1. Case Law Update MHLA November 2014 Tam Gill & Sophy Miles

2. Bostridge v Oxleas NHS Foundation Trust (2014) EWCA Civ 1005

3. The background Permission to appeal to Court of Appeal granted Permission to appeal to Court of Appeal granted B was discharged from detention by the FTT (Mental Health) in April 2009, discharge being deferred so a Community Treatment Order could be put in place. B was discharged from detention by the FTT (Mental Health) in April 2009, discharge being deferred so a Community Treatment Order could be put in place. However - The CTO was unlawful due to the deferred discharge date pre-dating the CTO; in other words he was not still detained at the point the purported CTO came into being. However - The CTO was unlawful due to the deferred discharge date pre-dating the CTO; in other words he was not still detained at the point the purported CTO came into being. When his condition deteriorated in August 2009 and B was recalled to hospital and detained thereafter (with six days of leave) until November 2010, his detention was at all stages – and was admitted by the Defendant Trust – to be unlawful. When his condition deteriorated in August 2009 and B was recalled to hospital and detained thereafter (with six days of leave) until November 2010, his detention was at all stages – and was admitted by the Defendant Trust – to be unlawful.

4. The background The Defendant admitted that the period of 442 days amounted to false imprisonment and/or unlawful deprivation of liberty for purposes of Article 5 ECHR. The Defendant admitted that the period of 442 days amounted to false imprisonment and/or unlawful deprivation of liberty for purposes of Article 5 ECHR. B ’ s case was reviewed twice by a Tribunal during his detention (with no one realising the fact that the detention was unlawful) B ’ s case was reviewed twice by a Tribunal during his detention (with no one realising the fact that the detention was unlawful) On both occasions the Tribunal found that his condition warranted continued detention. B never realised that his detention was unlawful, nor did anyone involved in his care On both occasions the Tribunal found that his condition warranted continued detention. B never realised that his detention was unlawful, nor did anyone involved in his care

5. Court of First Instance There was no evidence that B had suffered damage during the period of unlawful detention due to his being unlawfully detained, and that he would have suffered the same unhappiness and distress had been lawfully detained. There was no evidence that B had suffered damage during the period of unlawful detention due to his being unlawfully detained, and that he would have suffered the same unhappiness and distress had been lawfully detained. Q: how to assess the quantum of damages that fell to be awarded B for both false imprisonment and unlawful deprivation of liberty? Q: how to assess the quantum of damages that fell to be awarded B for both false imprisonment and unlawful deprivation of liberty?

6. Court of First Instance Following the case of Lumba: Following the case of Lumba: 1. the tort of false imprisonment is established even where the detention has caused no loss because it would have been inevitable if the detainer had acted lawfully; 1. the tort of false imprisonment is established even where the detention has caused no loss because it would have been inevitable if the detainer had acted lawfully; 2. there is no principle in the law of England and Wales of “ vindicatory ” damages; 2. there is no principle in the law of England and Wales of “ vindicatory ” damages; 3. where there is no loss suffered as a consequence of unlawful detention, damages for false imprisonment will be nominal. 3. where there is no loss suffered as a consequence of unlawful detention, damages for false imprisonment will be nominal. Nominal damages awarded to B (£1.00) Nominal damages awarded to B (£1.00)

7. Court of First Instance Court of First Instance in Bostridge held that: Court of First Instance in Bostridge held that: It being accepted that there was no loss: the Claimant would have been detained had his illness been correctly addressed via s.3 MHA 1983, as it should have been on 19 August 2009, and thereafter he would have received precisely the same treatment and he would have been discharged in September 2011. HHJ Hand QC therefore held that he was entitled to judgment and to nominal damages. It being accepted that there was no loss: the Claimant would have been detained had his illness been correctly addressed via s.3 MHA 1983, as it should have been on 19 August 2009, and thereafter he would have received precisely the same treatment and he would have been discharged in September 2011. HHJ Hand QC therefore held that he was entitled to judgment and to nominal damages.

8. The appeal application B applied for permission to appeal. The transcript of the permission hearing before Kitchin LJ ([2014] EWCA Civ 1005) contains the following material passages: B applied for permission to appeal. The transcript of the permission hearing before Kitchin LJ ([2014] EWCA Civ 1005) contains the following material passages: “ Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. “ Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place.

9. The appeal application Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss. ” What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss. ”

10. The view of the Court of Appeal The Court of Appeal, in granting permission, note: The Court of Appeal, in granting permission, note: “ these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. “ these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent. ” Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent. ”

11. Comment (1) Local authorities and CCGs will be likely to looking to the appeal with some interest given that – if (in broad terms) HHJ Hand QC ’ s approach is correct – this will have a significant impact upon the quantum of any damages that those whom the decision of the Supreme Court in Cheshire West have shown are unlawfully deprived of their liberty might be able to recover Local authorities and CCGs will be likely to looking to the appeal with some interest given that – if (in broad terms) HHJ Hand QC ’ s approach is correct – this will have a significant impact upon the quantum of any damages that those whom the decision of the Supreme Court in Cheshire West have shown are unlawfully deprived of their liberty might be able to recover

12. Comment (2) Lumba and Kambadzi were immigration cases where the original detentions were lawful but became unlawful due to public law breaches in that the Home Office ( as a result of public outrage over the release of "criminals" prior to deportation) operating a succession of secret policies which amounted to a "near blanket ban" [ Lumba, Para 5] on release. Lumba and Kambadzi were immigration cases where the original detentions were lawful but became unlawful due to public law breaches in that the Home Office ( as a result of public outrage over the release of "criminals" prior to deportation) operating a succession of secret policies which amounted to a "near blanket ban" [ Lumba, Para 5] on release.

13. R(L) v WLMH NHS Trust [2014] EWCA Civ 47

14. The background L was transferred from an NHS - MSU in the South to enhanced MSU in the private sector in the North following increase in risks L was transferred from an NHS - MSU in the South to enhanced MSU in the private sector in the North following increase in risks At the unit in the North, his risks increased again, and he was placed in seclusion At the unit in the North, his risks increased again, and he was placed in seclusion Due to the serious and imminent risk he posed to himself and to others, a referral was made to the high secure estate for assessment and admission Due to the serious and imminent risk he posed to himself and to others, a referral was made to the high secure estate for assessment and admission

15. Court of First Instance CFI set out a 830-odd paragraph decision, which was appealed by the Trust in which the HSH sat CFI set out a 830-odd paragraph decision, which was appealed by the Trust in which the HSH sat CFI listed all manner of requirements to be considered… CFI listed all manner of requirements to be considered… Court of Appeal set out an simpler and more relevant outline for the procedure to be considered when referring patients “ up ” the security ladder from MSU to HSH (in a much shorter judgement) Court of Appeal set out an simpler and more relevant outline for the procedure to be considered when referring patients “ up ” the security ladder from MSU to HSH (in a much shorter judgement)

16. Court of Appeal: ‘ The common law duty to act fairly was engaged when a decision was made as to whether to transfer a patient detained under the Mental Health Act 1983 from a medium to a high security hospital. ‘ The common law duty to act fairly was engaged when a decision was made as to whether to transfer a patient detained under the Mental Health Act 1983 from a medium to a high security hospital. Where the decision was largely a clinically-based decision with a rationing aspect, there was a need for circumspection as to what procedure was required. Where the decision was largely a clinically-based decision with a rationing aspect, there was a need for circumspection as to what procedure was required. Absent urgency, a clinical reason precluding notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the “ gists ” of the letter of reference to the high security hospital by the hospital that wished to transfer the patient and the assessment by the clinician from the high security hospital ought to be provided to the patient and/or his representative, Absent urgency, a clinical reason precluding notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the “ gists ” of the letter of reference to the high security hospital by the hospital that wished to transfer the patient and the assessment by the clinician from the high security hospital ought to be provided to the patient and/or his representative, …and the patient should be afforded an opportunity to make written submissions to the decision-making panel. ’ …and the patient should be afforded an opportunity to make written submissions to the decision-making panel. ’

17. Comment In practical terms, what this judgement does is set out a procedure that should be followed when patients are to be referred to the high secure estate In practical terms, what this judgement does is set out a procedure that should be followed when patients are to be referred to the high secure estate In practice, LR would write to the RC, asking for the referral letter and the assessment report, thereafter take client ’ s instructions and make written representations to the HSH Admissions Panel on behalf of the client In practice, LR would write to the RC, asking for the referral letter and the assessment report, thereafter take client ’ s instructions and make written representations to the HSH Admissions Panel on behalf of the client

18. R (Lee-Hirons) v SSJ (2013) EWHC 1784 (Admin) R (Lee-Hirons) v SSJ (2013) EWHC 1784 (Admin)

19. The background LH claimed that the decision of the Defendant, the Secretary of State for Justice (SSJ) to recall him, pursuant to s.42(3) of the Mental Health Act 1983 to be detained in a hospital on 19 July 2012 was unlawful. LH sought a declaration to that effect and damages for false imprisonment, or pursuant to the Human Rights Act 1998 LH claimed that the decision of the Defendant, the Secretary of State for Justice (SSJ) to recall him, pursuant to s.42(3) of the Mental Health Act 1983 to be detained in a hospital on 19 July 2012 was unlawful. LH sought a declaration to that effect and damages for false imprisonment, or pursuant to the Human Rights Act 1998

20. The background 10 November 2006 - LH was convicted of arson and burglary. He was made subject to s.37 and 41 MHA 10 November 2006 - LH was convicted of arson and burglary. He was made subject to s.37 and 41 MHA There was a difference in opinion as to the diagnosis of LH over the course of his admission. There was a difference in opinion as to the diagnosis of LH over the course of his admission. LH was conditionally discharged by the tribunal on 11 June 2012 LH was conditionally discharged by the tribunal on 11 June 2012 LH was recalled by S/S on 19 July 2012 LH was recalled by S/S on 19 July 2012 The recall warrant didn ’ t set out reasons for recall, of which LH was informed orally. The recall warrant didn ’ t set out reasons for recall, of which LH was informed orally.

21. The legal position Secretary of State has power to recall CD ’ d patient Secretary of State has power to recall CD ’ d patient But: “ he has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient ” – see: R(MM) v Secretary of State for the Home Department [2007] EWCA Civ 687 at para 50 But: “ he has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient ” – see: R(MM) v Secretary of State for the Home Department [2007] EWCA Civ 687 at para 50[2007] EWCA Civ 687[2007] EWCA Civ 687

22. The legal position S/S has to consider whether there had been such a material change of circumstances since the Tribunal's decision that he could reasonably form the view that the detention criteria were now satisfied “ - see R(M) v Secretary of State for the Home Department [2008] EWHC 3638 (Admin) S/S has to consider whether there had been such a material change of circumstances since the Tribunal's decision that he could reasonably form the view that the detention criteria were now satisfied “ - see R(M) v Secretary of State for the Home Department [2008] EWHC 3638 (Admin)

23. The convention rights Article 5(2), which applies to all the reasons for detention provided for in article 5(1), provides that "everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charge against him". Article 5(2), which applies to all the reasons for detention provided for in article 5(1), provides that "everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charge against him".

24. The issues Was SS under a duty to provide written reasons for recall? Was SS under a duty to provide written reasons for recall? LH asserted that the giving of written reasons for recall is a condition precedent to the lawful recall of the person being detained LH asserted that the giving of written reasons for recall is a condition precedent to the lawful recall of the person being detained LH also said that as recall was unlawful, his subsequent detention was also unlawful. LH also said that as recall was unlawful, his subsequent detention was also unlawful. CFI disagreed with LH CFI disagreed with LH

25. Court of First Instance The decision to recall the Claimant was lawful because there had been a deterioration in his mental health since the hearing before the Tribunal. I find that there is a duty to give the patient who is being recalled oral reasons for that decision. I am satisfied that the Claimant was told of the reasons for his recall. I therefore dismiss the claim for damages for false imprisonment and breaches of article 5 of the ECHR, and I dismiss the claim for a declaration The decision to recall the Claimant was lawful because there had been a deterioration in his mental health since the hearing before the Tribunal. I find that there is a duty to give the patient who is being recalled oral reasons for that decision. I am satisfied that the Claimant was told of the reasons for his recall. I therefore dismiss the claim for damages for false imprisonment and breaches of article 5 of the ECHR, and I dismiss the claim for a declaration

26. Why? (per Dingemans J) “ First the critical matter is for the recalled person to know why he is being detained and oral reasons, which must be provided, will provide that information. ” “ First the critical matter is for the recalled person to know why he is being detained and oral reasons, which must be provided, will provide that information. ” “ Secondly there are many practical reasons why the provision of written reasons before recall will be difficult, for example in emergencies, or where the location of the person liable to be detained is not known ” “ Secondly there are many practical reasons why the provision of written reasons before recall will be difficult, for example in emergencies, or where the location of the person liable to be detained is not known ”

27. Why? (per Dingemans J) “ Thirdly, types of mental disorder can vary very significantly. The provision of written reasons to a patient will not always be the most effective way of communicating the reasons for recall. The current practice of requiring the RC to explain to the patient the reasons for recall means that the RC can explain the reasons in a manner that is most likely to be fully understood by the patient ” “ Thirdly, types of mental disorder can vary very significantly. The provision of written reasons to a patient will not always be the most effective way of communicating the reasons for recall. The current practice of requiring the RC to explain to the patient the reasons for recall means that the RC can explain the reasons in a manner that is most likely to be fully understood by the patient ”

28. Why? (per Dingemans J) “Finally the fact that written reasons are not required to be provided before the lawful arrest of a person by the police, strongly suggests that written reasons are not likely to be required before the lawful detention of a person who is liable to recall under the Mental Health Act. I can see nothing in R(O) v West London Mental Health Trust or Article 5(2) of the ECHR which requires a different conclusion” “Finally the fact that written reasons are not required to be provided before the lawful arrest of a person by the police, strongly suggests that written reasons are not likely to be required before the lawful detention of a person who is liable to recall under the Mental Health Act. I can see nothing in R(O) v West London Mental Health Trust or Article 5(2) of the ECHR which requires a different conclusion”

29. R (Lee-Hirons) v SSJ (2014) EWCA Civ 553 Unsuccessful appeal Unsuccessful appeal Where the Secretary of State recalled a person to be detained in hospital under section 42(3) of the Mental Health Act 1983, the Secretary of State was not under a duty at common law nor under article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to give his reasons for the person ’ s detention immediately when he was detained and thus such reasons were not required to be given in writing upon detention. However, article 5.2 required those reasons to be adequately and promptly given to him following his detention. Where the Secretary of State recalled a person to be detained in hospital under section 42(3) of the Mental Health Act 1983, the Secretary of State was not under a duty at common law nor under article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms to give his reasons for the person ’ s detention immediately when he was detained and thus such reasons were not required to be given in writing upon detention. However, article 5.2 required those reasons to be adequately and promptly given to him following his detention.

30. per Sir Stanley Burton… Article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms required that a person should be promptly and adequately informed of the facts and legal authority relied upon to deprive him of his liberty but did not require that information to be given to the person immediately when he was detained. Article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms required that a person should be promptly and adequately informed of the facts and legal authority relied upon to deprive him of his liberty but did not require that information to be given to the person immediately when he was detained. That duty was intended to be satisfied by providing an explanation for the recall within 72 hours, as stipulated in health service guidelines HSG (93)(20) issued by the Department of Health in April 1993 and which supplemented the statutory provisions. That duty was intended to be satisfied by providing an explanation for the recall within 72 hours, as stipulated in health service guidelines HSG (93)(20) issued by the Department of Health in April 1993 and which supplemented the statutory provisions. Since article 5.1 did not require the reasons for the detention of the person to be given to him when he was detained then it did not require those reasons to be given in writing when he was detained. Since article 5.1 did not require the reasons for the detention of the person to be given to him when he was detained then it did not require those reasons to be given in writing when he was detained. Article 5.2 required those reasons to be adequately and promptly given to him following his detention. Article 5.2 required those reasons to be adequately and promptly given to him following his detention.

31. Per Sir Stanley Burton HSG (93) (20) and local authority circular LAC (93)9 provided an obligation to provide to the person an explanation for the recall as soon as possible after readmission to hospital and in any event within 72 hours and a written explanation within 72 hours. HSG (93) (20) and local authority circular LAC (93)9 provided an obligation to provide to the person an explanation for the recall as soon as possible after readmission to hospital and in any event within 72 hours and a written explanation within 72 hours. As the Secretary of State had not complied with his duty to provide adequate reasons within 72 hours and the reasons for such failure were not good reasons, he had therefore breached both the policy and article 5.2. As the Secretary of State had not complied with his duty to provide adequate reasons within 72 hours and the reasons for such failure were not good reasons, he had therefore breached both the policy and article 5.2. However, those breaches did not render the claimant ’ s recall and detention unlawful. However, those breaches did not render the claimant ’ s recall and detention unlawful.

32. Comment May be a positive effect through raising awareness of the existing guidance on loal authorities and the health service May be a positive effect through raising awareness of the existing guidance on loal authorities and the health service Practitioners will wish to check this is being complied with in recall cases. Practitioners will wish to check this is being complied with in recall cases.

33. HK v Llanarth Court Hospital [2014] UKUT 0410 (AAC) HK v Llanarth Court Hospital [2014] UKUT 0410 (AAC)

34. The background HK was placed under s.3 on 21 August 2013 and appealed to the FTT(MH) whilst at a hospital in England HK was placed under s.3 on 21 August 2013 and appealed to the FTT(MH) whilst at a hospital in England HK was transferred to Llanarth Court in Wales on 27 September 2013 HK was transferred to Llanarth Court in Wales on 27 September 2013 Mental Health Tribunal for Wales (MHTW) adjourned hearing listed for 17 January 2014 due to late service of reports Mental Health Tribunal for Wales (MHTW) adjourned hearing listed for 17 January 2014 due to late service of reports MHTW sat on 14 March 2014 to hear case MHTW sat on 14 March 2014 to hear case

35. HK ’ s application to MHTW Sought statutory recommendation either for transfer to another hospital or for RC to consider CTO… Sought statutory recommendation either for transfer to another hospital or for RC to consider CTO… …or in the alternative for MHTW to adjourn and make directions for further information as to the statutory recommendations sought. …or in the alternative for MHTW to adjourn and make directions for further information as to the statutory recommendations sought.

36. MHTW ’ s decision Did not make a statutory recommendation Did not make a statutory recommendation Did not adjourn for further information Did not adjourn for further information Did not discharge Did not discharge Did not provide adequate reasons for the above. Did not provide adequate reasons for the above. On 11 April 2014, permission granted by MHTW for HK to appeal to UKUT On 11 April 2014, permission granted by MHTW for HK to appeal to UKUT

37. The case law (1) English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, CA English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, CA ‘ Justice will not be done if it is not apparent to the parties why one has won and the other has lost ’. ‘ Justice will not be done if it is not apparent to the parties why one has won and the other has lost ’. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge ’ s conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge ’ s conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision.

38. The case law (2) JLG v Managers of Llanarth Court & Secretary of State for Justice [2011] UKUT 62 (AAC) JLG v Managers of Llanarth Court & Secretary of State for Justice [2011] UKUT 62 (AAC) “ …The essence of the legal requirement for a tribunal ’ s decision is that: (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; and (iii) it answered the legal questions appropriately given its findings of fact. Additionally, the tribunal must: (iv) given the parties a fair hearing; and (v) provide adequate reasons. In simple terms, the issue is whether the tribunal did its job properly… ” “ …The essence of the legal requirement for a tribunal ’ s decision is that: (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; and (iii) it answered the legal questions appropriately given its findings of fact. Additionally, the tribunal must: (iv) given the parties a fair hearing; and (v) provide adequate reasons. In simple terms, the issue is whether the tribunal did its job properly… ”

39. UKUT ’ s views… It would be helpful if tribunals set out their reasons by reference to the relevant criteria for detention It would be helpful if tribunals set out their reasons by reference to the relevant criteria for detention Reasons should address how the tribunal dealt with any disputes either as to law or evidence… failing to address explicitly any applications made by a party may render a set of reasons inadequate. A prudent tribunal may wish to explain briefly why it has not resolved a factual dispute Reasons should address how the tribunal dealt with any disputes either as to law or evidence… failing to address explicitly any applications made by a party may render a set of reasons inadequate. A prudent tribunal may wish to explain briefly why it has not resolved a factual dispute

40. UKUT’s views The reasons themselves must be clear and unambiguous The reasons themselves must be clear and unambiguous Rehearsing what each witness has said, without more, is liable to render a set of reasons erroneous in law – need to explain the facts found in respect of the evidence and the conclusions then reached Rehearsing what each witness has said, without more, is liable to render a set of reasons erroneous in law – need to explain the facts found in respect of the evidence and the conclusions then reached

41. UKUT’s views It is not necessary for the reasons to mention all of the evidence… but it should… identify and resolve evidence and applications which are in dispute. It is not necessary for the reasons to mention all of the evidence… but it should… identify and resolve evidence and applications which are in dispute.

42. What ’ s wrong with a set of inadequate reasons? Difficult to discern precisely what the tribunal found Difficult to discern precisely what the tribunal found Leaves the patient second-guessing why the criteria for detention are satisfied Leaves the patient second-guessing why the criteria for detention are satisfied “ left in the dark ” as to evidential conclusion for statements made in the reasons. “ left in the dark ” as to evidential conclusion for statements made in the reasons. Poor reasons raise doubt as to whether tribunal has dealt fairly with the case Poor reasons raise doubt as to whether tribunal has dealt fairly with the case Article 5 considerations Article 5 considerations

43. R oao LV v (1)SofS for Justice and (2) Parole Board [2014] EWHC 1495 R oao LV v (1)SofS for Justice and (2) Parole Board [2014] EWHC 1495

44. S74 MHA Applies to those subject to transfer and restriction directions Applies to those subject to transfer and restriction directions LV had chaotic background and criminal history as well as mental illness LV had chaotic background and criminal history as well as mental illness Sentenced to indeterminate sentence for public protection Sentenced to indeterminate sentence for public protection Then transferred to hospital (St Andrews) after minimum period expired. Then transferred to hospital (St Andrews) after minimum period expired. 2 regimes running- sentence and MHA 2 regimes running- sentence and MHA

45. LV ’ s Tribunal Nothing more to be achieved at St Andrews Nothing more to be achieved at St Andrews Transfer to prison would be step backwards Transfer to prison would be step backwards Should move to “ step down ” hospital placement ” to monitor progress in reduced security and if S of S agrees with recommendation Tribunal will reconvene and see if conditions set for discharge were or could be met Should move to “ step down ” hospital placement ” to monitor progress in reduced security and if S of S agrees with recommendation Tribunal will reconvene and see if conditions set for discharge were or could be met

46. Tribunal to MoJ Had LV been subject to restriction order would have been entitled to CD (s74(1)(a) Had LV been subject to restriction order would have been entitled to CD (s74(1)(a) If not discharged should remain in hospital (rather than be returned to prison)(s74(1)(b)) If not discharged should remain in hospital (rather than be returned to prison)(s74(1)(b)) MoJ has 90 days in which to decide whether to discharge under MHA. MoJ has 90 days in which to decide whether to discharge under MHA. But what about the sentence? But what about the sentence?

47. Parole Board Policy in force at time was to refer for expedited hearing of parole board to consider suitability of release from hospital Policy in force at time was to refer for expedited hearing of parole board to consider suitability of release from hospital In fact hearing was not expedited due to use of wrong policy and took place almost 2 years after Tribunal In fact hearing was not expedited due to use of wrong policy and took place almost 2 years after Tribunal Parole Board did not direct release so CD could not take effect Parole Board did not direct release so CD could not take effect

48. s.74 MHA Restricted patients subject to restriction directions Restricted patients subject to restriction directions 74.—(1) Where an application to [the appropriate tribunal] is made by a restricted patient who is subject to [a limitation direction or] a restriction direction, or where the case of such a patient is referred to [the appropriate tribunal], the tribunal— 74.—(1) Where an application to [the appropriate tribunal] is made by a restricted patient who is subject to [a limitation direction or] a restriction direction, or where the case of such a patient is referred to [the appropriate tribunal], the tribunal— (a) shall notify the Secretary of State whether, in [its] opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and (a) shall notify the Secretary of State whether, in [its] opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and (b) if [the tribunal notifies] him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital. (b) if [the tribunal notifies] him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.

49. s.74 (cont.) (2) If in the case of a patient not falling within subsection (4) below— (2) If in the case of a patient not falling within subsection (4) below— (a) the tribunal [notifies] the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and (a) the tribunal [notifies] the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and (b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged, the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient. (b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged, the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.

50. s.74 (cont.) (3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall unless [the tribunal has]made a recommendation under subsection (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed. (3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall unless [the tribunal has]made a recommendation under subsection (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

51. s.74 (cont.) 4) If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal [notifies] the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless [the tribunal has] made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed. 4) If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal [notifies] the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless [the tribunal has] made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed. (5) Where a patient is transferred or remitted under subsection (3) or (4) above [the relevant hospital direction and the limitation direction or, as the case may be,] the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution. (5) Where a patient is transferred or remitted under subsection (3) or (4) above [the relevant hospital direction and the limitation direction or, as the case may be,] the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.

52. s.74 (cont.) [(5A) Where [the tribunal has] made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction- [(5A) Where [the tribunal has] made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction- (a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and (a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and (b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.] (b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.]

53. The Legal Framework if the MoJ does not discharge after Tribunal If LV had been serving a determinate sentence which was not completed- Tribunal recommendation would mean transfer back to prison, unless remains in hospital under s74(1)(b). Retains right to Parole hearing,s74(5A) If LV had been serving a determinate sentence which was not completed- Tribunal recommendation would mean transfer back to prison, unless remains in hospital under s74(1)(b). Retains right to Parole hearing,s74(5A) If had been serving determinate sentence which was completed- notional s37 If had been serving determinate sentence which was completed- notional s37 If serving indeterminate sentence and minimum period not completed- Tribunal recommendation would mean transfer to prison or remaining in hospital till the minimum period had expired. S74(5A) applies If serving indeterminate sentence and minimum period not completed- Tribunal recommendation would mean transfer to prison or remaining in hospital till the minimum period had expired. S74(5A) applies As LV ’ s minimum term had expired she would be referred to the Parole Board, given that the MoJ did not give notice that the discharge could take effect. As LV ’ s minimum term had expired she would be referred to the Parole Board, given that the MoJ did not give notice that the discharge could take effect.

54. LV ’ s complaints Breach of A5(4) because of delay in setting the hearing- court accepted wrong policy had been followed but LV had moved to step down hospital and other factors meant that there was no breach of requirement of speedy hearing Breach of A5(4) because of delay in setting the hearing- court accepted wrong policy had been followed but LV had moved to step down hospital and other factors meant that there was no breach of requirement of speedy hearing The Parole Board and the Tribunal were effectively considering the same issues ie risk arising from LV ’ s mental disorder The Parole Board and the Tribunal were effectively considering the same issues ie risk arising from LV ’ s mental disorder

55. The “ conceptual distinction ” Hospital order appropriate where the offending proceeds from mental disorder Hospital order appropriate where the offending proceeds from mental disorder In transfer and restriction patients, “ criminal responsibility subsists ”. In transfer and restriction patients, “ criminal responsibility subsists ”. The Tribunal considered risks arising from LV ’ s mental disorder; the Parole Board considers wider issues including her criminal history The Tribunal considered risks arising from LV ’ s mental disorder; the Parole Board considers wider issues including her criminal history No breach of Article 5 No breach of Article 5

56. Comment Useful mainly as a clear exposition of how this process works Useful mainly as a clear exposition of how this process works Is the “conceptual distinction” that clearcut? Is the “conceptual distinction” that clearcut?

57. TW v Enfield Borough Council [2014] EWCA Civ 362

58. Background TW was admitted to hospital under s3 in 2007 (before MHA was amended by 2007 Act) TW was admitted to hospital under s3 in 2007 (before MHA was amended by 2007 Act) NR was not consulted on basis not reasonably practical: TW did not wish family to be consulted and there was evidence that this would cause her distress. NR was not consulted on basis not reasonably practical: TW did not wish family to be consulted and there was evidence that this would cause her distress. S.139 required permission of the Court- refused by Bean J as claim bound to fail. It was not reasonably practical to consult NR because this would violate TW’s Article 8 rights S.139 required permission of the Court- refused by Bean J as claim bound to fail. It was not reasonably practical to consult NR because this would violate TW’s Article 8 rights

59. ASW’s conclusion ASW had consulted NR earlier who advised against attempting assessment. TW was distressed, made a complaint about breach of confidentiality and relationship with clinical team was affected. ASW had consulted NR earlier who advised against attempting assessment. TW was distressed, made a complaint about breach of confidentiality and relationship with clinical team was affected. TW accused family of assaults including sexual abuse TW accused family of assaults including sexual abuse ASW concluded not reasonably practical to consult NR ASW concluded not reasonably practical to consult NR

60. Judgment of Bean J: [2013] EWHC 1190 QBD Followed R(E) v Bristol City Council [2005] 1 MHLR 83 Followed R(E) v Bristol City Council [2005] 1 MHLR 83 Consultation must be real exercise Consultation must be real exercise Stressed the importance of patient’s Article 8 rights; subsequently reflected in Code of Practice: 4.60- 4.62 Stressed the importance of patient’s Article 8 rights; subsequently reflected in Code of Practice: 4.60- 4.62 ASW entitled to consider it was NOT reasonably practicable to consult NR where patient does not want contact to be made and distress may affect health. ASW entitled to consider it was NOT reasonably practicable to consult NR where patient does not want contact to be made and distress may affect health.

61. The judgment of the Court of Appeal Definition of “Practicable” must have sufficient elasticity to take account of different including urgent circumstances Definition of “Practicable” must have sufficient elasticity to take account of different including urgent circumstances Article 8 is qualified- interferences must be “in accordance with the law” and in pursuit of legitimate public end. Article 8 is qualified- interferences must be “in accordance with the law” and in pursuit of legitimate public end. Obligation to consult may cause conflict between rights under Article 8 and Article 5. Obligation to consult may cause conflict between rights under Article 8 and Article 5.

62. The judgment of the Court of Appeal Consultation with NR is vital safeguard Consultation with NR is vital safeguard The fact that there is an infringement of Article 8 rights does NOT automatically mean that there should be no consultation. The fact that there is an infringement of Article 8 rights does NOT automatically mean that there should be no consultation. ASW must “strike a balance between the patient’s Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient’s Article 8 right..” ASW must “strike a balance between the patient’s Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient’s Article 8 right..”

63. Comment This important case imposes a significant responsibility on an AMHP to weigh up patient’s Article 5 rights against the right to privacy. This important case imposes a significant responsibility on an AMHP to weigh up patient’s Article 5 rights against the right to privacy. The Court also commented that the Code of Practice does not reflect the law. The Court also commented that the Code of Practice does not reflect the law. The draft Code did not amend this but it is hoped the final version will! The draft Code did not amend this but it is hoped the final version will!

64. K (by his litigation friend) v The Hospital Managers of the Kingswood Centre (1) & Central and North West London NHS Foundation Trust (2) [2014] EWCA Civ 1322

65. Background K sought an order of habeas corpus. K’s mother, his nearest relative, had given notice by fax of her intention to discharge K. The Fax was addressed to the Mental Health Act Administrator marked “Private and Confidential To be opened by addressee only”. The administrator worked part-time and the notice did not come to her attention until after the 72 hours had expired.

66. Mental Health (Hospital Guardianship and Treatment Regulations 2008) Contain provisions for service under which the nearest relative’s discharge order can served by delivery to the authorised officer, pre-paid post or- with the agreement of the managers- internal mail. Notices sent by first class post deemed to have been served on the second business day following the day of posting; and on the fourth business day following the day of posting where second class post is used. No provision for service by (eg) fax or email.

67. The Challenge R(Modaresi) v Sof S for Health [2013] UKSC 53: “ It is the hospital which deprives the patient of her liberty. It is incumbent upon the hospital to do this in accordance both with the domestic law and with the patient's Convention rights. A failure which deprives the patient of the right of access to a tribunal which the law provides may well (I put it no higher) be a breach of the patient's Convention rights. The only safe course is to have a system which ensures that this does not happen.” R(Modaresi) v Sof S for Health [2013] UKSC 53: “ It is the hospital which deprives the patient of her liberty. It is incumbent upon the hospital to do this in accordance both with the domestic law and with the patient's Convention rights. A failure which deprives the patient of the right of access to a tribunal which the law provides may well (I put it no higher) be a breach of the patient's Convention rights. The only safe course is to have a system which ensures that this does not happen.”

68. The Court of Appeal The NR discharge power is a safeguard against arbitrary detention, but the barring process is also a safeguard The hospital was responsible for putting into place systems to deal with documents that are served using the methods set out in the regulations Where service is attempted using a method not specified in the regulations the risk is taken by the sender. Time started to run from when the Administrator actually received the notice.

69. NLv Hampshire County Council [2014] UKUT 475

70. The statutory background Powers of guardian under s8(1) Powers of guardian under s8(1) a) the power to require the patient to reside at a place specified by the authority or person named as guardian; a) the power to require the patient to reside at a place specified by the authority or person named as guardian; (b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; (b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; (c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, [approved mental health professional] [1] or other person so specified. (c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, [approved mental health professional] [1] or other person so specified.

71. The statutory background S72(4) places burden on patient: S72(4) places burden on patient: (4) Where application is made to [the appropriate tribunal] by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if [it is] [ satisfied— (4) Where application is made to [the appropriate tribunal] by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if [it is] [ satisfied— (a) that he is not then suffering from [mental disorder]; [ or (a) that he is not then suffering from [mental disorder]; [ or (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship. (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.

72. The Code of Practice 26.2 The purpose of guardianship is to enable patients to receive care outside hospital when it cannot be provided without the use of compulsory powers. Such care may or may not include specialist medical treatment for mental disorder. 26.2 The purpose of guardianship is to enable patients to receive care outside hospital when it cannot be provided without the use of compulsory powers. Such care may or may not include specialist medical treatment for mental disorder. 26.19 An application for guardianship should be accompanied by a comprehensive care plan established on the basis of multi-disciplinary discussions in accordance with the Care Programme Approach (or its equivalent). 26.19 An application for guardianship should be accompanied by a comprehensive care plan established on the basis of multi-disciplinary discussions in accordance with the Care Programme Approach (or its equivalent).

73. The Code of Practice 26.26 Guardians have the power to decide where patients should live. … 26.26 Guardians have the power to decide where patients should live. … 26.30 The power to require patients to reside in a particular place may not be used to require them to live in a situation in which they are deprived of liberty, unless that is authorised separately under the MCA. That authorisation will only be possible if the patient lacks capacity to decide where to live. If deprivation of liberty is authorised under the MCA, the LSSA should consider whether guardianship remains necessary, bearing in mind the guidance earlier in this chapter. 26.30 The power to require patients to reside in a particular place may not be used to require them to live in a situation in which they are deprived of liberty, unless that is authorised separately under the MCA. That authorisation will only be possible if the patient lacks capacity to decide where to live. If deprivation of liberty is authorised under the MCA, the LSSA should consider whether guardianship remains necessary, bearing in mind the guidance earlier in this chapter.

74. L’s case at FTT L had mild- moderate learning disabilities and was subject to guardianship. L had mild- moderate learning disabilities and was subject to guardianship. L appealed to FTT who refused to discharge. L appealed to FTT who refused to discharge. Parties agreed that L was deprived of his liberty and that the statutory criteria were met. Parties agreed that L was deprived of his liberty and that the statutory criteria were met. L sought discretionary discharge. L sought discretionary discharge. FTT refused relying on GA v Betsi Cadwaladr UHB [2013] UKUT (AAC) 0280 FTT refused relying on GA v Betsi Cadwaladr UHB [2013] UKUT (AAC) 0280

75. GA A decision that the statutory criteria are met involves a finding that treatment is “necessary”. A decision that the statutory criteria are met involves a finding that treatment is “necessary”. Any discretionary discharge must be consistent with this finding. Any discretionary discharge must be consistent with this finding. So there will only be exceptional cases where the statutory criteria are satisfied, but where there are sufficient safeguards to make a discretionary discharge logical and consistent with the reasoning. So there will only be exceptional cases where the statutory criteria are satisfied, but where there are sufficient safeguards to make a discretionary discharge logical and consistent with the reasoning.

76. L’s appeal to the UTT L argued that L argued that Guardianship does not authorise a deprivation of liberty Guardianship does not authorise a deprivation of liberty The burden should not be upon the patient The burden should not be upon the patient The Tribunal had misinterpreted GA The Tribunal had misinterpreted GA The local authority argued that guardianship was only relevant to whether L was free to leave: the other elements of control were part of his care plan The local authority argued that guardianship was only relevant to whether L was free to leave: the other elements of control were part of his care plan

77. The UTT’s decision The statutory powers given by guardianship are limited and it is “difficult to imagine” how they could be used in a way that deprives a patient of his/her liberty The statutory powers given by guardianship are limited and it is “difficult to imagine” how they could be used in a way that deprives a patient of his/her liberty It exists to provide framework for delivery of the care plan. The potential for DoL lay in the care plan. It exists to provide framework for delivery of the care plan. The potential for DoL lay in the care plan. In this case the guardianship order did not give rise to a DoL In this case the guardianship order did not give rise to a DoL

78. The UTT’s decision The reasoning in GA applies to guardianship and detention as well as CTOs: hard to imagine where there could be a discretionary discharge without appropriate safeguards The reasoning in GA applies to guardianship and detention as well as CTOs: hard to imagine where there could be a discretionary discharge without appropriate safeguards The wording of s72(4) places the legal burden on the patient because guardianship “is not designed to involve a deprivation of liberty” The wording of s72(4) places the legal burden on the patient because guardianship “is not designed to involve a deprivation of liberty” Tribunals don’t have to proceed on the basis of agreed concessions. Tribunals don’t have to proceed on the basis of agreed concessions.

79. Comment The GA point- Arguments that might have put for discretionary discharge might be better framed as challenges to the criteria of “necessity” (or justification for s2 cases) The GA point- Arguments that might have put for discretionary discharge might be better framed as challenges to the criteria of “necessity” (or justification for s2 cases) Endorses the approach that guardianship should not authorise deprivation of liberty Endorses the approach that guardianship should not authorise deprivation of liberty

80. But….. In this case it is understood that the restrictions etc in the care plan were not being enforced. In this case it is understood that the restrictions etc in the care plan were not being enforced. Remember limits on powers of those providing care: Remember limits on powers of those providing care: “The essential point for present purposes is that none of these sources of local authority engagement with someone like C confers on the local authority any power to regulate, control, compel, restrain, confine or coerce. They are concerned with the provision of services and support.” Per Lord Justice Munby, Re A and C [2010] EWHC 978 (Fam) “The essential point for present purposes is that none of these sources of local authority engagement with someone like C confers on the local authority any power to regulate, control, compel, restrain, confine or coerce. They are concerned with the provision of services and support.” Per Lord Justice Munby, Re A and C [2010] EWHC 978 (Fam)

81. So… Guardianship can be used for its statutory purposes. It gets the patient in the right place for the guardian to offer the services. Guardianship can be used for its statutory purposes. It gets the patient in the right place for the guardian to offer the services. If the care plan itself amounts to complete and effective control, the logic of this reasoning is it cannot be enforced using guardianship powers. If the care plan itself amounts to complete and effective control, the logic of this reasoning is it cannot be enforced using guardianship powers. But what about the compliant incapacitated patient- will guardianship now be used instead of applications to COP? But what about the compliant incapacitated patient- will guardianship now be used instead of applications to COP? C v Blackburn with Derwent BC [2011] EWHC 3321 C v Blackburn with Derwent BC [2011] EWHC 3321

82. Future Developments

83. Re X procedure Re X (Deprivation of Liberty) [2014] EWCOP 25 and ) set out “streamlined procedure” in applications under s16 MCA; Re X (Deprivation of Liberty) [2014] EWCOP 25 and EWCOP 37. ) set out “streamlined procedure” in applications under s16 MCA; Guidance on the information the court will need and “triggers” to join P and/or hold an oral hearing. Guidance on the information the court will need and “triggers” to join P and/or hold an oral hearing. Second judgment raises possibility of P being represented without a litigation friend (as under TPR 11(7)) Second judgment raises possibility of P being represented without a litigation friend (as under TPR 11(7))

84. Re X procedure COP implementing over 2 “phases” COP implementing over 2 “phases” Phase 1- new Practice Direction 10AA (currently deals only with s21A MCA appeals); new forms for applications, out in next few weeks Phase 1- new Practice Direction 10AA (currently deals only with s21A MCA appeals); new forms for applications, out in next few weeks New judges recruited from Social Entitlement Chamber (not HESC) New judges recruited from Social Entitlement Chamber (not HESC) Even though many cases will be uncontested will this lead to some contested hearings? Even though many cases will be uncontested will this lead to some contested hearings?

85. Re X litigation Applications for permission to appeal against judgments of Sir James Munby P in Re X. Applications for permission to appeal against judgments of Sir James Munby P in Re X. Points taken: whether P should always be a party where an application is made to deprive him/her of liberty and whether the default position should be an oral hearing. Points taken: whether P should always be a party where an application is made to deprive him/her of liberty and whether the default position should be an oral hearing. TLS and some individuals applied for permission; others may join. TLS and some individuals applied for permission; others may join.

86. The Care Act 2014 Over-arching test of well-being, broadly defined and includes personal dignity, the person’s control over their life and contribution to society A national eligibility standard (not set locally as now) A real change to the position of carers: Defined as “an adult who provides or intends to provide care for another adult” (s10(3)) Has the same right as a service user to assessment, services if they meet eligibility criteria.

87. The Care Act 2014 and s117 A defiinition of after-care: “After- care services means services which have both of the following purposes a. meeting a need arising from or related to the person’s mental disorder ( and they make it clear that this means one or more disorders and not necessarily the md for which the person was detained)”, and

88. The Care Act 2014 and s117 b.reducing the risk of a deterioration of the person’s mental condition ( and accordingly, to reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder” NOTE Draft Code: 33.4: CCGs and local authorities should interpret the definition…broadly..aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs.

89. The Care Act and s117 The relevant local authority will be the local authority for the area in England or Wales where the patient was “ordinarily resident” before he was detained: s117(3). Disputes can be resolved by the Secretary of State rather than requiring JRs

90. “Stronger Code: Better Care” Consultation on re-written Code New Guiding Principles: empowerment and participation – ensuring that patients, their families and carers are fully involved in decisions about care, support and treatment least restrictive option and maximising independence – all care, support and treatment should wherever possible be as least restrictive as possible, ensuring the autonomy of the patient

91. “Stronger Code, Better Care” respect and dignity – ensuring that patients, their families and carers are listened to by professionals and included in decisions about care and treatment purpose and effectiveness – decisions about care and treatment must be appropriate to the patient, must be performed to national guidelines and standards and must be expected to work, and efficiency and equity – the quality of commissioning and provision of care services should ensure that all professionals involved in a patient’s care are involved and that physical, mental health and social care needs are equally considered.

92. “Stronger Code, Better Care” New Chapter 34 on care planning: New Chapter 34 on care planning: The CPA should be used for individuals who are at high risk of suffering a deterioration in their mental condition and who need: multi-agency support active engagement intense intervention, and/or support with dual diagnoses.

93. Questions? Tam Gill & Sophy Miles November 2014 © MHLA / Gledhill Solicitors / Miles & Partners