Key Legal Developments update: Mental Health


 Mental Health              

AH v West London Mental Health Trust and Secretary of State for Justice                   

Case in which the Upper Tribunal directed that an appeal should be held in public by the First-Tier Tribunal, a decision which is thought to be a legal first. The patient has been detained for 23 years under s37 and 41 MHA 1983. The UT confirmed that the assumption is still towards a private hearing and that in granting a public hearing the Tribunal must be satisfied that the patient understands the implications of a public hearing and it will not have an adverse impact on the patient’s mental health.      

  Corporate Manslaughter

Ministerial statement announces extension of corporate manslaughter provisions to detained patients

The Government announced in March that it intends to commence provisions of the Corporate Manslaughter and Corporate Homicide Act 2007 which relate to duties owed to those in custody. The introduction of these provisions was originally delayed in order to give organisations the opportunity to prepare. Following implementation, which at present is scheduled for the summer, an organisation may be at risk of prosecution if it is responsible for the safety of a person detained in a custodial institution, living in secure accommodation or is detained under the Mental Health Act.                                     

 Equality Act 2010

New public sector equality duty                       

The general duty under the Equality Act 2010 will be brought into force on 6 April 2011. This duty aims to eliminate discrimination, foster equality and promote good relations. The specific duties intended to assist public bodies with better performance of the general duty will not come into force in April as originally planned as they require revision. A draft Code of Practice is due to be completed in the summer.                                                


The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011                  

These regulations aim to phase out the Default Retirement Age (DRA) over the period 6 April until 30 September 2011. Retirements under the DRA which are notified prior to 6 April 2011 can still complete so long as the person retiring has reached 65 before 1 October 2011. The regulations also repeal provisions which allowed a short notice of retirement.                                        

 Deprivation of Liberty              

P(MIG) and Q(MEG) and Surrey County Council v CA and LA and Equality and Human Rights Commission                  

A case considering whether the care of two sisters, both in their late teens with middle to severe learning difficulties, amounted to a deprivation of liberty.  The two girls lived separately, one in a foster home and the other in a specialist unit. They had their own rooms and were content but would be restrained if they attempted to leave. The Court of Appeal found that there was no deprivation of liberty in either case. The fact that both girls were happy and did not object to their environments was held to be of relevance as were medication requirements and the level of family and social contact.                                  

 Mental Health              

Secretary of State for Justice v RB                   

RB, a life long paedophile, was granted a conditional discharge which stipulated residence at a named care home and did not allow unsupervised leave. This was challenged by the Secretary of State as being so restrictive as to constitute continuation of detention. The Upper Tribunal, in a departure from earlier case law, found that the conditions were lawful, even if their effect is to continue deprivation, because RB is no longer deprived of his liberty in a hospital.                                     

 Mental Health              

TTM v Hackney LBC, East London NHS Foundation Trust and Secretary of State for Health              

Court of Appeal case in which damages were sought for breach of Article 5 ECHR for unlawful detention under s3 MHA. The unlawfulness was due to the AMHP making the application contrary to the wishes of the nearest relative, albeit as the result of an honest mistake. The Court of Appeal awarded damages, payable by the Local Authority who employed the AMHP and not by the hospital since it was entitled to rely on the application as it had appeared valid.                                  


DoH publish final ‘never events’ list following consultation                      

The final list for 2011/2012 expands the previous list from 8 to 25 incidents which should never occur in a high quality health service. New events include falls from unrestricted windows, misidentification of patients and the wrong implant or prosthesis. These events will be incorporated into the NHS Standard Contract so that payment may be witheld by Commissioners where care falls short.                                    


Request for severance payments made by Foundation Trust to be publicly available                  

The Public Accounts Committee have requested that the NHS Chief Executive provide the details of all special payments made recently by Foundation Trusts. Sir David Nicholson has not yet confirmed that to provide this information is within his power. This serves to highlight the changes in accountability and supervision now that these organisations are independent.                                      


DoH publication: Access to the NHS by foreign nationals – Government response to the consultation                       

The DoH has published a response to the consultation which took place between February and June 2010 and intends to put forward regulations as soon as possible. These regulations extend exemptions from charges for NHS secondary healthcare to certain groups and extend the time per year a person is permitted to be outside the UK before charges are a possibility. New guidance will accompany these regulations. The response also promises NHS/UKBA cooperation in furthering plans to refuse entry or citizenship to visitors with outstanding NHS debt.                                         


MoJ summary of reports and responses under rule 43              

From the 6 month period, April to September 2010, Coroners in England and Wales made rule 43 reports in 175 inquests. This summary follows trends set in previous summaries and, once more, approximately a third of the reports relate to hospital deaths. The common issues highlighted by this report are staff training, absence of, or non compliance with, procedures or protocols, and lack of documentation or communication.                                 


National Health Service (Quality Accounts) Amendment Regulations 2011                   

These come into force on 1 April 2011 and make a number of changes to the form of the annual report. For instance, they extend the maximum statement length, require further information in relation to priorities for improvement, amend the schedule which sets out the information to be provided in Part 2 of the accounts and restricts the exemption which was previously applicable to community health services to NHS Continuing Healthcare only.                                             


Reporting the death of a person subject to an authorisation under the Mental Capacity Act Deprivation of Liberty Safeguards.                  

The DoH has clarified the duty to report to the Coroner the death of a person subject to an authorisation under DOLS. There is no statutory duty for anyone to refer deaths of those who are subject to DOLS. However, the common law duty, which applies to anyone, to refer when there is reasonable cause to suggest that the person died a violent, unnatural or sudden death of which the cause is unknown still stands. Some Coroners have indicated they would always prefer deaths under DOLS to be referred. In short, if in doubt, report.                                        


CQC publication on the operation of DOLS in England 2009/2010                  

The CQC report that in 2009/10 there were 7,160 authorisation applications in England which was much lower than the predicted 21,000 for England and Wales. 75% of these applications were from care homes to LAs rather than hospitals to PCTS. The largest proportion of applications concerned people with dementia. Physical disability or temporary illness came second and third was learning disability.

This report highlights issues with understanding what constitutes a DOL and recommends that the DoH provide unambiguous and pragmatic guidance. The CQC also promises more consistency in their monitoring role under the new regulatory framework.                            


The Medical Profession (Responsible Officer) Regulations 2010    

These came into force in January and stipulate that all organisations that provide healthcare must nominate a responsible officer to evaluate doctors’ fitness to practice and lead revalidation. These regulations have come under criticism for stipulating a minimum of only 5 years experience in a RO and for requiring adherence by PCTs and SHA on the verge of disappearing.                                 


First conviction under the Corporate Manslaughter and Corporate Homicide Act 2007        

Cotswold Geotechnical was found guilty on 15 February 2011 of corporate manslaughter relating to the death of geologist Alexander Wright. The company was fined £385,000 and permitted to pay over 10 years due to the precarious financial state of the company. Mr Justice Field said, in setting the fine, he had to strike a balance between reflecting the gravity of the offence and deterrence with the size of the company and those people currently employed by it.                                 


Monitor publish guidance on contract dispute resolution                        

This guidance provides a summary of the dispute resolution procedure as provided by the 2011/12 standard contract including good practice advice in relation to the three fundamental steps; negotiation, mediation and adjudication.                  


Royal College of Nursing initiate legal proceedings over CRB requirements                   

The RCN have applied for judicial review against the Home Office over the content of the enhanced criminal records certificate which is compulsory for anyone working with children or vulnerable adults. At present the police may include on the certificate any information which ‘might be relevant’. The RCN contend that this should be amended to information which ‘the police reasonably believe to be relevant’.                                   


Protection of Freedoms Bill                  

This bill was debated in the House of Commons on 1 March and is expected to come into force mid-2012. One of the most significant proposals is the amalgamation of the Criminal Records Bureau and the Independent Safeguarding Authority and a re-evaluation of vetting requirements. For instance, under the bill, a records check will be portable between jobs and those who do only occasional voluntary work under supervision will not be vetted. Job applicants will also be able to view their records check before their potential employer to ensure there are no errors.                 


Ezsias v North Glamorgan NHS Trust              

The Employment Appeal Tribunal held that a Trust was entitled not to adhere to contractual disciplinary procedure in dismissing an employee because causing a breakdown in relationships at work can be classified as some other substantial reason and not conduct.                           


New DoH guidance: Retention and Exit Terms for Business Critical Staff                      

This guidance offers suggestions on ways for organisations which are to be abolished under the new regime to ensure the retention of staff whose roles are business critical. It has been written in partnership with NHS Employers and the Trade Unions and focuses on two approaches, a severance payment of up to 24 months pay for eligible staff, and utilising pre-existing contractual flexibilities such as a retention premium or an additional responsibility payment.                                  


Cooperation and Competition Panel have ruled against a merger

In the first refusal of its kind the Cooperation and Competition Panel have ruled against the merging of Norfolk and Waveney Mental Health Foundation Trust and Suffolk Mental Health Partnership Trust on the basis that any possible benefits from the merger would be outweighed by the adverse effect of reduced competition.                                      


Tameside Hospital NHS Foundation Trust v Mylott                  

The Employment Appeal Tribunal has defined reasonable adjustment steps as those required to maintain the employment of the disabled employee and not to facilitate leaving on favourable terms. As such the Trust did not breach their duty under the Disability Discrimination Act 1995 by failing to facilitate a disabled employee’s application for ill-health retirement.                                       


Laura Bowater v North West London Hospital NHS Trust                   

The Court of Appeal (CoA), overturning a decision by the Employment Appeal Tribunal, held that the ET was right to conclude that a nurse had been unfairly dismissed by the Trust for gross misconduct. The nurse when assisting in the restraint of a partially dressed patient, had, by accident, found herself straddling his lower body and made what was held by the Trust to be an inappropriate remark. The CoA found it to be relevant that the comment was meant to be humorous, was not said when members of the public could hear and it seemed that the patient was not aware of the comment. The CoA also clarified the role of the EAT and the importance of considering context.                  

 Bribery Act                 

Implementation date delayed                

The implementation of this act will no longer take place in April so as to allow guidance to be published assisting organisations with the transition. This is a further delay from last year when a consultation was launched following concerns that the Act had been rushed through Parliament in the last days of an out-going government. Implementation is now due to occur three months after the publication date (currently unknown) of the transition guidance. 



Picture of John Holmes

John Holmes

Partner, London
Mental Health, Healthcare Litigation
020 7484 7557
Picture of Helen Edwards

Helen Edwards

Solicitor, London
Healthcare Litigation
0207 484 7596

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