2011 09 Mental Health

Saturday 1 October 2011

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DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC) (Judge Jacobs): It was submitted to the 1st Tier Tribunal that DN should be discharged, deferred until arrangements under the Mental Capacity Act 2005 DOLS regime could be put in place in relation to residence and control of his alcohol consumption. The Upper Tribunal held that when the Mental Health Act 1983 applies, it has primacy over the Mental Capacity Act 2005. Nevertheless, the Upper Tribunal held if the Mental Capacity Act 2005 were applied in anticipation of discharge from detention then DN would not then be 'within the scope' of the Mental Health Act 1983 and therefore not ineligible for DOLS. Further the Upper Tribunal held 1st Tier Tribunal erred in law by failing, when deciding not to discharge, to address the possibility of supervision under the Mental Capacity Act 2005.(Click here for transcript).

G v MHTS [2011] CSIH 55 (Lord Justice Clerk, Lord Bonomy, Lord Brodie): An appeal as to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The appellant unsuccessfully challenged the decision to make no order. (Click here for transcript).

An appeal against the detention of a high security hospital inmate is to be held in public for the first time on September 27, 2011. Albert Haines, an inmate at Broadmoor, has been detained for 25 years following two convictions for attempted wounding. In February 2011, a tribunal ruled the right to open justice should be extended to anyone with the competence to waive their right to a closed hearing. Daily Telegraph, September 26, 2011, 10 (AH v West London Mental Health Trust [2011] UKUT 74 (AAC) (UT (AAC))

A Welsh Government consultation seeks views on regulations which would enable Local Health Boards and local authorities in Wales to enter into regional working arrangements, which would be required to: deliver local primary mental health support services; and make arrangements for provision of assessments for former users of secondary mental health services. Comments by December 16, 2011. Mental Health (Regional Provision) (Wales) Regulations (Draft); Mental Health (Wales) Measure 2010. (Click here for draft legislation.)

The Scottish Government invites views on its proposed national mental health strategy, combining for the first time its mental health improvement work, mental illness prevention work and work to improve mental health services. Comments by January 31, 2012. (Click here for consultation).

W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor), v S and A NHS Primary Care Trust [2011] EWHC 2443 (Fam) (Baker J): The Court of Protection held M who is 52 is in what is known as a "Minimally Conscious State" and should not be allowed to die as a result of withdrawal of nutrition and hydration. Her family argued she was in pain and that artificial feeding and hydration should be withdrawn. The Official Solicitor and the health authority responsible for her care opposed the application. Mr Justice Baker said the case was unique and raised "very important issues of principle". He stated that M had "some positive experiences" and there was a "reasonable prospect" that those experiences could be extended. Mr Justice Baker said: "The factor which does carry substantial weight, in my judgment, is the preservation of life. Although not an absolute rule, the law regards the preservation of life as a fundamental principle." M became severely brain damaged eight-and-a-half years ago. She is unable to talk and had been thought to be in a vegetative state, with no awareness or consciousness of her surroundings. However subsequent tests indicated that she is in a "Minimally Conscious State" such that she is on the edge of awareness but her family wanted life-supporting treatment to be withdrawn, saying she would not want to live "a life dependent on others". The Official Solicitor representing M opposed their application for nutrition to be withdrawn, saying she is "otherwise clinically stable". The PCT responsible for commissioning her care also opposed the application, saying the 52-year-old's life was "not without positive elements". Since the ruling inBland a total of 43 patients in a persistent vegetative state, or PVS, have died after a judge ordered that treatment could be withdrawn. This case is considered different because M is described as minimally conscious. (Click here for transcript.)

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