Case Law Update for MHAC by qjc19528


									               Case Law Update (Short Form)

1. HL v UK (Bournewood)

  ISSUE: Did the detention of a passive incompetent patient under Common
         Law breach the ECHR?

  DECISION: Patient was detained
          : Patient met Winterwerp criteria for detention
          : Common Law doctrine of necessity inadequate to prevent
             arbitrariness because of lack of procedural safeguards, rules
             and formal admission procedures; not a procedure prescribed
             by law; also because concepts of “best interests” and
             “necessity” too imprecise. (Breach of Art 5(1))
           : Judicial Review and Habeas Corpus inadequate means of
             challenge. (Breach of Art 5(4))

  IMPLICATIONS: Must all “Bournewood” patients be formally detained?
              : What is the position of such patients at home or in
                nursing Homes?
              : Safeguards have been removed from the Mental Health
                bill but not carried over into the Mental Capacity Act
              : What is the wider standing of the doctrine of necessity?
              : Distinction between deprivation of liberty and restriction
                of movement
              : Government consultation on “protective care” proposals

  CONNECTED CASE: Storck v Germany
          : Article 1 obligation on State to secure Convention rights; not
            only failed to protect patient but involved in detention
          : Patient under continuous supervision, shackled when trying
            to leave; returned by police when absconded; denied regular
            social contact with outside
          : State could not delegate obligations to private institutions
          : Special safeguards may be needed to protect the vulnerable
            mentally ill
2. Ex parte Von Brandenburg
   ISSUE: When may a patient be resectioned following discharge by MHRT?

   DECISION: Patient may be resectioned if Approved Social Worker bona
             fide believes
             a) he has information not known to the Tribunal AND
             b) the information puts a significantly different complexion on
                 the case

  IMPLICATIONS: “ Change of Circumstances “ test gone
              : Need for early full and reasoned decisions from MHRTs
                (see Ex parte Li; R(Sec of State) v MHRT; and R v MHRT
                ex parte E London and City MHNHS Trust)
              : ASW makes decision – not a collusive process
              : Reasons for ASW’s decision usually to be made known to

3. R(Munjaz) v Ashworth HA (now Mersey Care NHS Trust) (HL)

  ISSUE: The legality of seclusion
       : The Status of the Code of Practice

   DECISION: Seclusion may be lawful under Common Law (CA)
           : Seclusion may be given under S63 as “medical treatment”(CA)
           : Seclusion did not breach Article 3 ECHR as hospital policy
              prevented threshold being reached
           : Seclusion did breach Article 8(1) but could be justified under
             Article 8(2)
           : Article 5 not breached as not concerned with conditions of
           : Code of Practice is guidance not instruction. Must be cogent
             reasons for departing from it

   IMPLICATIONS: Departure from Code of Practice as matter of policy
                : Judgement does not just relate to issue of seclusion
                : Bolam supportable differing views and practices can
                  withstand Code of Practice guidance to the contrary
                : Trusts need to keep their seclusion policies under
                : Legal requirements cannot be left to Code of Practice
4. R(IH) v Sec of State for Home Dept
   R(W) v Doncaster MBC

   ISSUE:   What if conditions attached to a deferred discharge by MHRT
            cannot be met?

   DECISION: Obligation is to use best endeavours to meet conditions
           : MHRT’s inability to enforce conditions is not in breach of
             Article 5
           : MHRTs must adopt flexible approach and adjourn/revisit
           : New regime set by Court of Appeal approved by House of

    IMPLICATIONS: Does ruling extend beyond deferred conditional
                  discharge patients under S73?
                : Is a Community RMO a Public Authority?
                : Professional autonomy of psychiatrists preserved
                : How long patient is lawfully detained as a result
                   depends on whether still suffering from mental

               : Delay in matter being referred back to MHRT
                 by Sec of State’s discretion under S67(1) or otherwise
                 could lead to breach of Article 5(4)

5 R(B) v Ashworth HA

   ISSUE: May treatment be imposed on detained patient under S63 for ANY
          mental disorder?

   DECISION: Treatment may be given under S63 for any mental disorder
             and not merely for the disorder for which patient has been

   IMPLICATIONS: Classification has no bearing on treatment
               : RMO should still reclassify where appropriate even
                 though wording permissive
               : Reclassification has implications for MHRT
                 applications and for “treatability” test
   CONNECTED CASES (1) R(AL) v Sec of State Home Office
               : Recall of Restricted Patient on different grounds from
                 classified disorder not unlawful
                    (2) R(SC) v MHRT
               : MHRT can take non classified disorder into account
                  when deciding on its S73 powers

6. R(DR) v Mersey Care NHS Trust

   ISSUE: What degree of hospital treatment necessary to justify renewal of
          patient’s detention, while patient largely on S17 leave?

   DECISION: Treatment in hospital not necessarily have to be as in patient
           : Some treatment in hospital required as necessary part of care
           : Treatment may be minimal (attendance for monitoring or
             ward round) but must be essential component

    IMPLICATIONS: Coupled with ex p. Smith etc decisions is this a
                  Community Treatment Order?
                : Is Mental Health Bill provision (now amended to
                  require previous hospital admission) redundant?
                : Decision applies to renewals not to initial detention
                : How far can meaning of “hospital” be stretched?
                : MHAC has produced guidance on renewal
                : Code of Practice para 20.13 now incorrect

    CONNECTED CASES (1) R v MHRT, ex parte CS
               : R(DR) principles apply to MHRT decisions as well
                  as to S20 RMO renewals
               : Delicate balancing act moving patient towards
                  discharge while avoiding revolving door
                     (2) Epsom & St Helier NHS Trust v MHRT
               : Even if not receiving hospital treatment patient can
                  remain liable to detention depending upon MHRT’s
                  view as to likelihood of need for future in patient
7. Ex p Moyle; ex p Smith; ex p Sec of State for Home Dept.

   ISSUE: Should “nature or degree” be construed disjunctively?

   DECISION: (All 3 cases) Should be construed disjunctively

   IMPLICATIONS: Possible to justify patient’s continued detention when
                degree of disorder/symptoms controlled, but underlying
                nature of disorder of sufficient severity (ie asymptomatic)
              : Coupled with “long leash” S17 provisions (see R(DR))
                does this constitute a Community Treatment order?
              : Must there be a history of relapse following failure to
                 take medication/treatment?
              : Will this lead to patients being formally detained for

8. R(Wooder) v Feggetter

    ISSUE: Does a SOAD have to give reasons for his decision?

    DECISION: SOAD must give reasons, in writing, and RMO must
              communicate them to patient

    IMPLICATIONS: RMO may justify withholding reasons on clinical
                  grounds identified by him or by SOAD ( serious harm
                  to physical or mental health of patient or another)
                : MHAC advises SOADs to provide reasons for all
                  authorisations including for incapacitated patients
                : MHAC guidance note issued detailing the issues that
                  need to be considered and recorded
9. R(PS) v Dr G and Dr W

    ISSUE: Does S58 treatment forced on competent patient breach ECHR?

    DECISION: No breach of Article 3 as threshold not reached and
              treatment convincingly shown to be a therapeutic
            : Article 8(1) breached, but justified under Article 8(2) as
              necessary for patient’s health, in accordance with the law
              and proportionate

    IMPLICATIONS: Case involved medicine for more than 3 months –
                  would ECT reach Article 3 threshold?
                : Mental Health Bill allows competent detained patient
                  to refuse ECT, except in an emergency
                : Court examined very closely the SOAD’s decision, so
                  reinforcing need for full reasoning to be given
                  (see Wooder)

    CONNECTED CASE R(B) v Dr SS, Dr G, and Sec of State for Health
               : Mere fact that capacitated patient refuses treatment
                 not amount per se to breach of Articles 3, 8, and 14,
                 because of limited application and safeguards
               : Patient not believing he might be mentally ill might
                 fail capacity test as unable to weigh in the balance
               : Need to show convincingly that treatment medically
                 necessary only arose re Article 3 if threshold reached
                 (see case 10 below); not relevant to Article 8(2)

10. R(N) v Dr M et al

    ISSUE: Did existence of opposing medical view mean RMO and SOAD
           could not justify imposing S58 treatment?

     DECISION: S58 treatment could be justified in the circumstances
             : No “reverse Bolam” test

     IMPLICATIONS: S58 treatment must be shown convincingly to be
                   medically necessary
                 : Court would decide matter in light of all the evidence
                 : When considering “best interests”
                      a) these covered more than medical interests
                           b) all options must be Bolam supportable
                           c) the least restrictive option must be chosen
                      : Judicial Review hearings may allow cross
                        examination and thus increase demands on
                        professionals’ time

      CONNECTED CASE: R v Dr Haddock v MHRT et al, ex parteB
                 : In deciding whether treatment imposed under S58
                   breached Articles 8 and 3 court had to consider
                   afresh whether treatment necessary and likely to be
                  : Not usually necessary for SOAD to be represented

11.     R(E) v Bristol City Council
        ISSUE: Meaning of “practicable” and “reasonably practicable” in S11
               MHA in relation to consultation with Nearest Relative

        DECISION: HRA requires words to be construed so as not to infringe
                  Convention rights
                : Words do not refer just to availability of Nearest Relative
                : If consultation with Nearest Relative would have adverse
                  effect on patient then not practicable

        IMPLICATIONS: Code of Practice wrong and contrary to common
                    : How and who to decide if adverse effect sufficient?
                    : Case was at first instance and opposing view not
                      argued for
                    : What if patient lacks capacity?

        CONNECTED CASES: JT v UK; R v Sec of State for Health ex p M
                   : Declaration of incompatibility of S29 with ECHR
                      as patient has no choice over Nearest Relative
                    : Changes anticipated in Mental Health Bill to
                      implement this which will circumvent problem
                      in R(E)

12.     R(MH) v Sec of State for Health

        ISSUES: Did failure of MHA to provide automatic referral of
                incapacitated S2 patient to MHRT breach Art 5(4)?
              : Did extension of S2 by application under S29 to replace
                Nearest Relative require consequential right to go to MHRT
                if not to breach Art 5(4)?

        DECISION: On both issues the answer was in the negative
                 : S2 not incompatible as no requirement for all cases to be
                   referred; sufficient for “sensible efforts” to be made to
                   facilitate applications eg managers giving info to NRs;
                   low capacity threshold for patient to authorise someone
                   to make written application for him
                 : S29 not incompatible as Sec of State has discretion to
                   refer under S67(1) and can be compelled by JR if ill
                   advisably does not do so; managers or Social Services can
                   notify Sec of State if S29 application is made; JR is
                   available to challenge lawfulness of detention

      IMPLICATIONS: Requirement of Article 1 to secure Convention
                     rights for citizens (esp. if incapable) disregarded
                   : Does possibility of S29 being operated compatibly
                      mean it is compatible
                   : Discretion of Sec of State an inadequate safeguard?
                   : HL v UK states JR no substitute for MHRT hearing
                   : Storck v Germany emphasised need for special
                     safeguards to protect incapacitated patients

13.    R(DJ) v MHRT et al

       ISSUE: What is the standard of proof required in MHRTs?

       DECISION: Whether P suffering from mental disorder is to be
                 determined on balance of probabilities
               : Other issues (eg nature or degree warranting detention;
                 for health and safety of P or safety of others) matters
                 of judgement and standard of proof not relevant

       IMPLICATIONS: Requirement of MHRT to be satisfied as to the
                     criteria for detention
                   : MHRTs to be alert to dangers of hearsay evidence
                   : If past events relied on MHRTs to be cautious
                   : Repetition of statements may not be grounded in
                     recorded or probable fact
                   : MHRTs should look to medical records for
                     contemporaneous evidence of assertions relied on
                   : Witnesses may need to be cross-examined to
                     ensure fairness
14. R(Sec of State for Home Dept) v MHRT and PH

ISSUE: When do conditions for discharge set by an MHRT amount to a
deprivation of liberty rather than a restriction of movement?

DECISION: Requirements for P: to reside at suitable specialist
          accommodation with 24 hour trained nursing care and
          daytime trained psychiatric care and appropriate security;
          and to leave only with an escort, did not together amount to
          unlawful deprivation of liberty.

IMPLICATIONS: Distinction between deprivation of liberty and
              restrictions of movement one of degree or intensity
              rot nature or substance
            : Only deprivation of liberty caught by Article 5
            : MHRT cannot substitute one form of deprivation of
              liberty for another
            : Limits to resources argument

              (2) R(Sec of State for Home Dept.) v MHRT (re MP)
     : In (1) condition of remaining at hospital where already
       resident, and under same degree of scrutiny and restrictions
       on movement was unlawful
     : In (2) similar conditions as in PH were found to be unlawful.
       Contrary to position in PH here need for P to be escorted at
       all times was critical and unlikely to lessen
     : Agreement by P to the conditions did not make them lawful

 15. R(B) v Camden BC et al

     ISSUE: When does the S117 obligation on LAs and HAs arise?

     DECISION: Duty owed to a patient who ceases to be detained and
               leaves hospital so prima facie not until then nor to a
               deferred conditional discharge patient
             : However power of HA to take preparatory steps
               before discharge means must use reasonable
               endeavours to fulfil MHRT prospective decisions of
               which it is aware
IMPLICATIONS: HA not under duty to monitor patients in case
              MHRT were to make deferred conditional
              discharge order
            : Patient’s solicitors and the Hospital should
               notify HA of MHRT decision
            : Such patients are “persons in need” of S117
              services so triggering an assessment under S47
              NHSCC Act

               PAUL BARBER

                November 2005

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