October 2024 update

Updates MHLO monthly updates
1

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 2383 categorised cases

  • Chronology. See October 2024 chronology for this month’s changes to the website in date order.

Cases

  • Case (Anticipatory declarations). Leicestershire County Council v P (Capacity: Anticipatory declaration) [2024] EWCOP 53 (T3) — The Court of Protection confirmed that it has jurisdiction to make anticipatory declarations, and provided guidance (including that s5 and s6 MCA 2005 are not limited only to address emergency situations). On the facts (the person suffered from dissociative identity disorder, or complex PTSD with dissociative characteristics, and had fluctuating capacity) no anticipatory declarations were made.

  • Case (Reverse indemnity). Re BJB [2024] EWCOP 59 (T2) — “On 7th May 2009 an order was made in the Queen’s Bench Division of the High Court approving settlement of a damages claim brought on behalf of BJB, on terms which included: (a) reverse indemnity undertakings, whereby 98% of sums received by BJB in state provision are to be deducted from her periodical payments; and (b) provision for release from the reverse indemnity undertakings by the Master of the Court of Protection or his successors, if that person is satisfied that BJB does not have sufficient resources to meet her reasonable needs. BJB’s property and affairs deputy has made an application to the Court of Protection for release from the reverse indemnity undertakings.”

  • Case (Committal proceedings). KL v Manchester City Council [2024] EWCOP 53 (T1) — In these committal proceedings for breach of an order the court set out why it proceeded in MA’s absence, considered the evidence, and adjourned for 3 days for sentencing to allow MA to be notified.

  • Case (Mens rea in trial of facts). R v Goldsmith [2024] EWCA Crim 780 — The Court of Appeal had to decide whether, in a trial of the facts conducted under s4A CPIA 1964 relating to an offence of possession with intent to supply a controlled drug contrary to section 5(3) of the Misuse of Drugs Act 1971, a jury is obliged to consider only whether the defendant was in possession of the drugs in question, or whether it must also consider whether the defendant intended to supply them.

  • Case (Police detention). Clark v Chief Constable of Merseyside Police [2023] EWHC 2565 (KB) — This appeal from a judge and jury decision involved questions of lawful detention under PACE in police custody.

  • Case (Treatment under s63). North Tees and Hartlepool NHS Foundation Trust v KAG [2024] EWCOP 38 (T3) — The Trusts sought s15 MCA 2005 declarations that: (1) it is in the best interests of KAG to undergo urgent placement of a percutaneous gastrostomy tube (‘PEG’); (2) the proposed PEG procedure could lawfully be undertaken pursuant to powers under s63 MHA 1983; (3) KAG is ineligible to be deprived of her liberty under Sched 1A MCA.

  • Case (Tribunal and validity). PQR v Derbyshire Healthcare NHS Foundation Trust [2023] UKUT 195 (AAC) — The medical examination for a CTO renewal in 2020 had been conducted remotely, though renewals in 2021 and 2022 were conducted in person. The tribunal decided that it did not have jurisdiction to consider the validity of the CTO. The Upper Tribunal proceeded on the assumption (which the High Court subsequently confirmed) that the 2020 examination did not comply with the s20A requirements. It decided that: (1) the logical approach, being that the CTO had not been extended in 2020, would be self-defeating as it would remove the tribunal’s power to deal with an application at all; (2) the pragmatic approach, which the judge preferred, was that the renewal had legal effect unless and until it was set aside in some lawful manner, but the tribunal still had no power to deal with issues of validity; (3) in any event, even if the tribunal had that power, (a) there would be no need to exercise the discretion to discharge, as deciding that the extension was invalid would mean that the CTO had already ended, and (b) taking into account the relevant factors (which are that such case involve the liberty of the subject, the health and safety of the patient, and the protection of others) it would have been perverse for the tribunal to have exercised its discretion to discharge the patient.

  • Case (Independent evidence). OO v Central and North West London NHS Foundation Trust [2024] UKUT 190 (AAC) — The clinical team supported conditional discharge so the patient did not instruct an independent expert. That opinion changed just days before a reconvened part-heard hearing, at which the RC and another witness argued for the continued detention, deferring to and relying on the opinion of two other psychiatrists, one of whom was arguing against a community placement in concurrent Crown Court proceedings. The tribunal refused to adjourn and did not discharge. Subsequently the patient was made subject to a second restricted hospital order. The Upper Tribunal decided that the tribunal’s decision was unlawful: (1) it had denied the patient equality of arms by denying the opportunity to instruct an independent expert; (2) as the two witnesses who were present deferred to the opinions of two other experts, fairness required the presence of those experts for cross-examination. The judge noted that each hospital order gives a right to apply to the tribunal and made some observations about procedural matters (including that, as this case would now be remitted to the MHT, the Secretary of State had agreed to make a discretionary referral in relation to the second order, and in any event the tribunal would have a discretion to discharge the second order).

  • Case (Testamentary capacity). Leonard Leonard [2024] EWHC 321 (Ch) — Detailed discussion of the test for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549.

  • Case (Ill-treatment conviction appeal). R v Banner [2024] EWCA Crim 1201 — The defendants, who had been convicted of multiple counts of ill-treatment of a person in care at Whorlton Hall hospital, contrary to s20 Criminal Justice and Courts Act 2015, unsuccessfully appealed on the basis that the judge had failed to give an adequate definition of the term “ill-treatment” and should should have acceded to submissions of no case to answer.

  • Case (Costs). Re AA (Costs) [2024] EWCOP 44 (T3) — AA’s parents argued that the ICB should pay their costs.

  • Case (Death). Re AA (Withdrawal of life-sustaining treatment: No best interests decision) [2024] EWCOP 39 (T3) — The court application was left so late that there was only one “option” left which the clinicians were willing to accept (palliative care in the hospital) so the judge refused to make a best interests decision. The trust instead sought a declaration under the inherent jurisdiction, it seemed to the judge only to provide legal top cover as the treatment would be the same regardless of the court’s decision, so the judge refused to make that order either.

  • Case (Covert medication and residence). Re A (Covert Medication: Residence) [2024] EWCA Civ 572 — The local authority and her own litigation friend appealed the court’s decision that it was in her best interests to cease to be given covert medication, to be informed that she had been covertly medicated and to leave her care home and return to live with her mother.

  • Case (Covert medication and residence). Re A (Covert Medication: Residence) [2024] EWCOP 19 — A’s mother argued that it was in A’s best interests to return home to live with her, which involved detailed consideration of the covert medication which had been happening in the case home.

  • Case (Reporting). Berg v London Borough of Tower Hamlets [2024] EWFC 92 — Journalists applied to court for hearing transcripts and other documents relating to the deprivation of liberty of someone who is now an adult but at the time was a child.

  • Case (Inherent jurisdiction and Article 3). Re P (Vulnerable adult: Withdrawal of application) [2024] EWHC 1882 (Fam) — The central issue in this case was whether the court should continue to use its powers under the inherent jurisdiction to compel P to live apart from her father. The judgement focusses on whether concluding proceedings would breach P’s Article 3 rights.

  • Case (Representation during DOL review period). Re PQ (Court authorised DOL: Representation during review period) [2024] EWCOP 41 (T3) — “[T]he central questions for the Court are: (a) Whether PQ’s continued participation during the review period requires her to have some form of representation, whether by a Litigation Friend, an ALR, or a r1.2 representative, in order for there to be compliance with ECHR Art 5; (b) If so, what form of participation should the court require given the options available; and (c) If the LAA refused to fund PQ’s representation during the review period, whether by a Litigation Friend or an ALR, what steps should the Court then take?”

  • Case (Belief and capacity). Hemachandran v Thirumalesh [2024] EWCA Civ 896 — (1) The judge had made an error of law in regarding the absence of belief as determinative of the functional test. The Court of Appeal noted: “The proper application of the statutory test does no more than reflect that, where there is an objectively verifiable medical consensus as to the consequences of having or not having medical treatment, if the patient does not believe or accept that information to be true, it may be that they are unable to understand and or use and weigh the information in question.” (2) The judge also failed to give sufficient reasons for disagreeing with the unanimous view of the experts that the patient had capacity to make decisions as to her medical treatment.

  • Case (Discharge of RRO). University Hospitals Birmingham NHS Foundation Trust v Thirumalesh [2023] EWCOP 43 — Following the patient’s death, her family applied for discharge of a transparency order, and the Trust argued for its continuation for a further 8 weeks. The judge noted that there is little practical difference between transparency orders and reporting restrictions orders (RROs) and uniform terminology would be more desirable.

  • Case (Extradition). Platt v High Court of the Republic of Ireland [2024] EWHC 1821 (Admin) — This appeal against an extradition order was founded on two factual propositions which, it was said, the District Judge failed or failed sufficiently to recognise: (1) detention of the appellant’s partner under the MHA was a virtually certain consequence of the appellant’s extradition; (2) There was a real risk that public mental health services would fail to ensure that the appellant’s partner did not commit suicide or carry out acts of serious self-harm in the event of the appellant’s extradition.

  • Case (Anorexia nervosa). Re Patricia [2023] EWCOP 70 — The judge repeated the earlier declaration that it was not in the patient’s best interests to be force fed, and further declared that it was in her best interests not to receive nasogastric tube feeding with restraint and not to receive any other medical treatment against her wishes.

  • Case (Capacity for contempt proceedings). Solicitors Regulation Authority v Khan [2024] EWCA Civ 531 — The essential question raised by this appeal is whether the judge erred in finding that Khan had capacity to defend proceedings for contempt of court.

  • Case (Deathbed gifts). Rahman v Hassan [2024] EWHC 2038 (Ch) — The judge gave permission to appeal his earlier decision. (The first instance decision mentioned capacity but the appeal grounds do not.)

  • Case (Gender dysphoria). O v P [2024] EWHC 1077 (Fam) — “In this case I am considering applications with respect to a young person who has just attained the age of 16. The mother has applied for a prohibited steps order (PSO) pursuant to section 8 Children Act 1989 and for court to make a best interests declaration under the Inherent Jurisdiction. The father has applied for interim orders to be discharged and the proceedings to come to an end.”

  • Case (Residence and care). Re HC [2024] EWCOP 24 — The local authority and ICB responsible for meeting HC’s care needs under s117 MHA 1983 jointly sought declarations that she lacked capacity to decide where she should live and receive care, and that it was in her best interests to move to a new placement immediately, using physical restraint if necessary.

  • Case (Blood transfusion). Re J (Blood Transfusion: Older Child: Jehovah’s Witnesses) [2024] EWHC 1034 (Fam) — The patient was 17 years 17 months old and consented to surgery but not to the use of blood products were he to suffer a significant uncontrolled intra-operative or post-operative bleed.

  • Case (Undue lenience). R v Calocane [2024] EWCA Crim 490 — Calocane fatally stabbed two teenagers. then just over an hour later fatally stabbed a man, stole his van, and deliberately drove into three people on two separate occasions causing serious injuries. The prosecution accepted his diminished responsiblity pleas in relation to the murder charges, and the Attorney General argued that a restricted hospital order was unduly lenient.

  • Case (Change in status - C/D to recalled). AC v Southern Health NHS Foundation Trust [2024] UKUT 297 (AAC) — An application to the tribunal was made by a conditionally discharged patient. The tribunal lost its jurisdiction on the application when the patient was recalled.

  • Case (Sentencing following CQC prosecution). R v Priory Healthcare Limited [2024] MHLO 2 — Priory Healthcare Limited was fined £650,000 and ordered to pay £43,672 costs and £180 victim surcharge. Matthew Caseby, a patient in Priory Hospital Woodbourne, had climbed a fence and died after being hit by a train.

Resources

  • Victims and MOJ discharge. HMPPS, ‘Information for victims - Statements and decision summaries in restricted patient cases’ (April 2024) — (1) From March 2024, victims and family members registered with the Victim Contact Scheme (VCS) have been able to submit a Victim Personal Statement in relation to Ministry of Justice discharge decisions. The purpose is catharsis and to provide further information and context on requests for conditions, and is in addition to the pre-existing ability to make representations in relation to conditions. Some brief guidance is given on what might be included in a statement. The statement will not be sent to the patient, Responsible Clinician, or tribunal, although it is possible that might be disclosed during other legal proceedings. (2) Applications will also be able to be made for decision summaries.

  • Victims and MOJ discharge. HMPPS, ‘Information for patients - Decision summaries and victim statements in restricted patient cases’ (April 2024) — (1) From Spring 2024, patients and victims have been able to request a summary of Ministry of Justice decisions in relation to discharge. The summary provided to patients and victims will differ, because of medical confidentiality, and both will overlap with the reasons already given to the Responsible Clinician. (2) Victims will also be able to make Victim Personal Statements in relation to discharge decisions. The purpose is “catharsis” and it will have no influence on the discharge decision. This is in addition to the pre-existing ability to provide information and make requests for conditions.

  • Paper reference hearings for hospital-based patients. TPC, ‘Reply to two Consultations on possible amendments to the HESC Rules regarding proposed changes to the way that the FTT decides cases referred pursuant to s68’ (1/8/24) — Tribunal rule 35 will be amended to allow mandatory references made under s68, s71(2) and s75(1) in relation to a patient who is not a community (CTO) patient to be decided without a hearing if: (a) he is legally represented; (b) the representative “has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference”; (c) “the patient’s representative has discussed with the patient the contents of any reports and any other documents provided by the responsible clinician and any social supervisor in respect of the patient and is satisfied that the patient has the capacity to decide whether or not to make that decision”; and (d) “the Tribunal is satisfied that the patient has the capacity to make that decision”. The TPC must realise that they are weakening the statutory safeguards as, in addition to commenting that if patients seek discharge “they are unlikely to request a paper hearing, nor would they be advised to”, the new procedure will not apply if either the patient’s case has not previously been considered by the tribunal or the patient’s case was last considered by the tribunal without a hearing. The TPC “does not view the proposed change as being made for financial reasons” but notes that paper hearings will “ensure the panel’s time is used efficiently when cases come out at short notice or are adjourned on the day”. From a Legal Aid perspective, “remuneration will be significantly reduced if there is no hearing, removing the attraction of a paper review” (same £450 for just agreeing to a paper hearing as for full tribunal preparation, additional £294 for tribunal advocacy).

  • Financial eligibility. Legal Aid Agency, ‘Keycard 60’ (April 2024) — This document is helpful when working out financial eligibility for civil Legal Aid.

  • DOL and children. MHLO, ‘Guidance on cases transitioning to Court of Protection’ (FOI request, 7/10/24) — President of the Family Division, ‘Revised national listing protocol for applications that seek deprivation of liberty orders relating to children under the inherent jurisdiction’ (September 2023) mentions guidance on cases being transferred to the Court of Protection when a child turns 18, so we asked for a copy. The response was: “The MOJ does not hold any information in the scope of your request. This is because there is no legal or business requirement for MoJ to do so. The document referred to at paragraph 7 is an internal document and not intended for the public domain. Please accept our apologies the error, the website containing the document will be amended and the document removed.”

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 144, October 2024) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: what to do where there is no reliable evidence of P’s wishes and feelings; (2) In the Property and Affairs Report: gifts, attorneys and deputies; (3) In the Practice and Procedure Report: the perfect as the enemy of the good, and what to do when the situation changes; (4) In the Mental Health Matters Report: the human rights consequences of outsourcing in the mental health context; (5) In the Wider Context Report: the Law Commission consults on disabled children’s social care law and the Grand Chamber of the European Court of Human Rights balances Articles 2 and 8 in the medical treatment context; (6) In the Scotland Report: AWI legislative reform on the cards?”

  • Social care consultation. Law Commission, ‘Disabled Children’s Social Care’ (consultation from 8/10/24 to 20/1/25) — “The Law Commission is reviewing the legal framework governing social care for disabled children in England to ensure that the law is fair, modern and accessible, allowing children with disabilities to access the support they need.”

  • Report about CQC. Penelope Dash, ‘Review into the operational effectiveness of the Care Quality Commission’ (DHSC, 15/10/24) — Extract: “The review has found significant failings in the internal workings of CQC, which have led to a substantial loss of credibility within the health and social care sectors, a deterioration in the ability of CQC to identify poor performance and support a drive to improve quality - and a direct impact on the capacity and capability of both the social care and the healthcare sectors to deliver much-needed improvements in care.”

  • Consolidated version of HESC rules. Tribunal Procedure Committee, ‘HESC Rules: consolidated version’ (1/5/24) — This PDF document includes changes made to the original rules since 2008. Last updated 1/5/24.

  • Restricted patients statistics. Ministry of Justice, ‘Restricted Patients Statistics, 2023, England and Wales’ (25/4/24) — “This annual publication covers the number, offence, admissions, disposals, discharges and ethnicity of restricted patients in England and Wales.”

  • DOL guidance. Law Society, ‘Identifying a deprivation of liberty: a practical guide’ (18/3/24) — The guidance applies the legal framework, including considerations relating to those under 18, to different settings: hospitals; psychiatric care; care homes; supported living/shared lives/extra care; at home; palliative care and hospices.

  • Capacity assessment. Alex Ruck Keene et al, ‘Guidance note: Relevant information for different categories of decision’ (39 Essex Chambers, May 2024) — “This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be able to understand, retain, use and weigh to able to make the decision. This guidance note pulls together the guidance given in relation to some of the most common decisions that are encountered in practice in the context of health and welfare matters.”

  • Report on MH Bill. Joint Committee on the Draft Mental Health Bill, ‘Draft Mental Health Bill 2022: Report of Session 2022-23’ (HC 696, HL Paper 128, 11/1/23) — Key recommendations: “(1) Creation of a new statutory Mental Health Commissioner post. (2) The Principles underpinning the 2018 Review and respect for racial equality should be included in the Bill. (3) Health organisations should appoint a responsible person to collect and monitor data on detentions under the MHA, broken down by ethnicity, with annual figures published by Government, and to implement policies to reduce inequalities. (4) Community Treatment Orders are used disproportionately for black and ethnic minority patients and should be abolished for the majority of patients, except those involved in criminal proceedings or under sentence where their continued use should be reviewed. (4) Strengthened duties for Integrated Care Boards and Local Authorities to ensure adequate supply of community services for people with learning disabilities and autistic people to avoid long-term detention. (5) Patients detained or previously detained under the MHA should have a statutory right to request an advance choice document is drawn up”

  • UT case summary. Roger Pezzani and Alex Schymyck, ‘Upper Tribunal provides important guidance on proceeding without aftercare evidence’ (Garden Court Chambers, 17/11/23) — Extract from this summary of SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC): “(1) The Tribunal should adjourn to obtain aftercare evidence where it is capable of affecting the the outcome of the hearing. AM was a relatively unusual case where aftercare evidence was not capable of affecting the outcome. (2) It is procedurally unfair to refuse an adjournment request from a patient where the detaining authority has failed to provide relevant evidence such as that addressing aftercare. (3) The Tribunal must not ‘kick the can down the road’ and leave matters to be resolved by a future Tribunal. Procedural fairness applies at each stage of the process and an unfair Tribunal hearing cannot be cured by the possibility of a future hearing.”

  • Annual CQC report on MHA. CQC, ‘Monitoring the Mental Health Act in 2022/23’ (23/3/24) — “This report sets out CQC’s activity and findings during 2022/23 from our engagement with people who are subject to the Mental Health Act 1983 (MHA) as well as a review of services registered to assess, treat and care for people detained using the MHA.”

  • CQC prosecution. CQC, ‘Priory Healthcare Limited ordered to pay £693,852 after failing to provide safe care and treatment to Mr Matthew Caseby’ (12/3/24) — Priory Healthcare Limited was fined £650,000 and ordered to pay £43,672 costs and £180 victim surcharge.

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 CPD scheme is primarily aimed at mental health solicitors, and is an ideal way to evidence your continued competence, 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:Hill Dickinson: MCA and DOLS - the latest updates (online, 13/11/24) — This session will focus primarily on the interplay between the Mental Health Act and the DOLS regime, as well as the use of the Mental Health Act in acute settings, before ending with a Q&A session. Time: 10:00 - 11:30 am. Cost: free. See Hill Dickinson website for further details and booking information.

  • Event. Event:MHLA: 25th Annual Conference (Bristol, 15/11/24) — Confirmed speakers include: Najmus Madarbux (Legal Aid Agency); Sarah Johnston (DCP); Dr Alexander Hamilton (consultant forensic psychologist); Tam Gill; Dr Laura Janes. Full programme to be announced. Chairman: Neil Cronin. Cost: £160 (member); £145 (group discount); £230 (non-member). See MHLA website for further details and booking information.

  • Event. Event:MHLA: Panel course (London, 4-5 November 2024) — The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s accreditation scheme (formerly called the ‘panel’). Cost: £270 (members), £390 (non-members), £270 (group discount). See MHLA website for further details and booking information.