November 2008 update

November 2008 summary

The following materials were added during November 2008.

NB This is a work in progress: until the end of November please see Update.

Bookshop

• Amazon Bookshop (with selected mental health law books) added, and some links to recommended books added to articles.

Changes made on 3/11/08

• The majority of changes made by the Mental Health Act 2007 took effect on 3/11/08. See Mental Health Act 2007 Overview for details of the amendments.
• The changes to the Mental Health Review Tribunal by the Tribunals, Courts and Enforcement Act 2007 also took effect on 3/11/08
• The only MHA 2007 changes outstanding are:

• New Independent Mental Health Advocate scheme (April 2009)
• New requirements for age-appropriate accommodation for children (April 2010)
• Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009)
• Organisation of Mental Health Review Tribunal changed 3/11/08 (partially) - some changes have been made but the rest have been overtaken by the TCEA 2007

• The following documents have been updated and/or issued (usually separately for England and Wales, in an enormous duplication of effort):

• Mental Health Act 1983 Codes of Practice
• Mental Health Regulations and various other items of secondary legislation
• Mental Health Act 1983 Statutory Forms
• Reference Guide to the Mental Health Act 1983
• Mental Health Act 1983 information leaflets
• Mental Health Act Commission Guidance Notes and forms.

• Some secondary legislation under the Mental Capacity Act 2005 also came into force... See Mental Capacity Act 2005 Overview#Deprivation of Liberty

Primary legislation added (new and old)

• UK Borders Act 2007 — This Act is relevant to mental health in that it affects whether the deportation of a foreign criminal detained under the Mental Health Act 1983 is conducive to the public good.
• Immigration Act 1971 — The Immigration Act 1971 regulates which foreigners can and cannot stay in the United Kingdom, makes provision for voluntary and compulsory repatriation, etc. Patients subject to the Mental Health Act 1983 may be deported under the Immigration Act or s86 of the 1983 Act as appropriate. The UK Borders Act 2007 imposes a duty to deport under the 1971 Act certain foreign criminals.
• Family Law Act 1996 — From 25/11/08, s1 Forced Marriage (Civil Protection) Act 2007 inserts s64L, which applies MHA 1983 s35, into the Family Law Act 1996.
• Forced Marriage (Civil Protection) Act 2007‎ —

From 25/11/08, s1 of this Act inserts s64L, which applies MHA 1983 s35, into the Family Law Act 1996.

LEGISLATION DATABASE

Full text: Legislation.gov.uk

Type: UK Public General Act🔍

Year: 2007🔍

Number: 20

Subject: Legislation amending MHA 1983🔍

What links here:

• Archive of monthly updates

 §

• Legal Services Act 2007‎ —

When in force, this Act amends the MHA 1983, mainly by replacing references to "counsel" and "solicitor" with "authorised person" (and defining that term).

Amendments

Sch 21 paras 53-60 amend s35, s36, s38, s52, s54, s55 and s78. The changes replace references to "counsel" and "solicitor" with "authorised person" and define that type of person as "a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act".

LEGISLATION DATABASE

Full text: Legislation.gov.uk

Type: UK Public General Act🔍

Year: 2007🔍

Number: 29

Subject: Legislation amending MHA 1983🔍

What links here:

• Archive of monthly updates

 §

Secondary legislation etc - Tribunal

• Appeals from the Upper Tribunal to the Court of Appeal Order 2008 — This Order, which came into force on 3/11/08, states that permission to appeal to the Court of Appeal shall not be granted unless the Upper Tribunal (or, where the Upper Tribunal refuses permission, the relevant appellate court) considers that (a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal.
• First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 — This order, which came into force on 3/11/08, makes provision as to the number and type of members on a Tribunal panel, and provides for majority or unanimous decisions.
• Practice Direction: Health Education and Social Care Chamber: Mental Health Cases
• Practice Direction: Use of the Welsh language in Tribunals in Wales
• Practice Direction: Transcripts of Proceedings. See Tribunal Rules for the last two Practice Directions.

Secondary legislation - Other

• Mental Health Act 2007 (Consequential Amendments) Order 2008 — This Order amends Acts and SIs as a consequence of the Mental Health Act 2007.
• Mental Health Act 2007 (Commencement No. 9) Order 2008 — This brings the remainder of MHA 2007 s39 & sch 5 (cross border arrangements), and s55 & sch 11 pt 7 (cross border arrangements), into force on 28/10/08. The affected MHA 1983 sections are s88 and s146.
• Social Security (Hospital In-Patients) Regulations 2005 — These regulations, among other things, (a) abolish the down-rating of in-patient benefits after 52 weeks, and (b) deprive restricted transferred prisoners (those under s47/49, s45A (while the limitation direction continues in force), and similar Scottish provisions) of state benefits. In force since 2006.

Other documents

• Second edition of DH's Mental Capacity Act 2005 Deprivation of Liberty Safeguards newsletter
• Updated list of current organisations providing Independent Mental Capacity Advocate service
• New Tribunal forms for First-tier and Upper Tribunals
• Draft Deprivation of Liberty Safeguards Standard Forms for managing authorities and supervisory bodies in England
• Tribunal document entitled "The new unified Tribunals system"... See Tribunal Rules
• Frequently Asked Questions about the Mental Health Act 2007 published by DH... See Mental Health Act 2007 Overview#Resources

New cases

• R (IT) v SSJ (2008) EWHC 1707 — Click on link to view page.§
• RD v SSWP [2008] EWHC 2635 (Admin) — Click on link to view page.§
• R (RJM) v SSWP [2008] UKHL 63 — Social welfare payments come within the scope of Article 1 Protocol 1; homelessness is an "other status" under Article 14; depriving the homeless of disability premiums was justified; the Court of Appeal is free (but not obliged) to follow an ECtHR decision rather than a previous inconsistent CA decision, but (absent wholly exceptional circumstances) must follow any previous House of Lords decision.§
• R (N) v Coventry City Council [2008] EWHC 2786 (Admin) — "This case concerns the assessment by Coventry City Council of the claimant's needs under section 47 of the National Health Service and Community Care Act 1990 and its decision to refuse him support under section 21 of the National Assistance Act 1948. It turns, in particular, on the meaning of "care and attention" in section 21, as interpreted by the House of Lords recently, and the ambit of Article 3 ECHR in the context of community care legislation." (para 1)§
• Renolde v France 5608/05 [2008] ECHR 1085 — The authorities failed to comply with their positive obligation to protect the detainee's right to life, in violation of Article 2, partly because they did not monitor his compliance with anti-psychotic medication. A penalty of 45 days' detention in a punishment cell breached Article 3 (inhuman and degrading treatment and punishment).§
• R (F) v SSJ [2008] EWHC 2912 (Admin) — The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.]§

Old cases added

• DN v Switzerland 27154/95 [2001] ECHR 235 — The psychiatrist who sat as judge rapporteur on the Administrative Appeals Commission had, before the hearing, concluded that the patient should not be released; the patient had legitimate fears that the doctor had a preconceived opinion and was not acting impartially; this was reinforced because he was sole the psychiatric expert and the only person who had interviewed her; Article 5(4) having been breached, damages and costs were awarded§
• McGrady, Re Application for Judicial Review [2003] NIQB 15 — (1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 [2001] ECHR 235 distinguished.§
• Bensaid v UK 44599/98 [2001] ECHR 82 — The deportation to Algeria of a patient suffering from schizophrenia did not breach Articles 3, 8 or 13.§
• R (SSG) v Liverpool City Council [2002] EWHC 2803 (Admin) — Click on link to view page.§
• Stec v UK 65731/01 [2006] ECHR 393 — Judgment of Grand Chamber. State benefits, Article 1 of Protocol No 1 & Article 14.§
• Stec v UK 65731/01 [2005] ECHR 924 — Admissibility decision. State benefits, Article 1 of Protocol No 1 & Article 14.§
• Morley v UK 16084/03 (2004) — Click on link to view page.§
• Morsink v The Netherlands 48865/99 [2004] ECHR 197 — Transfer from prison to a clinic was delayed for over 15 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded.§
• Brand v The Netherlands 49902/99 [2004] ECHR 196 — Transfer from prison to a clinic was delayed for 14 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded.§
• ‎Edwards v UK 46477/99 [2002] ECHR 303 — Christopher Edwards was killed by a prison cellmate, Richard Linford; both suffered from schizophrenia. (1) The duty under Article 2 to protect life could extend to taking preventive operational measures to protect an individual against criminal acts of another, where the authorities knew (or ought to have known) of a real and immediate risk to the life of an identified individual. Information was available identifying Linford as posing such a risk. The failure to pass on this information, and the inadequate screening of Linford, amounted to a breach of Article 2. (2) No inquest was held, and the trial did not involve witness evidence. The private inquiry which was held (a) had no power to compel witnesses, and (b) was held in private, with the parents unable to participate to the extent necessary to safeguard their interests: Article 2 was breached in this respect. (3) There was no appropriate domestic means of determining whether the authorities failed to protect the right to life or of obtaining compensation, so Article 13 (effective remedy) was breached.§
• ‎Rutten v The Netherlands 32605/96 [2001] ECHR 482 — The decision to renew the patient's confinement order was taken after the order had expired, but under domestic law there was nothing requiring release in these circumstances; under Convention law the detention was not arbitrary, being based on a court order and expert evidence, so there was no violation of Article 5(1); however, the lawfulness of detention was not decided speedily, so there was a violation of Article 4(4); this finding constituted just satisfaction.§

Transcripts now available

• LLBC v TG [2007] EWHC 2640 (Fam) — Best interests/deprivation of liberty case.§
• R (B) v London Borough of Camden [2006] EWCA Civ 246 — Claimant sought damages breach of statutory duty under s117 causing delay after deferred conditional discharge. Unsuccessful appeal.§
• R (Care Principles Ltd) v MHRT; R (AL) v Care Principles Ltd [2006] EWHC 3194 (Admin) — The MHRT's decision to discharge from s2 was not flawed; the subsequent decision to re-detain under s3 was unjustified and unlawful.§
• R (O) v MHRT [2006] EWHC 2659 (Admin) — Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing. [Caution.]§
• R (T) v Nottinghamshire Healthcare NHS Trust [2006] EWHC 800 (Admin) — Unsuccessful challenge to s19 transfer from Rampton to Broadmoor.§
• R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616 — MHRT granted absolute discharge without considering conditional discharge criteria; High Court quashed decision, so patient became detained restricted patient again; Home Office refused to grant s17 leave until next MHRT; Court of Appeal partially quashed MHRT decision but declared patient entitled to be conditionally discharged pending MHRT determination of appropriate discharge type.§

Website information

• Each Mental Health Act 1983 section now has a link to the relevant chapters of the Reference Guide to the Mental Health Act 1983 and Mental Health Act 1983 Code Of Practice for England
• The text of the following rules have been added to the site:

• Mental Health Review Tribunal for Wales Rules 2008
• Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008
• Tribunal Procedure (Upper Tribunal) Rules 2008

• Legal Aid page updated (NB there is still a lot of work to do on this page)
• New pages added for

• Mental Health Tribunal (England)
• Mental Health Review Tribunal for Wales
• Mental Health Tribunal for Scotland

• New categories created:

• Category:Scotland
• Category:Northern Ireland
• Category:Ireland
• Category:Deportation