Legal Update MHLA 13 th Conference

1. Legal UpdateMHLA 13th Conference Sophy Miles Miles and Partners LLP

2. Significant cases during 2013: www.mentalhealthlaw.co.uk • Article 5/ wrongful detention. • Treatment and Risk • Fairness • Powers of Tribunals • Procedures • Aftercare • Legal Aid • What’s next?

3. Article 5/wrongful detention cases • MH v UK 11577/06 [2013] ECHR 1008 • R (Zhang) v Whittington Hospital (2013) EWHC 358 (Admin) • Das, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 682 (Admin) (26 March 2013) • R (Lee-Hirons) v SSJ (2013) EWHC 1784 (Admin), (2013)

4. MH v UK • MH had Down's syndrome and had lived with her mother prior to removal to hospital and detention under s2 MHA 1983, on 31st January 2003. • Mother was MH's nearest relative. • Discharge her blocked through the RC (then referred to as RMO) under s25. • MH did not have capacity to apply to the Tribunal herself and her mother did not have access to the Tribunal (because MH was detained under s2- had MH been detained under s3 then s66(1)(g) would have applied).

5. MH v UK (2) • MH 's detention was then extended by operation of s29(4). • Solicitors asked the Secretatary of State to refer the case to the Tribunal which he did. • Tribunal took place on 26th March 2003 and did not discharge MH. • MH was moved from hospital on 21st July 2003 and following an interim displacement of her mother, was received into guardianship on 1st August 2003.

6. MH v UK (3) • The Court found that MH's initial period of detention violated her rights under Article 5(4) because, as a patient lacking capacity to make an application to the Tribunal, she did not have the safeguards in the form of access to the Tribunal, which she would have had if she had had such capacity:

7. MH v UK (4) Neither the applicant nor her mother acting as her nearest relative was able in practice to avail themselves of the normal remedy granted by the 1983 Act to patients detained under section 2 for assessment. That being so, in relation to the initial measure taken by social services depriving her of her liberty, the applicant did not, at the relevant time, before the elucidation of the legal framework by the House of Lords in her case, have the benefit of effective access to a mechanism enabling her to “take proceedings” of the kind guaranteed to her by Article 5 § 4 of the Convention. The special safeguards required under Article 5 § 4 for incompetent mental patients in a position such as hers were lacking in relation to the means available to her to challenge the lawfulness of her “assessment detention” in hospital for a period of up to twenty-eight days. – para 86

8. MH v UK (5) 93. When a mental patient is not fully capable of acting for herself on account of her mental disabilities, by definition the compensatory safeguards to which the State might have recourse in order to remove the legal or practical obstacles barring such a person from being able to benefit from the procedural guarantee afforded by Article 5 § 4 may well include empowering or even requiring some other person or authority to act on the patient’s behalf in that regard.

9. MH v UK (6) 95. The question might be asked whether such a hearing could have taken place had the applicant not had a relative willing and able, through solicitors, to bring her situation to the attention of the Secretary of State. However, the Court may only consider the case before it, and the facts of the present case clearly illustrate that in circumstances such as the applicant’s, where the incompetent patient is “befriended”, the means do exist for operating section 29(4) of the 1983 Act compatibly with the requirements of Article 5 § 4 of the Convention.

10. MH v UK (7)-implications • Some form of automatic referral to the Tribunal for s2 patients who lack capacity to make the application themselves. Otherwise they will continue to be treated less favourably than patients with that capacity. • Will require capacity of s2 patients to be assessed- will RCs be able to? • Where Article 5 is engaged there is a clear duty to refer the case to the Tribunal when requested: see para 94. Guidance of April 2013 should be revised. • What is the position of the detained incapacitous patient who does not have a nearest relative (or equivalent) able and willing to bring the patient's case to the Secretary of State's attention? • Implications for DOLs patients?

11. R (Zhang) v Whittington Hospital (2013) EWHC 358 (Admin) 1 • Patient detained 2 days under s 2, 2 days after birth of child; discharged by FFT 2 weeks later; • Maintained reasons for detaining were inadequate. • Decision included:”We fully understand why given Miss Zhang's history and apparent presentation on 6th March [I stress "apparent presentation"] section 2 was considered appropriate. Given the history of psychosis, the residual delusional beliefs and the risk of post partum psychosis the decision to place her on section cannot be criticised.” • This was relied on by judge in refusing permission.

12. Das, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 682 (Admin) (26 March 2013) • Claimant had a history of PTSD and depression and was placed in immigration detention on two occasions. • The current instructions from the Secretary of State included: • “The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: …. those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act;

13. Das, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 682 (Admin) (26 March 2013) 2 • Secretary of State was…under a public law obligation to take reasonable steps to give practical effect to that policy, bearing in mind the importance of the objective which it was designed to promote (namely, the humane treatment of individuals who suffer from serious mental ill-health). • If there was a real (as opposed to a fanciful or insubstantial) possibility that an immigrant facing removal was suffering from serious mental ill-health which could not be effectively managed while in detention, the Secretary of State had an obligation to take reasonable steps to inform himself sufficiently about the relevant circumstances .

14. Das, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 682 (Admin) (26 March 2013) 3 • SofS had failed to take steps to inform himself of the circumstances- aware there was a detailed psychiatric report but did not obtain it; • Failed to review her circumstances despite warning signs that claimant might be suffering from serious mental health problems; • Detention was unlawful because of these failures though would have been lawful otherwise; so only nominal damages awarded.

15. R (Lee-Hirons) v SSJ (2013) EWHC 1784 (Admin), (2013) • Challenge to recall of conditionally discharged patient • The question for the Secretary of State is "… whether there had been such a material change of circumstances since the Tribunal's decision that he could reasonably form the view that the detention criteria were now satisfied", see R(M) v Secretary of State for the Home Department [2008] EWHC 3638 (Admin).

16. R (Lee-Hirons) v SSJ (2013) EWHC 1784 (Admin), (2013) • “…. fairness requires that reasons be provided to the person being recalled…because the decision involves the removal of the (albeit part conditional) liberty enjoyed by that person.” • The ECHR provides at article 5(1)(e) for the lawful detention of persons of unsound mind. Article 5(2), which applies to all the reasons for detention provided for in article 5(1), provides that "everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charge against him". • “…… a failure to provide reasons would render the subsequent detention unlawful. This is because the giving of reasons is a condition precedent to the lawful recall of the person to be detained, in the same way that the giving of reasons for arrest is a condition precedent to lawful arrest by the police. “ • Reasons need not be in writing though this may be desirable. Satisfied there were grounds to recall and oral reasons were given.

17. Fairness • R oao L v West London Mental Health NHS Trust [2012]EWHC 3200 (Admin)- transfer to HSH engaged common law duty of fairness • GB v SW London and St George’s MH NHS Trust [2013] UKUT 058- medical member commented “I have no issues with the nature…” • Fair-minded impartial observer would not think he had formed fixed view but was exploring the evidence.

18. Fairness-MM v Nottinghamshire NHS Trust [2013] UKUT 0107 (AAC) • Counsel for hospital at FTT argued that FTT should draw an inference from the fact that an independent had seen patient and report was not relied on. • MM argued that FTT should have recused themselves (though this would not be appropriate every time FTT knew there was an independent who was not relied on. • “…..there is a practical answer to this case, and I suspect to almost every other case in which the same argument might be presented. The answer is that it would not be proper for the tribunal to draw inferences like those set out in counsel’s argument.”

19. Treatment and risk • MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC) • GA v Betsi Cadwaladr University LHB [2013] 0280 (AAC) • DL-H v Partnerships in Care and SofS for Justice [2013] UKUT 500 (AAC) • An NHS Trust v Dr A (2013) EWHC 2442 (COP),

20. MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC) • Was the FTT entitled to take the question of risk into account when deciding whether appropriate medical treatment was available? • UTT held that was permissible when considering how long to wait for the patient to engage with treatment. • What is appropriate medical treatment for a high risk patient is in fact containment for a patient posing a lower risk? • UTT stressed the importance for treatment not to be a veil for containment.

21. GA v Betsi Cadwaladr University LHB [2013] 0280 (AAC) • Appeal against refusal to grant discretionary discharge to CTO patient on basis: • the tribunal was wrong to find that Mr A had consented to his treatment; • the condition requiring that he submit to treatment was unlawful; • so the community treatment order was unlawful; • the tribunal should have discharged Mr A under its discretionary power in section 72(3). • Held: A discretionary discharge implies a finding that the statutory criteria are made out ie patient requires treatment and to be subject to recall. The discretionary discharge must be consistent with these findings and must not be perverse. This will arise only in exceptional circumstances. • Implications on Tribunals entertaining arguments for discretionary discharges?

22. DL-H v Partnerships in Care and SofS for Justice [2013] UKUT 500 (AAC) • Patient conditionally discharged by Tribunal. Referred to Tribunal on recall. • On appeal SofS challenged UTT decision in DL-H v Devonshire Partnership NHS Trust and SofS for Justice [2010]UKUT 102 (AAC) on basis it appeared to give patient veto on treatment and placed a gloss on the legislation • “This presents a danger for tribunals. It arises from the way that medical treatment is defined in section 145. That definition is sufficiently broad to include attempts by nursing staff to encourage the patient to engage by taking what the NICE Guidance calls ‘a positive and rewarding approach [which] is more likely to be successful than a punitive approach in engaging and retaining people in treatment.’ This is not difficult to satisfy.

23. DL-H v Partnerships in Care and SofS for Justice [2013] UKUT 500 (AAC)2 That produces the danger that a patient for whom no appropriate treatment is available may be contained for public safety rather than detained for treatment. The solution lies in the tribunal’s duty to ensure that the conditions for continued detention are satisfied. The tribunal must investigate behind assertions, generalisations and standard phrases. By focusing on specific questions, it will ensure that it makes an individualised assessment for the particular patient. What precisely is the treatment that can be provided? What discernible benefit may it have on this patient? Is that benefit related to the patient’s mental disorder or to some unrelated problem? Is the patient truly resistant to engagement? The tribunal’s reasons then need only reflect what it did in the inquisitorial and decision-making stages.

24. DL-H v Partnerships in Care and SofS for Justice [2013] UKUT 500 (AAC)3 • Held- Earlier judgment did not place a gloss on the law but sought to guide FTT to be precise in fact-finding • Patient’s attitude to engaging is relevant but not decisive even if patient will never be brought to engage as this is not always necessary • Decision set aside on basis of inadequate reasons

25. An NHS Trust v Dr A (2013) EWHC 2442 (COP), • Patient with probable delusional disorder on hunger strike. • Lacked capacity to make decisions about hydration and nutrition and it was in his best interests to have this. • This could not be delivered under s63. Trust’s argument that this was treatment for physical disorder ie effect of hunger strike was accepted

26. An NHS Trust v Dr A (2013) EWHC 2442 (COP),2 • Trust did not consider that administration of ANH was not “…in the circumstances of this case ……..a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.” • Inherent jurisdiction used to authorise DoL needed to deliver treatment.

27. Procedure • R oao Modaresi v Secretary of State for Health 2013 UKHL 53 • AM v West London MH NHS Trust [2013] EWCA Civ 1010

28. R oao Modaresi v Secretary of State for Health 2013 UKHL 53 • Mrs Modaresi was detained under s2, and asked the hospital to fax her application to the Tribunal. They did not fax it on the same day and it arrived after the 14 day limit, because that had expired over the weekend. • Tribunal wrongly treated the application as out of time. • Mrs M was detained under s3. • She requested S of S for Health to refer under s67. He refused, because she had the right to appeal against the s3 detention but said that another request could be considered if she was not discharged from s3. • Her application against the Trust was dismissed because it was the Tribunal’s fault that the application was considered out of time.

29. R oao Modaresi v Secretary of State for Health 2013 UKHL 53 (2) • The Supreme Court held that the Secretary of State had not acted unlawfully and Mrs Modaresi had not been deprived of access to a court because she could appeal against her s3 and could ask the SofS to refer in future. • Lady Hale commented: “It is the hospital which deprives the patient of her liberty. It is incumbent upon the hospital to do this in accordance both with the domestic law and with the patient's Convention rights. A failure which deprives the patient of the right of access to a tribunal which the law provides may well (I put it no higher) be a breach of the patient's Convention rights. The only safe course is to have a system which ensures that this does not happen.”

30. AM v West London MH NHS Trust [2013] EWCA Civ 1010 • FTT had refused to adjourn to obtain information about aftercare. • “I acknowledge that aftercare information should be provided in accordance with the provisions to which Mr Pezzani has referred, and that he has put forward very good reasons why it should be provided so as to enable the patient to make full submissions and to enable the Tribunal to make a properly informed decision on discharge. • I also recognise the need for great caution before reaching a conclusion that information about aftercare could make no difference and is therefore unnecessary, given the importance attached to its provision, the fact that a patient depends on the authorities for its provision and also the need to ensure procedural fairness. But it seems to me, as it did to the Upper Tribunal Judge and evidently to Sir Stanley Burnton, that it must, as a matter of principle, be open to a Tribunal to conclude in the circumstances of a particular case that information or better information of aftercare is incapable of affecting the decision, and that an adjournment to secure its provision could achieve nothing beyond additional expense and delay and would therefore be inappropriate.

31. AM v West London MH NHS Trust [2013] EWCA Civ 1010 (2) • The question to my mind is whether this is such a case. Both the Upper Tribunal Judge and Sir Stanley Burnton concluded that it was. I reject the contention that in so concluding they made an assumption that information about aftercare would have made no difference. Their conclusion was based not on any assumption, but on the particular findings made by the First‑tier Tribunal about M's condition and his insight, or lack of insight, into his condition, and the resulting conclusion of the First‑tier Tribunal that an adjournment was unnecessary. On their findings as to M's condition and mental state, it was, in my judgment, properly open to the First‑tier Tribunal to conclude that there was no possibility of discharge at that stage, whatever information about aftercare might be provided. That, as it seems to me, is the basis on which the Tribunal dealt with the question of adjournment, concluding for those reasons that an adjournment was not necessary.

32. Powers of Tribunals • EC v Birmingham and Solihull Mental Health NHS Trust (2013) EWCA Civ 701, (2013) • SofS v SB [2013] UKUT 320 (AAC) • AM v SLaM and SoS for Health [2013] UKUT 0365 • SoSJ v MP and Nottinghamshire Healthcare NHS Trust [2013] UKUT (AAC)

33. EC v Birmingham and Solihull Mental Health NHS Trust • “The proposal for an extra-statutory recommendation plainly involves no exercise of a statutory function. What the appellants seek here is an enforceable right to put before the FTT a class of case which the FTT, being a creature of statute, has no statutory duty or authority to entertain. It is to my mind striking that in each of the cases before us the appellants' sole purpose before the FTT was to obtain an extra-statutory recommendation. If the court acceded to the appellants' case we would, for all the world, be creating an analogue to the provision contained in section 72(3)(a) relating to recommendations in cases of non-restricted patients. But Parliament must be taken to have omitted any such analogue advisedly.”

34. EC v Birmingham and Solihull Mental Health NHS Trust • CA took as its central question-whether a patient detained under the Mental Health Act 1983 may challenge a decision by the First-tier Tribunal to refuse to make an extra-statutory recommendation as to his future care or treatment • How does this affect the FFT’s willingness to consider such recommendations? UTT made it clear that whether to make a recommendation was a matter of judgment.

35. SofS v SB [2013] UKUT 320 (AAC) • Combination of conditions attached to discharge amounted to deprivation of liberty and was not really a discharge at all

36. AM v SLaM and SoS for Health [2013] UKUT 0365 • Guidance as to how AMHPs and FTTs should decide whether MHA or DOLs should be used in case of non-compliant incapacitated patient. • Must take a fact-sensitive approach in identifying the least restrictive way of best achieving the proposed assessment or treatment. • Will need to know if in fact managing authority would apply for SA.

37. SoSJ v MP and Nottinghamshire Healthcare NHS Trust “A tribunal has power to make a patient’s discharge conditional even if the patient does not have a mental disorder: R v Merseyside Mental Health Review Tribunal, ex parte K [1990] 1 All ER 694 at 699-700. A conditional discharge is so named because the patient is liable to recall. It is permissible to direct a conditional discharge without imposing any further conditions, as envisaged by section 73(4)(b). A tribunal is under a duty to explain its decision, including a decision not to impose further conditions. In some cases, the circumstances alone may be sufficient to show why the tribunal did not impose conditions. This is not such a case. The tribunal found that Mr P had a drug-induced psychosis and that he had continued to use drugs. Indeed, he said that he would do if he were discharged. The tribunal found that that involved a risk of self-neglect. In those circumstances, the tribunal was under a duty to explain why it did not impose conditions.”

38. R (Afework) v LB Camden (2013) EWHC 1637 (Admin), (2013) • S117 case where Mostyn J commented: • I therefore hold that as a matter of law s117(2) is only engaged vis-à-vis accommodation if: • i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition"); • ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and • iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.

39. Legal Aid • JG by her Children’s Guardian v LSC and others [2013] EWHC (Admin) • R oao T (by Sue Clarke, Guardian) v LAA and others [2013] EWHC 960 (Admin) • Moosa v LSC (2013) EWHC 2804 (Admin)

40. What’s next?The Care Bill • Statutory definition of aftercare for purpose of s117 • After- care services means services which have both of the following purposes • a. meeting a need arising from or related to the person’s mental disorder ( suggested that this means one or more disorders and not necessarily the md for which the person was detained) • and • b.reducing the risk of a deterioration of the person’s mental condition ( and accordingly , to reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder.” • A statutory framework for safeguarding adults.

41. What’s next?Revision of Code of Practice • Code to be revised as part of the Government’s post-Winterbourne View actions • Consultation on issues to be considered closed on 18.11.2013. advocacy, wishes expressed in advance and legal representation; the use of physical restraint, mechanical restraint, medication and seclusion; decisions to hold and detain people, in police custody or hospital, and how reviews of detention take place; how community treatment orders work; how the Code applies to children and young people; how the Code applies to individuals with a learning disability, autism or challenging behaviour; how the Code applies to individuals of different ethnicities, especially those where English may not be their first language, or that are of Afro-Caribbean descent;

42. Revision of Code of Practice (2) how the Mental Health Act works, and could work better, with the Mental CapacityAct and Deprivation of Liberty Safeguards; how the mental health tribunals system works and could be better understood; how the Code fits with the Care Quality Commission’s regulatory model; how the Code applies to non-English patients treated in England and what the arrangements are for English patients not treated in England (cross-border issues); and how to make understanding and knowledge of the Code better understood for individuals, their families and carers.

43. Questions? • sm@milesandpartners.com