2011 01 Mental Health

Tuesday 1 February 2011

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Seal v UK (App no: 50330/07): European Court of Human Rights (7 December 2010): The claimant had brought a claim against the police as a result of the police exercising powers under section 136 Mental Health Act 1983 as amended (“the MHA 1983”) which inter alia included claims for assault and trespass to the person. The claimant issued his claim on the eve of the limitation period without seeking leave under section 139(2) MHA 1983 and by a majority decision of 3:2 the House of Lords had found that his claim was a nullity. The European Court of Human Rights held that the claim was admissible in respect of the challenge to section 139(2) MHA 1983. Nevertheless the Court held the following. There was no breach of Article 6 of the Convention because (i) the six-year limitation period in the Limitation Act 1980 pursued a legitimate aim which was consistent with previous decisions of the European Court; (ii) section 139 MHA 1983 was to restrict access to the court only where the claim was manifestly unmeritorious, the restriction was not limited to persons suffering from a mental disorder and its general aim of protecting those who exercise powers of detention under the MHA 1983, including the police, pursued a legitimate aim. This was consistent with Ashingdane v UK (28 May 1985). (iii) the decision to strike out did not impair the claimant’s right of access to court and was not disproportionate. The claimant had not explained his delay or failure to seek permission to bring the claim, and should bear those consequences, and in any event could continue his non-MHA 1983 claims. The European Court found there had been no breach of Article 6 taken with Article 14 (click here for judgment).

RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273: (Sedley, Moses and Sullivan LJJ). The Court of Appeal held the SC case stated that one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) of the Mental Health Act 1983 is whether it is (as in section 73(1)(b)) 'satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment'. Placing the burden of proof on the patient is not in breach of the ECHR as Article 5 does not apply but the conditions imposed may engage Article 8, but it is justified to require a patient made subject to a restriction order following a criminal trial/conviction to satisfy the First Tier Tribunal (FTT) that the order should cease to have effect. The FTT's reasons were adequate. Further the FTT had not said that RH's restriction order 'should remain in place essentially for life' so this ground of appeal failed. Moreover the FTT's comparison between conditional discharge and a life licence was merely to explain why the gravity of the index offences was a relevant consideration. Also the FTT was entitled to order that its decision be placed before any future FTT because earlier decisions are material considerations. Further except possibly in relation to the burden-of-proof ground as an important point of principle the Upper Tribunal should not have granted permission to appeal. The Court of Appeal also held that particular care should be exercised before granting permission to appeal on a ground that was not raised below and had the Secretary of State for Justice been notified of the new grounds it is likely that the response would have led to permission not being granted. (click here for judgment)

R (SP) v Secretary of State for Justice [2010] All ER (D) 308 (Nov): The Secretary of State for Justice was entitled to rely on a medical recommendation under section 47 MHA 1983 which did not explicitly address the new 'appropriate treatment' test as his case workers are not concerned to pursue medical reasoning, but only to see whether the expert had given some reasons which they considered adequate and did not conflict with the facts known or the statutory requirements. The Secretary of State was entitled to give the reports a sensible meaning, and to satisfy himself that the 'appropriate treatment' test was met by reference to matters which had been in the report by necessary implication. (no transcript available)

TTM (by his litigation friend TM v (1) London Borough of Hackney; (2) East London NHS Foundation Trust; (3) Secretary of State for Health [2011] EWCA Civ 4: (Toulson and Sullivan LLJs). The Court of Appeal held that where a local authority makes an unlawful application to a hospital for the detention of a patient under the Mental Health Act 1983 it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention. Further the Court held that although the hospital may act lawfully in detaining such a patient under the s6(3) Mental Health Act 1983 defence, if the application appeared to be duly made, this does not prevent the detention being held to be unlawful from the outset as against the local authority who made the application for detention. Further an application for detention that is made contrary to s11(4) in the face of the Nearest Relative's objection is in breach of Article 5(1) of the ECHR. Moreover Article 5(5) ECHR entitles a person detained in breach of Article 5(1) to compensation, and s 139(1) Mental Health Act 1983 which imposes no liability unless bad faith or lack of reasonable care can be read down so as to allow such a claim to proceed. The Court further held the word 'practicable' in s12(2) Mental Health Act 1983 which requires a recommendation from a doctor with previous acquaintance with the patient, if practicable, should be broadly construed. Obiter a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful. The Court held that on the facts the local authority was liable for false imprisonment and breach of Article 5 because of the breach of s 11(4) Mental Health Act 1983 and permission was granted under s139(2) Mental Health Act 1983 for a compensation claim to be pursued. However the Court held there was no s12(2) Mental Health Act 1983 breach because it had been reasonable to obtain two external opinions given the divergence of views between the treating doctors. (Click here for transcript).

SSJ v RB [2010] UKUT 454 (AAC): (Carnwarth LJ SPT, HHJ Sycamore CP and Judge Rowlands). The Upper Tribunal held that the MHT may conditionally discharge a patient with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the Upper Tribunal may feel less inhibited than the High Court in revisiting the issues. (Click here for transcript).

DL v South London and Maudsley NHS Foundation Trust [2010] UKUT 455 (AAC): (Judge Lane). The Upper Tribunal held the MHT failed to explain why it rejected medical and social reports which recommended absolute discharge. The First-Tier MHT decision was set aside and the case remitted to the First-tier Tribunal for a rehearing (Click here for transcript).

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