Case Law Case Law UpdateUpdate

MHLA November 2014MHLA November 2014

Tam Gill & Sophy MilesTam Gill & Sophy Miles

Bostridge v Oxleas Bostridge v Oxleas NHS Foundation NHS Foundation

Trust (2014) EWCA Trust (2014) EWCA Civ 1005Civ 1005

The backgroundThe background Permission to appeal to Court of Appeal grantedPermission to appeal to Court of Appeal granted B was discharged from detention by the FTT (Mental B was discharged from detention by the FTT (Mental

Health) in April 2009, discharge being deferred so a Health) in April 2009, discharge being deferred so a Community Treatment Order could be put in place. Community Treatment Order could be put in place.

However - The CTO was unlawful due to the However - The CTO was unlawful due to the deferred discharge date pre-dating the CTO; in deferred discharge date pre-dating the CTO; in other words he was not still detained at the point other words he was not still detained at the point the purported CTO came into being.the purported CTO came into being.

When his condition deteriorated in August 2009 and When his condition deteriorated in August 2009 and B was recalled to hospital and detained thereafter B was recalled to hospital and detained thereafter (with six days of leave) until November 2010, his (with six days of leave) until November 2010, his detention was at all stages – and was admitted by detention was at all stages – and was admitted by the Defendant Trust – to be unlawful.the Defendant Trust – to be unlawful.

The backgroundThe background The Defendant admitted that the period of The Defendant admitted that the period of

442 days amounted to false imprisonment 442 days amounted to false imprisonment and/or unlawful deprivation of liberty for and/or unlawful deprivation of liberty for purposes of Article 5 ECHR.purposes of Article 5 ECHR.

BB ’’s case was reviewed twice by a Tribunal s case was reviewed twice by a Tribunal during his detention (with no one realising during his detention (with no one realising the fact that the detention was unlawful) the fact that the detention was unlawful)

On both occasions the Tribunal found that On both occasions the Tribunal found that his condition warranted continued his condition warranted continued detention. B never realised that his detention. B never realised that his detention was unlawful, nor did anyone detention was unlawful, nor did anyone involved in his care involved in his care

Court of First InstanceCourt of First Instance

There was no evidence that B had There was no evidence that B had suffered damage during the period of suffered damage during the period of unlawful detention due to his being unlawful detention due to his being unlawfully detained, and that he would unlawfully detained, and that he would have suffered the same unhappiness have suffered the same unhappiness and distress had been lawfully and distress had been lawfully detained. detained.

Q: how to assess the quantum of Q: how to assess the quantum of damages that fell to be awarded B for damages that fell to be awarded B for both false imprisonment and unlawful both false imprisonment and unlawful deprivation of liberty?deprivation of liberty?

Court of First InstanceCourt of First Instance Following the case of Following the case of LumbaLumba:: 1. the tort of false imprisonment is 1. the tort of false imprisonment is

established even where the detention has established even where the detention has caused no loss because it would have been caused no loss because it would have been inevitable if the detainer had acted lawfully; inevitable if the detainer had acted lawfully;

2. there is no principle in the law of England 2. there is no principle in the law of England and Wales of and Wales of ““vindicatoryvindicatory”” damages; damages;

3. where there is no loss suffered as a 3. where there is no loss suffered as a consequence of unlawful detention, damages consequence of unlawful detention, damages for false imprisonment will be nominal. for false imprisonment will be nominal.

Nominal damages awarded to B (£1.00)Nominal damages awarded to B (£1.00)

Court of First InstanceCourt of First Instance

Court of First Instance in Court of First Instance in Bostridge Bostridge held held that: that:

It being accepted that there was no loss: the It being accepted that there was no loss: the Claimant would have been detained had his Claimant would have been detained had his illness been correctly addressed via s.3 MHA illness been correctly addressed via s.3 MHA 1983, as it should have been on 19 August 1983, as it should have been on 19 August 2009, and thereafter he would have received 2009, and thereafter he would have received precisely the same treatment and he would precisely the same treatment and he would have been discharged in September 2011. have been discharged in September 2011. HHJ Hand QC therefore held that he was HHJ Hand QC therefore held that he was entitled to judgment and to nominal damages. entitled to judgment and to nominal damages.

The appeal applicationThe appeal application B applied for permission to appeal. The transcript of B applied for permission to appeal. The transcript of

the permission hearing before Kitchin LJ ([2014] the permission hearing before Kitchin LJ ([2014] EWCA Civ 1005) contains the following material EWCA Civ 1005) contains the following material passages: passages:

““ Mr Drabble submits that in approaching the matter Mr Drabble submits that in approaching the matter as he did the judge fell into error because the as he did the judge fell into error because the decisions of the Supreme Court in Lumba and decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages Kambadzi do not establish that only nominal damages follow where there was a complete absence of follow where there was a complete absence of statutory authority for a detention. statutory authority for a detention.

To the contrary, Mr Drabble argues, there is a To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there distinction between an unlawful detention where there was no threshold power to detain and detention which was no threshold power to detain and detention which is unlawful on other grounds despite there having is unlawful on other grounds despite there having been lawful authority to detain in the first place. been lawful authority to detain in the first place.

The appeal applicationThe appeal application Moreover, Mr Drabble continues, the Act Moreover, Mr Drabble continues, the Act

reflects the particular importance of reflects the particular importance of compliance with the procedural compliance with the procedural requirements for lawful detention and it is requirements for lawful detention and it is simply no answer to the appellant's claim to simply no answer to the appellant's claim to say that he could have been detained had the say that he could have been detained had the appropriate procedures been followed. appropriate procedures been followed.

What is more, says Mr Drabble, the appellant What is more, says Mr Drabble, the appellant has lost the protection of the rights and has lost the protection of the rights and procedures which Parliament has provided in procedures which Parliament has provided in the Act for vulnerable persons such as him. the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss.That, he says, is a real not a nominal loss.””

The view of the Court of The view of the Court of AppealAppeal

The Court of Appeal, in granting permission, note:The Court of Appeal, in granting permission, note: ““these are points which merit consideration by this these are points which merit consideration by this

court, both because an appeal would have a court, both because an appeal would have a reasonable prospect of success and because the reasonable prospect of success and because the appeal raises a point of principle, namely the appeal raises a point of principle, namely the approach to be adopted where a person responsible approach to be adopted where a person responsible for an unlawful detention was not in a position for an unlawful detention was not in a position lawfully to detain the subject without ensuring that lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, an important condition precedent had been fulfilled, the condition precedent being compliance with the the condition precedent being compliance with the safeguards contained in section 3 of the Act. safeguards contained in section 3 of the Act.

Further, in the circumstances of this case, Further, in the circumstances of this case, compliance with those safeguards was not a matter compliance with those safeguards was not a matter which lay wholly within the power of the respondent.which lay wholly within the power of the respondent.””

Comment (1)Comment (1)

Local authorities and CCGs will be likely Local authorities and CCGs will be likely to looking to the appeal with some to looking to the appeal with some interest given that – if (in broad terms) interest given that – if (in broad terms) HHJ Hand QCHHJ Hand QC’’s approach is correct – s approach is correct – this will have a significant impact upon this will have a significant impact upon the quantum of any damages that those the quantum of any damages that those whom the decision of the Supreme Court whom the decision of the Supreme Court in in Cheshire WestCheshire West have shown are have shown are unlawfully deprived of their liberty unlawfully deprived of their liberty might be able to recover might be able to recover

Comment (2)Comment (2)

Lumba and Kambadzi were immigration Lumba and Kambadzi were immigration cases where the original detentions cases where the original detentions were lawful but became unlawful due were lawful but became unlawful due to public law breaches in that the Home to public law breaches in that the Home Office ( as a result of public outrage Office ( as a result of public outrage over the release of "criminals" prior to over the release of "criminals" prior to deportation) operating a succession of deportation) operating a succession of secret policies which amounted to a secret policies which amounted to a "near blanket ban" [ Lumba, Para 5] on "near blanket ban" [ Lumba, Para 5] on release. release.

R(L) v WLMH NHS R(L) v WLMH NHS Trust [2014] EWCA Trust [2014] EWCA

Civ 47Civ 47

The backgroundThe background L was transferred from an NHS - MSU in L was transferred from an NHS - MSU in

the South to enhanced MSU in the the South to enhanced MSU in the private sector in the North following private sector in the North following increase in risksincrease in risks

At the unit in the North, his risks At the unit in the North, his risks increased again, and he was placed in increased again, and he was placed in seclusionseclusion

Due to the serious and imminent risk he Due to the serious and imminent risk he posed to himself and to others, a referral posed to himself and to others, a referral was made to the high secure estate for was made to the high secure estate for assessment and admissionassessment and admission

Court of First InstanceCourt of First Instance CFI set out a 830-odd paragraph CFI set out a 830-odd paragraph

decision, which was appealed by the decision, which was appealed by the Trust in which the HSH satTrust in which the HSH sat

CFI listed all manner of requirements to CFI listed all manner of requirements to be considered…be considered…

Court of Appeal set out an simpler and Court of Appeal set out an simpler and more relevant outline for the procedure more relevant outline for the procedure to be considered when referring patients to be considered when referring patients ““upup”” the security ladder from MSU to the security ladder from MSU to HSH (in a much shorter judgement)HSH (in a much shorter judgement)

Court of Appeal:Court of Appeal: ‘‘The common law duty to act fairly was engaged when The common law duty to act fairly was engaged when

a decision was made as to whether to transfer a a decision was made as to whether to transfer a patient detained under the Mental Health Act 1983 patient detained under the Mental Health Act 1983 from a medium to a high security hospital. from a medium to a high security hospital.

Where the decision was largely a Where the decision was largely a clinically-based clinically-based decisiondecision with a rationing aspect, there was a with a rationing aspect, there was a need for need for circumspectioncircumspection as to what procedure was required. as to what procedure was required.

Absent urgency, a clinical reason precluding Absent urgency, a clinical reason precluding notification, or some other reason such as the notification, or some other reason such as the exposure of other patients or staff to the risk of harm, exposure of other patients or staff to the risk of harm, the the ““gistsgists”” of the letter of reference to the high of the letter of reference to the high security hospital by the hospital that wished to security hospital by the hospital that wished to transfer the patient and the assessment by the transfer the patient and the assessment by the clinician from the high security hospital clinician from the high security hospital ought to be ought to be providedprovided to the patient and/or his representative, to the patient and/or his representative,

……and the patient should be and the patient should be afforded an opportunityafforded an opportunity to to make written submissions to the decision-making make written submissions to the decision-making panel.panel.’’

CommentComment

In practical terms, what this judgement In practical terms, what this judgement does is set out a procedure that should does is set out a procedure that should be followed when patients are to be be followed when patients are to be referred to the high secure estatereferred to the high secure estate

In practice, LR would write to the RC, In practice, LR would write to the RC, asking for the referral letter and the asking for the referral letter and the assessment report, thereafter take assessment report, thereafter take clientclient’’s instructions and make written s instructions and make written representations to the HSH Admissions representations to the HSH Admissions Panel on behalf of the clientPanel on behalf of the client

R (Lee-Hirons) v R (Lee-Hirons) v SSJ (2013) EWHC SSJ (2013) EWHC

1784 (Admin) 1784 (Admin)

The backgroundThe background

LH claimed that the decision of the LH claimed that the decision of the Defendant, the Secretary of State for Defendant, the Secretary of State for Justice (SSJ) to recall him, pursuant to Justice (SSJ) to recall him, pursuant to s.42(3) of the Mental Health Act 1983 s.42(3) of the Mental Health Act 1983 to be detained in a hospital on 19 July to be detained in a hospital on 19 July 2012 was unlawful. LH sought a 2012 was unlawful. LH sought a declaration to that effect and damages declaration to that effect and damages for false imprisonment, or pursuant to for false imprisonment, or pursuant to the Human Rights Act 1998 the Human Rights Act 1998

The backgroundThe background

10 November 2006 - LH was convicted of 10 November 2006 - LH was convicted of arson and burglary. He was made subject to arson and burglary. He was made subject to s.37 and 41 MHA s.37 and 41 MHA

There was a difference in opinion as to the There was a difference in opinion as to the diagnosis of LH over the course of his diagnosis of LH over the course of his admission.admission.

LH was conditionally discharged by the LH was conditionally discharged by the tribunal on 11 June 2012 tribunal on 11 June 2012

LH was recalled by S/S on 19 July 2012LH was recalled by S/S on 19 July 2012 The recall warrant didnThe recall warrant didn’’t set out reasons for t set out reasons for

recall, of which LH was informed orally.recall, of which LH was informed orally.

The legal positionThe legal position

Secretary of State has power to recall Secretary of State has power to recall CDCD’’d patientd patient

But: But: ““he has to believe on reasonable he has to believe on reasonable grounds that something has happened, grounds that something has happened, or information has emerged, of or information has emerged, of sufficient significance to justify sufficient significance to justify recalling the patientrecalling the patient”” – see: – see: R(MM) v R(MM) v Secretary of State for the Home Secretary of State for the Home Department Department [2007] EWCA Civ 687 at at para 50para 50

The legal positionThe legal position

S/S has to consider whether there S/S has to consider whether there had been such a material change of had been such a material change of circumstances since the Tribunal's circumstances since the Tribunal's decision that he could reasonably decision that he could reasonably form the view that the detention form the view that the detention criteria were now satisfiedcriteria were now satisfied““ - see - see R(M) v Secretary of State for the R(M) v Secretary of State for the Home Department [2008] EWHC Home Department [2008] EWHC 3638 (Admin) 3638 (Admin)

The convention rightsThe convention rights

Article 5(2), which applies to all the Article 5(2), which applies to all the reasons for detention provided for in reasons for detention provided for in article 5(1), provides that "article 5(1), provides that "everyone everyone who is arrested shall be informed who is arrested shall be informed promptly, in a language which he promptly, in a language which he understands, of the reasons for his understands, of the reasons for his arrest and any charge against himarrest and any charge against him". ".

The issuesThe issues

Was SS under a duty to provide written Was SS under a duty to provide written reasons for recall? reasons for recall?

LH asserted that the giving of written LH asserted that the giving of written reasons for recall is a condition reasons for recall is a condition precedent to the lawful recall of the precedent to the lawful recall of the person being detained person being detained

LH also said that as recall was unlawful, LH also said that as recall was unlawful, his subsequent detention was also his subsequent detention was also unlawful.unlawful.

CFI disagreed with LHCFI disagreed with LH

Court of First InstanceCourt of First Instance

The decision to recall the Claimant was The decision to recall the Claimant was lawful because there had been a lawful because there had been a deterioration in his mental health since the deterioration in his mental health since the hearing before the Tribunal. I find that hearing before the Tribunal. I find that there is a duty to give the patient who is there is a duty to give the patient who is being recalled oral reasons for that being recalled oral reasons for that decision. I am satisfied that the Claimant decision. I am satisfied that the Claimant was told of the reasons for his recall. I was told of the reasons for his recall. I therefore dismiss the claim for damages for therefore dismiss the claim for damages for false imprisonment and breaches of article false imprisonment and breaches of article 5 of the ECHR, and I dismiss the claim for a 5 of the ECHR, and I dismiss the claim for a declaration declaration

Why? (per Dingemans J)Why? (per Dingemans J) ““First the critical matter is for the First the critical matter is for the

recalled person to know why he is being recalled person to know why he is being detained and oral reasons, which must detained and oral reasons, which must be provided, will provide that be provided, will provide that information.information.””

““Secondly there are many practical Secondly there are many practical reasons why the provision of written reasons why the provision of written reasons before recall will be difficult, for reasons before recall will be difficult, for example in emergencies, or where the example in emergencies, or where the location of the person liable to be location of the person liable to be detained is not knowndetained is not known””

Why? (per Dingemans J)Why? (per Dingemans J)

““Thirdly, types of mental disorder can Thirdly, types of mental disorder can vary very significantly. The provision of vary very significantly. The provision of written reasons to a patient will not written reasons to a patient will not always be the most effective way of always be the most effective way of communicating the reasons for recall. communicating the reasons for recall. The current practice of requiring the RC The current practice of requiring the RC to explain to the patient the reasons for to explain to the patient the reasons for recall means that the RC can explain the recall means that the RC can explain the reasons in a manner that is most likely reasons in a manner that is most likely to be fully understood by the patientto be fully understood by the patient””

Why? (per Dingemans J)Why? (per Dingemans J)

““Finally the fact that written reasons are Finally the fact that written reasons are not required to be provided before the not required to be provided before the lawful arrest of a person by the police, lawful arrest of a person by the police, strongly suggests that written reasons are strongly suggests that written reasons are not likely to be required before the lawful not likely to be required before the lawful detention of a person who is liable to recall detention of a person who is liable to recall under the Mental Health Act. I can see under the Mental Health Act. I can see nothing in nothing in R(O) v West London Mental R(O) v West London Mental Health TrustHealth Trust or Article 5(2) of the ECHR or Article 5(2) of the ECHR which requires a different conclusionwhich requires a different conclusion””

R (Lee-Hirons) v SSJ (2014) R (Lee-Hirons) v SSJ (2014) EWCA Civ 553EWCA Civ 553

Unsuccessful appealUnsuccessful appeal Where the Secretary of State recalled a Where the Secretary of State recalled a

person to be detained in hospital under person to be detained in hospital under section 42(3) of the Mental Health Act 1983, section 42(3) of the Mental Health Act 1983, the Secretary of State was not under a duty at the Secretary of State was not under a duty at common law nor under article 5.1 of the common law nor under article 5.1 of the Convention for the Protection of Human Convention for the Protection of Human Rights and Fundamental Freedoms to give his Rights and Fundamental Freedoms to give his reasons for the personreasons for the person’’s detention s detention immediately when he was detained and thus immediately when he was detained and thus such reasons were not required to be given in such reasons were not required to be given in writing upon detention. However, article 5.2 writing upon detention. However, article 5.2 required those reasons to be adequately and required those reasons to be adequately and promptly given to him following his detention. promptly given to him following his detention.

per Sir Stanley Burton…per Sir Stanley Burton… Article 5.1 of the Convention for the Protection of Human Article 5.1 of the Convention for the Protection of Human

Rights and Fundamental Freedoms required that a person Rights and Fundamental Freedoms required that a person should be promptly and adequately informed of the facts should be promptly and adequately informed of the facts and legal authority relied upon to deprive him of his and legal authority relied upon to deprive him of his liberty but did not require that information to be given to liberty but did not require that information to be given to the person immediately when he was detained. the person immediately when he was detained.

That duty was intended to be satisfied by providing an That duty was intended to be satisfied by providing an explanation for the recall within 72 hours, as stipulated in explanation for the recall within 72 hours, as stipulated in health service guidelines HSG (93)(20) issued by the health service guidelines HSG (93)(20) issued by the Department of Health in April 1993 and which Department of Health in April 1993 and which supplemented the statutory provisions. supplemented the statutory provisions.

Since article 5.1 did not require the reasons for the Since article 5.1 did not require the reasons for the detention of the person to be given to him when he was detention of the person to be given to him when he was detained then it did not require those reasons to be given detained then it did not require those reasons to be given in writing when he was detained. in writing when he was detained.

Article 5.2 required those reasons to be adequately and Article 5.2 required those reasons to be adequately and promptly given to him following his detention. promptly given to him following his detention.

Per Sir Stanley BurtonPer Sir Stanley Burton HSG (93) (20) and local authority circular LAC HSG (93) (20) and local authority circular LAC

(93)9 provided an obligation to provide to the (93)9 provided an obligation to provide to the person an explanation for the recall as soon as person an explanation for the recall as soon as possible after readmission to hospital and in any possible after readmission to hospital and in any event within 72 hours and a written explanation event within 72 hours and a written explanation within 72 hours. within 72 hours.

As the Secretary of State had not complied with As the Secretary of State had not complied with his duty to provide adequate reasons within 72 his duty to provide adequate reasons within 72 hours and the reasons for such failure were not hours and the reasons for such failure were not good reasons, he had therefore breached both good reasons, he had therefore breached both the policy and article 5.2. the policy and article 5.2.

However, those breaches did not render the However, those breaches did not render the claimantclaimant’’s recall and detention unlawful. s recall and detention unlawful.

CommentComment

May be a positive effect through May be a positive effect through raising awareness of the existing raising awareness of the existing guidance on loal authorities and the guidance on loal authorities and the health servicehealth service

Practitioners will wish to check this Practitioners will wish to check this is being complied with in recall is being complied with in recall cases.cases.

HK v Llanarth HK v Llanarth Court Hospital Court Hospital [2014] UKUT [2014] UKUT 0410 (AAC)0410 (AAC)

The backgroundThe background HK was placed under s.3 on 21 August HK was placed under s.3 on 21 August

2013 and appealed to the FTT(MH) whilst 2013 and appealed to the FTT(MH) whilst at a hospital in Englandat a hospital in England

HK was transferred to Llanarth Court in HK was transferred to Llanarth Court in Wales on 27 September 2013Wales on 27 September 2013

Mental Health Tribunal for Wales Mental Health Tribunal for Wales (MHTW) adjourned hearing listed for 17 (MHTW) adjourned hearing listed for 17 January 2014 due to late service of January 2014 due to late service of reportsreports

MHTW sat on 14 March 2014 to hear MHTW sat on 14 March 2014 to hear casecase

HKHK’’s application to s application to MHTWMHTW

Sought statutory recommendation Sought statutory recommendation either for transfer to another either for transfer to another hospital or for RC to consider CTO…hospital or for RC to consider CTO…

……or in the alternative for MHTW to or in the alternative for MHTW to adjourn and make directions for adjourn and make directions for further information as to the further information as to the statutory recommendations sought.statutory recommendations sought.

MHTWMHTW’’s decisions decision

Did not make a statutory Did not make a statutory recommendationrecommendation

Did not adjourn for further informationDid not adjourn for further information Did not dischargeDid not discharge Did not provide adequate reasons for Did not provide adequate reasons for

the above.the above.

On 11 April 2014, permission granted On 11 April 2014, permission granted by MHTW for HK to appeal to UKUTby MHTW for HK to appeal to UKUT

The case law (1)The case law (1) English v Emery Reimbold & Strick Ltd [2002] 1 English v Emery Reimbold & Strick Ltd [2002] 1

WLR 2409, CAWLR 2409, CA

‘‘Justice will not be done if it is not apparent to the Justice will not be done if it is not apparent to the parties why one has won and the other has lostparties why one has won and the other has lost’’. .

This does not mean that every factor which weighed This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to with the judge in his appraisal of the evidence has to be identified and explained. But the issues the be identified and explained. But the issues the resolution of which were vital to the judgeresolution of which were vital to the judge’’s s conclusion should be stated and the manner in which conclusion should be stated and the manner in which he resolved them explained. It does require the judge he resolved them explained. It does require the judge to identify and record those matters which were to identify and record those matters which were critical to his decision. critical to his decision.

The case law (2)The case law (2) JLG v Managers of Llanarth Court & JLG v Managers of Llanarth Court &

Secretary of State for Justice [2011] UKUT Secretary of State for Justice [2011] UKUT 62 (AAC)62 (AAC)

““……The essence of the legal requirement for a The essence of the legal requirement for a tribunaltribunal’’s decision is that: (i) the tribunal asked s decision is that: (i) the tribunal asked itself the correct legal questions; (ii) it made itself the correct legal questions; (ii) it made findings of fact that were rationally based in the findings of fact that were rationally based in the evidence; and (iii) it answered the legal evidence; and (iii) it answered the legal questions appropriately given its findings of questions appropriately given its findings of fact. Additionally, the tribunal must: (iv) given fact. Additionally, the tribunal must: (iv) given the parties a fair hearing; and (v) provide the parties a fair hearing; and (v) provide adequate reasons. In simple terms, the issue is adequate reasons. In simple terms, the issue is whether the tribunal did its job properly…whether the tribunal did its job properly…””

UKUTUKUT’’s views…s views…

It would be helpful if tribunals set out their It would be helpful if tribunals set out their reasons by reference to the relevant criteria reasons by reference to the relevant criteria for detentionfor detention

Reasons should address how the tribunal dealt Reasons should address how the tribunal dealt with any disputes either as to law or with any disputes either as to law or evidence… failing to address explicitly any evidence… failing to address explicitly any applications made by a party may render a set applications made by a party may render a set of reasons inadequate. A prudent tribunal may of reasons inadequate. A prudent tribunal may wish to explain briefly why it has not resolved wish to explain briefly why it has not resolved a factual disputea factual dispute

UKUT’s viewsUKUT’s views

The reasons themselves must be The reasons themselves must be clear and unambiguousclear and unambiguous

Rehearsing what each witness has Rehearsing what each witness has said, without more, is liable to said, without more, is liable to render a set of reasons erroneous in render a set of reasons erroneous in law – need to explain the facts found law – need to explain the facts found in respect of the evidence and the in respect of the evidence and the conclusions then reachedconclusions then reached

UKUT’s viewsUKUT’s views

It is not necessary for the reasons to It is not necessary for the reasons to mention all of the evidence… but it mention all of the evidence… but it should… identify and resolve should… identify and resolve evidence and applications which are evidence and applications which are in dispute. in dispute.

WhatWhat’’s wrong with a set of s wrong with a set of inadequate reasons?inadequate reasons?

Difficult to discern precisely what the Difficult to discern precisely what the tribunal foundtribunal found

Leaves the patient second-guessing why Leaves the patient second-guessing why the criteria for detention are satisfiedthe criteria for detention are satisfied

““left in the darkleft in the dark”” as to evidential as to evidential conclusion for statements made in the conclusion for statements made in the reasons.reasons.

Poor reasons raise doubt as to whether Poor reasons raise doubt as to whether tribunal has dealt fairly with the casetribunal has dealt fairly with the case

Article 5 considerations Article 5 considerations

R oao LV v (1)SofS R oao LV v (1)SofS for Justice and (2) for Justice and (2)

Parole Board Parole Board [2014] EWHC 1495[2014] EWHC 1495

S74 MHAS74 MHA Applies to those subject to transfer and Applies to those subject to transfer and

restriction directionsrestriction directions LV had chaotic background and criminal LV had chaotic background and criminal

history as well as mental illnesshistory as well as mental illness Sentenced to indeterminate sentence for Sentenced to indeterminate sentence for

public protectionpublic protection Then transferred to hospital (St Then transferred to hospital (St

Andrews) after minimum period expired.Andrews) after minimum period expired. 2 regimes running- sentence and MHA2 regimes running- sentence and MHA

LVLV’’s Tribunals Tribunal

Nothing more to be achieved at St Nothing more to be achieved at St AndrewsAndrews

Transfer to prison would be step Transfer to prison would be step backwardsbackwards

Should move to Should move to ““step downstep down”” hospital hospital placementplacement”” to monitor progress in to monitor progress in reduced security and if S of S agrees reduced security and if S of S agrees with recommendation Tribunal will with recommendation Tribunal will reconvene and see if conditions set for reconvene and see if conditions set for discharge were or could be metdischarge were or could be met

Tribunal to MoJTribunal to MoJ

Had LV been subject to restriction Had LV been subject to restriction order would have been entitled to CD order would have been entitled to CD (s74(1)(a)(s74(1)(a)

If not discharged should remain in If not discharged should remain in hospital (rather than be returned to hospital (rather than be returned to prison)(s74(1)(b))prison)(s74(1)(b))

MoJ has 90 days in which to decide MoJ has 90 days in which to decide whether to discharge under MHA.whether to discharge under MHA.

But what about the sentence?But what about the sentence?

Parole BoardParole Board

Policy in force at time was to refer Policy in force at time was to refer for expedited hearing of parole for expedited hearing of parole board to consider suitability of board to consider suitability of release from hospitalrelease from hospital

In fact hearing was not expedited In fact hearing was not expedited due to use of wrong policy and took due to use of wrong policy and took place almost 2 years after Tribunalplace almost 2 years after Tribunal

Parole Board did not direct release Parole Board did not direct release so CD could not take effectso CD could not take effect

s.74 MHAs.74 MHA Restricted patients subject to restriction Restricted patients subject to restriction

directions directions 74.—(1) Where an application to [the appropriate 74.—(1) Where an application to [the appropriate

tribunal] is made by a restricted patient who is subject tribunal] is made by a restricted patient who is subject to [a limitation direction or] a restriction direction, or to [a limitation direction or] a restriction direction, or where the case of such a patient is referred to [the where the case of such a patient is referred to [the appropriate tribunal], the tribunal— appropriate tribunal], the tribunal— (a) shall notify the Secretary of State whether, in [its] (a) shall notify the Secretary of State whether, in [its]

opinion, the patient would, if subject to a restriction opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally order, be entitled to be absolutely or conditionally discharged under section 73 above; and discharged under section 73 above; and

(b) if [the tribunal notifies] him that the patient (b) if [the tribunal notifies] him that the patient would be entitled to be conditionally discharged, may would be entitled to be conditionally discharged, may recommend that in the event of his not being recommend that in the event of his not being discharged under this section he should continue to discharged under this section he should continue to be detained in hospital.be detained in hospital.

s.74 (cont.)s.74 (cont.) (2) If in the case of a patient not falling within (2) If in the case of a patient not falling within

subsection (4) below— subsection (4) below— (a) the tribunal [notifies] the Secretary of (a) the tribunal [notifies] the Secretary of

State that the patient would be entitled to be State that the patient would be entitled to be absolutely or conditionally discharged; and absolutely or conditionally discharged; and

(b) within the period of 90 days beginning (b) within the period of 90 days beginning with the date of that notification the with the date of that notification the Secretary of State gives notice to the tribunal Secretary of State gives notice to the tribunal that the patient may be so discharged, the that the patient may be so discharged, the tribunal shall direct the absolute or, as the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the case may be, the conditional discharge of the patient. patient.

s.74 (cont.)s.74 (cont.)

(3) Where a patient continues to be liable to be (3) Where a patient continues to be liable to be detained in a hospital at the end of the period detained in a hospital at the end of the period referred to in subsection (2)(b) above because referred to in subsection (2)(b) above because the Secretary of State has not given the notice the Secretary of State has not given the notice there mentioned, the managers of the hospital there mentioned, the managers of the hospital shall unless [the tribunal has]made a shall unless [the tribunal has]made a recommendation under subsection (1)(b) above, recommendation under subsection (1)(b) above, transfer the patient to a prison or other transfer the patient to a prison or other institution in which he might have been institution in which he might have been detained if he had not been removed to detained if he had not been removed to hospital, there to be dealt with as if he had not hospital, there to be dealt with as if he had not been so removed. been so removed.

s.74 (cont.)s.74 (cont.) 4) If, in the case of a patient who is subject to a 4) If, in the case of a patient who is subject to a

transfer direction under section 48 above, the tribunal transfer direction under section 48 above, the tribunal [notifies] the Secretary of State that the patient would [notifies] the Secretary of State that the patient would be entitled to be absolutely or conditionally be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless [the discharged, the Secretary of State shall, unless [the tribunal has] made a recommendation under tribunal has] made a recommendation under subsection (1)(b) above, by warrant direct that the subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in patient be remitted to a prison or other institution in which he might have been detained if he had not been which he might have been detained if he had not been removed to hospital, there to be dealt with as if he removed to hospital, there to be dealt with as if he had not been so removed. had not been so removed.

(5) Where a patient is transferred or remitted under (5) Where a patient is transferred or remitted under subsection (3) or (4) above [the relevant hospital subsection (3) or (4) above [the relevant hospital direction and the limitation direction or, as the case direction and the limitation direction or, as the case may be,] the relevant transfer direction and the may be,] the relevant transfer direction and the restriction direction shall cease to have effect on his restriction direction shall cease to have effect on his arrival in the prison or other institution. arrival in the prison or other institution.

s.74 (cont.)s.74 (cont.) [(5A) Where [the tribunal has] made a recommendation under [(5A) Where [the tribunal has] made a recommendation under

subsection (1)(b) above in the case of a patient who is subject subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction- to a restriction direction or a limitation direction- (a) the fact that the restriction direction or limitation (a) the fact that the restriction direction or limitation

direction remains in force does not prevent the making of direction remains in force does not prevent the making of any application or reference to the Parole Board by or in any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the require the Secretary of State to refer his case to the Parole Board, and Parole Board, and

(b) if the Parole Board make a direction or recommendation (b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any released (whether unconditionally or on licence) from any prison or other institution in which he might have been prison or other institution in which he might have been detained if he had not been removed to hospital, the detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to have effect at the time when he would become entitled to be so released.]be so released.]

The Legal Framework if the The Legal Framework if the MoJ does not discharge MoJ does not discharge

after Tribunalafter Tribunal If LV had been serving a determinate sentence If LV had been serving a determinate sentence

which was not completed- Tribunal which was not completed- Tribunal recommendation would mean transfer back to recommendation would mean transfer back to prison, unless remains in hospital under s74(1)(b). prison, unless remains in hospital under s74(1)(b). Retains right to Parole hearing,s74(5A)Retains right to Parole hearing,s74(5A)

If had been serving determinate sentence which If had been serving determinate sentence which was completed-notional s37was completed-notional s37

If serving indeterminate sentence and minimum If serving indeterminate sentence and minimum period not completed- Tribunal recommendation period not completed- Tribunal recommendation would mean transfer to prison or remaining in would mean transfer to prison or remaining in hospital till the minimum period had expired. hospital till the minimum period had expired. S74(5A) appliesS74(5A) applies

As LVAs LV’’s minimum term had expired she would be s minimum term had expired she would be referred to the Parole Board, given that the MoJ did referred to the Parole Board, given that the MoJ did not give notice that the discharge could take effect.not give notice that the discharge could take effect.

LVLV’’s complaintss complaints

Breach of A5(4) because of delay in Breach of A5(4) because of delay in setting the hearing- court accepted setting the hearing- court accepted wrong policy had been followed but LV wrong policy had been followed but LV had moved to step down hospital and had moved to step down hospital and other factors meant that there was no other factors meant that there was no breach of requirement of speedy hearingbreach of requirement of speedy hearing

The Parole Board and the Tribunal were The Parole Board and the Tribunal were effectively considering the same issues ie effectively considering the same issues ie risk arising from LVrisk arising from LV’’s mental disorders mental disorder

The The ““conceptual conceptual distinctiondistinction””

Hospital order appropriate where the Hospital order appropriate where the offending proceeds from mental disorderoffending proceeds from mental disorder

In transfer and restriction patients, In transfer and restriction patients, ““criminal responsibility subsistscriminal responsibility subsists””..

The Tribunal considered risks arising The Tribunal considered risks arising from LVfrom LV’’s mental disorder; the Parole s mental disorder; the Parole Board considers wider issues including Board considers wider issues including her criminal historyher criminal history

No breach of Article 5No breach of Article 5

Comment Comment

Useful mainly as a clear exposition Useful mainly as a clear exposition of how this process worksof how this process works

Is the “conceptual distinction” that Is the “conceptual distinction” that clearcut?clearcut?

TW v Enfield Borough TW v Enfield Borough Council [2014] EWCA Civ Council [2014] EWCA Civ

362362

BackgroundBackground TW was admitted to hospital under s3 in 2007 TW was admitted to hospital under s3 in 2007

(before MHA was amended by 2007 Act)(before MHA was amended by 2007 Act) NR was not consulted on basis not reasonably NR was not consulted on basis not reasonably

practical: TW did not wish family to be practical: TW did not wish family to be consulted and there was evidence that this consulted and there was evidence that this would cause her distress.would cause her distress.

S.139 required permission of the Court- S.139 required permission of the Court- refused by Bean J as claim bound to fail. It was refused by Bean J as claim bound to fail. It was not reasonably practical to consult NR because not reasonably practical to consult NR because this would violate TW’s Article 8 rightsthis would violate TW’s Article 8 rights

ASW’s conclusionASW’s conclusion

ASW had consulted NR earlier who ASW had consulted NR earlier who advised against attempting assessment. advised against attempting assessment. TW was distressed, made a complaint TW was distressed, made a complaint about breach of confidentiality and about breach of confidentiality and relationship with clinical team was relationship with clinical team was affected.affected.

TW accused family of assaults including TW accused family of assaults including sexual abusesexual abuse

ASW concluded not reasonably practical ASW concluded not reasonably practical to consult NRto consult NR

Judgment of Bean J: Judgment of Bean J: [2013] EWHC 1190 QBD[2013] EWHC 1190 QBD

Followed R(E) v Bristol City Council Followed R(E) v Bristol City Council [2005] 1 MHLR 83[2005] 1 MHLR 83

Consultation must be real exerciseConsultation must be real exercise Stressed the importance of patient’s Stressed the importance of patient’s

Article 8 rights; subsequently reflected in Article 8 rights; subsequently reflected in Code of Practice: 4.60- 4.62Code of Practice: 4.60- 4.62

ASW entitled to consider it was NOT ASW entitled to consider it was NOT reasonably practicable to consult NR reasonably practicable to consult NR where patient does not want contact to be where patient does not want contact to be made and distress may affect healthmade and distress may affect health..

The judgment of the The judgment of the Court of AppealCourt of Appeal

Definition of “Practicable” must have Definition of “Practicable” must have sufficient elasticity to take account of sufficient elasticity to take account of different including urgent circumstancesdifferent including urgent circumstances

Article 8 is qualified- interferences must Article 8 is qualified- interferences must be “in accordance with the law” and in be “in accordance with the law” and in pursuit of legitimate public end.pursuit of legitimate public end.

Obligation to consult may cause conflict Obligation to consult may cause conflict between rights under Article 8 and between rights under Article 8 and Article 5. Article 5.

The judgment of the The judgment of the Court of AppealCourt of Appeal

Consultation with NR is vital safeguardConsultation with NR is vital safeguard The fact that there is an infringement of The fact that there is an infringement of

Article 8 rights does NOT automatically Article 8 rights does NOT automatically mean that there should be no mean that there should be no consultation.consultation.

ASW must “strike a balance between the ASW must “strike a balance between the patient’s Article 5 right not to be patient’s Article 5 right not to be detained unless that is done by a detained unless that is done by a procedure that is in accordance with the procedure that is in accordance with the law and the patient’s Article 8 right..”law and the patient’s Article 8 right..”

CommentComment

This important case imposes a This important case imposes a significant responsibility on an significant responsibility on an AMHP to weigh up patient’s Article AMHP to weigh up patient’s Article 5 rights against the right to privacy.5 rights against the right to privacy.

The Court also commented that the The Court also commented that the Code of Practice does not reflect the Code of Practice does not reflect the law.law.

The draft Code did not amend this The draft Code did not amend this but it is hoped the final version will!but it is hoped the final version will!

K (by his litigation friend) K (by his litigation friend)

v v

The Hospital Managers of the The Hospital Managers of the Kingswood Centre (1)Kingswood Centre (1)

&&

Central and North West London Central and North West London NHS Foundation Trust (2)NHS Foundation Trust (2)

[2014] EWCA Civ 1322[2014] EWCA Civ 1322

BackgroundBackground

K sought an order of habeas corpus. K’s mother, his nearest relative, had given

notice by fax of her intention to discharge K. The

Fax was addressed to the Mental Health Act Administrator marked “Private and Confidential To be opened by addressee only”.

The administrator worked part-time and the notice did not come to her attention until after the 72 hours had expired.

Mental Health (Hospital Guardianship and Treatment

Regulations 2008)

Contain provisions for service under which the nearest relative’s discharge order can served by delivery to the authorised officer, pre-paid post or- with the agreement of the managers- internal mail.

Notices sent by first class post deemed to have been served on the second business day following the day of posting; and on the fourth business day following the day of posting where second class post is used.

No provision for service by (eg) fax or email.

The ChallengeThe Challenge

R(Modaresi) v Sof S for Health R(Modaresi) v Sof S for Health [2013] [2013] UKSC 53: “UKSC 53: “It is the hospital which deprives It is the hospital which deprives the patient of her liberty. It is incumbent upon the patient of her liberty. It is incumbent upon the hospital to do this in accordance both with the hospital to do this in accordance both with the domestic law and with the patient's the domestic law and with the patient's Convention rights. A failure which deprives the Convention rights. A failure which deprives the patient of the right of access to a tribunal which patient of the right of access to a tribunal which the law provides may well (I put it no higher) be the law provides may well (I put it no higher) be a breach of the patient's Convention rights. The a breach of the patient's Convention rights. The only safe course is to have a system which only safe course is to have a system which ensures that this does not happen.”ensures that this does not happen.”

The Court of AppealThe Court of Appeal The NR discharge power is a safeguard against

arbitrary detention, but the barring process is also a safeguard

The hospital was responsible for putting into place systems to deal with documents that are served using the methods set out in the regulations

Where service is attempted using a method not specified in the regulations the risk is taken by the sender.

Time started to run from when the Administrator actually received the notice.

NL NL

vv

Hampshire County Hampshire County CouncilCouncil

[2014] UKUT 475[2014] UKUT 475

The statutory The statutory backgroundbackground

Powers of guardian under s8(1)Powers of guardian under s8(1)

a) a) the power to require the patient to reside at a the power to require the patient to reside at a place specified by the authority or person named as place specified by the authority or person named as guardian;guardian;

(b) the power to require the patient to attend at (b) the power to require the patient to attend at places and times so specified for the purpose of places and times so specified for the purpose of medical treatment, occupation, education or training;medical treatment, occupation, education or training;

(c) the power to require access to the patient to be (c) the power to require access to the patient to be given, at any place where the patient is residing, to given, at any place where the patient is residing, to any registered medical practitioner, [approved mental any registered medical practitioner, [approved mental health professional]health professional][1][1] or other person so specified. or other person so specified.

The statutory The statutory backgroundbackground

S72(4) places burden on patient:S72(4) places burden on patient: (4) Where application is made to [the appropriate (4) Where application is made to [the appropriate

tribunal] by or in respect of a patient who is tribunal] by or in respect of a patient who is subject to guardianship under this Act, the subject to guardianship under this Act, the tribunal may in any case direct that the patient be tribunal may in any case direct that the patient be discharged, and shall so direct if [it is]discharged, and shall so direct if [it is][[ satisfied— satisfied—

(a) that he is not then suffering from [mental (a) that he is not then suffering from [mental disorder];disorder];[[oror

(b) that it is not necessary in the interests of the (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of welfare of the patient, or for the protection of other persons, that the patient should remain other persons, that the patient should remain under such guardianship.under such guardianship.

The Code of PracticeThe Code of Practice

26.2 The purpose of guardianship is to enable 26.2 The purpose of guardianship is to enable patients to receive care outside hospital when patients to receive care outside hospital when it cannot be provided without the use of it cannot be provided without the use of compulsory powers. Such care may or may not compulsory powers. Such care may or may not include specialist medical treatment for include specialist medical treatment for mental disorder.mental disorder.

26.19 An application for guardianship should 26.19 An application for guardianship should be accompanied by a comprehensive care plan be accompanied by a comprehensive care plan established on the basis of multi-disciplinary established on the basis of multi-disciplinary discussions in accordance with the Care discussions in accordance with the Care Programme Approach (or its equivalent).Programme Approach (or its equivalent).

The Code of PracticeThe Code of Practice 26.26 Guardians have the power to decide where 26.26 Guardians have the power to decide where

patients should live. …patients should live. … 26.30 The power to require patients to reside in a 26.30 The power to require patients to reside in a

particular place may not be used to require them particular place may not be used to require them to live in a situation in which they are deprived of to live in a situation in which they are deprived of liberty, unless that is authorised separately under liberty, unless that is authorised separately under the MCA. That authorisation will only be possible the MCA. That authorisation will only be possible if the patient lacks capacity to decide where to if the patient lacks capacity to decide where to live. If deprivation of liberty is authorised under live. If deprivation of liberty is authorised under the MCA, the LSSA should consider whether the MCA, the LSSA should consider whether guardianship remains necessary, bearing in mind guardianship remains necessary, bearing in mind the guidance earlier in this chapter.the guidance earlier in this chapter.

L’s case at FTTL’s case at FTT

L had mild- moderate learning disabilities L had mild- moderate learning disabilities and was subject to guardianship.and was subject to guardianship.

L appealed to FTT who refused to L appealed to FTT who refused to discharge. discharge.

Parties agreed that L was deprived of his Parties agreed that L was deprived of his liberty and that the statutory criteria were liberty and that the statutory criteria were met.met.

L sought discretionary discharge.L sought discretionary discharge. FTT refused relying on FTT refused relying on GA v Betsi GA v Betsi

Cadwaladr UHB Cadwaladr UHB [2013] UKUT (AAC) 0280[2013] UKUT (AAC) 0280

GAGA

A decision that the statutory criteria are A decision that the statutory criteria are met involves a finding that treatment is met involves a finding that treatment is “necessary”.“necessary”.

Any discretionary discharge must be Any discretionary discharge must be consistent with this finding.consistent with this finding.

So there will only be exceptional cases So there will only be exceptional cases where the statutory criteria are satisfied, where the statutory criteria are satisfied, but where there are sufficient safeguards but where there are sufficient safeguards to make a discretionary discharge logical to make a discretionary discharge logical and consistent with the reasoning.and consistent with the reasoning.

L’s appeal to the UTTL’s appeal to the UTT

L argued thatL argued that Guardianship does not authorise a Guardianship does not authorise a

deprivation of libertydeprivation of liberty The burden should not be upon the patientThe burden should not be upon the patient The Tribunal had misinterpreted GAThe Tribunal had misinterpreted GA The local authority argued that The local authority argued that

guardianship was only relevant to whether guardianship was only relevant to whether L was free to leave: the other elements of L was free to leave: the other elements of control were part of his care plancontrol were part of his care plan

The UTT’s decisionThe UTT’s decision

The statutory powers given by The statutory powers given by guardianship are limited and it is guardianship are limited and it is “difficult to imagine” how they could be “difficult to imagine” how they could be used in a way that deprives a patient of used in a way that deprives a patient of his/her libertyhis/her liberty

It exists to provide framework for It exists to provide framework for delivery of the care plan. The potential delivery of the care plan. The potential for DoL lay in the care plan.for DoL lay in the care plan.

In this case the guardianship order did In this case the guardianship order did not give rise to a DoLnot give rise to a DoL

The UTT’s decisionThe UTT’s decision

The reasoning in GA applies to guardianship The reasoning in GA applies to guardianship and detention as well as CTOs: hard to and detention as well as CTOs: hard to imagine where there could be a discretionary imagine where there could be a discretionary discharge without appropriate safeguardsdischarge without appropriate safeguards

The wording of s72(4) places the legal The wording of s72(4) places the legal burden on the patient because guardianship burden on the patient because guardianship “is not designed to involve a deprivation of “is not designed to involve a deprivation of liberty”liberty”

Tribunals don’t have to proceed on the basis Tribunals don’t have to proceed on the basis of agreed concessions.of agreed concessions.

CommentComment

The The GAGA point- Arguments that might point- Arguments that might have put for discretionary discharge have put for discretionary discharge might be better framed as might be better framed as challenges to the criteria of challenges to the criteria of “necessity” (or justification for s2 “necessity” (or justification for s2 cases)cases)

Endorses the approach that Endorses the approach that guardianship should not authorise guardianship should not authorise deprivation of libertydeprivation of liberty

But…..But….. In this case it is understood that the restrictions In this case it is understood that the restrictions

etc in the care plan were not being enforced.etc in the care plan were not being enforced. Remember limits on powers of those providing Remember limits on powers of those providing

care:care: ““The essential point for present purposes is that The essential point for present purposes is that

none of these sources of local authority none of these sources of local authority engagement with someone like C confers on the engagement with someone like C confers on the local authority any power to regulate, control, local authority any power to regulate, control, compel, restrain, confine or coerce. They are compel, restrain, confine or coerce. They are concerned with the provision of services and concerned with the provision of services and support.” Per Lord Justice Munby, Re A and C support.” Per Lord Justice Munby, Re A and C [2010] EWHC 978 (Fam)[2010] EWHC 978 (Fam)

So…So…

Guardianship can be used for its statutory Guardianship can be used for its statutory purposes. It gets the patient in the right place purposes. It gets the patient in the right place for the guardian to offer the services.for the guardian to offer the services.

If the care plan itself amounts to complete and If the care plan itself amounts to complete and effective control, the logic of this reasoning is it effective control, the logic of this reasoning is it cannot be enforced using guardianship powers.cannot be enforced using guardianship powers.

But what about the compliant incapacitated But what about the compliant incapacitated patient- will guardianship now be used instead patient- will guardianship now be used instead of applications to COP?of applications to COP?

C v Blackburn with Derwent BC [2011] EWHC C v Blackburn with Derwent BC [2011] EWHC 33213321

Future Future DevelopmentsDevelopments

Re X Re X procedureprocedure

Re X Re X (Deprivation of Liberty) [2014] (Deprivation of Liberty) [2014] EWCOP 25 and EWCOP 25 and EWCOP 37. ) set out ) set out “streamlined procedure” in applications “streamlined procedure” in applications under s16 MCA;under s16 MCA;

Guidance on the information the court Guidance on the information the court will need and “triggers” to join P and/or will need and “triggers” to join P and/or hold an oral hearing.hold an oral hearing.

Second judgment raises possibility of P Second judgment raises possibility of P being represented without a litigation being represented without a litigation friend (as under TPR 11(7))friend (as under TPR 11(7))

Re X procedureRe X procedure

COP implementing over 2 “phases”COP implementing over 2 “phases” Phase 1- new Practice Direction 10AA Phase 1- new Practice Direction 10AA

(currently deals only with s21A MCA (currently deals only with s21A MCA appeals); new forms for applications, out appeals); new forms for applications, out in next few weeksin next few weeks

New judges recruited from Social New judges recruited from Social Entitlement Chamber (not HESC)Entitlement Chamber (not HESC)

Even though many cases will be Even though many cases will be uncontested will this lead to some uncontested will this lead to some contested hearings? contested hearings?

Re X Re X litigationlitigation

Applications for permission to appeal Applications for permission to appeal against judgments of Sir James Munby P against judgments of Sir James Munby P in in Re XRe X..

Points taken: whether P should always be Points taken: whether P should always be a party where an application is made to a party where an application is made to deprive him/her of liberty and whether deprive him/her of liberty and whether the default position should be an oral the default position should be an oral hearing.hearing.

TLS and some individuals applied for TLS and some individuals applied for permission; others may join.permission; others may join.

The Care Act 2014The Care Act 2014

Over-arching test of well-being, broadly defined and includes personal dignity, the person’s control over their life and contribution to society

A national eligibility standard (not set locally as now)

A real change to the position of carers: Defined as “an adult who provides or intends to

provide care for another adult” (s10(3)) Has the same right as a service user to

assessment, services if they meet eligibility criteria.

The Care Act 2014 and The Care Act 2014 and s117s117

A defiinition of after-care: “After- care services means services

which have both of the following purposes a. meeting a need arising from or related

to the person’s mental disorder ( and they make it clear that this means one or more disorders and not necessarily the md for which the person was detained)”, and

 

The Care Act 2014 and The Care Act 2014 and s117s117

b.reducing the risk of a deterioration of the person’s mental condition ( and accordingly , to reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder”

 NOTE Draft Code: 33.4: CCGs and local authorities should

interpret the definition…broadly..aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs.

The Care Act and s117The Care Act and s117

The relevant local authority will be the local authority for the area in England or Wales where the patient was “ordinarily resident” before he was detained: s117(3).

Disputes can be resolved by the Secretary of State rather than requiring JRs

““Stronger Code: Better Stronger Code: Better Care”Care”

Consultation on re-written CodeConsultation on re-written Code

New Guiding Principles:New Guiding Principles:empowerment and participation – ensuring that patients, their families and carers are fully involved in decisions about care, support and treatment least restrictive option and maximising independence – all care, support and treatment should wherever possible be as least restrictive as possible, ensuring the autonomy of the patient

““Stronger Code, Better Stronger Code, Better Care”Care”

respect and dignity – ensuring that patients, their families and carers are listened to by professionals and included in decisions about care and treatment

purpose and effectiveness – decisions about care and treatment must be appropriate to the patient, must be performed to national guidelines and standards and must be expected to work, and

efficiency and equity – the quality of commissioning and provision of care services should ensure that all professionals involved in a patient’s care are involved and that physical, mental health and social care needs are equally considered.

““Stronger Code, Better Stronger Code, Better Care”Care”

New Chapter 34 on care planning:New Chapter 34 on care planning: The CPA should be used for individuals

who are at high risk of suffering a deterioration in their mental condition and who need:

multi-agency support active engagement intense intervention, and/or support with dual diagnoses.

Questions?Questions?

Tam Gill & Sophy MilesTam Gill & Sophy Miles

November 2014November 2014

© MHLA / Gledhill Solicitors / Miles & Partners © MHLA / Gledhill Solicitors / Miles & Partners