Mental Health & Capacity

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Doughty Street Chambers has a highly experienced and committed team of practitioners in this complex and sensitive area of law with a strong reputation for excellence. Members of the team have authored two well-regarded practitioners' texts in this area: Blackstone's Guide to the Mental Health Act 2007 and Butterworth's New Law Guide to the Mental Capacity Act 2005 .

The team has a strong public law background, and also regularly acts in claims for damages arising under the Human Rights Act 1998, for example, under articles 2, 3, 5 and 8 of the European Convention on Human Rights, and/or the common law. These claims may arise in the context of a death of a mental patient or prisoner with mental health problems, or the detention of incapacitated persons. The team has extensive experience of human rights law and of taking cases to Strasbourg under the European Convention on Human Rights. Team members are often instructed by bodies such as Liberty, Justice and the Equality and Human Rights Commission, which act as third party interveners in cases raising important issues of law and practice. Members of the team also sit as judges of the First-Tier Tribunal (Mental Health).

The multi-disciplinary nature of the team, and its natural overlap with other teams, such as the Community Care and Health, Public Law and Criminal Teams, amongst others, enables members to provide specialist representation in a wider context where mental health and capacity issues arise, for example, crime, prisoners, inquests, housing, community care, immigration, professional and clinical negligence, disability discrimination, children with special educational needs, cases involving institutional abuse and homicide inquiries.

Doughty Street has a long and established relationship with the Mental Disability Advocacy Centre (MDAC) based in Budapest, Hungary, through Oliver Lewis, the Centre's director and an associate tenant. MDAC is an international non-governmental organization based in Budapest, Hungary, which works towards better human rights protection for people with mental health problems and intellectual disabilities across Europe and central Asia. The team is also proud to have as an associate tenant, Professor Jill Peay of the London School of Economics who is at the forefront of research and publication on mental health law, decision-making and the treatment of mentally disordered offenders.

Members of the team are happy to discuss and plan any specific training requirements for organisations or groups. To view articles published by the team and training material from previous seminars please see below.

When protection matters - New Law Journal - 15th April 2011
contributor Kate Markus

Team Members

Cases

Mental health

CM v Derbyshire Healthcare NHS Foundation Trust and another [2011] UKUT 129 (AAC): complaint by a patient that he had been wrongly detained for his chaotic lifestyle and drug use was upheld.

AH v West London Mental Health NHS Trust and another [2010] UKUT 264 (AAC) and [2011] UKUT 74 (AAC): a successful application for a public tribunal hearing by a patient at Broadmoor detained under sections 37/41 MHA.

AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC): effect in FTT where a detained patient was discharged on a CTO; litigation friend in UT.

Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC). Consideration of the duty on an NHS Trust to disclose information to a patient in tribunal proceedings.

 

Court of Protection cases:

London Borough of Hillingdon v Steven Neary (by his LF the OS) and Mark Neary [2011] EWHC 1377 (COP): Hearing held in public. The court made declarations of unlawfulness under articles 5 and 8 and gave guidance on the approach to best interests assessments under schedule A1 of the MCA, and see the decision regarding a public hearing: [2011] EWHC 413.

P(otherwise known as MIG) and Q(otherwise known as MEG)(by their litigation friend, the OS) v Surrey County Council and others [2011] EWCA civ 190: Leading authority on what constitutes a 'deprivation of liberty' under the MCA and article 5.

RT v LT and A local authority (2010) 13 CCL Rep 580; [2010] EWHC 1910: capacity as to residence and contact under the MCA.

A v Independent News and Media Limited and others [2010] EWCA civ 343: the first case to consider the issue of press attendance in the Court of Protection.

A Local Authority v A [2010] EWHC 978 (Fam): Court of Protection/family proceedings considering whether restrictions on disabled children living at home constitute a deprivation of liberty.

G v E (by his litigation friend the OS) and others [2010] EWCA civ 822: article 5 and detention under the MCA.

Other cases of note include:

A Local Authority v DL [2010] EWHC 2675 (Fam): concerning the ambit of the inherent jurisdiction of the High Court to protect vulnerable adults who have capacity.

Savage v South Essex Partnership NHS Foundation Trust [2009] 2 WLR 115, HL. Proper approach to article 2 ECHR when a patient detained under the MHA commits suicide.
R (Rayner) v Secretary of State for Health & Others [2008] EWCA Civ 176 - lawfulness under Art 5(4) of reference procedure to the Mental Health Review Tribunal of a recalled restricted patient .

YL v Birmingham City Council [2008] 1 AC 95: leading authority on the meaning of 'public authority' under the HRA. Privately owned care home providing care and accommodation for publicly funded resident lacking in capacity was not exercising functions of a public nature within section 6(3)(b) HRA.

JE v DE [2007] 2 FLR 1150: a leading domestic authority on 'deprivation of liberty' under article 5.

Lewis v Gibson [2005] EWCA civ 587: section 29 MHA displacement proceedings, procedure and compliance with articles 6 and 8.

R(oao Von Brandenburg) v East London and City Mental Health NHS Trust [2004] 2 AC 280. Criteria for re-admission under MHA following discharge by MHRT.

R(oao H)v SSHD and others (IH) [2003] 2 AC 253: deferred discharge of restricted patient and article 5(1) and (4).

HL v UK (2005) 40 EHRR 32: seminal case on deprivation of liberty of incapacitated persons under article 5.

R(Home Secretary) v MHRT (PH) [2003] 1 MHLR 202: lawfulness of a discharge from hospital on condition that a patient not leave a hostel without an escort and article 5. Also on the same issue R(oao G) v MHRT [2004] EWHC 2193.

R(KB and others) v MHRT [2003] 1 MHLR 28: damages under article 5(4) for tribunal delays and [2003] 1 MHLR 1: liability under article 5(4).

R(oao Wilkinson) v Broadmoor Hospital [2002] 1 WLR 419: SOAD procedure and compliance with Convention rights.

R(oao S) v Plymouth City Council [2002] 1 WLR 2583: confidentiality of personal information relating to incapacitated person and displacement proceedings under section 29 MHA.

R v Bournewood Mental Health Trust ex p L [1999] 1 AC 458: false imprisonment and habeas corpus claim in common law. Decided in Strasbourg as HL v UK (above).

Johnson v UK (1997) 27 EHRR 296. Deferred discharge and lawfulness of continuing detention under article 5(4), and under article 5(1) where a patient is no longer suffering from mental illness.

Clunis v Camden and Islington HA [1998] QB 978.