October 2008 update

The following materials were added during October 2008.

Case law

New cases

• R (M) v Homerton University Hospital NHS Trust [2008] EWCA Civ 197 — The patient, whose s2 had been extended during s29 displacement proceedings, was detained under s3 following an interim displacement order but before any final determination. Detention under s2 and s3 could run concurrently in these circumstances and it was not arguable that the s3 detention was unlawful. No permission to apply for judicial review.§
• MH v UK 11577/06 [2008] ECHR 181‎ — Statement of facts and question to the parties. The question to the parties is: "Do the facts of the case disclose a breach of Article 5 § 4 of the Convention: (a) in relation to the failure to provide an automatic referral to a court when a patient is detained under section 2 of the Mental Health Act 1983 and when that patient lacks the capacity to take proceedings; and (b) when that detention is prolonged under section 29(4) of the same Act?"§
• R v Aisling Murray [2008] EWCA Crim 1792 — A sentence of life imprisonment and conviction for murder was quashed, and substituted with a conviction for manslaughter on the grounds of diminished responsibility and a restricted hospital order; this was even though the appellant had pleaded guilty to murder, as her decision to plead guilty was affected by her medical condition, which also substantially reduced her responsibility for the killing.§
• M v South West London and St George's Mental Health NHS Trust [2008] EWCA Civ 1112 — Habeas corpus - challenge to lawfulness of medical recommendation and ASW application.§
• R (B) v South Region MHRT [2008] EWHC 2356 (Admin) — Unsuccessful challenge to Tribunal's decision not to discharge from Broadmoor hospital.§
• Munjaz v UK 32913/06 [2008] ECHR 215‎ — Statement of facts and questions lodged with the court.§
• Shtukaturov v Russia 44009/05 [2008] ECHR 223 — Incapacity proceedings and detention breached ECHR Articles 5, 6, and 8.§
• St Helens Borough Council v Manchester PCT [2008] EWCA Civ 931 — Click on link to view page.§

Old cases added

• A Local Authority v E [2007] EWHC 2396 (Fam) — Application by a local authority under the inherent jurisdiction of the court for directions as to the future of a vulnerable person who has been in care and has now reached 18.§
• LLBC v TG [2007] EWHC 2640 (Fam) — Best interests/deprivation of liberty case.§
• Re SK [2007] EWHC 3289 (Fam) — Applications by mother in the course of proceedings concerning the best interests of a vulnerable adult, SK. Applications refused.§
• D'Souza v DPP [1992] UKHL 10 — Under s17(1)(d) PACE 1984 a constable may enter and search any premises for the purpose of recapturing a person who is unlawfully at large and whom he is pursuing: (1) a detained patient who absconds is "unlawfully at large"; (2) the pursuit must be almost contemporaneous with the entry into he premises.§

Legislation

Primary legislation

• Health and Social Care Act 2008 — The Health and Social Care Bill contains four key policy areas: Care Quality Commission; Professional regulation; Public health protection measures; Health in Pregnancy Grant. The establishment of the Care Quality Commission is the most relevant area to mental health law. Click "what links here" (below) to see which sections of the MHA 1983 were amended by this Act.
• Tribunals, Courts and Enforcement Act 2007 — This Act amends the Tribunals system. See also: Tribunal Rules.

Secondary legislation - Tribunal

• Practice Direction: Health Education and Social Care Chamber: Mental Health Cases (draft)... See Tribunal Rules
• Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 — These are the rules for the new Health, Education and Social Care Chamber which came into force on 3/11/08. The full text is available here and was last checked for accuracy on 16/11/22.
• Tribunal Procedure (Upper Tribunal) Rules 2008 — These are the rules for the new Upper Tribunal, which come into force on 3/11/08. The amendments made by the Tribunal Procedure (Amendment) Rules 2009, with effect from 1/4/09 are reflected in the text below; further amendments have since been made.,
• First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 — This order, which came into force on 3/11/08, made under the Tribunals, Courts and Enforcement Act 2007 organises and sets out the functions of the various new Tribunal chambers. Revoked by the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010.
• Discipline of Judges (Designation) Order 2008 —
• Mental Health Review Tribunal for Wales Rules 2008 — These new rules for the Mental Health Review Tribunal for Wales came into force on 3/11/08. See MHRT for Wales and coronavirus for updates.
• Transfer of Tribunal Functions Order 2008‎ —

This order, which came into force on 3/11/08, made under the Tribunals, Courts and Enforcement Act 2007, amongst other things, transferred functions to the newly-created First-tier Tribunal and Upper Tribunal.

Extract from official explanatory note

This Order is made under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Part 1 of the 2007 Act creates a new two tier tribunal structure; the First-tier Tribunal and the Upper Tribunal (“the new tribunals”) are established under section 3 of the 2007 Act. Order making powers are provided under Part 1 of the 2007 Act to enable existing tribunals to be transferred into the new structure. This Order has various primary functions to effect the transfers, and in addition contains various minor, consequential and transitional provisions, as explained below.

Transfer of functions of tribunals

Article 3 transfers the functions of the tribunals listed in the tables in Schedule 1 to the new tribunals.

(...) In the case of Mental Health Review Tribunals the transfer relates only to tribunals in England; the Mental Health Review Tribunal for Wales retains its functions.

Abolition of tribunals following transfer of functions

Article 4 abolishes the tribunals from which the functions are transferred under article 3 (with exceptions to provide for tribunals to remain in place to hear the Scottish appeals which are not transferred).

Transfer of members of tribunals

Article 5 provides for members of the tribunals from which the functions are transferred by article 3 to hold the offices of transferred-in judge or transferred-in other member of the First-tier Tribunal, or deputy judge or transferred-in judge of the Upper Tribunal. Those members becoming deputy judges of the Upper Tribunal also become transferred-in judges of the First-tier Tribunal. The tables in Schedule 2 set out which tribunal members hold which offices in the new tribunals. (...)

Appeals to the Upper Tribunal from tribunals in Wales, Scotland and Northern Ireland

Article 6 provides for an onward appeal right to the Upper Tribunal from decisions of the Mental Health Review Tribunal for Wales and the Special Educational Needs Tribunal for Wales in place of the previous onward appeal right to the High Court. (...)

Minor and consequential provisions

Article 9 brings Schedule 3 into effect. Schedule 3 contains minor and consequential amendments. (...)

Amendments to the Mental Health Act 1983 ensure that that Act as amended refers to the First-tier Tribunal so far as proceedings relating to England are concerned, but to the Mental Health Review Tribunal for Wales (“MHRTfW”) so far as proceedings relating to Wales are concerned, and retains provisions relating to the constitution and procedure of the MHRTfW. That Act as amended also includes provision for the new appeal right from the MHRTfW to the ..→§

Secondary legislation - Other

• Mental Health Act 1983 Approved Clinician (Wales) Directions 2008 — These directions make provision for the approval of persons as approved clinicians in Wales.
• National Health Service (Charges for Drugs and Appliances) Amendment Regulations 2008 — The Regulations exempt community patients from prescription charges in most circumstances. However, while patients are subject to SCT they cannot be discharged from the the s117 duty to provide free after-care services, so they should not be charged for treatment for mental disorder.
• Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 — "These Regulations, together with the Act, provide the eligibility requirements for people who carry out the assessments."
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 — "These Regulations provide for the selection and appointment of representatives and the circumstances in which they may be paid..."
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Amendment) Regulations 2008 — In force 3/11/08.
• Court of Protection Rules 2007 — These rules for the Court of Protection, which came into force on 1/10/07, were superseded on 1/12/17 by the Court of Protection Rules 2017.
• Public Guardian (Fees, etc) (Amendment) Regulations 2007 — In force 1/10/07.
• Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2007 — In force 1/10/07.
• Public Guardian (Fees, etc) Regulations 2007 — In force 1/10/07.
• Public Guardian Board Regulations 2007 — In force 1/10/07.
• Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations‎ — Click on link to view page.§
• Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2008 — These regulations amend the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 which, like these amendments, come into force on 3/11/08.

Other Documents

• Some Deprivation of Liberty Safeguards draft standard forms... See Deprivation of Liberty Safeguards Standard Forms
• On 23/10/08 the Public Guardian launched a consultation reviewing the Mental Capacity Act 2005: forms, supervision and fees. The consultation period will end on 15/1/09... See Office of the Public Guardian
• Patient Information Leaflets for use in Wales published... See Mental Health Act 1983 information leaflets
• The Welsh Assembly Government have launched their "HOWIS" website for the Mental Health Act 1983, and published free statutory forms for use in Wales... See Mental Health Act 1983 Statutory Forms
• The Department of Health have published guidance on the extension of victims' rights under the Domestic Violence, Crime and Victims Act 2004... See Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients for details
• The Department of Health have published information leaflets in the following areas... Detention under Part 2; sections 135 and 136 ('Place of safety'); detention under Part 3; guardianship; supervised community treatment (SCT); miscellaneous. See Mental Health Act 1983 information leaflets

Website articles and information

• More detail (e.g. commencement dates and extracts from Explanatory Notes) added to list of amendments made by Mental Health Act 2007... See Mental Health Act 2007 Overview#The amendments
• Mental Health Act 1983 text updated to be accurate as at 3/11/08... See Mental Health Act 1983
• Text of general articles updated to reflect position on 3/11/08; broken links fixed
• A little more work done on MCA 2005 pages... See Lasting Power of Attorney, Enduring Power of Attorney, Court of Protection
• Website layout updated... See Main Page and Site map
• Case law section being restructured so as to be easier to navigate. Case summaries can be viewed according to various categories, including subject matter and year... See Mental health case law.
• Wikimentalhealth Update RSS feed added to site. The Wikimentalhealth Update RSS feed is generated from the bullet points on the Update section of the site. As the content of the new RSS feed is not computer generated, and contains only selected updates, it is recommended in preference to the built-in RSS feeds (Recent changes RSS and New pages RSS).
• See October 2008 chronology for changes to the website in date order.