September 2021 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 2180 categorised cases

  • Chronology. See September 2021 chronology for this month’s changes to the website in date order.

Cases

  • Case (Inherent jurisdiction costs). T v L [2021] EWHC 2147 (Fam) — The respondents sought an order that their costs, which exceeded £215,000, would be met in full by K (the vulnerable person who was the subject of the proceedings). The court made no order as to costs, the judge noting that “it is my view that no order for costs is likely to be the appropriate starting point in welfare-oriented proceedings under the inherent jurisdiction concerning a vulnerable adult”.

  • Case (Replacement of deputy). Sunil Kambli v Public Guardian [2021] EWCOP 53 — The third panel deputy in this case sought discharge of his appointment on the same basis as the first two: a breakdown in relations with family members, particulary the father of MBR. Initially his request was refused but on reconsideration it was granted. It was not in MBR’s best interests for the deputyship to continue: aspects of managing his financial affairs which should be straightforward would be drawn out and acrimonious, costs would be higher than necessary, and it would cause household stress (other considerations were the deputy’s withdrawal of consent and the father’s inappropriate behaviour). Rather than appoint a fourth panel deputy, two relatives were appointed despite the lack of experience and indemnity insurance: they were appointed jointly, for one accounting period initially, with £400,000 security, authority to sell property or withdraw from investments excluded, and a requirement to apply to court about any unresolved family dispute.

  • Case (Jehovah’s Witness - validity of advance decision). Re PW [2021] EWCOP 52 — A blood transfusion would change 80-year-old PW’s outlook from being at risk at any time of sudden death to the possiblity of living for another 5-10 years, but 20 years previously she had signed a proforma advance directive. The advance directive met the MCA requirements for an advance decision refusing life-sustaining treatment and was applicable to the proposed treatment. However, the Trust (supported by the PW’s children but not the Official Solicitor) established on the balance of probablities that it was not valid because she had “done [something] clearly inconsistent with the advance decision remaining [her] fixed decision” (s25(2)(c) MCA 2005): she had created an LPA and requested the removal of a DNR notice, both without mentioning her advance decision, and (when lacking capacity) had expressed wishes and feelings inconsistent with the advance decision.

  • Case (Inherent jurisdiction and money). FS v RS and JS [2020] EWFC 63 — The 41-year-old applicant sought financial relief against his parents (who had reduced their financial support) pursuant to s27 Matrimonial Causes Act 1973, sch 1 Children Act 1989 and “that branch of the recently rediscovered inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are ‘vulnerable’”. His argument on the inherent jurisdiction failed: (a) his claim lay far outside its accepted paramaters; (b) it cannot be used to compel an unwilling third party to provide money or services; (c) it is ousted by any relevant statutory scheme.

  • Case (Competence/capacity and puberty blockers). Bell v Tavistock And Portman NHS Foundation Trust [2021] EWCA Civ 1363 — The Court of Appeal decided that the High Court should not have: (a) made a declaration about the relevant information that a child under 16 would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers; or (b) given its guidance on likely Gillick competence to give consent and, in relation to children and young people, on court involvement. The Court concluded that “applications to the court may well be appropriate in specific difficult cases, but it was not appropriate to give guidance as to when such circumstances might arise”.

  • Case (Inherent jurisdiction and unauthorised placements). Re T (A Child) [2021] UKSC 35 — Where a child or young person meets the s25 Children Act 1989 secure accommodation order criteria but the local authority proposes to place him in an unregulated placement (either because no regulated placement is available or because his needs would be better met elsewhere) the inherent jurisdiction of the High Court may authorise his deprivation of liberty at the unregulated placement. This is despite it being a criminal offence under s11 Care Standards Act 2000 to carry on or manage a children’s home without being registered.

  • Case (Coronavirus vaccination). A CCG v AD [2021] EWCOP 47 — The court decided that it was it was in AD’s best interests to be administered two doses of the Oxford coronavirus vaccine: the plan was for a sedative to be given, not only to sedate but also to prevent memory formation, and for a nurse to swiftly enter the room, inject him, then leave, while AD was distracted by his care team. Any booster vaccination, or any care plan involving force, would have to be considered at a future court hearing.

  • Case (Sex and contact). A local Authority v P and CCG [2021] EWCOP 48 — P had capacity in relation to sex, but lacked capacity in relation to litigation, residence, care and contact. The judge’s letter to P included the following explanation: “Sex is a part of contact with other people but in law considered separately. Everyone was prepared to agree you could understand what decisions you and the person you have sex with have to take. However the decision about who is a person who you can trust enough to have sex with is a decision about contact and the evidence shows me that this is something you do not have understanding about.”

  • Case (Litigation capacity). Aderounmu v Colvin [2021] EWHC 2293 (QB) — The claimant, in a negligence case against his GP, argued that the limitation period had not started to run since he had lacked capacity to conduct the litigation (alternatively that he did not obtain the requisite knowledge more than three years before issuing the claim, or that the limitation period should be disapplied by the court). The court held that the limitation period had expired but allowed the claim to proceed.

  • Case (Capacity to access the internet and social media). Re C [2020] EWCOP 73 — C lacked capacity to take decisions in relation to using the internet and social media: “I do not find that C can understand, retain and weigh the relevant information independently and, sadly, if the process could only really occur with the degree of supervision and prompting suggested then that would, in truth, be a fiction rather than a genuine exercise in autonomy. It would probably also be impractical in the care setting.”

  • Case (DOL of under 16s in unlawful placements). MBC v AM [2021] EWHC 2472 (Fam) — The Care Planning, Placement and Case Review (England) Regulations 2010 make unlawful the placement of a looked after child under the age of 16 in unregulated accommodation, but the High Court decided that its inherent jurisdiction can still authorise deprivation of liberty in that accommodation.

  • Case (Serious medical treatment). Cambridge University Hospitals NHS Foundation Trust v AH [2021] EWCOP 51 — AH was, in terms of the neurological impact and complications, “the most complex COVID patient in the world”, and the central issue in the case was whether her ventilatory support should continue.

Legislation

Resources

Events

  • Event. COPPA: National Conference (online, 7/10/21) — This Court of Protection Practitioners Association conference is subtitled “The Pandemic and P”. Speakers: Tim Farmer (Virtual capacity assessments); Shane Booth (The impact of Covid-19 from a client perspective); Celia Kitzinger (Remote hearings & findings of the Open Justice Project); Sheralee Ellis (The impact of Covid-19 on Investments & focus on the market moving forwards); Eliza Sharron & Alexis Hearnden (In conversation: observations during Covid-19 and the future); HHJ Hilder & Keynote Speaker Mr Justice Hayden (Judicial address). Cost: free. See COPPA website for further details and booking information.

  • Event. MHLA: Panel course (online, 11-13 October 2021) — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. The course will take place via Zoom on three consecutive afternoons, from 1300 until 1700 each day. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). Booking closes at 1700 on 26/9/21. See MHLA website for further details and to book online.