Simon Burrows



Year of Call: 1990

Profile

Simon's practice mainly concerns the human rights of people subject to the Mental Health Act or Mental Capacity Act. He now appears principally in the Court of Protection in cases involving welfare decisions, deprivation of liberty safeguards (DOLS),and medical treatment decisions. He is instructed on behalf of public authorities (local councils, PCTs, NHS Hospital Trusts), social care providers, members of families where a relative is the person concerned in the proceedings, as well as those who are said to lack capacity (usually on behalf of the Official Solicitor). He also advises on Advance Decisions and Lasting Powers of Attorney as well as neglect under s. 44 of the MCA.

His practice covers property and affairs as well as care and treatment.

Simon also practices in the field of Mental Health. He appears before the First-tier Tribunal as well as the Upper Tribunal on Appeals and Judicial Review. Although he usually acts in cases concerning restricted patients he will also accept instructions in cases where the patient is not subject to restrictions.

He advises and represents in cases concerning detention and treatment under the Mental Health Act, including claims for judicial review and habeas corpus, assault and unlawful detention claims for damages. He also practices in the field of Clinical Negligence particularly in relation to mental health and mental capacity cases as well as Article 2 cases. He has appeared in a number of Inquests concerning deaths in Hospitals (both psychiatric and non-psychiatric) as well as care homes, including those involving the suicides of patients, and the deaths of psychiatric patients in the community or deaths caused by those patients. Human Rights: mostly concerning the mentally disordered or incapable, Articles 2, 3, 5, 6, 8 and 10.

As a result of this experience, he is also asked to advise on issues arising out of the complex interface between the Mental Health Act and the Mental Capacity Act/DOLS, which can lead to serious complications even where there is no dispute between the parties as to the proper placement of a person in need of care or treatment. Applications unders.21A MCA are becoming a common feature of his work, as well as the use and abuse of community treatment orders and guardianship as a method of depriving patients of their liberty.

An area of considerable growth has been safeguarding concerns over people with acquired brain injuries, often involved in personal injury litigation, or having received large sums of compensation following litigation. These cases involve sensitive and often complicated legal advice, planning and representation.

The protection of vulnerable adults. Cases concerning vulnerable children approaching adulthood and ensuring continuity in care where needed. Regulation of Care Homes, Children’s Homes, Hospitals and GMC work. Regulatory work- He is happy to accept instructions in most areas of regulatory work and public law, including the judicial review of the decisions of regulators within healthcare and other areas. Simon is sensitive to the needs of those involved in the mental health field and is willing to discuss cases on an informal basis prior to formal instruction. He is authorized to accept direct professional access, and will do so in appropriate circumstances.


Recommendations

Chambers UK 2014 says that Simon "has a great understanding of the law, is able to explain things well to clients and has a great knowledge of the Court of Protection area.”
"He is very charismatic, has a good sense of humour and is very persuasive."
"He is an excellent and intelligent opponent."
"Revered for his work on deprivation of liberty and safeguarding issues".


Some Recent Reported Cases

P (by his litigation friend the Official Solicitor) v Cheshire West & Chester Council; P & Q (by their litigation friend the Official Solicitor) v Surrey County Council [2014] UKSC 19. Historic decision of a 7 member Supreme Court answering the question: what does deprivation of liberty mean in the context of living arrangements for severely mentally disabled people (Led by Richard Gordon, Q.C. in the Court of Appeal and the Supreme Court; co-junior with Amy Street in the Supreme Court).

Re X & others (Deprivation of Liberty) [2014] EWCOP 25 (Sir James Munby, P.) The first a what promises to be a series of decisions concerning how the Court of Protection and those using it should adapt their practices following the Supreme Court decision in Cheshire West. (Acting for Rochdale Council).

Liverpool City Council v SG (by her litigation friend J&SG) [2014] EWCOP 10 (Mr Justice Holman). One of the issues raised by the Cheshire West decision is the effect the increased number of people now considered as deprived of their liberty will have on other statutory provisions and guidance that were based on the previously narrower definition of DOL. Here, Holman J determined that a person could be deprived of her liberty in a children’s home where she was no longer a child. The issue of whether she could have been if she were still a child was left to another, directly relevant case.

TA v AA (by his litigation friend the Official Solicitor) & Knowsley Borough Council [2013] EWCA Civ (Moses, Black & Gloster, LJJ). The appeal was about what a Court has to do when dealing with an application under s. 21A Mental Capacity Act in order to comply with Article 5 of the ECHR. To this question, Moses L.J. made it clear that it had to determine it by addressing the detention criteria. However, because the Court declined jurisdiction, because this was a second appeal, that guidance is not binding (Led by Paul Bowen, Q.C.).

R (GP) v Derby City Council [2012] EWHC 1451(Admin) (HHJ Pelling, Q.C. sitting as a High Court Judge). Habeas corpus and judicial review application by a person detained under Mental Health Act where it was alleged the AMHP had failed properly to abide by s. 11(4) of the Act.

C (by the Official Solicitor) v. Blackburn with Darwen BC, A Care Home and Blackburn with Darwen NHS Trust [2011] EWHC 3321(COP) (Mr Justice Peter Jackson). Important case concerning the interface between the Mental Health Act and the Mental Capacity Act.

Secretary of State for Justice v. RB [2011] EWCA Civ. 1608 (Maurice Kay, Arden and Moses, LJJ). The Court of Appeal decided that restricted patients could not lawfully be discharged from hospital under conditions that amount to deprivation of liberty. The previous decision of the Upper Tribunal had allowed such a move provided it was not to another hospital. The UT’s position created a new and anomalous type of detention that could not have been envisaged by Parliament when it passed the Mental Health Act as it would provide less adequate safeguards for those so detained compared with other detained patients, which in turn would be discriminatory.

R (RB) v. First-tier Tribunal [2010] UKUT160 (AAC)- (Carnwath L.J., Paul Walker, J. and UTJ Rowland) the first case in which the Upper Tribunal has judicially reviewed a decision of the First-tier Tribunal- in this case whether the Regional Tribunal Judge was justified insetting aside a decision of the First-tier. In this case the UT gave guidance on the principles to be applied when the FTT reviewed its own decision, and set aside the Regional Tribunal Judge's decision. The later UT decision concerned precedent and stare decisis in the Upper Tribunal when considering High Court decisions made under the previous, equivalent jurisdiction: see Secretary of State for Justice v RB [2010] UKUT 454 (AAC) (Carnwath, SPT, HHJ Sycamore & UTJ Rowland),

GJ v. The Foundation Trust, A PCT and the Secretary of State for Health [2010] 3 W.L.R.840; [2009] EWHC 2972 (Fam.) (Charles, J): the first case decided in the Court of Protection concerning ineligibility for detention under the deprivation of liberty safeguards on the grounds that the patient "could" be detained under the Mental Health Act. The Court gave comprehensive guidance to those having to make decisions under the DOLS.


Other selected cases

Hartman v South Essex HA [2005] EWCA Civ. 06[2005] ICR 782 (the appeal in Moore v Welwyn Components) One of a number of cases in which the Court of Appeal considered the issue of work related stress and bullying (led by Winston Hunter, Q.C.).

Mitchell v Commission for Social Care Inspection [2004] 0369 EA - Refusal to register the manager of a children's home where the would-be manager appealed to the Care Standards Tribunal against the regulator's decision to refuse his registration on the grounds of his use of restraint.

Park Manor v Commission for Social Care Inspection [2002] 0360 EA - Along running case involving the cancellation of a care home, one aspect of which related to consent to examination and the human rights of residents. This was the very last case to be heard by the Registered Homes Tribunal.

Priestley v Harrogate HA [2001] EWCA Civ 183 - Appeal following a successful High Court claim by a nurse as a result of a negligent episiotomy carried out by her own Hospital, issues of inappropriate judicial behaviour (led by Mark Turner, Q.C.)

Burke v Lancashire County Council [2001] EWCA Civ1679
-  Foreseeability in negligence


Publications

Judicial Review: Law & Practice (ed. Frances Patterson Q.C. asst. ed. Sam Karim) (Jordans 2014) Chapters on Mental Health Law and Judicial Review, and the New Tribunals System.

Atkins Court Forms – Volume on Mental Health Tribunals (Lexis Autumn 2013)

Training and Lectures

Simon regularly presents lectures and training on his practice areas particularly on the interface between Mental Health Act and the Mental Capacity Act / DOLS. He teaches advocacy on the MHLA course for the Law Society’s Accredited Mental Health Tribunal Panel. He has lectured to BIAS and AMHPs and to NHS Staff at a Safeguarding Conference. He is happy to speak to large groups or small.

Career & Education 


University of Durham - B.A. (philosophy) Dip. Law; LLM


Call: Inner Temple, 1990


Appointment 
Deputy Tribunal Judge, First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health) (previously President, Mental Health Review Tribunal): 2003-date
 Deputy Regional Chairman, MHRT (North): 2008



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