August 2023 update

Updates MHLO monthly updates
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Website

  • Magic Book. The Magic Book is a database of contact details. The main idea is to add the hospitals and other places you visit (not just your own place of work). To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book

  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.

  • Cases. By the end of this month, Mental Health Law Online contained 2337 categorised cases

  • Chronology. See August 2023 chronology for this month’s changes to the website in date order.

Cases

  • Case (Capacity - contact - inherent jurisdiction). NK v RK [2023] EWCOP 37 — The family sought declarations: that R lacked capacity to make decisions about contact; that R was susceptible to undue influence, and measures needed to be put into place to protect her from this; that R lacked capacity to revoke LPAs. They sought orders: under the inherent jurisdiction in relation to supporting contact between her and her family (if R did have capacity about contact); and under either the MCA or the IJ that it was in R’s best interests to implement a “supportive framework” around R to encourage her to repair and maintain her relationship with her immediate and wider family and friends.

  • Case (Appropriate medical treatment). SF v Avon and Wiltshire Mental Health Partnership NHS Trust [2023] UKUT 205 (AAC) — The First-tier Tribunal erred in law in deciding that “appropriate medical treatment” was available because its decision was based on two misunderstandings: (a) that interventions which had the purpose merely of containing risk of physical harm were capable of amounting to “medical treatment”; and (b) that medical treatment may be “appropriate” even where it is “not tailored to [the patient’s] diagnosis”, and where treatment that is “essential” is not available.

  • Case (Ordinary residence and s117). R (Worcestershire County Council) v SSHSC [2023] UKSC 31 — JG was detained under s3 in Worcestershire (Area 1), discharged to residential care in Swindon (Area 2), detained again under s3 in Swindon and discharged again. The Supreme Court held that: (1) a duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again under s3 (or another provision specified in section 117(1)), and upon the second discharge a new duty is placed on the local authority of the area in which the patient was ordinarily ordinarily resident immediately before the second detention; (2) there is no deeming or disregarding provision in the MHA (unlike the Care Act 2014 or Children Act 1989) so the words “is ordinarily resident” must be given their usual meaning, with the adaption where there is lack of capacity that the mental aspects of the Shah test (voluntary adoption and settled purpose) must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned; (3) on the facts, JG was ordinarily resident in Swindon immediately before the second detention, so Swindon was now responsible for after-care.

  • Case (HSE prosecution). Parkcare Homes (No.2) Ltd and Priory Central Services Ltd [2023] MHLO 2 (HSE) — These two companies within the Priory Group pleaded guilty to offences under the Health and Safety at Work etc. Act 1974 after failing to manage risks to care staff and patients from violence and aggression at the Priory Hospital in Aberdare from 2014-2017, and were fined £363,000 and £40,000 respectively. Risk assessments and training were inadequate, PPE (including bite-resistant clothing and personal alarms) was not issued, there were no post-incident debrief sessions or investigations, and PCSL’s failure to rectify deficiencies despite repeated warnings allowed injuries to staff to continue.

Resources

  • Open justice consultation. Ministry of Justice, ‘Open Justice: the way forward’ (consultation from 11/5/23 to 7/9/23) — “We want to hear from all interested parties, including the judiciary, legal professionals, the media, businesses, academics, law and technology experts and our court and tribunal users on how you think the government can uphold and strengthen open justice in the modern age.”

  • Mental health Legal Aid form. Legal Aid Agency, ‘Form CW 1&2 MH’ (original v18, August 2023) — For use from 3/8/23. LAA update notes: “Published new version of the CW1&2 MH form for phase 1 of the Means Test Review”. This form was only online from 3/8/23 to 13/8/23 inclusive. Superseded by: Legal Aid Agency, ‘Form CW 1&2 MH’ (amended v18, August 2023).

  • Restricted patient discharge guidance. Mental Health Casework Section, ‘Guidance: Section 42 Discharge’ (March 2022) — “This guidance sets out the SoS’s approach to applications for discharge under section 42(2) of the Mental Health Act 1983 (MHA).” Very detailed guidance is given on when conditional and absolute discharge will be granted. Headings: (1) Introduction; (2) Legal Provisions; (3) Types of Restricted Patients; (4) Specific Categories of Patients; (5) Applications for Discharge; (6) Types of Discharge; (7) Lifting the Restriction Order; (8) Patient Management; (9) Victim Involvement; (10) Multi Agency Public Protection arrangements (MAPPA); Annex A - Glossary of Terms; Annex B - Standard Conditions of Discharge.

  • Form for requesting MOJ discharge. Ministry of Justice, ‘Discharge Application for Restricted Patients’ (v2.1, 24/2/22) — “Please use this form for all forms of discharge (absolute, conditional or lifting the s41 Restriction Order). This form is primarily designed for use by patients’ Responsible Clinicians but can be used by patients themselves or their representatives (Legal or Independent Mental Health Advocates). Please note, however, that the Responsible Clinician’s views on discharge will be sought prior to any decision being made by MHCS.” Changes since the 2017 version to the suggested discharge conditions are shown as tracked changes on the MHLO page.

Events