Practice Area CVs:
Year of Call: 1990
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. Recently, he has been involved in cases concerning the level of restrictions that can be placed on a restricted patient when conditionally discharged. He is regularly asked to advise on challenges to decisions of the First-Tier Tribunal, as well as the numerous issues that arise out of community treatment orders and the appropriateness of treatment. 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.
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.
Implications of the Equality Act in relation to discrimination against people with mental health diagnoses, including learning disabilities, and those who lack capacity. 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.
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  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).
TA v AA (by his litigation friend the Official Solicitor) & Knowsley Borough Council  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 5of 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  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  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  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 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.
GJ v. The Foundation Trust, A PCT and the Secretary of State for Health  3 W.L.R.840;  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  EWCA Civ. 06 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  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  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  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  EWCA Civ1679- Foreseeability in negligence
Other recent/current cases
C v A NHS Trust & MOJ (October 2012)-(First Tier Tribunal) represented patient detained unders 37/41 MHA-conditional discharge where conditions not DOL.
F v A NHS Trust & MOJ (January 2013)(First Tier Tribunal)- represented Trust supporting discharge in stringent conditions including not to leave placement without escort. P discharged.
H v NHS Trust &MOJ (February 2013) (First Tier Tribunal) another s37/41- case this time patient not discharged because conditions would be DOL
A number of cases involving claims that s. 117 funding should have applied where fees paid by patients who now claim repayment. (ongoing)
Defending judicial review against CQC for contents of a report (ongoing).
Numerous COP cases involving welfare issues and interface with MHA.
Challenges tonight-time confinement policy in the high security psychiatric hospitals.
Judicial Review: Law and Practice (ed. Frances Patterson Q.C. asst. ed. Sam Karim) (Jordans 2011)Chapters on Mental Health Law and Judicial Review, and the New Tribunals System. Atkins Court Forms – Volume on Mental Health Tribunals (Lexis Autumn2013)
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 is presently preparing a lecture on the balance between Article 8 and Article 10 in relation to people with mental disorders or who lack mental capacity and a lecture on the developing jurisprudence of the Upper Tribunal. He is happy to speak to large groups or small. Recent talks/seminars/lectures- To LA DOL Spanels/BIAS on DOLS, NHS Staff at Safeguarding Conference.
Career & Education
University of Durham - B.A. (philosophy) Dip. Law; LLM
Call: Inner Temple, 1990
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