2012 01 Mental Health

Wednesday 1 February 2012

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Secretary of State for Justice v (1) RB and (2) Lancashire Care Foundation Trust[2011] EWCA Civ 1608 (Maurice Kay LJ, Arden LJ, Moses LJ): On allowing the appeal the Court of Appeal held that a tribunal could not rely on a patient's best interests as a ground for ordering a conditional discharge on terms that involved a deprivation of liberty. The Court held that Parliament could not have intended to create a new species of detention that was potentially more detrimental to personal liberty than detention under the Mental Health Act 1983. The Secretary of State appealed against a decision of the Upper Tribunal ((2010) UKUT 454 (AAC)) in relation to RB. RB had been detained in a mental hospital under the Mental Health Act 1983 s.37 and s.41 following his conviction for indecent assault. However, the Upper Tribunal subsequently ordered, pursuant to s.73, his conditional discharge into the community to reside in a care home. B agreed to the order, despite the conditions amounting to a deprivation of his liberty. (click here for transcript)

Stanev v Bulgaria 36760/06 (2012) ECHR 46: The Court held that the applicant's placement in a social care home for people with mental disorders combined with his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5) of the European Convention of Human Rights. Further the living conditions in the home led to breaches of Article 3, and of Article 13. Also the lack of access to a court to seek release from partial guardianship breached Article 6(1). Compensation of €15,000 was awarded. (click here for transcript)

DP v Hywel DDA Health Board (2011) UKUT 381 (AAC) (Judge Jacobs): This concerned an application by a nearest relative (WP) for discharge. WP's order for his son DP's discharge was barred by the Responsible Clinician. WP was then advised by the responsible authority that he was not the nearest relative, and that therefore his order and the barring report were of no effect and on this basis the Tribunal rejected WP's subsequent application. DP appealed. The Upper Tribunal held that the judge treated the barring report as having been withdrawn, rather not being valid and because there was no report, the Tribunal had no jurisdiction and it had been correct to reject the application. Further if the barring report had not been withdrawn, the question would have been whether a nearest-relative application made by a non-nearest-relative can be rejected was left undecided. (click here for transcript).

Mental Health (Wales) Measure 2010 (Commencement No. 1 and Transitional Provision) Order 2011: (click here for legislation).

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