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03.Nov.2011

Andrew Parsons examines a helpful Upper Tribunal ruling on the relationship between Section 17 Leave and community treatment orders.

Since the Mental Health Act 2007 inserted the Community Treatment Order provisions into the Mental Health Act there has been the potential for overlap between a CTO and extended leave of absence under s.17. A choice between the two can often be difficult for clinicians. However, a recent case – KL v Somerset Partnership NHS Trust [2011] UK UT 233 (AAC) – has provided some guidance on the matter.

Facts

Patient KL was admitted under Section 3 suffering from paranoid schizophrenia with a chronic delusional disorder.

He was detained in hospital for a few weeks and then granted extended leave of absence under Section 17 subject to conditions that:

1. He was to live at home with his wife.
2. He had to attend outpatient appointments at a local community mental health treatment base every two weeks.
3. If he failed to comply with these conditions the responsible clinician might recall him to hospital.

KL applied to the First Tier Tribunal (FTT) to be discharged. He argued that he did not meet the detention criteria because no part of his treatment plan provided for him to receive treatment in a hospital.

The FTT rejected KL’s application and he appealed to the Upper Tribunal.

Court Decision

The Tribunal rejected KL’s appeal. They referred to the extended definition of “hospital” in Section 145 of the Mental Health Act which states that it includes “any health service hospital within the meaning of the NHS Act 2006”. This means that it includes “any institution for the reception and treatment of persons suffering from illness…clinic dispensaries and outpatient departments maintained in connection with any such… institution”.

As the patient met with his key worker at an adult community mental health centre providing assessment and treatment, and because the key worker or CPN was working in conjunction with his responsible clinician it was held that the patient was receiving hospital treatment, albeit as an outpatient, and was thus within the definition contained within the Mental Health Act. (This decision is consistent with the previous case of R(CS) v MHRT [2004] EWHC 2958.)

Although the patient’s appeal was rejected the Tribunal also considered the issue of whether the patient should have been on Section 17 leave or whether a community treatment order might have been a better way to manage him. The FTT had clearly thought that a CTO was more appropriate as they exercised their power under Section 72 (3A) of the Act to recommend to the Responsible Clinician that he put KL on a CTO, directing him to notify the Tribunal office within a month whether this had been done. If not the Tribunal Judge was to be informed so he could consider reconvening.

Ultimately the RC did place KL on a CTO but the Upper Tribunal did take the opportunity to comment on such cases. It said that in a case where the FTT felt a CTO was more appropriate it may make a recommendation to that effect however if this recommendation is not followed, the FTT may discharge the patient.

Comment

This is useful clarification of the definition of “hospital” in terms of the detention criteria.

As for the use of Section 17 or a CTO, Section 17 (2A) requires the RC to consider a CTO when granting longer term leave (i.e. a specified period of more than seven consecutive days). The Code of Practice comments at Chapter 28 on how an RC should approach long term leave of absence. It suggests that Section 17 is more appropriate where the leave is on a trial basis, particularly if it is unclear as to how the patient will cope in the community.

If any Tribunal takes the view that a CTO is appropriate, it has the power to recommend this to the RC. If he takes a different view, the Tribunal has a power (but not a duty) to discharge the patient. It is likely that that will occur in only very rare circumstances: if the Tribunal is satisfied that the detention criteria are not met, it must discharge the patient. It is therefore likely to be a rare situation where the patient meets the detention criteria, the RC does not think a CTO is appropriate but the Tribunal wishes to discharge. [Note: the RC’s refusal to make a CTO could always be challenged by the patient applying for judicial review]

Andrew Parsons is a partner at RadcliffesLeBrasseur. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

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31.Oct.2011

The Local Government Ombudsman has recommended that a local authority pay £5,000 in compensation after it refused to provide a disabled facilities grant (DFG) on grounds not permitted by law.

Northampton Council’s decision had caused “considerable injustice”, the Ombudsman, Dr Jane Martin, said.

The grant was to be used for an extension so that a disabled man could access bathing facilities. But the authority refused it on the basis that the applicants lived in a privately rented property without a secure tenancy.

The couple had rented the home for more than 20 years. Two occupational therapists assessed the man as needing an extension to the house so he could be cared for and bathed.

The council’s assessment suggested that the extension was necessary and appropriate for the disabled man’s needs. Planning permission was later granted for the extension.

But Northampton then refused the grant application. It offered alternative housing, installed a stair lift and a wet room, but persisted in refusing the extension originally planned.

The complainants told the LGO that they felt that the council had misled them into believing they had to consider moving to a council-owned property, even though they did not want to take that step.

They argued that none of the council properties offered were suitable, and that they had been treated differently from a home owner.

The council claimed that it had acted reasonably and in the complainant's best interests, arguing that they could be evicted from their home by the licensor at any time whereas in a council owned home they would have security of tenure. It said it did not want to spend almost £30,000 on the provision given the lack of security of tenure.

Northampton also said under the Regulatory Reform Order (Housing Assistance) 2002, it acted correctly in considering alternatives. It had refused the DFG because the complainants had expressed a willingness or intention to move into an adapted property. The authority said the works approved had met the family's needs, which could further be met by rehousing.

Concluding that there had been maladministration, Dr Martin said the applicants had met all the necessary criteria to receive the grant.

She said: “In my view it was maladministration to refuse the DFG on the grounds that are not permitted under the HGCRA [Housing Grants, Construction and Regeneration Act] 1996.

“This has led to a delay in providing the provision originally assessed as being required to meet [the complainant]’s needs which has given rise to considerable stress and anxiety and left them living in very difficult conditions.”

She also recommended that Northampton:

• Pay the complainants £250 for the time and inconvenience in pursuing their complaint
• engage an independent occupational therapist to review the husband’s current needs
• consider the occupational therapist’s conclusions
• provide funding for any provision identified
• provide funding for respite care for the couple while any works are completed
• review its procedures, and
• provide training to ensure that staff are aware of what is appropriate for considering applications for disabled facilities grants.

Philip Hoult

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28.Oct.2011

MEPs this week called for reforms to public procurement rules to make it easier for small firms to bid for contracts.

In a non-legislative resolution, they also called for authorities to be able to award contracts to the most innovative bidder or to those offering the greatest environmental or social benefits, not just to the lowest bidder.

The resolution proposes that the "lowest price" criterion should no longer be the determining factor in awarding contracts. Instead it should be replaced by the "most advantageous tender in terms of economic, social and environmental benefits, taking into account the entire life-cycle costs of the good, service or work".

The MEPs cited a number of cases where this new wording would be particularly appropriate, such as for food to hospitals, care facilities for the elderly, schools and kindergartens.

The resolution puts forward a number of proposals, including for:

• an EU-wide "electronic procurement passport" proving that the holder complies with EU rules on public procurement
• measures to remove administrative barriers. These could include the use of self-declarations of compliance and requesting original documents only from the shortlisted candidates or the successful tenderer
• greater division of public contracts into lots to give SMEs a better chance of success when they bid
• consideration of "whether further rules on the award of subcontracts are needed, for example on the establishment of a chain of responsibility, specifically to avoid SME subcontractors being subject to conditions worse than those applicable to the main contractor"
• reassessment of the appropriate level of thresholds for supply and services contracts. If necessary, these should be raised.

The MEPs’ resolution comes just weeks before the European Commission is expected to table its own reform proposals.

The resolution was drafted by Greens MEP Heidi Rühle. She said: “In this deep crisis we need clear, simple rules. Only in this way can public authorities give a fillip to innovation and growth."

Philip Hoult

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26.Oct.2011

Manchester City Council has fended off a judicial review challenge in the High Court to proposed £39m cuts to its adult care provision.

Mr Justice Ryder dismissed the claim at the close of the hearing at the Civil Justice Centre in Manchester yesterday, although he is not expected to issue a written ruling for a number of weeks.

The claim was brought by a 72-year-old man who is paralysed on his left side, suffers from epilepsy and is reliant on others for his 24 hour care, and a 78-year-old woman who suffers from memory loss, a severe brain injury, degeneration of the spine and breast cancer.

Their legal advisers, law firm Irwin Mitchell, said the claimants faced the prospect of reductions to their care package if the budget cuts were implemented. Their grounds for challenge included claims that the local authority had failed to follow government guidance and to conduct a lawful consultation.

But Mr Justice Ryder ruled that Manchester had not acted unlawfully.

Liz Bruce, the council's Director of Adults, said: "Manchester City Council has had to take some difficult decisions following the severity of central government's financial settlement earlier this year. We fully support disabled people's right to challenge, in fact we have supported that throughout the entire consultation process.

"We've carried out detailed consultations, and have looked at every option to try our very best to mitigate the impact of the cuts – and ensure that our policies are the fairest we could draw up in these difficult times. We are really pleased that this has been recognised by this judicial review and we are now focussed on delivering the savings, whilst at the same time doing everything we can to safeguard the most vulnerable in our city."

A separate High Court hearing into cuts proposed by Isle of Wight Council is expected to finish at the Royal Courts of Justice in London today.

Details

26.Oct.2011

The first-ever Mental Health Tribunal to sit in public has ruled that the patient concerned should not be discharged.

In what also represents the first time a determination has been published, the First-tier Tribunal today (26 October) revealed that the detention of Albert Laszlo Haines, 51, was still necessary for his own health and safety and for the protection of others.

Haines has been detained under s. 37/41 of the Mental Health Act 1983 since October 1986. He was initially at Broadmoor Hospital, then between 1992 and 2008 at Three Bridges, and from early 2008 at Broadmoor again. The responsible authority is West London Mental Health Trust.

The index offences were of attempted wounding, which occurred when Haines tried to attack a doctor and nurse at the Maudsley Hospital with a machete and a knife. He was returned to Broadmoor in 2008 after an incident at Three Bridges when having been placed in seclusion after arming himself with a fire extinguisher as a weapon he climbed into a roof space.

The patient had been found to be suffering from both mental illness and psychopathic disorder. However, in 2008 under the law as it then stood, he was reclassified as suffering only from psychopathic disorder. More recently it was suggested that he did suffer from a mental illness, as well as from a personality disorder, but that was the subject of dispute.

Haines, who had successfully waged a lengthy legal battle to have the hearing in public, asked the Tribunal for an absolute discharge. It was also submitted on his behalf that in the alternative the Tribunal should grant a conditional discharge, which would have to be deferred. Mr Haines asked to be discharged to his brother’s house or failing that to a hostel.

In his “detailed and very articulate” statement Mr Haines said he did not want a conditional discharge because he would find it very difficult to comply. However, he said he would comply if that were the only alternative to remaining in detention. He did not accept that he had either a personality disorder or a mental illness.

Rejecting Haines’ application for discharge, the Tribunal found that:

• Haines was suffering from a mental disorder, namely a personality disorder. “This was the unanimous evidence of all the psychiatrists whose written or oral evidence we considered, and their conclusions were based on the very extensive and detailed history of physical and verbal aggression”. The index offences, although 25 years ago, were correctly described as a very violent and dangerous event, albeit one that did not lead to serious injury. There had been numerous incidents since
• There was insufficient evidence at this stage from which it could be safely concluded that Haines also suffered from a mental illness. There had been a divergence of views among the witnesses
• The unanimous evidence – which the Tribunal accepted – was that Haines’ mental disorder was of a nature that made it appropriate for him to remain liable to detention in hospital for treatment. “The frequency and intensity of the incidents of irrational, hostile, abusive and aggressive behaviour cannot simply be explained by understandable frustration at the length of detention or by a reaction to ward moves.” Haines could plainly be settled and pleasant, but this was almost invariably with those whom he sees as being on his side and doing what he wants
• Detention in hospital remained necessary for Haines’ own health and safety. “It is correct to say that any suicidal threats are now historic, but we noted that they occurred while he was in a less structured environment, including at a time when he was having a considerable amount of leave,” the Tribunal said. “We also concluded that outside hospital there would be a considerable indirect risk to his own safety due to retaliation by others caused by Haines’ behaviour towards them.” The provocation of others was so much a current feature of his presentation that it would inevitably be repeated outside hospital
• Unless Haines was detained in hospital for treatment he would be unable to contain his anger or aggression. Detention in hospital was therefore necessary for the protection of others.
• Appropriate medical treatment was available for Mr Haines in Broadmoor. This included medication and therapy.

The Tribunal said: “Mr Haines has not progressed enough in being able to control his anger and aggression not to require detention, and he is unable to recognise the need for continuing treatment.

“In the community there would in addition be a clear risk of a misuse of alcohol and drugs. He is incapable of coping with anyone perceived to be in authority. In his own evidence Mr Haines very frankly acknowledged that he would have great difficulty in complying with conditions, and would be likely to fail: we are satisfied that in his current presentation he would be unable to comply.”

The Tribunal added that it was “in nobody’s interest” that Haines be detained – whether in high or medium security – for a day longer than absolutely necessary.

“In our judgment detention does remain necessary, and we conclude by observing that it is likely to remain so unless the treating team are able to find a way of engaging Mr Haines, and that this will require an equal commitment by Mr Haines himself.”

A copy of the determination can be downloaded here.

The hearing took place on 27-28 September 2011.

Details

17.Oct.2011

Communities Secretary Eric Pickles has unveiled plans to pilot two “localist” approaches to integrating services.

One pilot will see two areas invited to design and run a ‘neighbourhood level’ Community Budget. The second will see two more areas invited to put together a ‘whole place’ Community Budget. This would set out in practice what a single budget comprising all funding for local public services, or options for pooling and aligning resources, would look like.

The two whole-place pilot areas will be tasked with taking forward a "proof of concept". However the government also wants ten areas to act as "friends of the pilots" through a challenge and learning network.

The four pilot areas will receive support “to break through Whitehall’s bureaucracy”, with the government suggesting the projects could be up and running by April 2013.

Details of the pilots, which will be selected by the end of the year, are contained in a Community Budgets prospectus. A copy of the prospectus can be downloaded here.

Writing in the foreword, Eric Pickles said: "Open Public Services set out how Community Budgets are being used to re-design services for troubled families. They put control in the hands of those who are best placed to shape public services around the needs of local people – public service leaders and local people themselves.

"But we want to go further and to test how local places can make best use of all the money that is spent in their area on public services on a wide range of problems. The pilots set out in the prospectus provide a real opportunity to overcome the long-standing barriers to real local design and leadership of services."

In a speech to the Local Government Association today, the Communities Secretary said: “This is your opportunity to change the future of the way public services are funded and be the thumping heart of your community".

He added: “Test your ambitions to the limit. And the old hands in Whitehall won't realise they've lost control until it's too late.”