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Provocation: the fall (and rise) of objectivity
Full text linkThis article reviews the recent turbulent history of the partial defence of provocation. It assesses the current state of the law, the continuing dissatisfaction among the judiciary and academic commentators, and goes on to consider the current proposals for reform from the Law Commission. In an attempt to retain the reader’s attention, it takes the form of a (wholly imagined) exchange between a professor and student
The Community Order and the Mental Health Treatment Requirement
Full text linkJust a few months into 2008, a convergence of unfortunate circumstances has brought the plight of offenders with mental health problems into sharp focus. Figures released by the Ministry of Justice showed there were 92 apparently self-inflicted deaths among prisoners in England and Wales in 2007, compared with 67 in 2006. This 37% increase in suicides in prison has been associated with the overcrowding that has continued inexorably.This article discusses the application of mental health services to offenders in the prison and the community contexts
Nearest Relative Consultation and the Avoidant Approved Mental Health Professional
Full text linkThis article examines three recent cases involving habeas corpus ad subjiciendum applications arising out of alleged failures to comply with the provisions relating to nearest relatives within the Mental Health Act 1983 (‘MHA’). One of these cases assists with the establishment of the identity of a nearest relative, and the two others consider the requirements of the consultation process to be carried out by an Approved Mental Health Professional (‘AMHP’) (formerly Approved Social Worker ‘ASW’). The important implications of these decisions for patients, nearest relatives and hospitals are discussed in detail
‘Publicity v Privacy: finding the balance’ When and how to publish reports of mental health homicide independent investigations
Full text linkIn 1994 the Department of Health published its guidance on the discharge of mentally disordered people and their continuing care in the community (HSG (94) 27) which established, for the first time, that when a mental health service user kills someone “it will always be necessary to hold an Inquiry which is independent of the providers involved”. The independent investigation (as these inquiries are now called) would take place after the completion of any legal proceedings and its purpose was stated to be: “To learn lessons for the future”. The independent investigation would be commissioned by the responsible strategic health authority, which would also decide on whether to publish it and, if so, in what form
Conditional Discharges – ‘Discharge’ from what?
Full text linkR (on the application of the Secretary of State for the Home Department) v Mental HealthReview Tribunal and PH (Interested Party) [2002] EWCA Civ 1868Court of Appeal (19th December 2002) Keene LJ, Sir Anthony Evans and Kay L
Re-detention after a tribunal discharge – the last word?
Full text linkR v East London and the City Mental Health NHS Trust and another, ex parte von Brandenburg (aka Hanley) [2003] UKHL 58House of Lords (13 November 2003). Lord Bingham; Lord Steyn; Lord Hobhouse of Woodborough; Lord Scott of Foscote; Lord Rodger of EarlsferryA psychiatric patient who has been recently discharged from detention may be lawfully re-detained where the relevant ASW forms the reasonable and bona fide opinion that he or she has information not known to the tribunal that puts a significantly different complexion on the case
Expanded Liability for Psychiatrists: Tarasoff Gone Crazy?
Full text linkThis paper is intended to serve as an update for psychiatrists on notable developments of the Tarasoff doctrine in the United States and United Kingdom. Most clinicians will be familiar with the basic Tarasoff doctrine. However, the author suspects that many clinicians will be troubled to learn the extent to which Tarasoff liability has extended in some jurisdictions.Accordingly, the first part of this paper addresses notable judicial treatment of Tarasoff in several state jurisdictions within the United States. The second part discusses the more conservative approach of the United Kingdom, which affords clinicians discretion to warn potential victims in certain circumstances. The United Kingdom has struggled with, and so far rejected, the imposition of a Tarasoff-duty. However, a recent decision of the European Court of Human Rights opens the door for something comparable to Tarasoff in the United Kingdom. The final part offers a critique of the Tarasoff doctrine and suggests that other jurisdictions, including the United Kingdom, may be wise to avoid this problematic doctrine
Preface
Full text linkThe possibility of a single statue to replace our current dual approach must now be the most fundamental issue confronting mental health and mental capacity law reform. I was therefore delighted to be offered the opportunity to co-edit this Special Issue