February 2023 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 2284 categorised cases

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

Cases

  • Case (Parental responsiblity and DOL). Re D (A Child) [2019] UKSC 42 — It is not within the scope of parental responsibility to consent to living arrangements for a 16- or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5.

  • Case (DOL of under 16s). Re RN (Deprivation of Liberty and Parental Consent) [2022] EWHC 2576 (Fam) — The local authority sought declarations under the inherent jurisdiction authorising the deprivation of liberty of a 12-year-old girl in her father’s home. The Supreme Court in Re D (A Child) [2019] UKSC 42 had decided that parental consent cannot authorise DOL of 16-17 year olds. The High Court in this case concluded: “It follows from all that I have said that the restrictive care arrangements in place for RN are a proper and lawful exercise of parental responsibility. This amounts to a valid consent, with the consequence that the second limb of the established three stage test for what amounts to a deprivation of liberty is not met. In such circumstances, this Court need not make any High Court declaration authorising them. They are rendered lawful by the parental consent.”

  • Case (Closed hearing and closed material guidance). ‘Closed Hearings’ and ‘Closed Material’: Guidance [2023] EWCOP 6 — This guidance, given following Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44, relates to closed hearings (at which a party and, if represented, his representative is excluded by order of the court) and closed material (which the court has determined should not be seen by the party and/or his representative).

Legislation

Resources

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 129, February 2023) — Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: is depriving a person of their phone depriving them of their liberty, a reminder that the court is the ultimate arbiter of best interests and an Ombudsman comes belatedly to the rescue; (2) In the Property and Affairs Report: a reminder of the new process for applying for deputyship and how the Powers of Attorney Bill would amend the MCA 2005; (3) In the Practice and Procedure Report: the Vice-President intervenes on s.49 reports and new contempt rules; (4) In the Wider Context Report: Parliamentary consideration of the draft Mental Health Bill, a toolkit for supporting decision-making, and confidentiality and common sense; (5) In the Scotland Report: the Supreme Court dismisses an appeal against assessment for services and an opposed application for guardianship.

  • Capacity and offending. 39 Essex Chambers, ‘When P is an offender’ (webinar recording, 21/2/23) — Following DY v A City Council [2022] EWCOP 51, this two-hour webinar deals with how the law approaches offenders and those at risk of offending who lack the relevant mental capacity. The recording is available on Youtube.

  • Section 49 reports. Court of Protection, ‘Letter about s49 reports’ (Mr Justice Hayden, 16/12/22) — This letter from the Vice President discusses the ambit and scope of section 49 reports and when an independent expert report would be more suitable, and recirculates PD 14E with some paragraphs highlighted.

  • T113 (CMR1). Form T113: Case management request (November 2022) — Use for interlocutory matters: (1) Postponements/date brought forward/time change; (2) HQ1 extension; (3) Listing window extension; (4) Prohibition of Disclosure of information: (5) Pre-hearing examination; (6) Permission to withdraw an application; (7) Reinstatement of application; (8) Extension of reports submission/reports directions; (9) Rule 11 request; (10) Telephone conference request; (11) Observer request; (12) Other. This is a simplified form, compared with the September 2020 version, with more tick boxes but only one other box which is for providing reasons.

  • Annual Review. Jonathan Wilson, Mental Health Law Online: Annual Review 2022 (published 2023) — This booklet contains all news items, arranged thematically, which were added to the website during 2022. Price: paperback £5.99, Kindle £2.99.

  • NHS commissioning. NHS England, ‘Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers’ (v2, 30/6/22) — “This version of Who Pays? is being published because of changes introduced by the Health and Care Act 2022 and associated regulations … Although the legislation which underpins Who Pays? is changing in some respects, the new arrangements effective from 1 July 2022 will in practice provide a very high level of continuity with the rules which have applied under the 2020 version of Who Pays?” The introduction notes changes in three key areas: (1) People for whom an ICB is to have core responsibility; (2) Responsibility for detention and aftercare under the Mental Health Act; (3) Transition to adult continuing care. Updates from the 2020 version are highlighted in yellow.

Events

  • Event. Event:Court of Protection: Webinar for legal professionals (online, 28/2/23) — “An overview of how to submit property and affairs deputyship applications to the Court of Protection online. Applications for property and affairs deputyships should be made online. Join us for a step-by-step demonstration of how to make an application and for guidance on which forms must be completed to support your application. There will be plenty of time for questions on the process and the online submission process. The session will be led by Jessica Newton, Deputy Service Manager. You can submit questions during the event by using the live chat bar, or in advance by emailing: HMCTS.Communications@justice.gov.uk.” Time: 1200-1300. Cost: free. See Eventbrite website for further details and booking information.