CHAPTER 19Care Programme Approach continued:s145
Mental health
19.8Detention and treatment Cases
19.11R (Barker) v Barking, Havering and Brentwood Community Healthcare NHS Trust (1999) 2 CCLR 5, CA A detained patient on hospital leave remained detained and liable to recall to hospital if in receipt of, and still needing, hospital treatment, which included monitoring and testing
19.12R v Mental Health Review Tribunal for the Thames Region ex p Smith (1999) 47 BMLR 104, [1999] COD 148, CA The ‘nature’ of a patient’s illness is not a static condition; it can be necessary to detain an asymptomatic patient who has ceased to take his medication and who has a history of relapse in such circumstances
19.13R (Wilkinson) v RMO Broadmoor Hospital [2001] EWCA Civ 1546, (2002) 5 CCLR 121 The court would decide for itself whether the criteria for forcible medical treatment were met and could hear oral evidence subject to cross examination if necessary
19.14R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, (2002) 5 CCLR 390 Tribunals are required to provide adequately reasoned decisions. If the authorities consider that the decision of a tribunal to discharge a patient is unlawful their remedy is to seek a judicial review and apply for a stay, which may be granted even though the patient has been discharged
19.15HL v United Kingdom Application no 45508/99, (2004) 7 CCLR 498 A person is detained when the hospital exercises complete control over him and that detention is unlawful if it is not governed by clear rules with provision for review and effective court review
19.16R v East London and the City Mental Health NHS Trust ex p von Brandenburg [2003] UKHL 58, (2004) 7 CCLR 121 A patient may be detained, notwithstanding a tribunal’s decision to direct his discharge, where there are reasonable and bona fide grounds to believe that there is information, not known to the tribunal, which puts a significantly different complexion on the case
19.17R (B) v Dr SS and others [2006] EWCA Civ 28, (2006) 9 CCLR 280 Compulsory treatment of detained patients, where the criteria of the MHA 1983 were met, was compatible with the ECHR
19.18R (K) v West London Mental Health NHS Trust [2006] EWCA Civ 118, (2006) 9 CCLR 319 The NHS is not required to make the provision recommended by clinicians as it could take into account cost and other views
19.19R (TF) v Secretary of State for Justice [2008] EWCA Civ 1457, (2009) 12 CCLR 245 Where a transfer order was flawed the detention was unlawful and the court could not make it lawful on the basis that the Secretary of State could have achieved detention lawfully
19.20TTM (by his litigation friend TM) v Hackney LBC [2011] EWCA Civ 4, (2011) 14 CCLR 154 While a hospital acts lawfully by detaining a patient on the basis of an application that appears valid, if the application is not valid, the detention is still unlawful and action lies against the AMHP
19.21MS v United Kingdom Application no 24527/08, (2012) 15 CCLR 549 In the particular circumstances, it had been incompatible with Article 3 ECHR to detain a severely mentally ill man in police custody for four days before transferring him to a MSU
19.22Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, (2015) 18 CCLR 144 Although a period of detention was unlawful, only nominal damages were awarded because the illegality had been immaterial, in the sense that had the Trust appreciated its error it would have done things differently with exactly the same result as far as concerned the detention
19.23Lee-Hirons v Secretary of State for Justice [2016] UKSC 46 A conditionally discharged patient recalled to hospital was not entitled to written reasons at the time of his recall; he was entitled to an oral explanation at the time and written reasons within 72 hours but the failure to provide such reasons did not render his detention unlawful or found a claim for damages
19.24WD v Belgium Application no 73548/13, 6 September 2016 The lengthy detention of a mentally disordered sex offender without suitable treatment was in breach of the ECHR
19.25The importance of nearest relatives 19.29Who are nearest relatives? 19.34Appointment or displacement Cases
19.41R v Central London CC ex p Ax London (1999) 2 CCLR 256, CA A nearest relative can be displaced on an interim basis but unless there are cogent reasons a final displacement decision should be made prior to detention under section 3 of the MHA 1983
19.42Barnet LBC ex p Robin (1999) 2 CCLR 454, CA A nearest relative could be displaced not because of what she had done in the past but because what the evidence showed she was likely to do in the future; the appeal to the Court of Appeal was probably in relation to facts as well as law
19.43Dewen v Barnet Healthcare Trust and Barnet LBC (2001) 4 CCLR 239 Approved mental health professionals are under a duty of honesty, not of reasonable enquiry
19.45Lewis v Gibson and MH [2005] EWCA Civ 587, (2005) 8 CCLR 399 It was unnecessary to seek a best interests declaration but the court ought to joint the patient as a party in displacement applications
19.46R (H) v Secretary of State for Health [2005] UKHL 60, [2006] 1 AC 441 The machinery for detaining persons under section 2 of the MHA 1983 during displacement proceeds was ECHR compliant
19.47GD v Hospital Managers Edgware Community Hospital [2008] EWHC 3572 (Admin), [2008] MHLR 282 GD’s detention had been unlawful because there had not been more than a ‘nod in the direction of consultation’ which seriously inhibited the chances of the nearest relative having any effective input into the process or any proper opportunity to object: habeas corpus was granted
19.48MH v United Kingdom Application no 11577/06, [2013] ECHR 1008 MS’s rights under Article 5 ECHR had been breached during a period of detention under section 2 of the MHA 1983 when she had been unable to apply to the tribunal to be discharged, because of her lack of the mental capacity to do so, and no one else was entitled or required to make the application on her behalf
19.49R (Holloway) v Oxfordshire CC [2007] EWHC 776 (Admin), (2007) 10 CCLR 264 An interim displacement order and the ensuing detention were both lawful despite failure to notify the nearest relative of the displacement hearing, but that had been very poor practice
19.50R (M) v Homerton University Hospital [2008] EWCA Civ 197 It is desirable but not legally necessary for displacement proceedings to be concluded before the patient is detained under section 3 of the MHA 1983
19.51R (V) v South London and Maudsley NHS Foundation Trust [2010] EWHC 742 (Admin), (2010) 13 CCLR 181 Habeas corpus was granted when the approved mental health professional knew full well that the patient had a nearest relative who could be contacted, but had not done so
19.52TW v Enfield LBC [2013] EWCA Civ 362, (2014) 17 CCLR 264 An AMHP need not consult a nearest relative when the patient objects, providing the AMHP balances the patient’s right to privacy (against the nearest relative) under Article 8 ECHR, with the patient’s right to liberty (which the nearest relative could support) under Article 5
19.54Discharges from detention 19.55Unrestricted patients 19.61Patients subject to restriction orders 19.65Patients subject to restriction and limitation directions 19.71Applications and references to the tribunal Applications References
19.76Tribunals’ lack of power 19.77Mental Health Act 1983 s72 19.79Discharges in criminal cases 19.81Conditional discharges Cases
19.94R v Camden and Islington Health Authority ex p K (2001) 4 CCLR 170, CA A patient remains lawfully detained when she continues to suffer from a mental disorder that warrants hospital detention and treatment unless psychiatric supervision in the community can be provided and, despite the authorities using reasonable endeavours, psychiatric supervision in the community cannot be provided because no psychiatrist can be found willing to provide it
19.95R (C) v Mental Health Review Tribunal London South and South West Region (2001) 4 CCLR 284, CA It was incompatible with Article 5(4) ECHR routinely to list discharge hearings under section 72 of the MHA 1983 eight weeks after the application
19.96R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923, (2002) 5 CCLR 390 It had been irrational for the tribunal to direct discharge without ensuring that adequate after-care arrangements would be in place and it had been unlawful not to give reasons why some evidence was preferred to other evidence; however, the authorities should have applied for judicial review and a stay; their further application for H’s detention was unlawful given that it was for the same reasons that the tribunal had rejected
19.97R (KB and others) v Mental Health Review Tribunal and the Secretary of State for Health [2002] EWHC 639 (Admin), (2002) 5 CCLR 458 Endemic delays in hearing applications to be discharged from detention, caused by a chronic shortage of administrative resources, were incompatible with Article 5(4) ECHR
19.98R (KB and others) v Mental Health Review Tribunal [2003] EWHC 193 (Admin), (2003) 6 CCLR 96 Damages were awarded for delayed discharge hearings, in breach of Article 5(4) ECHR (i) where the patient would probably have been discharged at an earlier hearing and/or (ii) for distress caused by the delay
19.99R v East London and the City Mental Health NHS Trust ex p von Brandenburg [2003] UKHL 58, (2004) 7 CCLR 121 It is unlawful to re-detain a patient simply because of a disagreement with the tribunal’s direction to discharge the patient but it is lawful to do so where the AMHP forms the bona fide and rational opinion that there is new material that puts a different complexion on the case
19.100R (H) v Secretary of State for the Home Department [2003] UKHL 59, (2004) 7 CCLR 147 Tribunals must keep deferred conditional discharges under review so as to comply with Article 5(4) ECHR but a patient remained lawfully detained where the patient suffered from a mental disorder that warranted compulsory treatment in hospital unless community services were available and it had not been possible to arrange for those services despite using reasonable endeavours
19.101R (H) v Secretary of State for Health [2005] UKHL 60, [2006] 1 AC 441 The machinery for detaining persons under section 2 of the MHA 1983 during displacement proceeds was ECHR compliant
19.102MH v United Kingdom Application no 11577/06, [2013] ECHR 1008, (2014) 58 EHRR 35 Special safeguards were required to ensure that patients who lacked capacity were able to apply for discharge from detention under section 2 of the MHA 1983 within the initial period of detention of 28 days; if detention under section 2 is then extended because of proceedings to displace a nearest relative, Article 5(4) ECHR may be satisfied by the Secretary of State referring the case to the tribunal
19.103Kolanis v United Kingdom Application no 517/02, (2006) 9 CCLR 297 It was lawful to continue to detain a patient who suffered from a mental disorder warranting treatment in hospital and detention even though the patient could be discharged if services were available in the community if such services were not available; however, there would be a breach of Article 5(4) ECHR unless there continued to be regular court review
19.104R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin), (2007) 10 CCLR 306 Discharge on condition that the patient took specified medication did not amount to compulsory treatment, merely a condition which, if broken, would justify recall
19.105Rayner and Marsh v Secretary of State for the Home Department [2007] EWHC 1028 (Admin), (2007) 10 CCLR 464 Recalled conditionally discharged patients were entitled to an immediate referral of their case to the tribunal
19.106R (TF) v Secretary of State for Justice [2008] EWCA Civ 1457, (2009) 12 CCLR 245 The absence of adequate reasons in medical recommendations meant that the detention had been unlawful and the fact that, later, other doctors were found who did provide adequate reasons justifying detention did not make the earlier detention lawful
19.107Secretary of State for Justice v RB [2011] EWCA Civ 1608, [2012] 1 WLR 2043, [2012] MHLR 131 It is not lawful to discharge a patient to a facility which is not a hospital and where he or she will be detained otherwise than for the purposes of treatment
19.108DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), (2012) 15 CCLR 537 The tribunal was entitled to adjourn proceedings for evidence to be adduced as to what conditions might be appropriate to attach to a conditional discharge
19.109R (South Staffordshire & Shropshire Healthcare NHS Foundation Trust) v St George’s Hospital Managers [2016] EWHC 1196 (Admin), (2016) 19 CCLR 253 The decision of an independent panel exercising the function of hospital discharge was amenable to judicial review but such panels are not required to take into account decisions about discharge by the First-tier Tribunal
Cases
19.116Clunis v Camden and Islington Health Authority (1997–8) 1 CCLR 214, CA Health and social services authorities do not owe a duty of care to patients, to discharge their duty to provide after-care services in a reasonably careful manner and, in any event, a patient who, in consequence, killed a man knowing that was wrong, would not be permitted to sue because of the ex turpi causa principle
19.117R v Camden and Islington Health Authority ex p K (2001) 4 CCLR 170, CA A patient remains lawfully detained where she continues to suffer from a mental disorder that warrants hospital detention and treatment unless psychiatric supervision in the community can be provided and, despite the authorities using reasonable endeavours, psychiatric supervision in the community cannot be provided because no psychiatrist can be found willing to provide it
19.118R v Manchester CC ex p Stennett [2002] UKHL 34, (2002) 5 CCLR 500 It was not lawful to charge for after-care services
19.119R (W) v Doncaster MBC [2004] EWCA Civ 378, [2004] MHLR 201 Local authorities were not under a duty to make arrangements for after-care services before the tribunal directed discharge and, when the tribunal ordered conditional discharge, were not under an absolute duty but a duty to make reasonable endeavours to make provision to satisfy the conditions: meanwhile, the patient’s continued detention was lawful
19.120R (H) v Secretary of State for the Home Department [2003] UKHL 59, (2004) 7 CCLR 147 Tribunals must keep deferred conditional discharges under review so as to comply with Article 5(4) ECHR but a patient remained lawfully detained where the patient suffered from a mental disorder that warranted compulsory treatment in hospital unless community services were available and it had not been possible to arrange for those services despite using reasonable endeavours
19.121R (B) v Camden LBC [2005] EWHC 1366 (Admin), (2005) 8 CCLR 422 Local authorities were entitled to carry out preparatory steps but were not under a duty to monitor patients to consider the exercise of this discretion. They came under a duty to exercise reasonable endeavours to make arrangements for after-care services when a tribunal has provisionally determined that a conditional discharge is appropriate. They are entitled to explore funding issue. In this case, the authority’s ineffective action had not been causative of B’s continued detention but, even if it had done, B would not have been entitled to damages under Article 5 ECHR
19.122R (B) v Lambeth LBC [2006] EWHC 2363 (Admin), (2007) 10 CCLR 84 A local authority is under a duty to secure alternative accommodation under section 117 of the MHA 1983 straightaway when it has assessed the need as existing
19.123R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin), (2010) 13 CCLR 454 After-care services must address needs arising from a patient’s mental disorder and may not address other needs that patient might have
19.124R (Afework) v Camden LBC [2013] EWHC 1637 (Admin) Accommodation need only be provided as an after-care service when the patient is required to occupy specialised accommodation to meet needs arising out of the condition that led to his or her detention
19.125Richards v Worcestershire CC [2016] EWHC 1954 (Ch) A patient could be entitled to bring private law proceedings in restitution, to reclaim money spent by him on after-care services
19.125.1R (Damien Tinsley) v Manchester CC [2016] EWHC 2855 (Admin) A person was entitled to after-care services free of charge notwithstanding his possession of a substantial personal injury award that would enable him to purchase such services and that he had been awarded for that purpose
Other mental health cases
19.128Re F (a child) (1999) 2 CCLR 445, CA Guardianship could not be imposed on a person with severe mental impairment unless that was associated with abnormally aggressive or seriously irresponsible conduct which, on the facts, was not made out by F’s desire to continue to live with neglectful parents
19.129R (X) v Secretary of State for the Home Department (2001) 4 CCLR 92, CA The Secretary of State for the Home Department is entitled to remove mental patients from the UK using immigration powers and by-passing the MHA 1983
19.130Seal v Chief Constable of South Wales [2007] UKHL 31, (2007) 10 CCLR 695 Proceedings issued without leave, where required under section 139 of the MHA 1983, were a nullity
19.131North Dorset NHS Primary Care Trust v Coombs [2013] EWCA Civ 471, (2013) 16 CCLR 376 Psychiatric patients may pay for private care and, accordingly, recover the cost of such provision from a tortfeasor
19.132R (C) v Secretary of State for Justice [2016] UKSC 2, (2016) 19 CCLR 5 There was no presumption of anonymity for mental patients challenging aspects of their treatment and care in the High Court but anonymity will be granted where that is necessary in the interests of the patient
19.1Clinical commissioning groups (CCG) and local authorities provide health and social care to mentally disordered persons in the community, under the National Health Service Act 2006 (see chapter 18) and the Care Act 2014 (see chapters 7–12), often under the
Care Programme Approach (see ‘After-care services’, at para
19.110 below).
19.2In addition, specific provision is made by and under the Mental Health Act (MHA) 1983 for the reception, care and treatment in hospital, of mentally disordered patients, that is:
•persons affected by ‘any disorder or disability of the mind’, excluding dependence on alcohol or drugs; and
•for certain purposes only, persons with a ‘learning disability’ if that is ‘associated with abnormally aggressive or seriously irresponsible conduct’ (section 1 of the MHA 1983).
19.3The main provisions of the Act are as follows:
•Part 2 of the MHA 1983 governs compulsory admission for the purposes of, inter alia, assessment (section 2) and treatment (section 3). It also makes provision for guardianship (sections 7–10) and community treatment orders (sections 17A–19A);
•Part 3 governs the detention and treatment of criminal offenders who are mentally disordered patients;
•Part 4 deals with compulsory treatment and part 4A deals with the treatment of community patients not recalled to hospital;
•Part 5 sets out the functions of the Mental Health Review Tribunal for Wales and the First-tier Tribunal (Health, Education and Social Care Chamber) in England.
19.4A number of key terms are defined in section 145 of the MHA 1983, as follows:
Interpretation
145(1) In this Act, unless the context otherwise requires–
…
‘hospital’ means–
(a)any health service hospital within the meaning of the National Health Service Act 2006 or the National Health Service (Wales) Act 2006; and(b)any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act; and(c)any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board; …‘medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below);‘patient’… means a person suffering or appearing to be suffering from mental disorder; …
(4)Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.
19.6What follows is a brief overview of the main statutory provisions and cases, with a focus on those issues most likely to crop up in the professional life of the social care practitioner.
19.7For further information, reference should be made to a specialist practitioners’ textbook, such as the
Mental Health Act Manual.
2Richard Jones. Published annually by Sweet & Maxwell.It should also be noted that mentalhealthlaw.co.uk contains access to legislation, codes, articles and other useful material and has case-law updates and a case-law database.