September 2026 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 £75. 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 2568 categorised cases

  • Chronology. See September 2026 chronology for this month’s changes to the website in date order.

Cases

  • Case (Open justice). Re I (publication of decision) [2026] MHLO 2 (FTT) — There were no exceptional circumstances and so publication of the FTT’s review decision would be proportionate. In this case: (a) the review decision “provides a clear explanation as to the legal principles (relating to adequacy of reasons) applied”; (b) it was worthy of public interest because it would “enable the reader to have insight into the work of the Tribunal including the permission to appeal process”; (c) the redacted version contained no identifying information so maintains the patient’s privacy; and (d) the patient wanted publication so, in any event, had waived the right to privacy.

  • Case (Inadequate reasons about statutory criteria). Re I (inadequate reasons) [2025] MHLO 20 (FTT) — On review it was decided that the tribunal panel had given inadequate reasons for not discharging a s3 patient. (1) The tribunal described the nature of the disorder as relapsing and remitting, but did not say why that made liability to be detained appropriate. (2) Similarly, the tribunal made statements about the degree of the disorder (delusional beliefs etc) but did not say why that made liability to be detained appropriate. (3) The tribunal did not address the appropriate treatment test. (4) The tribunal did not address whether the treatment that the patient was receiving was being given in the least restrictive environment or not. [Comment: is this really a separate requirement?] (5) In this case there needed to be, but was not, a clear finding of fact on the issue of compliance. The reasons set out the patient’s arguments, but not whether they had been accepted. There needed to be a fuller explanation as to why the tribunal concluded that the patient would not take his medication and would relapse. (6) The RC would have discharged the patient had suitable accommodation been available. This not only goes against the conclusion on nature (i.e. the relapsing nature was not itself a barrier to discharge) but also means the tribunal should have considered adjourning to obtain sufficient information to decide the case.

  • Case (Aftercare complaint). London Borough of Islington (LGSCO, 25 019 236) — Ombudsman’s summary: “We will not investigate these complaints relating to assessments of a person’s entitlement to s117 funding. Some of the issues were considered by a previous investigation. The Council and the ICB will undertake a new review which will provide a suitable remedy to other issues. And, it is unlikely an investigation would find a significant outstanding injustice in relation to the remaining issues.”

  • Case (Delay to discharge). Lancashire County Council (LGSCO, 24 022 487) — The council wasted time in arranging an EMI nursing home for the patient as part of her s117 aftercare, by allocating her case to a social worker who was on sick leave, delaying reallocation, delaying the search for accommodation, and miscommunicating with a potential placement. Without these faults the patient would most likely have been discharged sooner. The council was ordered to apologise, pay £600 and £300 to the patient and her son respectively for the injustice, and produce an action plan to avoid similar fault reoccurring.

  • Case (Service charge wrongly charged under s117). London Borough of Tower Hamlets (LGSCO, 25 027 355) — A patient was discharged from section 3 to supported accommodation. The council paid care costs directly to the supported housing provider; the patient paid, via Universal Credit, for her housing costs including a £20 weekly service charge. When the patient stopped receiving the extra amount for the service charge she went into arrears, was threatened with eviction, and subsequently paid some of the service charge from her other weekly benefits. The Ombudsman stated that accommodation included in a section 117 plan (“accommodation plus” in the LGSCO guidance) should not even partly be funded by the patient. The council was ordered to apologise, repay any amount paid privately, pay £250 for the injustice, and formulate an action plan to identify all similar cases.

  • Case (Whether DOL). Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2) — The judge in this case applied but was scathing about the Supreme Court’s AGNI judgment. A succinct summary included some detail about these principles: Non-secure environments matter; Purpose matters; Relative normality matters; Protective motivation matters; Objection and consent matter profoundly. AR was subject to “24-hour waking one-to-one support, two-to-one staffing for community access, locked external doors, locked garden gate, window restrictors, physical intervention/redirection, continuous supervision, staff control of access to the community, structured daily routine, prompting and encouragement, Positive Behaviour Support, use of preferred items and activities, management of transitions, CCTV monitoring, highly skilled staff team (rather than family) and, communication support (as part of restrictions)”. The judge accepted the consensus that “objection from anyone other than P is not relevant to whether P was deprived of his liberty” but noted that it could have knock-on effects increasing the intensity of restrictions. Applying the relevant principles, the “objective element” was not met and so there was no Article 5 deprivation of liberty. Obiter, if the objective element had been met then so too would been the subjective element, as AR would not be able to give valid consent. The LA had agreed to fund a Care Act advocate for 12 months; there was no need to order a review to protect AR’s Article 8 rights, though an application could be made to court to resolve a dispute.

Resources

  • Welsh Measure Code. Welsh Government, ‘Code of Practice to Parts 2 and 3 of the Mental Health (Wales) Measure 2010’ (2012) — The Code provides guidance to local authorities, Local Health Boards, care coordinators and others, and information to relevant patients, their families, carers and advocates.

  • English/Welsh differences. Law Society, ‘Practice note: Differences in English and Welsh law’ (10 September 2026) — This document contains information about “Health and social care” which mentions mental health law in the final sub-heading “Some law remains shared”.

  • COP/inherent jurisdiction book. Oliver Lewis, Coercive Control and Vulnerable Adults (Bloomsbury 2026) — Full title: “Coercive Control and Vulnerable Adults: Law and Practice in the Court of Protection and under the Inherent Jurisdiction of the High Court”.

  • Peer review checklist. LAA, ‘Civil peer review mental health criteria’ (August 2026) — This is the mark sheet used by peer reviewers.

  • Mental health peer review guidance. LAA, ‘Improving Your Quality in Mental Health’ (August 2026) — Updated peer review guidance. The Gov.uk news story notes: “Depending on the date range of files selected for review, reviewers may need to complete 2 separate criteria sheets, so work is assessed against the standard in place at the time it was undertaken. This adds a small amount of extra work for reviewers and providers, but is the fairest way to conduct reviews.”

  • Mental capacity law newsletter. 39 Essex Chambers, ‘Mental Capacity Report’ (issue 163, July 2026) — “Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an update on post-AGNI developments, two capacity conundrums in one case and ‘over-litigation’ in a PDOC case; (2) In the Property and Affairs Report: an update from the Property and Affairs Court User Group meeting and the OPG is recruiting lawyers; (3) In the Practice and Procedure Report: the Court of Appeal resets the approach to personal welfare deputies, and cross-border cases involving Scotland; (4) In the Mental Health Matters Report: recent cases concerning the relationship between the MHA and the MCA and an excoriating judgment on “detainability;” (5) In the Children’s Capacity Report: AGNI and children and the Joint Committee on Human Rights reports on the human rights of children in care; (6) In the Wider Context Report: litigation capacity complexities, and recent medical guidance documents concerning consent, voluntarily stopping eating and drinking, and eating disorders and critical care; (7) In the Scotland Report: a Practice Note that has caused some consternation.”

  • HQ1. Form HQ1: Hearing questionnaire (08.26) — The first page is for the responsible authority to complete, containing the proposed location of hearing and contact details for proposed report writers. The second page concerns listing and is for the RA and patient’s representative to complete. The update notes state: “HQ1 form updated to reflect updated links and email addresses within.”

Events