Issue 2 (Feb 2007/Mar 2008)

Legal Mind
Issue 2 (Feb/Mar 2008)

Welcome to Issue 2 of Mind’s enewsletter Legal Mind. It is difficult to believe that we are already a month into 2008. I trust that you had a relaxing time during the holiday season and that returning to the usual routine did not prove too difficult.

Thank you to everyone who emailed about the first issue of Legal Mind. Issue 3 should be available at the beginning of April. In the meantime, please continue to send us your comments.

Keith Dawson
Lawyer, Mind Legal Unit

Mind
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News

Mental Health Act update

1. Advocacy delay
Anyone reading chapter 19 of the draft Code of Practice to the Mental Health Act 1983 for England will have noted the Government’s intention to delay implementation of Independent Mental Health Act advocacy. All other amendments to the Mental Health Act 1983 (MHA 1983) will be implemented by October 2008 but the advocacy provisions will not be brought into force until April 2009 at the earliest. This means that people being treated compulsorily under the amended MHA 1983 will be denied a significant safeguard for some time after those amendments have come into force. Chief Executives of organisations in the Mental Health Alliance, including Mind’s Paul Farmer, have written to the Health Minister expressing their concern. Mind has also tabled a number of parliamentary questions on the matter.

2. Draft reference guide to Mental Health Act
During its consultations on the draft revised Code of Practice and secondary legislation (which closed on 24 January 2008), the Department of Health (DH) in England published a document entitled ‘Draft Reference Guide to the Mental Health Act 1983 as amended by the Mental Health Act 2007’. The final version of the guide will replace the Memorandum on Parts I to VI, VIII and X of the Act, last published by the Department of Health and Welsh Office in 1998. The document can be downloaded at www.dh.gov.uk/en/Consultations/Liveconsultations/DH_079842. Responses to the consultations on the draft revised Code and secondary legislation were submitted by the Mental Health Alliance, Mind and Mind Cymru. Links to these should soon be available on Mind’s website (www.mind.org.uk). Other organisations to have responded include the Law Society and the British Medical Association (BMA). The Law Society argued that the legal status of the guidance in the draft Code is not correctly set out and that the guidance on the new 'appropriate treatment test' fails to emphasise the need to provide some health benefit to the detained patient. The BMA echoed this, saying that the ‘appropriate medical treatment test’ has been so weakened in the draft Code that it has become meaningless. According to the BMA, the amended Act could pose ‘serious ethical problems’ for doctors. View the Law Society response at www.lawsociety.org.uk/influencinglaw/policyinresponse/view=article.law?DOCUMENTID=383036 and the BMA’s at www.bma.org.uk/ap.nsf/Content/mentalhealthactcode

3. CSIP updates
Implementation of the Mental Health Act 2007 in England is being led by the Care Services Improvement Partnership (CSIP) through the regions. Issue 5 of an update bulletin produced by CSIP was published early in January. All of the updates can be accessed via the implementation website at www.mhact.csip.org.uk/news.html

4. Reminder of provisions now in force
On 1 December 2007, provisions came into force providing for civil partners to be patients’ nearest relatives for the purposes of the MHA and giving them equal status with spouses. The provision relating to consent for young people aged 16 or 17 came into force on 1 January 2008. For more information about the changes see the DH website at www.dh.gov.uk/en/Publicationsandstatistics/Bulletins/theweek/DH_078749

Mental Capacity

1. Deprivation of liberty safeguards consultation responses
Mind’s response to the consultation should be available on our website within the newt few days (www.mind.org.uk). The response submitted by the Law Society may also be of interest to some readers, at www.lawsociety.org.uk/influencinglaw/policyinresponse/view=article.law?DOCUMENTID=374214

2. Important information from the Public Guardian
In January, the Office of the Public Guardian (OPG) placed two important notices on its website (www.publicguardian.gov.uk). The first, aimed at people making or registering a Lasting Power of Attorney, lists the most common mistakes that have lead to applications being rejected. The other advises professionals making applications to the Court or assisting clients to make applications that the Court is no longer able to accept old application forms. There had been some discretion to accept old forms despite the introduction of new ones upon full implementation of the Mental Capacity Act 2005 in October 2007. The OPG notice advises that current application forms are available for download from the ‘forms and booklets’ section of the OPG website (at www.publicguardian.gov.uk/forms/forms.htm) or by contacting Customer Services on 0845 330 2900.

MHAC Twelfth Biennial Report
The Mental Health Act Commission (MHAC) published its Twelfth Biennial Report, ‘Risks, Right, Recovery’ on 30 January 2008. Key features of the report are the pressure on admission wards, high bed occupancy, inadequate ward staffing levels (some of which the MHAC describes as "unsafe") and the level of fear and intimidation that many patients experience on mental health wards. The report also highlights problems getting in to and out of hospital. The MHAC says it has been made aware of problems in accessing the required professionals to complete applications for admission under the Mental Health Act 1983 and delays in admitting people to hospital once applications have been completed. It also reports that some patients’ discharges are unnecessarily delayed for want of arrangements having been made for their support in the community. The full report is available on the MHAC website (www.mhac.org.uk) but a short briefing note has also been produced by the MHAC, outlining the key findings. The briefing note can be downloaded at www.mhac.org.uk/?q=node/430

Transfer of prisoners under sections 47 and 48 of the Mental Health Act
On 7 December 2007, the Department of Health published a revised and updated version of its guidance, 'Procedure for the Transfer of Prisoners to and from Hospital under Sections 47 and 48 of the Mental Health Act 1983'. The guidance refers throughout to NHS organisations in England, such as Primary Care Trusts and Strategic Health Authorities, but the procedures for transfer are essentially the same in Wales as in England. Explanatory footnotes highlight where the procedures diverge. The updated guidance can be downloaded at: http://snipurl.com/1z173

Statistics, statistics

1. Count Me In census results

The results of the third ‘Count Me In’ census, carried out on 30 March 2007, were published by the Healthcare Commission in December. The census forms part of the government’s "Delivering Race Equality in Mental Health Care" action plan and was undertaken jointly with the Mental Health Act Commission (MHAC) and the National Institute for Mental Health in England (NIHME). It covered England and Wales and encompassed nearly 32,000 inpatients in mental health wards at NHS and private establishments, along with over 4000 inpatients in establishments providing services for people with a learning disability. The figures continue to show that people from some black and minority ethnic groups are three or more times more likely than average to be admitted as inpatients. In addition, some 68 per cent of inpatients are in mixed-sex wards. More information about the census and its findings can be found at: http://snipurl.com/1z17j

2. People detained under the Mental Health Act 1983
On 19 December, the NHS Information Centre published its annual bulletin containing statistics on the number of people detained under the Mental Health Act 1983 (MHA) in England. The bulletin covers NHS facilities, including secure hospitals, as well as independent hospitals and the latest statistics cover the period 2006 to 2007 (up to 31 March 2007). They show that the number of detentions under the MHA rose by approximately 600 to 48,000 and that the number of admission during the 2006 to 2007 period was 300 higher (at 27,700) than for the previous 12 months. The figures indicate that private units are being used increasingly to detain people. The number of such detentions showed a 24 per cent increase from 2005 to 2006. At 31 March 2007, there were 15,300 patients detained in hospital, of which 12,200 were in NHS facilities and 3,100 in independent hospitals. For full details visit www.ic.nhs.uk/statistics-and-data-collections/mental-health/mental-health-act/in-patients-formally-detained-in-hospitals-under-the-mental-health-act-1983-and-other-legislation-nhs-trusts-care-trusts-primary-care-trusts-and-independent-hospitals;-2006-07

Separate figures issued in October 2007, by the Statistical Directorate of the Welsh Assembly Government, indicated a fall in the number of admissions to mental health facilities in Wales for the period 2006 to 2007 and in the number of formal admissions under the MHA. Admissions were down from 13,459 in 2005 to 2006, to 11,027 in 2006 to 2007, while the number of formal admissions reduced by just over 100 to 1310. The figures for Wales are available at http://new.wales.gov.uk/docrepos/40382/40382313/statistics/health/health-2007/sdr156-2007?lang=en

3. Restriction orders
The Ministry of Justice has published its Statistics of Mentally Disordered Offenders 2006 giving information about patients subject to a restriction order (restricted patients) admitted to, detained or discharged from hospitals during that year. The total number of restricted patients detained in hospital in England and Wales at the end of 2006 was 3,601, up 6 per cent on 2005 and the highest figure in the last decade. The bulletin is available at www.justice.gov.uk/publications/mentally-disordered-offenders.htm

Consultation on using and sharing personal information
Following the government’s October announcement of an independent review, a consultation into how personal information is used and shared in the public and private sectors was launched on 12 December 2007. The consultation is being undertaken by the Information Commissioner, Richard Thomas, and Dr Mark Walport who is Director of the Wellcome Trust. Among the questions being considered by the consultation are whether the Data Protection Act 1998 offers sufficient safeguards and what impact technological advances have had on the protection of personal information. The review is expected to report back to Jack Straw (Secretary of State for Justice and Lord Chancellor) in the first half of this year. Copies of the consultation document and the response form are available online at: www.justice.gov.uk/reviews/datasharing-intro.htm. If you do intend to respond please act quickly; the closing date is 15 February 2008.

Legal Aid for mental health work
Readers of the ‘hard copy’ newsletter previously produced by Mind’s Legal Unit will be familiar with concerns expressed by the Mental Health Lawyers Association about the potential disappearance of legal representation for people who experience mental distress. Changes to the way in which mental health lawyers are paid under the ‘legal aid’ system mean that fewer and fewer lawyers are undertaking mental health work and the fear is that people detained in hospital will have no one to represent them at Mental Health Review Tribunals (MHRTs) or will be represented by people with little or no experience. Richard Charlton, a partner at the law firm Kaim Todner and chair of the Mental Health Lawyers Association since 2001, set out these concerns in the December issue of Adjust, the newsletter of the Administrative Justice and Tribunals Council. Richard’s article is available at www.ajtc.gov.uk/adjust/articles/feature_rc_impact_mental.htm

Specialist Support Service
The Legal Service Commission (LSC) funds a number of organisations, including Mind, to provide expert support in particular areas of law to eligible legal advisors. Following a consultation exercise conducted last summer, the LSC has announced plans to alter this Specialist Support Service from April 2008. Existing services will continue to operate until then and legal advisers who qualify can contact Mind’s specialist support helpline on 020 8215 2345. The line is open and staffed on Tuesdays and Thursdays between 11.00am and 1.00pm but callers can leave a message outside of these times and the Legal Unit will call back at a suitable time within the next working day. It is important that callers quote their LSC contract number when leaving a message or speaking to an advisor on the helpline. Full details of the changes proposed by the LSC are available on its website at http://snipurl.com/1z17p

Criminal justice

1. Another Assault update
Since publication of ‘Another assault’ (see Issue 1), Mind has been contacted by a number of service users telling us about their own negative experiences with the criminal justice system. An Early Day Motion (EDM) calling for the subject to be debated in the Commons has been signed by a number of MPs and there is a petition on the 10 Downing Street website. Anyone who has not already signed the petition can do so at http://petitions.pm.gov.uk/anotherassault. Find out more about the campaign at www.mind.org.uk/anotherassault

2. Diversion from custody
At the beginning of December, during a statement in Parliament on the report of the prisons review carried out by Lord Carter of Coles, Jack Straw (Secretary of State for Justice and Lord Chancellor) announced that he was asking Lord Bradley to carry out a review, reporting jointly to the Department of Health and the Ministry of Justice, on diverting more offenders with severe mental health problems away from prison and into more appropriate facilities. The review team sent a letter to ‘stakeholders’ on 31 January 2008 seeking view on the direction of what it described as being "potentially a very broad agenda". The letter can be downloaded at http://snipurl.com/1z17w

3. Community Orders
Meanwhile, the Sainsbury Centre for Mental Health has published a report which claims that courts are not using mental health treatment options for offenders outside prison. The report, ‘The Community Order and the Mental Health Treatment Requirement’, indicates that less than one per cent of people issued with a community order had a requirement for mental health treatment in their sentence. The number of community orders issued in 2006 that included a mental health treatment requirement (725) is very low when compared with orders containing a requirement for drug treatment, supervision or unpaid work. For more details visit www.scmh.org.uk/80256FBD004F6342/vWeb/pcKHAL7ANJUA

Henderson hospital
People who use the services provided by the Henderson hospital in Surrey have instructed solicitors to challenge the decision to close it, saying there has been no consultation. The hospital supports people with complex needs that local mental health services are often unable to address and received praise from the National Institute for Mental Health in England in a 2003 review. However, in December, the South West London and St George's Mental Health NHS Trust said it could no longer afford to keep the hospital open following a change in the way NHS mental health services are commissioned.

Independent Safeguarding Authority scheme
Another consultation ending soon, on 20 February 2008, concerns the Independent Safeguarding Authority (ISA), the body set up to administer a new scheme aimed at protecting children and vulnerable adults by preventing those who are known to pose a risk of harm accessing these groups of people through their work (see Issue 1). The issues on which views are invited include the definition of ‘vulnerable adults’, the range of activities to be regulated by the scheme, and who should be eligible to check that a person is ISA registered. The Safeguarding Vulnerable Groups Act 2006 (SVGA) consultation document is available to download at www.dfes.gov.uk/consultations/conDetails.cfm?consultationId=1516. Mind’s Legal Unit recently published a legal briefing entitled ‘Safeguarding vulnerable adults’, looking at law and policy governing this area and outlining the main provisions of the SVGA. The briefing is available at www.mind.org.uk/Information/Legal/

Removal of health condition requirement for social workers?
The General Social Care Council (GSCC) recently considered the provisions in the Care Standards Act 2000 requiring that the GSCC be satisfied that anyone registering with it is physically and mentally fit to perform a social work role. The GSCC concluded that the requirement leaves prospective social workers open to discrimination and has written to the Department of Health saying that it should be removed from the legislation. According to the GSCC, it is for individuals and their employers - not the regulator - to decide whether they are able to perform their duties as a social worker. The Equality and Human Rights Commission has welcomed the GSCC’s move and says that it hopes that other regulatory bodies will follow suit and make similar calls.

Health and Social Care Bill
The Health and Social Care Bill was introduced to Parliament on 15 November 2007. The Bill provides that for a single body (the Care Quality Commission – see Issue 1) to become responsible for maintaining standards across health and social care in England. Welsh ministers would continuing to act as the registration body for social care and the independent health sector in Wales but will also take over the functions in Wales of the Mental Health Act Commission. The Bill allows for regulations to be made defining what activities are to be regulated under the new system and this is likely to result a broader range of activities being subject to regulation.

Crisis Resolution and Home Treatment services could be better
A National Audit Office (NAO) report into Crisis Resolution Home Treatment (CRHT) teams was published on 7 December 2007. The NAO found that CRHTs are providing an alternative to hospital admission for people in crisis and supporting people in early discharge from hospital. However, any positive impact is being limited by the fact that CRHT teams are not assessing enough people prior to hospital admission and by the absence from many teams of consultant psychiatrists and approved social workers. The report, ‘Helping people through mental health crisis: The role of Crisis Resolution and Home Treatment services’, is available at www.nao.org.uk/pn/07-08/07085.htm

Other news

1. Managing medication
The National Institute for Mental Health in England has published a guide for service users, carers and health and social care practitioners, entitled ‘Medicines Management: Everybody’s Business’. The dual aims of the guide are to empower service users and carers to ask relevant questions about medication and to help practitioners improve their person-centred approach to medicines management. It can be downloaded at http://snipurl.com/1z180

2. Review of CAMHS
On 12 December 2007, a review of Child and Adolescent Mental Health Services (CAMHS) was announced. Jointly sponsored by the Department for Children, Schools and Families (DCSF) and the Department of Health (DH), the review

aims to ensure that the needs of children and young people who experience mental-health problems, or who are at risk of experiencing them, are being met. It will report later this year.

3. Sexual boundaries
The Council for Healthcare Regulatory Excellence (CHRE) has published a set of documents on clear sexual boundaries between healthcare professionals and patients. The work was commissioned by the Department of Health in response to a series of inquiries into serious breaches of sexual boundaries by healthcare professionals. The documents are available at www.chre.org.uk/Website/our_work/index_html2/index_html/view

Mind intervention in important human rights case

Savage v South Essex Partnership NHS Foundation Trust
[2007] EWCA Civ 1375
Court of Appeal (Sir Anthony Clarke MR, Waller LJ and Sedley LJ)
20 December 2007

On 20 December 2007, the Court of Appeal gave judgment in an important human rights case in which Mind intervened. The case concerned Carol Savage who, aged 49, killed herself in July 2004 after absconding from a hospital where she was detained under section 3 of the Mental Health Act 1983 (the MHA).

Carol’s daughter (Anna Savage) took legal action against the NHS Trust that runs the hospital. She claimed damages under the Human Rights Act 1998 (the HRA) on the basis that the trust (a ‘public authority’ as defined by the HRA) had, amongst other things, breached Carol’s right to life under article 2 of the European Convention on Human Rights (‘the Convention’). The parties generally agreed on the facts of the case. However, there was disagreement concerning the hospital’s management of Carol and whether the NHS Trust or its employees were negligent in that they had not taken reasonable measures to prevent the risk of suicide.

A trial was scheduled for January 2007 but the Trust made an application asking the court to decide a preliminary issue, namely what the proper test is in law for establishing a breach of article 2 of the Convention. The parties were in agreement that even if there had been negligence, this had not amounted to ‘gross negligence’ giving rise to a criminal charge of manslaughter. This meant that if the test for a breach of article 2 is gross negligence, Anna’s claim under the HRA was bound to fail. The judge agreed to hear the preliminary issue and the Trust argued that there can only be a breach of article 2 if there has at least been gross negligence. Anna argued that it is only negligence that has to be established (or even something less) for there to be a breach. The judge found in favour of the trust but granted Anna leave to take the matter to the Court of Appeal. Mind was given permission to intervene in the Court of Appeal and submitted written evidence.

In the Court of Appeal, Anna argued that:

1. The trial judge should not have made a separate preliminary ruling and should have decided what test applied only after hearing all the evidence in the case; and
2. The judge was wrong to hold that the test that applies is one of gross negligence

Mind supported Anna’s grounds for appeal but also relied on article 14 of the Convention (the prohibition on discrimination).

In the event, the Court of Appeal allowed the appeal on the basis of the article 2 arguments and reinstated Anna’s claim. This made it unnecessary for the Court to formally rule on whether the judge had been entitled to determine the matter as a preliminary issue though it said that she was so entitled. The decision also made it unnecessary for the Court of Appeal to say anything about article 14.

Anna’s legal representatives submitted that the test for a breach of article 2 should be the same in situations where a person compulsorily detained under section 3 MHA dies as it is where a prisoner dies. Both, it was argued, are detained under compulsion and unable to leave the institution. The Trust submitted that the relevant comparison should be with other hospital patients and not prisoners.

The Court agreed with Anna that patients detained under section 3 MHA are in a position more akin to prisoners than to that of other hospital patients and that this is so whether they those patients are being treated for mental health problems or something else. The Court concluded that the principles applying to the case were those set out in a 1998 decision of the European Court of Human Rights in Osman v United Kingdom (application no. 23452/94) and that the test applying to the Savage case could be stated as follows: "In order to establish a breach of article 2, on the assumed facts [Anna Savage] must show that at the material time the Trust knew or ought to have known of the existence of a real and immediate risk to the life of Mrs Savage from self-harm and that it failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk." It was not necessary for Anna to establish either gross negligence or something more serious.

The critical point for the court was that patients detained under the MHA, like prisoners, are particularly vulnerable. Both are under the control of state in a way other hospital patients are not and so are afforded similar protection under the HRA.

Full report available at www.bailii.org/ew/cases/EWCA/Civ/2007/1375.html

Other cases of interest

Cases are in date order with the most recent first. Ombudsmen decisions are listed after those of the courts. Only brief details are provided here but links to the full case report are included where possible. Mind is grateful to BAILII (the British and Irish Legal Information Institute) and Family Law Week for allowing us to link to reports on their respective websites.

Richmond Adult Community College v Elizabeth McDougall
[2008] EWCA Civ 4
Court of Appeal (Pill LJ, Sedley LJ, and Rimer LJ)
17 January 2008

This was a successful appeal by Richmond Adult Community College (‘the College’) against a decision of the Employment Appeal Tribunal ("EAT") on 13 July 2007. That decision and the background to the case were briefly outlined in Issue 1 of this newsletter, available at www.mind.org.uk/Information/Legal/legalmind/issue1.htm

The Court of Appeal held that whether an employer has unlawfully discriminate should be judged on the basis of the evidence available at the time of the alleged discrimination complained of. The main question in this case was whether Elizabeth McDougall (M) was a disabled person as defined by the Disability Discrimination Act 1995 (the DDA). This depended on whether M’s impairment was ‘likely to recur’ and in the view of the Court, "[t]hat had to be answered exclusively by reference to evidence relating to the then likelihood of such recurrence". M’s admission to hospital, which took place in between the alleged discrimination and the Employment Tribunal hearing, was not relevant to the decision made by the employer (at the time it withdrew a job offer) on whether M’s condition was likely to recur. According to the Court, the DDA requires a "prophecy" to be made and "does not permit recourse to evidence as to subsequent events".

Full report available at www.bailii.org/ew/cases/EWCA/Civ/2008/4.html

R (Chavda and others) v Harrow London Borough Council
[2007] EWHC 3064 (Admin)
Queen’s Bench Division (Mackie J)
20 December 2007

This was an application for judicial review of a decision by Harrow London Borough Council (‘Harrow’) to restrict services. It was brought by three service users represented by our colleagues at the Public Law Project (www.publiclawproject.org.uk). Local groups supporting the action included Mencap, Harrow Rethink Support Group, the local Mind association, Harrow Association of Disabled People and Age Concern. The service users had all been receiving community care services but Harrow decided to limit services to people with ‘critical needs’, as defined in the government guidance ‘Fair Access to Care’, and withdraw them from those with ‘substantial needs’.

The Court held that a claim by the service users that their human rights had been breached was premature. However, it also held that Harrow’s decision to introduce the service restrictions was unlawful since it had failed to comply with the requirements of the Disability Discrimination Act 1995 (DDA) when introducing the new policy. In particular, the disability equality duty owed under section 49A DDA had not been properly addressed in a report prepared for Harrow councillors who approved the policy. Harrow must now reconsider the issue, ensuring that it complies with that duty.

Full report available at: www.bailii.org/ew/cases/EWHC/Admin/2007/3064.html

David v Moldova
European Court of Human Rights
Application no. 41578/05
27 November 2007

The involved a violation of article 5 of the European Convention on Human Rights (the Convention). Gheorghe David (‘D’) was a Moldavian national who had been labelled "mentally unsound" by the authorities in the former Soviet Union and compulsory treated in hospital. Nearly twenty years later, D claimed compensation for personal injury caused by his detention but the authorities in Moldova questioned whether he had the requisite mental capacity to bring legal proceedings. D agreed to be admitted informally to hospital in order for his capacity to be assessed. He decided that he wished to leave hospital after two days but was not allowed to do so for three weeks. D died before the case was heard by the European Court of Human Rights but the application was pursued by his sister.

The Court held that there had been a violation of D’s rights under article 5. It reiterated that a person who agrees to enter hospital does not waive her or his right to liberty such that article 5 cannot be relied upon when wishing to leave. Once D had expressed this wish and been stopped, he had been deprived of his liberty within the meaning of article 5. Such a deprivation could only be justified if D was a person of "unsound mind" and the three conditions established by earlier decisions of the Court were met. The Court ruled that none were shown to be met by Moldova and, in particular, that the state had not demonstrated that D’s mental disorder was of a "kind or degree" warranting compulsory detention.

Full judgment available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=david%20%7C%20moldova%20%7C%2041578/05&sessionid=5134236&skin=hudoc-en

LLBC v (1) TG (by his litigation friend the Official Solicitor), (2) JG, (3) KR
[2007] EWHC 2640 (Fam)
Family Division (McFarlane J)
14 November 2007

In this case, TG’s daughter (JG) and grand-daughter (KR) challenged a local authority’s decision to make a ‘without notice' application to the High Court at the start of the proceedings. TG was 78 years old and had been diagnosed as having dementia. LLBC, the authority, believed it to be in his best interests for TG to reside in a care home rather than with JG and KR. However, before a place was arranged, JG and KR took TG home from hospital into their care. The 'without notice' application was then made asking for the authority to be allowed to transfer TG to the relevant care home. JG and KR were given 'liberty to apply' to have the order varied, set aside or discharged but did not understand what this phrase meant. As a result, they made no application and the transfer went ahead. Since then, interim court hearings had resulted in TG living with JG and KR on a trial basis pending a final court decision.

At the hearing, all parties agreed that TG's best interests would be served by remaining with JG and KR for the foreseeable future. The court made a declaration to this effect alongside a number of others, including that it is lawful for the relevant local authority to have reasonable access to TG. In so doing, the court underlined the need for clear accounts of events leading to this type of application. It said that LLBC had not been able to substantiate many issues raised in its original application and there had been insufficient detail or accuracy. The court also said that the term 'liberty to apply' should be stated in plain language in future cases to ensure that its meaning is clear to all the parties involved.

Full report available at www.familylawweek.co.uk/library.asp?i=3316

R (Wright and others) v (1) Secretary of State for Health and (2) Secretary of State for Education and Skills
[2007] EWCA Civ 999
Court of Appeal (May LJ, Dyson LJ and Jacob LJ)
24 October 2007

This case centred on the provisions of Part VII of the Care Standards Act 2000 (CSA) and, specifically, the application of sections 81 and 82 CSA. Section 81 requires the Secretary of State to keep a list of individuals considered unsuitable to work with vulnerable adults. Section 82(4) provides that where a person is referred under the CSA and it appears from the information submitted that it may be appropriate for the worker to be included in the list, the Secretary of State shall:

1. determine the reference in accordance with section 82, and
2. pending that determination, provisionally include the worker in the list under section 81.

Although a worker is included only on a provisional list, the effect the listing has is immediate. It suspends the worker's right to work and if they are employed in a caring position at the time they are listed then, unless their employer chooses to suspend or move them to a non-care position, the person's contract of employment will be terminated. Moreover, it is a criminal offence for an employer to take on someone who is on the provisional list. The listing may challenged through the Secretary of State, an application to the Care Standards Tribunal (if granted leave) after being listed for nine months, or by seeking judicial review. Four workers, supported by the Royal College of Nursing (RCN), had obtained a declaration under the Human Rights Act 1998 (HRA) that section 82(4) CSA was incompatible with right to a fair hearing contained in article 6 of the European Convention on Human Rights (the Convention).

The Secretary of States’ appeal was allowed in part. The Court of Appeal held that article 6 was engaged whenever a care worker is included provisionally on the list. The fact that the worker had no right of challenge amounted to a breach of article 6 and this was not made good by the fact that the worker could make representations to the Secretary of State, appeal to the Care Standards Tribunal or seek judicial review. However, it also held that the High Court had been wrong to grant the declaration of incompatibility under the HRA. By virtue of section 3(1) HRA, section 82(4)(b) could be read by the courts so as to be compatible with article 6. Specifically, it could be interpreted as requiring the Secretary of State to give workers the right to make representations before the secretary makes a determination, unless she or he reasonably considers that the resultant delay would place a vulnerable adult at risk of harm.

Full report available at www.bailii.org/ew/cases/EWCA/Civ/2007/999.html

Saoud v France
European Court of Human Rights
Application no: 9375/02
10 September 2007

This was an application by relatives of Mohamed Saoud who died, aged 26, in November 1998. Mohamed had a diagnosis of ‘schizophrenia’, was recognised as "80 per cent disabled" and recently had requested (and been refused) admission to a clinic where he had previously received treatment for depression. The police received a call saying that Mohamed was attacking his mother and his two sisters. One of the sisters claimed that she informed the police of Mohamed’s disability and had spoken of the need to call a doctor. However, no doctor was called. When the police arrived, Mohamed struck some officers with an iron bar and seized one officer’s gun, firing it four times before being disarmed. Injured officers were replaced by other officers who used their body weight to keep Mohamed pinned to the ground on his stomach and bound his ankles. Mohamed was continuing to resist when members of the fire service arrived and administered first aid to the injured police officers, pending arrival of the emergency medical services who were going to administer a tranquiliser to Mohamed. Mohamed then developed a sudden weakness, which turned out to be cardiorespiratory arrest, and died. An autopsy and other tests revealed signs of possible "slow mechanical asphyxia" and medical experts pinpointed the fact that Mohamed had been held to the ground for 35 minutes as the direct cause of his death.

The family lodged a complaint for murder of an especially vulnerable person but a judge ordered that there was insufficient evidence to justify the arrest of the officers concerned and that the proceedings be discontinued. Subsequent appeals in the French courts were not upheld. Members of the family were granted legal aid to appeal, via a specialist member of the legal profession, on a point of law to the Court of Cassation (the main court of last resort in France). However, the specialist informed the applicants that the legal aid decision had not been served on him in enough time for him to file pleadings with the Court before it had ruled against the family on the appeal. In the application to the European Court of Human Rights (ECtHR), Mohamed’s family argued that his treatment and death amounted to breaches of articles 2 of the European Convention of Human Rights (the right to life) and article 3 (prohibition of inhuman or degrading treatment). They also argued that subsequent events amounted to a breach of article 6 (right to a fair hearing).

The ECtHR found that the circumstances surrounding Mohamed’s arrest meant that the police’s intervention could be justified and did not breach his human rights. They had been protecting Mohamed's mother and one of his sisters and Mohamed had inflicted injuries on his sisters and some police officers. However, the actions once Mohamed was held to the ground did amount to a breach of article 2. The court reiterated that the authorities have an obligation to protect the health of persons who are in detention or police custody or who, as in Mohamed’s case, have just been arrested. This involves the provision of prompt medical care if required. The police officers had been told about Mohamed’s condition by one of his sisters but despite this, his injuries and the fact that he no longer presented a danger, the officers had not relaxed their hold on Mohamed at any time. Neither had any medical examination been carried out to ascertain his state of health. Moreover, the French authorities had issued no precise instructions on the type of immobilisation technique used by the police. The authorities had therefore failed in their obligation to protect Mohamed’s life in breach of article 2. Since the article 3 complaint related to the same facts, the court decided there was no need to consider it separately. As for article 6, it had been impossible for the specialist lawyer to file pleadings before the Court of Cassation ruled on the applicants' appeals. The proceedings had not been fair and there had been a breach of article 6.

The judgment is available on the ECtHR website (www.echr.coe.int/echr) but only in French.

Ombudsmen decisions

Local Government Ombudsman: Bath and North East Somerset Council
06/B/16774
12 December 2007

This is another important decision on the duty to provide aftercare under section 117 of the Mental Health Act 1983 (MHA). A woman referred to as "Mrs Fletcher" (not her real name) was discharged from hospital having previously been detained under section 3 of the MHA. She moved to a residential care home and to begin with, was not charged for her care by Bath and North East Somerset Council (the Council). Following a review of Mrs Fletcher's case, the Council determined that she no longer needed aftercare under section 117.

The Ombudsman found the Council guilty of maladministration causing injustice. The discharge criteria it had applied were seriously flawed and, as a result, the decision about Mrs Fletcher’s continuing need for aftercare was unsafe. In his report, the Ombudsman stated that "the practical effect of the Council’s criteria is to remove long term nursing or residential home accommodation from the definition of aftercare services" and that this would allow the Council to "…avoid its public responsibilities under section 117 of the Mental Health Act 1983." The remedy agreed was that the council would:

• review its section 117 discharge criteria with the assistance of external legal advice and then reassess Mrs Fletcher’s need for continuing aftercare services,
• pay Mrs Fletcher’s residential care costs until such time as a new review properly determines whether she needs aftercare services under section 117, and
• pay Mrs Fletcher’s family compensation of £250.

The case can be found on the LGO's website at www.lgo.org.uk/news/docs/194-06B16774.doc.

Public Service Ombudsman for Wales
The Public Service Ombudsman made a decision some time ago to make reports on adult social care and health cases under Section 21 of the Public Services Ombudsman (Wales) Act 2005 and not give publicity to them. Staff at the Ombudsman’s office recently sent Mind’s Legal Unit a number of reports extending back to the summer of 2007 and we are very grateful for their assistance. If any of these reports contain significant mental health information, they will be summarised in Issue 3 of Legal Mind.

Courses, conferences, seminars

Mind training and conferences
Details of Mind's training and conference programme for 2008 are still to be finalised and will be included in this enewsletter as soon as they are available, as will details of Mind's annual conference 2008. In the meantime, we can confirm that annual conference will take place on 16 and 17 June 2008, at Brunel University.

Legal Services Commission/Mind Course: Mental Health and Incapacity Law Update Course for Lawyers
4 March 2008, 10.15am to 5.00pm
St Alban's Centre, Leigh Place, London, EC1N 7RD

Course contents: Progress on the Mental Health Bill and Guidance/Code of Practice; New definition of Mental Disorder; Treatability/Appropriate Treatment Test; Community Treatment Orders; Nearest Relative/Nominated Person; Approved Mental Health Professionals; Revised Mental Health Review Tribunal applications and referral system; Revised position on Bournewood provisions and safeguards; Advocacy; Aftercare Issues in the Community; Mental Capacity Act 2005 update, Code of Practice, Definition of Incapacity and Best Interests; Lasting Powers of Attorney, The new Court of Protection, Advance Decisions, Independent Mental Capacity Act Advocates, Court-Appointed Deputies, Offence of Ill treatment and Neglect; Recent Mental Health Cases; Disability Discrimination Act 1995 update.

Accreditation: 6 CPD points. Course Fees: £45.00. See www.legalservices.gov.uk/civil/innovations/training.asp for further details. To check availability please contact Sangi Dhimar or William Clarke on 0161 244 5076.

39 Essex Street Seminar - Incapable and Vulnerable Adults: A legal update
5 March 2008, 6pm and 22nd April 2008, 6pm.
39 Essex Street, London, WC2R 3AT.

39 Essex Street is accredited by the Law Society and the Bar Council to provide CPD accredited courses. Presented by Fenella Morris and Nicola Greaney, this seminar looks at the following areas:

• Mental Capacity Act 2005 in practice
• What role is there for the inherent jurisdiction now?
• Deprivation of liberty: where does it start and how may it be authorised?
• Incapable and vulnerable adults, and sexual intercourse and marriage.

To reserve a place please use the online seminar booking facility at catherine.budd@39essex.com or 020 7832 1140.

Notice board

Hot off the press: Mind Publications catalogue 2008
To request a free copy simply email publications@mind.org.uk, letting our publications team know the address you'd like it to be sent to. Or download and print the pdf at www.mind.org.uk/Shopping/pubscat.htm.

Legal flow-chart posters
Earlier this year, Mind published two legal posters, designed to help those working within the legal system explain legal scenarios to clients with mental health problems. One covers mental health review tribunals, and the other consent to treatment. Each poster is A2 sized (4 x A4), landscape.
You can order them online at: www.mind.org.uk/osb/showitem.cfm/Category/168, or from Mind Publications, telephone: 0844 448 4448, email: publications@mind.org.uk

Advice services from Liberty
Liberty (also known as The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. It works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and the provision of free advice. Liberty run three advice services to help people to better understand the Human Rights Act 1998 and its implications. They are:

• Advice and information to members of the public – call 0845 123 2307;
• Advice and information for voluntary and community groups to help them advise their service users – call 0845 122 8621; and
• Specialist support service for lawyers and advisers with LSC contracts – call 0808 808 4546.

Queries can also be submitted online at Liberty’s legal information website at www.yourrights.org.uk. This website provides legal information on a range of civil liberties and human rights issues. If you wish to find out more about Liberty, visit www.liberty-human-rights.org.uk.

About Legal Mind
Legal Mind is an enewsletter providing information about developments in mental health law and policy. Legal Mind is produced by Mind’s Legal Unit, a small team of lawyers providing advice on mental health and related law to people experiencing mental distress, families, carers, advocates and other professionals. It is available free of charge but is only circulated to people who wish to receive it. Anyone wishing to subscribe can do so at www.mind.org.uk/Information/Legal/legalmindsubs

Legal Mindis produced mainly for people involved in the delivery of mental health services, mental health advocates and lawyers. Anyone can subscribe but please remember that Legal Mind is no substitute for a statement of the law or for legal advice.

Mind’s Legal Unit can be contacted in writing (to "The Legal Unit" at the address above), by e-mail (legal@mind.org.uk) or by telephoning our Legal Advice Line. The line is open on Monday, Wednesday and Friday afternoons between 2.00 and 4.30 p.m. and can be accessed by phoning the Mind switchboard and asking for "Legal Advice"

TO UNSUBSCRIBE: please email legalmind@mind.org.uk with the word UNSUBSCRIBE in the subject line.