January 2014 update

Case law

New case

  • Sex case. IM v LM [2014] EWCA Civ 37, [2014] MHLO 1 — "On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".]§

Information added

  • Capacity and tribunals. Summary added. MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94(1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case to the tribunal). (b) The period between the extension of s2 by s29 displacement proceedings and the tribunal's decision not to discharge. The Secretary of State, in circumstances where refusal would prevent a speedy judicial decision, has no discretion but is under a duty to make a tribunal reference. In this case: (i) there was such a tribunal within a month, which was not an unreasonably long period; and (ii) the fact that there was a tribunal meant that the patient was not a victim of the alleged shortcoming in the mental health system. There was no Article 5 breach. The situation of a patient without a nearest relative willing and able, through solicitors, to seek a reference was raised by the court but not considered. (c) The period between the tribunal decision and the patient's move from hospital. During this period, the legal basis of detention was no longer s29 but was the tribunal's judicial decision not to discharge. A judicial decision does not endure eternally, so a patient detained for an indefinite or lengthy period is subsequently entitled to take proceedings at reasonable intervals, but the four-month period in this case was not sufficient to breach Article 5. (2) No claim for just satisfaction was made so no compensation was ordered. (3) Legal costs were reduced to €5250 from the €5825.06 sought.§
  • Nearest relative. Summary added. TW v LB Enfield [2013] EWHC 1180 (QB), [2013] MHLO 59The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that s139(1) is incompatible with the ECHR had not been withdrawn, the judge would have similarly dismissed it. (4) On the facts, it was clear that it was 'not reasonably practicable' to have consulted the nearest relative (the patient had repeatedly sent dictated letters instructing Enfield's staff not to involve her family, and had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality): permission under s139 was therefore refused. [Caution: see Court of Appeal decision.]§
  • Nearest relative. More detail added to summary. GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58The claimant applied for a writ of habeas corpus, challenging the AMHP's decision not to consult the nearest relative (under s11) before making a s3 application. The AMHP's evidence was that, having tried to telephone the NR on five or six occasions, he dispensed with consultation because nursing staff were anxious about the patient's presentation and needed him on s3 to move him to a psychiatric intensive care unit. (1) The question which arises on an application of this sort is whether the AMHP's decision was plainly wrong, or whether it was within the range of appropriate decisions available. (2) In the circumstances his decision was unlawful, in particular because: (a) the notes showed that the claimant had essentially been stable (and, in the event, had not been transferred to the PICU for over two weeks after the s3 began); and (b) the s3 assessment finished about 4.30pm and the s2 was due to expire at midnight, so to drive about 30 minutes to the NR's house would not have taken a disproportionate amount of time. (3) The judge added that: (a) the position would have been different if admission to the PICU would only be possible if the patient were on s3, and if there had been a spiralling and acute deterioration of condition coupled with evidence of significant risk to nursing staff, and (b) s11 provides constitutional protection for those that are faced with detention under the Mental Health Act and there is a heavy duty on those who carry out these tasks to ensure that those statutory provisions are complied with.§
  • Adverse inferences and recusal. Summary added. MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC), [2013] MHLO 25The patient had been visited by an independent doctor but did not rely on a report from him. The hospital argued that the tribunal should infer that the doctor had been instructed to prepare a tribunal report, that this report was not favourable to the patient, and that it concurred with the clinical team's opinion. The patient appealed, arguing that (in light of the hospital's argument) the panel should have recused themselves for there to be a fair hearing. (1) In relation to the hospital's argument: (a) as a matter of practical reasoning, it could never succeed (invalid inferences); (b) as a matter of law, it may not be permissible (requiring inferences to be drawn from other inferences); and (c) it failed to take into account the context: 'The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine any realistic circumstances in which a tribunal, having such evidence, could properly rely on the failure by a patient to produce a report as a basis for drawing inferences that would affect the outcome. The tribunal’s duty, and the only proper course, would be to decide on the evidence available rather than speculate on possible explanations of why the report was not produced.' (2) The arguments for recusal were rejected so the appeal was dismissed.§
  • Appropriate treatment. Summary added. MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition; risk is as relevant to treatment as any other feature of the disorder.§
  • Appropriate treatment. Summary added. DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93This is the latest in a series of cases considering personality disorder, refusal to engage in treatment, and the question of whether the 'appropriate medical treatment is available' test in s72 is met. (1) Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration - although a patient may well continue to satisfy the conditions for detention despite refusing to engage. (2) In this case, the tribunal did not seem to have asked itself whether the deterioration after recall might not have been a response to detention rather than a manifestation of his mental disorder: this was relevant to the questions of 'nature/degree' and of whether the available treatment was appropriate, so the decision was set aside.§
  • Detention criteria. Part (2) of summary 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.]§
  • Detention criteria. Summary added. MS v North East London Foundation Trust [2013] UKUT 92 (AAC), [2013] MHLO 24In this case it was argued that the tribunal had addressed the s3 criteria for a patient who was detained under s2. (1) The Upper Tribunal decided that the First-tier Tribunal had not misdirected itself in this way. (2) However, the judge considered the criteria: he set out why he considered them different (primarily the different purpose of each section) but did not define how they were different. He concluded: 'This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.' (3) The tribunal decision was set aside because, faced with a medical report which had wrong language and a confused focus, the tribunal had failed to analyse the evidence to ensure that the doctor’s opinions could properly be related to the relevant criteria. (4) The tribunal had been asked to make a recommendation so its failure to explain its refusal was an error of law, albeit not of a kind to justify setting aside a decision (rather, a tribunal could amend its decision by adding the explanation).§
  • Section 139. Summary added. DD v Durham County Council [2013] EWCA Civ 96, [2013] MHLO 31DD wished to bring proceedings against local authorities arguing that (a) the two assessing AMHPs owed a duty to him (a legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held); (b) that by making the application for admission, each was in breach of duty; and (c) that the county council was responsible vicariously for that breach of duty. (1) The Court of Appeal (reversing the High Court decision in this respect) decided that the argument was sufficient for leave under s139 to bring proceedings to be granted. (2) DD should not have been made responsible for the costs of Middlesbrough City Council.§
  • Nearest relative. Summary added. MA v SSH [2012] UKUT 474 (AAC), [2012] MHLO 171The inability of a nearest relative of a patient detained under s2 (in contrast to s3) to apply to the tribunal following the RC's barring of his order for the patient's discharge did not breach Article 5, 6, 8 or 12.§

Legal Aid

  • Legal Aid Agency, 'Further information on forthcoming Mental Health and Community Care tender process' (30/1/14). See Legal Aid#2014 Contract

Court fees

  • Regulatory Policy Committee, 'Impact assessment opinion: enhanced court fees' (20/1/14). The summary of this report is: 'The Impact Assessment is not fit for purpose. The Department needs to make clear whether the proposal will result in the Court Service raising more funds than is necessary to cover their costs.' See Consultations#Court Fees: Proposals for reform (from 3/12/13 to 21/1/14)



  • Event. The Mental Health Lawyers Association will be running their successful two-day course for membership of the Law Society's Mental Health Accreditation Scheme (formerly the MHRT panel) in London on Monday 3/2/14 and Tuesday 4/2/14, and in Manchester on Wednesday 12/2/14 and Thursday 13/2/14. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further details and online booking form. See Events
  • Event. Cornwall Council are running a conference entitled 'Guardianship in Cornwall: reinvigorating the welfare debate for protective care' at New County Hall, Truro on Friday 7/2/14. The conference is based on an MA dissertation by Emma Goodall (an AMHP at the council) and speakers include Robert Brown (social worker, author, trainer), Tony Harbour (solicitor and author) and Neil Allen (barrister, author and lecturer). Free admission. For further details and booking information (places are limited) see Cornwall Council website. See Events
  • Event. Edge Training are running a one-day course entitled 'MCA 2005 & Tenancy Agreements' on Friday 28/2/14 in Lincoln's Inn, London. Price: £115 plus VAT. The course is aimed at all health and social care staff that assess capacity and place people in accommodation. The speaker will be Aasya Mughal (barrister). See flyer for further details and booking information. See Events
  • Event. Edge Training are running their 'Best Interests Assessors' Conference 2014' on Monday 31/3/14 at The Old Hall, Lincoln’s Inn, London. Price: £125 + VAT. Speakers include: Neil Allen (barrister), Amjad Malik QC (barrister), James Welch (Legal Director of Liberty), and a representative from VoiceAbility. See flyer for further details and booking information. See Events


  • Annual Review 2013 published. The Annual Review 2013 contains all news items, arranged thematically, which were added to the website during 2013. It is available in paperback (130 pages) and Kindle versions. The Kindle version is £3.00, and currently [at the time of the original news item] Amazon is discounting the paperback version from £12.00 to £3.34, including free delivery. Their discount could end at any time, so now is a good opportunity to get a bargain. The Annual Review 2011 and Annual Review 2012 are also available. See Books