February 2022 update

Updates MHLO monthly updates
1

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 2212 categorised cases

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

Cases

  • Case (Reporting restrictions). Manchester University NHS Foundation Trust v Verden [2022] EWCOP 4 — Successful application to vary Reporting Restriction Order.

  • Case (Press access to hearing). Kent County Council v P [2022] EWCOP 3 — “The issue in this judgment is whether the public should be admitted to the Court of Protection proceedings concerning P and whether this judgment should be published.”

  • Case (Coronavirus vaccination). A CCG v DC [2022] EWCOP 2 — (1) The judge followed the “official line” and on a fine balance authorised administration of the coronavirus vaccination and boosters to a young man against his parents’ wishes, noting that he could see no reason for the court not to apply to adults under the MCA the same approach taken by the courts to children. (2) Other options were refused: consideration of treatment with ivermectin (as it was not an available option); further evidence to fine-tune the CCG’s risk/benefit analysis (owing to the lateness of the application, urgency, and uncertainty about the proposal), and consideration of further evidence on vaccine risk (owing to the lateness of the application and to avoid an adjournment).

  • Case (Residence). London Borough of X v MR [2022] EWCOP 1 — In this s21A appeal the court decided that it was in MR’s best interests to move from his current nursing home to a Jewish care home.

  • Case (Unlawful DOL of child). Re AB (A Child) [2021] EWFC B100 — The court decided that AB, a 13-year-old child, was being deprived of his liberty at a residential home, and authorised it under the inherent jurisdiction as being in his best interests, noting with concern that he had been unlawfully deprived of his liberty between November 2020 and March 2021.

  • Case (Inquest and care order). R (Boyce) v HM Senior Coroner for Teesside and Hartlepool [2022] EWHC 107 (Admin) — (1) There was no procedural obligation to hold an Article 2 Middleton inquest into the death of the child who was under a care order in a residential children’s home, as she was not in state detention: the difference between a child deprived of liberty in secure accommodation, and a child in care who is free to come and go (notwithstanding that if she simply left police would have been called to return her) and for whom there was no suggestion of secure accommodation, is of substance not merely of form. Obiter, even if the child had been detained it would not have been pursuant to any action by the state given the private nature of the accommodation. (2) The coroner was not wrong to conclude that on the available material there was no arguable breach of the Article 2 general/systems duty. (3) The argument that the coroner had been wrong to hold that the only material effect of the inquest not being an Article 2 inquest would be on the conclusions that might be returned, rather than upon the scope of the inquest, was also unsuccessful.

  • Case (Guidance on judicial visits). Guidance: Judicial visits to ‘P’ [2022] EWCOP 5 — This guidance was issued by Hayden J following Re AH [2021] EWCA Civ 1768, and contains information under three headings: (1) Introduction; (2) Principles; and (3) Practicalities. Contained in an appendix is guidance entitled “Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings” which was originally issued on 14/11/16 by Charles J.

  • Case (Litigation capacity). Richardson-Ruhan v Ruhan [2021] EWFC 6 — A literal interpretation of the Masterman-Lister test would suggest that in the absence of legal advice and representation the wife would be legally incapacitated and the court would be obliged to appoint a litigation friend, which had two problems: (a) it creates circular reasoning, in that if a litigation friend secures representation the incapacity would disappear; (b) if capacity depends on the presence of advice and representation, then it would depend also on its quality, which would be difficult to investigate: the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. The judge decided that if the party would be capable of making the necessary decisions with the benefit of advice then she has capacity whether or not she actually has the benefit of that advice, and if the party is unrepresented the solution is an adjournment in order for representation to be secured rather than the protracted and elaborate procedure of appointing a litigation friend. The wife had the relevant capacity, and the hearing was adjourned.

  • Case (Testamentary capacity). Skillett v Skillett [2022] EWHC 233 (Ch) — “The Claimant brings these proceedings to ask the court to propound in solemn form the will executed by his late father, Charles Skillett (‘the Testator’), on 19 May 2011. The Defendant, his brother, objects on the grounds that their father lacked testamentary capacity and/or did not know and approve the contents of his will at the time of execution.”

Legislation

Resources

  • LPS delay. Helen Tabiner, ‘Letter from DHSC to Liberty Protection Safeguards (LPS) national steering group members’ (DHSC, 17/12/21) — The DHSC was unable to run its 12-week consultation on the draft regulations and draft Code of Practice for the MCA and LPS in summer 2021 owing to “a number of factors outside of our control”, but is monitoring the capacity in the sector to engage with a consultation in light of the omicron variant before a potential launch in early 2022. No new implementation date will be set or funding confirmed until after the consultation.

  • Remote hearings. Janet Clark, ‘Evaluation of remote hearings during the COVID 19 pandemic: Research report’ (HMCTS, 10/12/21) — This report is based on “quantitative surveys with public users, the judiciary, legal representatives and HMCTS staff and qualitative research with a range of public and professional users”.

  • NHS independent investigations. NHS, ‘Independent Investigations: 2019/21 Annual Report’ (December 2021) — “This document provides an annual report and update on the work undertaken by our (NHS England and NHS Improvement’s) regional independent investigation teams (RIITs). … This report details information on 2019/2021 activity (two years) and status of independent investigations, predominately mental health homicides, both completed and commissioned across all four teams/five regions. It includes the themes of learning identified, governance arrangements and financial information.”

  • MCA Codes of Practice. Alex Ruck Keene, Victoria Butler-Cole and Neil Allen, ‘Mental Capacity Act/DOLS Codes of Practice update’ (21/2/22) — This is essentially a list of things that are wrong with the current MCA and DOLS Codes of Practice (with reasons).

  • Scottish vaccination guidance. Mental Welfare commission for Scotland, ‘Vaccination for people with mental illness, learning disabilities, dementia and associated conditions: Position statement’ (14/2/22) — This guidance is for health and care professionals who want people who lack capacity to get the coronavirus vaccinations. Headings include “The use of force in administering a Covid-19 vaccine” and “What happens if the welfare proxy disagrees with the decision to vaccinate?”

  • Ordinary residence and s117. DHSC, ‘Statutory guidance: DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case’ (updated 27/1/22) — This guidance was updated after the Court of Appeal decision in R (Worcestershire County Council) v SSHSC [2021] EWCA Civ 1957. The content of the guidance is essentially unchanged: “Ordinary residence disputes raising similar issues to those in the Worcestershire case will continue to be stayed until we have a final decision by the Supreme Court.”

  • Aftercare case summary. Luke Clements, ‘What a mess - s117 ordinary residence (again)’ (2/1/22) — “In a nutshell – and congratulations if you understand this: The Court of Appeal has reversed a High Court decision that reversed a decision of the Department of Health and Social Care (DoH) to revise the rules determined by the Court of Appeal in a 2011 judgment that affirmed a High Court decision which materially revised the previous rules, concerning the determination of which local authority is responsible for funding the aftercare of individuals who are eligible for support under section 117 Mental Health Act (MHA) 1983.” (blog post’s introductory paragraph)

  • Financial eligiblity. Legal Aid Agency, ‘Keycard 57’ (April 2021) — This document is helpful when working out financial eligibility for civil Legal Aid.

  • MHA statistics. NHS Digital, ‘Mental Health Act Statistics, Annual Figures - 2020-21’ (26/10/21) — “This publication contains the official statistics about uses of the Mental Health Act in England during 2020-21.”

  • Tribunals report. Senior President of Tribunals, ‘Annual Report 2021’ (22/9/21) — This report contains a short introduction from Keith Lindblom, and the following annexes: (A) Upper Tribunal; (B) First-tier Tribunal; (C) Employment; (D) Cross-border issues; (E) Important cases.

  • Tribunal guidance for doctors. RCPsych and Tribunals Judiciary, ‘Guidance for Detaining Authorities and Tribunal Panels about medical evidence for First Tier Tribunal - mental health’ (April 2019) — This document contains information under the following headings: (1) Background; (2) Grades of trainee; (3) Guidance on Medical Report writing; (4) Experience required to give oral evidence at a tribunal hearing; (5) Observations of tribunal hearings; (6) References. The “Arranging Observations” heading has been removed, and some paragraphs added under “Observations of tribunal hearings”, since the 2015 version.

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 119, February 2022) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: religion and the burdens of treatment; vaccine case law update; and making the decisions the person would have made; (2) In the Property and Affairs Report: the scope of the powers under an LPA, and updated safeguarding guidance from the OPG; (3) In the Practice and Procedure Report: vulnerable parties and witnesses, and covert recordings; (4) In the Wider Context Report: blood transfusions for teenage Jehovah’s Witnesses, s.117 ordinary residence and a new capacity guidance website; (5) In the Scotland Report: DNACPRs and the relationship between medical decision-making and guardians’ decision, cross-border deprivations of liberty of children and guardians’ remuneration.”

  • Case law update. Jonathan Wilson, ‘Mental health: update’ (Legal Action, March 2021) — Jonathan Wilson considers mental health case law from the past year relating to coronavirus responses, change in status during proceedings, capacity to make an application, deprivation of liberty during discharge, and other matters.

  • Case law update. Jonathan Wilson, ‘Mental health: update’ (Legal Action, March 2020) — Jonathan Wilson considers mental health case law from the past year relating to reinstatement, absolute or conditional discharge, procedural fairness, unlawful detention, and other matters.

  • COP newsletter. Hill Dickinson, ‘Court of Protection’ (January 2022) — The articles are: (1) Capacity to Engage in Sex vs Capacity to Consent: The Supreme Court’s decision in JB; (2) Caesarean sections and contingent declarations; (3) The role of mediation; (4) Lessons to be learnt from withdrawal of care decision; (5) Jehovah’s Witness: Validity of an Advance Decision; (6) Court of Protection cases from October to December 2021; (7) Contact and coercive control; (8) P’s right to have sex with a sex worker: the Court of Appeal’s decision.

  • Response to victims consultation. Julian Hendy, ‘Hundred families response to Victims’ Law consultation’ (2/2/22) — “In summary we suggest the Victim’s law should: (1) specify that the NHS must be required to deliver services and entitlements to victims of mentally disordered offenders; (2) require the Crown Prosecution Service, NHS, Ministry of Justice agencies and medical professionals to share information with victims of mentally disordered offenders – particularly when an offender pleads guilty to manslaughter by reason of diminished responsibility and/or receives a hospital order; (3) allow victims of mentally disordered offenders to give Victim Personal Statements at Mental Health Review Tribunals (also known as First Tier Tribunals (mental health)) considering the release of mentally disordered offenders; (4) require First Tier Tribunals (mental health) (a) to give victims the reasons for their decision, (b) to allow victims to request a review of a tribunal decision; (5) require all families of victims of mentally disordered offenders to be granted non-means-tested legal aid at Inquests involving state agencies; (6) should require NHS agencies to provide or finance appropriate trauma informed care and counselling services for victims of mentally disordered offenders; (7) should strengthen the powers of the Office of the Victims’ Commissioner so that agencies must have a statutory duty to cooperate with and provide information to the Commissioner and address any deficiencies; (8) should provide an easy and clear pathway – possibly through regional commissioners – to enable victims to complain effectively and obtain appropriate action and accountability if agencies fail to comply with the code.”

  • Criminal justice system consultation. Ministry of Justice, ‘Delivering justice for victims: A consultation on improving victims’ experiences of the justice system’ (consultation from 9/12/21 to 3/2/22) — “This consultation is the first significant step towards a landmark ‘Victims’ Law’ - a Bill which will build on the foundations provided by the Victims’ Code to substantially improve victims’ experiences of the criminal justice system.”

News

  • CPD scheme. The CPD scheme is now fully up to date, with 12 tests online relating to the past 12 months’ website updates. The scheme is primarily aimed at mental health solicitors, but is also suitable for barristers, psychiatrists, social workers and psychiatric nurses. You can subscribe or resubscribe for £60, or take a test, by visiting the CPD scheme page.

Events

  • Event. Event:PELT: Sex, marriage and relationships (if you are allowed), with Ben McCormack (online, date TBC) — “Engaging in and consenting to sex, preventing sex [by limiting contact], the right to pay for sex (and can staff facilitate this?). Capacity to understand the other person’s ability to consent, capacity to marry, vulnerability to sex through social media. Contraception and sterilization, termination of pregnancy, capacity to agree to IVF.” Speaker: Ben McCormack. Cost: £125 plus VAT (£150). Date TBC.

  • Event. Event:PELT: Getting ready for Liberty Protection Safeguards, with Lorraine Currie (online, date TBC) — The date of this course (and details) will be announced when the draft Code/Regulations are published.

  • Event. Event:PELT: Introduction to the MHA, Code and Tribunals (online, 27/4/22) — “The basic course is for all those who need an understanding of the MHA and Code and how it works in practice. It is aimed at all those whose work involves working with those detained, or who may be detained, under the MHA.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: Becoming a Mental Health Act Administrator - the basics (online, 4/5/22) — “The course is designed to equip new or less experienced MHAAs with the tools to do their job effectively. It will assume little or no knowledge of the MHA.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: Depriving Children and Young People of their liberty lawfully (online, 11/5/22) — “How to lawfully deprive a C or YP of their liberty requires great care. What is a DoL and where does PR fit? The course looks at the complex inter relationship between the MCA, MHA and Children Act. When should a child or young person be sectioned? What alternatives are there? Where does s.25 Children Act fit in?” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: Introduction to using Court of Protection including s21A appeals (online, 17/5/22) — “The Court of Protection addresses issues not only of finances but also where deprivation of liberty safeguards and procedures are authorised or challenged, disputed capacity issues are resolved, and where arguments about adult protection and best interests are determined. It is essential that all those working with vulnerable people/safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court. The course will include updates relating to appeals against Liberty Protection Safeguards if implementation is imminent.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: Introduction to MCA and Deprivation of Liberty Safeguards (online, 18/5/22) — “Intensive introduction to all those who need a basic understanding of the MCA and DOLS. Identifying the ‘decision maker’ as the person responsible for the outcome of that particular decision is the key to lawful decision making on behalf of those who lack capacity.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: MHA Masterclass (online, 25/5/22) — “This course will allow practitioners to reflect and update their practice by ensuring they have an up to date understanding of the law. The contents of the course will be up to date and reflect any changes or significant developments which affect lawful practice. To include relationship between MHA and DoLs/LPS.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: Advanced course for Mental Health Act Administrators (online, 26/5/22) — “This course assumes basic knowledge and experience and will examine the many demands of job and provide some effective and legal coping mechanisms. The course will enable a group of experienced MHAAs to get together and share both the demands of the job and some solutions.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.

  • Event. Event:PELT: Court of Protection and MCA Masterclass (online, 8/6/22) — “Reviews recent developments in Court of Protection cases. It will include the latest CoP cases on deprivation of liberty, capacity, health and welfare, legal aid and treatment and what practitioners can learn from these cases that will promote effective and lawful practice.” Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.