Mental health law common law remedies

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  • 1. NOT IN THE MENTAL HEALTH ACTNOT IN THE MENTAL CAPACITY ACT Professor Anselm Eldergill
  • 2. And not in the 2005 Act Family matters/relationshipsExcluded decisions Treatment under Part IV of 1983 Act Voting Rights Sections 27–29
  • 3. Contents SUBJECT-MATTER NOTES§1 SEXUAL RELATIONS§2 MARRIAGE AND DIVORCE§3 FAMILY ISSUES Terminations Sterilisation§4 MAKING GIFTS AND WILLS§5 DEALING WITH MONEY§6 CRIMINAL LIABILITY Unfitness to plead Insanity defence§7 TORTS AND CONTRACTS§8 OTHER CIVIL RIGHTS Voting Jury service Driving§9 ARTICLE 8 MATTERS Privacy Family life Detainer’s powers
  • 4. Barbara Smith• Ms Smith has been detained under section 3 for four years.• She is aged 45 and her mother is her only known relative.• Her diagnosis is paranoid schizophrenia.
  • 5. Barbara meets JohnBarbara has formed a closerelationship with a restrictedpatient on the ward called John.He is diagnosed as having asevere anti-social personalitydisorder.He was convicted 20 years agoof the manslaughter of his wife,at which time he was thought tobe mentally ill.
  • 6. §1 — SEXUAL RELATIONS
  • 7. The relationship progresses …It is now clear that Barbara ishaving sex with John.There is some concern as to hervulnerability, and whether anycriminal offences are beingcommitted.
  • 8. HOSPITAL MANAGERS Duty of care Duty of care Sexual relations Barbara John Lawful, unlawfulConsider: Whether Barbara has capacity to consent to sexual intercourse, etc. Whether having sexual relations is a ‘human right’. Whether John is committing a criminal offence. The duty of care that the managers owe to Barbara. What right the managers have to set hospital and ward rules. What right the managers have to share information about John?
  • 9. Sexual relations• X City Council v MB (2006) EWHC 168 (Fam), (2006) 2 FLR 968 sets out the test where the question is whether or not someone has capacity to consent to sexual relations.• It is necessary to show that the person has the ability to choose whether or not to engage in sexual activity, which choice requires at least a rudimentary understanding of the nature of the sexual act.• Capacity to consent to sexual relations is issue specific, not partner specific.
  • 10. Sexual intercourseCapacity to consent to sexual intercourse dependson having:a) sufficient knowledge and understanding of the sexual nature and character of the act and the reasonably foreseeable consequences of sexual intercourse;b) the capacity to choose whether or not to engage in it;c) the capacity to decide whether to give or withhold consent to sexual intercourse.It does not depend on an understanding ofthe consequences of sexual intercourse witha particular person. Capacity to consent tosexual relations is issue specific, not partnerspecific.
  • 11. Article 8 Article 12‘Everyone has the right to respect ‘Men and women of marriage-for his private and family life …’ able age have the right to marry and to found a family, according to the national laws governing the exercise of this‘Whilst noting with approval the reform right.’movements in several European countriesto improve prison conditions byfacilitating conjugal visits, the Court “The essence of the right to marry … isconsiders that the refusal of such visits the formation of a legally bindingmay for the present time be regarded as association between a man and ajustified for the prevention of disorder woman. It is for them to decide whetherand crime within the meaning of … or not they wish to enter a marriage in[Article 8 (2)] of the Convention.’ which they cannot cohabit.”Aliev v. Ukraine, No 41220/98, Judgment Hamer v. UK, No 7144/75, 24 DR 5 atof 29 April 2003. 16 (1979) Com Rep. [Prisoner case].
  • 12. R. v Broadmoor Special Hospital Authority ex p. S [1998] C.O.D. 199, C.A. FACTSS and a number of other detained patients claimed that BroadmoorHospital’s policy of conducting routine and random searches was notauthorised by the 1983 Act, and so was unlawful. HELDThe express power to detain a patient for treatment conferred bysections 3 and 37 included a power to exercise control and discipline,and necessarily conferred upon the hospital an implied power to searchwith or without cause.The hospital had shown a ‘self evident and pressing need’ for the power,as required by ex p. Leech (No.2).More particularly, the power of random search was necessary to enableBroadmoor to fulfil its primary function of treating patients and toensure a safe and therapeutic environment for patients and staff. SinceBroadmoors policy was in the interests of all, it overrode any medicalobjections raised in individual cases.
  • 13. Negligence The defendant owed the claimant a duty of care in respect of the damage or loss s/he suffered. The defendant breached the standard of this duty of care. This breach of the duty of care was the cause of the damage or loss suffered. The damage suffered was not too remote from the breach.
  • 14. Sexual Offences Act 2003 OFFENCES — SEXUAL ACTIVITY WITH PERSONS WITH A MENTAL DISORDER Sexual activity with a person with a mental disorder impeding choice; Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity; Engaging in sexual activity in the presence of a person with a mental disorder impeding choice; Causing a person, with a mental disorder impeding choice, to watch a sexual act; Inducement, threat or deception to procure sexual activity with a person with a mental disorder; Causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception; Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder; Causing a person with a mental disorder to watch a sexual act by inducement, threat or deception.
  • 15. Sexual Offences Act 2003 OFFENCES REALTING TO CARE WORKERS• Sexual activity with a person with a mental disorder;• Causing or inciting sexual activity;• Sexual activity in the presence of a person with a mental disorder;• Causing a person with a mental disorder to watch a sexual act.
  • 16. §2 — MARRIAGE AND DIVORCE
  • 17. Till death do us part … Barbara and John are talking about getting married.
  • 18. Marriage and divorce MARRIAGE VOID MARRIAGE VOIDABLE DIVORCE Bigamous Non-consummation Adultery Consanguinity No proper consent Unreasonable behaviour A ge Unfitted to marriage Separation No due ceremony etcNot male and female
  • 19. Matrimonial Causes Act 1973, s12Voidable marriagesA marriage entered into after 31/07/71 is voidable on the following grounds only:a) Non-consummation owing to the incapacity of either party to consummate it;b) Non-consummation owing to wilful refusal of the respondent to consummate it;c) Either party did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise [3 year time limit, or leave];d) At the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage [3 year time limit, or leave];e) At the time of the marriage, the respondent was suffering from venereal disease in a communicable form;f) At the time of the marriage, the respondent was pregnant by some person other than the petitioner;g) An interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party;h) The respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004..
  • 20. Whether capable of valid consent?‘the contract of marriage is a verysimple one which does not require ahigh degree of intelligence tounderstand. It is an engagementbetween a man and a woman to livetogether, and love one another ashusband and wife, to the exclusion ofall others.’ Sir James Hannen in Durham v. Durham (1885)
  • 21. Whether capable of valid consent?In the Sheffield Case, the local authority argued thatcapacity to marry has to be assessed by reference to theparticular marriage proposal in question.The court held that the test is capacity to understand thenature of the contract of marriage, not capacity tounderstand the implications of a particular marriage.The lawfulness of a marriage depends exclusively onconsent, and a court has no jurisdiction to determinewhether marriage in general, or marriage to a particularperson, is in the person’s best interests.Furthermore, if the person has capacity to marry, it isnot necessary to show that s/he also has capacity to takecare of her/his own person and property. Sheffield City Council v E (2004) EWHC 2808 (Fam), (2005) Fam 326
  • 22. ‘Unfitted to marriage’ CASE LAW See Bennett v. Bennett [1969] 1 All ER 539, per Ormrod J. ‘… one sees a great many people in the divorce jurisdiction who, it could be said loosely, are unfitted to be married.’ The question here is, ‘“Is this person capable of living in a married state, and of carrying out the ordinary duties and obligations of marriage”? I do not think it could possibly be given any wider meaning than that …. It [is only] … those unfortunate people who suffer from a really serious mental disorder who can positively be stated … That is clearly not [the case here] … that [Mrs Bennett] was going to be a rather difficult person to be married to, may be, but that is a very different matter.’ ‘merely being difficult to live with does not make a person unfitted to marriage’.
  • 23. C a v e a ts• The couple must give 15 days notice of their intention to marry.• The superintendent registrar files all notices of marriage and enters the particulars in the ‘marriage notice book’.• Any person may then enter a caveat with the superintendent registrar against the issue of a certificate for the marriage of any person named in the caveat. No certificate may then be issued until the superintendent registrar has inquired into the matter and is satisfied that the objection raised does not prevent its issue.• After the 15 day period has expired, the superintendent registrar must issue a certificate to the party who gave notice, unless: (1) s/he is not satisfied that there is no lawful impediment to the issue of the certificate; or (2) the issue of the certificate has been forbidden by an authorised person (i.e. where their consent is required).
  • 24. Detained patients• Section 1 of the Marriage Act 1983 provides for the marriage of patients detained under the 1983 Act.• It places no restriction on patients from marrying, provided they have sufficient mental capacity to contract to marry.• The Marriage Act allows the ceremony to take place in the hospital. In this case, the notice of marriage must be accompanied by a statement from the hospital managers in the prescribed form, dated not more than 21 days before the date of the marriage notice. This statement must: 1. Identify the establishment where the patient is detained; and 2. Confirm that the hospital managers do not object to the establishment being specified in the notice as the place where the marriage will be solemnised.
  • 25. Divorce UNREASONABLE BEHAVIOUR One of the grounds for divorce is ‘(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent …’ [See Divorce Reform Act 1969, s2(1)(b)]. The behaviour … may include … behaviour is caused by mental or physical illness or injury, and may be involuntary. It will be for the judge to decide … whether [the] behaviour is sufficiently grave to make it unreasonable to expect the petitioner to endure it … [The] judge will have regard to all the circumstances including the disabilities and temperaments of both parties, the causes of the behaviour, … whether the causes were or were not known to the petitioner, the presence or absence of intention, the impact … on the petitioner and the family unit, its duration, and the prospects of cure or improvement in the future.’ Thurlow v Thurlow [1976] Fam 32, [1975] 2 All ER 979
  • 26. §3 — FAMILY ISSUES
  • 27. Barbara is pregnant Barbara is now pregnant. It has been suggested that an abortion would be in her best interests. It has also been suggested that sterilisation might be in her best interests.
  • 28. Terminations — General Principle For the purposes of the law relating to abortion, anything done with intent to procure a miscarriage (or, in the case of a woman carrying more than one foetus, the miscarriage of any foetus) is unlawfully done unless authorised by the Abortion Act 1967 s.1
  • 29. Abortion Act 1967, s1A person is not guilty of an offence under the law relating to abortion where apregnancy is terminated by a registered medical practitioner if two registeredmedical practitioners are of the opinion, formed in good faith:1. that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family;2. that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;3. that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or4. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
  • 30. General case law A man has no right to prevent his wife or girlfriend from having a legal abortion: Paton v British Pregnancy Advisory Service Trustees [1979] QB 276, [1978] 2 All ER 987, DC (husband refused injunction to prevent legal termination); C v S [1988] QB 135, [1987] 1 All ER 1230, CA (injunction refused to putative father). The foetus, while unborn, cannot be a party to legal p r o c e e d i n g s i n s t i t u t e d f o r t h a t p u rp o s e : C v S [ 1 9 8 8 ] QB 135, [1987] 1 All ER 1230, CA.
  • 31. Re SG (Adult Mental Patient: Abortion) In Re SG (Adult Mental Patient: Abortion) [1991] 2 FLR 329, the court considered whether the termination of the pregnancy of a mentally incapacitated woman was a special operation, and to be dealt with in the same way as proposed sterilisations. Sir Stephen Brown P held that the termination of a pregnancy was already closely regulated by statute, which provided fully adequate safeguards for doctors who are to undertake this treatment (at 331). It was, therefore, not necessary to seek the specific approval of the High Court before the termination of a pregnancy, provided the conditions of s1 of the Abortion Act 1967 were complied with. The judge did, however, note that this was a developing branch of the law (at 330).
  • 32. Hospital protocols and legal adviceIn Re SS (Medical Treatment: Late Termination), Wall J stated:‘Pregnant patients in psychiatric hospital are not unusual. The issueof the termination of pregnancies in such circumstances must arisefrequently. It seems to me essential that each hospital should have aprotocol to deal with possible terminations of such pregnancies, andthat these protocols should be designed to address the issue in goodtime so that, wherever practicable and in the interests of the patient,a termination can be carried out at the earliest opportunity.Furthermore, any such protocol should ensure that the patient isreferred at an early stage to independent legal advice, whether fromthe Official Solicitor or the solicitor who, as in this case, appears tohave represented her at the Mental Health Review Tribunal.
  • 33. D v An NHS Trust D v An NHS Trust (Medical Treatment: Consent: Termination) [2004] 1 FLR 1110, [2003] EWHC 2793 (Fam), Family Division, Coleridge J FACTS• A young woman suffering from severe schizophrenia was admitted to hospital pursuant to the provisions of the Mental Health Act 1983. Upon admission it was discovered that she was pregnant. The treating doctors decided that a termination of the pregnancy was necessary to prevent grave permanent injury to her physical or mental health and signed a certificate to that effect. The hospital applied for a declaration that it could lawfully carry out a termination.• The judge found that the defendant was suffering from a mental incapacity which rendered her incapable of making an informed decision about the termination and further that the procedure was in her best interests. The judge granted the declaration and the question arose as to whether it had been necessary to seek a declaration from the court at all. continues…
  • 34. D v An NHS Trust HELD• (1) The effect upon a mentally incapacitated woman of terminating a pregnancy should not be underestimated. It could not be correct to leave responsibility for all such decisions, regardless of the circumstances, with medical professionals (see para [30]).• (2) The Human Rights Act 1998 had enhanced the responsibility of the court to positively protect the welfare of these patients, and in particular the patient’s right to a private and family life under Article 8(1) of the European Convention (see para [31]).• (3) A termination carried out in accordance with the requirements of the Abortion Act 1967, in circumstances where a patients best interests required it, was a legitimate and proportionate interference with her Article 8(1) rights, carried out for the protection of health under Article 8(2). Where issues of capacity and best interests were clear and beyond doubt, an application to the court was not necessary (see para [32]). Continues …
  • 35. D v An NHS Trust• (4) If there was any doubt as to capacity or best interests, an application to the court should be made. If any case falls near the boundary line, it should be referred to the court in good time, in particular where: a) there is a dispute as to capacity or where there is a realistic prospect that the patient will regain capacity, within her pregnancy or shortly thereafter; b) there is a lack of unanimity amongst the medical professionals as to the patients best interests; c) procedures under the Abortion Act 1967 have not been followed; d) the patient, members of her immediate family or the foetus father have opposed or expressed views inconsistent with a termination; e) there are other exceptional circumstances (including that it may be the patients last chance to bear a child) (see paras [34], [36]).
  • 36. Mental Capacity Act 2005 Terminations• 6.18. Some treatment decisions are so serious that the court has to make them … The Court of Protection must be asked to make decisions relating to:• cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person• the proposed non-therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes)• cases where there is a dispute about whether a particular treatment will be in a person’s best interests. Code of Practice• 6.19 This last category may include … certain cases involving a termination of pregnancy …
  • 37. Sterilisation
  • 38. Practice Direction ECourt of ProtectionThe practice direction sets out the procedure to be followed where theapplication concerns serious medical treatment.Cases involving any of the following decisions should be regarded as seriousmedical treatment for the purpose of the Rules and the practice direction, andshould be brought to the court: (a) decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state; (b) cases involving organ or bone marrow donation by a person who lacks capacity to consent; and (c) cases involving non-therapeutic sterilisation of a person who lacks capacity to consent.
  • 39. Practice Direction EExamples of serious medical treatment may (also) include: (d) certain terminations of pregnancy in relation to a person who lacks capacity to consent to such a procedure;Members of the Official Solicitor’s staff are prepared to discussapplications in relation to serious medical treatment before anapplication is made.Any enquiries about adult medical and welfare cases should beaddressed to a family and medical litigation lawyer at the Office of theOfficial Solicitor, 81 Chancery Lane, London WC2A IDD, ph: 020 79117127, fax: 020 7911 7105, email: enquiries@offsol.gsi.gov.uk.See the Practice Note for matters to be considered at the first directionshearing.
  • 40. Evidence required (1)Previous guidance provides that the court will particularly require evidence clearlyestablishing the following:Mental capacity (1) That the patient is incapable of making her own decision about sterilization and is unlikely to develop sufficiently to make an informed judgment about sterilization in the foreseeable future, having regard to the most up-to-date medical knowledge in this field. In this connexion it must be borne in mind that— (i) the fact that a person is legally incompetent for some purposes does not mean that she necessarily lacks the capacity to make a decision about sterilization; and (ii) in the case of a minor her youth and potential for development may make it difficult or impossible to make the relevant finding of incapacity.Risk of pregnancy (2) That there is a need for contraception because the patient is fertile and is sexually active or is likely to engage in sexual activity in the foreseeable future: Re W (An Adult: Sterilization) [1993] 2 FCR 187.
  • 41. Evidence required (2)Potential psychological damage (3) That the patient is likely if she becomes pregnant or gives birth to experience substantial trauma or psychological damage greater than that resulting from the sterilization itself.Alternative methods of contraception (4) That there is no appropriate reversible method of contraception available having regard to the most up-to-date medical knowledge in this field.
  • 42. Case law Re GF (Medical Treatment) [1992] 1 F.L.R. 293, Sir Stephen Brown, PFacts• The mother of a 29-year-old severely mentally handicapped woman sought a declaration that a hysterectomy proposed for her daughter would be lawful. The patient suffered from severe menorrhea and was unable to cope with the condition. Although the operation was therapeutic in intention, it would have the incidental effect of sterilising the woman.Held• No declaration was required for an hysterectomy which would have the incidental consequence of sterilising a patient unable to consent to it, provided that: (1) the operation was necessary for therapeutic purposes; (2) it was in the patients best interests; and (3) there was no other practicable method of treatment.
  • 43. Case law Re W (An Adult: Mental Patient) (Sterilisation) [1993] 1 F.L.R. 381, Hollis JFacts• The patient had severe learning difficulties, mobility and hearing impairments, severe epilepsy and mild cerebral palsy. She could not consent to medical treatment and had very little understanding about sexual matters and childbirth. There was a risk that her epilepsy would worsen during pregnancy. Her mother, who was the main carer, wanted her to live in the community and to socialise with members of both sexes. Contraception had been rejected as inappropriate. The mother sought a declaration for the lawful sterilisation of her daughter.Held• Declaration granted. Although the risk of pregnancy was small, in the light of the medical opinion it was in the patients best interests for sterilisation to be performed.
  • 44. Case law Re S (Medical Treatment: Adult Sterilisation) [1998] 1 FLR 944, Family Division, Johnson J.Facts• S was aged 22. Her mental and emotional state meant that she was unable to look after herself and vulnerable to sexual exploitation. Her mother, M, sought a declaration that it would be lawful to sterilise her to eliminate the risk of pregnancy.Held• The assessment of future risk had to be based on circumstances that existed or could reasonably be foreseen to exist. S was rarely away from her parents supervision, and was never unsupervised. There had been no identifiable occasion when she had been at risk, unlike those cases in which sterilisation had been approved. If the court declared sterilisation to be lawful in this case, it would have been difficult to envisage any factual situation in which the relief would be refused. Application dismissed.
  • 45. Case law R-B (A Patient) (By his Mother & Litigation Friend) v The Official Solicitor sub nom Re A (Mental Patient: Sterilisation) (1999) CAFACTS• A was 28 years old, had Down’s Syndrome and had been assessed to be on the borderline between significant and severe impairment of intelligence. He lived with his mother, aged 63 (who had cared for him from birth) and attended a day centre three days a week. The judge found that A had no understanding of the link between sexual intercourse and pregnancy; that A was and would remain incapable of understanding the purpose of the proposed operation; and that A would not be capable of giving or refusing consent to it. He was however sexually aware and active, as well as fertile.• On behalf of the Official Solicitor, who defended the action, it was submitted that there was a presumption against sterilisation of a mentally incapacitated patient on non-therapeutic grounds which could be displaced by evidence of good reasons in the best interests of the patient. The operation could only be carried out if it was in the best interests of the patient.
  • 46. Case law• According to the OS, the facts of the present appeal did not establish that the proposed operation was in the best interests of A, but there might in the future be a change of circumstances which might then establish a case for sterilisation. • HELD• (1) “Best interests” encompassed medical, emotional and all other welfare issues.• (2) A doctor acting to the required standard of Bolam v Friern Hospital Management Committee (1957) had a second duty to act in the best interests of a mentally incapacitated patient. The two duties had not been conflated into one requirement. In the case of an application for approval of a sterilisation operation, it was the judge not the doctor who made the decision that it was in the best interests of the patient that the operation be performed.• (3) The concept of best interests related to the mentally incapacitated person, not to his carers (re F (supra)) or third parties generally.
  • 47. Case law• (4) Whilst the protection of vulnerable women and the undesirability of allowing a pregnancy or birth to occur were understandable social concerns, they were not relevant to the issue before the court. However, the question whether third party interests should ever be considered in a case concerned with the best interests of a patient ought to be left open.• (5) The case had to be proved that an operation to sterilise was in the best interests of the person unable to consent.• (6) An application on behalf of a man for sterilisation was not the equivalent of an application in respect of a woman. There was no direct consequence for a man of sexual intercourse other than the possibility of sexually transmitted diseases. In the case of a man who was mentally incapacitated, neither the fact of the birth of a child nor disapproval of his conduct was likely to impinge on him to a significant degree other than in exceptional circumstances. His freedom of movement might be restricted and consequently his quality of life might be diminished.
  • 48. Case law• (7) In the present appeal, the evidence did not show that sterilisation was at present in As best interests, particularly as there was no evidence that if sterilisation took place, the present high degree of supervision would be relaxed, giving A more freedom. If circumstances changed a hearing could then be sought before a High Court judge to grant a declaration that sterilisation was then in As best interests.
  • 49. SL Case SL (By Her Litigation Friend, The Official Solicitor) v SL (Her Mother) sub nom Re S (Adult Patient: Sterilisation) sub nom Re S (Sterilisation: Patient’s Best Interests) (2000) CA FACTS• The case involved an appeal by a woman with severe learning difficulties (S) against a decision by Wall J on 24 January 2000 granting a declaration that an operation of sterilisation and/or hysterectomy could be performed on her for therapeutic purposes. HELD• In principle, it was agreed that forensic medical evidence was given to assist the judge, who must weigh the value of that evidence and make her/his own decision, and “best interests” was wider in concept than medical considerations. continues…
  • 50. SL Case …• Therefore a judge had to decide whether to accept or reject the expert medical opinion that an operation was, or was not, in the best interests of a patient. In an appropriate case the judge had a discretion to go beyond undue medical caution.• In the instant case the weight of unanimous evidence appeared to be impressive and supported the less invasive method. The patient had a right not to have drastic surgery imposed upon her unless or until it had been demonstrated that it was in her best interests. The decision also offended against the doctrine of primum non nocere.• The starting point of any medical decision was the principles set out in the Bolam (supra) test, and the judicial decision would incorporate broader ethical, social, moral and welfare considerations. The test should have been what was in Ss best interests.
  • 51. §4 — MAKING GIFTS AND WILLS
  • 52. Barbara makes a gift Barbara gives her house to a patient whom she feels sorry for.
  • 53. Gifts ‘The degree (of understanding) required varies with the circumstances of the transaction. Thus, at one extreme, if the subject-matter and value of a gift are trivial in relation to the donors other assets, a low degree of understanding will suffice. At the other, if its effect is to dispose of the donor’s only asset of value ... then the degree of understanding required is as high as that required of a will.’ (Re Beaney (deceased) (1978) 2 All ER 595)Consider: the donor’s financial circumstances; the value of the assettransferred and its significance to the person giving it away; whether thedonor knew that the transaction was a gift; who the recipient is, and whetherthat person has received other (substantial) gifts; the underlying purpose ofthe transaction.
  • 54. Barbara makes a will • Having inherited some money, Barbara wishes to make a will. • She is told that she cannot, because she is ‘incapable of managing her property and affairs.’ • A solicitor has been asked to draw up a will for her.
  • 55. Wills ‘A patient is capable of making a valid will if s/he understands:  the nature of the act and its effects,  the extent of the property of which s/he is disposing,  and can comprehend and appreciate the claims to which s/he ought to give effect.’ Banks v Goodfellow (1870)
  • 56. §5 — DEALING WITH MONEY
  • 57. Ms Smith inherits • Barbara has just inherited £55,000 from a distant cousin. This is in the patients bank at present. • She is incapable of managing her financial affairs, by reason of her mental disorder.
  • 58. Court of Protection: Property and AffairsSubject to section 20 (restrictions on deputies), the powers under section16 as respects P’s property and affairs extend in particular to: Managing property  the control and management of P’s property;  the sale, exchange, charging, gift or other disposition of P’s Selling property property;  the acquisition of property in P’s name or on P’s behalf; Settling Property  the carrying on, on P’s behalf, of any profession, trade or business; Trade, profession,  the taking of a decision which will have the effect of dissolving a partnership of which P is a member; business  the carrying out of any contract entered into by P; Business partnership  the discharge of Ps debts and of any of Ps obligations, whether legally enforceable or not; Contracts  the settlement of any of Ps property, whether for Ps benefit or for the benefit of others; Debts  the execution for P of a will (although no will may be made under Wills this power at a time when P has not reached 18);  the exercise of any power (including a power to consent) vested in P Trust powers whether beneficially or as trustee or otherwise;  the conduct of legal proceedings in Ps name or on Ps behalf. Legal proceedings  Note that Schedule 2 supplements the provisions of section 18. Section 18
  • 59. §6 — CRIMINAL LIABILITY
  • 60. Ms Smith assaults Albert• Last week, Barbara hit a patient called Albert who she thought was involving in some plot against her.• Ward staff intervened as quickly as was humanly possible.• Albert suffered cuts and bruising and has sought legal advice about getting compensation.
  • 61. Fitness for trial‘There are three points to be inquired into:first, whether the prisoner is mute of malice or not;secondly, whether he can plead to the indictment or not;thirdly, whether he is of sufficient intellect to comprehend the course of proceedingson the trial, so as to make a proper defence … and to comprehend the details of theevidence ... if you think that there is no certain mode of communicating the detailsof the trial to the prisoner, so that he can clearly understand them, and be ableproperly to make his defence to the charge; you ought to find that he is not of sanemind. It is not enough, that he may have a general capacity of communicating onordinary matters.’ Pritchard (1836) 7 C&P 303, Per Alderson B
  • 62. Fitness for trialThe issues are whether the defendant is capable of:1. understanding the charge;2. understanding the difference between a plea of guilty and not guilty and the course of the proceedings so as to make a proper defence;3. challenging a juror to whom he might wish to object;4. understanding the details of the evidence; and5. giving evidence. Criminal Procedure (Insanity) Act 1964 (as amended)
  • 63. Insanity defence• Every person of the age of discretion is, unless the contrary is proved, presumed by law to be sane and to be accountable for his actions: R v Layton (1849) 4 Cox 149.• The onus is on the defence to establish insanity at the time of the offence on the balance of probabilities.• Where the jury finds insanity is made out in the Crown Court, the verdict takes the special form of not guilty by reason of insanity.
  • 64. M’Naghten RulesA defendant is not responsible for his act if it appears that, at thetime of the act or omission giving rise to the offence alleged:‘he was labouring under a defect of reason owing to a disease of themind so as not to know the nature and quality of his act, or, if heknew this, so as not to know that what he was doing was wrong.’ MNaghtens Case (1843)
  • 65. M’Naghten Rules The defendant had a ‘disease of the mind’ S/he was suffering from a ‘defect of reason’ as a resultS/he did not ‘know the nature S/he did not ‘know that it and quality of her/his act’ was wrong [i.e., unlawful]’
  • 66. Automatism• An act is done in a state of automatism if it is done by the muscles without any control by the mind (such as a reflex action, or a spasmodic or convulsive act) or is done during a state involving a loss of consciousness. In law automatism is limited to cases where there is a total destruction of voluntary control. Impaired or reduced awareness will not do.• A person does not incur criminal liability for acts done in a state of automatism, as where he causes harm to someone during a mental blackout induced by an external factor such as violence or drugs, including anaesthetics, alcohol and hypnotic influences, or by forces outside his control, because such an act is involuntary on his part.• There must be credible evidence of an external factor for example a blow to the head, skidding on ice, being stung by bees, an anaesthetic, which is unlikely to recur. They should have the feature of novelty or accident.
  • 67. Epilepsy, etc• An assault committed during an epileptic fit, sleepwalking due to an internal cause, mental blackout due to cerebral tumour are all examples of internal causes, and hence insanity. Epilepsy looks like automatism but in law is insanity.• Hyperglycaemia: If the defendant forgets to take his insulin and gets a high blood sugar level – resulting in a criminal act - this is seen as deriving from the diabetes and is classed as a disease of the mind/insanity.• Hypoglycaemia: If the defendant takes too much insulin - resulting in a too low blood sugar and a consequential criminal act - the courts take the view that this is due to an outside source (the insulin) which does not fall within the M’Naghten Rules. This is classed as defence of non-insane automatism which – if successful – results in a full acquittal.
  • 68. §7 — TORTS AND CONTRACTS
  • 69. Insanity defence• Assume that Barbara is found to be insane at the time of the assault under the criminal law, and so not responsible for her Act.• Does this also mean that she is not responsible under civil law, and is not liable to pay damages to Albert?
  • 70. Torts In Morriss v Marsden, the defendant made an unexpected and violent attack on the plaintiff. In the criminal proceedings, he was found unfit to plead and was sent to Broadmoor. In the civil action for damages, Stable J. held that: • the assault was a voluntary act in the sense that it was done under the direction of the defendant’s mind; • although he did not realise that his act was wrong, he knew the nature and quality of his act; • knowledge of wrongdoing was immaterial. • Morriss v Marsden [1952] 1 All ER 925Exceptions: (1) actions committed by a person who did not know the natureor quality of their act; (2) torts requiring specific intention, such as malice(e.g., malicious prosecution).
  • 71. Ms Smith buys some shares • Barbara buys some shares costing £15,000 • The following week the company goes into liquidation. • The shares are now worthless.
  • 72. Contracts• To have capacity to contract, a patient must be capable of understanding the nature and effect of the contract.• However, a contract entered into by a mentally disordered person is enforceable by the other party unless it can be shown: • that at the time the contract was entered into the former was mentally incapable; and • the other party knew of that incapacity.• The burden of proof with regard to both issues is on the mentally disordered party, and there is a general legal presumption of sanity.• Where the other party knew that the patient was incapacitated at the time s/he entered into the contract, the contract is not void but merely voidable at the option of the mentally disordered person.
  • 73. Ms Smith goes to law Barbara consults a solicitor from Shaft Yew & Co about her many problems. She receives a bill for £750 and then a final demand for payment.
  • 74. §8 — OTHER CIVIL RIGHTS
  • 75. Voting• The Representation of the People Act 2000 allows patients detained under the civil provisions (i.e., Part II) and prisoners remanded to hospital under ss. 35, 36 or 48 to register to vote.• Those detained in hospital as a result of criminal activity may not vote.• In order for a person to vote, his/her name must appear on the electoral register. A person may place his/her name on the electoral register if, on the relevant date, s/he is resident in the area concerned, meets the nationality requirement, is of voting age, and is not legally incapable of voting.
  • 76. Capacity to vote • Even if a person is registered to vote, their vote may be rejected if they are legally incapable of voting. • Legal incapacity to vote is ‘some quality inherent in a person, which, either at common law or by statute, deprives him of the status of a Parliamentary elector’: Stowe v. Jolliffe (1874), per Lord Coleridge CJ. • Persons disqualified under common law are ‘idiots’ (Burgess Case, 1785) and, unless enjoying a lucid interval, the ‘insane’ (Oxfordshire case ; Robins Case, 1791; Tuckers Case, 1803). • In practice, the essential issue is whether the individual can answer the statutory questions (e.g., are you the person registered in the register of Parliamentary electors?) in an intelligible manner.
  • 77. Serving as a juror JURIES ACT 1974 ‘MENTALLY DISORDERED PERSON’• A ‘mentally disordered (1) A person who suffers or has suffered person’ is not eligible from mental disorder within the to act sit as a juror. meaning of the 1983 Act and on account of that condition either—• The term ‘mentally disordered person’ is (a) is resident in a hospital or similar defined in Part 1 of institution; or Schedule 1 to the 1974 Act. (b) regularly attends for treatment by a medical practitioner. (2) A person who is subject to guardianship or a community treatment order under the 1983 Act. (3) A person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to serve as a juror.
  • 78. Driving — General rule The Secretary of State must refuse to grant a driving licence to, or must revoke an existing licence of, a person suffering from a prescribed disability: these include severe mental disorder and epilepsy. Road Traffic Act 1988 s 92 ‘SEVERE MENTAL DISORDER’ Severe mental disorder includes mental illness, arrested or incomplete development of the mind, psychopathic disorder and severe impairment of intelligence and social functioning. Motor Vehicles (Driving Licences) Regulations 1999, reg. 71(4)(a)
  • 79. Driving EXCEPTIONS TO THE GENERAL RULEThe Secretary of State must not refuse to grant alicence because of a relevant disability if: the applicant has at any time passed a driving test and it does not appear to the Secretary of State that the disability has arisen or become more acute since that time; the applicant satisfies such conditions as may be prescribed concerning the grant of a driving licence in cases where the disability is appropriately controlled; the application is for a provisional licence.
  • 80. Driving ‘RELEVANT DISABILITIES’ a) epilepsy; b) severe mental disorder; e) persistent misuse of drugs or alcohol .. ‘SEVERE MENTAL DISORDER’ Severe mental disorder includes mental illness, arrested or incomplete development of the mind, psychopathic disorder and severe impairment of intelligence and social functioning.Motor Vehicles (Driving Licences) Regulations 1999, reg. 71
  • 81. DVLA GuidanceACUTE PSYCHOTIC DISORDERS OF ANY TYPEDriving must cease during the acute illness. Re-licensing can be considered when all of the followingconditions can be satisfied:a) Has remained well and stable for at least 3 months;b) Is compliant with treatment;c) Is free from adverse effects of medication which would impair driving;d) Subject to a favourable specialist report. ‘Drivers who have a history of instability and/or poor compliance will require a longer period off driving.’
  • 82. §9 — ARTICLE 8 MATTERS
  • 83. Article 81. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society // in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
  • 84. Respect for private and family life PRIVATE LIFE FAMILY LIFE Personal life  Family ties Relationships  Cohabitation Sexual identity  Family Telephone calls, data visits/children Health and injury  Protection from domestic violence Sexual practices  Hospital transfers? Mail Personal office space
  • 85. Connor, Re An Application for Judicial Review [2004] NICA 45, CAFACTSThe appellant was diagnosed as suffering from cognitive impairment as a result of long-term alcohol abuse.On 12 December 2000, she was detained under the 1986 Order and transferred to Holywell Hospital. InNovember 2001, she was transferred to Chisholm House as a detained patient. In May 2002 she became thesubject of a guardianship order. On 22 November 2002, she married Mr Kenneth Connor.Mrs Connor wished to live with her husband. On 12 December 2002, the guardianship order was renewed,and thereafter Mrs Connor was permitted to have one overnight visit per week with her husband.Mrs Connor began judicial review proceeding against the trusts decision to require her to reside at ChisholmHouse, on the basis that this decision constituted breach of her rights under article 8 and article 12 of theEuropean Convention.SUBMISSIONSThe trust accepted that its decision to require Mrs Connor to live in Chisholm House constituted aninterference with her article 8 rights. It submitted that this decision was taken in accordance with law andwas both necessary to safeguard her and proportionate in its pursuit of that aim.Counsel for the appellant submitted that the various reports and assessments written by the social workersand others, and relied on by the respondent, do not demonstrate that the trust considered the applicant’ssituation against the background of her right to marry and found a family or her right to a private and familylife. There was no analysis of the applicants situation ‘through the prism of the European Convention’ norwas there any analysis of the alternatives that might be open to the trust.
  • 86. Re Connor, continuedHELD (KERR LCJ)It was well settled that in order to satisfy the requirement of proportionality three criteria mustbe satisfied:—(i) The legislative objective must be sufficiently important to justify limiting a fundamentalright;(ii) The measures designed to meet the legislative objective must be rationally connected to thatobjective – they must not be arbitrary, unfair or based on irrational considerations;(iii) The means used to impair the right or freedom must be no more than is necessary toaccomplish the legitimate objective – the more severe the detrimental effects of a measure, themore important the objective must be if the measure is to be justified in a democratic society.It was for the state to justify the interference. There was no evidence that the trust everrecognised, much less addressed, the interference with the appellants article 8 rights. In noneof the documents generated by the trusts consideration of her case could any reference toarticle 8 be found.The consideration of whether an interference with a convention right could be justified involvedquite a different approach from an assessment at large of what is best for the person affected.The trust’s consideration of Mrs Connors case clearly partook of the latter of these.It was impossible to say that if the trust had recognised its obligation not to interfere more thanwas necessary with Mrs Connors convention right, it would in any case have been bound tohave come to the conclusion that it did.
  • 87. R. v Broadmoor Special Hospital Authority ex p. S [1998] C.O.D. 199, C.A. FACTSS and a number of other detained patients claimed that BroadmoorHospital’s policy of conducting routine and random searches wasnot authorised by the 1983 Act, and so was unlawful. HELDThe express power to detain a patient for treatment conferred bysections 3 and 37 included a power to exercise control anddiscipline, and necessarily conferred upon the hospital an impliedpower to search with or without cause.The hospital had shown a ‘self evident and pressing need’ for thepower, as required by ex p. Leech (No.2).More particularly, the power of random search was necessary toenable Broadmoor to fulfil its primary function of treating patientsand to ensure a safe and therapeutic environment for patients andstaff. Since Broadmoors policy was in the interests of all, it overrodeany medical objections raised in individual cases.
  • 88. R v Secretary of State for Health, ex p. Lally, QBD, 11 October 2000 HELDRestrictions on child visits to patients in high security hospitals who hadcommitted murder, manslaughter, or certain sexual offences unless the child wasone of a permitted category, were lawful, and not in breach article 8 of theEuropean Convention on Human Rights.
  • 89. R v Ashworth Special Hospital Authority and Another, ex p. N, QBD, 11 May 2001 FACTSPatient N challenged direction 29(3) of the Safety and Security in Ashworth,Broadmoor and Rampton Hospitals Directions 2000. This direction gave adiscretionary power to special hospital authorities to record and listen to a random10 per cent of non-high risk patients’ telephone calls. N contended that blanketmonitoring imposed without reference to a personal assessment of his riskconstituted a disproportionate interference with his right to privacy. HELDHigh-risk patients, who were subject to 100 per cent telephone monitoring, sufferedsignificantly greater interference with their article 8 right than non-high risk ones.The risk by the latter of abusing up to 90 per cent of calls was accepted, andassessed as acceptable and capable of being met by random monitoring.The measure adopted was within the margin of appreciation permitted in respect ofarticle 8, tailored to the aim to be achieved, and not excessive having regard to theextent and consequences of the security risks and the established degree ofmanipulation possible.
  • 90. Regina (E) v Ashworth Hospital Authority, QBD 19 December 2001 FACTSAshworth Hospital Authority restricted E’s aspiration to dressas a woman to the use of limited garments generally wornwithin the confines of his own room. HELDThere was plainly an implied general power to control whatpatients wore. There was a pressing and self-evident need forthat power. It was a necessary incident of the power to detainfor treatment.The restrictions placed on the wearing of women’s clothing bythe claimant constituted a lawful exercise of that power, sincethey were being exercised for both the purpose of detentionand treatment.
  • 91. Regina v. Ashworth Hospital Authority (now Mersey Care National Health ServiceTrust) (Appellants) ex p. Munjaz (FC) (Respondent) House of Lords [2005] UKHL 581 — STATUS OF THE CODE (‘COGENT REASONS’ FOR ANY DEPARTURE)Mr Munjaz contended that the Ashworth seclusion policy was unlawful under domestic law because it provided for lessfrequent medical review of seclusion, particularly after day 7, than is laid down in the Code.Lord Bingham: ‘[The Code] describes itself as guidance. There is a categorical difference between guidance andinstruction. … The Secretary of State has a power to give binding directions to hospital authorities (see section 17 of the1977 Act) but that was not the power he was exercising when he issued the Code.… The Code does not have the binding effect which a statutory provision or a statutory instrument would have. It iswhat it purports to be, guidance and not instruction. But it is much more than mere advice which an addressee is free tofollow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it shoulddepart only if it has cogent reasons for doing so … In reviewing any challenge to a departure from the Code, the courtshould scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivityof the subject matter requires … It is not for the courts to resolve debatable issues of professional practice, but to rule onissues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it asunlawful.’Lord Hope: ‘I would emphatically reject any suggestion that they have a discretion to depart from the Code as they seefit. Parliament by enacting section 118(1) has made it clear that it expects that the persons to whom the Code isaddressed will follow it, unless they can demonstrate that they have a cogent reasons for not doing so.’
  • 92. Munjaz (2)2 — COGENT REASONS SHOWN BY ASHWORTH HOSPITALLord Bingham: ‘The extensive evidence adduced by the Trust makes clear that the code was very carefully considered. Inconsidering the frequency of medical review after Day 7 the Trust were in my opinion entitled to take account of threematters in particular. First, … the Code was directed to the generality of mental hospitals and did not address the specialproblems of high security hospitals … Secondly, the Code did not recognise the special position of patients whom it wasnecessary to seclude for longer than a very few days. Thirdly, the statutory scheme … deliberately left the power andresponsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing andcaring for the patients.’3 — WHETHER ASHWORTH POLICY INCOMPATIBLE WITH THE CONVENTIONLord Bingham: ‘Seclusion is universally recognised to be an unwelcome necessity of last resort, never a preferred option. Itis justified only when used to protect others, and then for the shortest period necessary for that purpose.’Article 3The Trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3 … thereis no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach ofthose rights.Article 5The Ashworth policy … does not permit a patient to be deprived of any residual liberty to which he is properly entitled:seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who havea right to be protected.
  • 93. Munjaz (3)Article 8It is obvious that seclusion, improperly used, may violate a patient’s article 8 right in a serious and damaging way andmay found a claim for relief. I have, for my part, some difficulty in appreciating how seclusion can be said to show anylack of respect for a patients private and family life, home or correspondence, if it is used as the only means of protectingothers from violence or intimidation and for the shortest period necessary to that end. A detained patient, when in his rightmind or during lucid intervals, would not wish to be free to act in such a way and would recognise that his best interestswere served by his being prevented from doing so.Seclusion under the policy is plainly necessary for the prevention of disorder or crime, for the protection of health or morals,or for the protection of the rights and freedoms of others. Properly used, the seclusion will not be disproportionate becauseit will match the necessity giving rise to it.The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is importantand salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random andarbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable andforeseeable by those to whom they are applied.SUMMARYThe Court of Appeal’s conclusion ‘gives the Code a weight which Parliament did not give it, which the Secretary of Statedoes not support and which the Convention context does not require. It deprives local managers of the judgmentalauthority they were given and intended to exercise, and so has a strong (and in my opinion impermissible) centralisingeffect. It elevates the authority of the Code in a way for which there is no warrant in the statute or the Code.’
  • 94. R. v Broadmoor Special Hospital Authority ex p. S [1998] C.O.D. 199, C.A. FACTSS and a number of other detained patients claimed that BroadmoorHospital’s policy of conducting routine and random searches wasnot authorised by the 1983 Act, and so was unlawful. HELDThe express power to detain a patient for treatment conferred bysections 3 and 37 included a power to exercise control anddiscipline, and necessarily conferred upon the hospital an impliedpower to search with or without cause.The hospital had shown a ‘self evident and pressing need’ for thepower, as required by ex p. Leech (No.2).More particularly, the power of random search was necessary toenable Broadmoor to fulfil its primary function of treating patientsand to ensure a safe and therapeutic environment for patients andstaff. Since Broadmoors policy was in the interests of all, it overrodeany medical objections raised in individual cases.
  • 95. Negligence and Article 2
  • 96. Gray Gray v Thames Train Limited & Others [2009] UKHL 33, HLFACTS1. G had been a passenger on a train involved in the Ladbroke Grove rail crash. The experience caused him to suffer PTSD. While he was receiving treatment, he stabbed to death a pedestrian who had stepped into the path of his car. He pleaded guilty to manslaughter, on the grounds of diminished responsibility caused by PTSD, and was sentenced to be detained in hospital.2. G then sued the train company in an action for negligence, claiming from them (1) general damages for his conviction, detention and feelings of guilt and remorse, and for damage to his reputation; (2) special damages for loss of earnings; and (3) an indemnity against any claims which might be brought by dependants of his victim.3. On the one hand, but for the accident and the stress disorder it caused, G would not have killed and would not have suffered the consequences for which he sought compensation. On the other hand, the killing was a voluntary and deliberate act.
  • 97. Gray (2) Gray v Thames Train Limited & Others [2009] UKHL 33, HLHELD1. It was a well-established rule of law (“ex turpi causa”), based on public policy, that a person cannot recover compensation for losses which they suffer as a consequence of their own criminal act, e.g. general damages for feelings of guilt and remorse or an indemnity against any claims.2. Likewise, a person is prevented from recovering damages for losses that are the consequence of the sentence imposed on them for their criminal act, e.g. general damages for being detained and loss of earnings.3. Per Lord Phillips: Where the sentencing judge made it clear that the defendants offending behaviour played no part in the decision to impose the hospital order, it was strongly arguable that the order should be treated as being a consequence of the defendant’s mental condition and not of his criminal act. In that event ex turpi causa would not apply.
  • 98. Savage Savage v South Essex Partnership NHS Trust [2008] UKHL 74, HLFACTS1. C, who suffered from paranoid schizophrenia, committed suicide after absconding from a hospital run by the trust. An inquest had found that the precautions taken by the trust to prevent her from absconding were inadequate.2. A claim was made that the trust had breached Cs Article 2 rights by allowing her to escape and commit suicide.HELD1. Hospitals already faced potential liability in negligence if they failed to take reasonable care of their patients.2. Where members of staff knew, or ought to have known, that a particular patient presented a real and immediate risk of suicide, the hospital had an additional ‘operational obligation’ (under Article 2) to do all that ‘could reasonably be expected’ to prevent the patient from committing suicide.3. In judging what ‘could reasonably be expected’, the court had to take into account the problem of resources.
  • 99. Rabone Rabone & Rabone v Pennine Care NHS Trust[2009] EWHC 1827 (QB)FACTS1. M had made attempts to commit suicide. She agreed to informal admission to hospital but the doctor noted that if she attempted or demanded to leave she should be assessed for detention under the Mental Health Act 1983. On admission M was assessed as being a moderate to high suicide risk. She was prescribed a course of drugs and kept under observation.2. Some days later, a consultant psychiatrist allowed her to leave for two days. It was not disputed that this decision was negligent. The next day, M committed suicide.HELD1. An NHS trust has no operational obligation under Article 2 in this situation. M was not detained for assessment or treatment on the day the decision was made to allow her to leave. She was not subject to complete and effective control over her care and movements. She had capacity to become and remain an informal patient, and to consent to treatment, at the time she was allowed to go home on leave.