2013 08 Mental Health

Sunday 1 September 2013

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Dorset NHS Primary Care Trust & another v Timothy Frederick Coombs [2013] EWCA Civ 471 (Rix LJ, Aikens LJ, Black LJ): On dismissing the Trust’s appeal the court held that there was nothing inherent in the Mental Health Act 1983, the National Health Service Act 2006, or by way of public policy to exclude absolutely the possibility of patients detained under the Mental Health Act 1983 or their families paying for, or contributing to, the cost of their treatment or care. Nevertheless, such care or treatment could not be in conflict with the recommendations of the patient’s responsible clinician.The court held that here was no statutory or public policy reason for there to be an absolute bar on the provision of facilities recommended or consistent with the recommendations of the patient’s responsible clinician, which might be available at a price, within or without the NHS care system. Although it may be the case that private payment might cause practical difficulties, namely where private funding which was available breaks down but such difficulties might always pose a problem and did not create public policy bars. (a free copy of the judgment is not yet available).

R (on the application of AK) v Secretary of State for the Home Department (Admin) 5 April 2013 (Males J) Extempore judgment: The claimant asylum seeker applied for interim relief to prevent his imminent removal from the United Kingdom to Denmark by the defendant secretary of state. The application to prevent the removal of the claimant Sierra Leonean asylum seeker with a mental disorder to Denmark was refused. The court held the responsibility for the determination of the asylum claim lay with Denmark under Regulation 343/2003 (Dublin II) as Denmark was the state where the asylum claim was first made and from where the claimant could get the appropriate care and treatment for his mental disorder. (a free copy of the judgment is not yet available).

R (on the application of Pratima Das) v Secretary of State for the Home Department [2013] EWHC 682 (Admin) (Sales J): The claimant applied for judicial review of the defendant's decision to detain her with a view to removing her from the United Kingdom. The court held that in breach of the defendant’s public law obligation of inquiry, the defendant had failed to review a relevant medical report in her possession prior to detaining a person in immigration detention, or during that detention, thereby undermining the proper application of the defendant’s policy relating to detention of persons suffering from mental illness and rendering the whole period of detention unlawful. (click here for the judgment).

The claimant was represented by Stephanie Harrisonand Michelle Brewer of Garden Court Chambers.

NT v FS (by his litigation friend the Official Solicitor) [2013] EWHC 684 (COP) (Judge Behrens): When granting authority to a deputy to execute a statutory will on behalf of a person lacking capacity, the court summarised the guidance from the relevant authorities in relation to the structured decision-making process laid down by the Mental Capacity Act 2005. (click here for the judgment).

Aintree University Hospitals NHS Foundation Trust v (1) David James (by his litigation friend the Official Solicitor) [2013] EWCA Civ 65 (Laws LJ, Arden LJ, Sir Alan Ward): The court held that it was in a patient's best interests to have life-sustaining treatment withheld where the treatment would be futile and extremely burdensome to endure, and he would never recover enough from multiple organ failure to leave hospital. (click here for the judgment).

RC v NHS Islington and Others [2013] UKUT 167 (AAC) (Judge Bano): This is an appeal by a patient against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. A right of appeal lies to the Upper Tribunal against such a refusal-see LS v LB Lambeth (HB) [2010] UKUT 461 (AAC). Neither the respondent health authority nor the Secretary of State for Justice took part in the proceedings. The patient was detained under sections 37 and 41 of the Mental Health Act 1983 but that he has since been conditionally discharged as a result of a further appeal. His original appeal was listed for hearing on 20 and 23 April 2012, but on 17 April 2012 the patient’s solicitors applied for the hearing to be adjourned to a date after the last week of May 2012. The application stated that the patient had come to accept that a conditional, rather than an absolute, discharge might be appropriate, but that at the time of the application it was not known whether the care plan which a conditional discharge would require could be arranged. The tribunal held the decision of the Mental Health Review Tribunal for Wales involved the making of an error on a point of law. However, in exercise of the power conferred by section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 it did not set aside the decision of the tribunal since no useful purpose would now be served by doing so. (click here for the judgment).

MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC) (Judge Jacobs): This case raised one issue: is the nature of the risk posed by a patient detained under the Mental Health Act 1983 relevant to the appropriateness of treatment under section 72(1)(b)(iia) of that Act? Mr D was convicted of cruelty to a child under 16 in 2003 and sentenced to five years imprisonment. In 2007, the Secretary of State directed his transfer to Rampton hospital under sections 47 and 49 of the 1983 Act. The restriction direction under section 49 ceased to apply when his sentence expired, but he remains detained under section 47. He was transferred to Ashworth hospital, from where he applied to the First-tier Tribunal on 27 August 2010. The tribunal heard his application over two days on 6 and 7 February 2012. It decided not to discharge Mr D. Its detailed analysis and reasons are dated 7 March 2012 and run to 178 paragraphs over 31 pages. The First-tier Tribunal gave Mr D permission to appeal to the Upper Tribunal. On dismissing the appeal the judge held despite having said that risk was relevant to the availability of appropriate treatment, the tribunal’s findings were sufficient to show that Mr D satisfied this condition for detention anyway. Mr D’s counsel had argued that Mr D’s condition was ‘a complete and permanent barrier to any engagement’. The tribunal found that Mr D’s disorder was potentially responsive to treatment, at least to the extent of preventing it worsening. It noted that there were instances of Mr D engaging, despite himself. These findings were sufficient to satisfy section 72(1)(b)(iia), given the wide definitions in section 145. The findings were also consistent with the transfer of Mr D to a medium secure unit. That transfer took place after the hearing, but it was in contemplation at the time of the hearing and the tribunal referred to the unit in its reasons. The judge accepted that the tribunal went on after making those findings to refer again to risk in relation to appropriateness butut looking only at its findings, the tribunal could not properly have come to any other decision than it did. Mr D’s counsel argued that, having dealt with risk and appropriateness as it did, the tribunal’s actual findings could not be separated from them. Why bother with paragraphs 137, 140 and 141 unless they were relevant? The judge considered this a good question but the answer is a simple one: coherence can be a casualty in lengthy reasons. Length does not necessarily make reasons clearer. The judge accepted Mr D’s counsel’s argument that the therapeutic role of detention must not be subsumed to the extent that it becomes merely a veil for containment. As Brenda Hale wrote in Mental Health Law (5th edition) at page 71:‘it still has to be shown that there is treatment available which will do some good.’ But the tribunal in this case has explained clearly that there was treatment available to Mr D that was not only capable of doing him some good, but was actually achieving some good. (click here for the judgment).

Mr D was represented by Roger Pezzani of Garden Court Chambers.

R (on the application of Rosalind Copson) v Dorset Healthcare University NHS Foundation Trust & NHS Dorset (Interested Party) [2013] EWHC 732 (Admin) (Judge Keyser QC sitting as a deputy High Court judge):The claimant applied for judicial review of a decision of the defendant to implement a project for the reconfiguration of its mental health services. The project, which was a collaboration between the defendant and the interested party, involved the closure of an in-patient facility used by the claimant. The claimant submitted that the defendant had (a) failed to carry out an adequate consultation with its service users in that it had not consulted when the proposals were at a formative stage, had not approached the consultation with an open mind, and had not provided sufficient information to enable the consultees to engage meaningfully with the proposals and (b) failed to comply with its duty under the section 149 Equality Act 2010 to have due regard to the need to advance equality of opportunity. On dismissing the claim the court held that the defendant had adequately engaged service users with its proposals to reconfigure its mental health services. Further the public sector equality duty was not a back door by which challenges to the merits of decisions could be made as unlawfulness would exist only if there had been a failure to comply with the duty as a matter of substance rather than of form. (click here for the judgment).

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