October 2023 update

[MHLO]

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 2340 categorised cases

• Chronology. See October 2023 chronology for this month’s changes to the website in date order.

Cases

• Case (DOL of 17-year-old under Art 5(1)(d)). Re EBY [2023] EWHC 2494 (Fam) — The local authority sought an order under the High Court’s inherent jurisdiction authorising the deprivation of liberty of a 17-year-old girl in accommodation provided under s20 Children Act 1989 with parental consent, arguing that this was a necessary and proportionate measure for the purposes of Article 5(1)(d) (“for the purpose of educational supervision”) in her best interests to protect her from further serious harm as a result of her involvement in criminal gang activity. The court considered whether the inherent jurisdiction was available and whether it should be exercised, and granted the order sought, but only for a short period until a further hearing.

• Case (Discharge to MCA detention). ML v Priory Healthcare Limited [2023] UKUT 237 (AAC) — A s47/49 post-tariff lifer sought a notification that if he were a s37/41 patient he would be entitled to conditional discharge (with 24-hour support and medication being governed by the MCA) and a recommendation that he remain in hospital pending release. The MHT refused, believing that “the only environment where his medication regime can be enforced is in hospital”. This refusal was based on errors of law: (1) the tribunal was under the misapprehension that there was no way for it to coordinate the MHA proceedings with an MCA authorisation, and it made its decision on the s72(1)(b) detention criteria without reference to the possibility that an alternative framework for managing the patient was available; (2) its reasons were inadequate as it had ignored the central argument that there was a less restrictive alternative to hospital detention.

Resources

• Ordinary residence and s117. DHSC, ‘Statutory guidance: DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case’ (updated 5/10/23) — Ordinary residence disputes which had been stayed pending R (Worcestershire County Council) v SSHSC [2023] UKSC 31 will now be progressed, with the DHSC working through previously stayed cases in the order in which they had been stayed.

• CTOs. Tigrinya translation of Care Quality Commission, ‘How we support the rights and interests of people on community treatment orders (CTOs)’ (August 2012) — Translation of Care Quality Commission, ‘How we support the rights and interests of people on community treatment orders (CTOs)’ (August 2012). Translated in 2023 by Translation Empire Group for Livewell SouthWest.

• COPUG minutes. COP User Group, ‘Meeting (General): Minutes and action points’ (19/4/23) — These are the minutes and action points arising from the meeting on 19/4/23, which were circulated on 11/10/23.

• 2014 Contract FAQs. Legal Aid Agency, ‘Procurement process for 2024 Standard Civil Contract from September 2024 - Frequently Asked Questions’ (5/10/23) — “Questions that we consider to be of wider interest have been collated and answered centrally in writing to ensure that all potential Applicants have equal access to information. These questions and answers have been published in this FAQ document.”

• Case law update. Jonathan Wilson, ‘Mental health case law: update’ (Legal Action, May 2023) — This article considers mental health case law from the past year relating to open justice and provision of reasons to victims, change of status during tribunal proceedings, hearings in the absence of the patient, adjournment and recommendations, criminal appeals, and other matters.

• Case law update. Jonathan Wilson, ‘Mental health case law: update’ (Legal Action, May 2022) — This article considers mental health case law from the past year relating to remote MHA assessments, after-care responsibility, discharge from long-term leave, deprivation of liberty during conditional discharge, removing all conditions of discharge, change in status before a tribunal hearing, and other matters.

• JR guide. Courts and Tribunals Judiciary, ‘The Administrative Court Judicial Review Guide 2023’ (October 2023) — “This is the eighth edition of the Judicial Review Guide, which has become a valuable resource for all who are involved in proceedings before the Administrative Court. It covers all the stages of a claim for judicial review. Good practice is identified and pitfalls foreshadowed. It is required reading for all those who conduct judicial review cases (whether or not they are lawyers).”

• Mental capacity case reports. 39 Essex Chambers, ‘Mental Capacity Case Reports’ (issue 3, October 2023) — The cases in this issue are: (1) Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] 9ECMCR 6; (2) Re RK (Capacity; Contact; Inherent Jurisdiction) [2023] 39ECMCR 7; (3) Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] 39ECMCR 8.

• Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 135, October 2023) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Brain stem death before the courts and conveyancing; (2) In the Property and Affairs Report: the Powers of Attorney Act 2023 gets Royal Assent, and how it will change the Mental Capacity Act 2005; (3) In the Practice and Procedure Report: revised guidance for Accredited Legal Representatives and anonymisation of clinicians in cases involving the MCA 2005; (4) In the Wider Context Report: a revised online ADRT service and a revised clinical guide for staff working with autistic people and those with a learning disability, and our Irish correspondents highlight two specific aspects of the Assisted Decision-Making (Capacity) Act 2015; (5) In the Scotland Report: attorneys as executors.”

• ECHR. Jonathan Sumption, ‘Judgment call: the case for leaving the ECHR’ (Spectator, 30/9/23) — Lord Sumption takes issue not with the text of the European Convention of Human Rights, which was agreed upon by the member states, but with the European Court of Human Rights - in particular, its “living instrument” doctrine through which he says it has “emancipated itself from the text and allowed itself to wander freely over the whole realm of social policy” and made law in a manner which lacks democratic legitimacy. He cites examples relating to territorial jurisdiction, binding interim orders, Article 8, and qualified convention rights. He concludes that the convention should be replaced with a domestic code of basic rights which would look very like it, and that our own courts, with their long tradition of defending fundamental rights and holding governments to account, can be trusted to enforce human rights. (Avoid paying by using the Archive link.)

News

• CPD scheme. The CPD scheme is now fully up to date, with 12 tests online relating to the past 12 months’ website updates (6 MHA tests and 6 MCA tests). The scheme is primarily aimed at lawyers, but is also suitable for barristers, psychiatrists, social workers and psychiatric nurses. You can subscribe or resubscribe for £60, or take a test, by visiting the CPD scheme page.

Events

• Event. Event:Northumbria University: Sexual Autonomy Symposium - Newcastle, 10/11/23 — This symposium and roundtable discussion will be of interest to practitioners, policymakers, academics, advocates, and people with experience of negotiating sexuality and intimacy in care settings. It will take place at Northumbria Law School, with some sessions available to join online. Speakers include: Jonathan Herring, Beverley Clough, Ruby Reed-Berendt, Charlotte Elves, Laura Pritchard-Jones, Julian Hughes, Oluwatoyin Sorinmade, Phil Harper and Giulia Garofalo Geymonat. Cost: free. See Northumbria University website for further details and booking information.

• Event. Event:Hill Dickinson: Obstetrics cases in the Court of Protection (online, 2/11/23) — This webinar will set out the key principles, provide a case law update, and discuss how best Trusts, clinicians, local authorities and their advisors should approach these difficult cases. Speakers: Tor Butler-Cole, Stephanie David and Claire Christopholus. Time: 1000-1100. Cost: free. See Hill Dickinson website for further details and booking information.

• Event. Event:Court of Protection User Group: General meeting (online, 18/10/23) — This meeting will be held at 2pm via Teams. Point of contact: Natalie Cheesewright (Natalie.Cheesewright@Justice.gov.uk).

• Event. Event:Edge Training: 2023 AMHP Conference - London, 1/12/23 — “We are very pleased to announce the return of our very popular AMHP conference. This one-day conference will explore issues relevant to mental health practice. It can contribute towards the statutory requirement of 18 hours relevant training per year. The conference will have speakers presenting relevant and pertinent issues to mental health professionals working in health and social care.” Not just for AMHPs. Speakers: Anslem Eldergill; Leanne Taylor; Simon Foster; Colleen Simon, Vava Tampa & Jenny Lanyero; Christina Cheney & Robert Lewis. Cost: £165 plus VAT. See Edge Training website for further details and booking information.

• Event. Event:Browne Jacobson: MCA and DoLS (online, 8/11/23) — This webinar will look at some of the most recent leading cases in relation to the Mental Capacity Act and Deprivation of Liberty and the landscape now that Liberty Protection Safeguards implementation has been delayed beyond this parliament. Speaker: Chris Stark. Time: 0930-1030. Cost: free. See Browne Jacobson website for further details and booking information.