November 2016 chronology
See November 2016 update for a thematic summary of these changes.
- 29/11/16 (2): Northern Irish DOL case (from 2014). JMCA v The Belfast Health and Social Care Trust  NICA 37,  MHLO 147 — "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in Cheshire West and Chester Council v P  UKSC 19. It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced deprivation of liberty legislation into the Mental Capacity Act 2005 providing a mechanism for the lawful restriction on or deprivation of liberty of a person such as the appellant. It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction."§
- 29/11/16 (1): Northern Irish DOL case. Re NS (Inherent jurisdiction: patient: liberty: medical treatment)  NIFam 9,  MHLO 49 — "The applications are brought to the court under the inherent jurisdiction of the High Court [in Northern Ireland]. The Trust sought a declaratory order in June to move NS from a hospital to a care home. This was opposed by MS who said that he could care for NS. However, the Trust and the Official Solicitor acting on behalf of NS felt that she would only receive the appropriate care and treatment befitting her needs in the care home. The test in relation to this has been set out by Mr Potter in a skeleton argument. He articulates this as a two-fold test, namely: (a) whether or not NS has the capacity to provide a legally valid consent to the proposed care and treatment; and (b) that the proposed care and treatment is necessary and in her best interests. The consideration of this case falls within the common law jurisdiction."§
- 28/11/16 (1): Transcript replaced. A transcript for P v A Local Authority  EWCOP 89 which includes the previously-missing page 7 is now available.
- 27/11/16 (1): Negligence case. Henderson v Dorset Healthcare University NHS Foundation Trust  EWHC 3032 (QB) — "On 25 August 2010 the claimant killed her mother. ... She pleaded not guilty of murder, but guilty of manslaughter by reason of diminished responsibility. Those pleas were accepted. ... The claimant remains in detention pursuant to the Mental Health Act. Long before the manslaughter, the claimant had been diagnosed as suffering from paranoid schizophrenia. At the time, she was under the care of the Southbourne Community Mental Health Team, within the defendant NHS Trust. An inquiry later made findings critical of the defendant's conduct. The core criticism was of a failure to act in a timely manner when alerted by a health worker, Ms Loyne, to a significant deterioration in the claimant's condition. In this unusual personal injury claim the claimant seeks damages against the defendant for personal injury in the form of psychiatric harm, and for the consequences of killing her mother. Proceedings were issued on 22 August 2013. The defendant admitted liability for negligence. Judgment on liability in negligence, with damages to be assessed, was entered by consent as long ago as 12 May 2014. By an order of 17 February 2016 Master Cook directed the trial of preliminary issues which had been proposed by the defendant. That trial is listed to take place over 3 days in the week commencing 5 December 2016. The preliminary issues concern the extent to which the claimant's claims for damages are barred by the rule of law which prohibits a person from recovering damages for the consequences of their own illegality. ... It was on Monday 14 November 2016, seven working days before the start of the preliminary issue trial window, that the claimant's solicitors filed her application. It seeks permission to amend by adding (1) claims under the Human Rights Act 1998, alleging infringement of the claimant's rights under Articles 3 and 8 of the Convention, and (2) a claim for an extension of time for bringing those claims, pursuant to s 7(5)(b) of the HRA."
- 24/11/16 (1): Discharge from DOLS. P v A Local Authority  EWCOP 89 — "This is an application by P (the Applicant) acting through his litigation friend, the Official Solicitor, for an order under section 21A of the Mental Capacity Act 2005 (MCA) discharging the standard authorisation made on 24 June 2015 which authorises a deprivation of liberty in his current accommodation (the placement)."
- 23/11/16 (1): CQC, 'Monitoring the Mental Health Act in 2015/16' (21/11/16). These are the key points from Part 1 ("The Mental Health Act in action") and Part 2 ("CQC and the Mental Health Act") respectively: (1) We have seen examples of good practice and innovative approaches to overcoming areas of concern highlighted in our previous reports. We have met thousands of staff who are compassionate and dedicated to providing the best support and treatment they possibly can for their patients. (b)Ÿ Staff had received training on the changes in the Code, or the revised policies and procedures to reflect its guidance, on less than half of wards we sampled. From 2016, we have taken these failings into account and use them to inform the ratings we issue to providers. (c)Ÿ Overall, the figures for care planning, patient involvement and discharge planning subject areas show unacceptable variation in meeting the Code’s expectations, similar to those recorded in the 2014/15 report. Some services need to address the quality of care in these areas for people detained under the MHA. (d) One in 10 records do not show evidence that patients have had their rights explained to them at the point of detention. This leads to patients not knowing what to expect, or understanding their rights under the MHA. (e) We were notified of 201 deaths of detained patients by natural causes, 46 deaths by unnatural causes and 19 yet to be determined verdicts. (2) In 2015/16: (a)Ÿ We carried out 1,349 visits, met with 4,282 patients and required 6,867 actions from providers. (b)Ÿ Our Second Opinion Appointed Doctor service carried out 14,601 visits to review patient treatment plans, and changed treatment plans in 27% of their visits. (c) We received 1,422 complaints and enquiries about the way the MHA was applied to patients. Issues identified included medication, care provided by doctors and nurses, leave arrangements and safeguarding concerns. See Care Quality Commission#CQC - Reports on MHA
- 19/11/16 (1): Inherent jurisdiction case. Re L: K v LBX  EWHC 2607 (Fam),  MHLO 47 — "In essence, K says that this court should intervene because his son lacks capacity to be able to decide contact. More recently he has made an application to remove Miss O'Connell as a litigation friend for L. ... By the order I made on 15 November 2013, I found that L had capacity to decide about residence and care and I made orders under the inherent jurisdiction regulating what contact there should be between L and his father, as I considered him to be a vulnerable adult, he needed orders being made to ensure he retained his capacity... There is no evidence that L's capacity has changed."§
- 11/11/16 (5): Case citations. In a development which may enthuse some more than others, I have at last written an extension which: (1) overcomes a software limitation which previously meant that all citations contained round brackets (square brackets are used in citations if the year is needed to identify the case or article, which is true for all neutral citation numbers); and (2) checks BAILII each time a neutral citation number appears on MHLO and automatically adds a BAILII link if the judgment is available there (links appear in blue text: the automatic external links have dotted underlining, normal external links have solid underlining, and internal links to other MHLO pages are not underlined). You can see an example of the extension at work on the R (Lee-Hirons) v SSJ  UKSC 46,  MHLO 38 page. See Help page for further details.
- 11/11/16 (4): New book. ·
- 11/11/16 (3): ECHR and tribunal criteria. JD v West London Mental Health NHS Trust  UKUT 496 (AAC) — "The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. ... The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015. ... What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf. On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue: 'to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'"
- 11/11/16 (2): Upper Tribunal guardianship case. GW v Gloucestershire County Council  UKUT 499 (AAC),  MHLO 45 — "This appeal is brought with the permission of the First-tier Tribunal against the decision of that tribunal refusing to discharge the patient from guardianship. She was first received into guardianship on 8 January 2013 and the Court of Protection first made a Standard Authorisation on 14 February 2015. The essence of the case before both the First-tier Tribunal and the Upper Tribunal is that the former was no longer necessary in view of the latter."§
- 11/11/16 (1): After-care payments and double recovery. Tinsley v Manchester City Council  EWHC 2855 (Admin) — "Thus there is a fundamental issue between the parties which they require the court to resolve, which is whether or not it is lawful for the defendant to refuse to provide after-care services to the claimant under s117 on the basis that he has no need of such provision because he is able to fund it himself from his personal injury damages. The claimant's position is that this is unlawful, and represents a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords has confirmed in Stennett that it is impermissible to do so in any circumstances. The defendant's position is that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s.117 would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA B, B and Peters v East Midlands SHA  EWCA Civ 145, B."
- 10/11/16 (1): Edge Training: MH Assessors Annual Refresher Course - London, 12/12/16 — This refresher course has been designed to meet the needs of DOLS Mental Health Assessors. It will cover key topics that cause uncertainty or dilemmas for MH Assessors and go over the main basic requirements of this challenging role. Common Mental Health Act and DOLS interface issues will also be addressed such as the law around the provision of mental health treatment under DOLS. Speaker: Aasya Mughal. Price: £180 + VAT (£216). See flyer for further information and booking details.