best interests to receive such treatment and nursing care as may be appropriate to ensure that she retains the greatest dignity until her life ends. (3) By agreement, the NHS Trust was ordered to pay half of the costs of the Official Solicitor, to be subject to detailed assessment if not agreed.§
- Hunger strike. An NHS Trust v Dr A  EWHC 2442 (COP),  MHLO 4 — Dr A was refusing food in protest at a UK Border Agency decision. (1) He was suffering from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment. (2) It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. (3) (a) That treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. (b) However, he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder; although the physical disorder was in part a consequence of the mental disorder, it was not obviously either a manifestation or a symptom of the mental disorder. (c) The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as being in Dr A’s best interests.§
- Jerome Taylor, 'Iranian immigrant must be force fed because "delusional disorder" renders him incapable of a decision on starvation, doctors tell High Court' (Independent, 30/1/13). This article summarises the case as follows: (a) P came to the UK on a six-month visa to learn English but refused to leave, asylum having been refused twice; (b) he stopped eating in May 2012 in protest at the UKBA's refusal to return his passport unless he returns to Iran; (c) an NHS Trust in the South-east of England is seeking to force-feed him on the basis that he lacks capacity because of a delusional disorder; (d) the case is ongoing and a reserved judgment is expected by mid-February 2013.
- Resuscitation. An NHS Trust v L  EWHC 4313 (Fam),  MHLO 180 (COP) — "By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. ... I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust's application. ... Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L's death and not to prolong, in any meaningful way, his life. I repeat Dr Bell's powerful analysis - It would result in Mr L's death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit."§
- Resuscitation. An NHS Foundation Trust v M and K  EWHC 2402 (COP),  MHLO 67 — "The painful and difficult issues now to be faced by M's family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition."§
- Withholding life-sustaining treatment. Aintree University Hospitals NHS Foundation Trust v David James  EWCA Civ 65,  MHLO 17 — "On 6th December 2012 Mr Justice Peter Jackson ... declined to make the declarations sought by the appellant, the hospital treating DJ, that subject to the agreement of his clinical team, it would be lawful, being in his best interests, for the following treatment to be withheld in the event of a clinical deterioration: cardiopulmonary resuscitation; invasive support for circulatory problems; renal replacement therapy in the event of deterioration in renal function." The Court of Appeal allowed the Trust's appeal.§
- Soliciors Journal, 'Appeal judge redefines "futile treatment"' (8/3/13).
- Withholding life-sustaining treatment. Aintree University Hospitals NHS Foundation Trust v David James  UKSC 67,  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?"§
- Ben Troke, 'Medical treatment decisions at the end of life' (Browne Jacobson website, 4/11/13)
- Minimally-conscious state. Re VT (minimally conscious state): An NHS Foundation Trust v VT  EWHC B26 (Fam),  MHLO 99 (COP) — The Trust obtained a declaration covering a decision not to provide intensive care or resusistation in specified circumstances.§
- Press Association, 'Family of devout Muslim in minimally conscious state lose right-to-life case' (Guardian, 13/11/13). Extract from press article: "The family of an elderly devout Muslim who is in a minimally conscious state have lost their legal bid to prolong his life. They argued that the 72-year-old man, who can be identified only as VT, would regard his suffering as bringing him closer to God. The family contested an application by an NHS Trust that it was not in VT's best interests for him to be given intensive resuscitation or be admitted to intensive care if his condition deteriorated. ... Granting the application, he said that bag and mask resuscitation was excluded from the declaration sought, but CPR was not in VT's best interests, and to require staff to treat him in intensive care would be entirely futile."
- Removal of life support. Cuthbertson v Rasouli (2013) SCC 53,  MHLO 109 — Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent.§
- Italian caesarian case. Re AA  EWHC 4378 (COP),  MHLO 182 — Judgment of Mostyn J in 'Italian forced caesarian' case.§
- Christopher Booker, '"Operate on this mother so that we can take her baby"' (Telegraph, 30/11/13)
- Colin Freeman, 'Child taken from womb by social services' (Telegraph, 30/11/13)
- Lucy Reed, 'Never let the facts get in the way of a good story eh?' (Pink Tape Blog, 1/12/13)
- Essex County Council, 'Essex County Council responds to interest in story headlined "Essex removes baby from mother"' (2/12/13)
- Tweets from Judicial office (@JudiciaryUK): 'Proceedings not yet concluded; President of Family Division has ordered the matter be transferred to High Court. President of Family Division has order any further applications in respect of the child are to be heard by him.' (2/12/13)
- John Bingham and Alice Philipson, 'Caesarean case mother denied chance to keep baby in hospital' (Telegraph, 2/12/13)
- Lucy Series, 'More questions than answers - on the "forced caesarean" case' (The Small Places Blog, 3/12/13)
- Neil Munro, 'A post that is not about forced caesarean sections' (Mental Health and Mental Capacity Law Blog, 3/12/13)
- Neil Munro, 'A post which is about caesarean without consent' (Mental Health and Mental Capacity Law, 4/12/13)
- Italian caesarian case. Re P (A Child)  EW Misc 20 (CC),  MHLO 103 — Care proceedings judgment in 'Italian forced caesarian' case.§
- Judicial Office statement on application for reporting restrictions (Judiciary website, 4/12/13).
- Italian caesarian case. Re P (A Child)  EWHC 4383 (Fam),  MHLO 106 — Decision of Charles J on reporting restrictions in 'forced caesarian' case.§
- Italian caesarian case. Re P (A Child)  EWHC 4037 (Fam),  MHLO 115 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment.§
- Italian caesarian case. Re P (A Child)  EWHC 4048 (Fam),  MHLO 116 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - full judgment, including detailed chronology.§
- UK caesarian case. Re P (Caesarian)  MHLO 127 (COP) — The press has reported this case as follows: Peter Jackson J decided that, in the event of a Caesarian scar rupturing during labour, it was in P's best interests that doctors could intervene and perform a Caesarean section.§
- Emily Dugan, 'Pregnant woman with "very severe" mental health problems could be forced to have Caesarean' (Independent, 11/12/13).
- Abortion. Re P (abortion)  EWHC 50 (COP),  MHLO 1 — (1) The solicitor who was one of P's deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that '[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do'. [Summary based on press article; judgment now available.]§
- Jerome Taylor, 'Woman with limited mental capacity can have her baby' (Independent, 10/1/12)
- Abortion. Re SB (A Patient: Capacity To Consent To Termination)  EWHC 1417 (COP),  MHLO 48 — SB's desire for an abortion coincided with her stopping her medication for bipolar affective disorder, which led to the Trust seeking decisions on capacity and best interests. (1) Even if aspects of her decision-making were influenced by paranoid thoughts in relation to lack of support from her husband and her mother, SB also had a range of rational reasons, and had capacity to make the decision. (2) Interesting aspects to the case include: (a) the judge disagreed with the two psychiatrists who believed SB lacked capacity; (b) he appeared to consider the question of being 'unable' to make a decision separately in relation to its ordinary meaning (whether SB had in fact made a decision, para 38) and its legal meaning by reference to MCA 2005 s3(1) (whether she could understand the relevant information etc, para 39); (c) the Official Solicitor asked for his appointment as litigation friend to be ended, and this request was granted (para 30); (d) the judge granted this request having accepted psychiatric evidence that this was a case 'where P ceases to be a person who lacks capacity to conduct proceedings himself but continues to lack capacity in relation to the matter or matters to which the application relates' (para 28, rule 147); (e) in relation to the threshold for capacity, the judge held that SB's decision to have an abortion 'is of course a profound and grave decision, but it does not necessarily involve complex issues' (para 44).§
- Removal of baby on delivery. A Local Authority v C  EWHC 4036 (Fam),  MHLO 125 — C had long-standing mental health problems and her two children had previously been removed from her. (1) Under the inherent jurisdiction Parker J made an anticipatory declaration that it was lawful for C's third baby to be removed immediately upon delivery, in order to safeguards the child's interests, on the understanding that the local authority would apply for an emergency protection order or an interim care order at the first possible moment. (2) No evidence was heard from C, and a litigation friend was not appointed, in order to avoid C being informed, the judge (and local authority solicitor) thinking that that (a) Official Solicitor would become C's solicitor so the solicitor-client duty of disclosure would apply, and (b) the only exception to that duty is when the client consents.§
- Cancer. Re K (cancer)  MHLO 83 (COP) — The press has reported this case as follows: (1) It was suspected that K had cancer of the womb, but she was took frightened to undergo an diagnostic examination. (2) Moylan J decided that (a) K lacked capacity to take decisions about medical treatment; (b) it was in her best interests to undergo a hysteroscopy, which is more detailed and invasive than the normal ultrasound, on the basis that her fear meant she would be under general anaesthetic anyway.§
- Emily Dugan, 'Woman with learning difficulties will be forcibly checked for possible cancer, judge rules' (Independent, 6/8/13)
- Vasectomy. An NHS Trust v DE  EWHC 2562 (Fam),  MHLO 78 (COP) — "In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification."§
- BBC, 'Judge approves man's sterilisation in legal first' (16/8/13)
- Jess Connelly, 'Court of Protection authorises the sterilisation of a young man for non-therapeutic reasons: not as paternalistic as it first appears' (Jess Connelly Legally Blog, 16/8/13)
- Andreas Dimopoulos, 'Some Contrarian Thoughts on Re DE  EWHC 2562 (Fam)' (Blog post, 17/8/13)
- BBC, 'Katie Thorpe's mother to renew hysterectomy bid' (29/8/13)
Deprivation of liberty
See also: Litigation friend
- Definition. Y County Council v ZZ  EWHC B34 (COP),  MHLO 179 (COP) — "This is an application made by Y County Council in the Court of Protection in relation to Mr ZZ, a man of young middle age. I am invited to make a number of declarations in relation to Mr ZZ. First, I am asked to find that he lacks litigation capacity on the issues in this case. Second, I am invited to declare that he lacks capacity to decide upon the restrictions relevant to supporting his residence and care. Finally, I am asked to declare that he is being deprived of his liberty, but that it is lawful as in his best interests pursuant to schedule A1 of the Mental Capacity Act 2005. Mr ZZ is represented by the Official Solicitor. He has been present throughout the hearing and has conducted himself with dignity throughout. Indeed, he gave unsworn, oral evidence before me in an entirely courteous and helpful way."§
- Definition. A PCT v LDV  EWHC 272 (Fam),  MHLO 6 — "The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?"§
- DOLS appeal. Re M (Best Interests: Deprivation of Liberty)  EWHC 3456 (COP),  MHLO 97 — "These Court of Protection proceedings under Section 21A of the Mental Capacity Act 2005 were brought in May 2013 on behalf of a 67-year-old lady named M. ... M wants to return to her own home, a bungalow that, until she went into residential care, she had shared for much of the time with her partner of 30 years."§
- Best interests and DOL. A Local Authority v WMA  EWHC 2580 (COP),  MHLO 79 — "The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty. ... there is no doubt in my mind it is WMA's best interests to move to B ... if one looks at WMA's isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. ... I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty ... The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the arrangements for him and he may seek to leave. We simply do not know. So being in B may in itself be a deprivation of liberty. I will not delve into the meaning of 'restraint' and 'deprivation of liberty' as analysed in the Cheshire West and Chester case. ..."§
- Breach of Articles 5, 6 and 8. Re P (fair trial); Knowsley MBC v P  MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' §
- Terri Judd, 'Pensioner "held prisoner" by local council wins legal victory' (Independent, 8/2/13)
- Fentons Solicitors, 'Court victory for woman "held prisoner and denied fair trial" by council' (8/2/13)
- Police detention. ZH v Commissioner of Police for the Metropolis  EWCA Civ 69,  MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.]§
- LGO decision. Kirklees MBC 11 004 229  MHLO 122 (LGO/PHSO) — Ombudsmen find maladministration in case involving deprivation of liberty.§
- LGO and PHSO, 'Report in confidence on a joint investigation into complaint no 11004229 against Kirklees Metropolitan Borough Council and South West Yorkshire Partnership NHS Foundation Trust' (20/11/13)
- Local Government Ombudsman, 'South Yorkshire family excluded from care planning for elderly relatives' (28/11/13)
- Lucy Series, 'The Ombudsmen find maladministration causing injustice in a case involving the deprivation of liberty safeguards' (The Small Places Blog, 28/11/13)
- Definition. News items relating to this 2011 case. Cheshire West and Chester Council v P  EWCA Civ 1257 — P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.]§
- Supreme Court, 'Permission to Appeal results' (July 2012). Permission granted on 10/7/12 by Lady Hale, Lord Clarke, Lord Reed.
- The Supreme Court Registry confirmed that this case would be heard from 22/10/13 to 24/10/13
- Role of litigation friend in DOLS appeal. TA v AA  EWCA Civ 1661,  MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing.§
- Appointment of litigation friend. WCC v AB  MHLO 168 (COP) — Whether AB's aunt should be appointed as litigation friend.§
Imprisonment for contempt
- Committal for contempt. Parties identified and neutral citation available in previously anonymised case. Stoke City Council v Maddocks  EWHC B31 (COP),  MHLO 111 (COP) — Click on link to view page.§
- Andy McSmith, 'Justice Secretary asks for review of Court of Protection's powers' (Independent, 2/5/13)
- Lucy Series, 'Human Rights will be in touch' (The Small Places Blog, 24/4/13)
- Andy Dolan, 'Agony of woman locked up for six weeks by secret court just for trying to get her Dad out of care home: The terrifying moment police descended to "cart me off to jail"' (Daily Mail, 24/4/13)
- Steve Doughty, 'Jailed in secret - for trying to rescue her father from care home where she believed he would die' (Daily Mail, 23/4/13)
- Unsuccessful committal application. Re Whiting  EWHC B27 (Fam),  MHLO 119 (COP) — Click on link to view page.§
Residence, contact, personal care
- Best interests and available options. ACCG v MN  EWHC 3859 (COP) — The Court of Protection may, exceptionally, in determining whether a local authority has breached convention rights, consider best interests beyond the available options. Extract from judgment: " I find therefore that: (i) As restated by Baroness Hale in Aintree 'the court has no greater powers than the patient would have if he were of full capacity'. (ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities. (iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s7(1)(b) HRA, conduct an assessment of the person's best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a convention right. (iv) Protection of the Article 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a section 4 MCA 2005 best interests assessment.  In all the circumstances I accept the submission of ACCG that, contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s4 MCA2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests"
- Residence and contact. Stoke City Council v Maddocks  EWHC 1137 (COP),  MHLO 38 — (1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) Any attempt to publicise the case would be a cruelty to JM. (7) The case would be reviewed on the first available date after 3 months, or earlier if a committal application is made by the local authority.§
- Contact with family. PS v LP  EWHC 1106 (COP),  MHLO 43 — (1) It was in LP's best interests not to see her estranged family: before losing capacity due to a cerebral aneurism, she had taken the decision that her future was with her new partner and that she wished to break with the past. (2) Contact should only commence in future if LP becomes capable of expressing a view to that effect, and the family should be kept informed in relation to this approximately every six months.§
- Best interests. A Local Authority v ED  EWHC 3069 (COP),  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?"§
- Emily Dugan, 'Six years, three judges, £350,000 in costs to the taxpayer... and no change: Judge hits out at "astonishing" cost of Court of Protection case' (Independent, 11/10/13).
- School placement. Re L (A Child)  EWCA Civ 1557,  MHLO 133 — Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area).§
- Welfare. A County Council v E  EWHC 4161 (COP),  MHLO 176 — "This case involves the personal welfare of two young women, E and K. E is 26 years old and K is 24. Both have a diagnosis of Fragile X syndrome and associated learning disabilities, as confirmed by a consultant psychiatrist in a report of 7 August 2010. E is selectively mute. K also has a diagnosis of Attention Deficit Hyperactivity Disorder ('ADHD')."§
- Welfare. HT v CK  EWHC 4160 (COP),  MHLO 175 — "This decision deals with residence, contact and financial arrangements for CK ('C' or 'Ms K'). In particular, the court must decide whether it is in her best interests to remain where she is living and the appropriate contact arrangements"§
- Fact finding. PB v RB  EWHC 4159 (COP),  MHLO 174 — "This decision deals with a fact-finding hearing held on 10-12 September 2012. ... The local authority sought to prove 13 alleged facts ... "§
- Residence, contact, deputy. LB Waltham Forest v WD  MHLO 195 — "The issues which I have to consider are four fold: first, WD’s future accommodation and residence; secondly, his contact arrangements with other members of his family; thirdly, the application by the Local Authority for the appointment of a deputy under the Mental Capacity Act 2005; and fourthly, whether or not these proceedings should now come to an end. Other matters of the care plan are fully agreed between the parties. As I have said, the plan put before me is comprehensive and this court is happy to endorse it."§
- Residence. Re SK  MHLO 49 — "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.]§
- Contact with adopted child. RC v CC  EWHC 1424 (COP),  MHLO 68 — "The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC's incapacity that enables an application to be made."§
- Best interests. RGB v Cwm Taf Health Board  EWHC B23 (COP),  MHLO 128 (COP) — At a time when she had been assessed to have capacity, Mrs B left her husband and did not wish him to see her. On the basis of these wishes, when she was admitted to hospital with dementia Mr B was refused access. The husband unsuccessfully sought a declaration that the Health Board had acted unlawfully.§
Sex and marriage
- Forced marriage. Sandwell MBC v RG  EWHC 2373 (COP),  MHLO 55 — "I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. ... Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled."§
- Capacity to marry. PC v City of York Council  EWCA Civ 478,  MHLO 61 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband."§
- Alastair Pitblado, 'The decision of the Court of Appeal in (1) PC and (2) NC v City of York M' (August 2013)
- Non-marriage. A Local Authority v SY  EWHC 3485 (COP),  MHLO 96 — "It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage."§
- Consent to sexual relations. A Local Authority v TZ  EWHC 2322 (COP),  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."§
- Forced marriage. YLA v PM  EWHC 3622 (Fam),  MHLO 114 — Click on link to view page.§
- Marriage. A Local Authority v AK  EWHC B29 (COP),  MHLO 166 — "This is an application by a Local Authority for the determination of an issue as to whether a severely brain damaged man ('AK') had the capacity to enter into a marriage in November 2010."§
- Sterilisation. A Local Authority v K  EWHC 242 (COP),  MHLO 11 — "K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K's social welfare) for a best interests' determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family)."§
- Personal welfare deputy. MK v JK  EWHC 4334 (COP),  MHLO 81 — "MK made an application to the court to be appointed Personal Welfare Deputy for JK and that is how these proceedings commenced. However, all parties accept that the one issue is residence and that it is to be determined by a court ... it is in his best interests to move to the CNC Home on the basis that his placement at the Home will be retained for eight weeks so that he has somewhere to return should the move to the CNC Home fail... I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like ... Article 8 of the Convention rights ... I do think that putting in place a State-appointed decision-maker – which is what a Deputy is – is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to envisage how in most cases a Personal Welfare Deputy could ever be so justified."§
- Inheritance tax. Summary added. Pitt v Holt  EWCA Civ 197 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal 'effect', so the disposition would not be set aside.§
- Inheritance tax. Pitt v Holt  UKSC 26,  MHLO 46 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point.§
- Youtube, 'UK Supreme Court Judgments 9th May 2013 - Part 1' (9/5/13). Video of Lord Neuberger summarising the Pitt v Holt judgment.
- Mark Herbert, 'Initial reaction to Pitt v Holt judgment' (5 Stone Buildings, 9/5/13).
- Revocation. Re GM: MJ and JM v The Public Guardian  EWHC 2966 (COP),  MHLO 44 — "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place."§
- Security bond. Re Joan Treadwell (Deceased); OPG v Colin Lutz  EWHC 2409 (COP),  MHLO 57 — "This judgment concerns an application by the Public Guardian to enforce a security bond in respect of unauthorised gifts made by the late Mrs Joan Treadwell’s deputy for property and affairs, Colin Lutz."§
- Statutory will. NT v FS  EWHC 684 (COP),  MHLO 18 — "This is an application by NT ("the Deputy") for authority to execute a statutory will on behalf of FS ("F"). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a will be made. There are a large number of Respondents to the application each of whom are potential beneficiaries under such a will. There are, however significant disputes between them as to the provisions of such a will."§
- Testamentary capacity. Greaves v Stolkin  EWHC 1140 (Ch),  MHLO 36 — "Mr Leslie Stolkin ..., some seven weeks before his death, executed a codicil. This case concerns the validity of that document. ...[O]ne of the deceased's sons, Mr Gary Stolkin ... disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. ... In my judgment, the Disputed Codicil is valid, and it should be admitted to probate."§
- Testamentary capacity. Turner v Phythian  EWHC 499 (Ch),  MHLO 10 — "Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. ... The second ground is that Iris lacked mental capacity to make the will. ... The third ground is that Iris did not know or approve of the contents of the will. ... I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will."§
- Testamentary capacity. Pearce v Beverley  EW Misc 10 (CC) — "This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. ... In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007."§
- Testamentary capacity. Re Devillebichot (deceased)  EWHC 2867 (Ch),  MHLO 107 — The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence.§
- Litigation capacity. Baker Tilley (A Firm) v Makar  EWHC 759 (QB),  MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind.§
- Litigation capacity. Re RGS  EWHC 4162 (COP),  MHLO 173 — "RGS is the person concerned in these proceedings ('P'). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure."§
- COP costs appeal. Re Clarke  EWCA Civ 811,  MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters.§
Neglect or ill-treatment under s44 MCA 2005
- Registration as manager. Oluku v CQC (2012) UKFTT 275,  MHLO 183 — A carer at Dormers Wells Lodge secretly recorded ill-treatment, which led to the conviction of two staff (Sonika Limbu, 25, of Hayes, and Pashi Sahota, 57, of Southall) under MCA 2005 s44. The manager appealed against the CQC's cancellation of her registration as a manager, but the tribunal found that she was not fit to be registered as a manager. In relation to one allegation (although technically there was no breach as at the relevant time she was not yet registered), the tribunal noted: "the necessary paperwork was not present in the form of a Deprivation of Liberty for a number of service users, and in that respect the appellant did not have suitable arrangements in place to protect service users against the risk of such control or restraint being unlawful or otherwise excessive as required under regulation 11(2) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, since proper assessment and recording was not being carried out."§
- CQC website: reports on Telford Lodge Care Limited (new name for Dormers Wells Lodge)
- BBC News, 'Dormers Wells Lodge carers banned for "cruel" treatment' (9/3/12)
- Convictions quashed. R v Turbill  EWCA Crim 1422,  MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions."§
- Appeal against sentence. R v Kenyon (Lindsay)  EWCA Crim 2123,  MHLO 135 — Unsuccessful appeal against eight-month sentence for eight offences of neglect of a person who lacks capacity contrary to MCA 2005 s44.§
Miscellaneous capacity cases
- ASBO. Pender v DPP  MHLO 12 (QBD) — Click on link to view page.§
- Appropriate forum. DO v LBH  EWHC 4044 (Admin),  MHLO 165 — "I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings."§
- Payment for accommodation. Harrison v South Tyneside Council (2013) EWLandRA 2012 0866,  MHLO 72 — "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then the provision of the accommodation would in the circumstances have been a necessary either at common law or under section 7 of the Mental Capacity Act 2005, and he would have been obliged to pay a reasonable price for it, which would have been recoverable from his estate (Wychavon District Council v EM M). Mr. Harrison, like others before him in similar cases, has sought to contend that the council was not in fact acting under those powers but was acting unlawfully both because Mr. Jackson’s dementia was so severe that he required to be provided for by the NHS, and indeed ought to have been sectioned under the Mental Health Act, because he lacked capacity to consent to being admitted to the care home, and because he had no need of accommodation because he already had his own home. These points are misconceived and self-contradictory."§
- Personal injury case. Loughlin v Singh  EWHC 1641 (QB),  MHLO 71 — "On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the circumstances, set out in detail above, in which Professor Barnes came to give his "revised" opinion, nor that no-one at Pannone had shown the report of Dr Huddy to Professor Barnes. ... All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision."§
- Ian Slater, 'Loughlin v Singh & Ors: assessment of capacity - conflict of interest?' (DWF, 19/6/13). This article includes the following comment: "In this particular case in question Parker J ultimately concluded that the Claimant lacked capacity so, on one level, it could be argued that no harm had been done. The evidence was, however, very finely balanced and - by the date of the trial - there was a weight of expert evidence on both sides. Consider this, however: had Parker J not reached the conclusion that he did then difficult questions would have arisen as to the £40,000 worth of fees which the Court of Protection team had incurred since their instruction."
- Ian Slater, 'Loughlin v Singh & Ors: the duty of experts' (DWF, 19/6/13). This article includes the following comment: "This raises important considerations both as to the duty of experts but also – given the particular U-turn performed by Professor Barnes - as to the Mental Capacity Act 2005. The Act provides at Section 1(2) that a "person must be assumed to have capacity unless it is established that he lacks capacity." It is surely somewhat concerning that Professor Barnes felt it appropriate to deprive an individual of his autonomy based, apparently, on nothing more than a conversation with his instructing solicitor."
- Hague Convention case. Re PO: JO v GO  EWHC 3932 (COP),  MHLO 110 — Judgment relating to Hague Convention on the International Protection of Adults 2000 and MCA 2005 sch 3.§
- Alex Ruck Keene, 'Re PO - cross border judgment by the President' (13/12/13).
See also: Neglect and ill-treatment
- Voluntary intoxication. R v Coley  EWCA Crim 223,  MHLO 23 — "We have heard these three cases in succession because they have some features in common. Each raises a (different) question connected with the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism. Each calls, however, for consideration of its very particular facts. Neither individually nor collectively do they provide an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally. We know that this area of the law is under active consideration by the Law Commission, which work will, we think, be of value. Although there have historically been very few cases which raise insanity, that has been because the statutory provisions governing the disposal orders which must be made if there is a verdict of insanity have historically inhibited attempts to rely on it. More recent changes in those disposal provisions may well lead to an increase in numbers. Any review must, critically, address both the law of loss of capacity and the means of disposal in such cases, so as to pay proper regard both to the interests of the individual defendant and to the public risk which he represents."§
- Restraining order. R v Smith (Mark John)  EWCA Crim 2566,  MHLO 170 — "This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act."§
- Restraining order. R v AJR  EWCA Crim 591,  MHLO 37 — The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989.§
- Reasonable belief in consent. B v R  EWCA Crim 3,  MHLO 7 — "This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant."§
- Adverse inferences, participation. R v Dixon  EWCA Crim 465,  MHLO 42 — (1) Despite the appellant's intellect and condition the judge was entitled to permit the jury to draw an adverse inference from his failure to give evidence. (2) The appellant argued that fresh medical evidence showed the judge's decision was wrong, but this evidence was not admitted. (3) The appellant had been able meaningfully to participate in his trial, which was fair, and the conviction was safe. (4) The minimum term of the appellant's detention at Her Majesty's pleasure was reduced from 14 to 13 years.§
- Diminished responsibility. R v Foye  EWCA Crim 475,  MHLO 40 — The rule in s2(2) Homicide Act 1957 that the burden of establishing diminished responsibility lies on the defendant, on the balance of probabilities, is not incompatible with the presumption of innocence contained in Article 6(2).§
- Medical evidence inadequate. R v Yusuf (Nadia Ali)  EWCA Crim 2077,  MHLO 137 — The appellant sought a restricted hospital order in place of an IPP sentence, but was unsuccessful as her medical evidence addressed the current situation rather than the situation at the time of sentencing.§
- Appeal against IPP. R v Fletcher  EWCA Crim 2777,  MHLO 161 — IPP sentence quashed and a restricted hospital order substituted in its place: the judge had not properly been informed as to the appellant's mental state, because the original reports focussed on mental illness (which the appellant did not suffer from) rather than learning disability (which he did).§
- Appeal against IPP. R v Ahmed  EWCA Crim 99,  MHLO 178 — (1) The appellant sought a s37/41 restricted hospital order in place of an IPP sentence. (2) The Responsible Clinician argued for a s45A hybrid order, for reasons summarised by the court as follows: 'The appellant is an illegal immigrant. In order to be discharged from hospital he would have to undergo a period of controlled supervision. This would be in appropriate accommodation. Dr Swinton tells us that this is not an option open to an illegal immigrant like the appellant. Thus he cannot be discharged into the community because he cannot undertake the necessary conditioning which would satisfy the hospital that he was safe to be left in the community on his own. As a consequence he has to remain in hospital and he will take up a bed, apparently permanently. This is damaging to the wider public interest. If a section 45A order were made, then although the appellant would receive precisely the same treatment under a section 47 transfer as he currently does, a discharge can be effected by sending the appellant back to prison where the relevant supervision can be provided.' (3) The Court of Appeal admitted fresh evidence and, considering the appellant to be an ill man needing treatment rather than a criminal needing punishment, imposed a restricted hospital order.§
- Mental Health Cop Blog, 'Mentally Ill Migrant Criminals' (21/2/13).
- Wesley Johnson, 'Hospital beds blocked by mentally ill migrant criminals' (20/2/13).
- Appeal against IPP. R v Ahmed  EWCA Crim 1393,  MHLO 66 — Appellant unsuccessfully sought restricted hospital order in place of an IPP sentence.§
- Appeal against IPP and s45A. R v Anderson (Darren Gabriel)  EWCA Crim 2212,  MHLO 134 — Appellant sought restricted hospital order, in place of IPP and s45A hybrid order, but was unsuccessful.§
- Appeal against life sentence and s45A. R v Fort  EWCA Crim 2332,  MHLO 111 — (1) The sentencing judge erred in concluding that the appellant would continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated, and therefore erred in imposing a sentence of custody for life as opposed to a s37/41 hospital order. (2) The judge's order under s45A was unlawful, because such an order could not be made on someone who was under 21 at the time of conviction (and was thus being considered for a sentence of custody for life, as opposed to a sentence of imprisonment, as would be the case on a person over 21 at the date of conviction). §
- Appeal against life sentence. R v Odiowei  EWCA Crim 2253,  MHLO 131 — The appellant sought a restricted hospital order in place of a life sentence, relying on two recent medical reports which were critical of previous reports. The matter was adjourned for six weeks to obtain responses from the previous reports' authors.§
- Appeal against restricted hospital order. R v Caress  EWCA Crim 218,  MHLO 27 — "In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence [a restricted hospital order] was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence."§
- Appeal against restriction order. R v G (A)  EWCA Crim 2256,  MHLO 130 — Unsuccessful appeal against restriction order.§
- Appeal against conviction. R v Fry (David George)  EWCA Crim 2337,  MHLO 126 — Unsuccessful appeal against conviction. Summary from judgment: "The central complaints are that his legal team (a) failed to ensure that he was mentally and/or emotionally able to decide whether or not on give evidence; (b) failed to ensure that he properly understood that an adverse inference might be drawn by the jury if he did not give evidence; (c) failed to ensure that he properly understood that if he did not give evidence the jury would have no account from him as to the allegation made by SB, given that he had declined to answer questions during his police interview about those allegations; (d) failed to make the judge aware of his mental difficulties before she decided whether or not the jury should be directed that they might, subject to various conditions, draw an adverse inference from his failure to give evidence; (e) failed to place evidence of his mental condition before the jury to explain his failure to give evidence; and (f) in the circumstances to which we have referred gave him flawed advice not to give evidence." §
- Appeal against conviction. R v Farooqi  EWCA Crim 1649,  MHLO 108 — Unsuccessful criminal appeal based partly on the misconduct of a trial advocate, in which the Lord Chief Justice comments on the advocate's role.§
- Michael Cross, 'Lord Judge signs off with attack on "ambush" advocate' (Law Society Gazette, 30/9/13). Includes response (in the readers' comments section) from the barrister in question.
- Appeal against conviction and sentence. R v Edgington  EWCA Crim 2185,  MHLO 102 — The appellant had been sentenced to life imprisonment for murder and attempted murder, with a minimum term of 37 years. (1) Appeal against conviction dismissed, as the judge was not wrong to prevent counsel from re-examining the defence expert on whether she would 'as a matter of practice ... ever be released' from a hospital order. (2) Appeal against sentence dismissed as it was not manifestly excessive.§
- Sentencing Remarks of HHJ Brian Barker QC, 4/3/13.
- Confabulation defence. R v Nightingale  EWCA Crim 2734,  MHLO 167 — The appellant, having pleaded guilty to possession of (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm, had been sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. On appeal against sentence, as 'these offences were committed in exceptional circumstances by an exemplary soldier', this was reduced to 12 months, suspended for 12 months.§
- DOLS appeals. UF v A Local Authority  EWHC 4289 (COP),  MHLO 105 — Under Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, Legal Aid for MCA 2005 s21A appeals is non-means-tested for as long as the relevant DOLS standard authorisation is in force. In this case the Ministry of Justice and the Legal Aid Agency confirmed that Legal Aid could continue if the court extends the standard authorisation for the duration of the case.§
- UF v A Local Authority: Agreed Note of Judgment (8/2/13)
- Richard Charlton, 'Non-means tested legal aid restored for patients detained under Mental Capacity Act 2005' (Family Law Week, 8/2/13)
- Refusal to fund extra party. R (Moosa) v LSC  EWHC 2804 (Admin),  MHLO 90 — In Court of Protection proceedings, the patient's mother was financially ineligible for Legal Aid (the equity in her home was about £65,000 over the £100,000 limit) so the patient's brother was added as a party purely because he would be financially eligible. The LSC refused him funding, for reasons including that the mother should fund the case. Permission to apply for judicial review of that decision was refused.§
- Prior authority. R (T) v LSC  EWHC 960 (Admin),  MHLO 41 — The LSC's decision in care proceedings to agree prior authority for a multi-disciplinary assessment at a lower amount than that sought was unlawful because of the lack of reasons given, and was quashed.§
- Eleanor Battie, 'LAA must give reasons about funding expert assessments in care proceedings' (UK Human Rights Blog, 2/5/13)
- Expert evidence. R (JG) v LSC  EWHC 804 (Admin),  MHLO 76 — Payment for expert evidence.§
- Inquest. R (Greenough) v SSJ  EWHC 3112 (Admin),  MHLO 124 — The decision not to authorise exceptional Legal Aid funding for representation at an inquest into the death of Paul Shovelton (who died in his own home on the day following his discharge from hospital) was lawful. §
Lasting Powers of Attorney
These are the official summaries from the Ministry of Justice website.
- Capacity to make an LPA. A, B and C v X, Y and Z  EWHC 2400 (COP),  MHLO 112 — The court was asked to make declarations as to whether X had capacity to do various things, including entering into marriage, litigating, making a will, managing his affairs, and making or revoking an enduring or lasting power of attorney. Paragraph 38 is of interest on the question of fluctuating or qualified capacity: "Let me then turn to the question of revocation or creation of enduring or lasting powers of attorney. First, I am not satisfied that it has been established that X lacked capacity to revoke the power of attorney in favour of the Applicants, even indeed if that was still a live issue given that the revocation has been accepted and the registration has been cancelled. I found the issue of power to create a new enduring* power of attorney very much more difficult for all the reasons that apply in relation to testamentary capacity. In the end, I have reached exactly the same conclusion. I am unwilling to make, on the evidence, a general declaration that he lacks capacity, but qualify that immediately by saying that the exercise of such a power, unless accompanied by contemporary medical evidence of capacity, would give rise to a serious risk of challenge or of refusal to register. It seems to me, for exactly the same reasons as I endeavoured to set out in relation to testamentary capacity, that X’s capacity is likely to diminish in the future and there will be times when undoubtedly he lacks capacity, just as there will be times when he retains it." [*The judge must have intended to refer to a new lasting power of attorney, as new enduring powers of attorney may not now be made.] [OPG summary - LPA case.]
- More detailed (MHLO) summary for the above case. A, B and C v X, Y and Z  EWHC 2400 (COP),  MHLO 112 — The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, if unaccompanied by contemporary medical evidence asserting capacity, might be seriously open to challenge. (3) The same observations applied to X's capacity to revoke or create lasting or enduring powers of attorney. (4) X lacked capacity to manage his own affairs: although a snapshot of X's condition at certain times would reveal an ability to manage his affairs, the general concept of managing affairs is an ongoing act and relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. (5) X also lacked capacity to litigate: this required separate consideration because the time frame involved is different to managing affairs on the one hand, or making a will or granting power of attorney on the other. The basis for this assessment was stated in Masterman-Lister: 'whether the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings'. (6) No finding was sought in relation to capacity to decide on contact, and the judge thought 'the idea that this distinguished elderly gentleman’s life should be circumscribed by contact provisions as though he was a child in a separated family' to be deeply unattractive. (7) There should be (a) a greater emphasis on judicial continuity in the COP, and (b) a pre-hearing review in any case estimated to last three days or more.§
- Replacement for replacement attorney. Re Martin  MHLO 21 (LPA) — The donor appointed two primary attorneys, A and B, to act jointly and severally, and three replacement attorneys, C, D and E. He included a valid provision to the effect that the D should replace B if B was unable to act, and then directed as follows: "In the event of my first attorney being unable to continue, E should act as Assistant to C (1st Replacement Attorney), and in the event of C being unable to continue, he should assume the power of Attorney." On the application of the Public Guardian this provision was severed because (applying Re Baldwin, above) the MCA does not permit a replacement attorney to be replaced, nor is it possible to direct an attorney or replacement attorney to act as assistant to another attorney or replacement attorney. [OPG summary - LPA case.]§
- Replacement for replacement attorney. Re Boff  MHLO 88 (LPA) — The donor of a Lasting Power of Attorney cannot appoint a replacement attorney to succeed another replacement attorney.§
- Severance of restrictions incompatible with an LPA. Re Hart  MHLO 19 (LPA) — The donor made an LPA for property and financial affairs. He was also the sole attorney under an EPA made by his wife and registered. In his LPA he authorised his attorneys to have access to his will and medical records, and then continued as follows: "This also applies to acting as Attorneys for my wife, whose EPA has been registered." On the application of the Public Guardian this provision was severed because an LPA may not be used to add anything to someone else's EPA. (The donor appears to have wrongly assumed that his own attorneys could take over his role as attorney for his wife.) [OPG summary - LPA case.]§
- Severance of restrictions incompatible with a Property and Financial Affairs LPA. Re Black  MHLO 20 (LPA) — The donor, a solicitor, appointed A and B as attorneys, to act jointly and severally. She imposed the following restriction: "A has been appointed solely to manage ABC Solicitors to enable continuing management of the Practice. B has been appointed to deal with all other financial matters both personal and business related, which do not specifically require a Solicitor of the Supreme Court." On the application of the Public Guardian the restriction was severed because it was incompatible with a joint and several appointment. [OPG summary - LPA case.]§
- Severance of restrictions incompatible with a Health and Welfare LPA. Re Baxter  MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am becoming" were also inconsistent with section 11(7)(a) because the donor must lack capacity (or be reasonably believed to lack capacity). It is not sufficient that the donor may be "becoming" mentally incapable. The wording of section 11(7)(a) may be contrasted with paragraph 4(1) of Schedule 4 of the MCA, which imposes a duty to apply for registration on an attorney under an EPA when the donor "is or is becoming" mentally incapable. [OPG summary - LPA case.]§
- Severance of restrictions incompatible with a Health and Welfare LPA. Re Spaas  MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.]§
- Severance of restrictions incompatible with a joint and several appointment. Re Griggs  MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that "My Remaining attorney is to choose which replacement attorney is to act as my other attorney." Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian's application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary - LPA case.]§
- Revocation of LPA. Re Buckley  MHLO 13 (LPA) — Click on link to view page.§
- Appointment of substitute by an attorney. Re Goodwin  MHLO 86 (LPA) — The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: "She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing 'Lasting Power of Attorney' in place during the donor's lifetime." On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary - LPA case.]§
Solicitors Regulation Authority decisions
- Improper conduct. SRA decision: Billy Chucks of Chris Solicitors  MHLO 22 (SRA) — "It is reported that whilst employed by various legal practices: Mr Chucks failed to comply with restrictions on his attendance imposed by a number of hospital trusts, and that he prepared a “consent to disclosure” request at a hospital for a client who has confirmed that he had not instructed Mr Chucks to act on his behalf, and that he improperly removed clients’ files/documentation without authority from a former employer. Those papers have not yet been returned. ... I FIND that Mr Billy Chucks, (Date of birth: 23 August 1975) of [London] who is or was involved in legal practice but is not a solicitor has, in the Society’s opinion occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the Society’s opinion it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in sub-section (1A) of Section 43. ... This includes being on hospital premises after he knew that a ban prohibiting his attendance had been imposed. On one occasion police were called to the hospital as a result. He had objected to the bans imposed but he did not take any action to challenge these through the appropriate legal route. ... Also, it is a matter of grave concern that client’s papers, improperly in Mr Chucks’ possession, are not held securely and client confidentiality is compromised. An assurance given that these would be returned to the firm of solicitors responsible for their safe keeping has not been honoured. ... For these reasons, I have concluded that it would be undesirable for Mr Chucks to be involved in a legal practice. The effect of this Order is that he may not be employed in legal practice without the knowledge and prior approval of the SRA. Any approval granted is likely to be subject to strict conditions in order to protect clients and the public."§
- Dishonesty. SRA decision: Nnadozie Okpokiri of Dozie and Co Solicitors  MHLO 53 (SRA) — The SRA closed down Dozie and Co on the grounds that (1) it had reason to suspect dishonesty on the part of Nnadozie Okpokiri (director) and (2) it was satisfied that he had failed to comply with the conduct and accounts rules.§
- Employment Suupport Allowancen assessments. R (MM) v SSWP  EWCA Civ 1565,  MHLO 132 — (1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed.§
- Housing Benefit. Obrey v SSWP  EWCA Civ 1584,  MHLO 129 — (1) The Upper Tribunal had not erred in law in finding that the cessation of Housing Benefit after 52 weeks as a hospital patient (which indirectly discriminated against the mentally ill) was justified . (2) The Court of Appeal discussed the limitations on appeals against the specialist Upper Tribunal.§
- Neary Housing Benefit case. Neary v LB Hillingdon  MHLO 87 (SEC) — Mark Neary's appeal against Hillingdon's decision to end Housing Benefit was unsuccessful: as he was estranged from his wife, who lived separately in a jointly-owned property, his share of the property counted towards the statutory limit for Housing Benefit purposes.§
- Mark Neary, 'The Tribunal' (Love, Belief and Balls Blog, 9/8/13)
Immigration and extradition
- Unlawful detention. R (Das) v SSHD  EWHC 682 (Admin),  MHLO 28 — "The Claimant's submission in these proceedings is that at the time of the second period of detention she suffered from a mental illness, in the form of depression and post traumatic stress disorder ("PTSD"), and that in detaining her the Secretary of State acted contrary to, or without having proper regard to, his own policy regarding detention of persons suffering from mental illness. This means that her detention was unlawful, as being in breach of the Claimant's legitimate expectation that the Secretary of State would take into account and abide by his policy in this regard. ... The Claimant is entitled to a declaration that the entire second period of detention was unlawful. However, she is only entitled to nominal damages for false imprisonment in relation to that detention."§
- Extradition. Bialek v Circuit Court in Warsaw Poland  EWHC 930 (Admin),  MHLO 39 — Extradition case with psychiatric element.§
- Immigration. Republic of South Africa v Dewani  EW Misc 8 (MC) — Immigration case.§
- Mental Health Cop Blog, 'S v Dewani' (6/8/13)
- Immigration. R (T (Sri Lanka)) v SSHD  EWHC 1093 (Admin),  MHLO 62 — Immigration case.§
- Immigration. R (EH) v SSHD (2012) EWHC 2569,  MHLO 181 — Immigration/mental health case.§
- Lois Williams, 'Back in the spotlight: the detention of mentally ill asylum seekers' (UK Human Rights Blog, 9/10/12). Commentary on R (EH) v SSHD B.
- Extradition. Arshad v Court of Magistrates Malta  EWHC 3619 (Admin),  MHLO 138 — Extradition case with mental health background.§
- Immigration case. R (Muhammad) v SSHD  EWHC 3157 (Admin),  MHLO 123 — Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused.§
- Hunger strike. R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD  EWCA Civ 1561,  MHLO 113 — Unsuccessful appeal in hunger strike deportation case.§
- Hunger strike. R (Muaza) v SSHD  EWHC 3764 (Admin),  MHLO 112 — "These two cases raise common issues over the lawfulness of the exercise by the Secretary of State for the Home Department of her powers of detention in respect of immigration detainees whose refusal to take food and fluids causes them life threatening physical conditions, and over whether there comes a stage at which such a detainee's continued detention after the refusal to take food or fluids involves a breach of rights under Articles 2 and 3 of the European Convention on Human Rights."§
- Parole Board delay damages. R (Faulkner) v SSJ  UKSC 23,  MHLO 60 — Quantum of compensation for delayed Parole Board hearing.§
- Parole Board delay. R (LV) v SSJ  EWCA Civ 1086,  MHLO 82 — Click on link to view page.§
Miscellaneous England & Wales cases
- Employment. West London MH NHS Trust v Dr Chhabra  EWCA Civ 11,  MHLO 2 — (1) Various complaints had been made against Dr Chhabra, including in relation to breaches of patient confidentiality, and the case investigator's report stated that Dr Chhabra admitted to reading CPA notes and dictating reports on public transport. (2) Upon reading the case investigator's report the case manager decided to convene a disciplinary panel to consider the following allegations and to consider them as potential gross misconduct which could lead to dismissal: (a) that Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport (the complaint being made by another passenger who happened to be Head of Secure Services Policy at the Department of Health); (b) that she undertook dictation on at least two occasions whilst completing Mental Health Tribunal reports whilst on public transport (the complaint being made by a member of secretarial staff); (c) that whilst travelling to work on public transport she would often call her secretary to discuss patient related matters breaching confidentiality (the complaint being made by her PA). (3) The High Court had made a declaration and injunction the effect of which were to prevent a disciplinary panel from investigating these complaints as matters of gross misconduct and under the terms of its disciplinary policy. (4) The Court of Appeal overturned that decision, stating the case manager's decision was justified on the basis of the disciplinary procedures and the evidence: patients' right to confidentiality is fundamental in the Health Service and must be respected by doctors and other staff; the case manager was entitled to regard breach of it in a public place by a consultant at Broadmoor as a potentially serious offence.§
- Employment. West London Mental Health NHS Trust v Chhabra  UKSC 80,  MHLO 118 — The facts can be found in the summary of the Court of Appeal's judgment. The Supreme Court allowed Dr Chhabra's appeal, granting an order restraining the Trust from (a) pursuing any of the confidentiality concerns contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and (b) pursuing any confidentiality concerns without first re-starting and completing an investigation under its policy D4A.§
- Restraint techniques. R (Children's Rights Alliance for England) v SSJ  EWCA Civ 34,  MHLO 16 — "This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ( B), by which he dismissed the appellant's application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom."§
- Disclosure. Durham County Council v Dunn  EWCA Civ 1654,  MHLO 169 — "On 17 December 2007, the claimant's solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s. The letter included a request for the disclosure of certain documents. Some documents were disclosed in redacted form. On 25 March 2011, the claimant issued these proceedings. This appeal is concerned with the ambit of the Council's duty of disclosure. ... In particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR)."§
- Assisted suicide. R (Nicklinson) v Ministry of Justice  EWCA Civ 961,  MHLO 65 — Assisted suicide.§
- Investigation following death. R (Antoniou) v Central and North West London NHS Foundation Trust  EWHC 3055 (Admin),  MHLO 98 — "This claim for judicial review arises out of the suicide of Mrs Jane Antoniou... At the time she was a patient detained ... under section 3 of the Mental Health Act 1983... For the reasons given above, we have concluded that, given all the circumstances of this case, in particular the fact that there was a properly constituted and conducted Inquest, there was no obligation under Article 2 of the ECHR to have, in addition, a separate independent investigation into the death of JA, either from the outset or from any time thereafter. We have also concluded that, taken as a whole, the investigation process into the death of JA was independent, effective and prompt. Lastly, we have concluded that there was no unlawful discrimination against JA or the claimant by any of the defendants in the way that JA's death was investigated."§
- Community Care, 'Legal challenge over "discriminatory" system for investigating mental health detention deaths' (24/7/13)
- Transfer of prisoner to DSPD unit. R (McKay) v SSJ  EWHC 3728 (Admin),  MHLO 136 — Permission to apply for judicial review of the decision to refer the claimant prisoner to a prison Dangerous and Severe Personality Disorder (DSPD) unit for assessment was refused because it was 'a classic example of a situation in which two experts disagree' and it was not for the court to interfere and substitute its own view.§
European Court of Human Rights
- Access to MHTs for patients lacking capacity. MH v UK 11577/06  ECHR 1008,  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.§
- Lucy Series, 'MH v UK: Implications for the deprivation of liberty safeguards' (The Small Places Blog, 23/10/13)
- Breach of Art 3 during police detention. Further detail added to summary. MS v UK 24527/08  ECHR 804,  MHLO 46 — MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and that he was in dire need of appropriate psychiatric treatment - the conditions which the applicant was required to endure were an affront to human dignity and reached the threshold of degrading treatment for the purposes of Article 3. (3) There was no breach of Article 13 as an appropriate remedy was available in domestic law, notwithstanding the fact that he had been unsuccessful. (4) Compensation of €3,000 was awarded.§
- Martha Spurrier, 'European Court got it right on mental health detention delay' (UK Human Rights Blog, 7/5/12)
- Social care detention. Mihailovs v Latvia 35939/10  ECHR 65,  MHLO 15 — "The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights."§
- Hospital detention. Lashin v Russia 33117/02  ECHR 63,  MHLO 14 — "The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry."§
- Scottish smoking ban. Re CM (Judicial Review)  CSOH 143 — "The petitioner asks the court to declare that the respondents' 'policy of a complete smoking ban and prohibition of possession of tobacco products by patients at the State Hospital' is unlawful; and also to declare that the respondents' policy has breached the petitioner's human rights, specifically article 8 of the European Convention on Human Rights (right to respect for private life and home) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination) and the first protocol, article 1 ECHR (right not to be deprived of property) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination). ... I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way. In that it relied on compulsion, the decision was contrary to the national policy which it purported to implement. The decision should have been made with reference to the section 1 principles of the 2003 Act but was not, and was in contravention of the obligations imposed by section 1 on the respondents. The respondents did not, for example, take account of the petitioner's wishes, or provide him with the requisite information; and on no reasonable view could they have reached the conclusion that the smoking ban, to the extent that it was necessary, was implemented in 'the manner that involves the minimum restriction on the freedom of' the petitioner. Whether or not consultation is a legal requirement, if it is embarked on it must be carried out properly. I am satisfied that the compulsory 'comprehensive smoke-free' regime was a foregone conclusion and that the consultation exercise was not a meaningful one... If article 8 ECHR is engaged, and I hold that it is, it is for the respondents to justify interfering with the petitioner's right to make his own decision about smoking. They have failed to do so satisfactorily. Indeed, I am satisfied that the decision to stop the petitioner smoking in the hospital grounds constituted interference with the petitioner's article 8 ECHR rights without lawful warrant - because it was not made in accordance with section 1 principles - and because it went further than was necessary to achieve the legitimate aim in question, namely to protect third parties from the petitioner's cigarette smoke. The respondents have also failed to demonstrate an 'objective and reasonable justification' for treating the petitioner differently from adult, long-term prisoners, who can smoke if they wish. Going further, on the material presented to me and in the absence of any other suggestion, it appears that the only justification for imposing a smoking ban on mental health detainees like the petitioner and not on penal detainees is that it is feasible to compel mental health detainees to stop smoking because of their vulnerability. This is not a legitimate justification. Accordingly I hold that there has been a violation of the petitioner's right not to be discriminated against in the enjoyment of his article 8 ECHR rights contrary to article 14 ECHR."
- Scottish case. G v Scottish Ministers sub nom G v MHTS  UKSC 79,  MHLO 117 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The tribunal's decision to make no order was lawful. The Supreme Court took the opportunity to clarify the nature of decision-making under section 264(2) Mental Health (Care and Treatment) (Scotland) Act 2003, and the factors which are relevant to the proper application of that section and of other provisions of the Act.§
Legal Aid legislation
- Legal Aid legislation. Civil Legal Aid (Remuneration) Regulations 2013 — Payment rates for legal fees and independent experts. No change to MH legal fees. Some changes to independent expert maximum hourly rates, including: (a) psychiatrist is £135 in any area (previously £90 in London); (b) psychologist is £117 in any area (previously £90 in London). The previous rates continue to apply to cases started after 3/10/11 but before 1/4/13. In force 1/4/13. Note that these fees were subsequently reduced by the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013/2877.
- Legal Aid legislation. Civil Legal Aid (Remuneration) (Amendment) Regulations 2013 — These regulations, among other things, amend the Civil Legal Aid (Remuneration) Regulations 2013 so as to reduce by 20% the maximum hourly rates payable to experts in civil cases. New rates include psychiatrists at £108 and psychologists at £93.60 per hour. In force 2/12/13 (i.e. it applies where the relevant legal aid form is signed and dated, or an emergency application is granted under delegated functions, on or after 2/12/13).
- Legal Aid legislation. Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 — Financial eligibility for Legal Aid. In force 1/4/13.
- Legislation. Mental Health (Discrimination) Act 2013 — This Act: (1) repeals, from 28/4/13, s141 MHA 1983 so that the seat of an MP is no longer vacated upon long-term detention under the Act; (2) amends, from 15/7/2013, the Juries Act 1974 in relation to qualification for jury service based on mental health (see jury service page for current provisions); (3) amends, from 28/4/13, the Companies (Model Articles) Regulations 2008 so that a person no longer ceases to be a director when 'by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have'. Schedule 1 not in force (as at 19/12/15).
- Mind, 'A great victory against discrimination!' (March 2013)
- Mental Capacity Act 2005 secondary legislation - Public Guardian and Court of Protection. Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2013 — These regulations amend Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (1) Regulation 3 substitutes a period of 4 weeks for the existing 6 week period that must elapse between the date of the latest notice by which the Public Guardian notifies the donor or donees (as appropriate) of a lasting power of attorney that an application to register has been received, and the date on which the LPA is registered. (2) Regulations 4 and 5 substitute a 3 week period for a 5 week period during which a donee or donor of the power, or a named person, must give notice of objection to registration to the Public Guardian. (3) Regulation 6 substitutes a period of 3 weeks for the current 5 week period in which a person who wishes to make an application to the court objecting to registration must do so. (4) Regulation 8 introduces a new basis on which a security given by a deputy to the Public Guardian in respect of the discharge of his or her functions can be discharged. (5) Regulations 9-12 amend forms (Forms LPA 001, LPA 003A and LPA 003B will be available online from 1/4/13). (6) Regulation 13 makes transitional provision. In force 1/4/13
Mental Health Tribunal
- Updated Practice Direction. Practice Direction: First-tier Tribunal Health Education and Social Care Chamber: Statements and Reports in Mental Health Cases (28/10/13) — This Practice Direction relates to the contents of reports required for mental health cases. In force 28/10/13 (superseding previous versions).
- Consultation (medical examination). The Tribunal Procedure Committee propose to amend the rules as follows: (a) to make the medical examination discretionary (except in s2 cases, where there is to be no change); (b) to allow any member of the tribunal to view the medical records (rather than just the medical member); (c) to require either a medical examination or a finding that one is unnecessary or not practicable before a tribunal can proceed in the patient's absence. The relevant documents are: (1) Tribunal Procedure Committee, 'Proposal to amend Rule 34 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (medical examination of the patient in mental health cases): Stakeholder Consultation' (June 2013); (2) Julie McCallen, 'Consultation on proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (letter, 18/6/13); (3) Tribunal Procedure Committee, 'Questionnaire' (June 2013). Consultation runs from 18/6/13 to 10/9/13. See Consultations#Mental Health Tribunal
- Neil Skelton, 'Note to All Mental Health Tribunal Stakeholders: Mental Health Tribunal: process changes' (HMCTS, 15/4/13). In relation to applications or referrals submitted on or after 13/5/13, MHT cases will no longer be listed by negotiation in England. There is no change for section 2 cases. When a case is registered by the tribunal secretariat, new form HQ1 will be sent to parties, who will have 14 days (in practice, usually via the representative and MHA Administrator) to provide availability during the following listing windows: (a) for unrestricted cases, 5-8 weeks from the the secretariat's receipt of the application or referral; (b) for restricted cases, 12-14 weeks. The secretariat aims to select a date and notify the parties within 21 days of receipt of the application or referral. See Mental Health Tribunal
- HMCTS, ' Mental Health Tribunal: Process Changes: Frequently asked Questions' (15/4/13)
- Form HQ1 (April 2013 version)
- Mark Hinchliffe, John Wright and Karen Early, 'New Arrangements for Listing Mental Health Cases' (letter, 2/7/13).
- Tribunal contact details. The contact list for the secretariat was updated on 3/6/13. See Mental Health Tribunal
Court of Protection
- Practice Guidance. Practice Guidance: Committal for Contempt of Court  EWHC B4 (COP) — Applications for committal for contempt, including in the Court of Protection and Family Division, should be heard and decided in public. The discretion to hear such an application in private (in the COP or, in proceedings relating to a child, the Family Division) should be exercised only in exceptional cases where it is necessary in the interests of justice, and in all such cases the court must state in public: (a) the name of that person; (b) in general terms the nature of the contempt of court in respect of which the committal order or suspended committal order is being made; and (c) the punishment being imposed. Committal applications should at the outset be listed and heard in public and a public judgment must be given setting out reasons if the court decides to sit in private. Committal applications in the Court of Protection or the Family Division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so. Every such statement or judgment must be transcribed at public expense and published on Bailii.
- Forms. New COP3 form published in November 2013. See Court of Protection forms
- External link added. MOJ website: Court of Protection daily cause list. See Court of Protection
- Sir James Munby P, 'View from the President's Chambers (4): The process of reform: an update' (July 2013) and Draft Practice Guidance on the Publication of Judgments (12/7/13). See Court of Protection
- Sir James Munby P, 'Opening up the Family courts: Transparency in the Family court and the Court of Protection' (Speech at Annual Conference of the Society of Editors, 11/11/13). See Court of Protection
- Chris Green, 'The blind pianist who led our reporter to a closed courtroom' (Independent, 2/5/13). See Court of Protection#Other links
- Sue Reid, 'Neil has an IQ of 125 and runs his own business. So why won't a secret court let him spend his own money?' (Daily Mail, 28/4/13). See Court of Protection#Other links
- Law Society practice note. During 2013 the Law Society published a '30/9/11' version of their 'Representation before mental health tribunals' practice note. The revisions since the 19/5/11 version relate to the 2011 Code of Conduct which replaced the 2007 Code, including: (a) five new introductory paragraphs at 1.2, and 'will be updated' replaced by 'has been updated'; (b) second paragraph of 3.2, in relation to client care letters, replaced by three new paragraphs; (c) abbreviations added at 8.5. Other references to the 2007 Code are unchanged. See Law Society practice note on representation before Mental Health Tribunals
- 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
- Law Society, 'Review of the Mental Health [Act] 1983 Code of Practice: [Response to] Pre-consultation Engagement' (November 2013). See Law Society
Dept of Health
- Kathryn Walsh, 'Community treatment orders fail to reduce psychiatric readmissions for people with psychosis' (14/5/13). The government-funded OCTET randomised controlled trial (see Burns et al, 'Community treatment orders for patients with psychosis (OCTET): a randomised controlled trial' (2013) 381 Lancet 1627) tested whether CTOs reduce admissions compared with use of s17 leave, and found that at 12 months, despite the significant difference in length of initial compulsory outpatient treatment (median 183 days on CTOs but 8 days on s17) the number of patients readmitted did not differ between the two groups. The researchers’ interpretation was: 'In well coordinated mental health services the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients' personal liberty.' See CTO
- Department of Health, 'Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England' (October 2013). See Ordinary residence
- Dept of Health, 'Review of NHS complaints system' (press release, 15/3/13). The review will be encouraged to make recommendations about: (a) any aspect of the NHS complaints arrangements and other means by which patients make concerns known; (b) the way that organisations receive and act on concerns and complaints; (c) how Boards and managers carry out their functions; (d) the process by which individual organisations are held to account for the way that they handle concerns and complaints. Contact details are provided for anyone wishing to submit evidence. Review begins 15/3/13 and is due to report by 30/7/13. See Consultations#Department of Health
- Rosa Silverman, 'NHS complaints system review launched' (Telegraph, 15/3/13). See Consultations#Department of Health
- Department of Health, 'Independent Mental Capacity Advocacy service - fifth annual report' (18/2/13). See Independent Mental Capacity Advocate service
- Department of Health, 'Independent review of the arrangements made by SHAs for the approval of registered medical practitioners and approved clinicians under the Mental Health Act 1983' (5/2/13). See MHA 1983 s12
- Department of Health, 'Winterbourne View Hospital: Department of Health review and response' (various documents). See Miscellaneous external links
- Department of Health, 'Deprivation of Liberty Safeguards (DOLS) Funding Factsheet for 2013-14' (25/9/12). See DOLS
- Department of Health, 'Analysis of the Consultation on Allocation Options for the Funding for Independent Mental Health Advocate Services and the treatment of Armed Forces compensation in charging for social care' (31/10/12). See Miscellaneous external links
- Department of Health, 'Records Management: NHS Code of Practice' (30/3/06). See Miscellaneous external links
Ministry of Justice
- Ministry of Justice, 'Code of Practice for Victims of Crime' (October 2013). See Victims of crime
- Ministry of Justice, 'Court Fees: Proposals for reform' (December 2013). The proposals include introducing new, and amended, fees for the Court of Protection, and increased fees for judicial review. From Government website: "Under the proposals contained in this consultation paper, those using the civil court system would, in future, be expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost. Fee remissions will continue to be provided for those who qualify, so that access to justice is not denied." Consultation from 3/12/13 to 21/1/14. See Consultations
- Ministry of Justice, 'New online application service for Lasting Powers of Attorney (LPA)' (press release, 2/7/13). See LPA
Legal Aid / Legal Aid Agency
- Legal Aid Agency, 'Headline intentions for tenders for remaining categories operating under the Standard Civil Contract 2010' (29/11/13). (1) In the mental health and community care categories, the existing 2010 contract will be extended to 31/7/14, and the proposed timetable for the new contract is as follows: (a) PQQ and ITTs open, mid-Feb; (b) PQQ and ITTs close, mid-March; (c) notification of outcome, late-April; (d) verification process, May to late-June; (e) issue contracts, July; (f) contract start, 1/8/14. (2) All organisations meeting the tender requirements will be awarded a contract. Matter starts will be awarded based on lots (details of which have not yet been published). Those bidding in the smaller lots will be guaranteed what they bid for (with the ability to self-grant 50% extra). Those bidding in the highest lot may need to meet additional requirements; they will be allocated the minimum number in that lot, plus whatever matter starts remain after allocation of the guaranteed matter starts. (3) In mental health, all representatives before the Mental Health Tribunal must be accredited under the Law Society's mental health accreditation scheme. In community care, it will no longer be possible to qualify as a supervisor via the housing route, and licensed work will no longer be able to be done under tolerance. In both categories an authorised litigator (usually a solicitor or barrister: see Legal Services Act 2007) must be employed. (4) Details for other 2010 categories (including public law) will follow, but the intention is to extend the contract to 31/10/15, and tender from late-2014 with contracts starting on 1/11/15. See Legal Aid
- Legal Aid Agency, 'Applications for emergency funding in judicial review cases: processes and procedures from 1 April 2013' (March 2013). See Legal Aid
- Forms. New Legal Aid forms must be used from 1/4/13: see Civil forms preview on MOJ website. See Legal Aid forms
- Ministry of Justice, 'Transforming legal aid: delivering a more credible and efficient system' (consultation paper CP14/2013, 9/4/13). This consultation, running from 9/4/13 to 4/6/13, sets out the Government's proposals for further reform of the legal aid system in England and Wales. See Consultations#Legal Aid
- Ministry of Justice, 'Transforming Legal Aid: Next Steps' (5/9/13). See MoJ website *
- 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
- Too good to be true. To coincide with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the abolition of the Legal Services Commission, both of which take effect on 1 April, the Legal Aid Agency has announced that neither the fixed fees system nor the matter start system is 'fit for purpose'. A spokesman stated that (a) the mental health fixed fee system has reached a level of complexity of which Heath Robinson would have been proud, so from today future payments will be based on a reasonable hourly rate for work reasonably incurred; and (b) the matter start system is unnecessary because of the abolition of fixed fees (in any event, ECHR obligations mean the total number of cases is determined by the number of patients detained by the state), so from henceforth individual firms may carry out as many cases as reputation and market forces permit. The Federation Of Outpatient Lawyers issued the following initial statement: 'This common sense approach seems too good to be true.' [April Fool!] See Legal Aid
- Law Commission, 'Criminal Liability: Insanity and Automatism: A Discussion Paper' (23/7/13). See Law Commission
- Address. From 25/8/13 the offices of the Official Solicitor and Public Trustee will move to: Victory House, 30-34 Kingsway, London WC2B 6EX; DX 141423 Bloomsbury 7. See Official Solicitor
Care Quality Commission
- CQC, 'Monitoring the Mental Health Act in 2011/12' (30/1/13). The following are the report's key findings for each chapter, and its concluding recommendations: (1) Use of the Act: (a) The number of people subject to detention under the Act is rising. The number of detentions rose by 5% on the previous year; the number of community treatment orders rose by 10%. (b) Of the 4,576 patient records checked in 2011/12, 4% showed irregularities that called the legality of the detention into question. (c) Care planning was the most frequently raised category of concern; 85% of the care plans examined showed evidence of individualised planning, regular review and evaluation, 15% did not. This was no change on 2010/11 and amounted to just over 650 patients where basic expectations about care planning were not met. (d) The greater detail now available in the Mental Health Minimum Data Set has exposed a number of data quality issues that must be addressed before the data can realise its full potential. (2) Participation and Respect: (a) CQC’s MHA Commissioners visited many mental health wards where a great deal of respect was given to patients. (b) Patients were able to influence the running of their ward in almost all cases – 94% of all wards in 2011/12, up from 90%. (c) Patients were more involved in planning their own care: their views were recorded in 63% of care plans, a rise from 58%. But this means an unacceptably high proportion – more than a third – did not have their views written down. (d) More than half of patients were still not given a copy of their care plan. (e) Most patients (90%) were given general information about their rights when they were first detained. (f) But one patient in five was not informed of their right to an Independent Mental Health Advocate (IMHA). (g) This may reflect continuing difficulties that some services have in accessing IMHAs. There was no evidence of an IMHA service in one in seven of the wards CQC visited. (3) Coercion in practice: (a) The human rights of patients are often affected by controlling practices that only seem to serve the hospital’s needs. Hospitals have a difficult task in balancing the realities of detention and compulsory treatment with the requirement that they provide services according to a principle of least restriction on patients. But it has proved all too easy for cultures to develop in which blanket rules deny people their basic rights – especially the right to dignity. (b) In one in five visits – an unacceptably high number – MHA Commissioners thought that patients who were in hospital voluntarily might be detained in all but name. For example, in 88 out of 481 visits there were no signs on locked doors that explained to voluntary patients how they could leave the ward. (c) On 24 occasions, patients had been secluded but the ward staff had not realised this was classed as seclusion and they had not applied the proper safeguards. (d) In many hospitals restraint practices are generally safe and appropriate. Almost all staff will now have some degree of training not only in physical methods of restraint, but in ways to prevent confrontational situations. (e) However, CQC is still concerned at the lack of regulation of training programmes with regard to restraint. Safeguards could be improved. (f) CQC is talking with the Department of Health about how to promote best practice around support for positive behaviour. (4) Care pathways (a) CQC saw evidence that many Approved Mental Health Professionals are trying to find alternative care for people that avoids them having to be detained in hospital. (b) Pressures on beds continued to put services and patients under stress, making it harder to provide appropriate care for people in times of crisis. In 2011/12, 93 wards (6% of all wards) visited had more patients than beds; a further 10% were at full capacity. (c) Patients are being affected by reductions in staff numbers. For example, MHA Commissioners raised concerns in 77 visits that a lack of staff prevented patients taking escorted leave. (d) In some services MHA Commissioners saw excellent examples of patients benefitting from psychological therapies. But in others, services were too ready to rely on psychiatric medication as their response to patients’ distress. (e) Patients are benefitting from good discharge planning in a number of units – with considerable investment in time and effort being spent in identifying step down accommodation and suitable support arrangements. But an unacceptably high proportion – more than a third of care plans – still showed no evidence of discharge planning. (5) Consent to treatment: (a) Consent to treatment discussions (before the first administration of medication) improved in 2011/12 – 55% of records showed these, up from 46% in 2010/11. But this means that in almost half of cases there was no evidence that doctors had talked to patients about whether they consented to proposed treatment. (b) There was better evidence of consent discussions after the first use of medication (72% of records). But still this means consent was not discussed in more than a quarter of cases. (c) One patient in 10 (receiving medication for three months or more) was prescribed medication above the legally authorised care plan. (d) In CQC’s view, the assumption of a patient’s capacity to consent to or refuse treatment should be backed up by a written record. More than a third of records did not show any evidence of a capacity assessment (42% on admission; 36% at the end of three months or the last administration of medication). (e) Patients may be reluctant to say what they think about their treatment in public, particularly in a traditional ward round. CQC saw some good services that have developed private arrangements instead of ward rounds. (6) Community Treatment Orders: (a) CTOs are used widely by some providers, and used little by others. In an analysis of NHS organisations, the lowest reported ‘discharge rate’ onto a CTO was 4.0%; the highest was 45.5%. (b) There were also a number of NHS organisations – with considerable rates of detention under the Act – that provided nil returns for the use of CTOs. (c) A number of patients are worried that it isn’t clear when a CTO will have served its purpose – and therefore they do not know what they have to do to come off a CTO. (7) Recommendations: (a) Policy makers must consider the reasons why there are rising numbers of people subject to the Act and develop an appropriate policy response. (b) The Boards of mental health trusts, independent providers of mental health care, and community trusts are responsible and accountable for the quality of care people receive. They must drive the changes needed in their organisations. In particular they need to recognise and promote good practice and ensure that robust mechanisms are in place to understand individuals’ experience of their services. CQC reminds providers of their own duties to monitor how they use powers derived from the Act (see the Code of Practice) and their duties under the Health and Social Care Act 2008 to demonstrate how they have learned lessons from practice and have made consequent improvements. This is an area that CQC will focus on in the next 12 months in its regulatory activity. (c) The NHS Commissioning Board, local authorities, clinical commissioning groups and specialist commissioners must commission services that guarantee a person’s dignity, recovery and participation. Clinical commissioning groups and local authorities must ensure that local needs assessments for community services and commissioned models of care are informed by an understanding of their statutory duties under the Act and by the experiences of people who use services. See CQC
- CQC, 'Mental health services must improve the care they provide to patients' (news item, 30/1/13). This web page contains a brief summary of the report plus links to: (a) the report, (b) a summary document, (c) an easy-read version, and (d) the CQC's press release. See CQC
- CQC, 'Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12' (28/3/13). See CQC#CQC - DOLS
- CQC, 'Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12: Summary' (28/3/13)
- CQC, 'CQC finds Mental Capacity Act not well understood across all sectors and calls for more work by providers and commissioners to improve' (press release, 28/3/13)
- Lucy Series, 'No longer early days' (The Small Places Blog, 7/4/13)
- Chris Doidge and Rob Cave, 'Majority of "deprivation of liberty" cases unreported, says report' (BBC, 7/4/13)
- BBC, '5 Live Investigates' (MP3 file, 7/4/13)
- CQC, 'Thematic review of mental health care announced' (27/6/13). See CQC
- Andy McNicoll, 'CQC to appoint senior mental health inspector to "root out poor services"' (Community Care, 11/10/13). See CQC#Other
- Care Quality Commission, 'A fresh start for the regulation and inspection of mental health services' (29/11/13). See Care Quality Commission#CQC - Other documents
Mental Health Act 2007
- House of Commons Health Committee, 'Post-legislative scrutiny of the Mental Health Act 2007: First Report of Session 2013–14' (HC 584, 14/8/13). Chapter headings are: (1) Introduction; (2) The Appropriate Treatment Test, Community Treatment Orders and detention; (3) Independent Mental Health Advocates; (4) Places of safety; (5) Supervised Community Treatment; (6) Interaction with the Mental Capacity Act 2005; (7) Ethnicity and the use of the Mental Health Act; (8) Conclusions and recommendations. See Mental Health Act 2007 and Mental Health Act 2007 Overview
- Department of Health, 'Post-legislative assessment of the Mental Health Act 2007: Memorandum to the Health Committee of the House of Commons' (Cm 8408, 28/8/12).
- Jonathan Rayner, 'MPs condemn ‘complacent’ approach to deprivation of liberty' (Law Society Gazette, 19/8/13)
- Adam Brimelow, 'Basic rights of mentally ill "violated"' (BBC, 14/8/13). See Mental Health Act 2007
Mental Capacity Act 2005
- Select Committee on the Mental Capacity Act 2005, 'Call for evidence' (26/6/13). The select committee is receiving oral evidence and has called for written evidence to be submitted by 2/9/13. See House of Lords Select Committee on the Mental Capacity Act 2005
- Committee home page (with links to transcripts of oral evidence.
- Parliament website, 'Lords scrutinises Mental Capacity Act 2005 and asks: Is it working?' (press release, 26/6/13)
- Richard Mumford, 'High level Parliamentary committee asks whether mental capacity laws are working' (UK Human Rights Blog, 3/7/13)
- Jonathan Rayner, 'Thousands of UK citizens "detained unlawfully"' (Gazette, 12/8/13)
- 39 Essex Street, 'Update on oral evidence given to House of Lords Select Committee on the Mental Capacity Act 2005 October-November 2013' (December 2013). See 39 Essex Street Mental Capacity Law Newsletter#December 2013
- Singh S et al, 'Ethnicity as a predictor of detention under the Mental Health Act' (2013) Psychological Medicine, 'FirstView' article 24/6/13, available on Cambridge Journals Online (subscription required). See Statistics#Ethnicity
- Andy McNicoll, 'Ethnicity has "no impact" on odds of being detained under Mental Health Act, study finds' (Community Care, 2/7/13)
All newsletters can be accessed from the main Newsletters page.
39 Essex Street
These newsletters, with hyperlinks to the cases, are available on the 39 Essex Street Mental Capacity Law Newsletter page.
- 39 Essex Street, 'Court of Protection Newsletter' (issue 28, December 2012). The cases mentioned in this issue are: Re CP; WBC v CP  EWHC 1944 (COP),  MHLO 144 — Re Harcourt  MHLO 74 (LPA), R v Ligaya Nursing  EWCA Crim 2521,  MHLO 134 — Dunhill v Burgin  EWHC 3163 (QB),  MHLO 115 — Re X & Y (Children) B — Sykora v Czech Republic 23419/07 B. Further information is given on the following subjects: (1) Debt relief orders; (2) Transfer of supervisory body responsibilities from PCTs to Local Authorities; (3) Regulatory review; (4) Home care and Human Rights; (5) CQC, 'The state of health care and adult social care in England: An overview of key themes in care in 2011/12' (November 2012); (6) ECtHR Guide to Article 5; (7) 'Tying ourselves into (Gordian) knots' article.
- 39 Essex Street, 'Court of Protection Newsletter' (issue 29, January 2013). The cases mentioned in this issue are: Re L; The NHS Trust v L  EWHC 2741 (COP),  MHLO 159 — J Council v GU  EWHC 3531 (COP),  MHLO 137 — In the matter of A (a child) B — R (ET) v (1) Islington LBC (2) Essex CC B — R (Chatting) v Viridian Housing  EWHC 3595 (Admin),  MHLO 177 — R (Cornwall Council) v SoS for Health & Ors M — Neon Roberts — An NHS Trust v DJ  EWHC 3524 (COP),  MHLO 138. The following decisions are currently under appeal: ZH v Commissioner of Police for the Metropolis  EWHC 604 (QB),  MHLO 25 — CYC v PC and NC  MHLO 103 (COP) — A, B and C v X, Y and Z  EWHC 2400 (COP),  MHLO 112 — Dunhill v Burgin  EWCA Civ 397,  MHLO 33 and Dunhill v Burgin  EWHC 3163 (QB),  MHLO 115.
- Alex Ruck Keene, 'Advance Decisions: getting it right?' (December 2012)
- 39 Essex Street, 'Court of Protection Newsletter' (issue 30, February 2013). The cases mentioned in this issue are: WCC v AB  MHLO 168 (COP) — Re Buckley  MHLO 13 (LPA) — A Local Health Board v J  MHLO 158 (COP) — Re AW (Permanent Vegetative State); The NHS Trust v AW  EWHC 78 (COP),  MHLO 3 — Durham County Council v Dunn  EWCA Civ 1654,  MHLO 169 — Lashin v Russia 33117/02  ECHR 63,  MHLO 14 — Mihailovs v Latvia 35939/10  ECHR 65,  MHLO 15. There is also information under the following headings: (a) OPG Consultation Response; (b) CQC Report: Monitoring the Mental Health Act in 2011/2.
- 39 Essex Street, 'Consolidated version of newsletters from 2010 to January 2013 inclusive' (February 2013)
- 39 Essex Street, 'Court of Protection Newsletter' (issue 31, March 2013). The cases mentioned in this issue are: Aintree University Hospitals NHS Foundation Trust v David James  EWCA Civ 65,  MHLO 17 — A Local Authority v K  EWHC 242 (COP),  MHLO 11 — A PCT v LDV  EWHC 272 (Fam),  MHLO 6 — ZH v Commissioner of Police for the Metropolis  EWCA Civ 69,  MHLO 9 — A Local Authority v K  EWHC 242 (COP),  MHLO 11 — R (Children's Rights Alliance for England) v SSJ  EWCA Civ 34,  MHLO 16. There is also information under the following headings: (a) Recent practice points from the Family Division; (b) Guidance upon Civil Legal Aid subsequent to 1/4/13; (c) DoH Fifth Annual Report on IMCA services; (d) Third Annual Report on the UK’s National Preventative Mechanism; (e) Disabled persons and sexual surrogates; (f) The CoP for litigants in person; (g) The CoP's work over the past four years.
- Official Solicitor, 'Note on accepting instructions in health and welfare proceedings' (25/2/13)
- 39 Essex Street, 'Court of Protection Newsletter' (issue 32, April 2013). The cases mentioned in this issue are: Aintree University Hospitals NHS Foundation Trust v David James  EWCA Civ 65,  MHLO 17 — Re RGS  EWHC 4162 (COP),  MHLO 173 — PS v LP  EWHC 1106 (COP),  MHLO 43 — HT v CK  EWHC 4160 (COP),  MHLO 175 — PB v RB  EWHC 4159 (COP),  MHLO 174 — R (A) v Chief Constable of Kent Constabulary B — Webb Resolutions Ltd v JT Ltd  EWHC 509 (TCC) — Re M, N v O & P (unreported, 28 January 2013). There is also information under the following headings: (a) Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: No more treatment without consent; (b) Parliamentary Scrutiny; (c) OCTET Study; (d) Avoiding Invalid LPAs; (e) Reducing LPA waiting times; (f) Court of Protection Practitioners' Association; (g) Medical Mediation Foundation; (h) Plans to move the Court of Protection
- 39 Essex Street, 'Court of Protection Newsletter' (issue 33, May 2013). The cases mentioned in this issue are: PC and NC v City of York Council M — Baker Tilley (A Firm) v Makar  EWHC 759 (QB),  MHLO 33 — A County Council v E  EWHC 4161 (COP),  MHLO 176 — Day & others v Royal College of Music & Harris B — Re GM: MJ and JM v The Public Guardian  MHLO 44 (COP) — NT v FS  EWHC 684 (COP),  MHLO 18 — DO v LBH  EWHC 4044 (Admin),  MHLO 165 — ET, BT and CT v Islington LBC B. There is also information under the following headings: (a) Managing a bank or building society account on behalf of someone else; (b) Care Quality Commission - Annual DOLS Report; (c) Court of Protection Practitioners Association - London meeting.
- Ben Troke, 'View from the Coalface' (May 2013). Notes from East Midlands MCA/DOLS Forum meetings
- 39 Essex Street, 'Court of Protection Newsletter' (issue 34, June 2013). The cases mentioned in this issue are: Re SB (A Patient: Capacity To Consent To Termination)  EWHC 1417 (COP),  MHLO 48 — RC v CC  EWHC 1424 (COP),  MHLO 68 — Pitt v Holt  UKSC 26,  MHLO 46 — Coles v Perfect (unreported, 13.5.13) — Coombs v North Dorset NHS PCT  EWCA Civ 471,  MHLO 35 — R (T) v LSC  EWHC 960 (Admin),  MHLO 41. There is also information under the following headings: (a) Response to consultation upon power of entry; (b) Review of COP3; (c) House of Lords Select Committee on the Mental Capacity Act 2005; (d) MIND call for evidence
- Alex Ruck Keene, 'Statutory Wills Update' (May 2013)
- 39 Essex Street, 'Court of Protection Newsletter' (issue 35, July 2013). The cases mentioned in this issue are: Re SK  MHLO 49 — R v Patel  EWCA Crim 965Not on Bailii! — Loughlin v Singh M — Simon v Byford & Ors (Re Rose (Deceased))  EWHC 1490 (Ch)Not on Bailii! — R (Afework) v London Borough of Camden M. There is also information under the following headings: (a) Update on House of Lords Select Committee on the Mental Capacity Act 2005; (b) Statistics upon the MCA 2005; (c) Law Society Practice Note on Financial Abuse
- Alex Ruck Keene et al, 'Severed Lasting Powers of Attorney' (July 2013)
- 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 36, August 2013). The cases mentioned in this issue are: Y County Council v ZZ  EWHC B34 (COP),  MHLO 179 (COP) — Sandwell MBC v RG  EWHC 2373 (COP),  MHLO 55 — Lorraine Studholm Feltham v Freer Bouskell  EWHC 1952 (Ch)Not on Bailii! — Ali v Caton & Anor B — Harrison v South Tyneside Council HM Land Registry Adjudicator Decision Ref/2012/886 — Jeffery & Anor v Jeffery B — JMcA’s Application B. There is also information under the following headings: (a) The Official Solicitor is on the move; (b) EU Fundamental Rights Agency Report on Capacity; (c) Update on House of Lords Select Committee on the Mental Capacity Act 2005; (d) Draft Guidance on Publication of Judgments; (e) Law Commission Discussion Paper on Insanity and Automatism in criminal law; (f) Irish Assisted Decision-Making (Capacity) Bill; (g) Mark Neary’s blog.
- 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 37, September 2013). The cases mentioned in this issue are: An NHS Trust v L  EWHC 4313 (Fam),  MHLO 180 (COP) — R (Nicklinson) v Ministry of Justice  EWCA Civ 961,  MHLO 65 — An NHS Trust v DE  EWHC 2562 (Fam),  MHLO 78 (COP) — An NHS Trust v Dr A  EWHC 2442 (COP),  MHLO 69 — AM v SLAM NHS Foundation Trust  UKUT 365 (AAC),  MHLO 80 — Re Boff COP case 12338771 — Re Goodwin (an order of the Senior Judge made on 17 June 2013) — Re Joan Treadwell (Deceased); OPG v Colin Lutz  EWHC 2409 (COP),  MHLO 57 — Re RGS (No 2) COP case 11831647 — Re JK COP case 1185523T — A Local Authority v WMA  EWHC 2580 (COP),  MHLO 79 — A Local Authority v HS COP case COP1201711T — Surrey County Council v M B — Pearce v Beverley  EW Misc 10 (CC) — R (D) v Worcestershire County Council B — MA v Cyprus B. There is also information under the following headings: (a) Update on House of Lords Select Committee on the Mental Capacity Act 2005; (b) Health Select Committee recommends urgent review of implementation of DOLS regime; (c) Health Select Committee recommends urgent review of implementation of DOLS regime; (d) Using a lawyer as you get older: Ten top tips.
- 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 38, October 2013). The cases mentioned in this issue are: An NHS Foundation Trust v M and K  EWHC 2402 (COP),  MHLO 67 — R (Moosa) v LSC  EWHC 2804 (Admin),  MHLO 90 — Re B-S (Children) B — Re A (Children) B. There is also information under the following headings: (a) Changes to test for eligibility for fee remission; (b) The MCA/MHA Interface in practice; (c) What do Part 8 reviews under the DoLS regime actually do? (d) Improving DoLS practice - one regional group’s experience
- 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 39, November 2013). The cases mentioned in this issue are: Aintree University Hospitals NHS Foundation Trust v David James  UKSC 67,  MHLO 95 — A Local Authority v TZ  EWHC 2322 (COP),  MHLO 91 — Re P (abortion)  EWHC 50 (COP),  MHLO 1 — A Local Authority v ED  EWHC 3069 (COP),  MHLO 92 — Re Devillebichot (deceased)  EWHC 2867 (Ch),  MHLO 107 — MH v UK 11577/06  ECHR 1008,  MHLO 94 — R (Muhammad) v SSHD  EWHC 3157 (Admin),  MHLO 123 — R (Greenough) v SSJ  EWHC 3112 (Admin),  MHLO 124 — Oluku v CQC (2012) UKFTT 275,  MHLO 183. There is also information under the following headings: (a) Costs in the Court of Protection - important practice points; (b) Advocates Gateway; (c) Attempt to include power of entry in Care Bill defeated; (d) Transforming the services of the OPG consultation; (e) Law Society of Scotland guidance on powers of attorney and vulnerable clients; (f) New safeguarding policy for the OPG; (g) CQC Report - A fresh start for the regulation and inspection of adult social care; (h) Article 12 of the UN CRPD - draft comment by the Committee on the Rights of Persons with Disabilities; (i) Law Society Mental Health and Disability Committee vacancy
- 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 40, December 2013). The cases mentioned in this issue are: Re M (Best Interests: Deprivation of Liberty)  EWHC 3456 (COP),  MHLO 97 — A Local Authority v SY  EWHC 3485 (COP),  MHLO 96 — YLA v PM  EWHC 3622 (Fam),  MHLO 114 — Re P (A Child)  EW Misc 20 (CC),  MHLO 103 — Re AA  EWHC 4378 (COP),  MHLO 182 — R v Farooqi  EWCA Crim 1649,  MHLO 108 — Cuthbertson v Rasouli (2013) SCC 53,  MHLO 109 — Kirklees MBC 11 004 229  MHLO 122 (LGO/PHSO). There is also information under the following headings: (a) Lay deputies facing custodial sentence after conviction for theft from compensation fund; (b) Transparency in the Court of Protection; (c) New COP3 published; (d) Costs in s.21A applications round 2; (e) Department of Health response to post-legislative scrutiny of MHA 2007; (f) AM - a BIA/AMHP responds; (g) New Mental Health Tribunal Practice Direction directs specific consideration of whether MCA would be less restrictive; (h) Dementia-friendly financial services charter; (i) Intervention Order integral to successful settlement of Scottish criminal injuries compensation claim after 24 years; (j) Mental Welfare Commission for Scotland recruiting new Chief Executive; (k) Mini call for evidence.
- Mind, 'Legal Newsletter' (Issue 13, April 2013). This newsletter contains the following. (1) Articles: (a) Systemic failings of mental health care in immigration detention; (b) Community Treatment Orders and the Octet Study; (c) Mind Crisis Care Campaign; (d) Care and Support Bill and section 117 of the Mental Health Act 1983. (2) Case reports: (a) R (Chatting) v Viridian Housing  EWHC 3595 (Admin),  MHLO 177; (b) Bures v the Czech Republic Mind (Charity) B; (c) ZH v Commissioner of Police for the Metropolis  EWCA Civ 69,  MHLO 9; (d) RCW v A Local Authority B. (3) Mental health and human rights update: (a) UN Special Rapporteur on Torture: No More Treatment without Consent; (b) Disability Rights Watch evidence gathering for the UN Committee on the Rights of Persons with Disabilities; (c) Equality and Human Rights Commission report on human rights and business; (d) Independent Advisory Panel on Deaths in Custody bulletin; (e) Thematic inspection on section 136 police cells as places of safety. (4) Legal Aid update. (5) News: (a) The Fifth Year of the Independent Mental Capacity Advocacy Service 2011/2012; (b) Winterbourne View: The final Department of Health report; (c) Disability Hate Crime; (d) Care Quality Commission Reports; (e) Mental Health Discrimination Act 2013; (f) Update on the review of the Public Sector Equality Duty; (g) Public Law Project helpline on civil legal aid and exceptional funding project; (h) Implementing a ban on age discrimination in the NHS. See
- Mind, 'Legal Newsletter' (Issue 14, December 2013). This newsletter contains the following: (1) Articles: (a) The Independent Commission on Mental Health and Policing Report; (b) Judicial Review: Proposals for further reform; (c) Free Legal Aid for people detained under the Mental Health Act 1983 - the right to go to court to challenge the lawfulness of your detention; (d) Updating the Code of Practice to the Mental Health Act 1983; (e) Mental Health Act Safeguards; (f) The Care Bill 2013 in England: some recent developments. (2) News: (a) Mental Health Discrimination) Act 2013; (b) Independent Mental Health Advocates; (c) Post-legislative scrutiny of the Mental Health Act 2007; (d) Preliminary medical examinations at the Mental Health Tribunal; (e) Mind report on restraint in mental healthcare settings; (f) TW v LB Enfield  EWHC 1180 (QB),  MHLO 59; (g) New NHS Mandate; (h) AM v SLAM NHS Foundation Trust  UKUT 365 (AAC),  MHLO 80. See Mind (Charity)
37 Park Square
- 37 Park Square, 'COP E-lerter' (issue 8, May 2013)
- 37 Park Square, 'COP E-lerter' (issue 9, June/July 2013)
- 37 Park Square, 'COP E-lerter' (issue 10, 14/10/13)
- 37 Park Square, 'COP E-lerter' (issue 11, 23/12/13)
- Richard English, 'Mental Health and the Criminal Law 2012 Review' (January 2013)
- Browne Jacobson, 'MCA and DOLS Update Webinar' (April 2013). This webinar covers balancing best interest decisions with allocation of limited resources, looks at 3 MCA cases (on marriage, sterilisation and medical futility), and reviews the latest law on what a deprivation of liberty is.
- Peter Edwards Law, 'The Signpost' (Summer 2013).
- Christopher Buttler, 'Mental Health Law Update' (4-5 Gray's Inn Square, 8/10/12)
- Samantha Bangham, 'Samantha Bangham's month in cases October 2013' (Family Law website, 30/10/13). Court of Protection cases.
- Welsh Government, 'The Duty to Review: Inception Report: Post-Legislative Assessment of the Mental Health (Wales) Measure 2010' (8/4/13). This report describes the proposed review of the Measure; an interim evaluation report will be published by 31/3/14 and a final report before January 2016. Suggestions are sought for additional or complimentary evidence to inform these reports. See Mental Health (Wales) Measure 2010
- Scottish Government, 'A Consultation on draft proposals for a Mental Health (Scotland) Bill' (23/12/13). From Scottish Government website: "This consultation paper seeks views on proposals for a draft Mental Health Bill. This draft Bill brings forward changes to improve the operation of the 2003 Act - notably in relation to named persons, advance statements, medical matters and suspension of detention. In addition the draft Bill makes provision for a Victim Notification Scheme for victims of Mentally Disordered Offenders." Consultation from 23/12/13 to 25/3/14. See Consultations#Scotland
- Scottish Government, 'Consultation in relation to section 268 appeals against conditions of excessive security' (2/8/13). A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers." Consultation from 2/8/13 to 25/10/13. See Consultations#Scotland
Miscellaneous articles and documents
Articles on pre-2013 cases
- Mithran Samuel, 'Social workers given legal advice on Mental Capacity Act' (Community Care, 1/3/13). See Re KK; CC v KK  EWHC 2136 (COP),  MHLO 89
- Richard Mumford, 'Court of Protection approves arrangements for safeguarding Article 8 rights of detained man' (7/1/13). See J Council v GU  EWHC 3531 (COP),  MHLO 137
- Sarah Boseley and James Meikle, 'Court blocks judicial review over "do not resuscitate" orders' (21/12/12). See R (Tracey) v Cambridge University Hospital NHS Foundation  EWHC 3670 (Admin),  MHLO 146
Deprivation of liberty
- BBC, 'Concern over 107-year-old Minnetta Webb's care row' (26/7/13). See DOLS
- Jacqueline Elton, 'How to apply Deprivation of Liberty Safeguards' (Nursing Times, 17/5/13). See DOLS
- Amanda Keeling, 'The right to review of a deprivation of liberty' (Nottingham Institute of Mental Health Blog, 16/8/13). See DOLS
- Unwise decisions. Mark Hedley, 'The "right" to take foolish decisions' (speech at MHLA conference, 22/11/13) — This text was the basis of a speech given by Mark Hedley (retired High Court judge) at the Mental Health Lawyers Association's annual conference on 22/11/13.§
- Sam Marsden, 'Elderly mother's trip to Wimbledon women's final at heart of sons' inheritance dispute' (Telegraph, 27/6/13). See Settled cases and forthcoming judgments#Re Daphne Jeffery (testamentary capacity)
- Victoria Ward, 'Judge to rule if man can refuse help for cancer' (Telegraph, 20/5/13). See Settled cases and forthcoming judgments
- Mithran Samuel, 'Research into improving the use of mental capacity advocates in adult safeguarding' (Community Care, 15/8/13). See IMCA
- HMIC, CQC, HIW and HMIP, 'A Criminal Use of Police Cells? The use of police custody as a place of safety for people with mental health needs' (20/6/13). See s136
- Sarah Wollaston, 'Why are so many mentally ill children being held in prison cells?' (Guardian 'Comment is free' site, 28/11/13). This article, written by a Tory MP, complains about inadequate funding for mental health services and calls for an end to mental health detention in police cells. See s136
- Paul Pigott, 'Concern over mental health detentions by police in Wales' (BBC Wales News, 15/11/13). See MHA 1983 s136
Ill-treatment or neglect
- BBC, 'Luton council bus driver "forgot woman with dementia"' (14/5/13). Prosecution for neglect. See MCA 2005 s44
- Rowena Mason, 'Doctors, nurses and managers to face five years in jail if they neglect patients' (Guardian, 16/11/13). See Miscellaneous external links
- Law Society, 'Managing a bank account for another person to become easier thanks to new framework' (3/4/13). See Law Society
- Law Society and others, 'Guidance for people wanting to manage a bank account for someone else' (3/4/13)
- Law Society and others, 'A framework for authorising people wanting to operate a bank account for someone else' (3/4/13)
- Paul Milligan, 'NHS trust fined £500,000 after female care worker was stabbed to death by dangerous bipolar patient "who never should have been sent to care home"' (Daily Mail, 19/7/12). See Miscellaneous external links
- Local Government Lawyer, 'Mental health trust to retake cuts decision after legal challenge' (19/7/12). See Miscellaneous external links
- Manchester Mule, 'Manchester hit by £28m in cuts to mental health care' (4/10/12). See Miscellaneous external links
- Medical treatment. Press Association, 'Wales organ donation opt-out: Q&A' (Guardian, 3/7/13). See Miscellaneous external links
- Community Care, 'Hunt warned CAMHS shortfalls are risking Mental Health Act "breaches"' (13/8/13). See Children and mental health law
- Article on nearest relatives. David Hewitt, 'Illegitimate concern' (2013) 157(25) SJ 9 — This article argues that the unmarried father of an adult patient is a relative for the purposes of s26, whether or not he had parental responsibility. This seems wrong as the wording of s26 means that for its purposes an unmarried father is not a relative of an adult patient because it is not possible to have parental responsibility for an adult. It may be in future that the the courts are asked to adjudicate on whether or not the situation is compatible with the ECHR, in particular in relation to an unmarried father who used to have parental responsibility.
- Paul Swift et al, 'What happens when people with learning disabilities need advice about the law?' (Norah Fry Research Centre, July 2013). See Miscellaneous external links
- Robin Hopkins, 'Confidentiality of medical information after patient’s death: two new Upper Tribunal decisions' (Panopticon Blog, 14/11/13). See Miscellaneous external links
- Tim Brown, 'Mental impairment. How does the employer know? Cox v Essex County Fire and Rescue Service' (13KBW Employment Blog, 18/11/13). See Miscellaneous external links
- Polly McConnell and Jenny Talbot, 'Mental health and learning disabilities in the criminal courts: Information for magistrates, district judges and court staff' (Prison Reform Trust and Rethink Mental Illness, September 2013). Chapter headings are: (1) Welcome and introduction; (2) How to use this information; (3) Mental Health; (4) Learning disability; (5) Other disabilities and impairments; (6) Co-morbidity and dual diagnosis; (7) Right to a fair trial and fitness to plead; (8) Vulnerable defendants in court; (9) Supporting vulnerable defendants in court; (10) Bail and remand decisions; (11) Liaison and diversion services; (12) Sentencing; (13) Breach; (14) Mental Health Act; (15) References. See Miscellaneous external links
- Medical Justice, 'Mental Health in Immigration Detention Action Group: Initial Report (17/12/13). See Repatriation
A Twitter account can 'retweet' interesting messages from other accounts. The following is a list of all MHLO retweets from 2013, many of which relate to news which does not appear elsewhere on Mental Health Law Online.
The internet addresses beginning with t.co are short so can easily be typed into your browser; they will redirect to the relevant resource.
[Yet to be added to the online version...]
Email discussion list
Topics discussed during 2013 include those listed below.
To join the discussion list, visit http://www.mentalhealthlaw.co.uk/Discussion
[Yet to be added to the online version...]
These are available at: Books
- Foreword by Lucy Scott-Moncrieff can be read online. As one of the authors I heartily recommend this book! Purchase from (you can order even when listed as 'out of stock' as it will be replenished shortly by the Law Society). ·. The blurb on the back cover states: 'This practical book provides all professionals, particularly legal represenatives, with an accessible and up-to-date guide to Mental Health Tribunals.' The
- MHT book discount. Fennell, Letts and Wilson, Mental Health Tribunals: Law, Policy and Practice (Law Society, April 2013) is available directly from the Law Society, who are offering a 20% discount to existing and prospective members of the Mental Health Accreditation Scheme. Contact the Law Society if you have not received your discount code. See Law Society bookshop
- Richard Charlton, 'Book review: Mental Health Tribunals: Law, Policy and Practice' (Law Society Gazette, 13/5/13). See Gazette website
- ·. This book deals with all areas of Legal Aid (civil and criminal) with a separate chapter for mental health law
- Books ·. The 16th edition of this essential book has been published. See
- ·. The previous edition of this scholarly work had the misfortune to be published in 2007, prior to the MHA 2007 changes, but this edition covers all the recent, important developments in mental health law.
- ·. Richard Murphy, a regular contributor to the MHLO email discussion list, has co-written this book. It is primarily aimed at nursing students but will be of interest to any mental health nurse.
These courses and conferences were advertised on the Events page and in the 'Events' box on the home page. Events are listed for a small fee (no fee for free events).
- Philosophy Workshop. The Essex Autonomy Project's Advanced Philosophy Workshop will be held on Wednesday 5/6/13 at University of Essex, Colchester Campus. The three sessions are: (1) Philosophical Theories of Autonomy; (2) Understanding Others: Introduction to Critical Hermeneutic Phenomenology; and (3) Recognition-Theory. Cost: £85 per person, including lunch. For details and registration form, see EAP website.
- MHLA panel course. The Mental Health Lawyers Association will be running their successful two-day course for membership of the Law Society's Mental Health Accreditation Scheme (formerly the MHRT panel) in London on Monday 10/6/13 and Tuesday 11/6/13 and in Nottingham on Monday 17/6/13 and Tuesday 18/6/13. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further details and booking form.
- Autonomy Summer School. The Essex Autonomy Project's Autonomy Summer School will be held from Thursday 4/7/13 to Saturday 6/7/13 inclusive. The aim is 'to equip practitioners and researchers with an understanding of the philosophical ideal of individual autonomy and to provide a forum for the discussion of the dilemmas surrounding its' practical application'. Cost: £650 (residential places), £495 (non-residential places). For details, see EAP website.
- Northumbria conference. Northumbria University are hosting 'The Seventh North East Mental Health Law Conference 2013' on Friday 12/7/13 from 9.00am to 4.30pm. The sessions this year are: 'A Critical Survey of recent developments in Mental Health Law' (Roger Pezzani); 'The Wind from the East: legal challenges from Europe and beyond' (Mat Kinton); 'Non-Medical Approved Clinicians: The Good, The Bad and The Conditionally Discharged’ (Dr Bruce Gillmer and Prof John Taylor); 'A Spotlight on the Legal Framework for the Mental Health Care of Children and Young People' (Camilla Parker); 'Mind Your Ps and Qs' (Neil Allen); 'The Newer Legalism - Clinical Power and the Limits of Rights-based Approaches' (Prof Phil Fennell). Price: £240 (£190 for two or more from same company, or for any booking before 31/5/13). CPD: 6 hours. See brochure for further details and the booking form.
- MHLA panel course. The Mental Health Lawyers Association will be running their successful two-day course for membership of the Law Society's Mental Health Accreditation Scheme (formerly the MHRT panel) in Preston on Tuesday 8/10/13 and Wednesday 9/10/13 and in London on Monday 14/10/13 and Tueday 15/10/13. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further details and online booking form.
- Northumbria conference. Northumbria University are hosting the Mental Disorder and Criminal Justice Conference on Saturday 12/10/13 from 10.00am to 6.00pm. The three main sessions are: Unfitness to Plead (Diversion/Disposal); Insanity/Automatism; Partial Responsibility. Price: £60; £55 (SLS/SLSA members); £35 (postgraduate students); free (current Northumbria and Sunderland University Postgraduate students). For further information and to book your place, see flyer and visit the conference website.
- MHTMA conference. The MHT Members Association Conference and AGM will be held on Tuesday 15/10/13 (9.30am to 5.30pm) at Resource for London, 356 Holloway Road, London N7 6PA. Speakers include: Edward Jacobs, Upper Tribunal Judge; John Horne, MHT judge and former teaching fellow at Northumbria University; Paul Dobson, security management specialist on tribunal safety; and Edward Benson, solicitor in the O'Brien case. Price: £15 including lunch and refreshments. The conference is open to MHTMA members, and other members of the MHT may attend if they join the Association in advance. Further details are on the news section of the judicial internet, and available on request from email@example.com or firstname.lastname@example.org.
- Taking Stock conference. The 2013 Annual 'Taking Stock' Conference (The Mental Health and Mental Capacity Acts in Practice) will take place at the Royal Northern College of Music in Manchester on Friday 18/10/13 from 9.30am to 4.00pm. The speakers are: Mr Justice Baker (first key-note speaker); Professor Elyn Saks (second key-note speaker); Professor Bill Deakin (Current research in early onset schizophrenia); Neil Allen (Conveyance in abeyance? The practical and legal conundrums of conveying someone with a mental disorder); Robert Lizar (The most important person in the room? An examination of the appeal process and the evidence presented relating to patients based on experience as a legal representative at Tribunals and Managers hearings over many years); Mathieu Culverhouse (Deprivation of Liberty - Where are we now? Guidance for professionals giving evidence in DoL cases). Price: £155; £135 for bookings confirmed before 15/6/13; concessions for voluntary sector organisations. See flyer for further information about the programme and speakers, and for booking information.
- Fenners conference. 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.
Updates about the website
- Bailii links. Some of the 'Not on Bailii at time of writing' messages on MHLO case pages had become out of date. In cases where the neutral citation number is known, the process has now been automated: if the case is not yet on Bailii, a message to this effect is generated; when the case is published on Bailii, the necessary link is generated instead.
- Consultations page. The following automated features have been added, in order to make the page easier to navigate: (1) open consultations are marked as such; (2) a list of open consultations appears at the bottom of the page. See Consultations
- Asterisks. 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, and (for now) will be marked with asterisks.
- CPD. Obtain 12 SRA-accredited CPD points online today for £60. See CPD scheme
- 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. See CPD scheme
- MHLO books. The Mental Health Law Online Annual Review 2012 has been published in paperback and Kindle format, and is now available on Amazon. The Annual Review 2012 contains all news items, arranged thematically, which were added to the website during 2012. The Annual Review 2011 is also now available in paperback and Kindle formats. See Books
- Lucy Series, 'My top ten Mental Capacity Act resources' (The Small Places Blog, 27/12/12). This article recommends the following resources: (1) Mental Health Law Online, (2) 39 Essex Street Court of Protection Newsletter, (3) Court of Protection Law Reports, (4) Mental Capacity Act Manual, (5) Social Care Institute for Excellence, (6) Google Alerts, (7) Essex Autonomy Project, (8) Mental Health Foundation MCA literature review, (9) Mental Disability Advocacy Center, (10) Twitter. See Miscellaneous external links
Published: January 2014