2011 08 Mental Health

Thursday 1 September 2011

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MB v BEH MH NHS Trust (2011) UKUT 328 (AAC) (Judge Levenson): The upper tribunal held that following the Responsible Clinician's evidence and without hearing any other witnesses or submissions on the law and evidence, the First Tier Tribunal judge stated that the patient could not obtain a conditional discharge and invited the patient to withdraw his application. As a consequence of this judicial statement the patient withdrew and appealed against the FTT's consent to the withdrawal. The Upper Tribunal on appeal held that (i) consent to withdrawal is a judicial act and is appealable and (ii) the FTT judge's expression of a preconceived concluded opinion, as opposed to a provisional view, was a breach of the rules of natural justice and fair procedure in that the appellant was effectively denied a proper opportunity to put his case. The Upper Tribunal raised concerns as to the remedy namely that there had been no application to reinstate the case and no re-application by the patient during the relevant eligibility period but these were outweighed by the practical benefit of a fresh hearing and the patient, if unsuccessful, retaining his right to apply during the current eligibility period. The matter was set aside and referred for directions before differently constituted panel. Click here for transcript.

The applicant was represented by Roger Pezzani.

RN v Curo Care (2011) UKUT 263 (AAC) (Judge Jacobs): The Upper Tribunal held that as the FTT judge stated at the outset of a hearing that the FTT would refuse to recommend a CTO, then reaching that firm conclusion, as opposed to an provisional opinion, and preventing the patient from making submission to the contrary, was a breach of natural justice and right to a fair hearing. Further, the lack of reasons for not making the requested recommendation amounted to an error of law. The UT 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 so in this case. The FTT can make a CTO recommendation not only if it considers that the criteria are satisfied but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. As a result the decision was set aside and remitted to a differently-constituted panel for reconsideration. Click here for transcript.

The applicant was represented by Stephen Simblet.

Magritz v Public Prosecutors Office Bremen [2011] EWHC 1861 (Admin) (King J): On dismissing the application the court held 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, in relation to the Claimant's extradition, where the sentence was for him to be 'placed in a psychiatric hospital for an indefinite period of time' the court held section 25 of the Extradition Act 2003 was not engaged; and there would be no breach of Article 3, Article 5 or Article 8 of the ECHR. Click here for transcript.

M v F [2011] EWCA Civ 273 (Thorpe, Longmore and Black LJJs): An unsuccessful appeal by the mother against an order refusing her a wide ranging series of declarations where the object of the litigation was to deny the father, who suffered from a mental illness, all knowledge of the birth and subsequent development of his child. Click here for transcript.

DP v South Tyneside DC [2011] 14/7/11(Mitting J): Extempore judgment. The Court held that it was not practicable to consult the nearest relative because DP was perceived to be potentially at risk from him and as consultation was not possible without disclosing DP's location given the duty of consultation not being one of mere notification, the application for habeas corpus was refused. (no transcript available)

R (FB) v SSHD [2011] EWHC 2044 (Admin) (Irwin J): On allowing the application the Court held that the United Kingdom Border Agency's failure to act with reasonable diligence and expedition to achieve the deportation of a refugee with a history of mental illness rendered his continued detention under immigration powers unlawful. Click here for transcript.

Ross v SSWP (2011) UKFTT 8/8/11 (SEC) (Judge Riley): This concerned an unsuccessful application by BBC journalist to record and broadcast proceedings of First-tier Tribunal. Click here for transcript.

R (S) v SSHD [2011] EWHC 2120 (Admin) (Judge David Elvin QC sitting as a Deputy High Court judge). The court held that the detention of mentally-ill immigrant was unlawful under common law and Article 5, and breached Articles 3 and 8 of the ECHR. Click here for transcript.

The applicant was represented by Stephanie Harrison leading Bryony Poynor.

JP v Birmingham and Solihull MH NHS Trust (2010) Upper Tribunal 30/7/10 (HM/535/2010) (Judge Ward): An unsuccessful appeal in which it was argued that the FTT's reasons for preferring the Responsible Clinician's and responsible authority's evidence to the evidence of independent experts were inadequate. The court gave further guidance in respect of FTT judgements and directions upon transfer of the patient and joinder of further respondents. Click here for transcript.

The applicant was represented by Tim Baldwin.

CX v A Local Authority and A NHS Foundation Trust [2011] EWHC 1918 (Admin) (Spencer J): In allowing the application the court granted a writ of habeas corpus. The court held there had not been sufficiently informed consultation with the nearest relative before the application under section 3 of the Mental Health Act 1983 was made. Further that the withdrawal of the nearest relative's objection was not full and effective, as it was the result of the incorrect and misleading advice that she could not maintain the objection without legal representation. Click here for transcript.

KL v Somerset Partnership NHS Foundation Trust (2011) UKUT 233 (AAC) (Judge Rowland): the dismissal of an appeal concerning treatment in hospital and 'long leash' section 17 Mental Health Act 1983 leave. Click here for transcript.

High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011. In force 1/8/11. Click here for directions. Further guidance can be obtained at the Department of Health Website.

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