Consultation – backing no horses, and the importance of interim relief

_69067404_daycentreprotestLH, R (o.t.a) v. Shropshire Council  [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014  - read judgment

Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of  ex parte Baker there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.  

In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness. 

The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.

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How to be fair about transfer to Broadmoor

hospitalR (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment

Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.

L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.

So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.

But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.

Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.

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Supreme Court weighs in on patient’s best interests and the meaning of futility

Surgeons-007Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary

The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005.  The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.

The case concerned best interests decisions in the case of a patient lacking capacity.  The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure.  He was admitted to the critical care unit and placed on a ventilator.

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You can’t be disabled when you’re dead – a footnote to R (Antoniou)

hospital

A somewhat curious additional point arises out of the case of R (Antoniou) – see my earlier post for the main issue – in which the court decided that Article 2 ECHR does not require an independent investigation into deaths in state detention prior to a coroner’s inquest. There was therefore no obligation to ensure that there was an independent investigation into the suicide, or death resulting from self-harm, of a mentally ill person detained under Section 3 of the Mental Health Act 1983. There is such an investigation when a prisoner commits suicide. The Claimant thought this smacked of discrimination against the mentally disabled. The Court disagreed – on the somewhat surprising ground that you can’t be disabled once you’re dead.

Where a prisoner commits suicide, or dies as a result of self-harm, there will be an independent investigation from the outset. Any death in prison or in probation custody is automatically referred immediately to the Prisons and Probation Ombudsman for independent investigation. The Independent Police Complaints Commission performs a similar role for deaths in police, immigration or Customs & Excise detention. There is no equivalent independent investigator of deaths in mental health detention, which are investigated by the hospital where they occurred. The Claimant said this distinction discriminates between people who are mentally disabled and those of sound mind.

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Health protection “not a warrant for lifestyle fascism”

Cigarette_smokeCM, Re Judicial Review [2013] CSOH 143 – read judgment

The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.

The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds.  He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.

The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him. Continue reading

Mental health detention powers must be reviewed urgently, says Parliamentary Committee – Lucy Series

Screen Shot 2013-08-14 at 09.57.43The House of Commons Health Committee has published a report (PDF) following its inquiries into the Mental Health Act 2007.  The MHA 2007 introduced several amendments to the Mental Health Act 1983 (MHA, as amended), some of which were very controversial at the time and continue to be so now.  The Health Committee’s report follows post-legislative scrutiny of the legislation by its parent department

The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself.  Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.

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High level Parliamentary committee asks whether mental capacity laws are working

Screen Shot 2013-07-03 at 09.23.12

Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).

The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”

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Closing the loophole: Care services and human rights protection – Sanchita Hosali and Helen Wildbore

Care homeMuch of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”

What loophole?

Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.

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New Guide to Mental Health Advocacy and Human Rights

Screen Shot 2013-05-15 at 22.31.48A quick post to draw your attention to the British Institute of Human Rights’ excellent  new publication, Mental Health Advocacy and Human Rights: Your Guide (PDF).

The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:

This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems.  This guide has been produced with Mind Brighton and HoveWish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.

Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.

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Court of Protection approves arrangements for safeguarding Article 8 rights of detained man

Court of protectionJ Council v GU and others [2012] EWHC 3531 (COP) – Read judgment

 On 11 December 2012 Mr Justice Mostyn handed down judgment in J Council v GU and others [2012] EWHC 3531 (COP) approving arrangements aimed at safeguarding the Article 8 (private and family life) rights of a 57 year old man detained under the Mental Capacity Act 2005 in a private care home. At seven pages, the judgment was admirably concise.

The detained man concerned, referred to in the judgment as George, suffered from a number of separable mental disorders: childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. He lacked the capacity to litigate or to make decisions concerning his care needs (including where he lives), medication he should take, contact he should have with others and about his finances, property and affairs. It was likely that this incapacity would continue, possibly for the remainder of his life. He lived in a private care home and it was agree by all, including the Official Solicitor (who represented George in the proceedings) that it was in his best interests for him to remain living there indefinitely. Furthermore, he should be subjected to restrictions in relation to his contact with others and correspondence in order to minimise the risks that he presented.

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VIDEO: Dignity, Death and Deprivation of Liberty – Human Rights in the Court of Protection

Last month 1 Crown Office Row hosted a fascinating panel debate on the Court of Protection and the incredibly difficult issues surrounding assisted dying.  The panel included Philip Havers QC, the philosopher A.C. Grayling and Leigh Day & Co.’s  human rights partner Richard Stein. You can now view the video here or below. Also see here for Rosalind English’s report of the event.

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Back in the spotlight: the detention of mentally ill asylum seekers

R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – read judgment

1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case.  He is not the writer of this post.

The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.

The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events.  The Home Secretary refused the application and the Claimant appealed.  At the appeal he was unrepresented and he adduced no medical evidence.  The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.

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Failure to stop disability harassment is inhuman treatment, rules Strasbourg

Attitudes changing, slowly

DORDEVIC v. CROATIA – 41526/10 – HEJUD [2012] ECHR 1640 – read judgment

The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.

It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life.  The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.

This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.

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Should we be using ‘special’ offences to prosecute crimes against disabled people? – Lucy Series

Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA).  In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences. 

The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion EuropeEuropean Disability Forum).  So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?

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BC Supreme Court grasps the nettle in right to die case

Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment

Interest in the “locked-in syndrome” cases currently before the High Court runs high.  We posted here on the permission granted to locked-in sufferer Tony Nicklinson  to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.

He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)

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