Mental Health Law Online Update RSS

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20/04/2018 01:01 AM
Law Society panel concerns cont'd. Law Society mental health accreditation scheme - guidance documents
— This page contains links to what is believed to be every version of the guidance documents dated from December 2011 to October 2017 inclusive (plus an old document from May 2002). The creation dates are taken from the PDF files. The download dates relate to when a version was downloaded from the Law Society website. At any time only one version was available for download. Publication dates can be assumed to lie somewhere between the creation date (or, if later, the download date for a previous version) and the download date inclusive. Further notes will be added - in particular, setting out how the requirements changed in each version.

15/04/2018 01:02 AM
Job advert. Bishop & Light Solicitors, Hove - Court of Protection Solicitor (listed until 13 July 2018).
See Jobs

15/04/2018 01:01 AM
Book chapter uploaded.
Larry Gostin, Mental Health Services: Law and Practice (Shaw & Sons, supplement issue no 18, June 2000). Chapter 20 - The therapeutic relationship: treatment and confidentiality. See Gostin

10/04/2018 01:01 AM
Sentence appeal case. R v Thompson [2018] EWCA Crim 639
— "These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983."

09/04/2018 01:04 AM
Panel JR announcement. GT Stewart Solicitors and Advocates, 'GT Stewart file claim for judicial review in the High Court challenging decision of the Law Society' (6/4/18)
— This announcement concludes: "The Law Society has not published detailed guidance on what areas are accepted to be mental health law-‘related’. However, in its published ‘expected standards of competence’, applicants are expected to have sufficient knowledge of areas of law, such as mental capacity, community care and human rights, which are relevant to advising and representing clients in proceedings before the First-tier Tribunal. Rebecca maintains that the courses which she undertook came squarely within the competencies required and that the Law Society’s decision to refuse her application for reaccreditation to the Mental Health Accreditation Scheme is unlawful."

09/04/2018 01:03 AM
Law Society panel concerns cont'd.
On 6/4/18, (a) the 28/2/18 email from MHLO to the Law Society was published, (b) the Law Society replied stating that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year", and (c) MHLO sought a further email responding to each of the four points raised in the original email. If anyone has been adversely affected then please get in touch. See Law Society mental health accreditation scheme - CPD requirements to read the emails.

09/04/2018 01:02 AM
COP costs case. NHS Dorset CCG v LB [2018] EWCOP 7
— "In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision."

09/04/2018 01:01 AM
Deputyship case. Re AR [2018] EWCOP 8
— "The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy."

06/04/2018 01:01 AM
Law Society panel concerns. Law Society mental health accreditation scheme - CPD requirements
— During late 2017 and early 2018 the Law Society has been retrospectively operating an unpublished policy of disallowing certain CPD topics (including mental capacity law) for the mental health accreditation scheme. It is understood that in February 2018 the Law Society adopted or at least discussed a new more flexible policy. On 28/2/18 an email was sent from Mental Health Law Online, setting out the background and stating that the following steps ought to be taken urgently: (1) the previous, normal definition of "mental health law" should be re-adopted; (2) in any event, the current policy should be published on the Law Society's website and circulated by email among all current panel members; (3) if that policy narrowly defines "mental health law" then it should apply only from the date of publication and not retrospectively; (4) the cases of those who have been adversely affected should be revisited. On 6/3/18 the Law Society said it would investigate and respond as soon as possible. On 4/4/18, judicial review proceedings were issued against the Law Society by a former panel member, Rebecca Hill of GT Stewart Solicitors and Advocates, against refusal of reaccreditation. On 6/4/18, (a) the 28/2/18 email from MHLO to the Law Society was published, (b) the Law Society replied stating that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year", and (c) MHLO sought a further email responding to each of the four points raised in the original email. It is now also thought that that the Law Society are retrospectively applying a requirement for and definition of "structured" CPD. The MHLO scheme contains 6 hours of structured, MHA CPD tests per year, but before October 2015 the 12 annual tests were each split between MHA and MCA (see CPD scheme MHA/MCA breakdown for details). If anyone has been adversely affected by either of these issues then please get in touch.

28/03/2018 01:09 AM
Litigation friend case. Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17
Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong."

28/03/2018 01:08 AM
Vexatious COP application case. Re SW (No 2) [2017] EWCOP 30
— "This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place."

28/03/2018 01:07 AM
Medical treatment case. Re SW [2017] EWCOP 7
— (1) "[A]s matters stand, the transplant being proposed cannot proceed, whatever the court may say or do. As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor." (2) "As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. ... [B]oth Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs." (3) "There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour."

28/03/2018 01:06 AM
Article. Alex Ruck Keene, 'Foreign powers of attorney - an unfortunate judicial wrong turn' (Mental Capacity Law and Policy, 26/3/18)
— This article states that the two litigants in person, in seeking recognition and enforcement of a Canadian "Continuing Power of Attorney for Property" as a protective measure (under Part 4 Schedule 3 MCA 2005), had led the judge astray, as the relevant question was whether (under Part 3) the Canadian power was valid according to Ontario law, assuming JMK had been habitually resident there at the point of granting the power. A application can be made under rule 23.6 Court of Protection Rules 2017 in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.

28/03/2018 01:05 AM
Extradition case. Cash v Court of First Instance, Strasbourg, France [2018] EWHC 579 (Admin)
— "At the conclusion of the hearing on 13 March 2018 I allowed the Appellant's appeal and quashed the extradition order made by District Judge Grant on 15 March 2017. I did so on the grounds that it would be unjust and oppressive to extradite the Appellant because he is currently unfit to stand trial and is seriously mentally ill with paranoid schizophrenia, and thus the judge should have decided that extradition is barred by s 25 of the Extradition Act 2003."

28/03/2018 01:04 AM
Variation of Trusts Act case. ET v JP [2018] EWHC 685 (Ch)
— "This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958. ... The way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act."

28/03/2018 01:03 AM
HIV treatment case. Re AB [2016] EWCOP 66
— "I am asked to, and I do approve, a treatment regime for AB, which involves the administration of medication to her on a basis of deception. Not merely passive deception, which, to use a legal phrase might be characterised as suppressio veri, but active deception, which lawyers might describe as suggestio falsi. It is debateable whether there is in fact much moral difference between the two types of deception, but what is being proposed here is a treatment regime, an administration of medication, on the basis of active deception of AB. I only have to state this for the unusual nature of the case to be revealed, but the circumstances in which these facts arise demonstrate that such a course is manifestly required in the best interests of AB, notwithstanding that her personal wishes and feelings would be entirely contrary to the course that is going to ensue. AB is infected with HIV. ... The order will provide, however, that if the truth emerges to AB and she moves to a position of active resistance then the matter will have to be reviewed, and the Court will have to consider, in that situation, whether to move to forced administration of these drugs, which would be a very difficult decision to make, because it would not be a one-off administration of treatment, but would be a quotidian administration of treatment, which is a very different state of affairs to that which is normally encountered in this Court."

28/03/2018 01:03 AM
Nerve agent case. SSHD v Skripal [2018] EWCOP 6
— "On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Mr and Ms Skripal remain in hospital under heavy sedation. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. The fact of their exposure to a nerve agent has already had significant consequences on the wider domestic and international stage which I need not go into for the purposes of this judgment. However central to the application before me is the fact that on 14 and 16 March 2018 the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom 'to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).' This in effect is to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries the OPCW wish to: (i) Collect fresh blood samples from Mr and Ms Skripal to (a) undertake their own analysis in relation to evidence of nerve agents, (b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal; (ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018; (iii) Re-test the samples already analysed by Porton Down. Because Mr Skripal and Ms Skripal are unconscious and neither are in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust have quite properly confirmed to the UK Government that a court order would be required to authorise (a) and (b) above."

28/03/2018 01:02 AM
Article. Matthew Stanbury, 'The making of hospital orders and the use of hybrid orders' (Garden Court North, 27/3/18)
— This article, written by counsel for one of the appellants, summarises the case of R v Edwards [2018] EWCA Crim 595.

28/03/2018 01:02 AM
Sentence appeal case. R v Edwards [2018] EWCA Crim 595
These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s.37/41 and s.45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle.

26/03/2018 01:01 AM
Tribunal rules consultation.
The MOJ, with support from the senior HESC judiciary, propose that: (1) preliminary medical examinations should be abolished; and (2) mandatory references for adult patients, unless a party requests or the tribunal directs an oral hearing, should be determined by a paper review procedure. See Tribunal Procedure Committee, 'Proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (consultation from 22/3/18 to 11/6/18)

19/03/2018 12:02 AM
COP case. Re SW (No 2) [2017] EWCOP 30
— "This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place."

19/03/2018 12:01 AM
Protective measure case. Re JMK [2018] EWCOP 5
— "The application before the Court is for an order to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether such an instrument amounts to 'a protective measure' for the purposes of Schedule 3."

15/03/2018 12:02 AM
Supreme Court refuses permission in Djaba case.
On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons. Court order provided by Djaba's solicitor, Kate Luscombe of Abbotstone Law. See Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436, [2017] MHLO 23#External links

15/03/2018 12:01 AM
Supreme Court grants permission in SSJ v MM.
On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) granted MM permission to appeal. Court order provided by MM's solicitor, Donald Tiong of Bison Solicitors. See SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16#External links

12/03/2018 12:01 AM
COP bias case. Re M: A v Z [2018] EWCOP 4
— "This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests."

08/03/2018 12:02 AM
COP case. Re M: AB v HT [2018] EWCOP 2
— "These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M's father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her capacity, and orders made following my findings.

08/03/2018 12:01 AM
DOLS case summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2016-18' (February 2018 edition, 8/3/18)
— This two-page document summarises selected domestic and European caselaw on deprivation of liberty between 2016 and 2018 inclusive.

07/03/2018 12:01 AM
Job advert. DAC Beachcroft, Leeds - Healthcare Regulatory Solicitor (listed until 8/6/18).
See Jobs

26/02/2018 12:01 AM
Welfare benefits case. DB (as executor of the estate of OE) v SSWP [2018] UKUT 46 (AAC)
— "The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly."

18/02/2018 12:05 AM
Event. MHLA: Advocacy, Risk and Cross-examination - London, 6/3/18
— This one-day course is designed to enhance advocacy and case preparation skills. The focus is on preparing for advocacy, with advice on cross-examination of the medical witnesses and taking evidence-in-chief from the client, along with formulation and delivery of effective submissions. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.

18/02/2018 12:04 AM
Event. MHLA: Refresher and Re-accreditation course - London, 29/3/18
— This Refresher and Re-accreditation course is suitable for those seeking re-accreditation and will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.

18/02/2018 12:03 AM
Event. MHLA: Case law update - London, 18/4/18
— This is a one-day course which focuses on practical application of the law in the day-to-day work of mental health practitioners when representing clients. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.

18/02/2018 12:02 AM
Event. MHLA: Legal Aid and Peer Review - London, 23/4/18
— This course provides guidance on the Legal Aid provisions in mental health cases, including escape-fee cases and requirements for means testing. It will also broaden practitioners' knowledge of the peer review process and the peer review 'Improving your Quality' guidance. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.

18/02/2018 12:01 AM
Event. MHLA: Legal Aid supervision - London, 15/5/18
— This course is aimed at experienced supervisors looking to refresh their skills, or those considering applying for supervisor status, and will cover the Legal Aid Agency supervisor standards and procedures. Cost: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.

16/02/2018 12:02 AM
CANH withdrawal case. M v A Hospital [2017] EWCOP 19
— "This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs [2017] EWCA Civ 1169, it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her."

16/02/2018 12:01 AM
Appropriate adult case. Miller v DPP [2018] EWHC 262 (Admin)
— "This is an appeal by way of case stated from a pre-trial ruling of the Black Country Magistrates' Court sitting at Dudley on 13 October 2016 in respect of an information preferred against the Appellant for failing to provide a specimen of blood in breach of section 7 of the Road Traffic Act 1988, not to exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence of the drug drive procedure at Oldbury Police Station that led to the charge being made. ... On 24 June 2016, the Appellant was stopped by the police on suspicion of driving under the influence of drugs. When arrested and taken into custody, he behaved erratically and aggressively. It appears that he was known to the police as a person who had learning difficulties and autism. ... As Mr Scott submitted, the presence of an appropriate adult (whilst not being able to provide technical, legal or medical advice) would have provided the Appellant with the opportunity not only to have the question as to whether or not to provide a sample explained to him, but also to obtain an appreciation of the consequences of failing to do so. He points out that the offence of failing to provide a blood sample is predicated not only on the person's comprehension of the requirement to provide a sample, but also of the consequences of failing to do so in terms of criminal liability. The Appellant was clearly very exercised whilst being detained, and there is a very real possibility that the presence of an appropriate adult would have calmed him, and led him to behave differently and make different choices from those he in fact made. ... [H]aving found there to have been a breach of Code C in failing to inform and summon an appropriate adult to the police station, we do not consider that the magistrates did properly exercise their discretion under section 78 of PACE not to exclude the evidence of the drug drive procedure. Their reasoning was, unfortunately, fundamentally flawed; and, had they exercised their discretion properly, they would have been bound to have excluded the evidence of the drug drive procedure."

13/02/2018 12:01 AM
Parole Board case. R (Gourlay) v Parole Board [2017] EWCA Civ 1003
— "Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?"

12/02/2018 12:01 AM
Event. PELT: Two-day admission to panel (accredited) - Hoylake, 17/5/18 and 18/5/18
— Course description: "This very intensive two-day course, approved by the Law Society, is designed to assist delegates prepare themselves for panel accreditation. The course also will flag up the difference between the English and Welsh systems. The course would also be of great benefit to anyone involved in the tribunal process who feel that they need a greater depth of knowledge. In addition, day 2 in particular would be of value to those seeking reaccreditation." Trainers: Peter Edwards and Dr Rob Brown. Venue: The Training Suite, Peter Edwards Law, Hoylake CH47 2AE. Price: £175+VAT (£210) per day; £350+VAT (£420) for both days. See PELT website for further details and booking information.

09/02/2018 12:05 AM
Secondary legislation. Mental Health Act 1983 (Places of Safety) Regulations 2017
— These Regulations specify the circumstances in which a police station can be used as a place of safety for an adult for the purposes of s135 and s136 MHA 1983, and describe the safeguards to protect the person detained.

09/02/2018 12:04 AM
Secondary legislation. Policing and Crime Act 2017 (Commencement No 4 and Saving Provisions) Regulations 2017
— Regulation 3 brought into force the following sections of the Policing and Crime Act 2017 on 11/12/17: (a) section 80 (extension of powers under sections 135 and 136 of the Mental Health Act 1983), in so far as not already in force; (b) section 81 (restrictions on places that may be used as places of safety), in so far as not already in force; (c) section 82 (periods of detention in places of safety etc); and (d)section 83 (protective searches: individuals removed etc under section 135 or 136 of the Mental Health Act 1983). By virtue of section 183(5)(e) of the Act, sections 80 and 81 came into force on the day on which the Act was passed, so far as is necessary for enabling the exercise of any power to make provision by subordinate legislation.

09/02/2018 12:03 AM
Primary legislation. Policing and Crime Act 2017
— Chapter 4 (sections 80-83) of this Act amended MHA 1983 s135 (Warrant to search for and remove patients), s136 (Removal etc of mentally disordered persons without a warrant) and s138 (Retaking of patients escaping from custody), and added new s136A (Use of police stations as places of safety), s136B (Extension of detention) and s136C (Protective searches). In force 11/12/17. The text of the Act on MHLO has been updated accordingly (note that there are errors on the Legislation.gov.uk website: some of the old text has not been deleted).

09/02/2018 12:02 AM
Extradition case. LMN v Government of Turkey [2018] EWHC 210 (Admin)
— "It would be unlawful for this country to extradite the appellant to Turkey if he would there face a real risk of being treated in a manner which breached his Article 3 right not to be "subjected to torture or to inhuman or degrading treatment or punishment": see R (Ullah) v Special Immigration Adjudicator [2004] 2 AC 323. It is for the appellant to establish that there are substantial grounds for believing that, if extradited, he will face such a risk; and the ill-treatment must reach a minimum level of severity before Article 3 would be breached. Given that Turkey is a member of the Council of Europe and a signatory to the European Convention on the Prevention of Torture, the respondent is entitled to rely on the presumption that the Turkish authorities will protect prisoners against breaches of their Article 3 rights. Mr Josse has not invited this court to decide the appeal on the basis of findings about the Turkish prison system as a whole, and in any event there is no evidence which would enable the court to do so. ... There are in my judgment two key aspects of the evidence relating to the Article 3 issue: the expert evidence as to the appellant's mental health; and the expert evidence as to prison conditions in Turkey following the attempted coup. ... In those circumstances, I accept the expert evidence now available as establishing that the appellant is presently suffering from a recognised medical condition, namely severe depressive episode; that he also presents some features of PTSD; that he is currently prescribed antidepressant medication, and in receipt of regular psychological counselling; that there is a continuing need for coordinated care management; and that there is a high risk of suicide in the event of extradition. ... The further evidence now before the court shows, as I have indicated, a continuing need for medication and healthcare. The appellant has very plainly raised the issues of whether his healthcare needs would in fact be met, and whether the healthcare which is in principle available in Turkish prisons would in fact be available to the appellant in the context of the greatly-increased prison population. There is simply no evidence that such care will be available to him. ... In my judgment, taking into account the risk of suicide, a failure to meet the mental healthcare needs of the appellant would in the circumstances of this case attain the minimum standard of severity necessary to breach his Article 3 rights. ... It follows that his extradition would not be compatible with Article 3 or with section 87 of the 2003 Act."

09/02/2018 12:01 AM
DOLS reform. Joint Committee on Human Rights, 'Reform of the DOLS inquiry' (call for evidence from 9/2/18 to 2/3/18).
Extract from website: "The Committee is issuing an open call for evidence from interested parties and would welcome written submissions by Friday 2 March on: (1) Whether the Law Commission's proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards; (2) Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency; (3) Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute. Submissions should be no more than 1500 words."

05/02/2018 12:01 AM
DOL case. Re KT [2018] EWCOP 1
— "These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15, [2016] MHLO 31. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements."

04/02/2018 12:02 AM
Insanity case. Loake v CPS [2017] EWHC 2855 (Admin)
— "For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity."

04/02/2018 12:01 AM
MHT stakeholder bulletin. Mental Health Tribunal, 'Stakeholder bulletin Mental Health Tribunal administration Autumn 2017' (November 2017)
— This bulletin states that the MHT listing process is as follows: (a) hearings are only listed on dates within the listing window on which a full judicial panel is available; (b) if possible, a date offered by one (or preferably both) of the parties will be selected; (c) when an unsuitable date has been set, a form CMR1 should be filed as hearing dates will not be changed by telephone.

02/02/2018 12:01 AM
Immigration case. R (VC) v SSHD [2018] EWCA Civ 57
— "There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention."

01/02/2018 12:03 AM
Hospital pocket money case. R (Mitocariu) v Central and North West London NHS Foundation Trust [2018] EWHC 126 (Admin)
— "These proceedings raise points of principle in respect of the powers of NHS Foundation Trusts pursuant to the National Health Service Act 2006 ("the 2006 Act") regarding financial assistance to patients whilst they are detained pursuant to hospital orders made under the Mental Health Act 1983 ("the 1983 Act"). In essence they raise a question about the powers or duties of NHS Foundation Trusts in circumstances where the patient receiving mental health care is or appears to be unable, for whatever reason, to fund occasional expenses. ... The reliance by the Claimants upon section 122 of the 1983 Act was misplaced as the power to make payments thereunder was abolished by section 41 of the 2012 Act in so far as patients in England were concerned. ... The essential issues that arise in these proceedings are as follows: (i) did the Defendant have power to make payments to the Claimants; (ii) what was the scope and nature of the power, if any, held by the Defendants to make payments; (iii) did the Defendant lawfully exercise the power; (iv) did the absence of a policy mean the Defendant acted unlawfully; (v) was the Defendant under a duty to make regular payments to the Claimants in the amounts claimed or any amounts. ... The power exists under the 2006 Act to make what have been described as "pocket money payments" to in-patients but that power only arises and can only be exercised for and in connection with functions identified under section 43 of the 2006 Act. The discretion of a foundation trust to make payments is limited to that which is commensurate with the therapeutic treatment being provided. There is no entitlement to payment neither is there a duty to make payment. The power that is held by the foundation trust is one which must take into account all the circumstances of the individual case including financial needs and the nature of the therapeutic treatment being provided."

01/02/2018 12:02 AM
Children/DOL case. A-F (Children) [2018] EWHC 138 (Fam)
— "... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the ..→

01/02/2018 12:01 AM
DOL case summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2016-18' (January 2018 edition, 30/1/18)
— This two-page document summarises selected domestic and European caselaw on deprivation of liberty between 2016 and 2018 inclusive. Superseded by Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2016-18' (February 2018 edition, 8/3/18).

31/01/2018 12:02 AM
Event. Edge Training: Deprivation of liberty in children and young people - London, 2/3/18
— This course aims to update staff working with children, young people and those in transition with the latest case law and developments in relation to deprivation of liberty. The course will consider these developments and the impact on practice. It examines the Supreme Court ruling on deprivation of liberty and considers practical issues in its application for children and young people. Price £140 plus VAT. See Edge website for further details and booking information.

31/01/2018 12:01 AM
Event. Edge Training: DOLS MH Assessor Annual Refresher Course - London, 20/4/18
— 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. There will be plenty of opportunity to ask questions from an expert in the field and ask about your own case scenarios. The day will be delivered by one of the authors of the highly popular Deprivation of Liberty Safeguards Handbook who has also trained thousands of doctors on the Mental Health Act, Mental Capacity Act and DoLS. Speaker: Aasya Mughal. Cost: £195 + VAT (£234). See Edge website for further details and booking information. (Note the date change: previously was 2/3/18.)

27/01/2018 12:03 AM
Event. MHLA: Panel course - Leeds, 22/2/18 and 23/3/18
— The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and booking information.

27/01/2018 12:02 AM
Event. MHLA: Panel course - London, 26/2/18 and 27/2/18
— The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and booking information.

27/01/2018 12:01 AM
Upper Tribunal (reasons) case. M v An NHS Trust [2017] MHLO 39 (UT)
— "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made."

25/01/2018 12:01 AM
Scottish capacity case. Application by Darlington Borough Council in respect of the Adult: AB [2018] ScotSC 4
— "The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian."