2011 10 Mental Health

Tuesday 1 November 2011

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R (Sunderland City Council) v South Tyneside Council [2011] EWHC 2355 (Admin) (Langstaff J): On refusing the application for judicial review the court held the following. The dispute concerned which authority was lawfully responsible for provision of aftercare to SF. SF moved from a residential college (ESPA) in Sunderland to Rose Lodge Hospital in South Tyneside, initially as an informal patient under section 131 Mental Health Act 1983 (“the 1983 Act”) then as a result of detention under section 3 of the 1983 Act. SF’s placement in Sunderland was terminated because of the admission hospital to hospital. Mr Justice Langstaff drew 10 propositions from the law, and concluded that Sunderland (the Claimant) remained the authority with the responsibility aftercare for SF pursuant to s 117 of the 1983 Act. The judge held the relevant considerations were that (i) the informal admission under section 131 of the 1983 Act was close to being involuntary and the admission was in what was intended to be short-term accommodation, (ii) the termination of the placement in Sunderland was not voluntary, and finally (iii) the placement within the area of the Defendant was not part of SF's regular order of life or for a settled purpose. (click here for transcript).

BEH MH NHST & Secretary of State for Justice [2011] UKUT 328 (AAC) (Levenson J): The appeal concerned a case where there was a withdrawal of an application by a restricted patient without hearing any evidence or hearing submissions as a result of the judge of the tribunal indicating at the outset there was no chance of discharge. Further the judge indicated there was no chance of discharge in respect of discharge within the period of the next application. The judge gave no consideration to deferment of a conditional discharge which would have been consistent with the recommendations of the clinical team. The appeal was against the applicant’s withdrawal of his application given the FTT tribunal judge’s indications without hearing evidence. The Upper Tribunal held there was “no doubt” this was an appealable decision and held that the decision was a breach of the rules of natural justice. (click here for transcript)

The applicant was represented by Roger Pezzani.

Re GM; FP v GM and A Health Board [2011] EWHC 2778 (COP) (Hedley J): This was an application for a DOLS standard authorisation to be discharged, thus permitting GM, on discharge from hospital, to return to his home rather than be sent to an EMI home. The Court held that for there to be an order preventing GM from returning home it would have to be 'so contrary to his interests to return that the court must not even contemplate seriously a placement' at home. Also the factors in favour of a return home included: the 'emotional dimension'; GM's short life expectancy, and the fact that a move to EMI accommodation would be permanent; and Article 8 considerations. As GM was ready for discharge from hospital, and the decision would have permanent effect, Hedley J decided the issue in one day in January instead of waiting for a later hearing date. Hedley J stated that 'it seems to me that it is absolutely essential that the Court of Protection establishes a practice that these interim cases must be dealt with quickly, and, having regard to the demands on the system generally, proportionately, that is to say almost certainly without detailed oral evidence.'

(click here for transcript)

AH v West London MH NHS Trust [2011] UKUT 74 (AAC) (Carnwarth LJ, Levenson J and Cooper J): The Upper Tribunal held that once the threshold tests for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 of the Convention on the Rights of Persons with Disabilities) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state. The Tribunal directed that AH was to have a public hearing, not within Broadmoor hospital, with the press, public, AH and his representatives enabled to attend in person in the same hearing room. It was likely that in future cases, if detailed evidence of how video-link and public-notification arrangements would work in practice is provided, that a video-link to off-site premises would suffice.

(click here for transcript)

R (on the application of BA) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) (Elisabeth Laing QC): On allowing the application the court held that although there had been various breaches of the Secretary of State's detention policy, the statutory warrant for the detention of a deportee who was suffering from mental illness was not undermined until the negative effect of detention on his health, coupled with the fact that his condition was likely to lead to postponement of a decision on his asylum claim, meant that his detention had ceased to be for a reasonable period and therefore breached the principles in R v Governor of Durham Prison Ex p Singh [1984] 1 WLR 704. (click here for transcript).

R (on the application of Sawinda Sessay) v (1) South London & Maudsley Foundation NHS Trust (2) Commissioner of Police for the Metropolis [2011] EWHC 2617 (QB) (Pitchford LJ, Supperstone J): The Court held that Part II Mental Health Act 1983 (as amended) provided a complete code for the compulsory admission to hospital of non-compliant mentally incapacitated patients for the purpose of assessment and treatment and it was not possible to justify such a patient's detention using the common law doctrine of necessity. (click here for transcript)

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