MM - Supreme Court Appeal 2018
Lawfulness of discharge conditions for mental health patients to go to the Supreme Court
The Supreme Court has granted permission to appeal in the case of The Secretary of State for Justice v MM [2017] EWCA Civ 194 This is the latest case in a series of decisions about whether detained mental health patients can be subject to conditions on discharge where the cumulative effect of the conditions amounts to a deprivation of liberty.
In March 2017 the Court of Appeal ruled that imposing conditions which deprived a patient of his or her liberty as part of a community discharge was a breach of the patient’s human rights even though the patient had consented to the conditions and the discharge would have reduced the degree of restrictions on the patient. That decision followed the earlier case of RB v Secretary of State for Justice [2012] 1 WLR 2043 where such conditions were held to be a breach of the patient’s human rights.
The RB and MM decisions have been hugely contentious amongst those advocating for the rights of mental health patients. RB was not followed by Mr Justice Charles in Secretary of State for Justice v KC & Anor [2015] UKUT 0376 (AAC), who held that the First Tier Tribunal had jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty and that a capacitated patient could give valid consent to such conditions. The KC decision was not disapproved by the Court of Appeal in MM.
The Supreme Court will, in effect, be asked to resolve this difference of judicial views.
David Lock QC and David Blundell are instructed by Bison Solicitors on behalf of MM (but they did not act for MM in the Court of Appeal). David Lock QC acted for KC in MM.
Bison Solicitors on Unity 101 Radio – Mediation Services
Listen to Nicola Beasley and Komal Joshi talk about the Mediation Service provided by Bison Solicitors –
They give an overview of what mediation is, why is is a worthy course of action when resolving a dispute, and what the pros and cons of mediation are!
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Bison Solicitors on Unity 101 Radio – Bison’s Service
Interview with Komal Joshi and Millie Garden
Click the link below to hear two members of our team chat to Unity 101 Radio about the services provided by Bison Solicitors!
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How Does The Mental Health Capacity Act Affect Family Proceedings
By Nicola Beasley
Mental Capacity issues arise in all sorts of legal matters. In order to give instructions and litigate any type of matter, the client needs to be deemed to have capacity to do so, under the Mental Capacity Act 2005.
In family matters, the Mental Capacity Act most often crosses into the case where the client loses capacity during the litigation, often due to age. We are at a stage now where, due to the rising costs in divorce proceedings, the reduction in legal aid and the need to find “fault” in order to be granted a divorce, we are seeing more and more situations where a couple has separated but has not legally divorced, and they are now elderly and considering how best to manage their estates, when the inevitable time of passing is approaching.
In a situation where older parties are divorcing, if there is any sign that capacity may be an issue, the solicitor has a duty to raise any concerns surrounding capacity to the Judge at the earliest possible stage. The loss of capacity during proceedings can often lead to any decisions made up to that point being voided, resulting in increased legal costs when the process has to begin again.
In the event of concern of lack of capacity, an expert assessment of capacity should be undertaken, specifically focusing on the party’s capacity to undertake certain relevant tasks including the ability to instruct for the purpose of litigation, and to manage their finances after the proceedings. The tasks will be relevant to the matter at hand. Someone may be able to instruct their solicitor in the proceedings confirming that they want a divorce, but may at the same time be unable to manage their finances after the proceedings.
However, if someone lacks capacity, it does not mean that they are completed restricted from accessing the family proceedings. If deemed to lack capacity under the MCA 2005, then the Family Procedure Rules 2010 Rule 15 provides clear guidelines on how a party may proceed.
A litigation friend should be appointed to act in the best interests of the party who lacks capacity. A litigation friend is expected to make decisions in the best interests of the party, do everything they can to keep the party up to speed, tell them what’s happening in the case and find out their wishes and feelings and work with their solicitor to get advice but also give instructions to them in the other person’s best interest. A litigation friend can be anyone as long as their interests do not conflict with the parties and they are able to make decisions about the case in a fair and competent manner.
If a litigation friend cannot be sourced then the Court of Protection can appoint a deputy to make decisions on the behalf of a person lacking capacity, although these proceedings usually also carry with them further costs.
Lack of capacity affects the divorce proceedings the most. A party cannot rely upon the grounds for divorce for 2 years separation with consent, and cannot engage in any consent orders.
This can cause increased fees for parties who may have been able to mediate/negotiate and reach an agreement previously, who now will be deemed to be unable to do this, therefore causing a full Court proceeding to take place. It can also cause delay’s where parties want to divorce after 2 years separation with consent, but are deemed to not have capacity to consent, and are therefore forced to wait for 5 years separation without consent.
Solicitors today often advise that parties enter into Lasting Power of Attorney (LPA) when they are at a younger age, in order to be protected should they lose capacity in the future. This would allow the person with the LPA to act in the best interests of the party immediately, and they will have usually discussed with the party their wishes in situations like this during the preparation of the LPA, which allows for the wishes of the party to be more likely fulfilled.
Having an LPA would reduce the risk of wasted costs and delays during family proceedings, should one or more of the parties loose capacity during the proceedings. It is common practice now, when working with an older client, to confirm the person responsible for their LPA prior to proceedings beginning and having that person fully involved throughout for the protection of the interests of all parties.
Human Rights and What the Future Holds
By Emma Yemm, Paralegal.
Talk of Brexit has dominated the news but the manifesto promise of repealing the Human Rights Act seems to have been placed on the back burner. There had been discussions about replacing the Act with a British Bill of Rights, but what effect would that have on our rights and will it provide greater protection for the people of the UK?
The Human Rights Act Itself
The Human Rights Act 1998 was enacted to incorporate the European Convention of Human Rights into UK legislation to ensure UK citizens could have a remedy to a breach of rights on domestic soil at a quicker rate and with less expense. However since the mid 2000’s the act has been under much scrutiny and criticism in British media with focus being placed on there being “too much” protection for foreign criminals and thus costing the taxpayer thousands.
Whilst the act has protected the rights of some unsavoury characters, it has also protected the rights of the most vulnerable and those most at risk of discrimination. For example, the case of Ms C highlighted the need for “choice, independence, autonomy and dignity” for disabled people in the provision of health care services after the trust informed her that she would no longer be guaranteed female nurses to tend to her intimate care needs. And the case of Mr Mendoza allowed for same sex couples to succeed in tenancies and for the Rent Act provisions to be read to prevent further discrimination.
The Future
However in the 2015 election manifesto, The Conservatives made a formal proposal to change the way our rights are covered and to introduce a Bill of Rights that is specifically designed to fit British needs and traditions. It is aimed to allow judges to apply a “margin of appreciation” to take account of British culture and history and recover their sovereignty. But how and when this pledge will be fulfilled is still unclear.
The Bill is expected to cover wider economic, social and environmental rights as well as a possibility of introducing specific duties or responsibilities that would sit alongside our rights that are already covered. It is unlikely the UK will leave the European Convention of Human Rights but whilst this is considered a positive, by repealing the Act, it is likely the already restrictive access to our courts by Judicial Review will also be repealed and once again seeking a remedy from a breach may once again become costly and time consuming.
And whilst remaining a party to the European Convention, the human rights of those unsavoury characters that appear to be used to dismiss our Human Rights Act will still be safeguarded. The Bill of Rights therefore has a risk of being designed as a tool of convenience for our government and negatively impacting on the UK’s long standing reputation of advocating human rights.
The End?
Conversation about our Human Rights remains generalised and arguments to repeal the Act still remains weak. The effect of Brexit is yet to surface on the current Act and Theresa May has expressed her want to delay any constructive debate surrounding the topic. But with sceptics still expressing their unease with the Human Rights Act and the desire from politicians to reduce the implication of the European Convention of Human Rights, the future of our Human Rights Act still remains misty and uncertain.
1. R (C) v Royal Devon and Exeter NHS Foundation Trust [2004]
2. Ghaidan v Godin Mendoza [2004]