September 2023 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 2338 categorised cases

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

Cases

  • Case (Declaration of death). St George’s University Hospitals NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam) — Following an out-of-hours COP decision which permitted brain stem testing, the Trust issued proceedings in the Family Division (opposed by family members) for a declaration under the inherent jurisdiction that the patient had died, along with consequential declarations that it was lawful for doctors to withdraw ventilatory support.

  • Case (Belief and capacity). A NHS Trust v ST [2023] EWCOP 40 — “The issues for determination at this hearing are ST’s capacity (i) to litigate and (ii) to make her own decisions in relation to future medical treatment. The Trust’s intention is to move to a treatment plan of palliative care. … In terms of the functional test of capacity, a person’s ability to understand, use and weigh information as part of the process of making a decision depends on him or her believing that the information provided for these purposes is reliable and true. That proposition is grounded in objective logic and supported by case law in the context of both the common law and the interpretation of MCA 2005. …In this context, and in terms of a patient-centred approach, it is important in my judgment for the court to consider the extent to which the information provided to a person is capable of being established objectively as a “fact” or a “truth”. The less certain the fact or truth, the more careful the court must be when determining whether the presumption of capacity is rebutted.”

Legislation

  • Legislation. Powers of Attorney Act 2023 — “An Act to make provision about lasting powers of attorney; to make provision about proof of instruments creating powers of attorney; and for connected purposes.” Section 2 (allowing chartered legal executives to certify copies of powers of attorney) comes into force on 18/11/23. The schedule (Part 1 being about LPA registration, and Part 2 containing minor and consequential amendments to the MCA 2005) will come into force on a future date yet to be decided.

Resources

  • T113 (CMR1). Form T113 (CMR1): Case management and pre-hearing (v05.23) — The main change from the November 2022 version is the addition of the words “Do the other parties in the case agree to your request?” and “The direction should be sent to:”.

  • Powers of Attorney Act. Amy Holmes, ‘Powers of Attorney Bill receives Royal Assent’ (Office of the Public Guardian, 25/9/23) — This blog post describes the Powers of Attorney Act 2023 using corporate speak.

  • CQC report. Care Quality Commission, ‘Mental Health Act community treatments orders (CTO) - focused visits report’ (1/11/22) — “Introduced as part of the Mental Health Act (MHA) in 2007, community treatment orders (CTOs) enable people detained under the MHA to be discharged into the community providing they meet certain conditions. This may include, for example, living in a certain place, attending appointments with mental health professionals, or not taking drugs and drinking alcohol. If they don’t comply, they may be recalled to hospital under the MHA. … Between February 2019 and November 2021, Mental Health Act Reviewers from the London region explored how CTOs were being used in 9 boroughs across London.” They spoke to patients, carers and relatives, care co-ordinators, RCs, AMHPs, managers of community services, MHA administrators, and IMHAs (but did not speak to legal representatives).

  • MAPPA guidance. HMPPS, ‘MAPPA Guidance’ (dated March 2023, updated 13/9/23) — This guidance still states “Updated March 2023” on its front page, but the document was last updated on 13/9/23. There are minor changes to chapter 24: some paragraph numbering is corrected and a new paragraph is added.

  • MAPPA guidance. HMPPS, ‘MAPPA Guidance’ (March 2023) — “This Guidance on MAPPA has been issued by the Secretary of State for Justice under the CJA 2003 in order to help the relevant agencies in dealing with MAPPA offenders. These agencies are required to have regard to the Guidance (so they need to demonstrate and record their reasons if they depart from it).” This is the latest version on Gov.uk but chapter 24 was updated in September 2023: HMPPS, ‘MAPPA Guidance’ (dated March 2023, updated 13/9/23).

  • Open justice consultation response. Julian Hendy, ‘Open Justice consultation - response from the Hundred Families charity’ (22/8/23) — “Our submission covers our understanding of open justice, some serious problems in the application of open justice where the offender is mentally disordered – particularly in diminished responsibility cases and at First Tier Tribunals (mental health). We say that despite clear guidance on the need for open justice in such cases there is a lack of sufficient openness or accountability in the Criminal Justice System for our families, or the wider public. We say without such transparency our families, and the wider public, cannot be assured the current system is impartial, competent, or just. There is urgent need for reform.”

  • Children and DOL. Alice Roe, ‘Children subject to deprivation of liberty orders’ (Nuffield Family Justice Observatory, 15/9/23) — “Children subject to deprivation of liberty (DoL) orders are among the most vulnerable children in England and Wales and living with severe restrictions on their day-to-day freedoms. Over the last 12 months we have been working with the national DoL court to understand the number of children and their circumstances. This briefing paper summarises our key findings to date and outlines five principles of care.”

  • ALRs in COP. Law Society, ‘Practice note: Accredited legal representatives in the Court of Protection’ (4/9/23) — This practice note covers: “communicating with and taking instructions from your client; representing the subject of the proceedings (P) and ensuring P’s effective participation; your duties of confidentiality and disclosure; good practice in the Court of Protection; funding of P’s legal costs; applications under section 21A Mental Capacity Act 2005; other legal issues arising in the course of the case”.

  • Costs guidance. Legal Aid Agency, ‘Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts’ (v6, October 2022) — Changes from v4 (February 2021) to v5 (April 2021): “Further amendments to extend the temporary changes regarding claims for payments on account.” Changes from v5 to v6: “Replacing references to QC/Queen’s Counsel to KC/King’s Counsel.”

  • Contract documentation. Legal Aid Agency, ‘Standard civil contract 2024’ (13/9/23) — The 2024 civil contract consists of: Standard terms; Specification (General Provisions & Category Specific Rules); Schedule; Contract for Signature; Category Definitions 2024. This guidance page contains links to the following draft documents (among others): standard terms; specification (general provisions 1-6); category specific rules mental health (section 9); category specific rules community care (section 11); schedule; contract for signature; category definitions; supervisor self-declaration forms (mental health routes 1 and 2, community care, etc); guidance on completing supervisor declaration forms; provider data security guidance and requirements documents; indemnity proformas (separate forms for limited company, LLP, partnership).

  • Community care category-specific information. Legal Aid Agency, ‘Community Care Category-Specific Information’ (13/9/23) — This document contains the following headings: (1) Procurement Areas; (2) Lots; (3) Category-Specific Requirements; (4) Verification Requirements; (5) ITT questions and assessment.

  • MH category-specific information. Legal Aid Agency, ‘Mental Health Category-Specific Information’ (13/9/23) — This document contains the following headings: (1) Procurement Areas; (2) Lots; (3) Category-Specific Requirements; (4) Verification Requirements; (5) ITT questions and assessment.

  • Award ITT. Legal Aid Agency, ‘Award Criteria Invitation to Tender’ (13/9/23) — “ITT Responses will be assessed in the following stages: Stage 1 - SQ ITT assessment; Stage 2 - Award ITT assessment; Stage 3 - Contract award (subject to verification); Stage 4 - Verification.”

  • SQ ITT. Legal Aid Agency, ‘Selection Questionnaire Invitation to Tender’ (13/9/23) — “Where an Applicant’s SQ Response is assessed as successful the LAA will proceed, as applicable, to assess the Award ITT Response(s) for each Category of Law, and where applicable, HLPAS ITT Response(s).”

  • Procurement process. Legal Aid Agency, ‘Civil 2024 Contract Procurement Process’ (13/9/23) — Questions may be asked by 2359 on 26/9/23 and answers will be published in the week beginning 2/10/23. Tenders must be submitted by 1700 on 17/10/23. This guidance web page provides links to the following documents: Selection Questionaire ITT; Award ITT; Mental Health Category-Specific Information; Community Care Category-Specific Information; and category-specific information relating to the other areas of law.

  • Legal Aid tender process announced. Legal Aid Agency, ‘Civil news: tender opens for 2024 standard civil contract’ (13/9/23) — The procurement process for supplying Legal Aid services under the 2024 Standard Civil Contract runs from 13/9/23 to 17/10/23. The contract will begin on 1/9/24 and will cover all categories of civil and family legal aid (including mental health and community care). This news story gives basic information and provides links to the relevant documents.

  • T144. Form T144: Victim’s representations to the Tribunal (September 2023) — This form allows the victim to provide representations on: (1) the tribunal’s decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim’s attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests.

  • Tribunal victims guidance. Courts and Tribunals Judiciary, ‘Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)’ (23/8/23) — This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review.

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 134, September 2023) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the MHA/MCA interface revisited; belief, diagnosis and capacity, and questioning an independent spirit; (2) In the Property and Affairs Report: the SRA looks at law firms providing LPA / deputyship services, OPG guidance on completing LPA forms and a shedinar on the MCA and money; (3) In the Practice and Procedure Report: transparency in committal hearings and on death, and why belief is not the same as proof when it comes to capacity; (4) In the Wider Context Report: the wider MHA context within which many MCA matters arise, the limits of autonomy in medical settings; litigation capacity under the spotlight in both civil and family courts; and the second of our reports from Ireland as the new Act beds in; (5) In the Scotland Report: Articles 3 and 2 ECHR in play in the capacity context.”

  • Certificated work guidance. Legal Aid Agency, ‘Civil Finance Electronic Handbook’ (v3.4, dated 1/8/23) — The changes since the previous version, as listed in Appendix 11, are: 1.6 Confirmation added that bills on revoked certificates must be submitted within six years; 3.5 Updated guidance on panel membership enhancement; 6.1 Added guidance on FAS webinar; 6.4 Additional guidance added into final hearing guidance, Added paper hearing guidance, Remove reference to hearing on same day, Added reference to early neutral evaluation hearings, Added guidance on Dispute Resolution Appointment; 6.5 Guidance on calculating remote hearings; 10.1 Updated guidance on admin costs; 10.5 Added reference to appointment and apportionment; 10.17 Updated to reflect new CAFCASS rate for ISW; 10.18 Added guidance where interpreter above codified rate; 10.32 Added new rates for accommodation; 16 Added reference to webinar, Clarified position with initial document request; 16.1 Confirmation that assessment following previous reject where no evidence of work; 21.1 Cross reference to submission of claim within six years; 21.2 Further guidance on client refunds. Document dated 1/8/23 but PDF created on 31/8/23.

  • News story about Legal Aid forms. Legal Aid Agency, ‘Civil news: immigration and mental health work forms updated’ (1/9/23) — The LAA published three PDFs of Form CW1&2MH recently: (1) 3/8/13 to 13/8/23 inclusive (the original v18); (2) 14/8/23 to 31/8/21 inclusive (v19 but still saying v18 on the form); (3) 1/9/23 onwards (v19). In relation to using the previous forms the LAA say: “We would like you to download the current forms. But we are still accepting the versions published on 3 August. Providers should complete the case details and merits section, as appropriate, for under 18s before making payment submissions.” The news story sets out the changes between the original v18 and v19.

  • Escape case guidance. Legal Aid Agency, ‘Escape Case Electronic Handbook’ (v2.3, 1/8/23) — Changes from previous version are listed in Appendix 12 as being: Added highlight boxes for regulations and guidance; 5.1 Simplified admin cost guidance; 5.5 Added reference to appointment as well as hearing; 5.15 Updated to reflect new CAFCASS rate for ISW; 5.16 Updated paragraph numbers on Guidance document, Added guidance on when the codified rate can be exceeded; 5.31 Removed reference to priority returns, Added new rates for accommodation; 7.8 Updated scenario 1 to reject to reflect current process; 8.1 Added table to confirm when we reject and assess; 8.2 Removed reference to attaching checklist to claim, Removed reference to FI and phone calls; 8.4 Update reference to claim fix rather than reject fix; 8.5 Removed section as now in s8.1

  • Mental health Legal Aid form. Legal Aid Agency, ‘Form CW 1&2 MH’ (v19, August 2023) — Version 19 (dated 14/8/23, published 1/9/23) is the same as amended version 18 (published 14/8/23) except for the footer which now states “Version 19”. The only differences between version 19 and original version 18 (published 3/8/23) are amendments to the guidance notes on page 2. The LAA will accept original version 18 as long as the form is completed in accordance with the amended guidance (see Legal Aid Agency, ‘Civil news: immigration and mental health work forms updated’ (1/9/23)). Presumably they will also accept amended v18 as its contents are the same as v19. Note 1 now reads “As you have answered YES to questions 1 and 2 confirming that the client is a child who is applying for Controlled Legal Representation, no further assessment is required. Go directly to [Please complete the Case Details and Merits Criteria on page 6 and] the client declaration on page 11.” Note 2 now reads: "As you have answered NO to questions 3, 4 and 5, confirming that the client is a child who is not to be aggregated with a maintaining adult and does not have a regular income or capital in excess of £2,500, no further assessment is required. Go directly to [Please complete the Case Details and Merits Criteria on page 6 and] the client declaration on page 11.

News

  • Powers of Attorney Bill. The UK Parliament website states: “Third reading - the final chance for the Lords to change the bill - took place on 14 September and no amendments were made. What happens next? As both Houses have agreed on the text of the bill it now waits for the final stage of Royal Assent when the bill will become an Act of Parliament. A date for Royal Assent has yet to be scheduled.” See Powers of Attorney Bill 2022.

  • New page for Standard Civil Contract 2024. The Standard Civil Contract 2024 page on MHLO will contain details of the procurement process and links to the relevant LAA documents.

Events

  • Event. Event:Law Society: Civil legal aid contract 2024 (online, 4/10/23) — “Any law firm or not-for-profit wishing to apply for a civil legal aid contract should attend this virtual event. The legal aid tender process is extremely lengthy and often complex, and there are many requirements within the contract that need to be met. This session will equip delegates with the information needed in order to assist them in submitting a successful tender.” Speakers: David Gilmore, Director of DG Legal; and Richard Miller, Head of the Justice Team at the Law Society. Cost: free. Time: 1230-1400. See Law Society website for further details and booking information.

  • Event. Event:MHLA: 24th Annual Conference (London, 17/11/23) — Speakers: Najmus Madarbux & Jake Kraft (LAA); Dr Frank Farnham (Fixated Threat Assessment Centre); Celia Kitzinger (Open Justice Court of Protection Project); Lubna Shuja (Law Society); Sarah Johnston (A Tribunal Perspective); Tam Gill (Case Law Update). Chairman: Neil Cronin. Cost: £160 (member); £145 (group discount); £230 (non-member). See MHLA website for further details and booking information.