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  1. Introduction to the course and reading 16 items
    The course will introduce students to the principles underpinning the law relating to people with mental disabilities, of whatever nature, and will consider the rationale and possible justification for these special legal provisions. It will examine the relationship between mental health law and the law relating to those who lack mental capacity and will set the discussion in the context of developments in both European and international human rights law. It will provide students with an overview of the evolution and structure of the relevant legal provisions in England and Wales, and will equip them with the background necessary to understand the human rights, policy and clinical dilemmas raised. The reading in this section is both the two core texts (Mental Health Law and Mental Capacity: Law and Practice) and readings of general relevance throughout the term.
    1. Seminar schedule

      25 September      Introduction

      2   October          Mental Health Law in context, international human rights

      9 October             Basic legal structures: 1983 Act: admission

      16 October          Basic legal structures: 1983 Act: treatment in hospital

      23 October          Treatment and Control of Patients in the Community

      30 October           Reading week

      6  November        Discharge from compulsory powers: tribunals (Sophy Miles)

      13 November       Capacity/incapacity: domestic and international implications

      20 November       MCA, principles, best interests and treatment

      27 November       The Bournewood problem, DoLS and the MCA/MHA interface

      4   December       The role of the Court of Protection

      11 December       Parallel structures: could it/should it be any other way?

       

    2. How to use this reading list

       

      The materials set out in this introductory section include the two core texts: Mental Health Law and Mental Capacity: Law and Practice.  The books/articles included in the rest of this section will be of general relevance throughout the course, with those marked 'additional' for those who wish to look further than the 'recommended' texts.   Amongst the recommended overview texts, I suggest that you identify which of the styles of the authors you prefer and pick one to dip into to provide a counterpoint to the two core texts. 

       

      For each seminar I provide an outline of the core reading, as well as questions for you when reading.  In some weeks there will be a number of cases to look at which are highlighted under the "case law" section for that week.

       

      The remainder of the reading set out each week will usually be articles, and will usually be additional rather than recommended.  It provides material for further exploration of particular issues that will be thrown up. 

    3. Core reading 2 items
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core This is the core text for the entire course, covering not just mental health law which we focus on in the first half, but also mental capacity, the focus of the second half

      2. Mental Capacity: Law and Practice - Gordon R. Ashton, Marc Marin, Jonathan Baker 2018

        Book Core This book will be of core importance in the second half of the course, but you may want to have reference to it earlier in the course if you need more detail than Lady Hale's Mental Health Law work gives

    4. Recommended reading 7 items
      1. Mental health: law and practice - Phil Fennell c2011

        Book Recommended If you want an alternative to Hale (2017), in particular on the Mental Health Act 1983, I recommend this book. Even though it is now slightly out of date in some respects, it is very clearly and simply written and serves as an excellent introduction.

      2. Mental Health Act Manual - Richard Jones 2018

        Book Recommended This is the standard text used by psychiatrists and social workers implementing the MHA in practice. A new edition comes out yearly in (usually) October

      3. Mental Capacity Act manual - Richard M. Jones 2016

        Book Recommended As with Jones' Mental Health Act Manual, this book is an annotated version of the relevant Act (here the MCA 2005) as opposed to a standard textbook. It is, however, useful for commentary on specific provisions. A health warning, though, that Jones' views should sometimes be taken with a pinch of salt as he has very specific perspectives on matters, especially those relating to deprivation of liberty.

      4. Healthcare decision-making and the law: autonomy, capacity and the limits of liberalism - Mary Donnelly 2010

        Book Recommended This is a very useful, and thoughtful, consideration of key aspects of decision-making in the context of healthcare which serves as a useful companion to e.g. Ashton et al (2015) to those who want to read into the subject in more detail.

      5. A new era for mental health law and policy: supported decision-making and the UN Convention on the Rights of Persons with Disabilities - Piers Gooding 2017

        Book Recommended This book provides a very good overview of the challenges of (and for) the CRPD in the context of mental health law.

      6. Men in white coats: treatment under coercion - George Szmukler 2018

        Book Recommended A short but comprehensive review of mental health and mental capacity law from the perspective of a strong proponent of the 'fusion' between mental health and mental capacity law.

      7. Madness, distress and the politics of disablement - Helen Spandler, Jill Anderson, Bob Sapey 2015

        Book Recommended This book is particularly interesting for the nuanced perspectives that it sheds on the debates about psychiatric treatment in the post-CRPD world, including (rare) discussion of the distinctions within the disability community regarding the import of the CRPD.

    5. Additional reading for further exploration 5 items
      1. Mental health law: policy and practice - Peter Bartlett, Ralph Sandland 2014

        Book Additional This is a much denser, more difficult, but more detailed work than e.g. Hale (2017) or Fennell (2011), but some may find it useful to delve deeper into the issues.

      2. Principles of mental health law and policy - Lawrence O. Gostin 2010

        Book Additional This book contains much more in-depth discussion on key issues than those contained in texts designed in the first instance for students or those who have to apply the law in practice. You may though want to consult it if you have a particular interest in a specific aspect of the areas that we cover during the course.

      3. Seminal issues in mental health law - Jill Peay 2005

        Book Additional Although now quite old, this book gathers together key essays in the field of mental health law, including foundational studies of the very point and purpose of law in the mental health context.

      4. Mental health and human rights: vision, praxis, and courage - Michael Dudley, Derrick Silove, Fran Gale 2012

        Book Additional This is an enormous collection of essays tracing the interaction (and histories) of mental health and human rights law, on the global plane. You are most likely to find yourself dipping into specific chapters to investigate matters of particular interest.

      5. Shunned: discrimination against people with mental illness - Graham Thornicroft 2006

        Book Additional This book contains detailed and valuable insights as to what discrimination actually means in relation to those with mental illness, and provides an important part of the context within which the legal framework sits.

  2. Introduction to the Law 3 items
    Those with no previous background in law may find the following introductory works of assistance.
    1. A really basic introduction to English law and the English legal system - Michael A. Lambarth 2015

      Book Recommended This a cheap and VERY basic introduction to the English legal system.

    2. Learning legal rules: a students' guide to legal method and reasoning - James A. Holland, Julian S. Webb 2016

      Book Recommended

    3. The Law Machine - Marcel Berlins, Clare Dyer 2000

      Book Additional

  3. Web resources 1 item
    There are a number of useful web resources which I recommend you use to keep yourself up to date in an area in which law continues to change rapidly
    1. For Mental Health Act updates see:
      http://www.mentalhealthlaw.co.uk/Main_Page

      For Mental Capacity Act developments see 39 Essex Chambers Mental Capacity Report published monthly (free)
      http://www.39essex.com/tag/mental-capacity-newsletter/ 

      Almost all cases with citation "EWCOP" – i.e. Court of Protection cases are summarised and commented upon in the 39 Essex Chambers database available here: http://www.39essex.com/cop_cases/

  4. Seminar 1: Introduction 0 items
    There are no slides or reading for this week, which is a general introduction to the course and the approach we intend to take, as well as a chance to identify and appreciate the different backgrounds and perspectives students (and I) bring to the issues that we will cover.
  5. Seminar 2: Mental Health Law in Context 17 items
    In the opening week of the body of the course, we will look at the nature and ambit of mental health law; its framework - civil, criminal and community provisions - and the informal basis on which most interactions between doctors and psychiatric patients take place. We will look at the question of coercion. We will examine what public policy objectives underlie mental health law. We will also consider the relevance of the European Convention on Human Rights and UNCRPD, to which we will return throughout the course.
    1. Reading

       

      The core reading for this week is two chapters from Mental Health Law, and chapter 3 from Gooding setting out the core challenges to conventional mental health law.

       

      There are then a range of articles addressing both the realities of mental health law in practice (e.g. the article by Burns et al on coercion) and articles looking at mental health law from the perspective both of the ECHR and the UNCRPD.  The literature in relation to the UNCRPD in particular is growing rapiidly (a good overview can be found in Gooding):  the reading list contains articles written by both proponents and sceptics (Degener and Flynn/Arstein-Kerslake) and sceptics (Kelly).  Please try to look at at least one of each.  We will return to these issues in the last week.

       

      You should also note that the Committee on the Rights of Persons with Disabilities concluded its scrutiny of the United Kingdom in October 2017, holding that both the MHA 1983 and the MCA 2005 were incompatible with the CRPD.  We will return to their Concluding Observations (which you can find here: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fGBR%2fCO%2f1&Lang=en in the last week.

       

      To get an idea of the split in Geneva between UN bodies as to the lawfulness of compulsory detention and treatment, you should review the briefing by the MHJ/EAP: "Is Involuntary Placement and Non-Consensual Treatment Ever Compliant with UN Human Rights Standards?": https://autonomy.essex.ac.uk/wp-content/uploads/2018/01/EAP-UN-Survey.pdf

       

      Note finally that an independent review into the Mental Health Act (and its surrounding practices) is under way at present, and its interim report can be found here: https://www.gov.uk/government/publications/independent-review-of-the-mental-health-act-interim-report

    2. Questions for you in reading

       

      Why do we have a distinct statutory framework in relation to mental health?

       

      What is/should be included in the notion of mental disorder for the purposes of mental health law?

       

      How does mental health law relate to other similar areas of law, including the law relating to physical health care and to adults who lack mental capacity?

       

      What aspects of the ECHR are most relevant to mental health law?

       

      What is the relevance of the UN Convention on the Rights of Persons with Disabilities?

    3. Core reading 2 items
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core For this week, please read chapters 1 and 2. Where this starts to get into the detail of specific mechanisms such as (for instance) the Deprivation of Liberty Safeguards, you can skim as we will be returning to these in detail in the relevant week

      2. A new era for mental health law and policy: supported decision-making and the UN Convention on the Rights of Persons with Disabilities - Piers Gooding 2017

        Book Core This book provides a very good overview of the challenges of (and for) the CRPD in the context of mental health law. For this week, chapter 3 is of particular relevance.

    4. Recommended reading 4 items
      1. Taking Stock - Brenda Hale 08/09/2014

        Article Recommended Based on a prescient lecture by Hale in 2009.

      2. Editor's foreword - Theresia Degener 03/2017

        Article Recommended

    5. Additional reading for further exploration 9 items
      1. Violence and abuse against people with disabilities: A comparison of the approaches of the European Court of Human Rights and the United Nations Committee on the Rights of Persons with Disabilities - Oliver Lewis, Ann Campbell 07/2017

        Article Additional Despite its title, the article in fact serves as a useful recent overview of the role of the ECHR in mental health law.

      2. Pressures to adhere to treatment ('leverage') in English mental healthcare - T. Burns, K. Yeeles, A. Molodynski, H. Nightingale 01/08/2011

        Article Additional A useful article to get you thinking about coercion and leverage

      3. Paternalism v. autonomy - are we barking up the wrong tree? - Peter Lepping, Tom Palmstierna, Bevinahalli N. Raveesh 01/08/2016

        Article Additional

      4. Domestic legislation and international human rights standards: the case of mental health and incapacity - Jill Stavert, Rebecca McGregor 02/01/2018

        Article Additional This article is useful in placing the issues in a wider context, looking in particular at the right to mental health

  6. Seminar 3: The Basic Legal Structure of the 1983 Act: Admission 13 items
    This week will we look at the statutory framework and the criteria for compulsory admission to hospital. We will look at the distinction between admission for assessment and admission for treatment. We will consider emergency admission procedures and safeguards (including those required by the ECHR). We will consider the possible justifications for involuntary admission. We will look at some implications of compulsory powers eg s117 MHA and art 2 ECHR, and whether the very idea of compulsory treatment contravenes the CRPD.
    1. Reading

      The core reading this week is chapter 4 of  Mental Health Law. You will then need to look at the key domestic and Strasbourg cases outlined below.

      The other materials look at different aspects of compulsion and monitoring, except for the work by Peay (2003) provides a very interersting sideways look at how lawyers, psychiatrist and social workers actually reach decisions in the mental health context.

    2. Questions for you in reading

       

      Consider the criteria for admission under sections 2 and 3. What are the crucial differences?

       

      What public policy objectives appear to underlie the criteria for admission? Do they provide adequate justification?

       

      What are the merits/demerits of a professional model of decision making?

       

      What safeguards are provided to the patient by the admission procedures of the 1983 Act?

       

      What are the advantages/disadvantages of compulsion from the patient's point of view?

       

      Can – or should – a person be able to consent to admission as an informal patient?

       

      Is compulsory admission always incompatible with the CRPD?

    3. Case law

      Winterwerp v The Netherlands (1979-80) 2 EHRR 387

      For cases on the admission process see:

      TTM v Hackney LBC  [2011] EWCA Civ 4;

      R(GP) v Derby City Council and Derbyshire Mental Health NHS Foundation Trust [2012] EWHC 1451 (Admin) - notifying NR

      TW v Enfield LBC [2014] EWCA Civ 362 - notifying NR

      Lee-Hirons v S of S Justice [2016] UKSC 46 – reasons for recall of restricted patient.

      Note implications of s.139: Seal v UK [2011] MHLR 1

      On the advantages/disadvantages of compulsion compare:

      Rabone v Pennine Care NHS Trust[2012] UKSC 2

      and

      Savage v. South Essex Partnership N.H.S. Foundation Trust [2009] 2 WLR 115 (HL)

      See the Strasbourg take: Hiller v Austria (November 2016)

      For the Strasbourg court's view of seclusion see

      Munjaz v UK  [2012] ECHR 1704

    4. Other materials

      The most current admission and detention statistics can be found at

      http://www.hscic.gov.uk/home annual tables are published in October

       

      You should also have a look at (at least) Chapter 1 of the 2015 (England) version of the Mental Health Act Code of Practice,

      https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/435512/MHA_Code_of_Practice.PDF

       

      To get an idea of the split in Geneva between UN bodies as to the lawfulness of compulsory detention, you should review the briefing by the MHJ/EAP: Is Involuntary Placement and Non-Consensual Treatment Ever Compliant with UN Human Rights Standards? https://autonomy.essex.ac.uk/wp-content/uploads/2018/01/EAP-UN-Survey.pdf

    5. Core reading 1 item
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core For this week, please read chapter 4

    6. Recommended reading 4 items
      1. 'Rabone' and four unresolved problems in mental health law - George Szmukler, Genevra Richardson, Gareth Owen 01/09/2013

        Article Recommended

      2. A new tool to assess compliance of mental health laws with the convention on the rights of persons with disabilities - Marion Byrne, Ben White, Fiona McDonald 05/2018

        Article Recommended This represents a rigorous attempt to set up a framework to assess the compliance of mental health laws with the CPRD

    7. Additional reading for further exploration 4 items
      1. Hospitalisation and compulsion: the research agenda - Tom Burns, Jorun Rugkasa 01/08/2016

        Article Additional

      2. The futility of risk prediction in psychiatry - Roger Mulder, Giles Newton-Howes, Jeremy W. Coid 01/10/2016

        Article Additional This article is a useful summary of the well-known difficulties in assessing whether a person is actually at risk of taking their own life: a key justification for admission

      3. Psychiatric hospitalisation and the risk of suicide - Matthew Michael Large, Nav Kapur 05/2018

        Article Additional This article looks at the risk of suicide caused by the very fact of detention.

  7. Seminar 4: The Basic Legal Structure of the 1983 Act: Treatment in Hospital 11 items
    The structure of Part IV of the 1983 Act. Treatment for mental disorder. This week we will look at the distinctions between various treatments and their possible justifications. We will also look the role of second opinions. We will consider the relevance of the ECHR.
    1. Reading

      The core reading this week is chapter 6 of Mental Health Law.  You should also have a look at sections 56-64 of the Mental Health Act 1983 and familiarise yourself with the case-law set out in the next section.

    2. Questions for you in reading

       

      Under the Mental Health Act, what treatments require both consent and a second opinion; what treatment requires consent or a second opinion; and what treatment does not require either consent or a second opinion? What are the justifications for these divisions?

       

      What do you understand by treatment for mental disorder?

       

      Why should a different legal test apply when making decisions to administer compulsory treatment to detained mental patients to the tests applied to patients who are not so detained?

       

      Why should different legal principles be applied to mental as opposed to physical disorder?

       

      Why should the Tribunal have such limited powers in relation to medical treatment?

       

      What is (or should be) the impact of the CRPD here?

       

      Also bear in mind the background arguments covered last week. We will be returning to some of these issues in later weeks.

    3. Case law

       

      On treatment for "mental disorder" see:

       

      B v Croydon Health Authority [1995] 1 All ER 683 

      Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762

      St George's Healthcare NHS Trust v S (No 2) [1999] Fam 26

      NHS Trust v Dr A [2013] EWHC 2442 (COP)

      Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC (CoP) 1317. For comments see the 39 Essex Street Newsletter for May and June 2014 at http://www.39essex.com/tag/mental-capacity-newsletter/

       

      Medical treatment and the interface between the two Acts is also raised in

      Betsi Cadwalader [2016] EWCOP 13, Cambridge University Hosp [2016] EWCOP 26 and Cheshire and Wirral Partnership Trust [2016] EWCOP 56

        

      On the compulsory treatment of patients who retain capacity and the relevance of arts 3, 8 and 14 ECHR see:

       

      Herczegfalvy v Austria (1992) 15 EHRR 437

      Nevmerzhitsky v Ukraine [2005] ECHR 210

      R (on the application of B) v S (RMO Broadmoor Hospital) (2006) EWCA Civ 28

      R (on the application of B) v Haddock (RMO) [2006] EWCA Civ 961

      X v Finland [2012] ECHR 1371 – non-compliance with art 8(2)

      MS v Croatia (no2) [2015] ECHR 196 – non-compliance art 3 (restraint)

       

      On the limits of the Tribunal's powers see

      SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC)

       

      For a  "stress test" of the treatment provisions of the MHA 1938, you should also look at pp 62-71 in Council of Europe Committee for the Prevention of Torture and Inhuman and Degrading Treatment (2017) "Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degreading Treatment or Punishment (CPT) from 30 March to 12 April 2016"  (available at https://rm.coe.int/168070a773).  The Government's response can be found here https://rm.coe.int/pdf/168077fa13

    4. Other materials

      To get an idea of the split in Geneva between UN bodies as to the lawfulness of compulsory treatment, you should review the briefing by the MHJ/EAP: Is Involuntary Placement and Non-Consensual Treatment Ever Compliant with UN Human Rights Standards? https://autonomy.essex.ac.uk/wp-content/uploads/2018/01/EAP-UN-Survey.pdf

       

    5. Core reading 1 item
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core The key chapter for this week is chapter 6

    6. Recommended reading 3 items
      1. Violence and abuse against people with disabilities: A comparison of the approaches of the European Court of Human Rights and the United Nations Committee on the Rights of Persons with Disabilities - Oliver Lewis, Ann Campbell 07/2017

        Article Recommended The title of this article is slightly misleading, because it also includes a review of the ECtHR jurisprudence about compulsory treatment.

      2. A new tool to assess compliance of mental health laws with the convention on the rights of persons with disabilities - Marion Byrne, Ben White, Fiona McDonald 05/2018

        Article Recommended This represents a rigorous attempt to set up a framework to assess the compliance of mental health laws with the CPRD

    7. Antipsychotics: is it time to introduce patient choice? - Anthony P. Morrison, Paul Hutton, David Shiers, Douglas Turkington 01/08/2012

      Article Additional

    8. Lessons from export to New Zealand of the second opinion appointed doctor scheme - John Dawson, Paul Glue, Pete M. Ellis, Jessie Lenagh-Glue 01/04/2015

      Article Additional

  8. Seminar 5: The Basic Legal Structure of the 1983 Act: Treatment and Control of Patients in the Community 11 items
    This week we look at the provisions introduced in 2007 for supervised community treatment, their rationale and how they are working. We will look at their relationship with existing community powers. We will also look at how the courts have interpreted these powers
    1. Reading

      The core reading this week is Chapter 7 of Hale (2017) and the article by Mat Kinton and Tom Burns.  Please also read the Court of Appeal's decision in Welsh Minsters v PJ [2017] EWCA Civ 194.

       

      On the research base, in addition to the articles outlined below, see also the study by Churchill et al (2007) International Experiences of using Community Treatment Orders, pdf avaiable by email.  See also the US experience set out in the final report of the New York State Assisted Out-Patient Treatment Programme at: http://www.macarthur.virginia.edu/

       

      The most recent (November 2018) research review can be found in Barnett et al: https://www.mentalhealthexcellence.org/compulsory-community-treatment-to-reduce-readmission-to-hospital-and-increase-engagement-with-community-care-in-people-with-mental-illness-a-systematic-review-and-meta-analysis/. 

       

    2. Questions for you in reading

       

      What underlay the drive to include community treatment provisions?

       

      Do the community treatment provisions work?

       

      Do – or should – they provide a basis for detention outside hospital?

       

      How, and why, do community powers operate differently in relation to those with or without capacity?

    3. Core reading 3 items
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core The key chapter this week is chapter 7

      2. Community treatment orders: background and implications of the OCTET trial - Tom Burns, Andrew Molodynski 01/02/2014

        Article Core The most important study of the effectiveness (or otherwise) of CTOs

    4. Recommended reading 6 items
      1. Pressures to adhere to treatment ('leverage') in English mental healthcare - T. Burns, K. Yeeles, A. Molodynski, H. Nightingale 01/08/2011

        Article 

      2. Community Treatment Orders - Kris Gledhill 08/09/2014

        Article Recommended This article sets out some of the key arguments for and against CTOs, written just as they were introduced

      3. This strange republic of the good: Community treatment orders and their conditions - David Hewitt 08/09/2014

        Article Recommended On the conditions that can be attached to CTOs

      4. Lawfulness of preventive recall from a community treatment order - John Dawson 01/04/2015

        Article Recommended Addressing grounds for recall

      5. Little evidence for community treatment orders - a battle fought with heavy weapons - Reinhard Heun, Subodh Dave, Paul Rowlands 01/06/2016

        Article Recommended A useful review of the evidence for/against CTOs

      6. The use of community treatment orders in competent patients is not justified - Giles Newton-Howes, Christopher James Ryan 05/2017

        Article Additional An argument that CTOs should only be used in relation to patients with capacity to consent to the conditions

  9. Seminar 6: Discharge from Compulsory Powers: Tribunals 10 items
    This week's seminar will be delivered by a guest Lecturer, Sophy Miles, barrister and Mental Health Tribunal Judge. It will look at the statutory framework for release in the case of patients detained under Part II: nearest relative, RMO, hospital managers, MHRT/MHT. It will also look at the composition and role of the MHRT/MHT, the statutory criteria and their application in practice.
    1. Reading

      The core reading this week is chapter 8 of Mental Health Law.  You should also review at least some of the cases set out in the next section.

    2. Questions for you in reading

       

      What is the essential structure for release from hospital and how has that structure evolved?

       

      What is the constitution and role of the MHT/MHRT? What is it designed to achieve?

       

      What policy objectives underlie the statutory discharge criteria? How are they applied in practice by the tribunal?

       

      How adequate a safeguard does the law provide for patients? For the public?

    3. Case law

      There is an extensive case law here but much of it is concerned with patients detained through the criminal courts. On the ECHR you should note:

       

      Winterwerp v The Netherlands (1979) 2 EHRR 387

       R v MHRT, on the application of H [2001] EWCA Civ 415 (CA 28 March 2001)

      Hutchison Reid v UK [2003] 37 EHRR 9 

      MH v UK [2014] 58 EHRR 35

      MS v Croatia [2015] ECHR 196 - legal represenation

       

      On the role of managers see: South Staffordshire and Shropshire Healthcare NHSFT v Hospital Managers of St George's Hospital [2016] EWHC 1196 (Admin)

       

      On transfers see

      EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701

      R. (on the application of L) v West London Mental Health NHS Trust [2014] EWCA Civ 17

      YZ v NHS Trust 1 [2017] EWCA Civ 203

       

      Public hearing

      AH v West London MHT [2010] UKUT 264 and final decision [2011] UKUT

       

      On the role of representation before the Tribunal, see

      YA v Central and NW London NHS Trusts and Others  [2015] UKUT 37 (AAC)

        

      On conditional discharge, see

      Secretary of State for Justice v MM [2017] EWCA Civ 194 (note, this has been appealed to the Supreme Court, and its judgment is likely to be delivered during the course of the term).

       

    4. Core reading 1 item
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core The key chapter this week is Chapter 8

    5. Additional reading for further exploration 6 items
      1. Delayed discharge from intellectual disability in-patient units - John Devapriam, Satheesh Gangadharan, Judith Pither, Matthew Critchfield 01/10/2014

        Article Additional

      2. Is There a Burden of Proof in Mental Health Cases? - Jeremy Cooper, Howard Davis 08/09/2014

        Article Additional

      3. Doctors on tribunals: A confusion of roles - Genevra Richardson, David Machin 2000-2-1

        Article Additional

      4. Patients' awareness of the mental health tribunal and capacity to make requests - Nuwan Galappathie, Rajendra Kumar Harsh, Matthew Thomas, Amina Begum 01/11/2013

        Article Additional

  10. Seminar 7: Capacity/Incapacity: the Legal Implications 13 items
    This week we will look at the legal implications of mental incapacity. We will look at the definition of capacity at common law and its evolution in MCA. We will look at the clinical assessment of capacity and the application of incapacity to psychiatric disorders. We will also start to look at incapacity and detention and the CRPD context.
    1. Reading

      The core reading this week is Mental Health Law: chapter 2 (to refresh) and Chapter 10. You should also review at least some of the cases set out in the next section.

       

      For this and the following weeks you will find it helpful to refer to the 39 Essex Chambers Mental Capacity Report:  http://www.39essex.com/tag/mental-capacity-newsletter/

       

      For an extremely interesting commentary on the MCA from the perspective of an Australian judge (in the context of ECT treatment), see the decision in PBU v NJE v Mental Health Tribunal [2018] VSC 564: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/564.html#fnB283.

       

       

    2. Questions for you in reading

       

      How is incapacity defined in the common law and in the MCA?

       

      In the context of medical treatment what implications flow from a finding of incapacity? What is the "ethical" basis for this position? What is the relevance of the CRPD?

       

      How is incapacity assessed in practice?

       

      How well can the current legal notion of incapacity be applied to psychiatric disorders?

       

      How did the common law principle of necessity apply to detention in hospital?

    3. Case law

       

      Common Law

      Re T (Consent to Medical Treatment)(Adult Patient) [1993] Fam 95

      Re C (Refusal of Medical Treatment) [1994] 1 FLR 31 For a more recent version see Heart of  England NHS Foundation Trust v JB [2014] EWHC 342 (COP)

      Re MB (Caesarean Section) [1997] 2 FCR 541

       

      MCA: the case law here is expanding fast. Selected highlights:

       

      A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, Mr A [2010] EWHC 1549 (Fam) - capacity and contraception

       

      CC v KK, STCC [2012] EWHC 2136 (COP) - capacity to return home

       

      PC v City of York Council [2013] EWCA Civ 478 - capacity to co-habit and s2/3.

       

      Re SB (A patient: capacity to consent to termination) [2013] EWHC 1417 (COP)

       

      RB v Brighton and Hove Council [2014] EWCA Civ 561 - use and weigh in the CA.

       

      X v A Local Authority and an NHS Trust [2014] EWCOP 29 – fluctuating capacity

       

      Kings College Hosp. etc v C [2015] EWCOP 80 – life without sparkle, contested capacity.

       

      Shakulina & Ors v Russia [2018] ECHR 464 – ECrtHR on assessment of capacity

       

      "Detention" in hospital

       

      For the common law position on "detention" in hospital and the ECrtHR view see

       

      R v Bournewood Community NHS Trust ex parte L [1998] 3 All ER 289 HL

      HL v UK    (2005) 40 EHRR 32

       

    4. Core reading 1 item
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core The key chapters this week are 2 (to refresh) and 10

    5. Recommended reading 2 items
      1. New Legal Landscapes: (Re)Constructing the Boundaries of Mental Capacity Law - Beverley A Clough 01/05/2018

        Article Recommended A useful recent overview of the current issues in relation to mental capacity law

      2. The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales - Paul Skowron 18/04/2018

        Article Recommended A useful summary of the issues and the (somewhat inconsistent) case-law relating to a central issue at play here - what is the relationship between autonomy and mental capacity

    6. Additional reading for further exploration 7 items
      1. Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross sectional study - Gareth S Owen, Genevra Richardson, Anthony S David, George Szmukler 30/06/2008

        Article Additional Clinical assessment of capacity

      2. Decision-making capacity for treatment in psychiatric and medical in-patients: cross-sectional, comparative study - Gareth S. Owen, George Szmukler, Genevra Richardson, Anthony S. David 01/12/2013

        Article Additional Clinical assessment of capacity

      3. Assessing Decision-Making Capacity After Brain Injury: A Phenomenological Approach - Gareth S. Owen, Fabian Freyenhagen, Wayne Martin 2018

        Article Additional Highlighting some of the complexities of capacity assessment in a specific context

      4. Mental capacity at the margin: the interface between two acts - Genevra Richardson 01/12/2010

        Article Additional On the applicability to psychiatric illness of the current criteria in the MCA

      5. Mental Capacity in Relationship: Decision-Making, Dialogue, and Autonomy - Camillia Kong, University of Kent 11 May 2017

        Book Additional This book seeks to address the issue that capacity is relational as much as it is cognitive, from a philosophical as much as a legal perspective

      6. Is mental capacity in the eye of the beholder? - Alex Ruck Keene 06/03/2017

        Article Additional My views on mental capacity and the CRPD

      7. 7. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999]: Bournewood Fifteen Years On - Genevra Richardson

        Chapter Additional See the chapter by Richardson: "Bournewood Fifteen Years on"

  11. Seminar 8: The Mental Capacity Act 2005: overview, best interests and medical treatment 14 items
    In this seminar we will review the basic framework of the Mental Capacity Act but will focus particularly on the principles, the role and assessment of best interests, the administration of treatment and advance decisions.
    1. Reading

      Mental Capacity Law and Practice Chapter 2.  You should also review at least some of the cases set out in the next section.  An in-depth analysis of many of the issues raised in this seminar (and the last) which is now a few years old but still very valuable is M Donnelly (2010) Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism.  

       

      In addition to the articles set out below, there are two I have co-authored (with former MHEL students) which are not available via the KCL library but which can be found on my website (http://www.mentalcapacitylawandpolicy.org.uk/articles-and-papers-2/)

      Ruck Keene A and Auckland C "More presumptions please? Wishes, feelings and best interests decision-making" (2015) Elder Law Journal 293 

      Ruck Keene A, Cooper R and Hobbs C "When past and present wishes collide: the theory, the practice and the future" (2017) Elder Law Journal 132

    2. Case law

       

      On best interests see

       

      Re M [2009] EWHC 2525 (COP): the early view of weighting in s.4

       

      Aintree University Hospital etc v James [2013 UKSC 67 best interests and medical treatment

       

      An NHS Foundation Trust v D [2010] EWHC 2535 prolapsed uterus, balance of rights

       

      Surrey and Sussex Healthcare NHS Trust v Ms AB [2015] EWCOP 50 - amputation

       

      A Local Authority, E v A Health Authority [2012] EWHC 1639 (CoP) See a comment at Medical Law Review, Vol. 22, No. 1, pp. 119–130

       

      NHS Trust v L [2012] EWHC 2741 (COP)

       

      A NHS Foundation Trust v Ms X [2014] EWCOP 35 See comments in Med LR 2015 online, and 78 Modern LR (2015) 854

       

      The Mental Health Trust/The Acute Trust & The Council v DD and BC (Number 1 and Number 2) [2014] EWCOP 11 & [2014] EWCOP 13 & [2015] EWCOP 4 - BI and C'section/sterilisation

       

      Wye Valley NHS Trust v B [2015] EWCOP 60 – Jackson on BI

       

      Briggs v Briggs [2016] EWCOP 53 – BI and life-sustaining treatment (and past vs present wishes in the context of the 'new person' argument)

       

      SSHD v Skripals [2018] EWCOP 6 - the width of the concept of BI

       

      On advance decisions see

       

      X Primary Care Trust v XB [2012] EWHC 1390 (Fam)

       

      Nottinghamshire Healthcare Trust v RC [2014] EWHC 1317 (COP) – Jehovah's witness, see comment in (2016) 40 Bulletin Issue 2

       

      Re QQ [2016] EWCOP 22

       

    3. Core reading 1 item
      1. Mental Capacity: Law and Practice - Gordon R. Ashton, Marc Marin, Jonathan Baker 2018

        Book Core Please read chapter 2 for this week

    4. Recommended reading 1 item
    5. Additional reading for further exploration 10 items
  12. Seminar 9: The Bournewood Reforms: DoLS and the MCA/MHA interface 7 items
    In this seminar we will consider the relationship between the MCA and the MHA. In particular we will discuss the implications of the ECrtHR judgment in HL and the SC case of Cheshire West. We will also look at the impact of the CRPD. The case law and relevant policy is moving fast here and you will be directed to any significant new developments as they occur.
    1. Reading

       

      The core chapter is Mental Health Law Chapter 1. 

       

      The MHA 2007 amended the MCA and you should refer to the MHA Code of Practice for current guidance on the choice between the two frameworks. For the process involved see the Deprivation of Liberty Safeguards Code of Practice.

       

      You must also read HL v UK (2005) 40 EHRR 32. I also strongly recommend you listen to the play about Bournewood and the discussion (featuring HL's carer and solicitor) which you can find here: https://learningonscreen.ac.uk/ondemand/index.php/prog/0F7DDD1F?bcast=124946646 and here https://learningonscreen.ac.uk/ondemand/index.php/prog/0F757819?bcast=124946656 respectively.

       

      There have been several reports on the MCA and DoLS but see particularly HoL Select Committee  Mental Capacity Act 2005: post legislative scrutiny http://www.parliament.uk/mental-capacity-act-2005/

       

       

      There is a good article by Neil Allen on the impact of the decision in Cheshire West entitled "The (not so?) great confinement" (2015) Elder Law Journal 45 which is not available via the KCL online resources but which I can provide upon request.

       

      You should read, at least, the introduction to the Law Commission's 2017 Report on Mental Capacity and Deprivation of Liberty, available at http://www.lawcom.gov.uk/wp-content/uploads/2017/03/lc372_mental_capacity.pdf.  You may also want to look at the special issue of the 39 Essex Chambers Mental Capacity Report on the Law Commission proposals: http://www.39essex.com/content/wp-content/uploads/2017/04/Law-Commission-MCD-Special-Report-April-2017-2.pdf (this includes link to webcast briefing with slides).  

       

      The Mental Capacity (Amendment) Bill, responding to the Law Commission's proposals, was introduced into Parliament in July 2018, and will be making its passage through during the course of the term.  Its progress can be followed here: https://services.parliament.uk/Bills/2017-19/mentalcapacityamendment.html

       

    2. Questions for you in reading

       

      How (and why) did the European Court of Human Rights reach the conclusion that HL was deprived of his liberty?

       

      Did the decision in HL compel the introducion of DoLS or would some other solution have met the EcTHR challenge?

       

      Why did the Supreme Court identify the 'acid test' in Cheshire West?

       

      Does the 'acid test' go beyond the Article 5 ECHR definition of deprivation of liberty?

       

      How should we view deprivation of liberty in light of the CRPD?

       

       

    3. Case law

      On the definition of a deprivation of liberty see:

      JE v DE, Surrey County Council and EW [2007] MHLR 39

      Austin v United Kingdom (2012) 55 EHRR 14

      X v Finland [2012] ECHR 1371

      P v Cheshire West and Chester Council [2014] UKSC 19 – UK SC defines DoL

      Rochdale MBC v KW [2014] EWCOP 45 – challenge to Cheshire West, appeal allowed by consent

      Bournemouth Borough Council v PS & DS [2015] EWCOP 39 – Mostyn tries again

      W City Council v Mrs L [2015] EWCOP 20 – DoL at home

      Birmingham City Council v D [2017] EWCA Civ 1695 - parents and 16/17 year olds - under appeal

      R(LF) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 - DoL in the ICU setting

      Secretary of State for Justice v Staffordshire County Council [2016] EWCA Civ 1317 - "domestic" deprivation of liberty

       

      For the interface between MHA and MCA see

      GJ [2009] EWHC 2972 (Fam)

      AM v SLAM and SSH [2013] UKUT 0365 (AAC) - Charles J reconsidering GJ

      Northamptonshire Healthcare NHS Foundation Trust and others v ML and others [2014] EWCOP 2 – Hayden J again, the MHA wins

      NHS Trust v Dr A [2013] EWHC 2442 (COP) – the hospital gap?

      A Local Health Board v AB [2015] EWCOP 31 – s 17 leave

      NM v Kent County Council [2015] UKUT 125 (AAC) – guardianship and DOLs

      Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT 0376 (AAC) – conditional discharge and DoLS (but see also Secretary of State for Justice v MM [2017] EWCA Civ 194)

       

    4. Core reading 1 item
      1. Mental health law - Brenda Hale, Penelope Gorman, Rachel Barrett, Jessica Jones 2017

        Book Core The key chapter for this week is chapter 1

    5. Recommended reading 2 items
      1. Disability, Deprivation of Liberty and Human Rights Norms: Reconciling European and International Approaches - Eilionóir Flynn 2017

        Article Recommended This provides a useful 'stress-testing' of ECHR concepts of deprivation of liberty against CRPD norms

      2. Some Continental European Perspectives on Safeguards in the Case of Deprivation of Liberty in Health and Social Care Settings - Walter Boente 21/09/2017

        Article Recommended This article gives an overview of the position relating to deprivation of liberty in some continental European states, for comparative purposes

    6. Additional reading for further exploration 1 item
      1. The Bournewood gap (as amended?) - Neil Allen 01/12/2010

        Article Additional

  13. Seminar 10: The Role of the Court of Protection 9 items
    In this seminar we will consider the role of the Court of Protection in determining capacity and best interests in the context of welfare cases, and also as the review body for DOLS authorisations. We will compare and contrast the practice of the Court with that of the Mental Health Tribunal, and will also look at the way in which the subject of proceedings before the court is represented.
    1. Reading

      Reading from last week's seminar on the MCA and best interests will also be relevant but we will concentrate this week primarily on procedural matters relating to the Court of Protection as opposed to the substantive law relating to capacity and best interests.  

      The core reading this week is Mental Capacity Law and Practice chapter 4, but you may also want to look at chapter 4 of the Court of Protection Handbook. 

       

      Cardiff Law School are undertaking a long-term study on welfare cases in the Court of Protection, and have a useful website with material relating to the Court of Protection (and the MCA more generally) see: http://sites.cardiff.ac.uk/wccop/.  On that website, see Series L, Fennell P and Doughty J (2017) "The Participation of P in Welfare Cases in the Court of Protection." This is a very lengthy report, but the summary (pp. 8-17) gives an outline of the key conclusions. It also includes a useful history of the Court of Protection at pp. 22-39.  See also the report on welfare cases in the Court of Protection: http://sites.cardiff.ac.uk/wccop/new-research-an-overview-of-welfare-cases-in-the-court-of-protection/.

       

    2. Case law

       

      Aintree University Hospital etc v James [2013 UKSC 67 – supplying consent

       

      N v ACCG [2017] UKSC 22 – the interaction between the Court of Protection and public bodies

       

      Re X [2014] EWHC 25 (COP), Re X (Court of Protection Procedure) [2015] EWCA Civ 599 and Re NRA [2015] EWCOP 59 – the Court of Protection and deprivation of liberty

       

      Re AJ [2015] EWCOP 5 - the CoP, Article 5(4) and DOLS

       

      Re Y [2018] - the Supreme Court will be handing down a decision on when decisions about withdrawal of life-sustaining treatment have to go to court.

       

       

    3. Core reading 1 item
      1. Mental Capacity: Law and Practice - Gordon R. Ashton, Marc Marin, Jonathan Baker 2018

        Book Core The key chapter for this week is chapter 4

    4. Recommended reading 1 item
      1. Court of Protection handbook: a user's guide - Alex Ruck Keene, Kate Edwards, Anselm Eldergill, Sophy Miles 2017

        Book Recommended Chapter 4 of this chapter is a useful overview of the Court of Protection and its functions

    5. Additional reading for further exploration 5 items
      1. Litigation Friends or Foes? Representation of ‘P’ before the Court of Protection - Alexander Ruck Keene, Peter Bartlett, Neil Allen 08/2016

        Article Additional

      2. Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection - Alex Ruck Keene, Nuala B. Kane, Scott Y.H. Kim, Gareth S. Owen 01/2019

        Article Additional

      3. The role of the Court of Protection in safeguarding - Alex Ruck Keene, Kelly Stricklin-Coutinho, Henry Gilfillan 14/12/2015

        Article Additional

      4. Modern Judge: Power, Responsibility and Society's Expectations - Hedley Mark 30 Nov. 2016

        Book Additional This book is by one of the most thoughtful judges to have sat in the Court of Protection, Sir Mark Hedley, and asks profound questions about what qualities we want of a judge in this area.

  14. Seminar 11: Parallel Structures: Could it be any other way? 13 items
    This week will be used to pull threads together. We will look at reform options and consider how defensible our current legal structure is.
    1. Reading

      You will want to look again at books/articles from the seminar on Mental Health Law in Context, and at least some of the material below looking at 'fusion,' as well as the challenge from the CRPD. 

       

      Reform of mental health law

       

      You should (re)read the interim report of the independent Mental Health Act review, and the Lancet Future of Psychiatry Commission (in particular Part 4). 

       

      Lady Hale's views on where mental health law may be going in future are set out in a lecture given to the Royal College of Psychiatrists in June 2018: https://www.supremecourt.uk/docs/speech-180624.pdf

       

      For comparative purposes, the Indian Mental Healthcare Act 2017 is useful, discussed in Duffy and Kelly.

       

      If you want to place everything in a historical perspective, you might want to skim the Hansard (Parliamentary) record of the debates surrounding the introduction of what became the 1959 Mental Health Act, which still remains at the heart of the current English MHA: https://api.parliament.uk/historic-hansard/commons/1957/jul/08/mental-illness-and-mental-deficiency. 

       

      Fusion

       

      You may want to look at the Special Issue of the Journal of Mental Health Law (2010): A model law fusing incapacity and mental health legislation – is it viable; is it advisable?, available at http://journals.northumbria.ac.uk/index.php/IJMHMCL/issue/view/40.  You may also want to look at the article by Harper et al on the new Northern Irish Mental Capacity Act which fuses mental health and mental capacity law.

      The clearest recent argument in favourof  fusion is that of Szmukler in Men in White Coats, but see the debate with Weitch recorded in the recommended reading.

       

      CRPD 

      There has been extensive discussion of the implications of the CRPD for both the MHA and the MCA. See in particular:  

       

      Committee on the Rights of Persons with Disabilities:

      General comment No 1 (2014) Article 12 Equal recognition before the law.

      http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement

       

      Statement on article 14

      http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15183&LangID=E

       

      UN High Commissioner for Human Rights

      Two reports on Mental Health and Human Rights

      https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/021/32/PDF/G1702132.pdf?OpenElement (2017)

      and

      https://www.ohchr.org/Documents/Issues/MentalHealth/A_HRC_39_36_EN.pdf (2018)

       

      Report of the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

      https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/076/04/PDF/G1707604.pdf?OpenElement

       

      The Essex Autonomy Project

      Reports on the MCA and the CRPD: https://autonomy.essex.ac.uk/resource_types/reports/

       

      Briefing (with the Mental Health and Justice Project): Is Involuntary Placement and Non-Consensual Treatment Ever Compliant with UN Human Rights Standards?": https://autonomy.essex.ac.uk/wp-content/uploads/2018/01/EAP-UN-Survey.pdf

       

       

      The UN Human Rights Committee passed a resolution in September 2017 on human rights and mental health.  As this was sponsored by the UK, it may serve as an indication of how far the UK is prepared to go in this area.  It is difficult to find on the UN website, but can be found here: http://www.internationaldisabilityalliance.org/hrc-mental-health-resolution.

      See also the useful recent (October) 2018 literature review by Gooding, McSherry and others on Alternatives to Coercion in Mental Health Settings: https://socialequity.unimelb.edu.au/news/latest/alternatives-to-coercion

       

       

       

    2. Questions for you in reading

       

      Are parallel structures defensible?  If so, why?

       

      If we move to a 'fusion' model, will capacity and/or best interests be 'bent' to serve the ends of public protection?

       

      Is fusion incompatible with the the CRPD?

       

      Is deprivation of liberty in the context of the MHA or MCA "deprivation of liberty on the basis of disability" for purposes of the CRPD?

       

      Can legal capacity be delinked from mental capacity?

    3. Recommended reading 3 items
      1. Has the Mental Health Act had its day? - George Szmukler, Scott Weich 15/11/2017

        Article Recommended

      2. Rethinking rights-based mental health laws - Bernadette McSherry, Penelope Weller 2010

        Book Recommended I would at recommend at least skimming the essays in this book, which are very wide ranging, providing a series of different perspectives on where mental health law might be going.

    4. Additional reading for further exploration 8 items
      1. The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (International Law and Domestic Legal Orders) - Maastricht University, University of Leeds 24 May 2018

        Book Additional This is a detailed overview of how the CRPD is being interpreted in and by different courts / regional bodies around the world, going substantially beyond mental health / mental capacity law.

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