Kate Luscombe

Kate is a longstanding member of the Law Society’s Mental Health Accreditation Scheme, and a member of the Mental Health Lawyers Association. Kate is a peer reviewer for the Ministry of Justice and is committed to ensuring strict quality standards are met by mental health practitioners.

Establishing the Court of Protection team in 2014, Kate Luscombe has an excellent knowledge of Mental Health and Mental Capacity law and social welfare issues. Kate is a confident litigator who combines a realistic assessment of the merits of a case with a strategic application of the law with an empathetic approach to dealing with vulnerable clients. She is a recommended Court of Protection lawyer in the 2021 edition of the Legal 500.

Kate provides approved clinician training to NHS Trusts and training on behalf of the Mental Health Lawyers Association to those seeking to gain panel accreditation. She has been asked to comment by legal publishers on reported cases and has written articles for national newspapers and broadcast on national television on mental health issues.

Areas of expertise include advising clients who are deprived of their liberty and the human rights issues that flow from this in particular Article 5 and 8 of the ECHR.

— Legal 500 2021 Testimonial

— Legal 500 2022 Testimonial

Notable Cases:

AH v West London Mental Health Trust [2011] UKUT 74 (AAC)

Kate acted for the appellant in this case before the Upper Tribunal. The appeal determined whether the First-tier Tribunal made an error of law in refusing a mental health patient’s application for the First-tier Tribunal to sit in public establishing the threshold test namely that Article 6 of the European Convention on Human Rights (reinforced by Article 13 Convention on the Rights of Persons with Disabilities) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state.

JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC)

Kate acted for the appellant in relation to the European Convention on Human Rights and First-tier Tribunal criteria. “The patient in this case was held in exceptional conditions of exclusion and restraint. The Secretary of State referred the patient’s case to the First-tier Tribunal and his detention was upheld. Human rights arguments were advanced on behalf of the appellant. Permission to appeal to the Upper Tribunal was given identifying the issue: ‘to what extent should the circumstances of a patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of its discharge powers. Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?’

Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436

Acting for the appellant, this case concerned the narrow issue of whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a ‘proportionality assessment’ to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant’s detention. … The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention.

AR v West London NHS Trust and the Secretary of State for Justice [2020] UKUT 273 (AAC)

 Acting for the appellant, this Upper Tribunal appeal concerned a request by a patient, AR for a public hearing and capacity.

In deciding AR’s appeal, Judge Jacobs held that the Tribunal was right to apply the MCA 2005, but applying Section 2(1) of the MCA misdirected itself and fell into error.

The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor (“whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice”) does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient’s wishes is relevant to the application of rule 38. (2) The relevant “matter” for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that “without being able to make an informed choice [the patient] cannot have a public hearing”, so had erred in relation to both points.

Awards

2011: Shortlisted in the Mental Health Lawyer of the Year Award – Legal Aid Practitioners Group