July 2022 update

MHLO · 1 August 2022 22:25

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 2245 categorised cases
Chronology. See July 2022 chronology for this month’s changes to the website in date order.

Cases

Case (Drunkenness). Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 — “The appeal in this very sad case raises a short but interesting point of law about whether a claimant can rely on his own drunkenness, and consequential lack of insight, either to avoid a finding of contributory negligence or to reduce the apportionment of responsibility for his contributory negligence.”
Case (Eating disorder). Pennine Care NHS Foundation Trust v Mrs T [2022] EWHC 515 (Fam) — “It is proposed that Amy should be transferred to an intensive care unit at a nearby general teaching hospital for a period of sedation under General Anaesthetic. The anticipated sedation is for a duration of 3-7 days so as to provide physical investigation and treatment and most significantly a sustained period of re-feeding. It is then intended that Amy should be returned to continue intensive mental health treatment and treatment to support her physically in that. That course of treatment carries with it considerable risks.”
Case (Capacity to execute LPA). The Public Guardian v RI [2022] EWCOP 22 — “The sole question which this judgment addresses is whether the donor under a Lasting Power of Attorney for Property and Financial Affairs (LPA) executed in 2009 had capacity to execute it. … I proceed on the basis that the relevant information in relation to the execution of an LPA is: (a) The effect of the LPA. (b) Who the attorneys are. (c) The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers. (d) When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective. (e) The scope of the assets the attorneys can deal with under the LPA. (f) The power of the donor to revoke the LPA when he has capacity to do so. (g) The pros and cons of executing the particular LPA and of not doing so.”
Case (Dental and ENT treatment). South Tyneside and Sunderland NHS Trust Foundation v SA [2022] EWCOP 23 — “The Trust seeks orders enabling them to examine SA’s mouth under general anaesthetic and provide such dental treatment as required, examine SA’s ears and perform suction clearance and/or insert grommets and take blood to monitor his current medication. … In the documents filed by the mother she does not consent to the proposed treatment and requests the Trust and the court consider whether any treatment SA does have includes a frenectomy. This is not supported by the Trust.”
Case (Weaning from ventilation). Imperial College Healthcare NHS Trust v Mrs C [2022] EWCOP 28 — Mrs C was in a prolonged disorder of consciousness (it was not necessary to determine whether a minimally conscious state or a chronic vegetative state). An independent doctor, supported by the family, argued for a further attempt to wean her from ventilation despite the very small prospect of success. The trust argued that extubation followed by palliative care was in her best interests, and that continued ventilation would be unethical and not a clinically available option, but agreed to pursue the weaning plan if the court authorised that. The judge concluded that Mrs C would wish to put her life in God’s hands and fight for life (and for breath) as long as possible, so weaning was in her best interests, though any longer than 14 days would be unethical.
Case (Remuneration of deputy). Riddle v Parker Rhodes Hickmott Solicitors [2022] EWCOP 18 — The professional, non-legally-qualified deputy argued that the volume of work, given the size and complexity of the estate, would not adequately be met by the limited local authority rates set out in PD 19B. The court dismissed his appeal, noting that costs which run close to or even exceed the fixed fees constraint do not necessarily establish a basis for an SCCO assessment.
Case (Coronavirus vaccination). A CCG v DC [2022] EWCOP 20 — DC was not vaccinated following the original court decision that, given the high risk of serious consequences, it would be in his best interests; he did, however, contract coronavirus (experiencing high temperature, pain, and some respiratory distress) and make a full recovery. On appeal, the judge noted that the parents’ anxious reaction to the vaccination process was indirectly one of the factors illuminating DC’s best interests, and ordered further evidence before reaching a final conclusion: “(i) How many injections is DC likely to require? (ii) Given that DC was most likely infected by the Omicron variant, is it necessary for him to have both an injection and a booster? (iii) Given his ‘clinical vulnerability’, is it likely that DC will require any medication or vaccination presently targeted to this particular group? (iv) Is it the case that vaccination, post natural infection by the Omicron variant, is likely to boost immunity?”
Case (Capacity to refuse feeding). PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16 — PH, regarding his situation as a living hell and perceiving himself to be a burden to others, had refused percutaneous endoscopic gastrostomy (PEG) feeding for 41 days. The court agreed with the medical evidence that he had capacity to make this decision, and the application for declarations pursuant to the inherent jurisdiction was rejected.
Case (COP proceedings during s3 dismissed). PH v A Clinical Commissioning Group [2022] EWCOP 12 — Proceedings were brought under s16 MCA 2005 in respect of LH, a patient detained under s3 MHA 1983, by his mother as litigation friend, seeking orders authoring his future deprivation of liberty in the community and other related declarations. There was no jurisdictional bar to the court making such orders, but LH’s discharge from the MHA was not imminent and court oversight of the process would be costly and inefficient for the parties and the court. The application was therefore dismissed.
Case (Coronavirus vaccination). North Yorkshire Clinical Commissioning Group v E [2022] EWCOP 15 — The judge followed the orthodox view in deciding that administering a coronavirus vaccination was in E’s best interests despite objections from some family members, and offered guidance which concluded that “disagreements amongst family members about P being vaccinated which are at their root disagreements about the rights and wrongs of a national vaccination programme are not suitable for determination by the court. It will be in P’s best interests to avoid delay and for differences to be resolved without recourse to court proceedings.”
Case (Coronavirus vaccination). NHS Liverpool CCG v X [2022] EWCOP 17 — The judge followed the orthodox view in deciding that administering a coronavirus vaccination was in X’s best interests despite family objections.
Case (Contact). MB v PB [2022] EWCOP 14 — “P is subject to a standard authorisation at the care home. Pursuant to the order of Francis J made on 21 April 2021, P’s husband MB has had his access to the care home and contact with P very substantially restricted. By these proceedings, MB challenges the standard authorisation and the contact restrictions. Although the proceedings have been brought as a challenge pursuant to section 21A of the Mental Capacity Act 2005, the court has the power pursuant to section 16 Mental Capacity Act to make decisions on behalf of P as an incapacitated adult applying a best interests test as set out in section 4 of the Act.”
Case (Death). London North West University Healthcare NHS Trust v M [2022] EWCOP 13 — “This is an application by the London North-West University Healthcare NHS Trust for a declaration that it is lawful and in the interests of a young man, M to be put on the palliative care pathway and for IV fluids and other artificial life-prolonging treatments to be discontinued.”
Case (Kidney transplant). Manchester University NHS Foundation Trust v William Verden [2022] EWCOP 9 — The Trust originally sought a declaration that it was not in a 17-year-old boy’s best interests to undergo a kidney transplant, but by the final hearing could not make its mind up. The court decided that William lacked capacity and the transplant, with sedation and ventilation post-operatively, was in his best interests.
Case (RRO). LF v A NHS Trust [2022] EWCOP 8 — G’s father asked for the reporting restrictions to be discharged to allow G’s story to be shared in relation to a proposed crowd-funding campaign. In applying the usual balancing exercise, the judge noted that “the Article 10 right asserted by the father is to pursue, in the public domain, an outcome which has been assessed as contrary to his daughter’s interests”, and concluded that the restrictions should continue.
Case (Departure from general costs rule). A Local Authority v ST [2022] EWCOP 11 — The judge summarised the law on costs in COP welfare cases (the non-exhaustive list of factors in COPR 19.5(2) must be considered when deciding to depart from the general rule that there be no order) and ordered that the local authority pay 85% of the costs incurred by the OS relating to an attended hearing that could have been avoided (not including the judicial visit).
Case (Medical treatment for baby). Wirral Borough Council v RT [2022] EWHC 1869 (Fam) — The court was asked to decide whether it was in NT’s best interests to undergo surgery to investigate, and if necessary repair, a suspected obstructed bowel.
Case (Testamentary capacity). Hughes v Pritchard [2021] EWHC 1580 (Ch) — “Gwen Hughes, the second defendant, and her son Stephen Hughes, the third defendant, contend that the 2016 will is invalid on the grounds of lack of testamentary capacity, want of knowledge and approval and/or undue influence exerted by Gareth Hughes upon his father; or alternatively that Yr Efail is subject to a proprietary estoppel claim by Elfed’ Hughes’ estate whereby Yr Efail belongs in equity to that estate.”
Case (Testamentary capacity and solicitor’s role). Hughes v Pritchard [2022] EWCA Civ 386 — “This appeal raises some important issues about the proper weight to be given to the drafting solicitor’s evidence and a medical practitioner’s assessment of a testator’s testamentary capacity and the tasks which they need to undertake.”
Case (DOL of child). An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] EWHC 719 (Fam) — The High Court was asked under the inherent jurisdiction to authorise the continuing deprivation of a child’s liberty on an inappropriate hospital ward, but the judge decided that “to grant the relief sought by the Trust in this case would be to grossly pervert the application of best interests principle.”
Case (Change of status - s37/41 to C/D). DD v Sussex Partnership NHS Foundation Trust [2022] UKUT 166 (AAC) — DD applied to the MHT while subject to s37/41 but, before the hearing, was conditionally discharged: the MHT decided that it ceased to have jurisdiction. He appealed to the UT but, before that hearing, was absolutely discharged: the UT decided that it retained jurisdiction and should decide the case despite it being academic. The UT concluded that the MHT retain jurisdiction when a s37/41 patient is conditionally discharged.

Legislation

Legislation. Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 — This brings into force most of Health and Care Act 2022 on 1/7/22, including schedule 4 which makes amendments to the MHA 1983 (changing “clinical commissioning group” to “integrated care board”).
Legislation. Health and Care Act 2022 (Consequential and Related Amendments and Transitional Provisions) Regulations 2022 — Part 2 of these regulations make amendments which are consequential on the establishment of integrated care boards (ICBs) and the abolition of clinical commissioning groups (CCGs), including amendments to the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 and the Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008.
Legislation. Health and Care Act 2022 — “An Act to make provision about health and social care.” Among many other things, it replaced “clinical commissioning group” in the MHA with “integrated care board”.

Resources

DOL of under 18s. Neil Allen et al, ‘Guidance Note: Deprivation of liberty and those under 18’ (39 Essex Chambers, 3/2/22) — The authors have “produced guidance to help practitioners navigate the complex waters relating to deprivation of liberty relating to those under 18, complexity arising both from the substantive law (how does the concept of deprivation of liberty apply to those under 18?) and procedural law (how should deprivations of liberty be authorised?)”.
Homicide statistics. Office for National Statistics, ‘Homicide in England and Wales: year ending March 2021’ (10/2/22) — “Analyses of information held within the Home Office Homicide Index, which contains detailed record-level information about each homicide recorded by police in England and Wales.”
Annual CQC report on MHA. CQC, ‘Monitoring the Mental Health Act in 2020/21’ (21/2/22) — Key messages are: (1) The workforce is under extreme pressure; (2) Community services are key to reducing levels of detention in hospital; (3) Urgent action is needed to address longstanding inequalities in mental health care.
Mental health Legal Aid form. Legal Aid Agency, ‘Form CW 1&2 MH’ (v17, dated June 2022, published 13/7/22) — This form, with an amended privacy notice, can be used from 13/7/22. The old form may also be used until 15/10/22.
New legal aid forms. LAA, ‘Civil/crime news: privacy notice changes on legal aid forms’ (13/7/22) — New forms from 13/7/22. Old forms will be accepted until 15/10/22.
Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 123, June 2022) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Vaccine judgments; deprivation of liberty of 16- and 17-year-olds; and brain stem death. (2) In the Property and Affairs Report: Capacity to make an LPA; and remuneration for non-professional deputies. (3) In the Practice and Procedure Report: A dispatch from the World Congress on Capacity; and updates on the National Deprivation of Liberty Court for children. (4) In the Wider Context Report: Draft Mental Health Act Bill is published; Mental capacity and PI awards; values in the Court of Protection; and helpful and interesting videos. (5) In the Scotland Report: Dispatches from the World Congress.”
LPS forms. DHSC, ‘Liberty Protection Safeguards Newsletter: Draft LPS template forms’ (8/7/22) — Nine draft template forms: (1) referral for an IMCA; (2) mental capacity assessment; (3) medical assessment; (4) necessary and proportionate assessment; (5) submission for pre-authorisation review; (6) referral for an unscheduled review; (7) submission for renewal; (8) referral for final authorisation; (9) authorisation record.
Tribunal choice feedback. Mental Health Tribunal, ‘Feedback from a patient’s legal representative on choosing mental health tribunal hearing by video or in person’ (July 2022) — Legal representatives will be asked to complete this form after each hearing during the pilot scheme allowing patients to choose between video and face-to-face hearings. See 2022-07-07 MHT returning to face-to-face hearings for details.
Hospital tribunal requirements. Mental Health Tribunal, ‘Minimum security requirements and amenities for tribunal hearing rooms in hospitals’ (June 2022) — The two main headings are: (1) Standards of safety and security; (2) Standards of amenities to be provided.
Video hearing requirements. Mental Health Tribunal, ‘Requirements for video hearings’ (July 2022) — The standards relate to the room, internet connection, equipment, and other matters.

News

MHT returning to face-to-face hearings. Under a pilot scheme, from 3/10/22 (for non-s2 cases) and from 7/11/22 (for s2 cases) the patient will be asked to express a preference (“hearing by video”, “hearing at the hospital” or “no preference”; in the last case the default will be video). A face-to-face hearing preference must be communicated at least 14 days (for non-s2 cases) or 72 hours (for s2 cases) before the hearing. The intention is to meet the patient’s preference when possible (subject to panel availability, lockdowns etc); an urgent application should be made if the patient changes his mind. The responsible authority can also express a preference. Regional listing will resume, but national listing will be available for video hearings to meet demand. Legal representatives will be asked to complete a survey after each hearing to provide feedback on patient choice. The medical member can decide how to conduct the PHE unless this has been directed to be conducted in-person. The pilot scheme will be reviewed regularly (and may be affected by a changing coronavirus situation), prior to a final review in February 2023. Until the pilot commences, all patients continue to be able to apply for a face-to-face hearing.

Events

Event. Event:PELT: Becoming a Mental Health Act Administrator - the basics (online, 19/10/22) — “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. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Introduction to MCA and DOL (online, 1/11/22) — “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. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Introduction to COP, including s21A appeals (online, 3/11/22) — “The Court of Protection has a very wide ambit potential touching the lives of many vulnerable people. DoLS and procedures are authorised or challenged and where arguments about capacity or adult protection and best interests are resolved. It is essential for those working with vulnerable people/safeguarding.” Speaker: Peter Edwards. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Introduction to the MHA, Code and Tribunals (online, 25/11/22) — “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. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Mental Health Act Masterclass (online, 23/11/22) — “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. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Court of Protection and MCA Masterclass (online, 30/11/22) — “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. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Getting ready for Liberty Protection Safeguards, with Lorraine Currie (online, 2/12/22) — “The day will help you get ready for the new LPS.” Speaker: Peter Edwards. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:PELT: Advanced course for Mental Health Act Administrators (online, 7/12/22) — “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. Price: £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, 14/12/22) — “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. Price: £125 plus VAT (£150). See PELT website for further details and booking information.
Event. Event:MHLA: Conducting face-to-face tribunal hearings (Leeds, 23/8/22) — “DCP Sarah Johnston has announced that a pilot return to face-to-face hearings will commence as of 3 October 2022. In March 2020, face-to-face hearings were stopped in response to the Coronavirus pandemic. Hearings have predominantly remained virtual since this time. Practitioners are invited to attend this course to refresh their skills and technique and to share tips for conducting face-to-face tribunal hearings.” Speakers: Tam Gill and Laura Janes. Cost: £75 (MHLA members), £100 (non-members). See MHLA website for further details and booking information for the morning and afternoon sessions.
Event. Event:MHLA: Conducting face-to-face tribunal hearings (London, 22/8/22) — “DCP Sarah Johnston has announced that a pilot return to face-to-face hearings will commence as of 3 October 2022. In March 2020, face-to-face hearings were stopped in response to the Coronavirus pandemic. Hearings have predominantly remained virtual since this time. Practitioners are invited to attend this course to refresh their skills and technique and to share tips for conducting face-to-face tribunal hearings.” Speakers: Tam Gill and Laura Janes. Cost: £75 (MHLA members), £100 (non-members). See MHLA website for further details and booking information for the morning and afternoon sessions.
Event. Event:MHLA: Foundation course (London, 26/8/22) — “This course is aimed at new practitioners and those intending to attend the Panel course in the near future. Attendance at the Foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day Panel course, which is a pre-requisite for application to The Law Society’s mental health panel.” Speakers: Tam Gill and Laura Janes. Cost: £150 (members), £195 (non-members). See MHLA website for further details and booking information.