May 2014 update

Case law

  • Nearest relative consultation. TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life." §
  • Medical case. Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 (COP), [2014] MHLO 22A detained patient (RC) was self-harming by cutting and had made an advance decision refusing blood transfusions. (1) RC had capacity to refuse blood transfusions and sometimes had capacity to lacerate himself. (2) The advance decision was valid and applicable. (3) The self-harming was a symptom or manifestation of mental disorder so a blood transfusion would be treatment under s63 MHA 1983. (4) Where the consequences of a decision not to impose s63 treatment may be life-threatening the Trust should apply to the High Court for declaratory relief and (just as with a decision to impose treatment) the hearing will involve a 'full merits review'. (5) It would be lawful to withhold blood transfusions despite the s63 power (indeed, the judge stated that given RC's current capacity and advance decision it would be 'an abuse of power ... even to think about imposing a blood transfusion' and that it 'would be a denial of a most basic freedom'). §
  • Lawfulness of recall. R (Lee-Hirons) v SSJ [2014] EWCA Civ 553, [2014] MHLO 23(1) A restricted patient who had been recalled argued that the Secretary of State was under a duty to provide written (not merely oral) reasons for recall, that the oral reasons given were inadequate and were not the Secretary of State’s true reasons, and that therefore the recall and consequent detention was unlawful. (2) The Court of Appeal held that: (a) Article 5(1) does not require the reasons for detention to be given immediately upon detention; (b) a fortiori, it does not require reasons to be given in writing; (c) Article 5(2) requires those reasons to be adequately and promptly given to him following detention; (d) on the facts, there had been a breach of the Secretary of State’s policy to provide reasons "as soon as possible and in any event within 72 hours" (HSG(93)20) and a breach of Article 5(2); (e) these breaches did not render unlawful what was originally a lawful recall. (3) The Court noted, in relation to the practice of the Secretary of State in relation to recall, that "It is now his practice to include in the warrant a brief reason for recall, and a reminder is given to the person executing the warrant to explain the reason at the time of execution." §
  • Statutory will case. Re Gladys Meek [2014] EWCOP 1, [2014] MHLO 32 — "This is the hearing of an application by Mr Hugh Adrian Scott Jones, the property and affairs deputy for Gladys Meek, for: (i) authority pursuant to section 18(1)(i) of the Mental Capacity Act 2005 to execute a statutory will on behalf of Mrs Meek; and (ii) consequential directions in relation to Mrs Meek’s property and affairs, and in particular: (a) an order calling in the £275,000 security bond of Mrs Meek’s two former property and affairs deputies, Mrs Janet Miller and Mrs Margaret Phyllis Johnson; and (b) a direction as to whether the deputy should refer the conduct of Mrs Miller and Mrs Johnson to the police."§
  • Best interests case. Northamptonshire Healthcare NHS Foundation Trust v ML [2014] EWCOP 2, [2014] MHLO 31 — "The Applicants seek declarations that: (i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence; (ii) it would be in ML's best interest to reside at Bestwood Hospital; (iii) it would be in ML's best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met."§
  • Capacity case. LB Redbridge v G (No 3) [2014] EWCOP 1361, [2014] MHLO 29 — "These are personal welfare proceedings in the Court of Protection. They relate to an elderly lady, G, who is 94 years old. She is represented by the Official Solicitor as her litigation friend. The proceedings were launched, in circumstances I describe below, by the London Borough of Redbridge. The two other parties to the proceedings are G's two carers, C and F. I have before me an application by Associated Newspapers Limited (ANL), publishers of the Daily Mail."§
  • Capacity case. LB Redbridge v G (No 2) [2014] EWCOP 959, [2014] MHLO 28 — "It seems to me that, weighing these matters one against the other, it is not in G's best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G's capacity to make such relationships with the press it is, in my judgment, clearly in G's best interests that I should make an interim order that she should not make such communications. ... The second matter which I have been invited to adjudicate upon is what, if any, role should be played by the Applicant authority in the interim period between now and the 2nd May hearing. ... I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers ..."§
  • LPA case. Re MRJ (Reconsideration of Order) [2014] EWCOP B15, [2014] MHLO 27 — "This is an application to reconsider an order I made on 27 September 2013: (a) suspending the applicants from acting as MRJ's attorneys under a Lasting Power of Attorney ('LPA') for property and financial affairs until further order; and (b) appointing the authorised officer of Suffolk County Council as MRJ's interim deputy with instructions to investigate the applicants' management of her finances. ... In my judgment, the revocation of the LPA is in MRJ's best interests. It is in accordance with the law, and it is a necessary and proportionate response for the prevention of crime and for the protection of MRJ's right to have her financial affairs managed competently, honestly and for her benefit."§
  • Capacity case. RB v Brighton and Hove CC [2014] EWCA Civ 561, [2014] MHLO 25This is the executive summary and conclusion from the Court of Appeal decision: "In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle and (b) to suffer serious or fatal injuries in consequence. The Council granted a standard authorisation pursuant to schedule A1 to the Mental Capacity Act 2005 ('MCA'), which enabled staff to detain RB at S House. RB brought proceedings in the Court of Protection to terminate the standard authorisation. The Court of Protection dismissed the application and RB appealed to the Court of Appeal. He contends that two preconditions for deprivation of liberty are not satisfied, namely the mental capacity requirement (set out in paragraph 15 of schedule A1) and the best interests requirement (set out in paragraph 16 of schedule A1). In my view RB's appeal should be dismissed. Because of his brain injury RB is unable to use and weigh relevant information. He does not appreciate the dangers of resuming his former chaotic lifestyle in his present condition. Therefore the mental capacity requirement is satisfied. If RB is discharged into the community, he is likely to revert to alcoholism and a chaotic lifestyle. Given his current disabilities, this is likely to lead to serious injury. Therefore confinement in S House, at least for the time being, is in RB's best interests. I reject the submission that IM v LM [2014] EWCA Civ 37M somehow governs the outcome in this case. The court must apply the provisions of the MCA, not judicial glosses on the statute." [Permission to appeal to the Supreme Court was refused, and permission to appeal to Strasbourg is being sought.]§
  • Capacity case. The Local Authority v HP [2013] EWCOP B40, [2013] MHLO 145 — "The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. ... They now accept that it is not necessary for a declaration in respect of capacity to marry. ... The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment."§

Law Society

  • Law Society Mental Health Accreditation Scheme. Two new requirements introduced in March 2014 (that "All Applicants must have undertaken a substantial amount of mental health casework for a duration of at least six months within the 12 months prior to their application" and "Applicants should have gained at least six CPD hours in each [of the three CPD years preceding submission of the application] in the subject area of mental health, or related areas such as mental capacity, community care and human rights") will not be enforced for applications received until the end of August 2014. [Three years was changed to one year in the final version.] See Law Society


  • 37 Park Square, 'COP E-lerter' (issue 12, May 2004). See Newsletters
  • John Bingham, 'Courts braced for surge in cases of elderly locked up against their will' (Telegraph, 8/5/14). In this report on a directions hearing, Munby P is reported as saying, 'I want to try to bring some measure of administrative order and proper process into play in the light of the ramifications of the recent judgment of the Supreme Court.' See Cheshire West and Chester Council v P [2014] UKSC 19

Legal Aid Agency

  • Legal Aid Agency, 'Notification of the outcome of the tender process for Contracts to deliver face-to-face Community Care and Mental Health Services in England and Wales from 1 August 2014' (12/5/14). On the week commencing 12/5/14 the LAA will begin to notify applicants of the tender outcomes for mental health and community care. Community care applicants, and mental health failures will be notified first, with other mental health applicants informed a few days later. A separate letter will be sent for each individual bid, detailing the assessment outcome, and requesting any outstanding information for tender verification before contract documentation is issued. See Legal Aid
  • Legal Aid Agency, 'Contract Management: Mental Health Guidance April 2014 v2.0' (14/4/14). According to Lawtel this document was published on 6/5/14. Detailed summary to follow. See Legal Aid#Guidance documents

Ministry of Justice

  • Ministry of Justice, 'Mental Health Casework Section Guidance - Section 17 leave' (22/4/14). Word and PDF versions available. See also: Ministry of Justice, 'Change in presumption: Informing victims of restricted mental health patients about community leave, from 22 April 2014' (letter to MHCS Stakeholders, 22/4/14). This letter begins: "As a result of a Ministerial commitment, as of 22 April 2014, victims of restricted mentally disordered offenders, who have opted in to the Victim Contact Scheme, will be told if permission for community leave is granted by the Secretary of State unless there are exceptional reasons why they should not be told." See Ministry of Justice


  • Scottish legislation. Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Amendment Regulations 2014 — Official Explanatory Note: "These Regulations amend the Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Regulations 2002 ('the principal Regulations'). Regulations 3 and 4 alter the interval, as set out in the principal Regulations, between visits with the adult and welfare guardian. Regulation 5 inserts a process whereby a local authority may consider varying arrangements for visits or ceasing visits. Variation or cessation can only take place if the adult and the guardian do not object. Where a local authority has decided to vary or cease visits the Mental Welfare Commission must be given notice of the variation or cessation in the form prescribed in the Schedule inserted into the principal Regulations. Regulations 6 and 7 alter the circumstances under the principal Regulations in which information is to be provided by a welfare guardian or person authorised under an intervention order to a local authority. Regulation 8 inserts a Schedule into the principal Regulations which prescribes the form of notice referred to in Regulation 5." In force 9/6/14§


  • Courses. Forthcoming events in the Mental Health Lawyers Association training programme are: (1) On 27/5/14 in Manchester and 12/6/14 in Leicester - Psychiatric Diagnosis (10.00am-1.00pm) and Medication & Risk (2.30pm-5.30pm); (2) On 28/5/14 in Manchester - Advocacy (10.00am-1.00pm) and Case Law (2.30pm-5.30pm); (3) On 23/6/14 in London - Case Law (1.00pm-5.00pm). All events cost £65 and attract CPD points. See MHLA website for further details and booking form.
  • COP conference. The Mental Health Lawyers Association are holding their first Court of Protection Conference in London on Friday 6/6/14 from 9.15am to 5.00pm. Speakers include: Mr Justice Charles (key-note speaker); Legal Aid Agency representatives (Q&A session); Sophy Miles (Court of Protection legal update); Alastair Pitblado; Alex Ruck Keene (Still Finding Our Feet? Reflections on Practice and Procedure in the Court of Protection); George Szmukler (A mental health law that does not discriminate against persons with a mental illness). Price: £180 (non-members); £120 (MHLA members). CPD: 6 points. See MHLA website for further details and booking form. See Events