September 2008 update

Legislation

Secondary legislation

• Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 — The Order brings into force most of the rest of the MHA 2007 and also makes transitional and saving provisions. In force on 3/11/08 immediately after the coming into force of the Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 and immediately before the coming into force of the Transfer of Tribunal Functions Order 2008.

Secondary legislation - England

• Mental Health Act 1983 Approved Clinician (General) Directions 2008 — These directions replace the Mental Health Act 1983 Approved Clinician Directions 2008.
• Mental Health (Mutual Recognition) Regulations 2008 — These regulations set out when English s12 practitioners and approved clinicians can be treated as approved in Wales, and vice versa.
• Mental Health (Conflicts of Interest) (England) Regulations 2008 — These regulations set out when there is a potential conflict of interest preventing an AMHP making an application or a doctor a medical recommendation.
• Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 — These regulations relate to the approval of persons to act as AMHPs.
• Mental Health (Nurses) (England) Order 2008 — This order replaces the Mental Health (Nurses) Order 1998 in England. It sets out the classes of nurses who can use the six-hour s5(4) holding power. The nurses who can use this power are those registered in either Sub-Part 1 or 2 of the register maintained under article 5 of the Nursing and Midwifery Order 2001 whose registration includes an entry indicating that the nurse’s field of practice is either mental health nursing or learning disabilities nursing. In force 3/11/08 (England).

Secondary legislation - Welsh

• Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008 — These are the main regulations dealing with exercise of Mental Health Act 1983 powers, and also set out the mandatory statutory forms. They were amended by the Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) (Amendment) Regulations 2012 with effect from 2/6/12.
• Mental Health (Approval of Persons to be Approved Mental Health Professionals) (Wales) Regulations 2008 — These regulations relate to the approval of persons to act as AMHPs.
• Mental Health (Conflicts of Interest) (Wales) Regulations 2008 — These regulations set out when there is a potential conflict of interest preventing an AMHP making an application or a doctor a medical recommendation.
• Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2008 — These regulation deal with arrangements for appointment of IMHAs, and set out who can be appointed as IMHAs.
• Mental Health (Nurses) (Wales) Order 2008 — This order replaces the Mental Health (Nurses) Order 1998 in Wales. It sets out the classes of nurses who can use the six-hour s5(4) holding power. It comes into force on 3/11/08.
• Mental Health Act 1983 Approved Clinician (Wales) Directions 2008 — These directions make provision for the approval of persons as approved clinicians in Wales.

Case law

New cases

Transcripts courtesy of claimant's solicitor:

• GD v Hospital Managers of Edgware Community Hospital CO/5733/2008 — Click on link to view page.§
• BB v Cygnet Health Care [2008] EWHC 1259 (Admin) — Inadequate consultation with nearest relative.§
• M v Hospital Managers of Queen Mary's Hospital [2008] EWHC 1959 (Admin) — Habeas corpus - challenge to lawfulness of medical recommendation and ASW application.§

ICLR summaries added

Reproduced with permission of the Incorporated Council of Law Reporting

• G v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) — Click on link to view page.§
• R (Brooke) v Parole Board [2008] EWCA Civ 29 — The Parole Board did not have the independence from the executive that was required for its judicial role in determining whether convicted prisoners should be released on licence.§
• R v B (2008) WLR (D) 296 — Click on link to view page.§
• Bailey v Warren [2006] EWCA Civ 51 — PRACTICE — Parties — Mental capacity — Action for damages for personal injuries compromised by claimant before proceedings commenced — Subsequent lack of mental capacity leading to appointment of litigation friend — Whether valid approval of compromise — CPR Pt 21. The established principles relating to mental incapacity and the conduct of litigation were to be applied to the compromise of an action by a claimant before he became a “patient” within the meaning of CPR r 21.1 and which was made before any proceedings were commenced. (ICLR summary.)§
• R (K) v West London MH NHS Trust [2006] EWCA Civ 118 — MENTAL DISORDER — Secretary of State’s powers — Leave of absence — Patient granted leave of absence by registered medical officer — Patient wishing to make trial transfer to private sector medium security hospital — Secretary of State refusing to fund transfer — Whether Secretary of State (or his delegate) obliged to fund placement — Whether opinion of registered medical officer binding on Secretary of State — National Health Service Act 1977, s 3 — Mental Health Act 1983, s17. A mental health trust was not obliged to fund a placement for trial leave which a patient’s registered medical officer had decided under s 17 of the Mental Health Act 1983 was clinically appropriate. The opinion of a registered medical officer on a matter of clinical judgment was not binding on the Secretary of State for Health (or his delegate) performing functions under s 3 of the National Health Service Act 1977.§
• R (AL) v SSHD [2005] EWCA Civ 2 — The Secretary of State's powers to continue the recall of a patient who had originally been detained following an acquittal of murder on grounds of insanity and pursuant to s 5(1)(a) of the 1964 Act, but was recalled pursuant to s 42(3) of the 1983 Act, differed from such powers as were granted under s 37 of the 1983 Act.§
• R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 — Mental disorder — Mental health review tribunal — Discharge of patient — Detained patient incompetent to apply for own discharge — Extension of detention pending determination of approved social worker's application to displace nearest relative — Whether statutory scheme incompatible with patient's Convention right to liberty — Mental Health Act 1983, ss 2, 29(4) — Human Rights Act 1998, Sch 1, Pt I, art 5(4). The scheme for the review of a patient's detention under the 1983 Act was capable of being operated so as to give practical effect to the patient's right, guaranteed by art 5(4) of the European Convention on Human Rights, to take proceedings to have the lawfulness of her detention speedily decided by a court and for review thereafter at reasonable intervals.§
• Seal v Chief Constable of South Wales Police [2005] EWCA Civ 586 — Mental disorder — Practice — Leave to bring proceedings — Claim by patient for damages against police officers — Failure to obtain leave to bring proceedings — Whether proceedings rendered nullity — Whether subsequent grant of leave permissible — Mental Health Act 1983, s139(2). It was a mandatory requirement to seek leave from the High Court under s 139(2) of the Mental Health Act 1983 to bring civil proceedings for actions purported to be done under that Act. Failure to seek leave rendered the proceedings a nullity.§
• Ward v Commissioner of Police for the Metropolis [2005] UKHL 32 — Mental disorder — Place of safety order — Validity of detention — Warrant naming health professionals to accompany constable — Named persons absent when warrant executed — Whether warrant and execution valid — Whether power in magistrate to specify names — Mental Health Act 1983 (as amended by Police and Criminal Evidence Act 1984, s 119(1)(2), Sch 7, Pt I), s 135(1). A condition imposed by a magistrate issuing a warrant under s135 of the Mental Health Act 1983 specifying named persons to accompany the constable executing the warrant had been invalid.§
• R (B) v Ashworth Hospital Authority [2005] UKHL 20 — A patient detained for treatment under the Mental Health Act 1983 could be treated compulsorily under s 63 of that Act for any disorder from which he suffered, and not only for the particular form of disorder from which he was classified as suffering under the application or order which authorised his detention.§
• R (B) v Dr SS [2005] EWCA Civ 28 — Click on link to view page.§
• Sheffield City Council v E [2004] EWHC 2808 (Fam) — HUSBAND AND WIFE — Marriage — Capacity to marry — Alleged patient wanting to marry — Local authority wishing to prevent marriage — Whether jurisdiction to apply best interests test. Since to establish capacity to marry required only the ability to understand the nature of the marriage contract and the duties and responsibilities that normally attached to marriage, there was no jurisdiction to consider whether any particular marriage was in an alleged patient's best interests. [ICLR summary.]§

FLW summaries added

Reproduced with permission of Family Law Week

• KC v City of Westminster Social and Community Services Department [2008] EWCA Civ 198 — Muslim marriage where groom lacked capacity was not recognised in English law.§
• RP v Nottingham City Council [2008] EWCA Civ 462 — Role of Official Solicitor considered.§
• A Primary Care Trust v AH [2008] EWHC 1403 (Fam) — Reasons given for making an interim order under the Mental Capacity Act 2005 relating to a 22 year old adult male suffering from severe epilepsy.§
• London Borough of Ealing v KS [2008] EWHC 636 (Fam) — Applications by local authority seeking declarations that a vulnerable adult lacked capacity, among other things, to marry; consent to medical treatment; have sexual relations or decide her place of residence.§
• Re PS (An Adult) [2007] EWHC 623 (Fam) — Click on link to view page.§
• Re MM (An Adult) [2007] EWHC 2003 (Fam) — Inherent jurisdiction case re vulnerable adult.§
• Re MM (An Adult) [2007] EWHC 2689 (Fam) — Click on link to view page.§
• Trust A v H (An Adult Patient) [2006] EWHC 1230 (Fam) — H lacked capacity to decide about medical treatment for her gynaecological condition; it was in her best interests to receive that treatment; appropriate sedation and restraint for pre- and post-operative treatment was lawful.§.

Old cases added

• R v Antoine [2000] UKHL 20 — "The issue which arises on this appeal is whether an accused person charged with murder is entitled to rely on the defence of diminished responsibility under section 2 of the Homicide Act 1957, when he has been found by a jury to be unfit to plead by reason of mental disability, and a jury proceeds under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) to determine whether he did the act charged against him as the offence."§
• R v Antoine [1999] EWCA Crim 1171‎ — Post-judgment discussion.§
• R v Antoine [1999] EWCA Crim 1170 — Court of Appeal judgment.§
• R v Paul Martin [1998] EWCA Crim 3166 — The power to make a restriction order applies in cases where the patient poses a risk of serious harm from which the public needs protection. This is not the seriousness of the risk that the public may suffer some harm, but that the risk that the potential harm represented by the individual defendant would be serious. There should normally be some proportionate relationship between the instant offence and the history of offending, together with an assessment of risk on the basis of medical examinations before a section 41 restriction order is made. Restriction order quashed.§
• R (A) v Harrow Crown Court [2003] EWHC 2020 (Admin) — The court order detaining the claimant under s37/41 MHA 1983 following a finding of unfitness to plead was irregular (as ultra vires s5 CPIA 1964 as then enacted) and was quashed; however, the detention was in accordance with a procedure prescribed by law and was not arbitrary, so there was no breach of Article 5.§
• R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) — The decision of the Defendant to restrict adult care services to people with critical needs only was unlawful, since the decision-making process did not comply with the Defendant's Disability Equality Duty under s49A Disability Discrimination Act 1995.§

Other documents

• Reference Guide to the Mental Health Act 1983

Website articles and information

• To encourage people to contribute - if you have edited a page your user name (or real name if you choose to use it) will now be shown at the bottom of the page.
• The MHA 1983 Code of Practice for England refers to various "related materials" - links to all these documents have been added to the Code of Practice Mental Health Act 1983 page.
• Care Quality Commission to replace Healthcare Commission, Commission for Social Care Inspection (CSCI) and Mental Health Act Commission (MHAC) in April 2009
• See September 2008 chronology for list of September updates in date order