December 2013 update


Mental Health Tribunal

  • Discretionary discharge. Brief and detailed summaries added. GA v Betsi Cadwaladr University Local Health Board [2013] UKUT 280 (AAC), [2013] MHLO 50(1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.]§
  • MHA/MCA interface. Brief and detailed summaries added. AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.]§

Legal Aid


  • Capacity and best interests. Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area).§
  • Medical case. Re P (Caesarian) [2013] MHLO 127 (COP)The press has reported this case as follows: Peter Jackson J decided that, in the event of a Caesarian scar rupturing during labour, it was in P's best interests that doctors could intervene and perform a Caesarean section.§
  • Emily Dugan, 'Pregnant woman with "very severe" mental health problems could be forced to have Caesarean' (Independent, 11/12/13). (Misleading headline.) See Re P (Caesarian) [2013] MHLO 127 (COP)
  • Baby removal case. A Local Authority v C [2013] EWHC 4036 (Fam), [2013] MHLO 125C had long-standing mental health problems and her two children had previously been removed from her. (1) Under the inherent jurisdiction Parker J made an anticipatory declaration that it was lawful for C's third baby to be removed immediately upon delivery, in order to safeguards the child's interests, on the understanding that the local authority would apply for an emergency protection order or an interim care order at the first possible moment. (2) No evidence was heard from C, and a litigation friend was not appointed, in order to avoid C being informed, the judge (and local authority solicitor) thinking that that (a) Official Solicitor would become C's solicitor so the solicitor-client duty of disclosure would apply, and (b) the only exception to that duty is when the client consents.§
  • Medical case. Transcript now available in this case. Re P (abortion) [2013] EWHC 50 (COP), [2013] MHLO 1(1) The solicitor who was one of P's deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that '[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do'. [Summary based on press article; judgment now available.]§
  • DOLS case. TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing.§
  • Medical case. Cuthbertson v Rasouli (2013) SCC 53, [2013] MHLO 109Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent.§
  • Best interests and available options. ACCG v MN [2013] EWHC 3859 (COP) — The Court of Protection may, exceptionally, in determining whether a local authority has breached convention rights, consider best interests beyond the available options. Extract from judgment: "[86] I find therefore that: (i) As restated by Baroness Hale in Aintree 'the court has no greater powers than the patient would have if he were of full capacity'. (ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities. (iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s7(1)(b) HRA, conduct an assessment of the person's best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a convention right. (iv) Protection of the Article 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a section 4 MCA 2005 best interests assessment. [87] In all the circumstances I accept the submission of ACCG that, contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s4 MCA2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests"
  • 'Italian forced caesarian' case. Various articles and commentary: (1) Lucy Series, 'More questions than answers - on the "forced caesarean" case', (The Small Places Blog, 3/12/13); (2) Lucy Reed, 'Never let the facts get in the way of a good story eh?' (Pink Tape Blog, 1/12/13); (3) Essex County Council, 'Essex County Council responds to interest in story headlined "Essex removes baby from mother"' (2/12/13); (4) Tweets from Judicial office (@JudiciaryUK): 'Proceedings not yet concluded; President of Family Division has ordered the matter be transferred to High Court. President of Family Division has order any further applications in respect of the child are to be heard by him.' (2/12/13); (5) Christopher Booker, '"Operate on this mother so that we can take her baby"' (Telegraph, 30/11/13); (6) Colin Freeman, 'Child taken from womb by social services' (Telegraph, 30/11/13); (7) John Bingham and Alice Philipson, 'Caesarean case mother denied chance to keep baby in hospital' (Telegraph, 2/12/13). See Re P (A Child) [2013] EW Misc 20 (CC), [2013] MHLO 103
  • Further blogs about caesarian case. (1) Neil Munro, 'A post that is not about forced caesarean sections' (Mental Health and Mental Capacity Law Blog, 3/12/13); (2) Neil Munro, 'A post which is about caesarean without consent' (Mental Health and Mental Capacity Law, 4/12/13). See Re AA [2012] EWHC 4378 (COP), [2012] MHLO 182

Community care

  • Community care case. Further detail added to summary. R (B) v Camden London Borough Council [2005] EWHC 1366 (Admin)(1) Claimant unsuccessfully sought damages for breach of statutory duty under s117 causing delay after deferred conditional discharge. (2) A person who 'may be in need of such services' under s47 NHSCCA 1990 is a person 'who may be in need at the time, or who may be about to be in need': (a) this includes the situation after a deferred conditional discharge decision; (b) obiter, the judge inclined to the view that it also includes a patient who may reasonably be considered to be liable to have such an order made in an impending tribunal hearing.§
  • Community care case. Further detail added to summary. R (NM) v LB Islington [2012] EWHC 414 (Admin), [2012] MHLO 11A prisoner whose release was about to be considered by the Parole Board sought judicial review of the local authority's decision not to conduct a s47 NHSCCA 1990 needs assessment with a view to provision of accommodation and support services if he were released from prison. (1) The connection between the Parole Board's consideration of NM's particular case and his release was too 'conditional and speculative' to fall within s47, or within the pragmatic 'about to be in need' or 'may reasonably be considered to be liable' tests from the B case. (2) In other cases of discharge from hospital or prison it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority. (3) Consideration of whether the Convention on the Rights of Persons with Disabilities can be relied upon.§

Crime and immigration

  • Criminal case. R v Odiowei [2013] EWCA Crim 2253, [2013] MHLO 131The appellant sought a restricted hospital order in place of a life sentence, relying on two recent medical reports which were critical of previous reports. The matter was adjourned for six weeks to obtain responses from the previous reports' authors.§
  • Criminal case. R v Fry (David George) [2013] EWCA Crim 2337, [2013] MHLO 126Unsuccessful appeal against conviction. Summary from judgment: "The central complaints are that his legal team (a) failed to ensure that he was mentally and/or emotionally able to decide whether or not on give evidence; (b) failed to ensure that he properly understood that an adverse inference might be drawn by the jury if he did not give evidence; (c) failed to ensure that he properly understood that if he did not give evidence the jury would have no account from him as to the allegation made by SB, given that he had declined to answer questions during his police interview about those allegations; (d) failed to make the judge aware of his mental difficulties before she decided whether or not the jury should be directed that they might, subject to various conditions, draw an adverse inference from his failure to give evidence; (e) failed to place evidence of his mental condition before the jury to explain his failure to give evidence; and (f) in the circumstances to which we have referred gave him flawed advice not to give evidence." §
  • Deportation case. R (Muaza) v SSHD [2013] EWHC 3764 (Admin), [2013] MHLO 112 — "These two cases raise common issues over the lawfulness of the exercise by the Secretary of State for the Home Department of her powers of detention in respect of immigration detainees whose refusal to take food and fluids causes them life threatening physical conditions, and over whether there comes a stage at which such a detainee's continued detention after the refusal to take food or fluids involves a breach of rights under Articles 2 and 3 of the European Convention on Human Rights."§
  • Criminal case. R v Fort [2013] EWCA Crim 2332, [2013] MHLO 111(1) The sentencing judge erred in concluding that the appellant would continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated, and therefore erred in imposing a sentence of custody for life as opposed to a s37/41 hospital order. (2) The judge's order under s45A was unlawful, because such an order could not be made on someone who was under 21 at the time of conviction (and was thus being considered for a sentence of custody for life, as opposed to a sentence of imprisonment, as would be the case on a person over 21 at the date of conviction). §
  • Criminal case. R v Edgington [2013] EWCA Crim 2185, [2013] MHLO 102The appellant had been sentenced to life imprisonment for murder and attempted murder, with a minimum term of 37 years. (1) Appeal against conviction dismissed, as the judge was not wrong to prevent counsel from re-examining the defence expert on whether she would 'as a matter of practice ... ever be released' from a hospital order. (2) Appeal against sentence dismissed as it was not manifestly excessive.§


  • Miscellaneous case. R (McKay) v SSJ [2013] EWHC 3728 (Admin), [2013] MHLO 136Permission to apply for judicial review of the decision to refer the claimant prisoner to a prison Dangerous and Severe Personality Disorder (DSPD) unit for assessment was refused because it was 'a classic example of a situation in which two experts disagree' and it was not for the court to interfere and substitute its own view.§
  • Welfare benefits. R (MM) v SSWP [2013] EWCA Civ 1565, [2013] MHLO 132(1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed.§
  • Welfare benefits. Obrey v SSWP [2013] EWCA Civ 1584, [2013] MHLO 129(1) The Upper Tribunal had not erred in law in finding that the cessation of Housing Benefit after 52 weeks as a hospital patient (which indirectly discriminated against the mentally ill) was justified . (2) The Court of Appeal discussed the limitations on appeals against the specialist Upper Tribunal.§
  • Article 3 case. Further detail added to summary. MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and that he was in dire need of appropriate psychiatric treatment - the conditions which the applicant was required to endure were an affront to human dignity and reached the threshold of degrading treatment for the purposes of Article 3. (3) There was no breach of Article 13 as an appropriate remedy was available in domestic law, notwithstanding the fact that he had been unsuccessful. (4) Compensation of €3,000 was awarded.§
  • Miscellaneous case. Oluku v CQC (2012) UKFTT 275, [2012] MHLO 183A carer at Dormers Wells Lodge secretly recorded ill-treatment, which led to the conviction of two staff (Sonika Limbu, 25, of Hayes, and Pashi Sahota, 57, of Southall) under MCA 2005 s44. The manager appealed against the CQC's cancellation of her registration as a manager, but the tribunal found that she was not fit to be registered as a manager. In relation to one allegation (although technically there was no breach as at the relevant time she was not yet registered), the tribunal noted: "the necessary paperwork was not present in the form of a Deprivation of Liberty for a number of service users, and in that respect the appellant did not have suitable arrangements in place to protect service users against the risk of such control or restraint being unlawful or otherwise excessive as required under regulation 11(2) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, since proper assessment and recording was not being carried out."§
  • Miscellaneous case. West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2013] MHLO 118The facts can be found in the summary of the Court of Appeal's judgment. The Supreme Court allowed Dr Chhabra's appeal, granting an order restraining the Trust from (a) pursuing any of the confidentiality concerns contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and (b) pursuing any confidentiality concerns without first re-starting and completing an investigation under its policy D4A.§


  • Scottish case. G v Scottish Ministers sub nom G v MHTS [2013] UKSC 79, [2013] MHLO 117This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The tribunal's decision to make no order was lawful. The Supreme Court took the opportunity to clarify the nature of decision-making under section 264(2) Mental Health (Care and Treatment) (Scotland) Act 2003, and the factors which are relevant to the proper application of that section and of other provisions of the Act.§


Department of Health

  • Department of Health, 'Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England' (October 2013). See Ordinary residence

Ministry of Justice

  • Ministry of Justice, 'Code of Practice for Victims of Crime' (October 2013). See Victims of crime
  • Ministry of Justice, 'Court Fees: Proposals for reform' (December 2013). The proposals include introducing new, and amended, fees for the Court of Protection, and increased fees for judicial review. From Government website: "Under the proposals contained in this consultation paper, those using the civil court system would, in future, be expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost. Fee remissions will continue to be provided for those who qualify, so that access to justice is not denied." Consultation from 3/12/13 to 21/1/14. See Consultations

Law Society

  • Law Society, 'Review of the Mental Health [Act] 1983 Code of Practice: [Response to] Pre-consultation Engagement' (November 2013). See Law Society

Care Quality Commission


  • Mind, 'Legal Newsletter' (Issue 14, December 2013). This newsletter contains the following: (1) Articles: (a) The Independent Commission on Mental Health and Policing Report; (b) Judicial Review: Proposals for further reform; (c) Free Legal Aid for people detained under the Mental Health Act 1983 - the right to go to court to challenge the lawfulness of your detention; (d) Updating the Code of Practice to the Mental Health Act 1983; (e) Mental Health Act Safeguards; (f) The Care Bill 2013 in England: some recent developments. (2) News: (a) Mental Health Discrimination) Act 2013; (b) Independent Mental Health Advocates; (c) Post-legislative scrutiny of the Mental Health Act 2007; (d) Preliminary medical examinations at the Mental Health Tribunal; (e) Mind report on restraint in mental healthcare settings; (f) TW v LB Enfield [2013] EWHC 1180 (QB), [2013] MHLO 59; (g) New NHS Mandate; (h) AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80. See Mind (Charity)
  • 37 Park Square, 'COP E-lerter' (issue 10, 14/10/13). See Newsletters
  • 37 Park Square, 'COP E-lerter' (issue 11, 23/12/13). See Newsletters


  • Sarah Wollaston, 'Why are so many mentally ill children being held in prison cells?' (Guardian 'Comment is free' site, 28/11/13). This article, written by a Tory MP, complains about inadequate funding for mental health services and calls for an end to mental health detention in police cells. See s136



  • Medical Justice, 'Mental Health in Immigration Detention Action Group: Initial Report (17/12/13). See Repatriation


  • Scottish Government, 'A Consultation on draft proposals for a Mental Health (Scotland) Bill' (December 2013). From Scottish Government website: "This consultation paper seeks views on proposals for a draft Mental Health Bill. This draft Bill brings forward changes to improve the operation of the 2003 Act - notably in relation to named persons, advance statements, medical matters and suspension of detention. In addition the draft Bill makes provision for a Victim Notification Scheme for victims of Mentally Disordered Offenders." Consultation from 23/12/13 to 25/3/14. See Consultations#Scotland


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