October 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 2262 categorised cases

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

Cases

  • Case (Residence). Lancashire and South Cumbria NHS Foundation Trust v AH [2022] EWCOP 45 — AH lacked capacity to make decisions about residence, care, sharing information concerning her physical and mental health and care, and to conduct these proceedings. The judge noted that a DOLS mental capacity assessment had concluded that AH did not lack capacity, so AH had been detained under his order rather than DOLS (which attracts non-means-tested Legal Aid); he recommended that the court report author should carry out a DOLS assessment or, alternatively, the assessor should have access to the court report and any judgment about capacity.

  • Case (Death). Cambridge University Hospitals NHS Foundation Trust & Anor v RD [2022] EWCOP 47 — It was in RD’s best interests not to be restrained, physically or through medication, and for palliative care to be provided if she were to remove her tracheostomy tube or indicate that she wanted it to be removed.

  • Case (Placement for 17-year-old boy). South Gloucestershire Council v DN [2022] EWCOP 35 — “The court has before it two applications. First, an application on behalf of DN, by his litigation friend the Official Solicitor, for welfare orders under the Mental Capacity Act 2005. Second, an application by the local authority for orders under the inherent jurisdiction, authorising DN’s deprivation of liberty in an unregulated placement.”

  • Case (Hoarding). Re AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 — The issue to be resolved was whether AC should return home for a trial period, receiving a package of care there. The parties and court agreed a 15-page statement of legal principles which is appended to the judgment, and agreed that information relevant to making decisions in respect of one’s items and belongings falls under these headings: (a) volume of belongings and impact on use of rooms; (b) safe access and use; (c) creation of hazards; (d) safety of building; (e) removal/disposal of hazardous levels of belongings.

  • Case (Return to Jamaica). XX v West Northamptonshire Council [2022] EWCOP 40 — “The issue before me today is whether it is in XX’s best interests to travel to Jamaica for his last years.”

  • Case (DPP replaced with s37/41). R v Surrey [2022] EWCA Crim 1379 — A sentence of detention for public protection had been imposed on the appellant (his 29th offence at the age of 17 was to stab someone in the neck from behind for giving him “dirty looks” and calling him a ginger nut) but subsequent evidence stated that he has a learning disability and had been in the prodromal phase of schizophrenia. The Court of Appeal quashed the DPP and substituted it with a restricted hospital order.

  • Case (Article 2 inquest). R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410 — The coroner was right to conclude that the patient’s circumstances did not give rise to an operational duty under Article 2 upon the Trust to protect her from the risk of accidental death from the use of recreational drugs, and therefore right to conclude that the parasitic procedural duty to hold a Middleton inquest did not arise. There was no error in the Divisional Court upholding that decision, and the appeal was dismissed.

  • Case (DOL and care order). Re E (A Child) [2022] EWHC 2650 (Fam) — “These proceedings concern E who is 17 years of age. There are two applications before the Court: (i) The Local Authority’s application to extend [DOL] provisions. (ii) The parents’ application to discharge the Care Order.” The judge commented that Legal Aid for deprivation of liberty proceedings should, like care proceedings (and DOLS appeals), be non-means-tested.

  • Case (Participation - anonymity - transparency order). Re EM [2022] EWCOP 31 — This judgment considered participation by the protected person, anonymity, and the correctness of the standard transparency order. (1) The fundamental rule is that, where an application is made which seeks the deprivation of the protected person’s liberty, he must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for him, with the only exception being where an interim order is very urgently needed and there is just not enough time to secure his representation before the hearing (but at the hearing his representation at future hearings must be enabled). An unjustified failure by the court to secure such representation when making a non-urgent deprivation of liberty order will very likely render the order unlawful. (2) The anonymisation of orders (as opposed to published judgments) should cease. (3) The transparency order in this case may have been technically unsound for two separate reasons (which are both condoned by r4 COPR and PD4C): (a) it was made in the absence of a Re S-type balancing exercise, weighing the Article 8 ECHR rights of EM with the Article 10 ECHR rights of the public at large, exercised via the press; and (b) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRA 1998.

  • Case (Injunctions). Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312 — “The Court of Protection does have power to grant injunctions under s.16(5) of the 2005 Act, both in the case where a deputy has been appointed under s.16(2)(b) and in the case where the Court has made an order taking a decision for P under s.16(2)(a). In doing so, it is exercising the power conferred on it by s.47(1) and such an injunction can therefore only be granted when it is just and convenient to do so. This requirement is now to be understood in line with the majority judgment in Broad Idea as being satisfied where there is an interest which merits protection and a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something. In the present case, as is likely to be the case wherever an injunction is granted to prevent the Court’s decision under s.16(2)(a) from being frustrated or undermined, those requirements are satisfied because G’s interest in the December order being given effect to is an interest that merits protection, and the principle that the Court may make ancillary orders to prevent its orders being frustrated is ample justification for the grant of injunctive relief if the facts merit it.”

  • Case (Residence - reporting restrictions). Re J (Deprivation of Liberty: Hospital) [2022] EWHC 2687 (Fam) — “J is a 13 year old girl with complex needs who was made the subject of an interim care order on 20 July 2022 in favour of the Applicant Council/Manchester City Council. The Council has a statutory duty to place J in a placement but for about three months now it has not been able to find any accommodation for her and so she has been living in a hospital. J does not want to live in a hospital. She has no physical or mental health requirement for in-patient treatment and the environment of a hospital is not at all suitable for her needs but the Council has not been able to find any alternative place for her to live. A team of agency care staff funded by the Local Authority attend the hospital to look after her. J’s presence in the hospital and the attention she requires cause disruption and adversely affect the ability of hospital staff to care for their patients. Resources that should be used to treat someone who requires in-patient care are being used to house a child who does not require in-patient care. All parties in this case agree that J needs to be placed somewhere else but such is the state of provision for children with complex needs in England and Wales that there has been nowhere else for J to go.”

  • Case (Criminal appeal). R v Cobley [2021] EWCA Crim 954 — The applicant had been convicted of the murder of her new-born baby. Based on fresh psychiatric evidence, she wanted the conviction quashed and directions for retrial so that she could argue the partial defence of diminished responsibility.

  • Case (Order of evidence). Re F [2021] MHLO 6 (FTT) — The tribunal, without first consulting the patient’s representative, directed that the patient give evidence first in a video hearing, and rejected a submission that the responsible authority should be heard first. The representative stated that the judge had referred to a policy which required this order of evidence in CVP hearings (the panel judge accepted it was possible she used the term ‘policy’). On review, the STJ decided that there was a clear error of law: if the justification for the direction on the order of evidence included reference to a policy, whether that was intended to convey a tribunal wide policy or a policy specific to this judge it would constitute an unlawful fetter of the tribunal’s discretionary powers. There is no policy that patients must give evidence first in CVP hearings.

  • Case (Covert medication - closed proceedings). A Council v A [2022] EWCOP 44 — “This case concerns closed proceedings at which the Court of Protection has authorised the covert administration of hormone treatment to a young woman without the knowledge of her family. A is the subject of these proceedings. B is her mother. This judgment is published as a single judgment but Part One follows a closed hearing on 15 September 2022, to which B was not a party, on the Trust’s application in relation to the covert medication of A. Part Two follows an open hearing involving all parties on 20-22 September 2022. Given my decisions (i) to approve the continuation of covert medication but (ii) to end the closed proceedings and to inform B of the covert treatment of A, I circulated my draft judgment in Part One to all parties’ representatives during the open hearing. B was then made a party to the Trust’s application and the closed proceedings bundle of documents was disclosed to her. At the open hearing I gave oral rulings on the next steps in the proceedings, contact, and reporting restrictions, and informed the parties that I would prepare a written judgment on those issues. I then circulated my full draft judgment. This judgment, approved for publication in anonymised form, includes both the closed and open judgments. The paragraph numbering is consecutive over the two parts.”

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