January 2018 update


  • Magic Book. The Magic Book is a database of contact details. It is a new addition to MHLO - but it can be expanded and be a success if everybody joins in, including you. To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book
  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.

Case law

  • Testamentary capacity case. James v James [2018] EWHC 43 (Ch) — "There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin [2014] EWHC 71 (Ch)Not on Bailii! [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect."
  • Upper Tribunal (reasons) case. M v An NHS Trust [2017] MHLO 39 (UT) — "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made."
  • Scottish capacity case. Application by Darlington Borough Council in respect of the Adult: AB [2018] ScotSC 4 — "The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian."

Review of MHA 1983

  • Review of legislation. Independent Review of the Mental Health Act 1983 by Simon Wessely (2018). Extract from website: "The review was set up to look at how the legislation in the Mental Health Act 1983 is used and how practice can improve. The purpose of the review is to understand the reasons for: (a) rising rates of detention under the Act; (b) the disproportionate number of people from black and minority ethnic groups detained under the Act; (c) processes that are out of step with a modern mental health care system. The review will seek the views of service users, carers, relevant professionals, and affected organisations in producing recommendations. It will produce a report with recommendations for change in autumn 2018."
  • Review terms of reference. Department of Health, 'Terms of Reference - Independent Review of the Mental Health Act 1983' (policy paper, 4/10/17) — Extract from website: "The independent review of the Mental Health Act will: (a) look at how the legislation is currently used; (b) look at its impact on service users, families and staff; (c) make recommendations for improving the legislation and related practices. The review will be chaired by Professor Sir Simon Wessely, a former President of the Royal College of Psychiatrists. He will produce an interim report in early 2018 and develop a final report containing detailed recommendations, by autumn 2018."
  • Law Society response. Law Society, 'Mental Health Act 1983 Independent Review: Call for Evidence: Law Society response' (22/1/18) — The Law Society's response notes that the MHA/MCA interface, and UNCRPD compatibility, need to be considered, and contains proposals under the following sub-headings: (a) Giving informal admission statutory force; (b) Period of detention under Section 3; (c) Treatment without consent under the MHA 1983; (d) Automatic referrals to the tribunal; (e) Statutory requirement to discharge where detention criteria are not met; (f) Managers Hearings for patients who lack capacity; (g) The need for an express requirement of tribunals to have regard to ECHR Rights; (h) Transfer of Prisoners to Hospital; (i) Inadequacy of tribunal powers in respect of transferred patients; (j) Community Treatment Orders; (k) Lack of access to aftercare for patients detained under section 2 and informal patients; (l) Learning Disabilities & Autism; (m) Under 18s; (n) Nearest Relative Rule; (o) Our views on mental health service provision.

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