Mind, 'Legal Newsletter' (March 2020)

Mind's legal newsletter This newsletter contains news under the following headings: (1) Comprehensive mental health service for children still a long way off; (2) Making decisions for someone with fluctuating capacity; (3) National inquiry into the use of restraint in schools; (4) CQC monitoring the Mental Health Act in 2018/2019; (5) New guidance for the Court of Protection; (6) The meaning of "long-term" in the definition of disability; (7) Veganism - Equalities and Human Rights issues in mental health settings; (8) Deloitte highlight poor mental health which costs employers billions; (9) Can an incapacitous patient still choose their solicitor? (10) New study about Community Treatment Orders

Note

The documents and cases referred to in the newsletter include:

  • Children's Commissioner's third annual report into the state of children and young people’s mental health services
  • Cheshire West And Chester Council v PWK [2019] EWCOP 57B
  • Equality and Human Rights Commission (EHRC)'s inquiry into the use of restraint in schools
  • CQC's 2018/19 MHA report
  • Serious Medical Treatment, Guidance [2020] EWCOP 2M
  • Tesco Stores Ltd v Mrs C Tennant: UKEAT/0167/19/OO
  • Costa v LACS ET case
  • Deliotte and Mind's report into monetary costs of poor mental health to UK employers
  • SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)M
  • Barkhuizen et al, 'Community treatment orders and associations with readmission rates and duration of psychiatric hospital admission: a controlled electronic case register study' BMJ Open 2020;10:e035121

Newsletter

The text is reproduced below by kind permission.

Comprehensive mental health service for children still a long way off

On 30 January 2020, Anne Longfield, the Children’s Commissioner released her third annual report into the state of children and young people’s mental health services.

In her introduction, the Commissioner estimated that England was over a decade away from a comprehensive mental health service for children and found that although there have been successive announcements for improvement to children’s mental health services, implementation plans were limited to:

  • Delivering a joined up mental health service via schools to 20% of local areas in 2024/5
  • Expand specialist services so they meet demand by 2028

The report went on to focus on three areas:

1. Specialist NHS mental services in the community for children and young people (known as CAMHS or CYPMHS)

There has been some improvement in the provision of these services and cash investment has increased by £60 million. An additional 53,000 children entered treatment in 2018/2019 with a 50% increase in the number of children accessing eating disorder services.

However, NHS spending on children paled in comparison with per head spending for adults. There was also significant variation in spending on children’s mental health services between different areas.

Waiting times to enter treatment varied from 3 weeks to 4 months. In some areas less than half of the children and young people referred for treatment actually entered it and in others 90% did.

2. Universal or low level help for children and young people – generally provided by schools, local authorities, voluntary sector and NHS

These type of services are not clearly defined but cover children with mild or low level needs which haven’t been diagnosed with a mental health problem, but are at risk of developing one. They would typically be provided in schools and are provided by a range of public bodies and charities. There is no single standard model of what they encompass and no national data is collected on these services.

The Children’s Commissioner found that the current system meant that responsibility for these lower level services were simultaneously everyone’s responsibility and nobody’s.

3. The Government’s plans to meet the mental health of all children and young people

The Children’s Commissioner estimated that in order to have a mental health service that met the needs of all children and young people, it would need to:

  • Enable 900,000 children to access specialist NHS services a year (roughly treble its current size)
  • Provide universal or low level help for 1,200,000 children and young people a year

The Commissioner said that provided the NHS continued to commit to the current level of expansion, it would be able to provide the recommended specialist services by 2028. However, her recommendation for universal/low level services would not be reached unless the Government created a clear plan for their provision and committed to funding them.

The Commissioner made a variety of recommendations including:

  • NHS England should speed up its expansion of children and young people’s mental health service
  • There should be a basic benchmark for the type of services children and young people in respect of universal and low level services
  • There needs to be much clearer information on who is providing what to children and young people in respect of universal and low level services
  • There should be clear expectations of what each organisation in a local area will provide to collectively meet the needs of children and young people

Mind’s comment:

Early intervention and prevention are crucial for reducing the number of young people needing specialist services as well as reducing the number of young people reaching crisis. These types of services are likely to be provided as part of the universal/low level services identified by the Commissioner, so we welcome their recommendations on increased funding and greater accountability and transparency on responsibility for providing these services.

For children and young people who do need crisis services, specialist multi-agency Crisis Resolution and Home Treatment Teams should be developed, to bring together clinical staff and social workers to support young people quickly and prevent hospital admissions.

Mind would like to hear from people who have used crisis or inpatient children and young people’s mental health services. If you would like to speak to us about your experiences, or your child’s experience of using those services, please contact us on legalunit@mind.org.uk.

Making decisions for someone with fluctuating capacity

A local authority asks the Court of Protection to make decisions on behalf of someone with fluctuating capacity

The Court of Protection can only make decisions for people if it is satisfied that they lack capacity. When it makes decisions on behalf of someone, it must make them in their best interests. A best interests decision involves:

  • Considering the person’s wishes and feelings,
  • Considering all the circumstances relevant to the person,
  • Considering whether the person will have capacity to make the decision in future and whether the decision can be put off in the short-term,
  • Supporting the person’s involvement in acts done for them and decisions affecting them,
  • Considering the views of your carers, family, or people who may have an interest in your welfare, or people you have appointed to act for you.

The man at the heart of this case, PWK, is 24 with autism, a mild learning disability and anxiety. When triggered, his anxiety can become so severe that it seriously interferes with his decision making and the things he say and does, which he generally comes to regret.

PWK lives in a house with one other resident and receives care from a private care agency, funded by s. 117 aftercare. PWK is subject to two to one supervision so his package of care involves a deprivation of his liberty. If PWK had capacity, he could consent to his deprivation but if not, the Court would need to authorise it on his behalf.

The people involved in PWK’s care were all in agreement that he lacked capacity but when a new doctor became involved, she questioned this and initially said that when he was calm, he had capacity to make his own decisions.

PWK’s local authority asked the Court to decide whether he lacked capacity in relation to:

  • Where he lived
  • The type of care and support he had
  • Contact with other people
  • Using social media and the Internet
  • His finances and property
  • The use and possession of a car he had under the motability scheme

Some things can be decided on a one off basis, like writing a will. Other matters require lots of ongoing and repeated decision making like deciding to continue living somewhere or to continue receiving a certain type of care package.

The Court decided that although PWK sometimes appeared to have capacity, the unpredictability of his anxiety and the enormous impact it has on his life and his decision making, meant that he wasn’t able to make ongoing and repeated decisions. The Court found that he lacked capacity in all areas and authorised the care package and deprivation of liberty as being in PWK’s best interests. The Court directed that the deprivation of liberty should be reviewed by the Court every year.

You can read the case judgment of Cheshire West And Chester Council v PWK [2019] EWCOP 57B here.

Mind’s comment:

In this decision, the Court distinguishes the ability to make one off decisions at a fixed point in time from the ability to make ongoing decisions, where decisions may often be required at short notice. In doing so, the Court was able to decide that PWK lacked capacity in all the relevant areas including where he lived and the type of care and support he received.

Making the decision in this way means that the people involved in PWK’s care are not being asked to regularly determine PWK has capacity. However, the best interests principles still require them to consider whether PWK could regain capacity in the future and to determine his past and present wishes and feelings.

National inquiry into the use of restraint in schools

The Equality and Human Rights Commission (EHRC), an independent body that promotes equality and human rights in Great Britain, have just launched an inquiry into the use of restraint in schools.

Currently the law permits schools to use reasonable force, which includes physical restraint, when it is reasonable to do so:

1. Prevent a pupil committing any offence,

2. Prevent a pupil from causing personal injury to, or damage to the property of, any person (including the pupil himself), or

3. To maintain good order

There is no legal duty on schools to record or report when they restrain pupils. There is also no duty to tell parents or caregivers when their child has been restrained. This also means there is very limited data on how often restraint is being used in schools and the reasons behind it.

The EHRC’s inquiry will look into whether primary, secondary and special needs schools in England and Wales are collecting information on the use of restraint. It will also look at how other institutions collect and use data, such as child and adolescent mental health units and young offender institutions, to explore if there is any learning from those approaches which could be applied to schools.

We’ve previously written about the limitations of guidance on reducing the need for restrictive intervention in special schools so are pleased to hear the announcement of this inquiry. You can find out more about the inquiry here.

CQC monitoring the Mental Health Act in 2018/2019

Report from the regulator Care Quality Commission (CQC) explaining how the Mental Health Act (MHA) is being used.

The Care Quality Commission (CQC) is the independent regulator of health and social care in England. They also monitor how the Mental Health Act (MHA) is used and publish their annual report.

Detentions under the MHA continue to rise with 49,998 new detentions recorded for 2018/19. However, the overall national trend will be higher as not all providers submitted data and some submitted incomplete data.

Human rights principles are not consistently being applied to the care and treatment of detained patients and more needs to be done to understand and address issues of inequality, especially for BAME groups. New statistics for detention show that Black or Black British people are still over four times higher than for White British people.

CTOs continue to be higher for Black/Black British people = 53.8 uses per 100,000 population compared to 6.4 uses per 100,000 population for White British people.

There is a lack of availability of beds both in the community and in hospitals. Coroners made the CQC aware of at least seven deaths of people who were assessed as requiring admission, but for whom no mental health bed was available. There is ongoing use of police cells as places of safety due to lack of beds.

There is continued improvement in the number of people being given information about their rights, which was evidenced via patient records:

  • Good evidence of accessible and appropriate info in 91% of all records
  • Initial discussion about rights in 87% of all records
  • Repeated discussions about rights in 80% of all records.

But, there are still people who don’t understand their legal rights as they’re not having meaningful discussions or being given information in a format they can understand.

94% of the wards visited were locked on the days of the CQC visit, including wards where patients may be admitted on an informal basis. The CQC raised concerns in 7% of visits about whether informal patients were free to leave the ward at will. They stated that staff may be concerned about how safe it is to allow informal patients to move freely around the hospital grounds or to leave the hospital. As a result, they may be reluctant to fully explain their rights to them or feel like they must take a risk averse approach and use the section 5 holding powers under the MHA to stop the person leaving when they request to do so.

There are ongoing concerns about patients’ involvement in care planning. The CQC recommended that patient involvement was absent or needed to improve in 37% of care plans that they reviewed. 19% of care plans showed insufficient or no evidence that a person’s diverse needs were considered, and 17% showed insufficient or no evidence that the service had considered the minimum restriction on a patient’s liberty. In 11% of care plans there was no evidence of patient involvement at all.

The CQC also highlighted the complexity between the MHA, the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards (DOLS) work. It highlights that it is very difficult for people to be clear on what safeguards and rights they have under each of these frameworks. It also calls for the laws to be updated and provide clear guidance on how they interact.

Mind’s comment:

Once again, the quality of the data is an issue. This is despite it being mandatory for NHS funded care providers, including independent sector providers, to submit data to Mental Health Services Data Set (MHSDS). We hope that the Mental Health Units (Use of Force) Act will come into force soon and we are pleased to see that the Mental Health Admissions (Data) Bill will have its second reading in October. This is a Private Members Bill introduced by Dr Ben Spencer to make provision for the collection and publication of statistics on mental health hospital admissions; and for connected purposes. We hope that this will go some way in improving the quality of the data.

Many of the issues highlighted in the CQC report were flagged in the Independent Review of the Mental Health Act. This report was published in December 2018 and we are still waiting for the government’s response to it in the form of the White Paper, which was promised last year. We will be pushing for them to adopt the recommendations as a whole and we will continue to hold the UK Government to account on its promises to reform mental health care.

New guidance for the Court of Protection

Court of Protection guidance for decisions relating to medical treatment.

The Vice President of the Court of Protection, the Honourable Mr Justice Hayden, has issued guidance to help providers and commissioners of clinical and caring services decide whether to bring an application to the Court of Protection in cases where a decision relates to medical treatment.

The procedure is currently being reviewed within the revised Code of Practice for the Mental Capacity Act which will be subject to public consultation and Parliamentary scrutiny. This guidance is only valid until the revised Code is published for which we don’t have any timescales.

The guidance sets out situations where consideration should be given to bringing an application to court. Having concluded the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person's welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

(not an exhaustive list)

Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.

If the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must always be made. This includes the withdrawal or withholding of clinically assisted nutrition and hydration.

If the case involves the serious interference with the person's rights under the ECHR, it is "highly probable” that an application should be made to the Court of Protection. This will be even where there is agreement between all those with an interest in the person's welfare. Examples of cases could include:

  • where a medical procedure or treatment is for the primary purpose of sterilisation;
  • where a medical procedure is proposed to be performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cells, tissue or bodily fluid to another person;
  • a procedure for the covert insertion of a contraceptive device or other means of contraception;
  • where it is proposed that an experimental or innovative treatment is to be carried out;
  • a case involving a significant ethical question in an untested or controversial area of medicine.

If force or restraint is required an application to court may also be required. If the force or restraint amounts to a deprivation of liberty then the authority of the court will be required to make this deprivation of liberty lawful.

Mind's comment:

Mind welcomes the clarity that this guidance provides not just for providers and commissioners of clinical and caring services but also for the families and carers trying to navigate the system.

Mind responded to the call for evidence relating to the MCA Code last year and we await the public consultation.

In addition to this guidance about when to make an application to court, we would like to see guidance on serious medical treatment in situations which don’t meet the criteria for court applications which isn’t addressed in the current Code.

The guidance can be found by clicking the link here: [2020] EWCOP 2M.

The meaning of "long-term" in the definition of disability

A Discrimination case shows why the Equality Act is failing people with mental health problems.

Readers of this newsletter will know that we at Mind have a problem with the definition of disability in the Equality Act 2010 (“EqA”). We wrote about it back in September 2019 when we outlined the work Mind was doing on discrimination in the workplace. Well, this February a case was decided in the Employment Appeal Tribunal (“EAT”) that illustrates some of the concerns we were articulating last year.

Mrs. Tennant was employed by Tesco as a checkout manager at a store. She began to experience anxiety and depression in September 2016. She alleged she had been discriminated against because of her disability at several points during the course of 2016 and 2017. She brought a claim to an Employment Tribunal (“ET”) in September 2017. At the time of the ET hearing her depression had lasted well over a year from September 2016.

The EqA defines disability as a physical or mental impairment that “has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities”. “Long-term” is further defined in a schedule to the EqA which says:-

“2(1) The effect of an impairment is long-term if—

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected.”

There are several things to note. First, there Mrs. Tennant put forward no evidence from between September 2016 and 2017 about the likelihood of how long her mental health problems would last. Second, when assessing whether someone is disabled, the law says that you judge this at the time of the alleged discrimination – so in this case it was at points during 2016 and 2017. The ET looked at the fact that her depression had lasted for well over 12 months from September 2016 and concluded that she was therefore disabled at the points in 2016 and 2017 when she was discriminated against.

The EAT, however, found that this was an error or law. At each of the points in time in 2016 and 2017 when she said that she had been discriminated against it could not be said that her depression had lasted for 12 months. She also had no evidence that at those points in time it was likely that her depression would last for 12 months. So, despite the fact that her depression did in fact last for 12 months and in hindsight was clearly long-term, because you judge whether someone is disabled at the point at which they say they have experienced discrimination, her impairment was not long term according to the law.

It seems an absurdity that the law finds what was clearly a long-term condition not a long-term condition. We also think that this law probably disadvantages people with mental rather than physical problems. The reason is this: if your mental health problem hasn’t lasted 12 months at the time you feel you have been discriminated against you have to show that it is likely to last 12 months. But people with mental health problems, understandably, often do not want to think of their problems as being likely to last for extended periods into the future. Also, the medical professionals who treat them will often focus on their recovery and will not want to encourage the belief in their patient that their problems will extend for long periods. Even if people are able to think of their problems as likely to continue for long periods, there are actually strong incentives for them to downplay the possibility of a long-term impairment for the sake of their future employment prospects. People want to be telling their employers that they are fit for work as soon as possible rather than having problems extending into the future. For all these reasons, it is entirely unsurprising that Mrs. Tennant did not produce any evidence that her depression was, at the points in time when she claims she was discriminated against, likely to last for 12 months.

An appeal seems unlikely in the Tennant case, so we are stuck with the law as it stands, which serves people with mental health problems very poorly. Mind will continue to campaign for the government to stick to the pledge made by Theresa May’s government to reform the Equality Act so that it works better for people with mental health problems.

If you are involved in a case which concerns the definition of disability under the EqA, please get in touch at legalunit@mind.org.uk to discuss whether we are able to support your case in any way.

Veganism - Equalities and Human Rights issues in mental health settings

What rights might vegans have, especially in eating disorder units?

Many will have read or heard about the recent Employment Tribunal (“ET”) case which held that ethical veganism could amount to a belief attracting protection under the Equality Act 2010 (“EqA”). So, how might this case be of interest to mental health professionals or others with an interest in the area?

Mr Jordi Casamitjana brought a claim in the Norwich ET that his employer, the League Against Cruel Sports (“LACS”), had discriminated against him on grounds of his ethical veganism. Under the EqA it is unlawful to discriminate against someone because of their “religion or belief”. Belief means “any religious of philosophical belief” and case law has established several factors which need to be considered for a belief to be protected. The belief must be: -

  • Genuinely held
  • A belief rather than a viewpoint
  • Be weighty and substantial
  • Attain a certain level of cogency, cohesion and importance
  • Worthy of respect in a democratic society and be compatible with human dignity

LACS did not contest that Mr Casamitjana’s ethical veganism was a belief protected under the EqA, but the ET held a preliminary hearing simply to consider whether it was. The ET heard substantial evidence of Mr Casamitjana’s beliefs and how they impacted on his lifestyle. In short, he is not simply a dietary vegan, but his veganism dictates his choice of all products and services he consumes (clothing, cosmetics, restaurants and hotels, financial products, transport etc.). It also influences his choice of career, his politics and his choice of housemates and even the people he dates.

The ET found it “easy to conclude that there is overwhelming evidence …that ethical veganism is capable of being a philosophical belief and thus a protected characteristic under the Equality Act 2010”.

The press hailed this a “landmark case”, but it has to be said that most journalists have more of an eye for the catchy story than legal accuracy. The Casamitjana case, being a “first instance” decision (i.e. not by a higher court) is not binding on any other court or tribunal. The ET also did not lay down the principle that veganism amounts to a protected characteristic under the EqA. It found that Mr Casamitjana’s ethical veganism was protected and it did so by examining what his beliefs were and how they influenced his lifestyle.

Nonetheless, the case is of some importance. The judgment is a measured and well-reasoned one that would probably be put before any future court or tribunal considering the same issue, even though the judgment would not bind that court. Also, the press attention the case has gathered will no doubt encourage other vegans to explore asserting their rights. Indeed, Mind’s legal line has had some calls from vegans in eating disorder units who felt their rights were not being respected.

This is an area where equalities and human rights arguments might be deployed by patients. Medical providers are “service providers” and thus subject to the EqA. Also Article 9 of the European Convention on Human Rights protects the right to freedom of thought, conscience and religion, though this right can be limited in certain circumstances including in the interests of health. Case law has established that veganism can fall within Article 9.

There is anecdotal evidence that a significant proportion of patients requiring in-patient treatment for their eating disorder had been following a vegan diet on admission. However, as the Consensus statement for treating vegan patients with eating disorders produced by The Royal College of Psychiatrists, The British Dietetic Association and BEAT points out, there are vegans whose “adoption of a vegan diet coinciding with the development of anorexia nervosa could be part of the disorder, rather than a reflection of the individual’s vegan beliefs”.

If a vegan patient feels that his or her rights are not being respected, the first point to consider is whether their veganism is of a type to attract protection. This might involve complex nuanced judgments, but, simplistically, if their veganism permeates their lifestyle then there is a good chance that it will be protected under the EqA and the Human Rights Act 1998. If the patient’s veganism appears to be part of their eating disorder it is unlikely that it would be protected.

Where a vegan patient’s beliefs do attract protection then what might amount to discrimination? In legal terms the offering of a feeding regime that is not vegan could amount to a “provision, criterion or practice” that would be “indirect discrimination” under the EqA unless it was justified. Something is justified if it is a “proportionate means of achieving a legitimate aim”. No doubt the medical provider would argue that the therapeutic aim behind the feeding regime was legitimate, and this would be accepted by any court in the land. The real question is whether the action is proportionate. Had there been a proper balancing of the need to adopt a particular regime with the legitimate rights of the patient to express his or her belief? If, for example a feeding regime was proposed for life saving treatment, and there was good clinical evidence that this was the most effective, and that the alternatives were not viable then there is a strong justification argument. If there is no clear therapeutic reason for the particular product and other alternatives were as effective, then it is a weak one. Human rights arguments under Article 9 will involve a similar balancing exercise.

With more and more people adopting a vegan lifestyle, and with awareness of the Casamitjana case, it is likely that more and more people will be raising challenges to mental health treatment regimes which they see as conflicting with their beliefs. A likely “hotspot” will be in the treatment of eating disorders, but this may have an even wider impact.

Deloitte highlight poor mental health which costs employers billions

This is the second time that Deloitte's have highlighted the false economy of not promoting good mental health.

One of the biggest accounting organisations in the world, Delloite, in collaboration with Mind has set out the monetary costs of poor mental health to UK employers of up to £45 million. The report argues that if employers spend on their employees’ mental welfare, for every £1 invested they will receive back £5 in reduced absenteeism and staff turnover.

Whether enough employers are taking this message on board is questionable, this is not the first report the accounting giants have published. They cite that the cost of poor mental health has risen by 16% (some £6billion) since 2016. The rise in mental distress is attributed to toxic work cultures of ‘presenteeism’, this means not only working long and unproductive hours but also working whilst unwell or not taking adequate time to recover from sickness, with Deloitte firmly linking the fall in sickness absence with a rise in poor mental health.

A hard look is also taken at how advances in technology are taking a toll on our stress levels by enabling an ‘always on’ work mode that contributes to burn out.

There is positive news in the report with the researchers finding that there was a shift in attitudes in the bigger firms with employees able to talk more openly about their Mental Health also concluding that there was more support available.

However, of great concern are the problems we are building up for the workforce of the future with the burden of poor mental health increasingly falling, and disproportionately so, on our young people. Using a measurement of pounds and pence costs per worker increase up to the age group of 30-39 peaking at £2,068 per person and declines down to £609 per person for those in the 60+ age bracket.

The public sector seems to fare better than the private sector shouldering mental costs of £9.0-£9.0bn respectively.

Overall there is an increase in workers succumbing to the downfalls of the ‘gig economy’ with little employer support, financial uncertainty and with little concern for worker wellbeing. An issue that we have raised at Mind for some time.

Paul Farmer, Chief Executive of Mind said, ‘Smart, forward-thinking employers are investing in staff well-being, and those who tend to do so save money in the long run. As presenteeism costs three time more than sick leave, we need to look at supporting employers, so their staff feel able to take time off when they are unwell. The government must also play its part by improving the definition of disability under the Equality Act, so that more people can benefit from it’s rights and protections, as well as increasing the amount of statutory sick pay when they are off sick.’

Mind’s comment:

Some good points but a long way to go to build a culture of mentally healthy workplaces.

Can an incapacitous patient still choose their solicitor?

Judge finds that patients feelings should always be taken into account.

SB was a 43-year old man admitted to the Maudsley hospital under S 3 of the MHA 1983. He had been administered 22 sessions of ECT, but had not appealed to a Tribunal by the end of his first period of detention. Consequently, the detaining hospital made a referral to the Mental Health Tribunal after the first six months of treatment had, elapsed and added an application to appoint a solicitor for SB under rule 11b on the grounds he lacked litigation capacity. The Tribunal granted the application and appointed ADJ Law Solicitors to act for SB via standard form MH6b on the 7th April 2019.

Three weeks later SB’s mother (and nearest relative) helped him call the Tribunal to say that he wished Campbell-Taylor Solicitors, who had represented him previously, to represent him on this occasion. The Tribunal, in turn asked ADJ if they objected to a transfer of authority to Campbell-Taylor and they did, on the grounds that their appointment was under rule 11(b) and in their view, SB still lacked capacity.

Campbell-Taylor persisted and sent in a transfer of authority form signed by SB but also counter signed by his mother. The Tribunal adopted ADJ Law’s grounds of refusing transfer and stated if there was a question of SB regaining capacity then a new capacity statement would be needed. As the tribunal was now imminent, Campbell-Taylor did not pursue the matter further, SB was not discharged at the Tribunal, but not long afterwards was discharged home to live with his mother.

However, Campbell-Taylor went on and appealed the decision stating that it was unlawful for the Tribunal to have refused to have rescinded the appointment on the grounds that the rule 11b appointed solicitor objected. They pointed out that they had represented the clients previously and on their visit to him had applied the lower test for capacity to instruct a solicitor in VS v St Andrew’s Healthcare [2018] UKUT 250 (AAC)M and as a result considered him capacitous. They also cited that both he and his Mother and Nearest Relative, and attorney for the purposes of s4(7) of the Mental Capacity Act (MCA) 2005 had signed the change of solicitor form and a failure to take into account the ‘presumption of capacity in s 1(2) of the MCA 2005.

Judge Gledhill granted permission to appeal and after the document disclosure, another ground of appeal was formulated, and accepted. This arose from the original capacity report furnished by the detaining authority on the prescribed form MH3 and form MH6b a notification of the Tribunal’s decision based on judicial authority delegated to Tribunal officers.

The appeal was allowed in part. Namely that the Form MH6b was defective as it did not contain the notice of the 14 day time-limit to challenge the Rule 11b appointment and this meant such an appointment was unlawful.

  • Further that the failure to notify the patient of a right of review under Rule 4(3) of the Tribunal rules was material and indicated a lack of due process.
  • There was a failure to accord the proper weight to the presumption of capacity in s 1(2) of the MCA 2005.
  • The Tribunal had failed to apply the lower test of capacity in either R on the Application of H v SSH UKHL or VS.
  • The Tribunal’s grounds for refusing to accede to the patient’s, that the rule 11(b) solicitor objected to the appointment was unlawful. Judge Weikley held that the Tribunal should have considered the patient’s wishes and feelings and those of his mother and nearest relative and the Tribunal should have applied one of its’ overriding objectives in Rule 2(2)(c) in ensuring as far as practicable that the parties are able to participate fully in the proceedings.
  • Therefore the Tribunal’s hearing had been fundamentally unfair and therefore unlawful.

The Tribunal did not order discharge or remit the matter to another Tribunal as the SB had now been discharged and therefore the matter was academic.

This will be welcome news for patients and nearest relatives who should now have more of a say in Rule 11(b). It has long been recognised in the Court of Protection that those who may lack capacity to manage their affairs and need a Deputy, may nonetheless retain capacity to choose the Deputy’s identity or their wishes and feelings in regard to this, should in any event be taken into account.

This will also be of some relief to those who practice in the Mental Health Tribunal who have faced delegated decisions from tribunal caseworkers who may not have sufficient legal training to properly consider. This case will highlight such situations and lead to better training and better decision making.

You can read the full judgement here: SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)M

New study about Community Treatment Orders

Study finds that Community Treatment Orders do not reduce hospital readmission rates or stays

People who are in hospital on certain sections of the Mental Health Act can be discharged from hospital onto a Community Treatment Order (CTO). This means being subject to recall to hospital and abiding by conditions in the community. They are perceived as coercive, discriminatory and intrusive to those subject to them. Black or Black British people are over eight times more likely than White people to be made the subject of CTOs.

This is the first, large, observational study with a control group about CTOs in England and Wales which was funded by the National Institute for Health Research (NIHR) Maudsley Biomedical Research Centre.

This study found that CTOs are associated with an increased risk of readmission as well as increased time spent in psychiatric hospitals, contrary to results from previous uncontrolled studies.

Researchers compared 830 patients who were discharged on a CTO with 3,659 patients discharged to voluntary community mental healthcare. Results showed that in the two years following discharge from psychiatric hospital, patients on CTOs spent, on average, 17.3 additional days in hospital and had a 60% greater rate of readmission compared to patients receiving voluntary care. The study also found that the average CTO lasted three years, more than four times longer than initial government projections of nine months.

Mind’s comment:

Mind welcomes the new research which strengthens findings of previous studies like the OCTET report. Given people’s experience of CTOs, the strong sense of racial discrimination and the research evidence that they are ineffective, we have been calling for CTOs to be repealed.

Enabling people to be discharged from hospital and supporting their ongoing recovery would be better achieved by mandating the provision of community support through statutory, co-produced aftercare and crisis plans, with sufficient resources to be effective, and using other powers where additional oversight or community testing is necessary. Section 17 can be used for short term testing in the community, subject to regular reviews, while the Mental Capacity Act exists to authorise longer term arrangements for those who lack capacity to make decisions about their care and treatment.

We were disappointed with the recommendations about CTOs in the Independent Review of the Mental Health Act and we do not think that they will achieve its objective of halving the numbers of CTOs and would like a commitment for a further review.

The study can be found here

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Type: Newsletter🔍

Title: Legal Newsletter

Author: Mind🔍

Date: 11/3/20🔍

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