January 2009 update

The following updates were made to the site in January 2009.


  • Criminal Justice and Immigration Act 2008 provisions concerning a new offence of causing nuisance or disturbance on hospital premises came into force on 1/1/09. The in-force provisions relate only to definitions and the power to issue guidance, rather than creating the offence itself. See Nuisance or disturbance on hospital premises

Other documents

  • MoJ consultation on proposed amendments to the Community Legal Service (Financial) Regulations 2000. The plan is to increase income eligibility limits by 5%, and to introduce non-means-tested legal aid for COP proceedings for those deprived of their liberty, from April 2009. Closing date 17/2/09. See new Consultations page
  • The MHAC have issued new guidance this month. "Second Opinions for Supervised Community Treatment patients who are refusing medication for mental disorder" and "Treatment under emergency power for Supervised Community Treatment patients who are awaiting Second Opinions". See MHAC
  • New page added on learning disability. Including links to the DH documents "Valuing people now: a new three-year strategy for people with learning disabilities", published 19/1/09, and "Further government response to the JCHR report: A life like any other? Human rights of adults with learning disabilities", published January 2009. See Learning disability
  • New page with links to recent publications relating to Children and mental health law. Including "Children and Young People: Legal Aspects of Care and Treatment Professionals Guide" (16/1/09), "Royal College of Psychiatrists Tool: Safe and Appropriate Care for Young People on Adult Mental Health Wards" (15/1/09) and "Pilot Programme: Safe and Appropriate Care for Young People on Adult Mental Health Wards" (6/1/09).
  • On 26/11/08 the Law Commission published a "scoping report" on their project to reform adult social care law. See Law Commission

Website updates

Case law

January 2009 judgments

  • Austin v Commissioner of Police of the Metropolis [2009] UKHL 5(1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical injuries and property damage therefore did not engage Article 5; if Article 5 had been engaged then the deprivation of liberty could not have been justified under Article 5(1)(a) to (e) for each individual in the crowd. §
  • R (Black) v SSJ [2009] UKHL 1The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court.§
  • Adorian v Commissioner of Police of the Metropolis [2009] EWCA Civ 18Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court.§
  • R (SP) v SSJ [2009] EWHC 13 (Admin) — The requirements of Article 2 concerning an investigation into the treatment of the claimant while she was serving a sentence of detention in a young offender institution.§
  • Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC)The responsible authority appealed against the Tribunal's interlocutory decision to direct disclosure of medical records, including third-party information, to the patient's solicitor; having agreed it had jurisdiction, the Upper Tribunal made no order on the appeal, as the patient had by that time been placed on a CTO; however, detailed guidance was given as to the proper approach where either the responsible authority resists disclosure of confidential third-party information or the solicitor wishes to disclose such information to his client. Guidance was also given on the status of a decision by a three-judge panel of the Administrative Appeals Chamber.§
  • X, Re Judicial Review [2009] NIQB 2Based on the general legislative purpose underlying Article 77(2) Mental Health (NI) Order 1986 and the constitutional principle in favour of liberty, the MHRT in Northern Ireland does not have the power to direct the discharge of an unrestricted patient at a future date where there is a mandatory duty to discharge the patient; a deferred discharge is only lawful for a discretionary discharge§

2008 cases

  • 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).§
  • RP v UK 38245/08 [2008] ECHR 1124Statement of facts and questions to the parties. (1) Did the appointment of the Official Solicitor give rise to a breach of RP’s procedural rights guaranteed by Article 8 of the Convention? (2) Did the same circumstances give rise to a breach of Article 6 as regards the fairness of the court proceedings?§
  • Pankiewicz v Poland 34151/04 [2008] ECHR 148It would be too rigid to expect immediate transfer from prison to psychiatric hospital but, although the delay of 2 months 25 days did not at first glance seem particularly excessive, on balance it was not acceptable and violated Article 5(1); the claimant had been compensated by the domestic court so was not a victim for Article 5(3) purposes; the Article 6 complaint was rejected for non-exhaustion of domestic remedies§

Older cases

  • ‎R (Abu-Rideh) v SSHD [2007] EWHC 2237 (Admin)The claimant's appeal under s10(1) of the Prevention of Terrorism Act 2005 against the modification of his control order (that the cumulative effect in his changed circumstances, in particular because he now lives alone and his perceived declining mental health, had led to breaches of Articles 5, 3 and 8) failed.§
  • Buck v Nottinghamshire Healthcare NHS Trust [2006] EWCA Civ 1576The claimant nurses had been assaulted by a patient and sued the Trust in negligence. The standard of reasonable care is that which is reasonably to be demanded in the circumstances: one of the circumstances was the duty of care owed by the defendant to the patient; another was the failure, contrary to the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000, to have a policy for assessing high risk patients for being locked up at night, a policy which would have led to the patient being locked up and prevented the assault. Appeal dismissed.§
  • Folks v Faizey [2006] EWCA Civ 381The challenge to the appointment of a litigation friend for the claimant in a PI claim failed: the appointment, which followed a bona fide application based on adequate evidence and agreement of the patient and litigation friend, would not prejudice the other party and had minimal importance to the outcome of the litigation.§
  • Lindsay v Wood [2006] EWHC 2895 (QB)The claimant was unable to deal with the advice he was likely to receive (in relation to offers to settle his PI claim) or to give reliably rational instructions based on that advice, and therefore was a patient within the meaning of CPR Part 21.§
  • R v Hendy [2006] EWCA Crim 819The conviction for murder was quashed and replaced with diminished responsibility manslaughter because the judge's direction on the effect of alcohol (which reflected the law as then erroneously understood) was wrong in light of a later House of Lords case; obiter, fresh medical evidence relating to the diagnosis of personality disorder might reasonably have affected the decision of the jury. A retrial was not appropriate as tariff had been served; a restricted hospital order would be substituted for the life sentence.§
  • St Helens Borough Council v PE [2006] EWHC 3460 (Fam)In cases involving the doctrine of necessity a declaration in the form of "it is lawful, being in [PE's] best interests..." is appropriate, as it is the best interests of the vulnerable adult which determine lawfulness; however, in other circumstances under the inherent jurisdiction a bare declaration in the form of "it is in [PE's] best interests..." is appropriate.§
  • Hasani v Blackfriars Crown Court [2005] EWHC 3016 (Admin)If an accused person is found to be unfit to plead under s4 Criminal Procedure (Insanity) Act 1964 but becomes fit to plead before he is dealt with under 5, the court is not required to follow the procedures in sections 4A and 5 (which would probably lead to an absolute discharge); instead, a second s4 hearing should take place and if appropriate the necessary order for arraignment made.§
  • Jones v Isleworth Crown Court [2005] EWHC 662 (Admin)Although the offender had not caused serious harm in the past, and the medical evidence did not recommend a restriction order, the judge was right to impose restrictions on the admission order under Schedule 1 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 on the basis that there was a risk of serious harm to the public, because of the history of paranoid schizophrenia with violent command auditory hallucinations and an escalation of violent offending.§
  • R (TP) v West London Youth Court [2005] EWHC 2583 (Admin)The Youth Court judge was not satisfied on the balance of probabilities that the claimant would be unable effectively to participate in the proceedings because of his low intellectual ability, so decided not to stay the proceedings for abuse of process; the claimant's judicial review application (on standard of proof, reasons and Article 6 grounds) failed.§
  • R (Webb-Johnson) v DPP [2005] EWHC 3123 (Admin)The District Judge had been wrong to proceed to hear the case in the absence of the claimant (who had mental health problems); the conviction was quashed and a retrial ordered§
  • R (B) v London Borough of Camden [2004] EWHC 2348 (Admin) — Claimant sought damages breach of statutory duty under s117 causing delay after deferred conditional discharge. Permission refused.§
  • ‎R v Rogerson [2004] EWCA Crim 2099Although it was lawful to pass sentences of imprisonment and a hospital order under s37 at the same time, it was a matter of obvious impracticability for them both to be simultaneously carried out; the sentences of imprisonment were inappropriate and therefore quashed.§
  • R (Razgar) v SSHD [2004] UKHL 27The claimant was an Iraqi asylum seeker who had already sought asylum in Germany, but claimed that his return to Germany would adversely affect his mental health. (1) In principle, Article 8 rights can be engaged by the foreseeable consequences for health of removal from the UK pursuant to an immigration decision, even where such removal does not violate Article 3, if the facts relied on by the applicant are sufficiently strong. (2) On the facts, the Home Secretary's decision to certify the claim as manifestly unfounded was unlawful, as an adjudicator could have properly ruled in the claimant's favour.§
  • R (Razgar) v SSHD [2003] EWCA Civ 840The Secretary of State cannot lawfully certify that an immigration claim is manifestly unfounded unless the claim is bound to fail before an adjudicator; it it not enough that it is very likely to fail. All three claimants had already claimed asylum in safe European countries before claiming asylum again in the UK; the challenges to the Secretary of State's decisions were based on Article 3 and/or 8 and mental health consequences of removal.§