• For providers, we can help with queries about admission and detention, consent to treatment, forensic service users, transfers, leave, discharge planning and Hospital Manager/Tribunal hearings. Please see the diagram below for further areas of expertise. We can support your organisation in any challenges to the lawfulness of admission to hospital, detention and treatment.

    For commissioners, we can advise on all matters concerning commissioning responsibility, liability and disputes, including:

    • Responsibility for commissioning a particular package of care;
    • Disputes between the CCG and other CCG(s) as to responsibility for a particular service user;
    • Disputes as between apportionment of responsibility for commissioning a package of care as between the CCG and responsible Local Authority;
    • Internal CCG commissioning panels – including advising around the terms of reference/policies underpinning decision-making;
    • Challenges to decisions around eligibility for commissioning;
    • Interrelationship between the various funding steams applicable to mental health service users;
    • Local agreements between the CCG, the Local Authority and provider organisations as to roles and responsibilities in commissioning packages of care;
    • Commissioning packages of care for complex service users objecting to proposed packages.For all commissioners, providers and care co-ordinators we are experts in advising on the relevant legal frameworks. Mental health service users commonly require comprehensive packages of care and support, involving interferences with their rights under Article 5 and 8 ECHR. We identify the right legal and practical frameworks dealing with controversial issues such as deprivation of liberty, State involvement, use of CCTV monitoring, seclusion, physical restraint and covert medication. We are specialists on the complex interrelationship of the Mental Health Act 1983 and the Mental Capacity Act 2005.

    Bevan Brittan got the clinical team on side very quickly, and blew us away with their efficiency, hard work and attention to detail. They are very approachable and listen to our concern, acting accordingly. We felt very supported by them at some difficult and challenging times.

    Head of Legal NHS Trust,

     

     

  • Mental Health Law Matters

  • JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC), [2016] MHLO 46

    We successfully acted for the Trust responsible for Broadmoor Hospital in the First Tier Tribunal and Upper Tribunal. The issue was 'to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'" The case is to be heard in 2017 the Court of Appeal.

    YZ v NHS Trust [2015] EWHC 2296 (Admin), [2015] MHLO 58

    We successfully acted for a High Secure mental health hospital whose decision to accept the transfer of a patient from Medium Security was challenged by judicial review. The patient argued that transfer to Broadmoor would breach the Code of Practice's least restriction principle and violate Articles 3 and 8.  This case will also be heard in the Court of Appeal in 2017.

    Unreported – S.117 Aftercare Matter

    The department has provided advice to three joint clients regarding a challenging service user eligible for aftercare under section 117 Mental Health Act. The service user's fluctuating capacity to make decisions about her care and residence and also her complex personality created a significant challenge to the public bodies in discharging their statutory responsibilities and duties. This included advising on complex procurement, out of area responsibilities, transitional section 117 aftercare, safe discharge, risk management and complex capacity assessment. Additionally, the department responded robustly to a pre-action letter before action for Judicial Review of the public bodies' decision making.

    Unreported – Section 37/41 MHA 1983

    We acted in the matter of P who had been detained under Section 37/41 of the Mental Health Act 1983 following a conviction for kidnapping and was now an inpatient in a low security unit. The professionals caring for P wished to provide a package of care in the community and discharge from hospital on Conditional Discharge from the Ministry of Justice. We made a successful streamlined application (following the Re X procedure) for authorisation of 24/7 one to one care in community. This case was important in that it was an early case to follow and test the Re X procedure and therefore helped the department to grow its expertise in this developing area of the law.

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