Mental health law common law remedies

NOT IN THE MENTAL HEALTH ACT
NOT IN THE MENTAL CAPACITY ACT

Professor Anselm Eldergill

And not in the 2005 Act

Family matters/relationships

Excluded decisions Treatment under Part IV of 1983 Act

Voting Rights

Sections 27–29

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

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.

Barbara meets John

Barbara has formed a close
relationship with a restricted
patient on the ward called John.
He is diagnosed as having a
severe anti-social personality
disorder.
He was convicted 20 years ago
of the manslaughter of his wife,
at which time he was thought to
be mentally ill.

The relationship progresses …

It is now clear that Barbara is
having sex with John.
There is some concern as to her
vulnerability, and whether any
criminal offences are being
committed.

HOSPITAL MANAGERS

Duty of care Duty of care

Sexual relations
Barbara John
Lawful, unlawful

Consider:

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?

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.

Sexual intercourse

Capacity to consent to sexual intercourse depends
on 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 of
the consequences of sexual intercourse with
a particular person. Capacity to consent to
sexual relations is issue specific, not partner
specific.

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 countries
to improve prison conditions by
facilitating conjugal visits, the Court “The essence of the right to marry … is
considers that the refusal of such visits the formation of a legally binding
may for the present time be regarded as association between a man and a
justified for the prevention of disorder woman. It is for them to decide whether
and 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 at
of 29 April 2003. 16 (1979) Com Rep. [Prisoner case].

R. v Broadmoor Special Hospital Authority ex p. S
[1998] C.O.D. 199, C.A.

FACTS

S and a number of other detained patients claimed that Broadmoor
Hospital’s policy of conducting routine and random searches was not
authorised by the 1983 Act, and so was unlawful.

HELD

The express power to detain a patient for treatment conferred by
sections 3 and 37 included a power to exercise control and discipline,
and necessarily conferred upon the hospital an implied power to search
with 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 enable
Broadmoor to fulfil its primary function of treating patients and to
ensure a safe and therapeutic environment for patients and staff. Since
Broadmoor's policy was in the interests of all, it overrode any medical
objections raised in individual cases.

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.

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.

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.

Till death do us part …

Barbara and John are
talking about getting
married.

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 etc
Not male and female

Matrimonial Causes Act 1973, s12

Voidable marriages
A 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.
.

Whether capable of valid consent?

‘the contract of marriage is a very
simple one which does not require a
high degree of intelligence to
understand. It is an engagement
between a man and a woman to live
together, and love one another as
husband and wife, to the exclusion of
all others.’

Sir James Hannen in Durham v. Durham
(1885)

Whether capable of valid consent?

In the Sheffield Case, the local authority argued that
capacity to marry has to be assessed by reference to the
particular marriage proposal in question.
The court held that the test is capacity to understand the
nature of the contract of marriage, not capacity to
understand the implications of a particular marriage.
The lawfulness of a marriage depends exclusively on
consent, and a court has no jurisdiction to determine
whether marriage in general, or marriage to a particular
person, is in the person’s best interests.
Furthermore, if the person has capacity to marry, it is
not necessary to show that s/he also has capacity to take
care of her/his own person and property.

Sheffield City Council v E (2004) EWHC 2808 (Fam),
(2005) Fam 326

‘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’.

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).

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.

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

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.

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

Abortion Act 1967, s1
A person is not guilty of an offence under the law relating to abortion where a
pregnancy is terminated by a registered medical practitioner if two registered
medical 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; or

4. 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.

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.

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).

Hospital protocols and legal advice

In Re SS (Medical Treatment: Late Termination), Wall J stated:

‘Pregnant patients in psychiatric hospital are not unusual. The issue
of the termination of pregnancies in such circumstances must arise
frequently. It seems to me essential that each hospital should have a
protocol to deal with possible terminations of such pregnancies, and
that these protocols should be designed to address the issue in good
time 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 is
referred at an early stage to independent legal advice, whether from
the Official Solicitor or the solicitor who, as in this case, appears to
have represented her at the Mental Health Review Tribunal.'

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…

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 patient's 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 …

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 patient's 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 patient's last chance to bear a child) (see paras [34],
[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 …

Practice Direction E
Court of Protection

The practice direction sets out the procedure to be followed where the
application concerns serious medical treatment.

Cases involving any of the following decisions should be regarded as serious
medical treatment for the purpose of the Rules and the practice direction, and
should 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.

Practice Direction E
Examples 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 discuss
applications in relation to serious medical treatment before an
application is made.

Any enquiries about adult medical and welfare cases should be
addressed to a family and medical litigation lawyer at the Office of the
Official Solicitor, 81 Chancery Lane, London WC2A IDD, ph: 020 7911
7127, fax: 020 7911 7105, email: enquiries@offsol.gsi.gov.uk.

See the Practice Note for matters to be considered at the first directions
hearing.

Evidence required (1)
Previous guidance provides that the court will particularly require evidence clearly
establishing 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.

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.

Case law
Re GF (Medical Treatment) [1992] 1 F.L.R. 293, Sir Stephen
Brown, P

Facts

• 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 patient's best interests; and
(3) there was no other practicable method of treatment.

Case law
Re W (An Adult: Mental Patient) (Sterilisation)
[1993] 1 F.L.R. 381, Hollis J

Facts

• 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 patient's best interests for sterilisation
to be performed.

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.

Case law

R-B (A Patient) (By his Mother & Litigation Friend) v The Official
Solicitor sub nom Re A (Mental Patient: Sterilisation) (1999) CA

FACTS

• 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.

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.

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.

Case law

• (7) In the present appeal, the evidence did not show that
sterilisation was at present in A's 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 A's best interests.

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…

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 S's best interests.

§4 — MAKING GIFTS AND WILLS

Barbara makes a gift

Barbara gives her
house to a patient
whom she feels sorry
for.

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 donor's 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 asset
transferred and its significance to the person giving it away; whether the
donor knew that the transaction was a gift; who the recipient is, and whether
that person has received other (substantial) gifts; the underlying purpose of
the transaction.

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.

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)

Ms Smith inherits

• Barbara has just inherited
£55,000 from a distant
cousin. This is in the
patient's bank at present.

• She is incapable of
managing her financial
affairs, by reason of her
mental disorder.

Court of Protection: Property and Affairs
Subject to section 20 (restrictions on deputies), the powers under section
16 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 P's debts and of any of P's obligations, whether
legally enforceable or not; Contracts
 the settlement of any of P's property, whether for P's 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 P's name or on P's behalf.
Legal proceedings
 Note that Schedule 2 supplements the provisions of section 18. Section 18

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.

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 proceedings
on the trial, so as to make a proper defence … and to comprehend the details of the
evidence ... if you think that there is no certain mode of communicating the details
of the trial to the prisoner, so that he can clearly understand them, and be able
properly to make his defence to the charge; you ought to find that he is not of sane
mind. It is not enough, that he may have a general capacity of communicating on
ordinary matters.’

Pritchard (1836) 7 C&P 303,
Per Alderson B

Fitness for trial

The 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; and
5. giving evidence.

Criminal Procedure (Insanity)
Act 1964 (as amended)

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.

M’Naghten Rules

A defendant is not responsible for his act if it appears that, at the
time of the act or omission giving rise to the offence alleged:

‘he was labouring under a defect of reason owing to a disease of the
mind so as not to know the nature and quality of his act, or, if he
knew this, so as not to know that what he was doing was wrong.’

M'Naghten's Case (1843)

M’Naghten Rules

The defendant had a ‘disease of the mind’

S/he was suffering from a ‘defect of reason’ as a result

S/he did not ‘know the nature S/he did not ‘know that it
and quality of her/his act’ was wrong [i.e., unlawful]’

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.

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.

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?

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 925

Exceptions: (1) actions committed by a person who did not know the nature
or quality of their act; (2) torts requiring specific intention, such as malice
(e.g., malicious prosecution).

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.

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.

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.

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.

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 ; Robin's Case, 1791; Tucker's
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.

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.

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)

Driving

EXCEPTIONS TO THE GENERAL RULE

The Secretary of State must not refuse to grant a
licence 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.

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

DVLA Guidance
ACUTE PSYCHOTIC DISORDERS OF ANY
TYPE
Driving must cease during the acute illness. Re-
licensing can be considered when all of the following
conditions 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.’

Article 8

1. 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.

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

Connor, Re An Application for Judicial Review [2004] NICA 45, CA

FACTS

The 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. In
November 2001, she was transferred to Chisholm House as a detained patient. In May 2002 she became the
subject 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 trust's decision to require her to reside at Chisholm
House, on the basis that this decision constituted breach of her rights under article 8 and article 12 of the
European Convention.

SUBMISSIONS

The trust accepted that its decision to require Mrs Connor to live in Chisholm House constituted an
interference with her article 8 rights. It submitted that this decision was taken in accordance with law and
was 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 workers
and others, and relied on by the respondent, do not demonstrate that the trust considered the applicant’s
situation against the background of her right to marry and found a family or her right to a private and family
life. There was no analysis of the applicant's situation ‘through the prism of the European Convention’ nor
was there any analysis of the alternatives that might be open to the trust.

Re Connor, continued

HELD (KERR LCJ)
It was well settled that in order to satisfy the requirement of proportionality three criteria must
be satisfied:—
(i) The legislative objective must be sufficiently important to justify limiting a fundamental
right;
(ii) The measures designed to meet the legislative objective must be rationally connected to that
objective – 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 to
accomplish the legitimate objective – the more severe the detrimental effects of a measure, the
more 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 ever
recognised, much less addressed, the interference with the appellant's article 8 rights. In none
of the documents generated by the trust's consideration of her case could any reference to
article 8 be found.
The consideration of whether an interference with a convention right could be justified involved
quite a different approach from an assessment at large of what is best for the person affected.
The trust’s consideration of Mrs Connor's 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 than
was necessary with Mrs Connor's convention right, it would in any case have been bound to
have come to the conclusion that it did.

R. v Broadmoor Special Hospital Authority ex p. S
[1998] C.O.D. 199, C.A.

FACTS

S and a number of other detained patients claimed that Broadmoor
Hospital’s policy of conducting routine and random searches was
not authorised by the 1983 Act, and so was unlawful.

HELD

The express power to detain a patient for treatment conferred by
sections 3 and 37 included a power to exercise control and
discipline, and necessarily conferred upon the hospital an implied
power to search with 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
enable Broadmoor to fulfil its primary function of treating patients
and to ensure a safe and therapeutic environment for patients and
staff. Since Broadmoor's policy was in the interests of all, it overrode
any medical objections raised in individual cases.

R v Secretary of State for Health, ex p. Lally, QBD, 11 October 2000

HELD

Restrictions on child visits to patients in high security hospitals who had
committed murder, manslaughter, or certain sexual offences unless the child was
one of a permitted category, were lawful, and not in breach article 8 of the
European Convention on Human Rights.

R v Ashworth Special Hospital Authority and Another,
ex p. N, QBD, 11 May 2001

FACTS

Patient N challenged direction 29(3) of the Safety and Security in Ashworth,
Broadmoor and Rampton Hospitals Directions 2000. This direction gave a
discretionary power to special hospital authorities to record and listen to a random
10 per cent of non-high risk patients’ telephone calls. N contended that blanket
monitoring imposed without reference to a personal assessment of his risk
constituted a disproportionate interference with his right to privacy.

HELD

High-risk patients, who were subject to 100 per cent telephone monitoring, suffered
significantly 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, and
assessed as acceptable and capable of being met by random monitoring.

The measure adopted was within the margin of appreciation permitted in respect of
article 8, tailored to the aim to be achieved, and not excessive having regard to the
extent and consequences of the security risks and the established degree of
manipulation possible.

Regina (E) v Ashworth Hospital Authority,
QBD 19 December 2001

FACTS

Ashworth Hospital Authority restricted E’s aspiration to dress
as a woman to the use of limited garments generally worn
within the confines of his own room.

HELD

There was plainly an implied general power to control what
patients wore. There was a pressing and self-evident need for
that power. It was a necessary incident of the power to detain
for treatment.

The restrictions placed on the wearing of women’s clothing by
the claimant constituted a lawful exercise of that power, since
they were being exercised for both the purpose of detention
and treatment.

Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service
Trust) (Appellants) ex p. Munjaz (FC) (Respondent) House of Lords [2005] UKHL
58

1 — 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 less
frequent 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 and
instruction. … The Secretary of State has a power to give binding directions to hospital authorities (see section 17 of the
1977 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 is
what it purports to be, guidance and not instruction. But it is much more than mere advice which an addressee is free to
follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should
depart only if it has cogent reasons for doing so … In reviewing any challenge to a departure from the Code, the court
should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity
of the subject matter requires … It is not for the courts to resolve debatable issues of professional practice, but to rule on
issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as
unlawful.’

Lord Hope: ‘I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see
fit. Parliament by enacting section 118(1) has made it clear that it expects that the persons to whom the Code is
addressed will follow it, unless they can demonstrate that they have a cogent reasons for not doing so.’

Munjaz (2)

2 — COGENT REASONS SHOWN BY ASHWORTH HOSPITAL

Lord Bingham: ‘The extensive evidence adduced by the Trust makes clear that the code was very carefully considered. In
considering the frequency of medical review after Day 7 the Trust were in my opinion entitled to take account of three
matters in particular. First, … the Code was directed to the generality of mental hospitals and did not address the special
problems of high security hospitals … Secondly, the Code did not recognise the special position of patients whom it was
necessary to seclude for longer than a very few days. Thirdly, the statutory scheme … deliberately left the power and
responsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing and
caring for the patients.’

3 — WHETHER ASHWORTH POLICY INCOMPATIBLE WITH THE CONVENTION

Lord Bingham: ‘Seclusion is universally recognised to be an unwelcome necessity of last resort, never a preferred option. It
is justified only when used to protect others, and then for the shortest period necessary for that purpose.’

Article 3
The Trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3 … there
is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of
those rights.

Article 5
The 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 have
a right to be protected.

Munjaz (3)

Article 8
It is obvious that seclusion, improperly used, may violate a patient’s article 8 right in a serious and damaging way and
may found a claim for relief. I have, for my part, some difficulty in appreciating how seclusion can be said to show any
lack of respect for a patient's private and family life, home or correspondence, if it is used as the only means of protecting
others from violence or intimidation and for the shortest period necessary to that end. A detained patient, when in his right
mind or during lucid intervals, would not wish to be free to act in such a way and would recognise that his best interests
were 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 because
it 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 important
and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and
arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and
foreseeable by those to whom they are applied.

SUMMARY

The Court of Appeal’s conclusion ‘gives the Code a weight which Parliament did not give it, which the Secretary of State
does not support and which the Convention context does not require. It deprives local managers of the judgmental
authority they were given and intended to exercise, and so has a strong (and in my opinion impermissible) centralising
effect. It elevates the authority of the Code in a way for which there is no warrant in the statute or the Code.’

Gray
Gray v Thames Train Limited & Others [2009] UKHL 33, HL

FACTS

1. 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.

Gray (2)
Gray v Thames Train Limited & Others [2009] UKHL 33, HL

HELD

1. 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 defendant's 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.

Savage
Savage v South Essex Partnership NHS Trust [2008] UKHL 74, HL

FACTS

1. 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 C's Article 2 rights by allowing her to
escape and commit suicide.

HELD

1. 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.

Rabone
Rabone & Rabone v Pennine Care NHS Trust[2009] EWHC 1827 (QB)

FACTS

1. 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.

HELD

1. 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.

Mental health law common law remedies

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