December 2011 update


Case summaries

  • SSJ v RB [2011] EWCA Civ 1608The Mental Health Tribunal may not grant a conditional discharge in circumstances where the conditions would inevitably lead to an Article 5 deprivation of liberty. Postscript: see PJ v A Local Health Board [2015] UKUT 480 (AAC).§
  • Cardiff Council v Peggy Ross (2011) COP 28/10/11 12063905Cardiff Council used the Deprivation of Liberty Safeguards to prevent an elderly couple going on holiday cruise; the court decided that it was in the respondent's best interests to go on the cruise, and gave permission for ITV Wales to report that decision and broadcast interviews; later the court decided that the respondent herself had capacity to decide whether or not to go.§
  • PFZ v West London MH NHS Trust (2011) Settlement 28/11/11PFZ, an informal patient with a long history of mental illness, was allowed to run away from hospital in a suicidal state, then jumped from a balcony sustaining and permanent and catastrophic spinal cord injury which left him tetraplegic and wheelchair-bound. He sued the Trust for negligent failure to provide him with adequate treatment. The Trust agreed to compensate him on the basis of 40% liability, and made an advance payment of £75,000; the full amount was yet to be assessed but to meet PFZ's care needs for the remainder of his life was estimated to require millions of pounds.§
  • Re Ian Brady (2011) First-tier Tribunal 17/10/11 — Click on link to view page.§
  • Re RK; RK v BCC [2011] EWCA Civ 1305(1) An adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to detention. Detention engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the detention of a child. (2) The restrictions authorised by RK's parents did not amount to deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range.§ (NB Transcript revised to contain concurring judgments of Gross and Baron LJJ.)
  • Re AB; AB v LCC (A Local Authority) [2011] EWHC 3151 (COP)There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P's); (iii) the RPR can and is willing to act as litigation friend in P's best interests; and (iv) the procedure as set out in COP rule 143 is complied with. The judge set out the pros and cons of this course of action; in this case, he appointed the RPR to as P's litigation friend.§
  • Re RB (Adult); A London Borough v RB (Adult) (No 3) [2011] EWHC 2576 (Fam)(1) MF's claim for compensation was dismissed as it had no factual foundation; it also had no legal basis. (2) MF sought costs from the local authority; the Official Solicitor sought costs against MF (from a certain date) and the local authority (to the extent that costs were increased by their stance): there was no order for costs, except that MF was to pay 20% of the Official Solicitor's costs between certain dates, to reflect the time spent on the peripheral issues which MF had raised and the 'extravagant, strident and on occasions vicious way in which he chose to pursue them'.§
  • Re RB (Adult); A London Borough v RB (Adult) (No 2) [2011] EWHC 112 (Fam)MF's applications for permission to appeal and for a re-trial were refused as being devoid of merit.§
  • Re RB (Adult); A London Borough v RB (Adult) (No 1) [2010] EWHC 2423 (Fam)This case under the inherent jurisdiction concerned RB's best interests in relation to residence and contact. Of the 16 issues considered by the judge, he found for RB's partner MF in relation to one sub-issue (which was a 'saddening example of the institutional inability of some bureaucracies ever to admit that something has gone wrong') but against him in relation to all others (most of which were MF's unfounded criticisms of almost everybody involved in the case: the judge's own criticisms of Dr Kahtan and the MP are worth reading). Had she not died during the hearing, it would have been, given MF's inability to cooperate with any community care package, in RB's best interests to continue residing at the care home.§
  • Scottish Ministers v MHTS [2011] CSIH 76The Scottish Ministers challenged revocation by a Mental Health Tribunal of a restriction order affecting a patient suffering from paranoid schizophrenia and living in the community, and successfully argued that the compulsion order and restriction order should remain in force until the final hearing.§

Case transcripts

  • Black v MHTS [2011] CSIH 83 — 'What remedy, if any, is available to a curator ad litem appointed to represent the interests of a patient in proceedings before the Mental Health Tribunal for Scotland, in the event that the Tribunal acts unlawfully or unfairly or exercises its discretion in an unreasonable manner? That is the question which lies at the heart of the present appeal, which was remitted to this court by the Sheriff Principal of Grampian, Highlands and Islands.'§
  • SSWP v Slavin [2011] EWCA Civ 1515 — 'The respondent is resident in a specialist care home for people with autistic spectrum disorders and similar conditions. The cost of his accommodation is paid for by the National Health Service. The home is registered as a care home, not a nursing home. Its staff are trained to meet the needs of residents but do not have any medical or nursing qualifications. The specific issue in the appeal is whether the respondent is "maintained free of charge while undergoing medical or other treatment as an in-patient … in a hospital or similar institution under [the National Health Service Act 2006]", within the meaning of reg. 12A of the Social Security (Disability Living Allowance) Regulations 1991, so as to be disentitled to receipt of the mobility component of disability living allowance for which he was a claimant.'§
  • R (Baisden) v Leicester City Council [2011] EWHC 3219 (Admin) — Section 117 and accommodation.§
  • R (AK) v SSHD [2011] EWHC 3188 (Admin) — Immigration case with mental health element.§
  • Transcript added (summary already online). R v Goucher [2011] EWCA Crim 2473On appeal, the restriction order was quashed: the judge had applied the correct test (whether it was necessary to protect the public from serious harm) but, as confirmed by a psychiatric report prepared for the appeal, he had got the answer wrong. [Summary based on All ER (D) report.]§


  • Care Quality Commission, 'Monitoring the Mental Health Act in 2010/11' (8/12/11). The detailed findings in this report are set out under the following chapter headings: (1) Patients' involvement and protection of their rights; (2) Consent to treatment; (3) Patients' experience of care and treatment; (4) Promoting patient safety; (5) Deaths of detained patients. See CQC


  • LSC, 'Revised cost limitations on civil legal aid certificates' (12/12/11). These changes have been made as a result of the 10% fee reduction. See Legal Aid News


  • NHSIC, 'Bi-annual analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England): April-September 2011' (2/12/11). The key facts are stated as follows: 'The figures show that between 1 April and 30 September 2011: (1) 5,472 authorisation requests were completed. 3,963 (72.4 per cent) were received by LAs and 1,509 (27.6 per cent) were received by PCTs. (2) 3,079 (56.3 per cent) of the completed assessments resulted in an authorisation. (3) Of the total assessments completed, a slightly higher proportion was for females 2,857 (52.2 per cent) than males 2,615 (47.8 per cent). (4) At the end of the reporting period, 30 September 2011, 1,697 people were subject to a current standard authorisation. 1,484 (87.4 per cent) followed a granted LA authorisation and 213 (12.6 per cent) followed a granted PCT authorisation.'


  • 39 Essex Street, 'Court of Protection Newsletter' (issue 16, December 2011). The cases mentioned in this issue are: Re RK; RK v BCC [2011] EWCA Civ 1305M, Cheshire West and Chester Council v P [2011] EWCA Civ 1333M, Re RB (Adult); A London Borough v RB (Adult) (No 4) [2011] EWHC 3017 (Fam)M, Re FL; HN v FL and Hampshire CC [2011] EWHC 2894 (COP)M, R v Heaney [2011] EWCA Crim 2682M, Re HM; SM v HM (2011) COP 11875043 4/11/11, De Louville De Toucy v Bonhams 1793 Ltd [2011] All ER (D) 32 (Nov). Also included are: (1) the Court of Protection (Amendment) Rules 2011 (authorised court officers); (2) minor amendments to Practice Directions 10A, 14B and 19A (contact details); (3) Statistics on permission applications; (4) comment on the Cheshire judgment by a BIA. See 39 Essex Street COP Newsletter
  • Peter Bartlett, '"The necessity must be convincingly shown to exist": standards for compulsory treatment for mental disorder under the Mental Health Act 1983' [2011] Med L Rev 1. See Compulsory treatment
  • Jerome Taylor, 'Judge scrutinises ill man's removal from foster home' (Independent, 21/10/11). See Settled cases and forthcoming judgments#Re GR (deprivation of liberty, Hedley J)


  • Consultation on Mental Health (Regional Provision) (Wales) Regulations 2012 (26/9/11 to 16/12/11). 'This consultation seeks your views on regulations which would enable Local Health Boards (LHBs) and local authorities in Wales to enter into regional working arrangements.' See Consultations#Wales

Other documents

  • DH, 'Response to the offender personality disorder consultation' (gateway ref 16313, 21/10/11). See Consultations#Department of Health
  • European Union Agency for Fundamental Rights, 'The legal protection of persons with mental health problems under non-discrimination law: Understanding disability as defined by law and the duty to provide reasonable accommodation in European Union Member States' (25/10/11). See FRA
  • Law Society, 'Lasting powers of attorney: Practice note' (updated 8/12/11). 'The Law Society has produced a practice note to assist solicitors in advising clients wishing to draw up an LPA, as well as solicitors who are acting as an attorney under an LPA. The practice note also covers ongoing arrangements for Enduring Powers of Attorney.'
  • South West SHA and East Midlands SHA, 'Independent Investigation into the Care and Treatment Provided to Mr. X by the Lincolnshire Partnership NHS Foundation Trust and the Avon and Wiltshire Mental Health Partnership NHS Trust' (22/11/11) (X is Timothy Crook); South West Strategic Health Authority, 'Report of the Independent Investigation into the care and treatment of Mr MH' (22/11/11) (MH is Michael Harris). See Independent inquiries