2011 05 Mental Health

Wednesday 1 June 2011

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R (Nassery) v Brent LBC [2011] EWCA Civ 539 (Ward, Arden, Moore-Bick LJJ): the council had reached a rational conclusion that, whilst the claimant might require care and attention in the future on account of a deterioration in his fragile mental health, he did not have any current need for care and attention, for example in the form of care and attention protecting him from the risks associated with a future relapse, in particular because the claimant would be able seek medical help if in the future he required . The claimant conceded that counselling and psychotherapy were medical services and not care and attention. Click here for transcript.

RN v CC (2011) UKUT (no citation at present)(Judge Jacobs): If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a Community Treatment Order (“CTO”) recommendation, then reaching that firm conclusion rather than a provisional opinion, and thereby preventing the patient from arguing to the contrary this constituted a breach of natural justice and right to a fair hearing in breach of Article 6. The Upper Tribunal held In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. The tribunal held that there would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future. The Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. The decision was set aside and remitted to a differently-constituted panel for reconsideration.

The applicant was represented by Stephen Simblet and click here for a transcript of the judgment provided by the solicitor.

PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC) (Judge Jacobs): The Tribunal's policy is that a reference made under s.68(7) Mental Health Act 1983 (triggered by the revocation of a CTO) will be treated as having lapsed if the patient subsequently is placed on a new CTO. When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. The Upper Tribunal held the policy is unlawful as (1) whether the reference has lapsed depends on the nature of the reference so neither the overriding objective nor the policy is relevant; and (2) the subject matter of a reference under s68(7) MHA 1983 is not related to the circumstances that trigger it so survives the change in circumstances; and (3) the policy is inconsistent with s68(3)(c) MHA 1983 which would not be necessary if the revocation reference lapses. The Tribunal Procedure Committee will be consulting on rule changes to make it easier to handle CTO revocation cases in which the patient does not 'co-operate': in the meantime, the judge suggested that proceedings could be stayed, or hearings conducted in patients' absence. Click here for transcript.

The applicant was represented by Roger Pezzani.

CM v Derbyshire Healthcare NHS Foundation Trust[2011] UKUT 129 (AAC) (Judge Levenson): the Upper Tribunal held the FTT's decision not to discharge was an error in law and set aside. There was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur. The FTT did not establish that in these circumstances it had complied with the 'least restriction principle'. The FTT’s decision was irrational in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk). Finally the continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. Click here for transcript.

RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC) (Judge Jacobs): The UT has power to award costs only where the First-tier Tribunal could do so. In a mental health case, the FTT only has power to make a wasted costs order (and not a costs order 'if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings'). A wasted costs order may only be made against a legal or other representative. Click here for transcript.

TR v Ludlow Street Healthcare Ltd [2011] UKUT 152 (AAC) (Judge Jacobs): The appeal against an interlocutory decision not to order disclosure of medical records was unsuccessful. The judgment contains guidance on appealing case management decisions, in particular from the MHT for Wales. Click here for transcript.

R v O [2011] EWCA Crim 376 (Goss LJ, Ramsey J and Sir Christopher Holland): A life sentence was quashed and s37/41 MHA 1983 hospital order substituted. The life sentence had been passed in the context of confusion about bed availability, and the lack of a second s37 MHA 1983 recommendation. There was utility in making the Appellant a patient rather than a prisoner because it was manifestly the right order to make on all the evidence and there were advantages in terms of treatment. The order had advantages to the Appellant in terms of benefits and it would best ensure the protection of the public. Click here for transcript.

R (on the application of PA) v Governor of Lewes Prison [2011] EWHC 704 (Admin) (Burnett J): On refusing an application the court held that although a prisoner suffered from moderate to marked social phobia he was not "infirm" so as to meet the requirement of exceptionality in relevant prison guidance that would otherwise have justified his release on home detention curfew. Click here for transcript.

R (on the application of HH) (Claimant) v City of Westminster Magistrates’ Court (Defendant) : HH (First Appellant) v Italy (Respondent) : PH (Second Appellant) v Italy (Respondent) & (1) X (2) Y (3) Z (By their litigation friend the Official Solicitor) (Interested Parties) [2011] EWHC 1145 (Admin) (Laws LJ): On dismissing the appeals the Court held that although the best interests of affected children were a primary consideration in extradition cases, they could not generally override the public interest in effective extradition procedures. Furthermore, it was not oppressive to extradite the appellant by reason of any mental condition as her behaviour was an extreme reaction to the extradition proceedings rather than a mental illness. Click here for transcript.

R (on the application of Ian Griffin) (Claimant) v City of Westminster Magistrates’ Court (Defendant) & Tribunal De Grande Instance France (Interested Party) : Ian Griffin v Tribunal De Grande Instance France [2011] EWHC 943 (Admin) (Collins J): On dismissing the application and dismissing the appeal the court held that the district judge was entitled to refuse to adjourn extradition proceedings and to give judgment in the absence of the defendant (claimant in this case) and was also right in the district judge’s decision that it was appropriate to make an extradition order despite the attempts at suicide made by the Claimant whilst held on remand. The court reasoned that the medical evidence established that the attempts at suicide resulted from stress which was as likely to exist whether the Claimant was in England or in France. It was not a case where it could be said that there was a very high risk of suicide succeeding if he was extradited since the French have available and would implement all proper means of treatment. The district judge was correct to decide that further delay was unreasonable and that consideration of the Claimant's condition following his most recent suicide attempt was unnecessary. Click here for transcript.

AH v West London Mental Health Trust [2011] UKUT 74 (AAC) (Carnwath LJ, Judge Levenson, Judge Cooper): The Upper Tribunal held that to order an off-site public hearing of a mental patient's appeal against a refusal to discharge him would not impose a disproportionate burden on the relevant authorities. Click here for transcript.

AH v (1) Hertfordshire NHS Foundation Trust (2) Ealing PCT [2011] EWHC 276 (Fam) (Jackson J): The court provisionally decided that it would not be in the best interests of an adult with severe learning disabilities and behavioural difficulties caused by autistic spectrum disorder to move from a specialist residential service into alternative accommodation in the wider community. The Court reasoned that care in the community was not an absolute policy and initiatives designed to personalise care and promote choice should not be applied to the opposite effect. No free transcript available.

A v (1) A Local Authority (2) A Care Home Manger (3) S [2011] EWHC 727 (Fam) (COP) (Sir Nicholas Wall (President)): The court of protection directed that a report relating to both capacity and best interests of an individual, who had objected to his continued deprivation of liberty at a named nursing home for the elderly and mentally infirm, should be produced by the Court of Protection Visitor. Click here for transcript.

R (on the application of Modaresi) v (1) Secretary of State for Health (2) FTT (Mental Health) (3) West London Mental Health NHS Trust [2011] EWHC 417 (Admin) (Edwards-Stuart J): The Court held that the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 r.32 were clear that an application under s 66 Mental Health Act 1983 had to be sent or delivered to the FTT so it was received within the 14-day time limit. The Court further reasoned that there was no reason to construe the time period as extending to the next working day if the time limit would otherwise expire on a weekend or bank holiday. Click here for transcript.

R (on the application of T) v Secretary of State for the Home Department [2011] EWHC 370 (Admin) (Sir Michael Harrison): On granting the application the Court held that the claimant's detention pending his removal as an overstayer had been unlawful where the secretary of state had failed to have regard to her own policy, which provided that those suffering from serious medical conditions, such as the claimant was, were suitable for detention only in very exceptional circumstances.In the Claimant's case, it was clear the secretary of state had been aware of his serious medical condition and mental health but nevertheless failed to have regard to her own policy under paragraph 55.10 of her own guidance. The Court held this failure was a relevant factor in assessing the lawfulness of Claimant's detention. His detention for the period from November 2008 to February 2009 had been lawful, as it had been intimately connected with his removal. However, the Court held that it had been unreasonable to continue to detain him beyond that point for the following reasons (1) the secretary of state had failed to have regard to her own policy; (2) the Claimant had already been detained for over three months; (3) the secretary of state had received information from the consultant physician responsible for the Claimant's treatment that he was not suitable for detention; and (4) there had been an abject failure by the secretary of state in dealing properly with the representations made by the Claimant in February 2009. No free transcript available.

MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC) (HHJ Pearl): The Upper Tribunal, in it judicial review jurisdiction, held a Community Treatment Order imposed during a period of deferred discharge is brought to an end at the end of the deferral period. A tribunal's decision pursuant to the mandatory parts of s 72 Mental Health Act 1983 overrides any decision/comments in relation to the discretionary parts - subsection (3A) in this case, but would apply by analogy to subsection (3). Click here for transcript.

The applicant was represented by Roger Pezzani.

R (on the application of Nab) v Secretary of State for the Home Department [2011] EWHC 1911 (Admin) (Irwin J): The Court provided guidance as to assessing damages for false imprisonment and the application of Lumba. Click here for transcript.

R (on the application of Sturnham) v Secretary of State for Justice [2011] EWHC 938 (Admin) (Mitting J): Damages of £300 were awarded under Article 5 for anxiety and distress caused by six-month delay in Parole Board hearing. Click here for transcript.

Magritz v Germany (2011) (King J) 27/5/2011: On dismissing the appeal the court held that it had been correct to order the extradition of a German national, pursuant to a European arrest warrant, where there was no evidence that his human rights would be breached if he was returned. Further, even if, as alleged, his mental health was too good for him to be returned to continue to serve his sentence at a German psychiatric hospital, that could not satisfy oppressive treatment for the purposes of section 25 Extradition Act 2003. No transcript available.

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