April 2010 update

Case law

  • Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB) — (1) The Trust had breached Article 2 as (a) they had the requisite knowledge, actual or constructive, of a real and immediate risk to the patient's life from self harm, and (b) failed to do all that could reasonably have been expected of it to avoid or prevent that risk. (2) The patient's daugher was eligible to bring the claim as a victim under s7 HRA 1998. (3) Compensation of £10,000 was awarded.
  • R (F and Thompson) v SSHD [2010] UKSC 17The notification requirements in Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) constitute a disproportionate interference with Article 8 rights because they make no provision for individual review of the requirements.§
  • Independent News and Media Ltd v A [2010] EWCA Civ 343The judge's decision (that designated representatives of the media could attend the hearing in the Court of Protection and thereafter apply to the judge for authorisation to publish information disclosed in the proceedings) was upheld, but his approach (that article 10 was not engaged when the media's application was made but rather when the court decided that there was "good reason" under Rule 93(1)(a)) was not.§
  • Re Candy (2010) COP 18/3/10The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "neither of my attorneys will act without the approval of the other". On the application of the attorneys the court severed the restriction as being inconsistent with a joint and several appointment. [OPG summary - EPA case.]§
  • R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin)The council's decision to change the way it provided support services to those living in sheltered accommodation in its area by terminating contracts for on-site warden based services and developing a peripatetic support service with the retention of an alarm service to all residents in such accommodation breached the Disability Discrimination Act 1995.§
  • MJJAB v Scottish Ministers [2010] CSIH 31 — Consideration of the serious harm test in Section 64(A1) Mental Health (Scotland) Act 1984 and standard of proof.§
  • R (MC (Algeria)) v SSHD [2010] EWCA Civ 347 — Unsuccessful challenge to lawfulness of detention under Schedule 3 Immigration Act 1971 which was mainly based on failure to have regard to policy that mentally ill should be detained only in very exceptional circumstances.§
  • Re Swift (2010) COP 30/3/10The donor had been appointed to act as attorney under LPAs made by his wife. In his own LPA for property and financial affairs he stated as follows: "In the event that I become incapacitated and am unable to take decisions in my role as Attorney to my wife, I appoint both my Attorneys as Guardians of my wife in order that they may, together, take decisions about her property and affairs." He included an equivalent provision in his LPA for health and welfare. On the application of the Public Guardian the court severed these provisions as being ineffective because the MCA does not permit an attorney to appoint a substitute or successor to himself. (OPG summary - LPA case.)§
  • Re McAdam (2010) COP 29/3/10The donor had named X, one of two original attorneys (who had been appointed to act jointly and severally), as the only named person. On the application of the Public Guardian the court severed the appointment of X as attorney on the ground that the MCA does not permit an attorney to be a named person. The instrument was directed to be registered as an LPA appointing only the other attorney. (OPG summary - LPA case.)§
  • Re Saunders (2010) COP 30/3/10The donor appointed two attorneys and a replacement attorney. He stated that the replacement should act only if the power given to the original attorneys "is revoked by me" or terminated by death, disclaimer or incapacity. He further stated that the power of his attorneys "shall only come into force only if and when my attorneys have presented medical evidence to the Court and the Court are satisfied that I am or am becoming incapable by reason of mental disorder of managing and administering my property and affairs". On the application of the Public Guardian the condition requiring the attorneys to present medical evidence to the court was severed because, although it was not invalid, it imposed an unreasonable and impractical fetter on the attorneys. The words "is revoked by me" were also severed as being incompatible with section 10(8)(b) of the MCA (revocation of an attorney's appointment is not an event upon which a replacement attorney may act). (OPG summary - LPA case.)§
  • Key v Key [2010] EWHC 408 (Ch)Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval.§


  • Equality Act 2010 — The Equality Bill 2008-09 to 2009-10 received Royal Assent on 8/4/10. Most of its provisions came into force on 1/10/10. The Parliament website states: "The Bill will harmonise and in some cases extend existing discrimination law covering the 'protected characteristics' of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. It will address the impact of recent case law which is generally seen as having weakened discrimination protection, and harmonise provisions defining indirect discrimination."
  • Care Quality Commission (Registration) Regulations 2009 — Of particular relevance is regulation 17, "Notification of death or unauthorised absence of a service user who is detained or liable to be detained under the Mental Health Act 1983". In force 1/4/10.
  • National Health Service (Direct Payments) Regulations 2010 — "These Regulations allow the Secretary of State to set up pilot schemes within which: (1) the Secretary of State could make direct payments of cash to or for patients in lieu of providing health care. The Regulations enable the Secretary of State to direct a Primary Care Trust (PCT) to exercise his functions under a pilot scheme; and (2) PCTs could make direct payments in lieu of providing mental health after-care." (Extract from Explanatory Memorandum.) In force 1/6/10
  • Public Guardian (Fees, etc) (Amendment) Regulations 2010 — "The instrument amends the Public Guardian (Fees, etc) Regulations 2007 (SI 2007/2051) (“the 2007 Regulations”) by adding to regulation 10 (reductions and remissions in exceptional circumstances) new paragraph (2) setting a 6-month time limit for applications for the reduction or remission of a fee paid under regulation 8 (appointment of deputy: supervision fees) of the 2007 Regulations. The 6-month period will run from the date of the invoice for the fee of the Office of the Public Guardian (“OPG”). The amendment applies to applications for the reduction or remission of such a fee, the invoice for which is dated 1st May 2010 or later." (Extract from Explanatory Memorandum.) In force 1/5/10.
  • Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2010 — These Regulations amend the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, making various changes which are summarised in the Explanatory Memorandum. In force 1/5/10, subject to transitional provisions.

Documents and news


  • The LSC have published an updated "Where work is processed" document this month. See Legal Aid
  • LSC Update: "Indicative timetable for Mental Health tender process" published 26/4/10. The results of the tendering process for mental health Legal Aid work (except in special hospitals) was due to be published on 26/4/10 but, because of the expected regime change, will be announced at some stage before the end of May. The extra time will be used to check whether firms are able to deliver the services they have tendered for. See Legal Aid
  • CLS News: Customer satisfaction survey, published 23/4/10. Help to write the LSC's epitaph. See Legal Aid
  • CLS News: Updated CLS financial eligibility keycard now available, published 12/4/10. To be used for new and further assessments from 12/4/10. The changes in this edition reflect an increase in the standard dependants allowances assessed for a partner or child living with the applicant (based on income support uprating); eligibility limits are unchanged. See Legal Aid
  • CLS News: Important changes to the Funding Code - 1/4/10 - "The changes affect the criteria for judicial review, multi-party actions and claims against public authorities and set up new appeal structures for certain high cost and public interest cases." See Legal Aid


  • From 19/04/10 a reorganisation of the MHT administration process took effect. The regional teams have been combined and reorganised into Case Progression Teams (North and South), Reports Teams and a dedicated team to deal with decisions. See Mental Health Tribunal#External links
  • From April 2010 the Tribunals Service are consulting stakeholders on new procedures and forms for the listing of cases. See Consultations#Mental Health Tribunal


  • In March 2010 the CQC published a new web page entitled "Statutory reporting related to the Mental Health Act 1983". The page deals with new reporting requirements in relation to detained patients who go AWOL or die (in force on 1/4/10 for NHS service providers and 1/10/10 for independent service providers); it also covers s61 reports. See Care Quality Commission
  • In March 2010 the CQC added details of the health and social care complaints procedures to their website. See Complaints procedure


  • On 1/4/10 the Dept of Health published NHS continuing healthcare practice guidance: "This practice guidance supports practitioners and others with responsibilities for NHS continuing healthcare in the implementation of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. It provides a practical explanation of how the Framework should operate on a day-to-day basis and cites examples of good practice." See Dept of Health
  • On 31/3/10 the Dept of Health revised their 26/11/09 "Applying the NHS Performance Framework to Mental Health Trusts" guidance: "This document informs mental health trusts, PCTs and SHAs of the criteria against which mental health performance will be assessed. It should be read alongside Implementing the NHS Performance Framework." See Dept of Health


  • NI Court Service press release published 1/4/10: "Tribunal Reform continues with further transfers". Northern Ireland is moving towards a unified courts and tribunals service for Northern Ireland; with the devolution of policing and justice on 12/4/10, the Court Service will be renamed "The Northern Ireland Courts and Tribunals Service". See Northern Ireland
  • As part of its Stage 1 consideration, the National Assembly for Wales’ Legislation Committee No. 3 is calling for evidence on the general principles of the proposed Mental Health (Wales) Measure. Consultation runs from 29/3/10 to 14/5/10. See Consultations#National Assembly for Wales
  • NMHDU published "Attitudes to mental illness 2010 research report" this month. See Statistics
  • The text of 1/4/10 MCA Update email has been added. It summarises the OPG's response to the "Amendments to secondary legislation" consultation paper. See OPG


In general, detained and informal psychiatric in-patients are entitled to vote. However, under s3A Representation of the People Act 1983, certain offenders detained in mental hospitals are disenfranchised: these are those detained, or unlawfully at large, under s37, s38, s44, s51(5), s45A, s46 (now repealed) or s47 MHA; s5(2)(a) CPIA 1964; and s6(2)(a) or 14(2)(a) Criminal Appeal Act 1968. Those remanded in custody under s35, s36 or s48 are not disenfranchised. Further detail can be found in the section itself, including the provisions relevant to Scotland and Northern Ireland.§

  • The CPD questionnaire for March 2010 has been published. Obtain 12 CPD points for £50. See CPD pages