October 2011 update

Case summaries

  • Re GM; FP v GM and A Health Board [2011] EWHC 2778 (COP)This was an application for a DOLS standard authorisation to be discharged, thus permitting GM, on discharge from hospital, to return to his home rather than be sent to an EMI home. (1) For there to be an order preventing GM from returning home (in practice, permanently) it would have to be 'so contrary to his interests to return that the court must not even contemplate seriously a placement' at home. (2) Factors in favour of a return home included: the 'emotional dimension'; GM's short life expectancy, and the fact that a move to EMI accommodation would be permanent; and Article 8 considerations. (3) Factors against were: the probability of a lesser quality of physical care at home; the risk of risk of breakdown and conflict; and the risk of deterioration, for instance in sleep pattern. (4) The DOLS authorisation was discharged. (5) As GM was ready for discharge from hospital, and the decision would have permanent effect, Hedley J decided the issue in one day in January instead of waiting for a five-day hearing in May (before a DJ) or October (before a High Court judge). He commented that 'it seems to me that it is absolutely essential that the Court of Protection establishes a practice that these interim cases must be dealt with quickly, and, having regard to the demands on the system generally, proportionately, that is to say almost certainly without detailed oral evidence.' §
  • R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB)The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; if even this procedure is too slow then the police can be asked to detain under s136 (an A&E department being a place to which the public have access): there is no lacuna in the MHA. There is unlikely to be unlawful detention or breach of Article 5 if there is no undue delay during the processing of an application under ss2 or 4 MHA 1983. (3) On the facts, as the detention was purportedly under s5 MCA and the application for detention under s2 MHA was delayed, the claimant had been detained in hospital without lawful justification, and deprived of her liberty in breach of Article 5; she was entitled to damages.§.
  • AG's ref (no 54 of 2011) [2011] EWCA Crim 2276(1) The restricted hospital order was quashed and a six-year IPP imposed. The judge had failed to take into account the differences between the two regimes: (a) release on licence from IPP depends on lack of danger for any reason, whereas release from hospital order depends on lack of danger for medical reasons only; (b) an IPP licence can be revoked for danger resulting from crime, whereas a conditional discharge can only be revoked if the medical condition relapses. It was essential in this case that the power to recall upon criminal relapse was available. (2) The s45A hybrid order regime would have been perfect in this case, but it is only available to those subject to imprisonment; however, the defendant was under 21 and imprisonment is only available to those 21 or over (the court recommended that this be reconsidered). (3) The notional determinate term of 12 years was not unduly lenient. (4) The hearing was adjourned in order to allow for an immediate s47 transfer direction to be made upon the imposition of the IPP sentence.§
  • Re S; D v R (the deputy of S) [2010] EWHC 3748 (COP)Costs judgment in Court of Protection: (1) up to the December 2009 hearing, because the proceedings had been necessary, the normal rule that costs were to be paid by S's estate was to apply, but (2) from that point onwards, because of her conduct of proceedings, Mrs D was to bear her own costs, plus 75% of the Deputy's costs on the standard (not indemnity) basis.§
  • Re Jarman (2011) COP 8/8/11The donor made an EPA appointing attorneys to act jointly and severally. He included the following restriction: "While both of my Attorneys are alive and of capacity they are to act jointly and a certificate from a practising doctor will be sufficient evidence of capacity of either of my Attorneys." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.]§
  • S v Estonia 17779/08 [2011] ECHR 1511Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of Article 5(1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded.§

Case transcripts only

  • LG v DK [2011] EWHC 2453 (COP) — Application to Court of Protection to decide whether it is in DK's best interests to provide DNA sample for paternity test. [Summary to follow.]§


  • Welsh legislation. The Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011, the Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011, and accompanying Explanatory Memoranda and Regulatory Impact Assessments, have been approved. See Mental Health (Wales) Measure 2010 (text of 26/10/11 circular email)

Other documents

  • The MoJ website has a new 'mentally disordered offenders' area, including a new contact list for the MH Casework Section. See Ministry of Justice
  • The Small Places Blog, 'Mental Capacity Act and Tenancy: An open question' (7/10/11). This article, which appeared originally on the Nearly Legal housing law blog, argues that Wychavon was wrongly decided because 'a contract with someone lacking capacity to enter such a contract is voidable (not void) by the person lacking capacity if the other party was aware of their lack of capacity'. See Wychavon District Council v EM (HB) [2011] UKUT 144 (AAC)(1) The tenant lacked capacity so the tenancy contract was not valid, which meant that there was no liability to pay rent and therefore no entitlement to Housing Benefit. (2) The contract was void, not voidable, because the landlord knew the tenant lacked sufficient mental capacity to reach such an agreement. [Caution.]§
  • The Supreme Court will hear an appeal in the Rabone case on 7/11/11. Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698Health trusts do not have the Article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a "real and immediate" risk of death. [Caution.]§
  • Law Society, 'Lasting powers of attorney: Practice note' (updated 6/10/11). 'The Law Society has produced a practice note to assist solicitors in advising clients wishing to draw up an LPA, as well as solicitors who are acting as an attorney under an LPA. The practice note also covers ongoing arrangements for Enduring Powers of Attorney.' See LPA
  • The Office of the Public Guardian has published revised forms for applying to register an enduring or lasting power of attorney to reflect recent fee changes and website updates. The LPA guidance has also been amended to clarify who can act as a certificate provider. (Source: Law Society update email 6/10/11). See LPA
  • Ajit Shah et al, 'Deprivation of Liberty Safeguards in England: implementation costs' (2011) 199 BJP 232 (subscription only). 'Results: The estimated average cost of a single DoLS assessment was £1277. Conclusions: The estimated average cost of a single DoLS assessment was significantly higher than the £600 estimated by the government. However, the allocated budget, based on 20 000 estimated DoLS assessments in the first year of its implementation, is likely to be adequate because a significantly lower number of assessments (only 5200) were conducted in the first 9 months after its implementation.' Related press article: Mithran Samuels, 'Deprivation of liberty safeguard cases cost double government's estimates' (Community Care, 30/9/11). See DOLS#External links
  • Ruth Cairns et al, 'Judgements about deprivation of liberty made by various professionals: comparison study' (2011) 35 Psychiatrist 344 (subscription only). 'Aims and method: A group of lawyers, psychiatrists, best interest assessors and independent mental capacity advocates were asked to make binary judgements about whether real-life situations in 12 vignettes amounted to deprivation of liberty. Kappa coefficients were calculated to describe the level of agreement within each professional group and for the total group of professionals. Results: There was total agreement between all professionals about deprivation of liberty in only 1 of the 12 cases. The overall level of agreement for judgements made by all professionals was ‘slight’ (κ=0.16, P<0.01). Clinical implications: There are practical difficulties involved in making reliable deprivation of liberty judgements within the Deprivation of Liberty Safeguards (DoLS) legislation. A clear interpretation of deprivation of liberty is necessary to facilitate professionals’ decision-making in this area.' Related press article: Laura Donnelly, 'Dementia patients let down despite promises' (Telegraph, 1/10/11). See DOLS#External links