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Mental Health Law Online

The internet resource on mental health law, and mental capacity law, for England & Wales. You can read a review of the site here.

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  • 20/03/19: Case (Withdrawal of CANH). SS v CCG [2018] EWCOP 40 — "The application seeks a declaration pursuant to section 15 (that it is lawful and in B's best interests for CANH to be withdrawn) and, secondly, an order pursuant to section 16 for such withdrawal and for B to receive palliative care only. If granted, it is anticipated that B will pass away. ... In support of granting the application there are a number of important factors. It is consistent with her previously expressed feelings and wishes. It supports her right, I suspect strongly held, to self-determination. She has no quality of life. Therapeutically, her life is futile, there is no hope of recovery. There is no hope. If I allow the application and make the declarations, it will bring to an end the invasive and, in my judgment, burdensome medical treatment from which she, B, obtains no benefit. It is consistent with her Muslim religion. It is consistent with her devoted husband's views of his wife's best interests. It is consistent with the unanimous views of those that are responsible for caring and treating her, whether it be the clinical or the support team. Is there any factor which weighs in the scales against granting the application? There is. It is the powerful principle that if I make the declarations, it will inevitably lead to B's death, so offends against the very strong principle of the sanctity of life. Having taken time to consider the matter, it seems to me clear that the direction of travel is all one way. It is with my very greatest sympathy to the family and B's husband in particular that balance falls very clearly in favour of me granting the application and making the declarations as sought, and I do so."
  • 20/03/19: Case (Retrospective authorisation of DNA swab sample). DCC v NLH [2019] EWCOP 9 — "I concluded it would be appropriate to make a declaration (1) that NLH lacked capacity (a) to make decisions as to the provision of buccal swab samples, the testing of such samples and the profiling of his DNA and (b) to conduct these proceedings, and further (2) that it was lawful for the local authority to arrange for the taking of buccal swabs from NLH for the purposes of performing DNA paternity testing in respect of the child. I further concluded it would be appropriate to make an order, by consent, that the court consented on NLH's behalf for the swab sample to be taken and tested and so that his DNA could be profiled to establish whether he was the father of the child. Shortly before the order was made, however, it emerged that a member of staff from the DNA testing company, Lextox, had already attended at the nursing home and taken the sample, with the agreement of NLH's family, but without either the formal consent of NLH (who lack capacity to provide consent) or the approval of the court. ... I therefore agreed to prepare this short judgment to remind practitioners, carers and those involved in taking samples in these circumstances that, where the patient lacks capacity and an application has been made to the Court of Protection for an order authorising the taking of a sample, it will be unlawful for the sample to be taken without the Court's permission. All practitioners and professionals working in this field ought to be aware that there is always a judge of the Family Division on duty available to sit in the Court of Protection twenty-four hours a day, seven days a week, every day of the year, to deal with urgent applications, usually by telephone. Consequently, there is no excuse for any failure to comply with the obligations to obtain the court's permission in circumstances such as these. As stated, no harm arose on this occasion, but any infringement in future will run the risk not only of attracting severe criticism from the Court but also potentially incurring liability for damages if a breach of human rights were to be established."
  • 19/03/19: Case (Whether child had "sufficient understanding" to conduct appeal without Guardian). CS v SBH [2019] EWHC 634 (Fam) — "Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm."
  • 18/03/19: Case (Residence, contact, tenancy). London Borough of Hackney v SJF [2019] EWCOP 8 — "SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into."


See also:

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