December 2008 update


Old/new legislation added this month:

Other documents

  • DH launched this catchily-named consultation: Mental Capacity Act 2005 Deprivation of Liberty Safeguards: consultation on the Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) and (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) (Amendment) Regulations 2009 — see external links section of Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005. Consultation runs from 19/12/08 to 30/1/09
  • MHT, 'Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications' (8/12/08) — On 8/12/08 the Chamber President issued a notice explaining that, until the Mental Health Act 1983 is amended in 2009, a patient who withdraws an application to the English Tribunal cannot reapply within the same period of eligibility; instead, he must ask for the original application to be reinstated. The necessary amendment came into force on 1/6/09 so this notice, although still on the Tribunals Service website, no longer applies.
The LSC have confirmed that where a Tribunal application is reinstated (instead of there being a fresh application), this constitutes a fresh matter start
  • From 31/10/08 to 23/1/09 the LSC are "consulting" on Civil Bid Rounds for 2010 Contracts — see Legal Aid
  • Mental Health Tribunal published December 2008 Tribunal Member and Stakeholder Bulletin — see Mental Health Tribunal
  • Department of Health published the second edition of their Mental Capacity Act 2005 Deprivation of Liberty Safeguards newsletter — see Deprivation of Liberty Safeguards
  • OPG launched a new Safeguarding Vulnerable Adults Policy and a protocol for joint working between the Office of the Public Guardian and Local Authorities — see "Vulnerable adults to get better protection" section on Office of the Public Guardian page

Website updates

Case law

The following cases were added to the site this month.

December 2008 judgments

  • R (MN) v MHRT [2008] EWHC 3383 (Admin)Tribunal application made under s70 when patient subject to s47/49 (restricted transfer direction) lapses when s49 (restriction direction) lapses; to avoid delay, the application can be treated as if it were an application under s69(2)(a).§
  • R (F and Thompson) v SSHD [2008] EWHC 3170 (QB)The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review in the case of young offenders; there is no entitlement to have determined the question of whether the notification requirement continues to serve a legitimate purpose.§
  • R (TF) v SSJ [2008] EWCA Civ 1457(1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.]§
  • R (F) v SSJ [2008] EWHC 2912 (Admin)The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.]§
  • Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 — Article 2 imposes, in addition to general obligations, a further "operational" obligation on health authorities and their hospital staff: if members of staff know or ought to know that a particular patient presents a real and immediate risk of suicide, they must do all that can reasonably be expected to prevent the patient from committing suicide.
  • R v Warwick [2008] NICC 42As the Mental Health (Northern Ireland) Order 1986 does not allow detention for personality disorder, the risks in this case could only be addressed by the imposition of a discretionary life sentence (which would be followed by a transfer to Carstairs) rather than a hospital order.§
  • R (DB) v Nottingham Healthcare NHS Trust [2008] EWCA Civ 1354A hospital order under s37 ceases to have effect if the offender is not admitted to the named hospital within 28 days; unless the offender is to be immediately conveyed from court to hospital, the "place of safety" power in s37(4) must be expressly exercised.§
  • R v Moyle [2008] EWCA Crim 3059Conviction for murder quashed and substituted with a conviction for manslaughter on the ground of diminished responsibility and restricted hospital order§
  • Press link to case involving guardianship and unlawful detention added... See Interesting cases

2008 cases

  • RD v SSWP [2008] EWHC 2635 (Admin) — Click on link to view page.§
  • R (RJM) v SSWP [2008] UKHL 63Social welfare payments come within the scope of Article 1 Protocol 1; homelessness is an "other status" under Article 14; depriving the homeless of disability premiums was justified; the Court of Appeal is free (but not obliged) to follow an ECtHR decision rather than a previous inconsistent CA decision, but (absent wholly exceptional circumstances) must follow any previous House of Lords decision.§
  • R (N) v Coventry City Council [2008] EWHC 2786 (Admin) — "This case concerns the assessment by Coventry City Council of the claimant's needs under section 47 of the National Health Service and Community Care Act 1990 and its decision to refuse him support under section 21 of the National Assistance Act 1948. It turns, in particular, on the meaning of "care and attention" in section 21, as interpreted by the House of Lords recently, and the ambit of Article 3 ECHR in the context of community care legislation." (para 1)§
  • R v C [2008] EWCA Crim 1155 — If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.]
  • S v Floyd [2008] EWCA Civ 201Floyd's decision to withhold payment of rent had nothing to do with his disablity, so the Disability Discrimination Act 1995 could not be used to resist a possession order under the Housing Act 1988.§
  • R (Cooke) v DPP [2008] EWHC 2703 (Admin)It would be wrong to make an ASBO against a person who by reason of mental ill health would not have the capacity to understand or comply with the order; however, the fact that a person would be likely to breach an order because he suffers from a personality disorder is not, of itself, a good reason for not making the order.§
  • Salford City Council v GJ, re GJ NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam)The appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention.§
  • R (Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin)Unsuccessful challenge to decision of the Health Service Commission (i) to refuse to provide Mr Kay with copies of documents provided by the NHS Trust, which are not deemed to be relevant to a determination of a complaint before the ombudsman by virtue of section 15(1)(a) of the Health Service Commissions Act 1993, and (ii) for requiring an undertaking from Mr Kay to use such documents as may be released only for the purpose of the complaints.§
  • Gray v Thames Trains Ltd [2008] EWCA Civ 713The principle of ex turpa causa did not prevent the claimant from recovering damages after the commission of manslaughter. [Overturned on appeal.]§

Older cases

  • KC v City of Westminster Social and Community Services Department [2007] EWHC 3096 (Fam)Muslim marriage where groom lacked capacity was not recognised in English law.§
  • AG's reference (no 127 of 2006) sub nom R v H [2007] EWCA Crim 53The 14-year-old offender, who had an Adjustment Disorder, committed a savage murder to avoid his intended homosexual abuse of the 11-year-old victim being exposed. The judge concluded that the aggravating and mitigating features of the case cancelled each other out, and that the minimum term would remain at the starting point (for under-18 offenders) of 12 years. A minimum term of 15 years was substituted, having been reduced from 18 years due to the guilty plea.§
  • R (TB) v The Combined Court at Stafford [2006] EWHC 1645 (Admin)TB was the main prosecution witness in the trial of the man who had sexually abused her. In order to undermine her credibility, the defence applied for a witness summons to obtain her psychiatric medical records. There was no procedural requirement for TB to be given notice of the application. The Crown Court issued a summons to that effect. Article 8 had been breached in that TB should have been given notice of the application and given the opportunity to make representations; it was not sufficient for the court to delegate her representation to the NHS Trust alone.§
  • Re MAB; X City Council v MB [2006] EWHC 168 (Fam)MAB's parents had wanted to arrange a marriage for him in Pakistan. It was declared that MAB did not have capacity to marry; therefore any marriage, even if valid in Pakistan, would not be recognised as valid in English law. His parent's undertakings not to take him to a wedding or out of Britain were accepted and his passport was returned. Any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This involved a low level of understanding, which must be same in its essentials as required by the criminal law under the Sexual Offences Act 2003.§
  • Stec v UK 65731/01 [2006] ECHR 393 — Judgment of Grand Chamber. State benefits, Article 1 of Protocol No 1 & Article 14
  • IH v UK 17111/04 (2005) — Click on link to view page.§
  • Morley v UK 16084/03 [2002] ECHR 853The applicant had been transferred from hospital back to prison. He argued that his Article 5(4) right to review of his detention had been breached as the transfer had been ordered by the executive rather than a court, and asserted that he was still of unsound mind within Article 5(1)(e). This complaint was rejected (judicial review is sufficient) and his Article 8 complaint also failed.§
  • Morsink v The Netherlands 48865/99 [2004] ECHR 197Transfer from prison to a clinic was delayed for over 15 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded.§
  • Brand v The Netherlands 49902/99 [2004] ECHR 196Transfer from prison to a clinic was delayed for 14 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded.§
  • McGrady, Re Application for Judicial Review [2003] NIQB 15(1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 [2001] ECHR 235 distinguished.§
  • Re C (Mental Patient: Habeas Corpus) [2002] EWHC 243 (Admin)The application for the issue of a writ of habeas corpus was premature and without any prospect of success; the proper course was to judicially review the Tribunal decision§
  • A v A Health Authority [2002] EWHC 18 (Fam)The nature of the case determined the court in which a case concerning the welfare of children or incompetent adults should be litigated: the review of a decision of a public authority by way of JR in the Admin Court; best interests cases in the Family Division. In best interests proceedings the court cannot compel a public authority to exercise its public law functions in a certain way.§
  • Edwards v UK 46477/99 [2002] ECHR 303Christopher Edwards was killed by a prison cellmate, Richard Linford; both suffered from schizophrenia. (1) The duty under Article 2 to protect life could extend to taking preventive operational measures to protect an individual against criminal acts of another, where the authorities knew (or ought to have known) of a real and immediate risk to the life of an identified individual. Information was available identifying Linford as posing such a risk. The failure to pass on this information, and the inadequate screening of Linford, amounted to a breach of Article 2. (2) No inquest was held, and the trial did not involve witness evidence. The private inquiry which was held (a) had no power to compel witnesses, and (b) was held in private, with the parents unable to participate to the extent necessary to safeguard their interests: Article 2 was breached in this respect. (3) There was no appropriate domestic means of determining whether the authorities failed to protect the right to life or of obtaining compensation, so Article 13 (effective remedy) was breached.§
  • Rutten v The Netherlands 32605/96 [2001] ECHR 482The decision to renew the patient's confinement order was taken after the order had expired, but under domestic law there was nothing requiring release in these circumstances; under Convention law the detention was not arbitrary, being based on a court order and expert evidence, so there was no violation of Article 5(1); however, the lawfulness of detention was not decided speedily, so there was a violation of Article 4(4); this finding constituted just satisfaction.§
  • DN v Switzerland 27154/95 [2001] ECHR 235The psychiatrist who sat as judge rapporteur on the Administrative Appeals Commission had, before the hearing, concluded that the patient should not be released; the patient had legitimate fears that the doctor had a preconceived opinion and was not acting impartially; this was reinforced because he was sole the psychiatric expert and the only person who had interviewed her; Article 5(4) having been breached, damages and costs were awarded§
  • Bensaid v UK 44599/98 [2001] ECHR 82 — The deportation to Algeria of a patient suffering from schizophrenia did not breach Articles 3, 8 or 13
  • Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254(1) The operation to separate Siamese twins, both of whom would otherwise shortly die, would clearly be in Jodie's best interests, but would kill Mary; the court must perform a balancing exercise in determining what was in the twins' best interests, regardless of the parents' religious objections; the scales come down heavily in Jodie's favour. (2) The operation would be lawful in criminal law, under the doctrine of necessity, and as the primary purpose was not to kill Mary§
  • Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549, (2000) 1 FCR 193It would not be in the best interests of A, who lacked capacity to make the decision, to be sterilised, while the current level of supervision continued; best interests are not limited to best medical interests but encompass medical, emotional and all other welfare issues.§
  • A v UK 25599/94 [1998] ECHR 85A had been beaten by his step-father more than once with a garden cane, treatment which, on the facts, reached the level of severity prohibited by Article 3; in English law reasonable chastisement is a defence to assault, and a jury acquitted the step-father on this basis; the UK had failed in its positive obligation to provide protection from breaches of Article 3.§