2012 11 Mental Health

Saturday 1 December 2012

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RM v Scottish Ministers [2012] UKSC 58 (Lord Hope JSC (Deputy President), Lady Hale JSC, Lord Wilson JSC, Lord Reed JSC, Lord Carnwath JSC). In allowing an appeal the Supreme Court held that the failure of Scottish Ministers to make the necessary regulations to bring into effective operation sections 268 – 271 of the Mental Health (Care and Treatment) (Scotland) Act 2003 had thwarted the intention of the Scottish Parliament and was therefore unlawful.

The Appellant appealed a refusal of his application for judicial review of the respondent Ministers' failure to bring certain legislation into effect. The Appellant had been detained in a non-state hospital since 1995. He wished to be transferred to an open ward to improve his prospects of release. Section 268(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 stated that "qualifying patients" detained in a "qualifying hospital" could apply to the Mental Health Tribunal for Scotland for an order that they were being detained in conditions of excessive security and should be transferred to an alternative hospital. The relevant sections was to come into effect by 1 May 2006 but it was not effective in the absence of regulations defining "qualifying patients" and "qualifying hospital" and the Appellant was prevented from making an application to the tribunal.

The Appellant claimed a judicial review of the ministers' failure to draft and lay regulations before the Scottish Parliament but his claim was refused.

The Supreme Court held that there was a distinction between bringing an Act into force and giving full effect to an Act. Section 333 Mental Health (Care and Treatment) (Scotland) Act 2003 stated that the relevant provisions "shall come into force on 1st May 2006". That referred only to the bringing of the provisions into force as law, and not to their being brought into effective operation. This did not permit and inference Parliament did not intend the provisions to be brought into effective operation on the date when they came into force. It was reasonable to infer that when it fixed a date when a provision was to come into force Parliament was not envisaging that the provision would technically have the force of law but in practice be a dead letter. Parliament would legislate only for the purpose of bringing about an effective result. Even where a statute conferred a discretionary power, a failure to exercise the power would be unlawful if it was contrary to Parliament's intention. That intention might be to create legal rights which could only be made effective if the power was exercised or it might be to bring about some other result which was similarly dependent upon the exercise of the power. It was a basic principle of administrative law that a discretionary power could not be used to frustrate the object of the Act which conferred it. Given that it was the intention of the Scottish Parliament that the relevant provisions should be in effective operation by 1 May 2006 at the latest, it followed that although Ministers had a discretion as to the manner in which they exercised their power to make the necessary regulations, they were under a duty to exercise that power no later than 1 May 2006. (Click here for judgment).

R (on the application of L) v West London Mental Health NHS Trust & (1) Partnerships in Care (2) Secretary of State for Health [2012] EWHC 3200 (Admin) (Stadlen J): The High Court considered the decision-making process concerning whether a detained person should be transferred from a medium-secure hospital to high security conditions engaged the common law duty of fairness. The court gave guidance about the correct approach to be taken by the managers of medium security units to a proposed transfer. The claimant who had been detained in a medium security psychiatric hospital under s 37 of the Mental Health Act 1983 sought judicial review of his transfer to high security conditions in a hospital operated by the defendant NHS trust. The Claimant ultimately withdrew his challenge, but the claim proceeded because the legal fairness of the transfer procedure was thought to be of general importance. (Click here for the judgment).

R (on the application of Sunderland City Council) v South Tyneside Council & (1) SF (2) Leeds City Council [2012] EWCA Civ 1232 (Lloyd LJ, Richards LJ, Elias LJ): In allowing the appeal the Court held that the guidance in Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, [2002] 1 A.C. 547 would be helpful in determining where a patient had been "resident" for the purpose of deciding which local social services authority should be responsible for his after-care under section 117 of the Mental Health Act 1983 accordingly, it would be a question of determining the place where he had in fact resided, as long as that place was voluntarily accepted by him. (Click here for the judgment).

R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) (Lang J): On allowing the claim for judicial review the court held that the Secretary of State for the Home Department had acted unlawfully in failing to consider whether an asylum seeker's detention should have continued under the terms of her mental health policy, given evidence that the asylum seeker had been suffering from a serious mental illness. (Click here for the judgment).

The claimant was represented by Stephanie Harrison

Patricia Young v Public Prosecution Service [2012] NICA 35 (Morgan LCJ, Higgins LJ, Coghlin LJ): On dismissing the appeal by way of case stated the Court of Appeal of Northern Ireland held that the consent of the Director of Public Prosecutions for Northern Ireland had not been required to prosecute a care worker for offences of ill-treatment of a patient under article 121 of the Mental Health (Northern Ireland) Order 1986. The court held that the purpose of the consent provision in article 126 of the order was to guard against the risk of prosecutions being brought in inappropriate circumstances and that purpose was not undermined by any delegation of prosecutorial discretion. (Click here for the judgment).

Richen Turner v United States [2012] EWHC 2426 (Admin) (Aikens LJ, Globe J): The Court of Appeal in dismissing the appeal held that the deportation to the United States of a woman who was subject to an extradition request for trial in respect of a charge of causing death by dangerous driving was not oppressive within the terms of the section 91 of the Extradition Act 2003 as although there was a risk of her committing suicide, the court was quite satisfied that Florida had the proper facilities to cope with both her mental illness and the risk of her attempting suicide if extradited. (Click here for the judgment).

R (on the application of D) v Secretary of State for the Home Department [2012] EWHC 2501 (Admin) (Charles George QC): The Claimant applied for judicial review of the Defendant’s decision to detain him. The Claimant was a national of Congo-Brazzaville with a history of psychiatric illness but while detained he did not receive treatment for his condition. In allowing the application the Court held that the Secretary of State's failure to treat a detainee's mental health condition adequately whilst in immigration removal centres breached its public sector duty under s 149 of the Equality Act 2010, its duty under the United Kingdom Border Agency Enforcement Guidance and Instructions Chapter 55.10, and the detainee's rights under articles 3 and 8 of the European Convention on Human Rights. (Click here for the judgment).

R (on the application of (1) MM (2) DM) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin) (Edwards-Stuart J): The Claimant’s sought permission to apply for judicial review of the process by which the Defendant assessment persons with mental health problems for eligibility to claim Employment and Support Allowance (“ESA”). The court granted permission for judicial review of the process by which the Defendant assessed the eligibility of persons with mental health problems for ESA. The court held that It was at least reasonably arguable that the reasonable adjustments required by the Equality Act 2010 included obtaining, very early in the process, of independent medical evidence where the documents submitted with the claim indicated that the claimant suffered from mental health problems. (Click here for the judgment).

HSE Ireland v SF (A CHILD) [2012] EWHC 1640 (Fam) (Baker J):The applicant Health Service Executive of Ireland (HSE) applied for an urgent order under Regulation 2201/2003 article 20 that the respondent 17-year-old girl should reside at an English treatment unit. The court made an interim order under Regulation 2201/2003 article 20 that a 17-year-old Irish girl with serious psychological and behavioural problems be treated and detained at an English unit pending the registration and enforcement of an Irish court order to similar effect. (Click here for the judgment).

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