Simon Burrows

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Year of Call: 1990

Profile

Simon's practice mainly concerns the human rights of those who lack mental capacity or are mentally disordered in particular those with learning disabilities, including autism.

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 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-TierTribunal, 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.

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 those with mental disorder, 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.

He is happy to accept instructions in most areas of regulatory work and public law.

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.

Some Recent Cases

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). An important case in which C was subject to guardianship under Mental Health Act and required to live in the care homewhere he was also subject to Sch A1 standard authorisation (or DOL). He sought discharge from the DOL under s. 21A MCA but also a wider best interests declaration that he should reside elsewhere. Peter Jackson J determined that (a) C was not deprived of his liberty (applying Cheshire West) therefore the DOL was discharged; (b) the MHA has precedence over the MCA where they clash including in a case like this - consequently for the Court to make a best interests decision on the issue of residence would be outside its jurisdiction; (c) if the Judge was wrong about (b) he would still consider it to be unlikely, save in the most exceptional circumstances, that the COP would rule against a decision of a guardian because the MHA had its own proper procedure for the creation and discharge of guardianship.

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.

Cheshire West and Chester Council v. P and M [2011] EWCA Civ. 1257 (Pill, Lloyd and Munby, LJJ). P is a man with considerable learning disabilities and challenging behaviour, who was rightly placed in a supported tenancy with 2:1 care. Some of the Council's employees were found to have altered documents to give the impression that less restraint was used than had been. At first instance an adverse costs order was made in relation to part of the proceedings and the Council was named. The issue in the Court of Protection and on appeal was whether P was deprived of his liberty. The Court of Appeal overturned the decision of Mr. Justice Baker in the Court of Protection [2011] EWHC 1330 (Fam). Baker J had decided that Article 5 was engaged in P’s case, the Court of Appeal decided that it was not. Munby, L.J. giving the main judgment emphasised that (a) the “objective purpose” of the restrictions imposed on P were relevant in determining whether Art. 5 was engaged; (b) the “relative normality” was also relevant (following Surrey CCv. P and Q) and (c) the “concrete situation” of someone like P must be compared not with an ordinary person’s situation but with a person who has a similar disability. This very important case is likely to have significant implications for those having to decide whether Article 5 is engaged- not only the Courts but best interest assessors, clinicians, care home managers and others involved in the provision of social and psychiatric care. (Led by Richard Gordon, Q.C. in the Court of Appeal).

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-tierTribunal- 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 [2010] 3 W.L.R. 840; [2009] EWHC2972(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 StandardsTribunal 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 - A long 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] EWCACiv 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 Civ 1679 - Foreseeability in negligence

Publications

Judicial Review: Law and Practice (ed. Frances Patterson Q.C. asst. ed. Sam Karim) (Jordans 2011) Chapterson Mental Health Law and Judicial Review, and the New Tribunals System.

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 those with mental disorders or who lack mental capacity and a lecture on the developing juris prudence of the Upper Tribunal. 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