January 2023 update

Updates MHLO monthly updates
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Website

  • Magic Book. The Magic Book is a database of contact details. The main idea is to add the hospitals and other places you visit (not just your own place of work). To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book

  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.

  • Cases. By the end of this month, Mental Health Law Online contained 2281 categorised cases

  • Chronology. See January 2023 chronology for this month’s changes to the website in date order.

Cases

  • Case (Coronavirus vaccination). TN v An NHS ICB [2022] EWCOP 53 — TN appealed, to a High Court judge, a circuit judge’s decision that it was in her 22-year-old son RN’s best interests to be administered a coronavirus vaccination. (1) TN argued that parental rights continue at any age (including beyond 16 or 18) when the child lacks capacity to understand, and that this can only be overridden in the extreme and limited circumstances of failing to care for the child. The High Court judge described this as a paternalistic approach consigned to history and a subversion of adult autonomy: it was for the court to decide, not the mother. (2) TN was concerned about the effect of a vaccination on RN’s heart, and had obtained a blood antibody test showing that RN likely had already been infected with coronavirus. The High Court judge decided that there was a greater risk from natural infection than from a vaccination, and that the circuit judge’s decision on best interests was correct.

  • Case (Secure accommodation of children). Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam) — “The primary purpose of this judgment is for the court, once again, to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children. … Courts are regularly told that, on any given day, the number of those needing a secure placement exceeds the number of available places by 60 or 70.”

  • Case (Failure to provide reasons to victim). Maher v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin) — (1) The Mental Health Tribunal in its first decision, in which it had refused to provide the mother of a victim of manslaughter the reasons for the conditional discharge decision, or a gist of them, had unlawfully fettered its discretion by applying a blanket policy or practice. (2) Around a year later, after judicial review permission on the “blanket policy” ground had been granted, the Deputy Chamber President decided to make a further decision. The tribunal had power to make this decision under its case management powers, but the decision itself was unlawful: (a) instead of directing herself that departing from the open justice principle can only be justified in exceptional circumstances when strictly necessary to secure the proper administration of justice, the DCP jumped straight to the presumption of privacy contained in the tribunal’s rules; as a consequence she did not engage with the purpose of the open justice principle which is to both assist in justice being done through transparency and also to enable the public to have confidence in the system; (b) her focus on the mother’s motives, which should not have been given weight in the overall balance, clouded her consideration of other, more relevant issues; (c) she did not direct herself that the extent of the derogation from the principle of open justice should be no more than is strictly necessary to achieve the desired purpose, and did not consider providing the mother with a gist or summary of the reasons; (d) she did not explain why a redacted version of the conditional discharge decision could not meet the patient’s privacy rights or why redacted reasons were “not possible”; (e) she did not adequately explain her reasons; (f) she did not engage sufficiently with the reasons that the mother had put forward. The court noted: “The direction of travel in the last 30 years or so has been towards openness and a more rigorous scrutiny of exceptions to the open justice principle and creative thinking about how conflicting rights can be reconciled.” (3) The refusal to provide the gist of the reasons for the conditional discharge decision, when the Parole Board would have provided a gist of its reasons in similar circumstances, was unlawful discrimination under Article 14 in relation to the mother’s Article 8 rights. (4) The tribunal’s decision not to allow a Victim Personal Statement, and the inability of a victim to request a reconsideration, were not unlawful discrimination given the different functions of the PB and the MHT.

Resources

  • Delayed transfer of care. Landmark Chambers, ‘Delayed Transfer of Care leads to £100k legal bill for an ICB’ (24/11/22) — (1) The patient sought judicial review of NHS bodies, arguing that he had been stuck on a (non-psychiatric) ward for over eight months because they had failed to agree on a discharge plan (constantly seeking further assessments, disagreeing on funding, and lack of engagement from the out-of-area section 117 providers). (2) The main issue settled when the parties agreed process leading to a discharge plan, with the divisional Court ordering the ICB to pay the patient’s legal costs estimated at more than £100,000. (3) The Court of Appeal granted permission for the patient’s argument that, in the case of delayed discharge patient in hospital, the regulation 21 duty to assess for NHS Continuing Healthcare (CHC) is triggered and therefore following the “Discharge to Assess” model is unlawful; however, the issue did not have to be decided in this case because the ICB backed down.

  • MHT and victims. Jag Bahra, ‘High Court victory for victims’ rights and open justice’ (Saunders Law, 13/1/23) — This press release notes that: (1) prior to the decision in Maher v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin), the Mental Health Tribunal was “perhaps the only Court left that operates entirely in secrecy, such that its decisions are beyond any public scrutiny”; (2) the tribunal has indicated that it intends to update its Practice Guidance to make it clear that victims are in fact entitled to request reasons when a patient is discharged; and (3) the Government has also indicated in a consultation that it supports proposals to allow victims to provide a Victim Personal Statement when a patient is being considered for discharge, which would bring the Tribunal’s practice closer into line with the Parole Board.

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 128, December 2022) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Collection of sperm where a person is on the edge of brain death; public protection and deprivations of liberty; and many newly-reported ‘part 2’ judgments tell us what happened next. (2) In the Property and Affairs Report: Lasting Powers of Attorney bill is published; and deprivations of assets. (3) In the Practice and Procedure Report: Cross-border placements; and amendments to the Court of Protection Rules. (4) In the Wider Context Report: ‘A gloriously ordinary life’; Crowter in the Court of Appeal; consent to adoption and capacity; prolonged disorders of consciousness; and a Strasbourg update. (5) In the Scotland Report: A new checklist for cross-border placements; a decision to close day centres is reduced; and model laws for advance choices.”

News

  • New CPD questionnaire available. The Nov-Dec 2022 (MCA) questionnaire is now available for subscribers. For further information, or to take the test, please visit the CPD scheme page.

  • Provision of tribunal reasons to victims. The High Court has decided that the tribunal’s previous blanket policy of refusing to provide reasons to victims was unlawful; the further refusal decision made during the JR proceedings was also unlawful and had failed to engage with the purpose of the open justice principle; and a refusal to provide a gist of the reasons when the Parole Board would provide this in similar circumstances is unlawful discrimination. See Maher v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin).

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