March 2026 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 £75. 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 2541 categorised cases

  • Chronology. See March 2026 chronology for this month’s changes to the website in date order.

Cases

  • Case (Participation of patient). DB v Lancashire and South Cumbria NHS Foundation Trust [2026] UKUT 28 (AAC) — The patient, who was in long-term seclusion, had asked for a face-to-face hearing so that he could at least participate through a pre-hearing examination (PHE). The afternoon before the hearing the format was changed to video because of panel unavailability. On the day, the tribunal refused to adjourn. (1) Its decision was unlawful because: (a) proceeding in the patient’s absence and without a PHE, when he had expressed his wish to participate, breached rule 2 (Overriding objective); (b) the tribunal had refused to adjourn before considering rule 39 (Hearings in a party’s absence) and in applying rule 39 did not consider rule 2. In particular: (i) a PHE was not impractical (under rule 39(2)(b)(ii)) because it could happen if the medical member attended the hospital in person (whether or not the hearing was face-to-face or video); (ii) the tribunal was wrong to think a PHE would involve risk, as it could be conducted through the seclusion room hatch in the same way as the representative had recently taken instructions; and (iii) it was not in the interests of justice (under rule 39(1)(b)) to proceed without participation when some participation could be facilitated. Procedural fairness is important to improve the chances of reaching the right result (even in seemingly “open and shut” cases) and to protect the value of human dignity by avoiding the feelings of resentment which arise if a person is unable to participate effectively: this case was about the patient’s liberty, he ought to have been able to participate via a PHE, and he felt that he had been “stitched up”. The fact that it was a three-year reference made the need for procedural fairness even more acute. (2) The previous day’s interlocutory decision to direct a video hearing rather than postpone was not unlawful, despite a factual misunderstanding, as it was an urgent interim decision which was clearly not binding on the panel and should have made no material difference.

  • Case (JR of legal aid refusal). R (EB) v Director of Legal Aid Casework [2026] EWHC 402 (Admin) — The claimant, after a clinical trial for the use of psilocybin as a potential treatment for anorexia nervosa, wished to make a court application to allow her to be administered the otherwise-illegal psychedelic drug by a medical team. Her judicial review of the defendant’s refusal of Exceptional Case Funding under s10 Legal Aid, Sentencing and Punishment of Offenders Act 2012 was successful. The defendant had: (a) wrongly decided that Article 8 ECHR was not engaged because it had failed to evaluate all relevant facts; (b) failed to follow the Court of Appeal’s guidance in Gudanaviciene; (c) applied the sufficient benefit test (reg 32(b) Civil Legal Aid (Merits Criteria) Regulations 2013) to completely the wrong facts. The defendant argued that their unlawful decision should not be quashed as it would have refused legal aid even if it had got the facts right, but that argument was rejected as it did not appear to the court to be “highly likely that the outcome … would not have been substantially different”: s31(2A) Senior Courts Act 1981. The court noted: “It is frankly astonishing that, in a case about the allocation of public funds, even once permission had been granted on all three grounds, the Defendant chose to continue to defend an indefensible decision at trial. In doing so, they incurred significant costs instructing counsel to put forward complex legal arguments in an effort to cure the obvious fundamental defects of the decision instead of simply reissuing a decision based on the actual circumstances of the case at hand.”

  • Case (Nurse sex offender). R v Andrew Culverwell [2026] EWCA Crim 203 — The appellant, a community psychiatric nurse at Dorset Healthcare NHS Foundation Trust, had been convicted of multiple sexual offences against a patient (who had attempted suicide after his threats to alter her health records in a way that might reduce her level of care). He appealed against some counts under s38(1) Sexual Offences Act 2003 (“Care workers: sexual activity with a person with a mental disorder”) on the basis that the judge should not have decided that as a matter of law that he still met the statutory definition of care worker while on long-term sick leave. The Court of Appeal dismissed his appeal: abuse of a position of trust is the essence of the offence, and that abuse exists whether the sexual activity occurs on-shift or off-shift. His appeal against sentence (7 years’ imprisonment, restraining order, SHPO) was also dismissed.

  • Case (Cancer-related treatment). St George’s University Hospitals NHS Foundation Trust v ZT [2025] EWHC 3273 (Fam) — ZH, a s3 patient, had been diagnosed with atypical endometrial hyperplasia, a pre-cancerous condition, and it was proposed that she undergo a total laparoscopic hysterectomy and bilateral salpingo-oophorectomy (TLH BSO). The benefit would be that it would be curative unless ZT already had cancer which had metastasised. The significant burdens included that it would remove entirely even the theoretical possibility that ZT would bear children, and potential psychiatric consequences. The balance was in favour of surgery.

Resources

  • Race and detention. Fiona Hamilton, ‘Is psychiatry’s focus on race stats linked to Nottingham attacks?’ (The Times, 19 March 2026) — This article is based on an interview with Professor Swaran Singh. The gist of his argument is that ethnic differences in detention rates are not the result of a racist mental health system but instead reflect the fact that different physical and mental health issues affect ethnicities differently (“diseases are not egalitarian”). Key risk factors such as urban upbringing, school exclusions, drug use and poverty make ethnic minority groups, and migrant populations in particular, more susceptible to mental health problems. Other factors linked to schizophrenia - urban upbringing, social exclusion, childhood trauma, cannabis use - increase that risk and apply more to Afro-Caribbean people, and also mean Afro-Caribbean men are less likely to seek treatment such as mental health support prior to crisis point. He urged the government to target the wider social risk factors to tackle higher rates of mental health detention, not the behaviour of professionals trying to treat patients in need.

  • COPUG minutes. COP User Group, ‘Meeting (P and A): Minutes and action points’ (21 January 2026) — Minutes and action points following meeting.

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 156, December 2025) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: holding the risk in medical treatment cases; capacity to marry under the spotlight; and mental health conditions, cancer investigation and capacity; (2) In the Property and Affairs Report: the general costs rule in property and affairs cases under pressure, and a guest post on appointeeship; (3) In the Practice and Procedure Report: fact-finding in the Court of Protection and recommendations about mediation in medical treatment disputes; (4) In the Mental Health Matters Report: progress of the Mental Health Bill, community mental health services under pressure and a new website with Nearest Relative resources; (5) In the Children’s Capacity Report: brain stem death testing and procedural fairness, and children in complex situations at risk of deprivation of liberty; (6) In the Wider Context Report: suicide prevention and assisted dying / assisted suicide; (7) In the Scotland Report: questionable guardianship.”

  • Changes to hearing type. Mental Health Tribunal, ‘Late applications to change type of hearing (video/face-to-face)’ (23 February 2026) — “Applications received within three days of the hearing will not ordinarily be considered, save in exceptional circumstances where compelling reasons are clearly demonstrated. Instead, any change request will need to be made orally to the panel on the day.”

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 158, March 2026) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Senior Judge Hilder lays down her baton; attorneys and failures to consult, and a research corner on anorexia and last resort options. (2) In the Property and Affairs Report: new OPG guidance, ‘third sector’ deputyship and a reverse indemnity tangle; (3) In the Practice and Procedure Report: notes from a fireside chat with DDJ Flanagan, and litigation capacity in the absence of subject-matter capacity; (4) In the Mental Health Matters Report: conditional discharge and deprivation of liberty – the new regime, and conditional discharge into hospital; (5) In the Children’s Capacity Report: parental responsibility and confinement – the need for an appellate judgment; (6) In the Wider Context Report: assisted dying / assisted suicide update, Strasbourg’s latest word on withdrawing life-sustaining treatment and mental capacity reform in New Zealand.”

  • Law Society MHT practice note. Law Society, ‘Practice note: Representation before mental health tribunals’ (7 October 2025) — The Law Society published this five months ago without a fanfare and without any indication of what has changed. In relation to the mental health accreditation scheme, the note states: “Requirements for membership of the scheme include a good working knowledge of this practice note.” The good news is that a “tracked changes” version has been prepared by Mental Health Law Online. It highlights changes from the 23 February 2024 version, but ignores corrections and changes to grammar and formatting (for example, patronisingly, paragraphs have been reduced to one sentence each).

  • Tribunal book. Edward Jacobs, Tribunal Practice and Procedure (6th edn, LAG 2024) — This book covers tribunals generally, not just mental health.

  • Victims guidance. Tribunal guidance T118: Victims of violent or sexual offences (February 2026) — “What to do if you’re a victim (or family member of a victim) of a violent or sexual offence committed by a person detained under the Mental Health Act.” The only change from the April 2012 version is that “5th Floor” has been removed from the tribunal’s postal address.

  • Case law update. Jonathan Wilson, ‘Mental health case law: update’ (Legal Action, June 2025) — This article considers mental health case law relating to open justice in the First-tier Tribunal, and recent decisions by the Upper Tribunal and other courts and state organisations in relation to the detention and treatment of mental health patients.

  • Case law update. Jonathan Wilson, ‘Mental health case law: update’ (Legal Action, June 2024) — This article considers mental health case law from the past year relating to aftercare, appropriate medical treatment, remote assessments, reinstatement, adjournment, deprivation of liberty, and other matters.

  • Paper review. Mental Health Tribunal, ‘Form: Rule 35(3)(b) notification by legal representative’ (January 2025) — This form is sent to legal representatives in referral cases, for them to notify the tribunal when the requirements for a paper review (determination without a hearing) are met.

  • Concurrent prison sentence and hospital order. Ministry of Justice, ‘Restricted patients imprisoned and prisoners given a hospital order’ (FOI response 251127086, 18 February 2026) — (1) If a restricted hospital order patient is sentenced to a term of imprisonment for a different offence, he would go to prison but potentially be transferred back to hospital. At the end of the prison sentence the patient would remain subject to detention in hospital under the original hospital order unless the patient had already been conditionally discharged on the advice of the RC. (2) If a sentenced prisoner were to receive a restricted hospital order, he would initially be detained in hospital. When the patient is granted a conditional discharge he will either be released (if the sentence had by then expired) or returned to prison (to server the remainder of the sentence).

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