November 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 2265 categorised cases

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

Cases

  • Case (Art 3 - forced abortion and contraception). GM v Moldova 44394/15 [2022] ECHR 1010 — Headnote from judgment: “(1) Art 3 (procedural) • Ineffective investigation into allegations of forced abortions and forced contraception after rape by doctor in neuropsychiatric residential asylum of three intellectually disabled applicants with legal capacity. (2) Art 3 (substantive) • Positive obligations • Inhuman or degrading treatment • Respondent State’s failure to establish and apply effectively a system providing protection to intellectually disabled women in psychiatric institutions against serious breaches of their integrity • Domestic legal framework lacking adequate safeguards of obtaining valid, free and proper consent from intellectually disabled persons for medical interventions • Inadequate criminal legislation and lack of mechanisms to prevent such abuse • Failure to protect applicants’ physical integrity from non-consensual abortion and regarding first applicant also forced contraception • Absence of prima facie evidence showing remaining applicants subjected to forced contraception” The state was ordered to pay the three applicants €30,000, €25,000 and €25,000.

  • Case (Solicitor fined over LPAs). Varinder Ghaiwal [2022] MHLO 4 (SDT) — Varinder Ghaiwal was fined £6,000 (plus £11,000 costs) for, while acting as certificate provider in respect of a client’s two LPAs, failing to verify instructions and failing to ensure that the client understood the purpose of the LPA and/or the scope of the authority they provided. The case arose after the police made a report to the SRA concerning an ongoing investigation into the elderly man’s financial affairs. The SRA commissioned an expert report which concluded: “Mr Ghaiwal’s case is that he was a witness, however he was far, far more than that: a certificate provider. His failure to recognise this and therefore his failure to recognise the resulting duties and responsibilities meant that there was an egregious breach of his obligations to [the client]”.

  • Case (Section 117 assessment delay). West Sussex County Council (21 012 744) [2022] MHLO 3 (LGSCO) — “Summary: We found no fault by the Council and Integrated Care Board in terms of the Section 117 aftercare they provided to Mrs Y. However, we found the Council, Trust and ICB delayed significantly in carrying out a Section 117 review. They will apologise and pay Mr X a financial remedy in recognition of the distress and frustration this caused. The Council, Trust and ICB will also review their policies and procedures to prevent similar problems occurring in future.”

Legislation

Resources

  • Open justice. House of Commons Justice Committee, ‘Open justice: Court reporting in the digital age’ (HC 339, 1/11/22) — “We launched this inquiry in September 2021 to consider two open justice issues. The first was how the changing nature of the media was affecting court reporting. The second was how the court reform programme was affecting the public and the media’s ability to access information on court proceedings. The unifying theme between the two issues is the increasing digitisation of both the courts and the media and the implications of this for the public’s ability to access information on court proceedings. The evidence submitted to this inquiry has suggested that open justice in England and Wales is facing an important turning point in its history. This jurisdiction has a tradition of open justice dating back centuries. However, the advent of the digital age has profoundly changed how information on court proceedings is accessed and communicated. Digitisation of the courts and the media presents opportunities and risks for open justice and raises fundamental questions over the correct balance between transparency and justice.”

  • MHA statistics. NHS Digital, ‘Mental Health Act Statistics, Annual Figures - 2021-22’ (27/10/22) — “This publication contains the official statistics about uses of the Mental Health Act (‘the Act’) in England during 2021-22.”

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 127, November 2022) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: When it is in a person’s best interests to end restraint which is necessary to keep them alive; and removing silos from capacity in substance and procedure. (2) In the Practice and Procedure Report: A plethora of developments around transparency, reporting restrictions and closed hearings. (3) In the Wider Context Report: Morahan in the Court of Appeal; Updated RCN guidance on sex and sexuality in care homes; and the relationship between clinical guidelines and negligence. (4) In the Scotland Report: An imperative to reform mental health law; and the Hague Convention on the International Protection of Adults.”

  • Increasing use of MHA. Darren Boyle, ‘As more mental health patients are locked away against their will experts warn of a return to the grim age of asylums’ (Mail on Sunday, 27/8/22) — This article argues that the increasing use of the MHA is “at least in part a symptom of a wider problem in the NHS: the practice of defensive medicine”.

  • T111. Form T111: Referral to First-tier Tribunal (Mental Health) (v11.22) — Referral form. See s67 for details of when and how to use this form. For use from 7/11/22. This form asks whether the patient would like the hearing by video or face-to-face, or has no preference. The change from the earlier version is that the form also applies to s2 patients.

  • T110. Form T110: Application to First-tier Tribunal (Mental Health) (v11.22) — Application form for everything (including s2) except guardianship cases. For use from 7/11/22. This form asks whether the patient would like the hearing by video or face-to-face, or has no preference. The change from the earlier version is that this form also applies to s2 patients.

  • Inquest adjourned after disclosure failures. Private Eye, ‘Mental health: Track records’ (issue 1584, 21/10/22, p41) — This article is primarily about a coroner adjourning the inquest into Chris Nota’s death after 13 days when it emerged that Essex Partnership University NHS Trust had failed to disclose correspondence between clinicians to the serious incident investigation. It also mentions the Essex Mental Health Independent Inquiry into unexpected psychiatric patient deaths, a Dispatches programme about abuse of patients, and the similar case of Bethany Lilley in which failures in relation to risk assessments, record-keeping and documentation were not admitted but were uncovered during an inquest.

News

  • New CPD questionnaire available. The Sep-Oct 2022 (MCA) questionnaire is now available for subscribers. For further information, or to take the test, please visit the CPD scheme page.

  • HESC rules updated. The text of the HESC rules have been updated on MHLO, up to and including the expiry on 25/9/22 of new rule 5A (urgent decisions without a hearing) and the expiry on 25/9/22 and reintroduction on 1/11/22 of the extended 10-day deadline in rule 37 for listing s2 cases. Our text is now more up to date than the TPC’s consolidated version or the Legislation.gov.uk website. See Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.