August 2015 update

Case law

  • Section 17 case. SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC)The patient was living outside hospital on s17 leave but was required to attend hospital for fortnightly psychology sessions and a monthly ward round. He challenged the tribunal's decision that it remained appropriate for him to be liable to be detained in hospital under s3 for medical treatment. This was unsuccessful as the tribunal had applied the correct legal test and had applied it properly. The UT judge added that medical treatment includes rehabilitation under medical supervision, which meant that the s17 leave and the rehabilitation provided outside hospital, both of which operated under medical supervision, were themselves part of the treatment plan.§
  • Hospital transfer. R (YZ) v NHS Trust [2015] EWHC 2296 (Admin) — (1) YZ ceased to comply with clozapine treatment, and was referred by a medium secure unit (MSU) to Broadmoor hospital. After Broadmoor's Admission Panel decided that while off clozapine the risks justified a high secure setting, YZ became willing to restart clozapine but his new doctor at the MSU was unwilling to prescribe it. YZ appealed the Admission Panel decision and argued that new information meant the case should be reconsidered by the original panel, but Broadmoor decided there was no new information so the case was considered by the Admission Appeals Panel, which upheld the decision. (2) YZ's position was that he could restart clozapine in medium security, the relationship with staff at the MSU had broken down but he should be transferred to another MSU, and once treatment of his gender dysphoria commenced his mental state would probably improve. He argued that transfer to Broadmoor would breach the Code of Practice's least restriction principle and violate Articles 3 and 8. He sought judicial review of: (a) the decision not to prescribe clozapine; (b) the decision to transfer him to Broadmoor; (c) Broadmoor's decision to accept him; (d) the decision not to refer the case back to the original admissions panel. (3) Taking the grounds in turn, the court held that: (a) There was no clinician willing to prescribe clozapine, and the court "cannot and should not seek to decide what medical treatment is appropriate in these circumstances and declare an informed and justified decision unlawful". (b) The decision to transfer to Broadmoor was taken carefully and through the correct procedures, and no medium secure unit was willing to take the patient. (c) The decision to accept was a rational decision open to the admissions panel on the material before it. (d) The appeals panel decision was not susceptible to judicial review, and the process was rational and had not been challenged at the time. Permission was therefore refused.
  • Ordinary residence case. R (Cornwall Council v SSH [2015] UKSC 46 — "PH has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. Since the age of four he has received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. Since then he has lived in two care homes in the Somerset area. There is no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue is: which authority should be responsible? This depends, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident". There are three possible contenders: Wiltshire, as the authority for the area where he was living with his family when he first went into care, and which remained responsible for him under the 1948 Act; Cornwall, where his family have lived since 1991; or South Gloucestershire, where he lived with his foster parents from the age of four until his move to Somerset. ... Although none of the other authorities has argued that Wiltshire should be responsible, the court indicated at the beginning of the hearing that this possibility should not be excluded from consideration. ... In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday. On this analysis it follows that PH's placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and "swings and roundabouts" may be unavoidable."
  • Terrorism case. Commissioner of the Police of the Metropolis v Ahsan [2015] EWHC 2354 (Admin), [2015] MHLO 62The Commissioner of Police of the Metropolis applied for an order to impose notification requirements for a period of 15 years on Syed Talha Ahsan under the Counter-Terrorism Act 2008. The notification order would require him for that period to attend police stations to provide, and update, information about his living arrangements and to provide details about his travel plans, for which permission can be refused; breach of the requirements is punishable with imprisonment of up to 5 years. (1) Ahsan had been convicted in the United States of providing material assistance for the Taliban, while they were harbouring Osama bin Laden, through his involvement in a US-hosted website, but he argued that this did not constitute an act which "would have constituted an offence… if it had been done in any part of the United Kingdom…" because it was in fact done within the United Kingdom. The judge decided that (a) Parliament must have intended that the notification requirements should apply to terrorist conduct committed here which results in a conviction in a foreign court, even if it could have been prosecuted here but was not; (b) by inadvertence Parliament had failed to give effect to that purpose; (c) taking a purposive approach, even assuming that all elements of Mr Ahsan's offending occurred here, the offences he was convicted of in the US were corresponding foreign offences. (2) Ashan argued that the Commissioner had failed to take into account relevant considerations and therefore the exercise of discretion to make the application was unlawful. The judge decided that: (a) since there is a discretion, its exercise should be open to public law challenge; (b) only in exceptional circumstances would this be successful, because of the strong legislative steer that, where there has been a corresponding foreign conviction and the requisite sentence has been imposed, an application should be made; (c) the public law challenge should, to avoid wasting time and money, be heard within the 2008 Act proceedings rather than by separate judicial review proceedings; (d) failure to consider the sentencing remarks, his mental health, and the fact that Ahsan had not been prosecuted here, did not render the decision unlawful. (3) The notification requirements did not meet the minimum level of severity required for a successful Article 3 claim. (4) The interference with Ahsan's private and family life was not necessary and proportionate under Article 8: (a) this was an exceptional case where there was no significant future risk; (b) the medical evidence was that that the notification requirements were likely to have a severe adverse impact on Ahsan's mental health, and despite this likelihood the requirements would continue for 15 years with no review mechanism. (5) The application was therefore dismissed.§
  • Immigration detention case. R (Samadi) v SSHD [2015] EWHC 1806 (Admin), [2015] MHLO 59 — "This is the hearing of the Claimant's claim for damages for what he argues was his unlawful immigration detention for 19 days from 14 May to 1 June 2012. In broad summary his case is that there were breaches of §55.10 of the Defendant's Enforcement Instructions and Guidance (the 'Guidance') which provides for two categories of potential detainees who will normally only be considered suitable for detention in very exceptional circumstances: (a) those suffering from serious mental illness which cannot be satisfactorily managed in detention, and (b) those where there is independent evidence that they have been tortured. It is the Claimant's case that he fell into both those categories; and that in any event the Defendant (c) wrongfully continued to detain him after it had become clear that his removal was no longer imminent."§


  • Tribunal legislation. Tribunal Procedure (Amendment) Rules 2013/477 — These rules amend the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, from 1/4/13: rule 1(3) (interpretation); rule 10(1) (circumstances in which Tribunal may award costs); rule 10(5) (time limits on seeking orders for costs); rule 10(7)(c) (detailed assessment); rule 10(9) (amount to be paid on account before the costs or expenses are assessed); rule 11(8) (persons who may not be representatives in a mental health case); rule 17 (withdrawal); rule 33 (notice of proceedings to interested persons); rule 41 (decisions: mental health cases); rule 46 (application for permission to appeal).§


  • HSCIC, 'Guardianship under the Mental Health Act 1983, England 2014-15, National Statistics' (5/8/15, updated 6/8/15). "This report contains information on the use of Guardianship under Section 7 and 37 of the Mental Health Act 1983, during the reporting period 1 April 2014 – 31 March 2015. It contains information on new, continuing and closed cases at national, regional and local authority levels and includes breakdowns by gender, Guardianship type, and local authority region. Key facts: (1) For the 2014-15 reporting period there were 212 new Guardianship cases. This is 86 fewer than in 2013-14, a decrease of 29 per cent. This decrease follows a 6 per cent increase between 2012-13 and 2013-14. This increase however had been preceded by three consecutive years of decline. (2) As at 31 March 2015, 522 people in England were subject to a Guardianship order. This is 108 fewer than at the same point in 2014; a reduction of 17 per cent. This is also the tenth consecutive year of decline in continuing cases from 948 cases in 2004-05 to 522 cases in 2014-15, a reduction of 45 per cent over this period. The decline in Guardianship usage may be due in part to the availability of other mental health legislation. (3) The number of closed cases reduced slightly compared to the previous year, with 301 cases closed in 2014-15 compared to 313 in 2013-14 (a reduction of 4 per cent). The number of closed cases has now reduced for five consecutive years, since the peak of 496 cases in 2009-10. This represents an overall reduction of 39 per cent since 2009-10. (4) The North West and North East regions had the highest rate of new cases per million-population, both recording 9.3 cases per million-population, falling from 11.1 and 13.5 respectively in 2013-14 (based on population figures for those aged 16 years and over). This compares to 4.8 new cases per million-population for England overall. (5) The East of England region had the fewest new cases with 0.8 cases per million-population, compared to 2.9 cases last year. This is also the only region with less than 2 cases per million-population. (6) The North West had the highest rate for continuing cases with 23.5 cases per million-population. The South East and London continue to have the lowest rate of continuing cases. The South East had 6.4 cases per million-population and London 3.7 cases per million-population, although London represents an increase compared to 2013-14. (7) The durations of the 301 Guardianship cases ending in 2014-15 ranged from less than 3 months (15 cases) to over 10 years (14 cases). Of the 287 concluded Section 7 cases, 72 per cent (206) had durations of less than 2 years. Of the 14 concluded Section 37 cases, 29 per cent (4) had durations of less than 2 years. The median duration of a Guardianship case in England was 12.0 months.". See Statistics#HSCIC - Guardianship


  • Cornwall Council, 'Deprivation of Liberty Safeguards - Time Study' (closes 4/9/15). Cornwall Council have decided to extend the deadline for completion of their survey until 4pm on Friday 4/9/15. During the original period there were almost 400 responses, the breakdown being: (a) 72% BIAs, 28% AMHP/BIAs; (b) 87% social workers, 3% OTs, 9% nurses, 1% psychologists. It is hoped that at least 500 people will respond overall. See Deprivation of Liberty Safeguards#Other links
  • Cornwall Council, 'Deprivation of Liberty Safeguards - Time Study' (closes 21/8/15). Cornwall Council are conducting an anonymous survey of BIAs nationwide to find out how long their assessments are taking. The survey is being conducted in light of concern that any post-Cheshire 'time standards' implemented by local authorities would erode BIAs' independence and the quality of assessments. See Deprivation of Liberty Safeguards
  • West London MH NHS Trust, 'Policy A6: Admissions Panel Operational Policy (Broadmoor Hospital)' (3/6/15). See High secure hospital


  • MHLA re-accreditation course, 16 Oct 2015. The Mental Health Lawyers Association are running a Refresher and Re-accreditation course on Friday 16/10/15 in London. This course is suitable for those seeking re-accreditation and will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website for further information and to book online. See Events
  • MHLA COP course, 8-9 Oct 2015. The Mental Health Lawyers Association are running an "Introduction to the Court of Protection" course on Thursday 8/10/15 and Friday 9/10/15 in Manchester. This course is primarily aimed at practitioners with little or no experience in conducting matters before the Court and those seeking a practical foundation to undertaking proceedings in the Court. The course will cover health and welfare matters, deprivation of liberty, funding and, to a lesser extent, issues relating to property and affairs. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website for further details and to book online. See Events
  • Edge Training: BIA Report Writing - London, 25/9/15. Edge Training are running a course entitled "Best Interests Assessors – Report Writing" on Friday 25/9/15 in London. This course aims to provide BIAs with the knowledge and skills needed to ensure professional and robust assessments under DOLS. Speaker: Javeda Jafri. Price: £115 + VAT. See flyer for further details and booking information. See Events
  • Edge Training: MH Assessors - London, 11/9/15. Edge Training are running a course entitled "Mental Health Assessors - Qualification and Refresher Course" on Friday 11/9/15 in London. The course is designed to ensure MH Assessors are suitably qualified to cover the assessments they will have to undertake as part of their role and give them the confidence to complete the DOLS paperwork. Speaker: Aasya Mughal. Price: £180 + VAT (£216). See flyer for further details and booking information. See Events
  • MHLA panel course, 7-8 and 10-11 Sep 2015. The Mental Health Lawyers Association are running their Panel Course (a) on Monday 7/9/15 and Tuesday 8/9/15 in London, and (b) on Thursday 10/9/15 and Friday 11/9/15 in Leeds. The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website (London course and Leeds course) for further details and to book online. See Events
  • MHLA foundation course, 24 and 25 Aug 2015. The Mental Health Lawyers Association are running a mental health law Foundation Course on Monday 24/8/15 in London and on Tuesday 25/8/15 in Manchester. The foundation course is aimed at new practitioners, and is strongly recommended for those wishing to benefit fully from attendance at the panel course. The foundation course takes an interactive approach, and covers the basics of mental health law, Legal Aid, and running a mental health file. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website (London course and Manchester course) for further details and to book online. See Events

Website and CPD

  • CPD scheme. Obtain 12 SRA-accredited CPD points for £60 (also compatible with the SRA's new CPD regime). Suitable for non-lawyers as well. See CPD scheme for details.