July 2010 update

Case law

Mental health

Mental capacity

  • Re HM; PM v KH [2010] EWHC 1579 (Fam)In this case PM had removed HM (an incapacitated adult) out of the jurisdiction following a best interests judgment with which he disagreed. This judgment discusses various orders which were made at a subsequent hearing. For orders, including in relation to anonymity/publicity, to be enforceable they must be drafted as injunctions and be clearly worded. The text of the orders is set out in an annex.§
  • Re HM; PM v KH [2010] EWHC 870 (Fam)The case involved the abduction of P by his father to Israel in contravention of a best interests declaration. The judgment describes the various orders which were made to secure the return of P. Discussion of court's powers in relation to adults lacking capacity. The court has exactly the same powers when it is concerned to locate the whereabouts of a missing or abducted adult lacking capacity as when concerned to locate the whereabouts of a missing or abducted child.§
  • Re HM; PM v KH [2008] EWHC 2824 (Fam)It was in the best interests of a young lady without capacity to determine questions of treatment, care and medical treatment to reside at a specialist placement rather than with her father.§
  • G v E [2010] EWCA Civ 822The judge was right to reject the appellant's submission that Article 5 places distinct threshold conditions which have to be satisfied before a person lacking capacity can be detained in his best interests under the MCA 2005. The MCA generally, and the DOLS in particular, plug the Bournewood gap and are Article 5 compliant.§
  • G v E [2010] EWCA Civ 548Successful renewed application for permission to appeal: it was arguable that the judge was wrong in deciding that the court may entertain an application for an order under s16 MCA 2005 that would have the effect of depriving a person of his liberty without being satisfied that his condition warrants compulsory confinement. Permission was given on other grounds also.§
  • Re P [2010] EWHC 1592 (Fam)Derek Paravicini's parents and sister (rather than any independent person) were made joint and several financial and welfare deputies, subject to (1) a condition under s16(5) to consult fully with the RNIB and the county council when considering a move of accommodation; and (2) a requirement under s19(9) to give notice to the public guardian in the event that his earnings exceed £150,000 a year, as at this point he could begin to contribute to the costs of his care while making a profit from a musical career.§
  • Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam)The circumstances of the domestic care of A and C by their families in the family home did not involve a deprivation of liberty engaging the protection of Article 5.§
  • RT v LT [2010] EWHC 1910 (Fam)(1) Applying the MCA 2005 provisions, LT lacked capacity in relation to residence and what contact she should have with her family. (2) Wherever possible, the plain words of the Act should be directly applied to the facts of the case in hand, but there will be cases in which it may be necessary to look at pre- or even post-Act authority on the question of capacity.§
  • SH v NB (Marriage: Consent) [2009] EWHC 3274 (Fam)The marriage between a 27-year-old Pakistani man and a 16-year-old English girl would be valid only if both of the parties had, according to the law of their respective ante-nuptial domiciles, validly consented to marry the other: (1) under Pakistani law the marriage was invalid; (2) under English law, the court declared that the marriage was invalid because the girl's free will had been overborne as a result of the pressure exerted upon her; it was voidable but now too late to issue a decree of nullity.§
  • HBCC v LG [2010] EWHC 1527 (Fam)It was in the best interests of an elderly lady suffering from dementia to remain at a residential home, rather than be returned home to live with her daughter (who was assisted by a McKenzie Friend, whose role was the subject of consideration by the Court)§
  • Gorjat v Gorjat [2010] EWHC 1537 (Ch)Adult children unsuccessfully challenged the deceased's transfer of funds, to a joint account with his second wife, on the grounds of mental incapacity and undue influence.§
  • A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam)(1) The test for capacity to make decisions as to contraceptive treatment should be applied so as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues"), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each. (2) Questions do not need be asked as to the woman's understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care. (3) Mrs A did understand the proximate medical issues. (4) However, her decision not to continue taking contraception was not the product of her own free will: she was unable to weigh up the pros and cons of contraception because of the coercive pressure under which she had been placed both intentionally and unconsciously by Mr A. (5) The judge made no order as to Mrs A's best interests, preferring that an attempt be made to achieve a capacitated decision from Mrs A, through 'ability-appropriate' help and discussion without undue contrary pressure from Mr A. (6) The court has a wide inherent jurisdiction to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions, but on the facts no injunction against Mr A was necessary.§

EPA/LPA cases

  • Re Davies (2010) COP 5/7/10The donor appointed two attorneys, A and B, to act jointly and severally. He then imposed the following restriction: "If in the unlikely event of A and B not being wholly in agreement, B is to defer to the wishes of A." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - LPA case.]§
  • Re P Crook (2010) COP 2/7/10The donor appointed one primary attorney and three replacement attorneys, the latter to act jointly and severally. He then imposed the following restriction: "Provided I have more than two attorneys capable of acting under this power then any decision as to the exercise of any power or discretion reached by the majority of such attorneys (acting in their capacity as attorneys) shall bind all my attorneys to the extent that no attorney of mine can take issue with the decision reached by that majority." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - LPA case.]§
  • Re D'Argenio (2010) COP 9/6/10The donor made a property and financial affairs LPA and a health and welfare LPA. In both she appointed six attorneys to act jointly and severally. In the property and affairs LPA she imposed the following restriction: "My atorneys must act jointly in relation to decisions about selling my house. They may act jointly and severally in everything else." In the health and welfare LPA she imposed the following restriction: "My attorneys must act jointly in relation to decisions I have authorised them to make about life-sustaining treatment and where I live. They may act jointly and severally for everything else." On the application of the Public Guardian the court severed both restrictions as being incompatible with a joint and several appointment. [OPG summary - LPA case.]§
  • Re Pattison (2010) COP 11/5/10The donor appointed three attorneys, A, B and C, to act jointly and severally. A and B were her daughters. She then imposed the following restriction: "I direct that not less than two of my attorneys shall act whilst there are two alive and capable of acting and that initially those two shall be my two daughters." On the application of the attorneys the court directed severance of the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.]§

Other cases

  • R v MB [2010] EWCA Crim 1684(1) It was unfair to try the appellant, who was unfit to plead, with a co-defendant who made allegations against him in an attempt to exculpate herself, so the finding that he had committed the acts charged against him was unsafe. (2) This successful appeal meant that he had to be acquitted and that, because of a lacuna in the law, the Secretary of State now had no power to remit him for trial on the basis that he had become fit to plead.§
  • R (Bary) v SSJ [2010] EWHC 587 (Admin)The living and working regime for the inmates of the Detainee Unit at HMP Long Lartin (who are being held indefinitely pending extradition or deportation) was changed so that they were confined to the Unit, because of concerns that a new inmate might radicalise Muslims or plan/incite terrorism if allowed access to the main prison. The decision was challenged on the grounds that (1) it was irrational, unreasonable, disproportionate or made for illegitimate aims; (2) in breach of Article 3, it caused inhuman or degrading treatment for the two inmates with pre-existing mental illnesses; (3) in breach of Article 8, it unjustifiably removed them all from normal association and was an unjustifiable infringement of their right to the preservation of their mental stability in the broadest sense. The claim failed on all grounds.§
  • R (OM (Algeria)) v SSHD [2010] EWHC 65 (Admin)OM was a failed asylum seeker facing deportation at the end of a criminal sentence. The Secretary of State's operational guidance stated that the mentally ill are normally considered suitable for detention in only very exceptional circumstances: he was unable to justify the detention according to this policy, and therefore it was unlawful. Detention was also unlawful because the claimant had not been notified of his in-country right of appeal.§
  • R v Orchard [2010] EWCA Crim 1538The concurrent sentences of two years' imprisonment were appealed on the basis that (i) they were at the top end of the sentencing guidelines bracket and (2) the learned judge did not take sufficient account of the circumstances of the offence, namely that the appellant was at the material time a psychiatric patient. The sentences were reduced to 18 months' imprisonment.§
  • R v Hutchinson [2010] EWCA Crim 1364IPP quashed and, based on new evidence, replaced with restricted hospital order.§
  • R v Patsalosavvis [2010] EWCA Crim 1383The appellant had received a restricted hospital order for making bomb hoax calls; the restriction order was quashed.§
  • Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698Health trusts do not have the Article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a "real and immediate" risk of death. [Caution.]§
  • Hossack v Legal Services Commission [2010] EWHC 1457 (Admin)(1) The function being discharged by the LSC in attempting to obtain files for peer review in accordance with contractual obligations did not have any public law dimension, so the decisions were not amenable to judicial review. (2) In any event: there were alternative contractual remedies; there was no realistic prospect of showing that the LSC acted unlawfully; there was no longer any live issue between the parties as the files had been delivered up. (3) Consideration would be given to the making of a civil restraint order.§
  • R (Noone) v HMP Drake Hall [2010] UKSC 30In calculating release dates, the provisions of the Criminal Justice Act 1991 apply to sentences of under 12 months provided that these are not imposed concurrently or consecutively with sentences of 12 months or over, and the CJA 2003 apply to sentences of under 12 months that are imposed concurrently or consecutively with sentences of 12 months or over.§
  • R (Smith) v Secretary of State for Defence [2010] UKSC 29 — The ECHR does not apply to soldiers serving abroad.§

Transcript added (cases summarised last month)

  • R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)RB was conditionally discharged with a condition that he should not leave a care home without an escort; the MoJ sought a review on the basis that the condition constituted a deprivation of liberty and there was therefore no lawful discharge; the Regional Tribunal Judge set aside the conditional discharge, remitted the case to the First-tier Tribunal, and refused permission to appeal to the Upper Tribunal. (1) It is only appropriate for the First-tier Tribunal to exercise its set-aside powers where there has been a clear error of law; where the legal points are contentious the case should be allowed to proceed to the Upper Tribunal. (2) The RTJ's decisions were quashed/set aside, and permission was given to the MoJ to appeal against the conditional discharge.§
  • CV v South London and Maudsley NHS Foundation Trust [2010] EWHC 742 (Admin)(1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case§

Legal Aid

  • On 8/7/10 the LSC published the 2010 category definitions and related guidance. The MH category definition will be as follows: (1) Legal Help where the primary problem or issue relates to a point of English law concerning mental health, the Mental Health Act 1983 or the Mental Capacity Act 2005, including matters concerning education issues but only where based on mental impairment. (2) All proceedings before a Mental Health Tribunal (including those arising from criminal proceedings and any related proceedings before the Upper Tribunal, High Court, Court of Appeal or Supreme Court), all other proceedings under the Mental Health Act 1983 or Mental Capacity Act 2005 and any other proceedings where the primary issue is mental health, but excluding any matters falling within the Clinical Negligence or Personal Injury Categories. See Legal Aid
  • As predicted, a significant number of firms bid for the maximum possible number of matter starts in the expectation that everybody else would do likewise. As there were many more matter starts bid for than were available, everybody got a pro rata reduction. This left many firms who did not overbid with too few matter starts to be economically viable. The following statements have been issued: "MHLA: New contracting regime costs more money - yet threatens representation of the mentally unwell" (13/7/10) and "Law Society: Mental health tender – Law Society concerns" (15/7/10). See Legal Aid


  • On 26/7/10 the Secretary of State has agreed to the proposal of salaried Mental Health Judges with suitable experience being selected to chair Restricted Patients Panel cases. See Mental Health Tribunal
  • Tribunal guidance added. Guidance: References made under section 68(7) Mental Health Act 1983 (updated 22/9/10) — On 22/7/10 the Deputy Chamber President issued guidance to the effect that a reference made under s68(7), triggered by the revocation of a CTO, will be treated as having lapsed if the patient subsequently is placed on a new CTO. The guidance was amended slightly on 22/9/10. The guidance also asserts that (1) ignoring the reference means that it is treated for the purposes of s68(3)(c) as if it had never been made, so that the normal s68(2) six-month duty to refer still applies; (2) if a six-month reference is made prematurely then, even if the six months will have elapsed by the time of the hearing, the Tribunal must strike out the proceedings under Rule 8(3)(a) for lack of jurisdiction; (3) a reference made under s75(1)(a), triggered by the recall of a conditionally-discharged patient, lapses if the patient subsequently is again conditionally discharged. Insofar as it relates to the lapsing of references, this policy is unlawful: PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC).
  • "Tribunals Service: Business Plan for 2010-11" was published in March 2010. The MHT's "Primary Performance Indicators" are as follows: the percentage of Section 2 cases listed for first hearing within 7 days of receipt (statutory target) 100%; the percentage of non-restricted cases disposed of within 9 weeks of receipt 75%; the percentage of Restricted Patient cases disposed of within 17 weeks of receipt 75%. See MHT


  • On 20/7/10 the NHS Information Centre published "Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) - First report on annual data, 2009/10". See Statistics
  • On 13/7/10 the Dept of Health published a Dear Colleague letter entitled "The NHS and people lacking mental capacity". This letter was sent as a result of the under-use of DOL Safeguards and IMCA services in places. See DOLS
  • The Mental Health Alliance published "Deprivation of Liberty Safeguards: an initial review of implementation" on 13/7/10. This report is critical of the implementation of the DOL Safeguards. See DOLS#External links
  • Link added to the latest edition of MCA Update (Issue 2/2010, July 2010). Articles include: Amendments to Secondary Legislation; Registration times at OPG; Court of Protection Annual Report; Court of Protection Rules Review; IMCA Conference; DOLS Data Report; House of Lords Debate on MCA 2005. See OPG
  • On 24/6/10 the NHS Information Centre published "Quarterly analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) Quarters 1 to 4 2009/10". See Statistics
  • "Guidance on the completion of the Deprivation of Liberty Safeguards data collation sheet" updated on 22/6/10 (version 1.5). See DOLS


  • "Personality disorder: A diagnosis for inclusion: The Northern Ireland personality disorder strategy - June 2010" published in June 2010. See Northern Ireland
  • 12/07/10: NI's Department of Health, Social Services and Public Safety are consulting on "Delivering Excellence: Achieving Recovery: A Professional Framework for the Mental Health Nursing Profession in Northern Ireland (2010-2015)" until 10/9/10. See Consultations#Northern Ireland


  • On 27/07/10 the CQC published "Focused on better care: Annual Report 2009/10". See CQC
  • On 26/7/10 the DH published "Liberating the NHS: Report of the arms-length bodies review". The proposal for the CQC is: "Retain as quality inspectorate across health and social care, operating a joint licensing regime with Monitor. Host organisation for Healthwatch England. Current responsibility of assessing NHS commissioning moves to the NHS Commissioning Board. May receive functions from other organisations, e.g. HTA and HFEA". See CQC
  • On 20/7/10 the MoJ published "Court experiences of adults with mental health conditions or learning disabilities". Their summary states: "In-depth interviews were conducted with people with mental health conditions, learning disabilities and limited mental capacity, who had been victims or witnesses in criminal proceedings, or parties in civil or family law cases. Carers, court staff and other key stakeholders also took part." See Ministry of Justice
  • On 19/7/10 Tony Nicklinson, who suffers from locked-in syndrome and may want his wife to to kill him, sought leave to JR the DPP asking for guidance on whether it is always in the public interest to prosecute in cases of consensual killing and if it is not, the public interest factors applicable. See Assisted suicide, a related topic.
  • On 14/7/10 the Law Society published their response to the Law Commission review of adult social care. The Law Society are supportive of the proposed reforms and urge the government to implement the recommendations as matter of priority. See Consultations
  • The National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (NCI/NCISH) published their Annual Report for England and Wales on 7/7/10. The key findings come under the following headings: Fall in homicide by mentally ill people; Previous rise in homicides may have been caused by drug misuse; Suicide by mental health patients is falling; Homicide by in-patients; Sudden unexplained death (SUD) of in-patients. See Statistics
  • Link to article added. Guardian: Philosophers are helping doctors with dilemmas over life-and-death decisions - dated 29/6/10. See Mental health law in the media
  • Audit Commission published "Maximising resources in adult mental health" in June 2010. See Statistics