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Mental health law

Garden Court Chambers seeks to provide the highest quality representation to those diagnosed with mental disorders. We recognise that such a diagnosis can have multiple legal consequences, affecting a person’s liberty, family life, housing, care needs, welfare benefits and immigration status.

We offer a highly specialised Mental Health Law Team, which advises and represents people who have been made subject to the compulsory detention powers under the Mental Health Act 1983. The team is very experienced at representing detained patients in the First-Tier Mental Health Tribunal and the Upper Tribunal, as well as in the higher appellate courts. The team has particular expertise in representing forensic mental health patients detained in Dangerous with Severe Personality Disorder (DSPD) units, high-security and medium-security hospitals. We also advise clients and solicitors on the diverse legal questions which arise when people are detained in hospital, for example in relation to compulsory medication, mixed-gender wards, transfers to and from prison, inquests concerning deaths in detention, consultation with patients’ nearest relatives as well as the legality of their detention.

Members of the team have advised MIND and Rethink on aspects of Government mental health policy and reform of mental health law.

Garden Court Chambers also offers specialists in other areas of law who have particular experience and expertise in representing people with mental health problems, for example within the criminal justice system, in care homes, and in immigration detention, to provide a comprehensive service to our clients. It is our belief that this multi-disciplinary approach will challenge and reduce the stigma, prejudice and discrimination which individuals with mental health problems continue to face in all areas of their lives and in the courts.

To subscribe to our free mental health updates, please visit Garden Court Chambers Social Welfare Law Group website.

Case Summaries

Evidence & Tribunal’s reasons

R (X) v Mental Health Review Tribunal [2003] 1 MHLR 299

Appropriateness of informing parties after the conclusion of the tribunal that proceedings will be adjourned in order to receive further evidence on a pre-determined date from the RMO who did not give evidence at the tribunal hearing.

R (LI) v MHRT [2004] M.H.L.R. 150; (2004) A.C.D. 7

The lawfulness of a tribunal’s decision not to discharge; the adequacy and intelligibility of its reasons.

R (Care Principles Ltd) v MHRT; R (AL) v Care Principles Ltd & ors [2006] M.H.L.R. 365; (2007) BMLR 145

Whether a tribunal decision to discharge was lawful and adequately reasoned; whether a subsequent re-detention of the patient was lawful.

RD, R (on the application of) v Mental Health Review Tribunal [2007] EWHC 781 (Admin)

The communication by the medical member of a “very preliminary” view was lawful, even though it went to detainability and not merely to mental condition; the reasons given for not discharging were adequate.

BB (Upper Tribunal, Administrative Appeals) [2009] UKUT 157 (AAC)

Oral evidence given by the authors of clinical reports only address the position as it is at the time of the hearing

PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC)

Case concerned referred CTO patient who did not wish to co-operate or participate in the tribunal proceedings. UT Judge Jacobs suggested the following approach:

i)stay the proceedings under r.5(3)(j) of the Tribunal Procedure (FTT) (Health, Education and Social Care Chambers) Rules 2008. However this may appear an abuse of that power if it was used as a means of permanent disposal or of avoiding deciding the case at all.

ii) More appropriate perhaps would be to arrange block hearings of community treatment references on the limited information that it is able to obtain. The tribunal is only under a duty to examine the patient ‘as far as practicable’ (rule 34(1)) and it is not practicable if a patient will not co-operate. In those circumstances the tribunal can hear the case in the patient’s absence under r.39 and can use its powers under rr5 and 15 to give directions on evidence from the responsible clinician and others that is appropriate in all the circumstances taking account of the over-riding objective and in particular of the need to act proportionately under r.2(2)(a).

MS v North East London Foundation Trust [2013] UKUT 92 (AAC)

Written reasons should a) state what facts the tribunal found b) explain how and why the tribunal made them and c) show how the tribunal applied the law to those facts

Disclosure & Diagnosis

R (application of T) v Mental Health Review Tribunal [2002] 1 MHLR 275

Upholding the right of a victim of an offence to receive some information about the discharge plans of a patient. This case later became the basis for a statutory right to receive such information

RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC)

Non-disclosure order in relation to documents recording the fact the patient was being covertly medicated, set aside. The non-disclosure order would ‘exclude’ the patient from knowing the real process which was being followed and hamper the patient’s legal team in participating effectively in that process.

Secretary of State for Justice v MP and Nottinghamshire Healthcare NHS Trust [2013] UKUT 25 (AAC)

Section 1(3) MHA [‘dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of defining ‘mental disorder’]

This exclusion does not prevent a person being categorised as mentally disordered if, as well as being dependent on alcohol and drugs, he is suffering from i) an unrelated mental disorder or ii) a mental disorder which arises from or is suspected to arise from alcohol or drug dependence or from the withdrawal of alcohol or drugs.

Jurisdiction

R (Tagoe-Thompson) v Hospital Managers Of Park Royal Centre [2003] 1 WLR 1272

Permission granted but appeal refused where 2 out of 3 members appointed by hospital managers to hear a review – decided to order discharge. And the responsible medical officer refused to order discharge. s. 23(4) requires 3 or more members being prepared to exercise the power.

R (application of CS) v Mental Health Review Tribunal [2004] 1 MHLR 355

Concerning the powers of the Mental Health Review Tribunal in relation to discharge of patients on long-term leave of absence

R (O) v MHRT [2006] MHLR 326

Section 72(3)(b) – the tribunal may further consider his case in the event of any such recommendation not being complied with. ‘His case’ means the patient’s application to the tribunal – that application and the tribunal’s powers in respect of it, including the power to agree to the patient’s request for his application to be withdrawn remain extant after the tribunal has made a recommendation under this provision

M v South West London & St George’s Mental Health NHS Trust [2008] EWCA Civ 1112

An ineffective application under s.3 which is subsequently found to be unlawful would not undermine the s.2 application which preceded it and that s.2 application would remain in force or be revived until it expired

KF v Birmingham & Solihull Mental Health NHS Foundation Trust (MEN) [2010] UKUT 185 (AAC)

Affirmed AA:. s.72 ‘liable to be detained’ captures patients who, in the context of references, may be detained under the Act when the reference is made and a community patient at the time of the hearing. The patient’s relevant status is at the time of the hearing not at the date of the reference.

What should happen where an appeal from a tribunal’s substantive decision an a s.2 application is overtaken by events. Having undertaken a comprehensive analysis, the tribunal concluded that

‘…any movement from s.2 to s.3 or to community patient status does not affect the continuing validity of an extant and undetermined application or reference to the FTT. The application or reference still falls to be determined by the tribunal in accordance with the patient’s status at the time of the actual hearing and subject to the relevant criteria under s.72(1)(a)-(c)’

The case went on to encourage the imaginative use of the tribunal’s case management powers to enable cases to be dealt with in a timely manner with the appropriate professionals present particularly where the patient’s status is changing rapidly as between in-patient and community.

Any change in the patient’s legal status for example from a s.3 to a community patient does not affect the continuing validity of an extant and undetermined reference to the FTT.

AC, Partnerships in Care Ltd v Secretary of State for Justice [2012] UKUT 450 (AAC)

UT Judge Jacobs said that the tribunal’s jurisdiction is limited to issues of discharge. It has no power to impose conditions as to release, which is the exclusive preserve of the Parole Board. The tribunal was right to refuse to take account of the conditions that might be imposed by the Parole Board. He went on to say the tribunal was ‘precisely correct’ when it had said that ‘conditional discharge would envisage the discharge being subject only to such conditions as the tribunal could properly impose under s.73(4)’

EC v Birmingham and Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC)

Dismissed appeals against tribunals’ refusals to hear arguments in relation to extra-statutory recommendations on basis there is no legal right to advance these arguments; it is not disadvantageous to the patient to refuse to consider an extra-statutory recommendation; a flawed extra-statutory should have no effect because of its legal status. The judge made further comments about (a) potential guidance to hospital managers about UT procedure, (b) secondary challenges by the appellants, and (c) tribunal procedure generally in relation to extra-statutory recommendations.

C & Anor v Birmingham and Solihull Mental Health NHS Trust & Anor [2013] EWCA Civ 701

CA held the ministerial answer given by Mr Hogg did not give rise to a legitimate expectation that a patient had a right to have a request for an extra-statutory recommendation heard by the tribunal. A patient therefore has no right to challenge a decision of the tribunal to refuse to make such a recommendation.

Leave, Recall and Recommendations

R (DR) v Mersey Care NHS Trust [2002] EWHC 1810 Admin

Renewal of section while on long-term s17 leave. A challenge to whether someone was in fact lawfully detained for purposes of treatment.

MM, R (on the application of)) v Secretary of State for the Home Department [2007] EWCA Civ 687

Court of Appeal case concerning Home Secretary’s powers to recall conditionally-discharged patients to hospital. Soon afterwards, the patient was absolutely discharged and removed from the Home Secretary’s control.

R (application IT) v Secretary of State for Justice [2008] EWHC 1717 (Admin)

successful challenge to Secretary of State’s powers to recall a conditionally discharged patient, with subsequent damages hearing – compensation amount settled

R (X) v Secretary of State for Justice [2009] EWHC 2465 (Admin)

The Secretary of State had rejected an application for escorted community leave because of the nature of the index offence and the perspective of the victim’s family. (1) The decision was quashed because neither the question of risk to others nor the positive benefits to the patient had been considered (irrationality, failure to take into account relevant considerations and considering irrelevant ones). (2) The reasons presented in the summary grounds of defence were patently not the reasons for the decision.

R (W) v (1) Dr Fintan Larkin, (2) Secretary of State for Justice and others [2012] EW HC 556 (Admin)

A warrant for the claimant’s transfer to prison was issued on the RC’s advice in the context of Broadmoor’s DSPD unit being about to close on 29/3/12. (1) It is not unlawful for an RC to tick both the ‘no longer requires treatment in hospital for mental disorder’ and the ‘no effective treatment for his disorder can be given in the hospital to which he has been removed’ boxes on the s50 proforma. (2) There was no evidence that the views expressed on the form were not those of the RC or that he had subordinated his clinical judgment to expediency or national strategies. (3) No relief would have been granted even had there been unlawfulness: the claimant had to leave Broadmoor, no MSU would then take him, so he had to return to prison in any event.

Nearest Relative

R (application SSG) v Liverpool City Council [2002] 5 Community Care LR 639

Proceedings successfully brought enabling same sex cohabitants to be treated the same as heterosexual couples for the purposes of being recognized as nearest relative under the Mental Health Act)

BB v Cygnet Health Care [2008] EWHC 1259 (Admin)

In this case the patient’s nearest relative father asked the AMHP to speak to the patient’s sister who had better English than him. This presents difficulties for the AMHP in determining what the views of the nearest relative actually are. The burden of showing proper consultation has taken place is on the AMHP and there is no obligation for the nearest relative to expressly lodge an objection

GD v Managers of Edgware Hospital [2008] 1 MHLR 282

Consultation with the nearest relative was held not to have taken place where the AMHP and the other professionals involved in the patient’s assessment did no more than nod in the direction of consultation by setting in motion a chain of events ‘which was designed to leave consultation with [the nearest relative] to the very last moment and thus seriously inhibit the chances of his having any effective input into the process and the chances of his having an opportunity to make an objection’.

TW v LB Enfield [2014] EWCA Civ 362, [2014] WLR (D) 145

AMHP ought to consider Article 8(1) and Article 8(2) in the context of Article 5 when deciding whether to consult patient’s nearest relative (s.11(4)) where the patient wants their confidentiality to be maintained.

Practice/Process/Procedure

R (on application of C) v Mental Health Review Tribunal [2002] 1 WLR 176

overturning a practice by which patients had to wait excessive times for a Mental Health Review Tribunal hearing

R (von Brandenburg) v Tower Hamlets LBC [2003] UKHL 58, [2004] 2 AC 280

An ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.

R (Surat Singh) v Stratford Magistrates’ Court & Others [2007] EWHC 1582 (Admin)

This case deals with the procedure to be adoptedwhere a defendant in the magistrates court contends that he was insane at the time of the events charged

M v Managers of Queen Mary’s Hospital [2008] 1 MHLR 303

failing to establish that a patient had not been lawfully examined – subsequently (unsuccessfully) appealed with Roger Pezzani as advocate)

MB v BEH MH NHS Trust [2011] UKUT 328 (AAC)

importance of natural justice – UT Judge Levenson agreed there had been a breach of natural justice by indicating that ‘the application for discharge had no prospect of success’ and the patient was invited to withdraw the application

RN v Curo Care [2011] UKUT 263 (AAC)

If asked to make a recommendation and the tribunal declines to, it should give reasons.

MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC)

If detained patient made subject to CTO during period of deferred discharge, CTO will end on discharge taking effect as the s.3 app upon which CTO is based will not longer be in place.

DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice [2012] UKUT 92 (AAC)

The tribunal can adjourn at the outset to investigate the possibility of imposing conditions – ie adjourn any time before it is under a duty to direct a discharge.

MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC)

Considering what inference is to be drawn from the fact that an independent psychiatrist who had visited a patient did not submit a report to the tribunal: UT Judge Jacobs said ‘the First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine any realistic circumstances in which a tribunal having such evidence, could properly rely on the failure by a patient to produce a report as a basis for drawing inferences that would affect the outcome. The tribunal’s duty and the only proper course would be to decide on the evidence available rather than speculate on possible explanations of why the report was not produced’

Patient status and transfer

R v Lee Aitchison [2016] EWCA Crim 739

The appellant successfully appealed against a sentence of imprisonment for public protection (IPP) imposed in 2008 after he pleaded guilty to GBH with intent, possession of an offensive weapon and common assault. His psychiatric condition deteriorated in custody and the appellant was transferred from prison to a psychiatric unit in 2011. In 2016, the Court of Appeal found that the appellant is severely ill with a mental disorder, which he suffered from at the time of the offences. The Court of Appeal quashed the IPP sentence and made a hospital order under section 37 of the Mental Health Act 1983, subject to a section 41 restriction. Tim Baldwin represented the appellant.

R(SC) v (1) MHRT (2) The Secretary Of State For Health & Secretary Of State For The Home Department [2005] MHLR 31

The compatibility of section 75(3) of the Mental Health Act 1983 with Article 6 ECHR

R (TF) v Secretary of State for Justice [2008] EWCA Civ 1457

Court held that the Secretary of State had acted unlawfully in transferring a convicted prisoner to hospital at the end of his sentence without reasonably being satisfied that the transfer was medically justified.

R (PP) v Secretary of State for Justice [2009] EWHC 2464 (Admin)

The Secretary of State’s decision to reject an application for a restricted patient to be granted trial leave to a medium secure unit was lawful; he was not bound to seek alternative evidence even where the evidence before him was unanimously in favour or leave being granted.

R (S) v SSHD [2011] EWHC 2120 (Admin)

Detention of mentally-ill immigrant was unlawful under common law and Article 5 and breached Articles 3 and 8.

S v Secretary of State for the Home Department [2012] EWHC 1939 (QB)

Lawfulness of detention for mentally ill foreign national prisoner and whether SoS lawfully applying the

‘Enforcement Instructions and Guidance’ chapter 55.

Treatment & After-care

R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923

s.72(3A) – Where tribunal is concerned about the availability of after-care arrangements on which satisfaction of the discharge criteria depends, they should consider whether to exercise their power under this provision or if this course of action is inappropriate and there is uncertainty as to the putting in place of the aftercare arrangements, the tribunal should adjourn to enable them to be put in place, indicating their views and giving appropriate directions.

R (PS) v (1) Responsible Medical Officer (Dr G) (2) Second Opinion Appointed Doctor (Dr W) [2004] M.H.L.R. 1

The lawfulness of forced treatment under section 58 Mental Health Act 1983

R (B) v (1) A Haddock (2) Dr J Rigby (3) Dr Wood (2006) H.R.L.R. 40

The lawfulness of forced treatment under section 58 Mental Health Act 1983

MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC)

UT Judge Jacobs – it may be that medical treatment is still available for a patient but because of the circumstances of a particular case it is no longer appropriate – treatment has to be appropriate but need not reduce the risk. Although patient may not progress beyond milieu therapy, there may reach a point at which treatment is no longer appropriate.

AM v West London MH NHS Trust & Secretary of State for Justice [2012] UKUT 382 (AAC)

It is not necessary to have specific information about aftercare in every case. UT Judge Jacobs said

‘On the tribunal’s findings, Mr M had not yet progressed to the point where the issue of after care that was actually available would arise. Without some acceptance or insight, Mr M could not progress to the point where his management in the community could even be tested by unescorted leave, let alone where he could be conditionally discharged’.

MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC)

Appropriate treatment test – UT Judge Jacobs said ‘The treatment that is appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition. Risk is as relevant to treatment as any other feature of the disorder’. First Tier Tribunal’s approach to risk and to the patient’s lack of engagement in treatment, approved.

Holder v Law Society [2003] 1 WLR 1059; [2003] 3 All ER 62

The human rights of a solicitor subject to the disciplinary procedures of the Law Society.

Civil Clerks

For further information please contact the clerking team to the Mental Health Law Team at or call us on 020 7993 7600.

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