March 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 2216 categorised cases

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

Cases

  • Case (Private hearing). A Midlands NHS Trust v RD [2021] EWCOP 36 — This case (about non-treatment of anorexia) should held in private, in particular because RD’s wish that intensely personal matters be not discussed in public.

  • Case (M’Naghten Rules and choice). R v Keal [2022] EWCA Crim 341 — (1) In order to establish the defence of insanity within the M’Naghten Rules on the ground of not knowing the act was “wrong”, the defendant must establish both that (a) he did not know that his act was unlawful (i.e. contrary to law) and (b) he did not know that his act was “morally” wrong (also expressed as wrong “by the standards of ordinary people”). “Wrong” means both against the law and wrong by the standards of ordinary reasonable people. (2) Under the M’Naghten Rules, the defence of insanity is not available to a defendant who, although he knew what he was doing was wrong, believed that he had no choice but to commit the act in question. (3) The current law on insanity cannot be interpreted as involving an element of “choice”, as significant changes to an aspect of our criminal law that has remained undisturbed for so long, laden with policy choices as they would be, are more properly for Parliament. (4) The judge’s direction of law in the present case was appropriate and the convictions are safe.

  • Case (Abortion). S v Birmingham Women’s And Children’s NHS Trust [2022] EWCOP 10 — (1) The medical bodies’ assertion that there had been “unanimous agreement” that S lacked capacity or that abortion was not in her best interests was a distortion of reality, as they had excluded S’s objections from their decision making. Their failure to refer the matter to court, which was in contravention of Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2, meant that: (a) S, while a s3 patient and at the cost of incurring personal debt, had to bring proceedings herself; (b) there was extreme time pressure, the last day for a lawful abortion being the day after the hearing; and (c) the hearing inappropriately had to be held remotely and without the opportunity for public observation. (2) The relevant information in this particular case was: (a) what the termination procedures involve for S (“what it is”); (b) the effect of the termination procedure/the finality of the event (“what it does”); (c) the risks to S’s physical and mental health in undergoing the termination procedure (“what it risks”); (d) the possibility of safeguarding measures in the event of a live birth. (3) S had capacity to decide whether to have an abortion.

  • Case (Litigation capacity, bulimia). Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 — (1) The court-appointed expert had wrongly treated Mostyn J’s decision in An NHS Trust v P [2021] EWCOP 27 (that it is virtually impossible and would be completely illogical to say that someone has litigation capacity despite lacking subject matter capacity in medical treatment cases) as meaning the two tests were synonymous, and had wrongly confused the likely unwise instructions with lack of capacity to instruct a legal adviser: Q had capacity to litigate. (2) The judge also disagreed with the expert on capacity in relation to potassium treatment for hypokalaemia (a consequence of bulimia) and found it difficult to resist the conclusion that the independent expert’s instinctive professional desire to save Q’s life had allowed the “tail of welfare to wag the dog of capacity” (for example, the expert’s opinion was that Q attributed little value to her own life and saw little of value in her future, but this did not necessarily mean that her ability to weigh life and death medical decisions in the balance was impaired; instead, it might represent a finely calibrated utilitarian calculation). Q had capacity despite her decisions being unwise and most likely to hasten her death. (3) For essentially the same reasons, she had had capacity when when she made an advance decision to refuse treatment.

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