May 2010 update

Case law

  • City of Westminster v FS (2009) COP 11685959Successful appeal by Official Solicitor against rejection of application to instruct independent social worker.§
  • DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam)(1) It was in PS's best interests to undergo a hysterectomy, and removal of the fallopian tubes and ovaries, in order to treat her endometrial cancer. (2) If, given her hospital and needle phobia, sedation or force were necessary to convey her to hospital, then that would be in her best interests. (3) It would be necessary to detain her in hospital for post-operative recovery; as it was in her best interests to have the operation, it was in her best interests to recover appropriately from it. In the circumstances, the court authorised the deprivation of liberty and it was unnecessary to invoke the DOL Safeguards.§
  • DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC)(1) The Tribunal gave inadequate reasons for its decision not to discharge the patient; this decision was set aside and a re-hearing directed. (2) In principle, and in this case, it would not be fair and just to restrict the scope of an appeal to the grounds in the application. (3) Discussion of the meaning of mental disorder and its classification for the purposes of the Mental Health Act. (4) Detention is authorised by reference to the twin requirements of treatment and protection, moderated by the word “necessary”; that demanding test provides ample protection without the need for any additional consideration of proportionality. (5) Discussion of "appropriate treatment available" test in context of personality disorder and refusal of treatment.§
  • Eba, Petitioner [2010] CSOH 45The petitioner sought judicial review of the Upper Tribunal's refusal of permission to appeal against a decision of the Social Security Appeal Tribunal. (1) The UT decision in the present case is subject to review only in exceptional circumstances, i.e. on pre-Anisminic grounds (excess of jurisdiction in the narrow sense) or because there has been a breakdown of fair procedure. (2) This case was not within that restricted right of review so the petition was dismissed.§
  • 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.§
  • Re MP; LBH v GP (2009) FD08P01058(1) MP, who suffered from a learning disability and lacked capacity as to residence and contact, was removed from his mother's accommodation and conveyed by the police to a care home. On the facts, there was presently no deprivation of liberty and it was in MP's best interests to remain at the care home with the existing contact regime continuing. (2) Guidance was given, subsequently approved by the President of the Family Division and Court of Protection, for cases where a vulnerable or incapacited adult requires to be removed from premises with the help of the police.§
  • Link Lending Ltd v Bustard sub nom Link Lending Ltd v Hussein [2010] EWCA Civ 424(1) The defendant to these possession proceedings was "a person in actual occupation" for the purpose of entitlement to an overriding interest within the meaning of the Land Registration Act 2002 despite her involuntary residence in hospital under s3 MHA, as there was a sufficient degree of continuity and permanence of occupation and a persistent intention to return home when possible. (2) There is no single test but relevant factors from case law are: the degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it, and the nature of the property and personal circumstances of the person.§
  • 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.§
  • R (AC) v Berkshire West PCT [2010] EWHC 1162 (Admin)The claimant, who suffered from gender identity disorder, unsuccessfully challenged the decisions to refuse funding for breast augmentation surgery and the underlying policies.§
  • R (MJ (Angola)) v SSHD [2010] EWCA Civ 557(1) The MHA regime and the Immigration Act 1971 run in parallel in relation to a person who is both an immigrant and mentally ill, so the SSHD was entitled to decide to deport MJ notwithstanding that he was still subject to s37/41. (2) There is no express statutory limitation on the SSJ's power to discharge under the MHA; it can be used in order to facilitate deportation; the protection for the patient is that the power must be exercised rationally and without breaching his Convention rights. (3) For a settled migrant who has lawfully spent all or most of his childhood in the host country, especially where he committed the relevant offences as a juvenile, very serious reasons are required to justify expulsion; the AIT had not appreciated that very serious reasons were needed so the appeal was granted.§
  • R (SP) v SSJ [2010] EWHC 1124 (Admin)(1) In considering the lawfulness of a s47 transfer the two questions are (a) whether the decision-maker applied his mind to the statutory criteria and (b) whether the material before the decision-maker was sufficient to sustain the eventual conclusion. The court will review the decision with anxious scrutiny, as transfer at the end of a prison sentence extends detention. (2) It was clear that the decision-maker did apply her mind to the criteria. (3) One of the two medical recommendations was on the old form so did not explicitly address the new "appropriate treatment available" test. However, the medical report provided a sound foundation for the conclusion that the test was met: it was implicit in her report; there is an overlap with the "appropriate to be detained" test, which was addressed; and it was further confirmed in a letter.§
  • R v Hardy [2010] EWHC 1064 (QB)A whole life order is the normal starting point for the murder of two or more persons where each murder involves sexual or sadistic conduct. That was such a case, of the utmost gravity, in which exceptionally Hardy's early acceptance of responsibility for his victims' death, his personality disorder at the time, his eventual pleas of guilty and such remorse as he expressed through his counsel carry little weight. A lengthy finite term would not suffice and a whole life order was made.§
  • R v Hughes [2010] EWCA Crim 1026Life sentence quashed and substituted with hospital order and restriction order.§
  • R v Kluxen [2010] EWCA Crim 1081(1) Where the UK Borders Act 2007 requires (subject to exceptions, including certain detained psychiatric patients) the Secretary of State to make a deportation order in respect of a foreign criminal who has received a custodial sentence in relation to a single offence of at least 12 months, it is not appropriate for the court to recommend deportation. (2) Where because of the sentence imposed the UK Borders Act 2007 does not apply, deportation orders are appropriate only in exceptional cases. (3) As the Act applied, the recommendations for deportation were quashed.§
  • R v Osker [2010] EWCA Crim 955 — Successful appeal against restriction order.
  • R v Shulman [2010] EWCA Crim 1034(1) For the convictions the court substituted findings that the appellant was under a disability at the time of trial, namely he was unfit to plead, and that he did the acts charged against him. (2) In respect of each count a restricted hospital order was imposed, in place of the prison sentences.§
  • RM v St Andrew's Healthcare [2010] UKUT 119 (AAC) — (1) When considering the "interests of justice" limb of rule 14(2), the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to his detention. (2) On the facts, without knowing that he was being covertly medicated the patient would be unable effectively to challenge his detention; the non-disclosure decision was set aside and re-made. (3) Non-disclosure orders should not only be drafted in terms of documents, but also should deal, in a precise, clear and exhaustive way, with the information which should not be disclosed.
  • Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB) — (1) The Trust had breached Article 2 as (a) they had the requisite knowledge, actual or constructive, of a real and immediate risk to the patient's life from self harm, and (b) failed to do all that could reasonably have been expected of it to avoid or prevent that risk. (2) The patient's daugher was eligible to bring the claim as a victim under s7 HRA 1998. (3) Compensation of £10,000 was awarded.



  • LSC Update published 28/5/10: Important update on timetable for the mental health tender process. The outcome of the mental health tender process will be announced by 7/6/10 via the E-tendering portal. See Legal Aid
  • MHCS bulletin published on 29/4/10, dealing with absolute discharge and the transfer to hospital of prisoners who are close to the end of their sentence. See Ministry of Justice#MHCS documents
  • New Tribunal policy about victims published. Mental Health Tribunal Victims Policy — Click on link to view page.§
  • DH document "The Mental Capacity Act 2005 Deprivation of Liberty Safeguards – the early picture" published 25/5/10, dated April 2010. This document discusses recently-published statistics, and deals with five practice issues entitled (i) The choice of the Relevant Person’s Representative (RPR), (ii) Where a DOL is not authorised, (iii) Setting conditions and effective care planning, (iv) The involvement of the Court of Protection in proposals of “no contact” with named individuals, and (v) Where an authorisation fails to resolve a dispute. See DOLS
  • NHS Information Centre published "Social Care and Mental Health Indicators from the National Indicator Set - further analysis, final, England 2008-09" on 28/4/10. See Statistics
  • GMC published "Guidance for doctors: Treatment and care towards the end of life: Good practice in decision making" on 20/5/10. In force 1/7/10. See Mental Capacity Act 2005 Overview (external links section)
  • CQC published "What to expect if your rights are restricted under the Mental Health Act" (information for patients about about what to expect and how to complain). See CQC
  • New PPCS contact lists take effect from 1/5/10. They are not in the public domain but can be obtained from the PPCS directly. See Ministry of Justice
  • List of supervisory body contact details updated on 29/4/10. See DOLS


  • Wikimentalhealth (Mental Health Law Online) now has a more memorable internet address: Nothing else has changed.