December 2022 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 2278 categorised cases

  • Chronology. See December 2022 chronology for this month’s changes to the website in date order.

Cases

  • Case (Paedophilia and DOLS). DY v A City Council [2022] EWCOP 51 — DY was a man in his 20s with autistic spectrum disorder, generalised anxiety disorder and paedophilia. He was subject to a SHPO, due to expire in three months, having been convicted of two sexual assaults of a girl aged under 13, with a residence requirement and curfew, and was managed by MAPPA (category 1, level 2). He was also detained under DOLS, always being accompanied by male staff when going into the community, and appealed under s21A. (1) He argued that the primary purpose of the care plan was the protection of the public rather than to prevent harm to himself, but the judge disagreed: it would be harmful to DY were he to commit further offences (reoffending would cause stress and risk of self harm, and risk of retribution) or place himself at risk of further criminal sanctions. (2) The judge decided that he had capacity to consent to his care and support arrangements, so should be discharged from DOLS. There was a high risk of impulsive reoffending if given the opportunity but that was a matter for the criminal justice system; she hoped that he would agree to be accompanied by at least one care worker whenever he goes out.

  • Case (Southern Irish wardship case). Re FE (a ward of court) [2022] IEHC 646 — “[T]he then President … directed that the Ward continue to be placed at a nursing home in North Dublin. There were associated Orders, including Orders which prevented the Ward from leaving the nursing home, and Orders in respect of the Ward being returned to the nursing home. … When the application came before me, the HSE, who had been the moving party, indicated that they had evidence that the Ward no longer lacked capacity and that in those circumstances they were not seeking to renew the detention Order. The result of a finding of capacity would be that the wardship would fall away since the Court would no longer have jurisdiction. The Committee of the person and of the estate, who is the General Solicitor in this instance, indicated that they were of the opinion that the Ward continued to lack capacity.”

  • Case (Social worker removed). Elaine Lillian McDowell [2022] MHLO 5 (SWE) — The social worker had carried out an inappropriate emergency transfer of a resident from extra-care housing, where the resident had been happy, to a nursing home, where she was less happy, without consulting staff, and without even allowing time the resident to finish her meal; had, in an attempt to justify that decision, made false records, including that a capacity assessment and best interests decision had taken place and that family members were in support; had visited the resident too frequently; had attempted to obtain the resident’s PIN number; had allowed her own family members to be paid by the resident, and had dishonestly denied that a person she allowed to deliver support was her daughter. The Social Work England fitness to practice panel imposed an 18-month interim suspension order to cover the appeal period (the social worker had not so far participated) and a removal order to take effect thereafter.

  • Case (Appeal against restriction order). R v Salmon [2022] EWCA Crim 1116 — Salmon appealed against the restriction order. His RC gave evidence that a restriction order “is unlikely to provide any additional safeguards as compared to those provided by a CTO”. The Court of Appeal agreed that the procedure for recall would follow a similar route whether or not a restriction order was made, but noted that a restriction order “would place an additional restriction on discharge from hospital” and therefore “focuses on precautionary measures before discharge rather than the procedure to be adopted after the appellant has been discharged”. The appeal was dismissed.

  • Case (Sperm). Re X (Catastrophic injury: Collection and storage of sperm) [2022] EWCOP 48 — The parents of X, who had collapsed suddenly and had no virtually no prospect of regaining consciousness, sought a declaration that it would be lawful for a doctor to retrieve X’s gametes and lawful for those gametes to be stored both before and after his death and an order that X’s father may sign the relevant statutory consents. The idea was that X’s girlfriend (from whom there was no evidence) would give birth but X’s parents would raise the child. The court noted: “If the Court of Protection were routinely to authorise the collection and storage of gametes in cases where there is no or little evidence that the incapacitous, dying person would have consented, then it would undermine the regulatory provisions within the 1990 Act which require actual consent.”

  • Case (Costs). R v Nelson (2022) EWHC 2928 (SCCO) — The barrister appealed the determining officer’s decision on his fees for a complex mental health criminal appeal. He had claimed £4,350 for c.20 hours work prior to the leave to appeal hearing and £7,500 for a subsequent 32 hours’ work. The determining officer had only allowed an attendance-only fee of £150 for the hearing, and a brief fee of £4,000 for the subsequent work. The costs judge disagreed with the determining officer’s interpretation and application of the court orders, partly because it was contrary to the provisions of the 2013 Regulations and partly because it is consistent with established principles of interpretation, and awarded him £3,250 and £6,000 respectively. (The barrister had already lost money on his 43 page Advice and Grounds when his instructing solicitors became insolvent.)

  • Case (Residence update post-judgment). London Borough of X v MR [2022] EWCOP 29 — “On 13 January 2022 I handed down judgment in a case involving MR: London Borough of X v MR [2022] EWCOP 1. The issue was whether it was in MR’s best interests to continue to reside in a secular care home or to move to a Jewish care home. I decided that it was in MR’s best interests to move notwithstanding the risks arising from a transfer. I have been asked by several practitioners for news about how MR has fared. I am pleased to write that I have received a brief email saying that the move went smoothly, and he is doing very well in his new home …”

  • Case (Residence). Reading Borough Council v P [2022] EWCOP 27 — “I am dealing with proceedings concerning P who is an 86-year-old woman. She was born in Iran and moved to the UK in 2002 to live with her family. She has two sons, HS and SS, and one daughter, KS. P suffers from Alzheimer’s dementia … The issues for determination in this final hearing are whether P’s current residence and care arrangements are in her best interests or whether she should move to live with KS or SS on a trial basis with a package of care and support.”

  • Case (Medical treatment). Newcastle Upon Tyne NHS Foundation Trust v MB [2022] EWCOP 43 — “The Trust seeks declarations and orders under section 15 and section 4A(3) and section 16 of the Mental Capacity Act 2005 (‘MCA’) that: (1) MB lacks capacity to conduct these proceedings and make decisions regarding treatment for suspected T-cell lymphoma, and (2) It is in MB’s best interests to receive high dose methotrexate (‘high dose MTX’) under general anaesthetic over several days, for up to four cycles, and for the deprivation of MB’s liberty arising from the use of chemical restraint and sedation to implement the treatment plan to be authorised by the court. At the commencement of the hearing the Trust indicated it now sought authorisation for up to two cycles. … The novel aspect of the treatment comes from the way in which that it is to be delivered. The common position is that none of those who are to administer treatment, should it be in his best interests, regard it as safe to do so unless MB is sedated intubated and ventilated at the time. It can only be delivered if MB is admitted to an intensive care unit and the treatment undertaken there.”

  • Case (Self harm and Article 2). Gloucestershire City Council v AB [2022] EWCOP 42 — “On the afternoon of 29 September 2022, the Official Solicitor submitted that an operational duty had arisen under Article 2 of the European Convention on Human Rights for the public bodies to take reasonable steps to protect AB from a real and immediate risk to her life. This conclusion was not simply in the context of the recent change in policy as to self-harm and restraint but also events in August 2022 where AB had consumed both noxious substances and medication which required her to attend hospital. The Official Solicitor submitted that: (i) the position put forward by the Care Co-ordinator that the placement could implement their own care plans was clinically, ethically and legally unsustainable; (ii) it was legally questionable as to whether the self-harm arrangement could be authorised by way of schedule A1; (iii) the current arrangements in respect of self-harm are so unplanned and risky that they ought not continue; (iv) exceptionally, the care and support arrangements should be authorised by the Court and not by the processes set out in Schedule A1 of the Mental Capacity Act 2005. … In light of the exceptional circumstances of this case, the public interest and to provide a sufficient element of public scrutiny considering the Official Solicitor’s submissions as to Article 2 of the ECHR, the Senior Judge has ordered that this order is published in this, anonymised, form.”

  • Case (Convention Adoption Order and capacity). A v B [2022] EWHC 2962 (Fam) — This case involved an application for a Convention Adoption Order (under the 1993 Hague Adoption Convention) but mentions capacity in passing when the court dispensed with the consent of the mother. (Section 52(1) Adoption and Children Act 2002 states: “The court cannot dispense with the consent of any parent or guardian of the child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that (a) The parent or guardian cannot be found or lacks capacity within the meaning of the Mental Capacity Act 2005) to give consent, or (b) The welfare of the child requires the consent to be dispensed with.”)

  • Case (Social media and internet use). Re AA (Social media and internet use) [2021] EWCOP 70 — “In the absence of any evidence, for many months now, of AA putting himself at risk of harm in his use of the internet and social media, I am satisfied that there is insufficient evidence for me to conclude that he lacks capacity to make decisions in respect of his use of the internet and of social media. Even if I am wrong in coming to that conclusion and I ought to find that he does lack capacity, I am entirely satisfied that it is not in his best interests for the daily checks to be undertaken of his electronic devices because: (a) they deliver no evidence of any value and afford no protection to AA; and (b) it is contrary to AA’s wishes that those checks are undertaken, which causes him some distress and/or at least uneasiness.”

  • Case (Autoerotic asphyxiation). Re AA (Capacity to consent to sexual practices) [2020] EWCOP 66 — “I am concerned with AA, a 19 year old man, who has been diagnosed as having autism (‘ASD’) and Asperger’s Syndrome. He has interests relating to certain sexual practices including autoerotic asphyxiation (‘AEA’). He has posted material about himself on the dark web, advertising his wish to be a submissive partner and his desire to be kidnapped and raped. The issues for me to determine are: (i) AA’s capacity to conduct proceedings and make decisions regarding AEA, internet and social media, consent to sexual relations and contact with others; (ii) AA’s best interests in those domains where he lacks capacity to decide; and (iii) Whether I should authorise AA’s deprivation of liberty.”

Resources

  • JR guide. Courts and Tribunals Judiciary, ‘The Administrative Court Judicial Review Guide 2022’ (October 2022) — “This is the seventh edition of the Judicial Review Guide, which has become a valuable resource for all who are involved in proceedings before the Administrative Court. It covers all the stages of a claim for judicial review. Good practice is identified and pitfalls foreshadowed. It is required reading for all those who conduct judicial review cases (whether or not they are lawyers).”

  • Euthanasia of mentally ill people. Karandeep Sonu Gaind, ‘Canada delays expanding medical assistance in dying to include mental illness, but it’s still a policy built on quicksand’ (The Conversation, 15/12/22) — Amendments to Canada’s “medical assistance in dying” (“MAID”) law on 17/3/21 stated that those whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, would not be eligible until 17/3/23. On 15/12/22 the government announced a temporary delay, to allow the healthcare system more time to prepare, and to allow the government more time to consider the February 2023 final report of the Special Joint Committee on Medical Assistance in Dying. This article argues: “When provided to help avoid a painful death for those who are dying, we can distinguish MAID from suicide. Yet when expanded to those seeking death for mental illness, evidence shows MAID becomes indistinguishable from suicide. We cannot differentiate those seeking psychiatric euthanasia from suicidal individuals who resume fulfilling lives after being provided suicide prevention, rather than facilitated death. … To proceed with the planned changes would have been morally, medically and politically irresponsible. Moving forward, it will be important to ensure our future policies are evidence-based. Fortunately, the situation is not yet irremediable.”

  • Annual CQC report on MHA. CQC, ‘Monitoring the Mental Health Act in 2021/22’ (1/12/22) — Key messages: (1) “Workforce issues and staff shortages mean that people are not getting the level or quality of care they have a right to expect, and the safety of patients and staff is being put at risk”; (2) “Gaps in community mental health care are compounding the rising demand on inpatient services, with delays in admission, transfer and discharge”; (3) “Urgent action is needed to tackle the over-representation of people from some ethnic minority groups and, in particular, the over-representation of Black people on community treatment orders”; (4) “The quality of ward environments is an ongoing concern, with many inpatient environments in need of immediate update and repair”; (5) “Despite the challenges facing services, we have seen examples of good practice around advance planning and applying the principle of least restriction”.

News

  • New CPD questionnaire available. The Oct-Nov 2022 (MHA) questionnaire is now available for subscribers. For further information, or to take the test, please visit the CPD scheme page.

  • Page added for Draft Mental Health Bill committee. A new page has been added with a link to this committee’s web pages: see Joint Committee on the Draft Mental Health Bill.

Events