2010 10 Mental Health

Monday 1 November 2010

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LC v DHIH & SOSJ & CUK [2010] UKUT 319 (AAC) (Levenson J): The Upper Tribunal held the Welsh MHT decision not to discharge the patient, following a deferred conditional discharge, was inadequately reasoned: (i) the MHT took account of matters to which it had not referred in its original decision; (ii) in relation to the newly-identified risk factors, either they must have been risk factors at the time of the original decision, or something unidentified must have happened to make them risk factors. Further the MHT could have deferred its decision for a report from the Responsible Clinician at the proposed accommodation, given that all staff were agreed on the transfer and the transfer was recommended despite the above concerns. Moreover, given the liability to recall inherent in a conditional discharge, no reason was given as to why it was necessary to retain the "support of the MHA for the time being" during the accommodation move. Furthermore the second decision was set aside, so the original deferred conditional discharge decision remained effective, and the matter was remitted. Click here for transcript.

AH v West London MH NHS Trust [2010] UKUT 264 (AAC) (Carnwarth LJ (SPT), Levenson J, Cooper J): The Upper Tribunal held the normal practice that MHT hearings are held in private is justified; and the relevant factors in deciding whether to direct a hearing in public are as follows. Is it consistent with the subjective and informed wishes of the applicant? Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? Further are there any other special factors for or against a public hearing? and can practical arrangements be made for an open hearing without disproportionate burden on the authority? The UT held the First-tier Tribunal decision not to grant a public hearing was set aside. Further the question will be determined by the Upper Tribunal following a further hearing at which the Department of Health is invited to appear, for the purpose of considering further evidence. Click here for transcript.

WS v MHTS [2010] CSIH 74 (Clerk LJ, Brodie L and Marnock): WS had been transferred from an English medium secure unit to the state hospital at Carstairs in Scotland under s80 MHA 1983. The court held the appeal to the MHTS under section 220 Mental Health (Care and Treatment) (Scotland) Act 2003 was misconceived because he had not been transferred under s218. Rather the appropriate remedies would have been (i) judicial review in England of s 80 MHA 1983 or (ii) an appeal under s 264 of the Scottish legislation: "Detention in conditions of excessive security: state hospitals". The court held an order under s264 of the Scottish legislation would oblige the Health Board to search for suitable accommodation in England if necessary. Click here for transcript.

R (Cart) v Upper Tribunal [2010] EWCA Civ 859 (Sedley, Richards LJJ, Sir Scott Baker): Judicial review of Upper Tribunal decisions is restricted to cases of outright excess of jurisdiction or fundamental denials of procedural justice. Click here for transcript.

R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC) (LJ Carnwarth (SPT), Walker J (CP), and Judge Rowlands): RB was conditionally discharged with a condition that he should not leave a care home without an escort. The Ministry of Justice sought a review on the basis that the condition constituted a deprivation of liberty and there was therefore no lawful discharge. Upon review the Regional Tribunal Judge set aside the conditional discharge then remitted the case to the First-tier Tribunal and refused permission to appeal to the Upper Tribunal. The Upper Tribunal on review of the judge held that it is only appropriate for the First-tier Tribunal to exercise its set-aside powers where there has been a clear error of law. The Upper Tribunal held that where the legal points are contentious the case should be allowed to proceed to the Upper Tribunal. The Regional Judge's decisions were quashed and set aside with permission given to the Ministry of Justice to appeal against the conditional discharge. Click here for transcript.

CV v South London and Maudsley NHS Foundation Trust [2010] EWHC 742 (Admin) (Wyn Williams J): The court held in cases involving consultation under s 11(4) Mental Health Act 1983 (“MHA 1983”), the AMHP is to be judged according to the circumstances as they appear to her at the time. The court further held that given the AMHP believed (albeit wrongly) that 7 hours remained of the s 5(2) MHA 1983 detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. The court also held It was inappropriate for the AMHP to assume, based on a previous consultation, that the Nearest Relative would not object. Also the subsequent rectification under s 15(1) MHA 1983 could not be relied upon in the circumstances of this case.Click here for transcript.

The Tribunal's guidance on CTO references was amended slightly on 23/09/10. Guidance: References made under section 68(7) Mental Health Act 1983 (as amended). Click here for amended guidance.

R (Mwanza) v Greenwich LBC and another [2010] EWHC 1462 Admin (Hickinbottom J): the duty under section 117 of the Mental Health Act 1983 does not require the relevant authorities to provide a former patient with any and all services (e.g. accommodation, or employment opportunities) simply because those services do or may prevent deterioration or relapse of a mental condition requiring readmission. An after-care service must be a service that is necessary to meet a need arising from a person’s mental disorder (as distinguished from an ordinary need for accommodation or employment). In practice, the assessment of needs may give rise to difficult issues. However, it is for the relevant authorities to make their own assessment and reach their own decision about what needs a person has; they then have a wide discretion as to what if any services are required to meet such needs. In this particular case, the local authority had, in any event, lawfully discharged or terminated their responsibilities towards the Claimant under section 117 of the 1983 Act. Further, on the facts, there was no obligation to provide accommodation under section 21 of the National Assistance Act 1948: the test in R(M) v Slough [2008] UKHL 52, [2008] 1 WLR 1808 was not met. Click here for the transcript.

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