March 2010 update

Case law

  • Independent News and Media Ltd v A [2010] EWCA Civ 343The judge's decision (that designated representatives of the media could attend the hearing in the Court of Protection and thereafter apply to the judge for authorisation to publish information disclosed in the proceedings) was upheld, but his approach (that article 10 was not engaged when the media's application was made but rather when the court decided that there was "good reason" under Rule 93(1)(a)) was not.§
  • G v E [2010] EWHC 621 (Fam)E lacked capacity and was being deprived of his liberty at a residential unit by the local authority. They had breached his Article 5 rights by doing so without seeking a DOLS authorisation or court order, and had breached his Article 8 rights by actions including a failure properly to involve his carer. However, the court authorised continuing deprivation of liberty at the residential unit pending the final hearing as this was in his best interests. There is no threshold condition for an order under s16 depriving someone of his liberty, other than that P lacks the relevant capacity. When considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. Hearsay from an incompetent witness is admissible but no weight would be given to E's statements.§
  • MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC)The Tribunal decided that appropriate treatment was available at Rampton, or alternatively that MD was benefiting from the ward milieu; their reasons were adequate. (1) The detention was not mere containment: (a) treatment could be appropriate even without the possibility of risk reduction; (b) although if there was no prospect of the patient progressing beyond milieu therapy (to engage in psychotherapeutic work) there might come a point at which treatment was no longer appropriate, MD was not at that stage. (2) There was no practical distinction in this case between s72(1)(b)(i) and (iia) so if the tribunal dealt properly with head (iia), its reasoning covered head (ii). (3) The Tribunal was entitled to rely on the evidence, and make the findings of fact, which it did. (4) Although treatment is not defined by reference to its likely effect, as a practical matter, that will have been taken into account in deciding whether the treatment could be given for a permitted purpose. (5) In relation to experts: (a) the duty on parties to co-operate in rule 2(4) must include making their experts available to comply with any directions that are given by the tribunal; (b) the medical examination and expert panel reduce the need for parties to have their own expert evidence.§
  • R (Gill) v SSJ [2010] EWHC 364 (Admin)The Defendant's failure to offer the Claimant, who was a short-tariff lifer with learning disability, sufficient suitable offending behaviour work to give him the opportunity to demonstrate safety for release, unlawfully breached the Disability Discrimination Act 1995 and breached his public law duties.§
  • R v Osborne [2010] EWCA Crim 547It was neither necessary nor expedient in the interests of justice to admit fresh evidence that the claimant suffered from ADHD: it would not afford any ground for allowing the appeal against conviction on the basis of diminished responsibility.§
  • Dorset CC v EH [2009] EWHC 784 (Fam)The Official Solicitor's view and independent expert's opinion was that EH, an elderly lady with dementia, should be assisted to continue to live at home; notwithstanding this, the judge agreed with the local authority that it was in EH's best interests to be deprived of her liberty in residential accommodation for her own safety.§
  • Mezey v South West London and St George's Mental Health NHS Trust [2010] EWCA Civ 293Dr Mezey had admitted a conditionally-discharged patient informally to a secure ward without informing the Home Office, and granted him unescorted leave that day without personally assessing him; the patient went AWOL and killed a stranger. The Trust's formal investigation, although it found her conduct inappropriate and not in accordance with the standards of good practice, did not call into account her capability to practise. The Trust were therefore not entitled to convene a capability panel under the Maintaining High Professional Standards in the modern NHS (MHPS) framework.§
  • R (M) v Hammersmith and Fulham LBC and Sutton LBC [2010] EWHC 562 (Admin) — M moved from Hammersmith to a hostel in Sutton, but Hammersmith continued to pay; he was subsequently placed under s3 in a Sutton hospital and surrendered his tenancy; as he was resident in Sutton when admitted, Hammersmith was not responsible for future accommodation costs under s117.§
  • Re Akpabio (2010) COP 15/3/10The donor made an EPA appointing two attorneys to act jointly and severally. He included the following restriction: "I want them to act jointly on important matters concerning my welfare including any future living arrangements and on any large financial decisions such as selling my property." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary.]§
  • Key v Key [2010] EWHC 408 (Ch)Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval.§
  • Juncal v UK 32357/09 [2010] ECHR 249 — Lawfulness of detention. Statement of facts and questions to the parties lodged at court.§
  • Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265The appellant argued that a possession order should be set aside as, on the grounds of her bi-polar affective disorder, the maintanence of the "no animals" provision made it impossible for her to enjoy the premises under s24A Disability Discrimination Act 1995. (1) The prohibition against keeping animals in the premises did not make it impossible or unreasonably difficult for her to enjoy the premises. (2) In any event: (a) the "no animals" term would have had the same effect if the appellant did not have the disability of bipolar disorder; and (b) no reasonable steps the respondents should have taken but failed to take were identified, particularly as variation of the term would have lead to forfeiture by the head lessor.§
  • Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256The claimant brought proceedings, by the Official Solicitor as his litigation friend, against the Archdiocese for damages for sexual abuse in 1975/6 by Father Clonan: (1) the priest's sexual abuse of the claimant was so closely connected with his employment that it would be fair and just to hold the Archdiocese vicariously liable; (2) obiter, the Archdiocese owed a duty of care to the claimant and was negligent.§

Legal Aid

  • CLS News: Transfer of civil applications processing from Nottingham to Merseyside, published 16/3/10. From 1/4/10 all civil application processing will be transferred from Nottingham to the Merseyside regional office. See Legal Aid
  • CLS News: Mental Health tender process update, published 18/3/10 See Legal Aid
  • FAQ about mental health invitation to tender, version 6, published 17/3/10 See Legal Aid
  • FAQ about pre-qualification questionnaire, version 5, published 9/3/10 See Legal Aid
  • On 11/3/10 the LSC published version 5 of their FAQ about the mental health invitation to tender. See Legal Aid
  • CLS News: 2010 contracts tender process - 10/3/10 - The automated email this morning was incorrect: the mental health PQQ deadline is 12 noon on 31/3/10. See Legal Aid
  • CLS News: Provider payments in March - 9/3/10 - Some bills for civil representation, Crown Court litigation and very high cost case work which should have been paid on the weeks commencing 15, 22 and 29 March may be delayed. Standard Monthly Payments and other payments are unaffected. A link to the Law Society's response is also available. See Legal Aid
  • LSC Notice to Mental Health Applicant Organisations - 8/3/10 - Paragraph 7.12 (information about payments on account) of the Information For Applicants has been amended so as to accord with the 2010 Civil Contract. See Legal Aid
  • This month the LSC published a discussion paper entitled "Quality Assurance Scheme for Advocates" which sets out the proposed future minimum quality requirements for criminal advocacy services. The focus is on crime but the intention is for quality assurance schemes to apply to all areas of law. Responses by 10/5/10. See Consultations#Legal Services Commission
  • On 5/3/10 the LSC published v4 of their FAQ on the mental health invitation to tender. See Legal Aid
  • CLS News: "New schedules for April to October 2010" published on 3/3/10. How matter starts will be allocated to cover the period 1/4/10 to 13/10/10. See Legal Aid
  • On 4/3/10 the Law Society published videos explaining the tendering process and the contract terms. See Legal Aid
  • Sir Ian Magee’s review into the delivery of legal aid published today. Also a press release setting out LSC's move from being a executive non-departmental public body to becoming an executive agency. See Legal Aid
  • MoJ response to consultation on Legal Aid experts' fees published today. Also a press release announcing a project entitled "Analysis and control of expert witness fees paid in legal aid work".See Consultations#Ministry of Justice (Legal Aid: funding reforms)
  • LSC published updated FAQs on 2/3/10 about (1) mental health invitation to tender and (2) pre-qualification questionnaires. See Legal Aid



Mental Health Tribunal

  • MoJ/MHT protocol added. Marked "April 2009" but last edited in July 2009. This document sets out the responsibilities of the MoJ and MHT in the Tribunal procedure. For instance, the protocol provides that no MoJ comments are required in the following circumstances: (1) for initial reports, the MoJ have had the reports for 21 days; (2) for subsequent reports, including addendum and independent reports, the MoJ have received the reports at all. See Ministry of Justice
  • On 4/3/10 the Tribunals Service: Mental Health published their March 2010 Stakeholder Bulletin. See Mental Health Tribunal

MHA 2007

Dept of Health

  • Dept of Health guidance published: "Ordinary residence: guidance on the identification of the ordinary residence of people in need of community care services, England". Published on 5/3/10 and effective from 19/4/10. See Ordinary residence
  • Dept of Health published "Cross-border arrangements between England and Wales" on 19/3/10. These arrangements set out which ordinary residence disputes are to be determined by the Secretary of State and which are to be determined by Welsh Ministers. See Ordinary residence
  • List of proposed Dept of Health research projects added - including £250,000 on each of the following: "Research to review the quality of independent mental health advocate services", "Mental Capacity Act Best Interests Decisions - Successes and Challenges", and "Research to examine the interface between Mental Health Act & the Mental Capacity Act". See Department of Health
  • On 12/3/10 the Dept of Health published "New Horizons: Towards a shared vision for mental health: Report on responses to the consultation". See Consultations


  • On 30/3/10 the NHS Information Centre published "NHS Information Centre: Neighbourhood Statistics: Mental Health – adults accessing NHS specialist mental health services, England - Mental Health Minimum Datasets (MHMDS) annual returns 2008/09". See Statistics
  • The NHS Information Centre published "Quarterly analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) Quarters 1 to 3 2009/10" on 24/3/10. See Statistics

Criminal law

  • The Home Office are consulting on "Violent Offender Order (Information About Release or Transfer) Regulations" from 12/3/10 to 12/5/10. See Consultations
  • CPS press release "No charges following deaths of Sir Edward and Lady Downes" published on 19/3/10. See Assisted suicide

Other jurisdictions

  • Scottish Government news release published on 22/3/10: "Towards a smoke-free future". New guidance is being prepared to help mental health service providers in Scotland take the next step towards banning smoking. See Smoking
  • In March 2010 the Criminal Justice Inspection for NI published "Not a Marginal Issue: Mental Health and the criminal justice system in Northern Ireland". See Northern Ireland


  • House of Lords Hansard 29/3/10: Mental Capacity Act 2005: Question for Short Debate: To ask Her Majesty's Government what assessment they have made of the effect of the Mental Capacity Act 2005. See Mental Capacity Act 2005 Overview
  • In March 2010 the Care Quality Commission published their "Position statement and action plan for mental health 2010-2015". See CQC
  • MoJ press release "Unified courts and tribunals service" published on 24/3/10 - "The Chancellor of the Exchequer announced in the Budget today that the Ministry of Justice will be moving to bring together Her Majesty’s Courts Service and the Tribunals Service into a new, single organisation." See Ministry of Justice
  • The RCGP and RCPsych published "Pharmacy Guidance on Smoking and Mental Health" in February 2010. See Smoking
  • On 18/2/10 Ofsted published "An evaluation of the provision of mental health services for looked after young people over the age of 16 accommodated in residential settings". See Children and mental health law
  • Text of 10/3/10 MCA Update email added. Headings are: OPG Business Plan; Consultation period ends; Court of Protection Enquiry Service. See Office of the Public Guardian