December 2009 update


Deprivation of liberty/capacity

  • Salford City Council v BJ [2009] EWHC 3310 (Fam)Following a final hearing concerning deprivation of liberty the previous year, the judge now had to determine: (a) the nature and timing of future reviews by the court, (b) the nature and timing of future internal reviews by the local authority, and (c) whether the proceedings should now be transferred to the Court of Protection.§
  • Re Allen (2009) COP 21/7/09Under MCA 2005 s4(7) any best interests decision-maker "must take into account, if it is practicable and appropriate to consult them, the views of" various categories of individuals. Where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P’s best interests, and it would be neither practicable nor appropriate to embark on that process in the first place.§
  • GJ v The Foundation Trust [2009] EWHC 2972 (Fam)(1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. (2) In deciding whether P is within the scope of the MHA, the eligibility assessor must ask whether, in his own opinion, P could be detained under the MHA. (3) With respect to objections, what matters is whether P objects generally to what is proposed. (4) The correct overall approach for the eligibility assessor is to (a) look at the reality of the situation, rather than the words of the authorisation, (b) separate the mental treatment from the purely physical treatment, and (c) apply a "but for" test, i.e. whether, but for the physical treatment, P should be detained (and whether the only effective reason for detention is physical treatment); if "no" (and "yes", respectively) then P isn't ineligible for DOLS. (5) On the facts, but for his diabetes, P would not have been detainable, so he was not ineligible. It is worth reading the full summary page and the judgment.§
  • ‎Halilovic v Bosnia and Herzegovina 23968/05 [2009] ECHR 1933(1) The appellant's detention for 4 years 5 months was pursuant to an administrative decision, as opposed to a decision of the competent civil court as required by the amended domestic legislation, and so breached Article 5(1); compensation of €22,500 was awarded. (2) The Article 3 claim relating to conditions of detention failed.§


  • Re Kittle (2009) COP 1/12/09Regulation 8(3) of the LPA, EPA and PG Regulations 2007 sets out categories of persons who cannot act as certificate provider. Included in the list is "a family member" of the donor or of the attorney (or of the owner, director, manager or employee of any care home in which the donor is living when the instrument is executed). In this case the certificate provider was the donor's first cousin. The Public Guardian declined to register the instrument on the ground that a first cousin was a family member of the donor. The court ruled that a first cousin is not a family member, and so the LPA was valid. [OPG summary.]§
  • Re Clarke (2009) COP 18/11/09The donor appointed three attorneys, A (his wife), B, and C, to be his attorneys. They were appointed to act jointly in some matters and jointly and severally in others. He then stated that the attorneys were to act together for transactions not exceeding £5,000 "but together in respect of all other decisions subject to my wife A's opinion prevailing in the event that my attorneys are not unanimous in any decision involving property or expenditure exceeding £5,000". On the application of the Public Guardian, the words "subject to my wife A's opinion" onwards were severed on the ground that they purported to facilitate one of the three attorneys being able to act independently in relation to matters that had been specified as subject to the joint decision of the attorneys. [OPG summary.]§

Aftercare/community care and DDA


Other cases

  • R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin)(1) Decisions of inferior courts are subject to judicial review for exceeding their jurisdiction. Excess of jurisdiction can mean either the court (a) embarks on a case beyond its statutory remit, or (b) makes a legal mistake. (2) Judicial review of the Upper Tribunal is not ousted by s3 TCEA 2007. (3) The UT is, for the relevant purposes, an alter ego of the High Court, and it would never be right to exercise the JR jurisdiction on the ground that it had made a legal mistake. (4) Decisions of the UT are only amenable to JR for excess of jurisdiction or where there is a wholly exceptional collapse of fair procedure (something as gross as actual bias). (5) Consideration was also given to the status of SIAC decisions. [Caution.]§
  • R (Johnson) v SSJ [2009] EWHC 3336 (Admin)The Secretary of State's decision that the next Parole Board review would occur 14-15 months after the last review was unsupported by any reason and, on the facts, inconsistent with Article 5(4).§
  • R (Miller) v Independent Assessor [2009] EWCA Civ 609The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder).§
  • AB v Nugent Care Society [2009] EWCA Civ 827In these appeals, arising from allegations of historic sexual abuse at children's homes, guidance was given on the correct approach to the application of s33 Limitation Act 1980 in the light of A v Hoare [2008] UKHL 6B.§
  • ‎Seal v UK 50330/07 [2009] ECHR 806Statement of facts and question lodged with court. Case concerns the procedure under s139 MHA 1983.§
  • ‎MS v UK 24527/08 [2009] ECHR 1762Statement of facts and question lodged with the court. The case relates to detention under s136 beyond the permitted 72-hour period and a subsequent civil claim against the Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office.§
  • ‎West v General Social Care Council [2009] UKFTT 330 (HESC)The applicant mental health social worker successfully appealed against a decision made by the respondent's Preliminary Proceedings Committee to impose an six-month Interim Suspension Order.§
  • ‎Anam v SSHD [2009] EWHC 2496 (Admin)It is the Secretary of State's policy not to detain mentally ill persons pending deportation, save in "very exceptional circumstances". The claimant was entitled to a declaration that the SoS had unlawfully failed to consider the implications of his policy; however, the detention was not in breach of the policy, and continued detention was lawful.§
  • C v Clinical Director of St Patricks Hospital [2009] IEHC 13 — This is an application on behalf of the applicant for a declaration that the applicant is unlawfully detained by the first respondent contrary to Article 40.4 of the Constitution. The essence of the applicant’s case is that prior to her arrival at the respondent’s hospital, she was initially detained by the gardaí and unlawfully removed to the hospital by them. The applicant argues that this alleged unlawful detention by the gardaí, has tainted the subsequent detention by the respondents even though, by and large, apart from this initial reception the respondents have meticulously followed the proper procedures for dealing with such persons as set out in the legislation and the Mental Health Act 2001 in particular.§
  • Decisions on permission to appeal given by Supreme Court recently. See R (TF and Thompson) v SSHD [2009] EWCA Civ 792 (sex offender register case - allowed), R (P) v SSJ [2009] EWCA Civ 701 (inquiry into self-harmer in HMYOI - refused), R (Miller) v Independent Assessor [2009] EWCA Civ 609 (quantum of damages for unlawful detention - refused), AB v Nugent Care Society [2009] EWCA Civ 827 (Limitation Act, sexual abuse - refused)


No new legislation added this month.

Legal Aid

  • LSC news item: "2010 civil contract: arrangements for billing of disbursements 22-12-2009". When the new contract starts in October 2010, mental health firms will be able to apply for interim payments of disbursements (excluding counsel's fees) where six months have elapsed since (a) the start of the matter and (b) any previous interim payment application. Paragraph 9.50 of the MH specification has been amended accordingly. See Legal Aid
  • CLS News item :"LSC outlines actions following NAO report 17-12-09". Following a slating by the National Audit Office, the LSC have written to all firms. Of relevance to mental health law: on audit, in certain circumstances, they had allowed 2 hours' work without evidence of entitlement, but this practice will cease; firms with high numbers of split cases and multiple matter starts for a single client will be investigated with a view to the recovery of cash; and a reminder was given of the general duties of keeping records to justify claims. See Legal Aid#CLS News
  • CLS News item 16/12/09 "Civil case management - change in contact details". From February 2010, the phone number for all urgent enquiries about civil certificated work is 0300 200 2020; email or post should be used for non-urgent enquiries ( for civil legal, for finance, means-enquiries for means queries). See Legal Aid#CLS News
  • This month the LSC have updated their "Where work is processed" document. The old one has been removed from their website so it is not immediately clear what has changed. See Legal Aid#Where work is processed

Other documents

  • The Dept of Health have issued guidance on the completion of the Deprivation of Liberty Safeguards data collation sheet. See DH
  • The Dept of Health have published "The second year of the Independent Mental Capacity Advocacy Service: 2008/2009". See IMCA
  • DH list of supervisory bodies updated again on 18/12/09. See DOLS
  • "MCA update" 18/12/09 email text added. See OPG
  • MoJ consultation added: "Office of the Public Guardian: Amendments to secondary legislation" (17/12/09 to 9/3/10). See Consultations
  • An updated version of "A Practitioner's Guide to Court of Protection Property Procedures" is now available on the OPG website. See Court of Protection
  • In December 2009 "New Horizons" was launched, with politicians' photos, jargon, and it own section on the Dept of Health website. See Dept of Health
  • The Law Commission's consultation document on reform of adult social care law is due to be published in February 2010. See Law Commission for link to Gazette article


  • The December 2009 CPD questionnaire is now available, as are the questionnaires for the previous 12 months. Multiple-choice tests are published monthly, stay online for 12 months, and can be taken at any time. <rss-desc>See CPD scheme for details</rss-desc>