Mental Health Law

Garden Court barristers have been instructed in most of the seminal cases on mental health law.

Our mental health law barristers bring decades of experience representing patients in the First-Tier Tribunal, the Upper Tribunal and the higher appellate courts.

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Garden Court Chambers seeks to provide the highest quality representation for people diagnosed with mental disorders. 

We understand that such a diagnosis is often life changing, and can have many legal consequences, affecting liberty, family life, housing, care needs, entitlement to welfare benefits and immigration status.

our expertise

Our highly specialised mental health law team advises and represents people who have been made subject to the compulsory powers under the Mental Health Act 1983, whether it be detention in hospital or being made subject to a CTO or conditional discharge.

We also frequently advise on the numerous legal issues that arise when people are detained in hospital, for example in relation to:

  • Compulsory medication
  • Entitlement to aftercare
  • Mixed-gender wards
  • Transfers to and from prison
  • Inquests concerning deaths in detention
  • Consultation with and displacement of patients’ nearest relatives.

Members of the team have also advised charities and pressure groups including MIND and Rethink on aspects of government mental health policy and proposed reforms to mental health law, and regularly provide bespoke training on mental health law and practice to solicitors and others. Several members of chambers are part-time judges of the First-tier Tribunal (Mental Health).

It is our belief that a 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. Garden Court Chambers therefore also offers specialists in other areas of law who have particular expertise in representing people with mental health problems, within the criminal justice system, in care homes, and in immigration detention.

 

Notable Cases

 

R (on the application of C) v Secretary of State for Justice [2016] UKSC 2; [2016] WLR(D) 34, (2016) 149 BMLR 1, [2016] UKSC 2, [2016] EMLR 13, [2016] WLR 444, [2016] 1 WLR 444, 149 BMLR 1, (2016) 19 CCL Rep 5, [2016] HRLR 7

YA v Central and NW London NHS Trusts and Others [2015] UKUT 37 (AAC)

NL v Hampshire County Council (Mental health : All) [2014] UKUT 475 (AAC)

C & Anor v Birmingham and Solihull Mental Health NHS Trust & Anor [2013] EWCA Civ 701; [2013] AACR 1
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.

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.

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’.

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.

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.

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)’.

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’.

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 – i.e. adjourn any time before it is under a duty to direct a discharge.

MB v BEH MH NHST & Secretary of State for Justice [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.

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).

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.

KF v Birmingham & Solihull Mental Health NHS Foundation Trust [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.

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.

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.

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 (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 (TF) v Secretary of State for Justice [2008] EWCA Civ 1457 (2009) 106 BMLR 54, (2009) 12 CCL Rep 245, [2008] MHLR 370; (first instance: R (F) v Secretary of State for the Home Department [2008] EWHC 2912 (Admin) [2008] MHLR 361

M v South West London & St George’s Mental Health NHS Trust [2008] EWCA Civ 1112 (07 August 2008).
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.

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.

R (O) v MHRT [2006] MHLR 326; (2007) 93 BMLR 110; (2007) A.C.D. 16
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.

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.

R (B) v (1) A Haddock (2) Dr J Rigby (3) Dr Wood (2006) H.R.L.R. 40; (2006) Lloyd’s Rep Med 433; (2007) 93 BMLR 52; Independent, July 13, 2006; (2005) 85 BMLR 57 (first instance)
The lawfulness of forced treatment under section 58 Mental Health Act 1983.

R (SC) v (1) MHRT (2) The Secretary Of State For Health & Secretary Of State For The Home Department [2005] MHLR 31; (2005) A.C.D. 102; (2005) A.C.D. 89; Times, January 24, 2005
The compatibility of section 75(3) of the Mental Health Act 1983 with Article 6 ECHR.

R (LI) v MHRT [2004] M.H.L.R. 150; (2004) A.C.D. 74
The lawfulness of a tribunal’s decision not to discharge; the adequacy and intelligibility of its reasons.

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.

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.

R (Tagoe-Thompson) v Hospital Managers Of Park Royal Centre [2003] 1 WLR 1272; [2003] M.H.L.R. 326; [2003] M.H.L.R. 321 : Times, December 13, 2002; Independent, February 17, 2003 (first instance)
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.

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