Thursday, 31 December 2009

When you got nothing ...

... You got nothing to lose. So sang Bob Dylan, but is that always the case?

Is it possible that someone in detention retains a measure of freedom, even after his liberty has been taken away? A recent decision of the Court of Appeal suggests that he does, at least if he is a prisoner (Iqbal v Prison Officers Association, 2009).

But hasn’t the court already told us that in the case of mental health patients, the reverse is true?

Mr Iqbal is serving a 15-year prison sentence. In August 2007, when he was at HMP Wealstun, there was a one-day strike by prison officers. All prisoners were locked in their cells by order of the governor and as a result, Mr Iqbal lost the five hours he would have spent at work or in the gym. He claimed that he had been falsely imprisoned by the prison officers, but he lost his case in the Court of Appeal.

The governor could not be liable to Mr Iqbal, because the Prison Act 1952 says that a prisoner may be lawfully confined by the governor. If a prisoner enjoys no ‘residual liberty’, that would, of course, have been a further reason for rejecting Mr Iqbal’s claim, but it did not figure here.

The Court of Appeal felt that there was such a thing as residual liberty. One of judges said, “even if [he is] lawfully within a prison by order of a court, a prisoner enjoys the liberty not to be further restrained by unauthorised action whether by fellow inmates or prison officers”.

But that idea seems inconsistent with the decision in the Munjaz case, which, of course, concerned a patient detained in a high secure hospital under the Mental Health Act 1983 (MHA). He was placed in seclusion for days on end and claimed that he had seen a doctor too infrequently (Munjaz v Mersey Care NHS Trust, 2003). The case turned upon the MHA Code of Practice and whether its requirements were fully met, but the Court of Appeal and the House of Lords also found that for detained patients, residual liberty – or what was called “prison within a prison” – did not exist.

Iqbal clearly has resonance in mental health cases, for under the MHA, the managers of a hospital enjoy powers similar to those endowed upon the governor of a prison: a valid detention application enables a patient to be detained, but also to be re-taken if he absconds, treated against his will and, following Munjaz, placed in seclusion (MHA, section 6(3)). In most cases, that authority will cover the hospital managers and those that do their bidding, but it won’t apply in other circumstances.

The cases of Iqbal and Munjaz are different, not least because the first was about a prisoner and the second about a patient, and also because they were decided according to substantially different authorities. Yet each concerned a man who said he retained some freedom, even after his liberty was lawfully taken away. It may be, therefore, that in entertaining the notion of residual liberty, the Court of Appeal has placed itself at odds not only with its earlier self, but also with the House of Lords.

And yet, the decision in this case goes to the heart of mental health care: it implies that in the right circumstances, a detained patient may challenge the decision to seclude him. No such challenge will lie against the principal detainers, of course: like the Prison Act in Iqbal, the Mental Health Act makes sure of that. But a claim might succeed where one patient locks another in a cupboard, or even where a formal decision to seclude a detained patient is inconsistent with established hospital policy.

(Bob Dylan, Like a Rolling Stone, copyright ©1965; renewed 1993 Special Rider Music)

Does the coroner owe you money?

It is becoming less common for coroners to make a charge for the documents they provide in connection with an inquest. Some do still charge - for copy post mortem reports, for example, and witness statements - and where they do, it’s usually under regulations introduced in 2002. But those regulations don’t just help coroners.

It is usually The Coroners' Records (Fees for Copies) Rules 2002 that coroners invoke when they send out their invoices. Rule 3 says, "The fee payable to coroners or other persons for furnishing photocopies of inquisitions, depositions or other documents in their custody relating to an inquest shall be £1.10 for each page" (emphasis added). Clearly, a coroner can charge for whatever he provides that relates to an inquest, but the reference to ‘other persons’, and to documents ‘other’ than inquisitions and depositions, suggests that this cuts both ways.

It is now common for NHS trusts, social services authorities and the like to be required to provide documents to the coroner. Usually, of course, that is done without demur and, crucially, without charge. Where, however, the coroner declines to reciprocate, or where he gives far less than he receives, public bodies might have something to gain by issuing invoices of their own.

Clearly, a coroner has ways of seeking documents that have been withheld. He might, for example, issue a summons for their production. It is sometimes possible, however, to have such a summons set aside, and the more so if the reason documents haven’t yet been provided is simply because the coroner hasn’t sent his cheque.

Because of the 2002 regulations, there would appear to be nothing to prevent an invoice being issued for copy documents that have already been disclosed to a coroner. If those documents represent five years-worth of medical records, say, the financial gain could be considerable. There might also be deterioration in relationships, of course, and that too will have to be taken into account. But there might also be a change in attitude: faced with the prospect of having to pay for everything they receive, some coroners might be a little more careful about what they demand.

Monday, 14 December 2009

Some mental health claims will now be easier to defend, and correspondingly harder to bring

Where he says he is the victim of acts performed under the Mental Health Act, anyone wanting to claim damages will now face a more difficult task. That is the result of an interlocutory decision in Johnston v The Chief Constable of Merseyside Police [2009] EWHC 2969 (QB), which concerned a proposed claim by a man who had been apprehended by the police.

In January 2006, Mr Johnston, who has a history of mental health problems, was at a property on Merseyside. An occupier of the property became concerned about his behaviour and summoned an ambulance. In accordance with usual practice, the police attended as well. Mr Johnston acknowledged that he had needed medical help, but said he had not wanted the police to be called.

On the basis of the witness statements and other evidence, there is a profound conflict between the parties as to what happened next. It appears to be common ground, however, that Mr Johnston was sprayed with CS gas and sustained severe blistering to the skin on his face, left ear and chest. He was detained, put in handcuffs and taken to hospital, but he was not subsequently charged with any criminal offence.

Mr Johnston alleges that these acts amounted to false imprisonment and assault. The Chief Constable, however, claims they were covered by section 136 of the Mental Health Act 1983 (MHA), which applies where someone who appears to be suffering from mental disorder is found in a public place, and permits a constable to take that person to a place of safety. Under section 139(2), no claim concerning the use of MHA powers may proceed without the permission of the High Court. The Chief Constable argued that Mr Johnston should be denied such permission.

The leading authority on permission claims of this kind is still Winch v Jones [1986] 1 QB 296, in which Sir John Donaldson, MR said, “The issue is whether, on material evidence immediately available to the court, […] [the claim] deserves the fuller investigation which will be possible if [it] is allowed to proceed.” Subsequently, the House of Lords said that by this test, “the threshold for obtaining leave under section 139(2) has been set at a very unexacting level […] an applicant with an arguable case will be granted leave.” (Seal v Chief Constable of South Wales Police [2007] UKHL 31, per Lord Bingham at [20])

For the Chief Constable, it was argued that, 25 years on, the Winch v Jones test should be tightened. It was noted that the Civil Procedure Rules now provide, amongst other things, that summary judgment may be given where a claimant “has no real prospect” of success (rule 24.2(a)(i)).

Notwithstanding the changes wrought by the CPR, the judge, Mr Justice Coulson said “it would be wrong to modify in any significant way” the Winch v Jones test. (See [12]) He went on, however, to permit himself one modification, noting that it would be “absurd” for a court to grant permission under section 139 where, had it asked itself the “CPR Part 24 question”, it would have concluded that the proposed claim had no real prospect of success. (See [13]) For that reason, the judge said the CPR question should indeed be asked upon any claim under the MHA. (See [14])

In fact, Coulson J concluded that the Mr Johnston’s proposed claim did have a real prospect of success, and he therefore granted the necessary permission under section 139. (The proceedings also included a limitation point, which, again, was decided in the claimant’s favour.)

It isn’t every potential defendant whose position will be strengthened by this decision. For esoteric, historical reasons, no permission has ever been required for proceedings concerning the acts or omissions of the Secretary of State or the NHS under the MHA. (MHA, section 139(4)) Where a claim relates to the use of section 136, however, or to the initial decision to detain a patient in hospital, this case will make a difference.

The Winch v Jones test for permission under section 139 has not been displaced. In fact, it is now considerably tighter, with a potential claimant having to show that his case is not merely arguable, but that it has a real chance of success. That is a palpable change, whose effect might well be to forestall claims that would otherwise have proceeded all the way to trial. And plainly, therefore, the change is a good deal more ‘significant’ than the judge was prepared to allow in Mr Johnson’s case.

Monday, 30 November 2009

The DoLS gather speed

The Deprivation of Liberty Safeguards are currently being used far less often than the government forecast. Eight months after they were introduced, however, the DoLS have already begun to produce a body of case law.

Some judgments depend entirely on the facts of the case, but some are of much wider relevance. (DCC v KH and others, 11 September 2009; GJ v The Foundation Trust and others, 20 November 2009) In recent weeks, for example, Court of Protection judges have:

* Suggested that to transport an incapable person 100 miles (on a journey that was likely to take 2.5 hours) would be simple restraint, and not a deprivation of liberty, and so be covered by section 5 of the Mental Capacity Act 2005.
* Suggested that where a DoLS authorisation is in place, it will even permit a patient to be returned to the place in which he can be deprived of liberty.
* Ruled that when someone has to decide whether a patient could be detained under the Mental Health Act (and so be fall outside the DoLS), it is his view that counts, not the view of some notional reasonable man.
* Established a procedure to be followed by decision-makers in such circumstances.
* Given guidance on the approach to be taken when deciding whether a mental health patient objects to his care (and therefore can’t be brought within the DoLS).
* Confirmed that someone in a care home (as opposed to a hospital) who is receiving mental health care can be subject to the DoLS, even though he objects to that care.

It's too early, of course, to make generalisations. At the moment, however, the courts do seem to be taking a restrictive approach to what it means to be deprived of liberty. It seems that section 5 of the Mental Capacity Act allows doctors, nurses and social workers to do everything they could have hoped and more besides. Experience suggests, however,that the pendulum will start to swing back at some point. It's likely to be a case that does it, and there's a few of them coming down the line.

Thursday, 5 November 2009

Are police using the Mental Health Act to deal with public disorder?

Where a person is in a public place and seems to be suffering from mental disorder, a constable may arrest him and take him to a place of safety. Once there, the person may be held for up to 72 hours, while he is assessed for detention under the Mental Health Act.

The relevant power is contained in section 136 of the Act and there have long been concerns that in some cases, mentally disordered people are present in a public place only because they have been enticed there by the police. Now, we have to ask whether section 136 is being used against people who aren’t even suffering from mental disorder.

This question is raised by the latest statistics on the use of the Mental Health Act. Anyone arrested under the Act may be taken either to a hospital or to a police station. The new statistics concern only the first group of people (which is probably smaller than the second), and they show that in the year to April 2009, the section 136 power was used almost 8,500 times. That represents an increase of 20 per cent on the year before, and of more than 300 per cent over the decade.

Perhaps there are more mentally disordered people outside hospital, and perhaps more of them find their way into public places. And yet the new statistics show that the number of people detained under the Mental Health Act has gone up, by two per cent in a year and by six per cent over the decade.

And the conversion rates are equally troubling, for of the people held in hospital under section 136, almost three-quarters were not detained once they had been assessed. That figure is itself up a quarter on the previous year, and by 330 per cent over the last ten years. Only 1,751 of these people were subsequently detained under section 2 or 3, which means that anyone taken to hospital as a place of safety is almost four times less likely to be discharged than to be detained.

These statistics concern only a minority of people arrested under section 136, yet they beg some uncomfortable questions: are constables really getting it so wrong? Are the signs of mental disorder so hard to discern, or is there another possibility? Could it be that the Mental Health Act arrest-power is being used to deal with people who are merely troublesome or inconvenient; that in many cases, it is directed at public - not mental - disorder?

Tuesday, 27 October 2009

Some mental health patients might have missed out on tribunal hearings they were entitled to

Where a detained patient is placed on compulsory community treatment before his case can be heard by a tribunal, he won’t have to make a fresh appeal. That was the decision of the new Upper Tribunal in an appeal considered recently in its Administrative Appeals Chamber. (AA v Cheshire and Wirral Partnership NHS Foundation Trust, ZZ and the Secretary of State for Health [2009] UKUT 195 (AAC))

The patient concerned had been detained in hospital under section 3 of the Mental Health Act 1983 (MHA). An application for his discharge was made to the inelegantly named First-tier Tribunal (Health, Education and Social Care Chamber) - the successor to the Mental Health Review Tribunal – but by the time it could be heard, the patient had been discharged from hospital onto Supervised Community Treatment (SCT). So-called community patients have a separate right of access to the tribunal, so the question here was whether the original application would survive. The Upper Tribunal held that it would, and that the First-tier Tribunal, which decided that the application had lapsed and therefore refused to consider the patient’s case, had made an error of law.

Supervised Community Treatment was introduced in amendments to the MHA made in November 2008, and the Upper Tribunal said the wording of those amendments was clear: the First-tier Tribunal may discharge a community patient, even though he was still detained in hospital when the relevant application was made. Yet earlier decisions had suggested something different.

In the case of M, too, a fresh application was held to be unnecessary and a tribunal was ordered to continue to hear a patient’s case, even though his status had changed. (R v South Thames MHRT, ex parte M [1998] COD 38, QBD) The court said the patient’s right to a tribunal arose not from his detention, but from his admission, which happened in a single moment of time. In that case, however, the change – from section 2 of the MHA to section 3 - had been relatively un-dramatic, and the patient had remained detained in hospital throughout.

In cases involving more profound change, the courts have generally taken the view that an existing tribunal application will lapse. In SR¸ for example, a patient had been discharged from detention under section 3 of the MHA and placed on supervised discharge by the time his hearing came round. The Administrative Court held that a fresh application would be required. (R (SR) v MHRT [2005] EWHC 2923 (Admin)) It did the same recently in MN, a case concerning a man who had been transferred to a mental health hospital from prison. Special restrictions applied to him when he made his tribunal application, but they had fallen away by the time it was ready to be heard. The court said this change in his status was highly significant. (R (MN) v MHRT [2008] EWHC 3383 (Admin))

The circumstances of the new case resemble those of the last two - particularly SR, for although SCT is not the same as supervised discharge, patients leaving detention for either would make a similar journey. And there was another reason to believe that in AA, the Upper Tribunal Judge would decide that a fresh application was required: when giving judgment in an earlier case, he had suggested precisely that. (Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4) His comments were obiter, however, and the judge did not consider himself bound by them.

This case was not, however, the same as its predecessors. Neither SR nor MN concerned SCT, nor was the legislation in either case so clear as it was here. So clear, indeed, that the judge was surprised that the First-tier Tribunal failed to notice it. The case was remitted for reconsideration. The tribunal will indeed have to decide whether the patient should be discharged, this time from SCT.

Proceedings such as these would have been inconceivable before last November: we have only recently lost supervised discharge and gained the First-tier and Upper Tribunals and Supervised Community Treatment. The case is therefore completely emblematic of the Mental Health Act changes made a year ago.

At first sight, this decision of the Upper Tribunal appears to confound established authority: the nature of a change-of-status is not, after all, the key determinant of tribunal rights. The decision is, however, likely to be significant for many community patients - not, perhaps, those that made a fresh discharge-application when they left hospital, but certainly any that imagined their tribunal applications had lapsed and so did not refresh them. It seems those patients, too, were entitled to their day in court.

Suicide by advance decision

Kerrie Wooltorton died because medical professionals decided not to treat her. She had made an advance decision, refusing life-saving treatment. When she arrived at hospital, having poisoned herself for the tenth time, the doctors took the view that her wishes were paramount and to treat her would have been an assault.

Now, however, the Catholic Bishops' Conference of England and Wales has said that it is 'crystal clear', on the basis of paragraph 9.9 of the code of practice to the Mental Capacity Act, that any advance decision framed as a means to commit suicide does not have legal force. I'm afraid I don't agree.

We have to remember, first, that these are the words not of the Act itself, but of the code of practice to the Act. Whilst the code must be given respect, it is simply the government's guidance on the statute. I'm not sure it sets out to make anything 'crystal clear'.

In fact, and with respect to the bishops, I don't think the code says what they say it says. The passage in question is about capacity: in order to make an advance decision that will be binding upon others - so that they cannot give you the treatment you don't want to have - you must possess the necessary mental capacity. All the code says is that if someone is clearly suicidal when they make their advance decision, that may raise doubt about their capacity. There are two points to bear in mind.

First, I'm not sure it has been proved that Ms Wooltorton was suicidal when she made her advance decision. She must, of course, have been considered incapable at the point she presented for treatment (otherwise she would have been asked whether she consented to treatment and the advance directive would have been irrelevant). But that is a quite different thing.

Secondly, all the code says is that in those circumstances doubt might be raised about the patient's capacity. In fact, any such doubt might be allayed by the other circumstances of the case, in so far as they are known to health care providers.

The clinicians who cared for Ms Wooltorton will speak for themselves on this point, but it seems likely they will say that they were satisfied on reasonable grounds that her advance decision was both valid and applicable, and, necessarily, that she was capable when she made it. In other words, they will say that any concerns raised by the code were allayed by their knowledge of the facts of the case. That seems to me to be a reasonable stance. The clinicians, after all, treated Ms Wooltorton; the bishops did not.

The same passage of the code of practice says something else: "It is important to remember that making an advance decision which, if followed, may result in death does not necessarily mean a person is or feels suicidal. Nor does it necessarily mean the person lacks capacity to make the advance decision" [emphasis added]. I don't think this helps the bishops at all. It certainly doesn't make for the 'crystal clarity' they seem to think they have found.

In fact, the position is relatively clear: the MCA says that if, when capable, a person has made a valid, applicable advance decision, the treatment specified in that document cannot be given to him or her. If treatment is given in defiance of the advance decision it might well be an assault and result in challenge under the criminal and/or the civil law, and also in professional disciplinary proceedings.

In my view, the statutory provisions about advance decisions have a delicate balance to strike, but they do that admirably.

Sunday, 27 September 2009

Mental health hospitals are failing in their statutory duties

A new survey suggests that when they are admitted to hospital, many people with mental illness are being denied their rights.

More than 7500 former-patients told the Care Quality Commission (CQC) about their experiences of acute inpatient care. Some were broadly happy, but a significant minority were not.

The CQC has now reported its findings. What many patients were concerned about was simple good practice. A quarter of patients, for example, had not had the talking therapies they wanted, and that NICE says can be helpful; and a similar proportion said they had been less involved in decisions about their care than they wanted to be.

In many cases, however, hospital shortcomings might actually have broken the law:

* Many patients who responded had been detained in hospital, and more than a quarter of them said their rights had not been explained to them in a way they could understand. This is a clear breach of the Mental Health Act (albeit one that has long been suspected to be occurring).
* The position was similar when it came to medication, with another quarter of patients saying the purpose of the medication had not been properly explained and almost a half saying its potential side-effects had been ignored. Some of these patients were detained, of course, and could therefore be forced to have their medication, but the law says this should make no difference.

The CQC’s recent findings are worrying, not least because they suggest that in a large number of cases, hospitals and practitioners are failing to comply with their statutory duties.

The law doesn’t always recognise transsexuals

A recent High Court decision has been hailed as a significant advance for transsexuals. The judge said their autonomy and dignity were now unassailable, and he ordered that the claimant, a male-to-female transsexual who is currently in custody, be transferred to a female prison so as to qualify for gender reassignment surgery. (R (AB) v Secretary of State for Justice and The Governor of Manchester Prison [2009] EWHC 2220 Admin)

But is this case quite the victory it seems?

The claimant, AB, is keen to have her penis removed, but the hospital concerned says it will not perform surgery until she has lived as a woman inside a women’s prison. The judge said that in those circumstances, to deny transfer would infringe AB’s private life and so breach both Article 8 of the ECHR and the common law. It would deny her rights that even imprisonment could not remove. Too little attention had been paid to the effects of keeping her in a man’s prison, and to the fact that she would have to be segregated from other prisoners.

The hospital’s stipulation was perhaps surprising, given that AB has a gender recognition certificate, proving that she has lived as a woman for at least two years. The Gender Recognition Act says that certificate makes AB female “for all purposes”. Now, it seems, we must read that as “all purposes bar one”.

The judge acknowledged the Act but said, “the actual physical characteristics of a post-certificate, but pre-operative, female may remain relevant for some purposes”. The prison authorities were, in short, entitled to take account of the continued existence of AB’s penis. But doesn’t that contradict the Act?

In fact, the obstacles placed in AB’s way in fact gave her something to kick against, and it would have been interesting if her case were somewhat more direct; if, for example, she had sought transfer merely because the law now regarded her as a woman. There are only two situations in which women can be imprisoned in facilities intended for men, and this case had neither of them. At the moment, when we look at the phrase ‘for all purposes’, we have to ask, what does ‘all’ really mean?

Thursday, 13 August 2009

A cut above?

The practice of self harm-minimisation appears to be developing more quickly than the legal framework that would support it. If so, some nurses are at risk: they will be practising in a vacuum, with little to guide or protect them. This post won’t fill that vacuum; it will merely set out some of the legal issues to which the practice could give rise and suggest how the possibility of civil law challenge might be reduced. (Criminal proceedings are a quite different, though no less likely, prospect.)

A person might ‘self-harm’ in a variety of ways - by cutting or burning, perhaps, by swallowing broken glass, or by abusing drugs, alcohol or other substances - and it is possible to imagine many interventions aimed at minimising the effects of such behaviour. For cutting, for example, a nurse might actually wield the blade (a most unlikely prospect) or hold a patient's arm while he or she does so. Alternatively, the nurse might provide the blade, assure the patient that any wound will be properly dressed, or simply advocate the use of self-harm in a general sense or discuss what it might involve. Most if not all of these ‘self harm-minimisation’ (SHM) interventions can probably be made as easily in the community as in hospital. If any one of them is to be lawful there will have to be a legal box into which it can be put.

A legal box
Self-harm is often encountered in a psychiatric context. The Mental Health Act 1983 (MHA) permits ‘medical treatment’ to be given for mental disorder and adopts a broad definition of the term. The central purpose of the MHA, however, is to enable such treatment to be given compulsorily. It will surely be difficult, and it would surely be considered highly dubious, to attempt to practise SHM without a patient's consent. The MHA is therefore unlikely to provide the legal box that is required. The same is true of the Mental Capacity Act 2005 (MCA), which permits all manner of interventions in the best interests of a patient, but only if he or she is incapable of consenting to them.

It seems, therefore, that common law is the only relevant authority, and that it is only with the consent of a capable patient that a SHM-intervention will be lawful. That consent will have to be truly informed - the patient will have to be given the reason for the intervention and told about any alternatives to it and their respective risks and benefits - and capacity will have to be assessed according to the MCA.

A SHM-intervention will be lawful only if meets two further criteria. First, it will have to fall within the definition of ‘medical treatment’. English law (which also covers Wales, but not Scotland) defines medical treatment very broadly; so broadly, in fact, that it represents, in Lord Denning’s memorable words from 1954, “the homely art of making people comfortable and providing for their well-being”. (Minister of Health v Royal Midland Counties Home for Incurables at Leamington Spa [1954] Ch 530) Although many SHM-interventions will be medical treatment, the courts might take some convincing that they are: the practice is still novel and somewhat startling, at least when set against the notion that one must do no harm (and not just less harm than would otherwise have been done). Secondly, the intervention will have to be made without negligence. In other words, it must be consistent with a practice accepted as proper by a responsible body of relevant opinion, and so satisfy the Bolam test. A SHM-intervention will not do that if, even though it has a number of ardent supporters, it cannot withstand logical analysis.

Civil claims
The claim that SHM is not truly medical treatment, and that its use is therefore an assault, might be the basis for a civil law challenge. On a less exalted level, a patient might say simply that the intervention itself did not pass the Bolam test.
There are many aspects of SHM to which Bolam might be applied. They include the decision to intervene at all or to make a particular kind of intervention, and also the way in which the intervention was made. It might be said, for example, that SHM was inappropriate because the patient had not previously harmed himself or herself. (The NICE guideline mentioned below implies that SHM should only be used with a patient who has already self-harmed.) A court might therefore ask: how thoroughly was the patient's background – and in particular, any history of self-harm – researched, and how well understood? How carefully were his or her needs considered? And how closely did those needs correspond to the intervention that was made?

In judging whether Bolam is satisfied, and therefore whether a SHM-intervention is lawful, a court might also want to consider any official pronouncement on the subject. Most recently, the National Institute for Health and Clinical Excellence (NICE) has published a clinical guideline, stating that “where service users are likely to repeat self-injury”, practitioners might discuss a number of things with patients, including “harm minimisation issues/techniques” and “appropriate alternative coping strategies”. (NICE (2004) National Clinical Practice Guideline 16, paragraphs &

As a court would surely note, the NICE guideline extends no further than the 'discussion' of appropriate techniques and strategies, and it places that discussion on the same footing as discussion of other “appropriate alternative coping strategies”. Furthermore, the guideline does not impose a positive obligation to discuss at all and only embraces “appropriate alternative coping strategies”. Which rather begs the question.

The recent guideline also states that for SHM, "suitable material is available from many voluntary organisations". But some of that material might advocate practices that would not pass the Bolam test. And it is surely inaccurate to imply, as the guideline seems to do, that a practice might be appropriate simply because it finds favour with a particular organisation. If the practice is to be lawful, then, as mentioned above, it will have to satisfy Bolam. That is a far more rigorous test and the civil courts are likely to see it as the only one that matters.

Causing harm
Even where a SHM-intervention has failed the Bolam test and therefore been held negligent, a claimant will only succeed, and damages will only be awarded, if the intervention can be shown to have caused him or her harm.

In fact, a defendant won’t usually be able to deny that harm has occurred. He or she (or it) will instead have to show that harm would have occurred in any case, and possibly that it would have been more extensive but for the intervention. That is likely to be an extremely difficult task: there is no guarantee that the patient would have chosen to harm himself or herself without the intervention, and there might be no pattern to previous self-harm attempts and therefore no way of predicting what form the attempt that was forestalled would have taken.

This suggests that the SHM-interventions that will be least difficult to defend are those involving patients who have tried to harm themselves before, and who have done so in a fairly consistent way and to a fairly consistent degree. (Paradoxically, it might be that where the criminal law is concerned, those are the patients with whom such interventions will be most difficult to defend.)

A practice accepted as proper

The NICE guideline might have had at least one real effect: it seems that in theory, SHM – or at least the discussion of it – is finally on the agenda. In practice, however, clinicians who make such interventions will certainly have to show that they satisfied Bolam. Which begs a further question: how might one get one's practice accepted as proper?

It is clear that practice may precede acceptance. In 2002, the President of the Family Division of the High Court said that Bolam should not to be allowed to inhibit medical progress. (PA v JA and A NHS Trust [2002] EWHC (Fam) 2743) Nurses should only practice SHM if they are competent, and sufficiently confident, to do so. But those who wish to change perceptions of SHM might therefore find it helpful to say so, and to do so often and conspicuously. In this as in all other areas, they will be judged according to the standards of their profession, and they can be expected to shift over time. As for health care organisations: they should seek to gauge the nature and extent of SHM-interventions in the services for which they are responsible and to confine those interventions, by the use of policies and protocols, to no more than Bolam would allow.


It is ironic, and one of several paradoxes bedevilling SHM, that every attempt to devise or even discuss an appropriate level of care runs the risk of elevating that level. But nurses should not be discouraged from seeking to promote acceptance of, and to procure lawful authority for, the practice: it is only by doing that that they can hope to protect themselves - and their patients - from the unfortunate consequences of self-harm.

Wednesday, 12 August 2009

Nearest relative objections

Where a nearest relative has discharged a patient from hospital that alone might count as an objection to a subsequent detention. So said the High Court in a case which, though it was heard in February, has only recently been reported.

Under the Mental Health Act 1983 (MHA), someone suffering from mental disorder may be detained in hospital for up to six months, but only if his nearest relative (NR) has not objected to such a course. (MHA, ss 3 & 11(4)) (A county court may remove the NR from office because of his objection, but only if it was unreasonable: MHA, s 29(1)(c))

In this case, Mr M had been detained under section 3 of the MHA, even though his NR had registered a clear objection. Ordinarily, of course, that objection would have prevented use of the Act, but the Approved Mental Health Professional (AMHP) who applied for Mr M’s detention said she believed it had been withdrawn. Though the court found she was sincere, it ruled there were no reasonable grounds for her belief, and that as a result, Mr M’s detention was unlawful. (M v East London NHS Foundation Trust, CO/1065/2009, QBD (Burton J) 11 February 2009)

In reaching this decision, the court reviewed the authorities. When an AMHP intends to apply for a person to be detained under the MHA, he will usually have to tell the NR and explain why. That is so as to give the NR a proper opportunity to object to – and thereby prevent – the detention. (Re: Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945. See also: MHA Code of Practice, paras 4.58 et seq) Adding a gloss to the existing law, the court said an AMHP need not go so far as to say to the NR, “Do you object”, unless he has been given reason to doubt whether the NR has objected or whether a previous objection (or non-objection) has been reversed. (Burton J at [36])

Previous discharges
Mr M had been admitted to hospital before, and, using the power contained in section 23(2)(a) of the MHA, his NR had purported to discharge him from detention at least twice. The court held that those discharges might also have been relevant here, as suggesting that the NR would object to any new detention.

One might criticise this conclusion, of course, for these were discharges from a current detention, not objections to one that was merely proposed, and they came some time before, in this case, that proposal was made. Nevertheless, the court said that when considering whether to admit someone under the MHA, it was part of an AMHPs’s duty to reflect upon all the circumstances of his case. Any previous discharges (and the detentions that preceded them) would form part of those circumstances. “Clearly,” the court said, “the nearer in time the previous events are, the more relevant they become, particularly if they show … a state of mind of the nearest relative which is unlikely to be changed.” (Burton J at [29]) (Because of the NR’s subsequent, unambiguous objection, these earlier events were of limited relevance in this case.)

In fact, the court accepted that the NR’s state-of-mind might change, and “there may well be many cases in which even the passage of a few hours, never mind days, might dramatically alter the view of how a patient is or should be treated in the mind of a nearest relative.” (Ibid)

It seems clear, therefore, that a NR may object to a MHA detention, even though he has previously failed to do so. The court was at pains to stress, however, that any such objection would only be effective if it was made by reasonable means and before detention had been carried into effect. (Ibid)

It is helpful to have the confirmation the High Court has provided in this case. If an AMHP’s actions are to be lawful, it seems sensible that they will have to be based upon a view that is not just genuinely held, but also objectively fair. And it will come as no surprise to practitioners to learn that an objection, or a non-objection, to detention can be reversed.

The most striking element of this decision, however, is the suggestion that a previous discharge by a NR might count as his objection to a subsequent admission. That is likely to prove controversial and it might also be burdensome. Clearly, an AMHP cannot take account of a previous discharge of which he is unaware. He might be deemed to have a duty of reasonable enquiry, of course, but another question arises: where he knows about such a discharge, is an AMHP bound to treat it as the objection of a NR who, for whatever reason, he has decided not to consult?

Thursday, 6 August 2009

Open the envelope ... OPEN THE ENVELOPE

I am delighted, and slightly humbled, to announce that the second edition of The Nearest Relative Handbook has been nominated for a BMA Book Award. It was published earlier this year and has already been highly commended in the popular medicine category. The book will now go forward to a formal awards ceremony, in London on September 8.

I am grateful, both to the BMA for considering the book and to my publisher, Jessica Kingsley, for putting it forward. I wanted it to be of help to patients and their carers as much as to professionals in the field, and this nomination suggests that it might have gone some way towards achieving that objective.

Further details about the book, together with an order form, may be found here

Tuesday, 28 July 2009

Did I mention ...

The second edition of my book, The Nearest Relative Handbook, is now available.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

This is an excellent reference book that could be used by all members of integrated community mental health teams in England and Wales - Practice: Social Work in Action

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook is published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

Monday, 20 July 2009

It’s not just about the cost of care

The government has published its proposals for the future of adult care in England. Not surprisingly, a great deal of attention has been paid to the cost of those proposals, and to who should meet it. There are, however, other questions that are just as important.

The government says the system for adult care should be fair, simple and affordable, and that it will therefore need to be underpinned by national rights and entitlements. Nowhere, however, does it say what those rights will be or even what they might look like.

There is no doubt that even now, the legal framework for adult care is old-fashioned, forbiddingly complex and in need of review: the Law Commission has just said so and change now seems highly likely. The new care proposals will only compound the problem.

It seems that under what the government has dubbed the National Care Service (NCS):

* There will be a fully joined-up service between the NCS and the NHS.

* There will also be a single, national assessment process, with people who have gained entitlements in one area being able to transfer them to another.

* The state will meet a fixed proportion of each person’s care costs and any additional costs will be met by social or private insurance.

* An independent body will be created, to advise on quality and best value in adult care services.

* People will be able to continue living in their own homes, if that is what they want.

It remains to be seen whether these aspirations are widely shared, but if they are to be achieved, it will surely only be through legislation.

The shape of any new legislation will be crucial and will have to be debated very thoroughly. It would be unfortunate, however, if the messages from that debate were drowned out by arguments about pounds, shillings and pence.

The government's proposals are contained in a green paper, which is available here.

Corporate manslaughter in prisons and police stations: the new offence is only months away

© Jurgen Chill

The government says it still intends to extend a new manslaughter offence to prisons, police stations and mental health hospitals, and to do so by April 2011.

The offence is part of the Corporate Manslaughter and Corporate Homicide Act 2007. It could apply where a person dies because an organisation – an employer, for example, or a service provider - breached its duty of care.

Though the Act itself came into effect in April 2008, the government exempted places of detention, because it said they might need as much as five years to prepare. They aren’t going to get that.

In a new report to Parliament, the Ministry of Justice reveals there’s a lot to be done in the criminal justice system.

* Prison capacity will rise to 96,000 and many existing cells will be improved.

* The recent Bradley Report, on how the criminal justice system treats people with mental disorder or a learning disability, will be implemented in full.

* The new Ministerial Board on Deaths in Custody will get into its swing.

* More work will be done on the risks presented by transferring prisoners.

* The Person Escort Record will be introduced nationwide and the Police National Computer made available in more prisons.

* New IT will make it easier to share information across the youth justice system.

* Proper arrangements will be made for NHS primary care trusts to take responsibility for healthcare in police custody suites.

* There will be greater integration of prison and community drug treatment services (the budget for which will be increased more than three-fold).

* Policy custody staff will continue to receive expert training.

* Prison staff will be taught about the system for managing prisoners identified as being at risk of suicide or self-harm, and all policies will be reviewed.

* The government will implement the recommendations of a recent review of the use of restraint on juveniles.

Not all of this work will have to be completed in the next few months, of course. A great deal will have to change, however, if places of detention and those responsible for them are to be ready to meet the challenge of the new Act. The cost, should they fail, is likely to be high.

The new report is available here.

Some coroners seem more concerned than others

Although coroners now have wider powers, it seems the use of those powers varies widely.

Coroners often hear cases in which death might have been avoided. They have long had the power to report those cases to the appropriate authority, and since July 2008, they have been entitled to demand a response. According to new figures, however, some coroners are doing that far less frequently than others.

Now, any response must be sent to the coroner within 56 days and the Lord Chancellor may publish responses received. The first summary of those responses shows that:

* By the end of March, reports had been issued in 207 cases, and in 57 of the 115 coronial jurisdictions. (This means that 58 coroners made no reports.)

* Just five coroners accounted for nearly a third of all those cases. In fact, most of them – 18 – came before the South Manchester coroner (and 12 came before the City of Manchester Coroner). The Cardiff and South Staffordshire coroners each made reports in 15 cases.

* More than a quarter of cases in which reports were issued concerned hospital deaths, but there were also significant numbers of reports concerning mental health-related deaths and deaths in the community.

* Nearly a fifth of reports concerned deaths on the roads, and about a tenth revealed health and safety concerns.

These are, of course, early days, and, as the Lord Chancellor’s summary itself explains, what a coroner does is determined by the cases he or she hears. There are, nevertheless, striking disparities in the extent to which coroners’ report-powers are now being used.

The summary may be found here.

Tuesday, 7 July 2009

There’s a difference between wanting to kill yourself and simply wanting to harm yourself … and the law recognises it

Just because you cut yourself, or burn yourself or bruise yourself, that doesn’t mean you want to die. Practitioners have long understood the distinction and now, it seems judges understand it too.

Mr P has a long history of self-harm: he has placed foreign objects in his mouth and used them to open up old wounds, he has exposed tendons in his feet and hands, and he has inserted matchsticks and glass into his penis. For 15 months, he was detained in a young offenders’ institution, and when he came out, he asked for an inquiry to be held concerning the care he received there.

Mr P’s request was turned down by the Justice Secretary, and that decision has been upheld by the High Court and, yesterday, the Court of Appeal. One reason is his own self-harming behaviour: the court said it was just that and not the same as attempted suicide. And because it is only suicide, or near-suicide, that actually demands an inquiry, one need not be held in this case.

Self-harm and the ways of addressing it are poorly understood, by the general public as much as by the courts, so practitioners may find the reason for this particular decision reassuring.

Wednesday, 1 July 2009

Some corner of a foreign field ...

An influential group of peers would like to change the law, to make it legal for relatives and friends to accompany someone who wants to commit suicide abroad.

And it seems that record numbers of Britons are waiting to use the services of Dignitas, the controversial, Zurich-based organisation that runs a clinic where people are assisted to kill themselves.

To many the proposed law-change might seem sensible and humane, but it could also be seen as an exercise in half-measures; a classic British fudge, consisting of hypocrisy and sentimentality in equal measure. It would allow Britons to salve their consciences by exporting the problem overseas.

The law in this area is already caked in fudge: although the CPS acknowledges that prosecutions are unlikely, it has refused to publish a formal policy to that effect, leaving carers and family members to face at least the theoretical prospect of 14 years in jail. One woman, Debbie Purdy, has challenged this refusal, and the House of Lords is expected to announce its decision in her case any day now.

In its dealings with the terminally ill, the law is not honest. If killing oneself is wrong, we shouldn’t allow anyone to do it, even in Switzerland; but if we believe otherwise, we should say so explicitly and shape our laws accordingly. Half-measures, no matter how well intentioned, simply won’t do.

I memorize ev'ry line

A prison breached a prisoner’s rights when it intercepted correspondence with his doctor. That was the decision of the European Court of Human Rights recently, in a case the domestic courts had dismissed. (Szuluk v United Kingdom, Application no 36936/05, Decision published 17 June 2009)

The prisoner, Mr Szuluk, is serving a 14-year prison sentence for drugs offences. While awaiting trial, he suffered a brain haemorrhage and began receiving treatment from a neuro-radiologist. It was his correspondence with that doctor that, following his conviction, was monitored by a prison medical officer.

The government admitted the letters had been read, but it claimed that was perfectly lawful. The Strasbourg court disagreed. It held that the prison had acted disproportionately: there was nothing to suggest that Mr Szuluk had or would ever abuse medical confidentiality, and there was no reason to question his doctor’s good faith. Ordinarily, a prisoner’s correspondence with his doctor should have no less protection than that with his lawyer or his MP. Mr Szuluk was awarded damages of 1,000 euros and costs of 6,000 euros.

Mr Szuluk will like this decision, as will many prisoners and those that support them. It shouldn’t, however, make us complacent: the correspondence of those detained is nowhere near as secure as we might hope.

My own experience is of the law relating to mental health patients. For them, the Mental Health Act dictates when their letters can be intercepted and gives them some redress when it is read. But those safeguards are illusory. I have been involved in several cases where the correspondence of detained patients was seized by the police as part of a criminal investigation. In one case – a high-profile murder – the hospital had the nerve, and the resources, to challenge the police in the High Court. It lost. The decision has never been reported, but the court said that the Mental Health Act protections were only part of the picture, and that a patient’s right to privacy might be outweighed by the needs of a criminal investigation. I saw what the patient wrote and all I can remember is that, time-after-time, he asked about the welfare of his dog. The letters didn’t figure in his trial.

Why aren't more little old ladies being locked up?

Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards. The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It’s certainly true that the DoLS were introduced to fill a gap in the law – a gap rather embarrassingly revealed in 2004 by the European Court of Human Rights. So maybe we should be worried that the new safeguards aren’t being used.

The powers given by the DoLS aren’t unfettered: they can only be used with prior permission from a PCT or a local authority. And there are some broad problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

The government predicted that before next spring, approximately 21,000 people would have their cases assessed, and that a quarter of them would then be brought within the DoLS. According to the first statistics, that isn’t going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, well over two-thirds say they have had fewer than five DoLS cases and almost a quarter seem not to have had any cases at all.

* If the experience of the first two months is anything to go by, only just over 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.

* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

But there is another explanation for this: that in some – quite a few, in fact - parts of the country, DoLS-applications are being actively discouraged. That would be worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.

Child poverty: there will be a duty, but it shouldn’t be an onerous one

Many public bodies, including local authorities, police and the NHS, are to have new responsibilities for children who are in poverty.

The Child Poverty Bill was introduced into Parliament recently and will have its second reading soon. Speaking about the Bill, the Work and Pensions Secretary, Yvette Cooper, said the government still hoped to eradicate child poverty by 2020.

Amongst other things, county and district councils and London boroughs will have to:

* take the lead in making arrangements to reduce child poverty, and in fostering co-operation with and between ‘partner’ public bodies; and
* publish an assessment of the needs of children in poverty and a strategy by which those needs can be met.

The Bill is said to be influenced by recent climate change laws. In fact, the new duties resemble the ones imposed on local authorities and criminal justice agencies to formulate crime and disorder strategies and make public protection arrangements, imposed under the Crime and Disorder Act 1998 and the Criminal Justice Act 2003 respectively. Like them, the child poverty duties might prove less than onerous.

Some excitable commentators have already suggested that the Bill will promote litigation between competing public bodies. That is very unlikely. The new duties should not be hard to satisfy. Although the Bill imposes challenging targets on the government, it doesn’t extend them to public bodies in any measurable way, and in the case of the so-called partners, it imposes no targets at all; merely the duty to co-operate in the making of anti-child poverty arrangements. Surely that isn’t too much to ask.

Tuesday, 9 June 2009

Both prisoner and patient

© James Nachtwey/VII.

The government is to consider whether healthcare given to people in custody should be the responsibility of the NHS, not individual police forces. A recommendation to that effect was made by the Labour peer and former Home Office minister Lord Bradley in his review of how people with mental health problems or learning disabilities are treated in prisons and police stations. It seems any changes will be made quite quickly: a new programme board has been set up to consider the options and it will report within the next 12 months.

The recommendation reflects dissatisfaction with Forensic Medical Examiner services as a whole. Even though the Lord Bradley says some of those services are “excellent and invaluable”, he notes a widespread concern among professionals that medical care is not always available to police detainees when it is required. There is also a – perhaps understandable - desire to unify the provision of health services within the criminal justice system and thereby to ensure greater continuity of care and the smoother flow of information.

Lord Bradley’s recommendation is not new. It was made in Baroness Corston’s recent report on vulnerable women in the criminal justice system, and also in the Department of Health’s own consultation on a proposed strategy for offender care, published in 2007.

The new report also has something to say about Appropriate Adults, who it seems are utilised far less often than they should be. On a national level, there may be problems identifying the need for an Appropriate Adult in the first place, and then in locating someone who can perform the role effectively. The government has conceded that the role should be reviewed and has asked the programme board to consider the resource implications of such a course. Taking into account of the more general review of PACE, the board must also consider whether Appropriate Adults should be trained (and if so, how).

In response to Lord Bradley's report, the government also says:

* It might limit the time prisoners with mental health problems can be expected to wait to be transferred to hospital. (Lord Bradley said this wait might be pegged at 14 days.)

* There should be an evaluation of treatment options for prisoners with personality disorder and a review of the flagship programme for those with Dangerous and Severe Personality Disorder.

* The work of mental health prison in-reach teams should be reviewed.

* There should be better mental health primary care for prisoners, and a number of PCTs will therefore be nominated to take the lead in commissioning prison health care services.

* Consideration will also be given to making awareness about mental health and learning disability issues a key component of police training, and to giving all custody suites access to liaison and diversion services.

Monday, 4 May 2009

No wonder they were angry

Someone who suffers from mental disorder cannot sit on a jury. That much is clear. The law was altered recently, to take account of the new Mental Health Act, but some rather older changes reveal a distinct shift of emphasis.

Juries are common in the Crown Court, where they will deal with criminal cases, and they can even be used in the High Court or in the county courts. The relevant piece of legislation is the Juries Act 1974, section 1(1)(a) of which now says that a person suffering from mental disorder is disqualified from sitting as a juror. According to the Act, this covers:

* Anyone who suffers from mental disorder within the meaning of the Mental Health Act 1983 (MHA) and consequently either resides in a hospital “or similar institution” or regularly attends for treatment by a medical practitioner. This will cover informal as well as detained hospital patients, and also those whose mental health care is provided on an out-patient basis or even, arguably, by a GP.

* Anyone who is subject to guardianship or to a Community Treatment Order under the MHA.

* Anyone who lacks capacity, within the meaning of the Mental Capacity Act 2005, to act as a juror.

It is said that 750 people are month are barred from jury service on these grounds and a survey suggests that 12 per cent of people with mental illness have been excluded from jury service at some time in their lives.

In fact, the obligation lies with the potential juror, who, when he receives a jury summons, must submit a detailed form. He can be fined up to £1,000 if he fails to do so, or to do so properly.

The form asks the potential juror, amongst other things, whether he suffers from mental disorder. Confusingly, perhaps, the 4-page guide that is sent with the jury summons does not reflect the revised MHA. Ignoring crucial – and controversial – changes made by the Mental Health Act 2007, it says that mental disorder consists of mental illness, psychotic disorder, mental handicap or severe mental handicap. This discrepancy raises the possibility that someone with an acquired brain injury, for example, who would not have fallen within the old definition of mental disorder but might fall within the new, will declare himself qualified for jury service when the law deems him not to be so. What would be done with such a person?

The recipient of a jury summons must inform the court of the existence of factors that would disqualify him from service. Originally, the 1974 Act said simply that if those factors, or their mid-70s equivalents, existed, the potential juror “shall be entitled, if he so wishes, to be excused from jury service”. It seems he could have chosen not to disclose his mental disorder. Now, it seems that instead of that discretion, he will face a hard, inflexible obligation.

There is a further official error that is instructive. In its current edition, the jury summons guide says that a further reason someone might be disqualified from jury service is because a judge has found him to be incapable, by reason of mental disorder, of managing or administering, his property and affairs. But this reflects the old position, which obtained before Part VII of the Mental Health Act 1983 was replaced by the Mental Capacity Act 2005. Now, and as the Juries Act 1974 itself provides, an incapable person will be disqualified, first where his capacity has been assessed (and found wanting) under the MCA (not the MHA); and secondly, where the effect of his incapacity is, specifically, to render him incapable of serving as a juror.

In fact, it might be argued that the capacity ground subsumes all the others, and that the only question to be asked is whether the individual concerned is fit to fulfil the purpose for which he has been summoned. Because, like the guidance that accompanies it, the jury summons does not reflect recent amendments, this last possibility is not one upon which a would-be juror is invited to reflect.

There are, however, places where incapacity alone – and not its cause – is the criterion. In many provinces of Canada, for example, it will exclude a person from jury service; while in Texas, it would be a ground upon which someone called to sit on a jury might ask – or might decide not to ask - to be excused. Which is more or less where we came in.

Wednesday, 8 April 2009

We are all bankers now

Before long, significant changes will have been made to the law that covers children and many incapable or vulnerable adults. It is still unclear, however, what those changes will mean.

Yet the law must always be clear. The European Court of Human Rights (ECtHR) said as much in 2004: “An important ingredient of lawfulness is that all law must be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail.” (HL v United Kingdom) In fact, this principle goes back much further; at least to Sunday Times v United Kingdom in 1979 and possibly to the ancient Chinese Fa legalism of the eighth to third centuries BCE.

Hello DoLS

The HL case was about the common law doctrine of necessity and whether it was sufficiently clear to permit incapable people to be deprived of liberty in their own best interests. The ECtHR said it was not and that as a result, it breached Article 5(1) of the ECHR.

The Government’s response was to introduce the Deprivation of Liberty Safeguards (DoLS), which will apply wherever an incapable person is in a NHS hospital or premises registered under the Care Standards Act. For such a person to be deprived of liberty, permission will have to be obtained, either from a PCT or a local authority. If the Court of Protection is to be involved in the case, it will be subsequently, as an appellate court.

One problem with the DoLS is that even now, some time after they came into effect, no one really knows what it means to be deprived of liberty. And it seems that the best guidance is as likely to be found in anti-terrorism cases as in those decided under health care law. (See: David Hewitt, New perspectives on the Mental Health Act, Solicitors Journal, 18 November 2008) Practitioners – and patients – surely deserve better than that.

Another problem is the attitude of the House of Lords, which recently held that in deciding whether something constitutes a deprivation of liberty, consideration may be given to the purpose it seeks to achieve. (Austin v Metropolitan Police Commissioner, 2009) Their Lordships drew on HM v Switzerland (2002), in which the ECtHR held that where an elderly woman was admitted to a nursing home, Article 5 of the ECHR would not be engaged, because this was a “responsible measure” taken in her own best interests and could not, therefore, amount to a deprivation of liberty. The decision in HM had long been considered a rogue one, and In HL, a differently-constituted ECtHR took pains to distinguish it. Now, however, its spectre has returned, and in a way that might haunt the DoLS. (See: David Hewitt, Whose liberty? Solicitors Journal, 13 February 2009)

Under the DoLS, a deprivation of liberty will only be permitted – and will only, therefore, be lawful – if it is in the best interests of the incapable person concerned. But Austin suggests that a measure will never be a deprivation of liberty where it has a benevolent purpose. If that were so, no patient who appeared to fall within the DoLS would ever be deprived of liberty, and as a result, permission would be unnecessary where the DoLS appeared to demand it most. No formal comment has been made about the effect of Austin, but the Department of Health has let it be known that as far as the DoLS are concerned, it is business as usual.

No secrets

There is a widespread view – even unanimity, perhaps – that we should strive to protect vulnerable people. The problem is that no one can seem to agree on what ‘vulnerable’ means. (See: David Hewitt, What is vulnerable? Solicitors Journal, 14 April 2009)

The word is used in the No secrets guidance, which was published in 2000 and is the centrepiece of the adult protection framework. The guidance is, however, being revised, and there is no guarantee that vulnerability will continue to have the resonance it does now. And the ‘No secrets’ definition is not the only one to hand: the Youth Justice and Criminal Evidence Act 1999, the Care Standards Act 2000 and the Safeguarding Vulnerable Groups Act 2006 all have to do with the vulnerable, but each of them defines the term differently.

The High Court, meanwhile has said that it too will offer a remedy to the vulnerable. (Re SA: vulnerable adult with capacity: marriage, 2006) The Court’s motive might be to create new work streams, given that it has lost much if not all of its jurisdiction over incapable people to the Court of Protection. Its conception of what it means to be vulnerable is certainly the broadest of them all.

Parental consent

Hitherto, someone with parental responsibility has been able to consent to medical treatment for a child, even where the child himself or herself is capable of giving consent, and even where he or she has refused to do so. Now, however, we are told that sometimes, it will not be sufficient to rely upon parental consent. (See: David Hewitt, Too young to decide, Solicitors Journal, 30 September 2008)

This notion is set out for the first time in the revised Code of Practice to the Mental Health Act 1983, where it is said to derive from Nielsen v Denmark (1989). The Code says: “It is difficult to have clear rules about what may fall in the zone, when so much depends on the particular facts of each case … The parameters of the zone will vary from one case to the next: they are determined not only by social norms, but also by the circumstances and dynamics of a specific parent and child or young person.” (Paragraphs 36.9 and 36.12) Furthermore, “Where there is doubt professionals should take legal advice so that account may be taken of the most recent case law.” (Paragraph 36.9)

According to the Code, the factors that should be taken into account include: the nature and invasiveness of the treatment; whether the child is resisting; any conflict between the child and the parent, or between the parents; any discrepancy between the child’s and the parents’ interests; and the mental capacity of one or other parent.

But another factor, which might itself render unreliable consent obtained from a parent, is “The general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make – anything that goes beyond the kind of decisions parents routinely make will be more suspect.” (Paragraph 36.12) And the Code reminds us that a decision might be beyond a parent to make simply because of the nature of the proposed treatment – for example, where it could be considered “particularly invasive or controversial” (Paragraph 36.14) But does this guidance clarify or simply obscure the position?

What, for example, are the general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make; and how should we go about identifying them? Are practitioners expected to take the Guardian and the Daily Mail, and to watch both Newsnight and Jeremy Kyle? And is a code of practice really the right place for such a far-reaching proclamation? If parental consent is no longer to be a sound basis for medical treatment given to a child, why doesn’t the Government say so explicitly, in legislation?

In cases of doubt, professionals are advised to take legal advice, “so that account may be taken of the most recent case law.” This is because the Government no longer regards the Nielsen decision as reliable. The most recent case law, however, supports Nielsen: the decision was another of the golden oldies revived by the House of Lords in Austin. Does that mean, therefore, that on the basis of the Code of Practice, parental consent is still sovereign after all?

And finally: is a decision about cancer surgery really – and by reason only of its magnitude – beyond the remit of a child’s parent? If it is, can we say with any degree of certainty that such a state-of-affairs is itself consistent with the general social standards concerning the sorts of decisions it is acceptable for parents to make?


These changes are worryingly vague, both in their implications and in their own terms. But if each change is taken at face value, it produces some results that are startlingly clear.

If, ultimately, a judge is to decide whether a child can have medical treatment, a vulnerable adult be protected or incapable person deprived of liberty, a great measure of professional discretion will have to be surrendered. And if the judge that makes such decisions sits in the Court of Protection or the Family Division, and not the High Court, his or her remit will be wider and the yardstick will be merits, not reasonableness.

This will change the practice across wide areas of health and welfare law, so that the judge ceases to be a simple reviewer of public decisions and becomes instead a primary decision-maker. It would be understandable if, in these times of travail, there were to be a loss of faith in professionals. But it’s still a bit of shock to realise that as far as the government is concerned, we are all bankers now.

Friday, 6 February 2009

Whose consent?

Where a child requires medical treatment, the old rule was that the parents could consent on his or her behalf. Now, it seems the old rule is also the new rule.

For the last 20 years or so, it has been accepted that a parent can consent to medical treatment for a child. This position is the result of Nielsen v Denmark (1989) 11 EHRR 175 and it will obtain, even if the child is competent and has refused consent. In Nielsen, a boy who did not want to go into a closed psychiatric ward was admitted there with the consent of his mother.

Late last year, the Department of Health cast doubt upon this position, at least in the case of competent children. In the revised Code of Practice to the Mental Health Act 1983, it noted that Nielsen was decided before the Human Rights Act 1998 came into effect and “the trend in recent cases is to reflect greater autonomy for under 18s in law”, and concluded: “it is not wise to rely on the consent of a person with parental responsibility to treat a young person who refuses in these circumstances.” (Department of Health, 2008, Mental Health Act 1983 Code of Practice, paragraphs 36.33 and 36.43)

This conclusion caused dismay among practitioners in child and adolescent mental health. More recently, however, and despite what the Department of Health said, the House of Lords has suggested that Nielsen remains good law.

In Austin v Commissioner of Police for the Metropolis [2009] UKHL 5, their Lordships found, perhaps contentiously, that a woman who took part in the May Day protests of 2001 had not been deprived of liberty when, along with several thousand other people, she was corralled into Oxford Circus by the police and detained there for a number of hours. They said that the purpose of these measures – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged.

In support of their contention that the purpose of the measures was relevant to the question of whether Article 5 was engaged, their Lordships examined Nielsen and found it to be directly relevant to the case before them. They went as far as to cite with approval the following passage of the judgment in that case: “Hospitalisation was decided upon by [the mother] in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights”.

If, as seems likely, Nielsen remains – or has again become – good law, the concerns of the Department of Health are baseless and any child, even an unwilling one, may be treated with the consent of his parent.

Wednesday, 4 February 2009

Whose liberty?

Photo: Peter Jordan, PA

The House of Lords recently held that a woman who took part in the May Day protests of 2001, and who was one of several thousand people whom the police confined in Oxford Circus for up to seven hours, was not deprived of liberty. (Austin v Metropolitan Police Commissioner [2009] UKHL 5) The woman lost her case because their Lordships decided that the reason the police did what they did was relevant, and because they accepted that what the police did was proportionate and done in good faith.

Giving the lead judgment, Lord Hope cited a number of cases brought under the European Convention on Human Rights (ECHR), which, he said, established that in deciding whether there is a deprivation of liberty, “Account must be taken of […] the context in which the restriction of liberty occurs” and, therefore, of the purpose of the measures used. (Paragraph 21) Here, the purpose – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged. This conclusion is likely to be deeply contentious, not least because the authorities do not mention ‘purpose’ at all; rather, they focus on the “type, duration, effects and manner of implementation of the measure in question”. (See, for example: Engel v The Netherlands (1979-80) 1 EHRR 647; Guzzardi v Italy (1981) 3 EHRR 333) These are plainly not the same things.

Lord Hope’s conclusion would appear to owe a great deal to the controversial European Court of Human Rights (ECtHR) decision in HM v Switzerland (2004) 38 EHRR 17. (See: David Hewitt, Whatever Happened to Winterwerp? Solicitors Journal, 10 May 2002, p 436) It did not find favour with Lord Walker, who argued that purpose was irrelevant to the question whether confinement amounted to a deprivation of liberty: “If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement”. (Paragraph 44) This, though, was a minority view. The other three members of the Appellate Committee fell in behind Lord Hope and, as she had been in the Court of Appeal - and also, though for slightly different reasons, at first instance - the claimant was unsuccessful.

The possibility that what would otherwise be deprivation of liberty will be prevented from being so by mere good intentions might surprise, and possibly infuriate, the government. Though it could easily have done so, the ECtHR did not reach this conclusion in the ‘Bournewood’ case. There, the Court found that Article 5 was engaged – and had been breached – where Mr L, a man with autism, had been confined to a mental health hospital for three months and prevented from seeing his carers. The Court said this, and not much more, amounted to an assumption of “effective, unqualified control” over the man. (HL v United Kingdom (2004) 40 EHRR 761) Lord Hope did not refer to this aspect of the case.

Because of Bournewood, the government has introduced the Deprivation of Liberty Safeguards (DoLS), which from 1 April 2009 will allow incapable people to be deprived of liberty if certain forms of protection are in place.

It was accepted that the measures used upon Mr L had been in his best interests. If, as the House of Lords has just done, the ECtHR had allowed that fact to prevent Article 5 being engaged, the government would neither have lost the Bournewood case nor been forced to introduce the DoLS. As it is, the DoLS will be relevant where an incapable person is deprived of liberty in his own best interests. Yet if strict observation of best interests will prevent there being a deprivation of liberty, there will be no patient to whom the DoLS apply. Could it be that even before they have come into force, the DoLS are otiose?

And the implications of their Lordships decision go further. If, no matter how constraining they might be, measures taken in the best interests of a patient will never engage Article 5, what is to become of people with mental disorder who are detained under the Mental Health Act? How are they to be protected against unlawful compulsion and what are we to make of the dozens of cases such people have brought, and sometimes won, claiming an impermissible breach of the right to liberty? This baleful question first arose after HM v Switzerland was decided in Strasbourg. It seems it must now be asked again, only this time, much closer to home.

Tuesday, 20 January 2009

Seconds out ...

The second edition of my book, The Nearest Relative Handbook, is now available.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook is published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here