January 2010 update

Case law

  • R (D and M) v SSWP [2010] EWCA Civ 18 — (1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date.
  • R (DK) v SSJ [2010] EWHC 82 (Admin)DK's s47 transfer was based on the report of a doctor and a psychologist which dealt with the treatability of his psychopathic disorder, and three proforma reports from doctors which did not deal with treatability. As treatability was not addressed, with reasons, by two medical practitioners, the transfer decision was quashed. [Caution: decided before 2007 Act amendments.]§
  • Re Bax (2009) COP 22/10/09The donor appointed A and B to act jointly, and then provided that "In the event A is unable or unwilling to act as my attorney then I appoint C." On the attorneys' application the court severed the appointment of C. Although a donor may appoint a substitute attorney, the appointment must not be incompatible with a joint appointment of the original attorneys. [OPG summary - EPA cases.]§
  • ‎Re Bullock (2009) COP 15/12/09The certificate providers did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present. The donor was in hospital and the certificate providers had discussed the LPA with the donor at his bedside, the attorney being present throughout. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. The court, in the exercise of its discretion, declared under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument, which was not in the prescribed form, should be treated as if it were. Registration was directed accordingly. [OPG summary.]§
  • ‎Re Smith (2009) COP 7/12/09In Part C of the EPA the attorney had deleted the words "I also understand my limited power to use the donor's property to benefit persons other than the donor". On the attorney's application, the court was satisfied that the deletion was made in error, and directed that the instrument should be read as if the wording had not been deleted. [OPG summary - EPA case.]§
  • ‎Re Helmsley (2009) COP 30/11/09The donor executed two instruments intended to be LPAs. In Part A of both instruments she omitted to tick the box to confirm that she gave her attorneys authority to act on her behalf in circumstances when she lacked capacity. The Public Guardian refused registration on the ground that the instruments were not in prescribed form. On the attorneys' application, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 and declared that the instruments, although not in prescribed form, were to be treated as if they were. Registration was directed accordingly. [OPG summary.]§

Legal Aid

  • The LSC published their Mental Health Procurement Plan on 22/1/10. This document shows the Mental Health services the LSC are commissioning and the volume of New Matter Starts (NMS) available in each Strategic Health Authority procurement area and High Security Hospital from October 2010. See Legal Aid#CLS News
  • 25/01/10: CLS News item: "Changes to the civil legal aid means test 20-01-2010". From 11/1/10 onwards, a disregard can be made for any monthly payment that the client (or his partner, where applicable) is required to make under a contribution order towards the costs of representation in his criminal case. See Legal Aid#CLS News

Other documents

  • In the final report of the Speaker's Conference on Parliamentary Representation, published on 6/1/10, MPs recommend that s141 be repealed. The section provides that an MP will lose his seat if detained for mental disorder for the specified period. See s141 for details.
  • This month Rethink launched a campaign to amend the rules on the mental-disorder disqualification from jury service. See Jury service
  • DH list of supervisory bodies updated again on 14/1/10. See DOLS
  • The DCSF have published "Keeping Children and Young People in Mind: The Government’s full response to the independent review of CAMHS". See Children and mental health law


  • On 31/1/10, Wikimentalhealth contained 697 categorised cases