April 2020 update

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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 2053 categorised cases

Cases

  • Case (Access to records of deceased patient). Re AB [2020] EWHC 691 (Fam)The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative.
  • Case (Residence and care capacity). London Borough of Tower Hamlets v A [2020] EWCOP 21(1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment").
  • Case (Audio recording of neuropsychological testing). MacDonald v Burton [2020] EWHC 906 (QB)(1) The defendant was allowed to carry its neuropsychological examination of the claimant without being subjected to any kind of recording of that examination: a level playing field could not be achieved where the claimant had not recorded the examination and testing by his own expert but where the examination testing by the defendant's expert was so recorded. (2) The judge discussed the question of any privilege which may exist in any recordings that are made. (3) The judge hoped that the forthcoming British Psychological Association guidance would recognise the competing interests and would not merely state that psychological examinations and testing should never be recorded.
  • Case (Direction for all-female panel). Re A [2020] MHLO 14 (FTT)In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut.
  • Case (All-male and all-female panels). CB v SSWP [2020] UKUT 15 (AAC)(1) It was unlawful of the tribunal to hear the ESA appeal in the applicant's absence; the decision was set aside and the case remitted to a new panel. (2) The judgment contains obiter comments about the request for an all-female panel.
  • Case (Change in status - s3 to guardianship). AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC)When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction.
  • Case (Inherent jurisdiction and DOL). Hertfordshire CC v K [2020] EWHC 139 (Fam) — "In this matter, the question before the court is whether it should grant a deprivation of liberty order (hereafter a DOL order) under the inherent jurisdiction of the High Court in respect of AK, born in 2003 and now aged 16."
  • Case (Secure accommodation and inherent jurisdiction). A City Council v LS [2019] EWHC 1384 (Fam) — "Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is 'no'."
  • Case (Withholding life-sustaining treatment from baby). Rotherham Metropolitan Borough Council v ZZ [2020] EWHC 185 (Fam) — "It is impossible not to feel that X's life is one of nothing but suffering. As is set out in the cases above, life itself is precious and there is a very strong presumption in favour of preserving life. But X's life is a truly tragic one and certainly reaches a threshold of intolerability. ... His life expectancy is probably no more than a year on the basis of the literature. ... For all these reasons I am clear that it is not in X's best interests that he should be resuscitated or that he should be given life sustaining treatment."
  • Case ((1) Overlap between different decisions; (2) Sex). B v A Local Authority [2019] EWCA Civ 913 — (1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations.
  • Case (Lawfulness and availability of treatment). PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot.

Legislation

  • Legislation. Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 — Rule 2 amends the MHT's rules: (1) new power in new rule 5A to dispose of proceedings without hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so. (2) section 2 hearings to start within 10 days rather than 7 days, with an explicit power to ignore this deadline if the tribunal considers it "not reasonably practicable". In force 10/4/20. These rules will expire on the same day as section 55(b) of the Coronavirus Act 2020 (public participation in proceedings conducted by video or audio). (3) A further change, relating to public/private hearings is inserted into the part of the HESC rules which do not apply to mental health cases.

Resources

  • Support for adult social care providers. CQC, 'CQC sets out next steps to support adult social care during the COVID-19 pandemic' (15/4/20) — This document deals with (1) Personal Protective Equipment; (2) coronavirus testing procedures for staff; (3) statistics (from this week, death notifications collected from providers will include whether the person had suspected or confirmed COVID-19); (4) information gathering (data on coronavirus pressures from services providing care in people's own homes will now be collected).
  • MHT guidance for patients. Mental Health Tribunal, 'Help for users' (15/4/20) — This guidance explains that hearings will be heard via telephone/video, by a tribunal judge alone ("because we have less support because of the coronavirus"), there will be no medical examination (because "people cannot meet together"), and community hearings will not take place ("because of the difficulties we have in organising hearings here everyone can participate" - unless the patient or representative explains "why your case must go ahead").
  • Coronavirus advice for patients, carers and others. Mind, 'Coronavirus and your rights' (April 2020) — This web page contains links to further Mind resources on: (1) Coronavirus and social care rights; (2) Coronavirus and sectioning; and (3) Coronavirus and your mental health.
  • Hearing postponement for certain community patients. Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20) — (1) The hearings of certain community patients will be postponed, unless they have already been listed for paper review. (2) It applies to patients “over 18” (this is meant to mean 18 or over) presumably at the time of the application or reference. (3) The following will be postponed: (a) applications by CTO patients (s66(1)); (b) applications by conditionally-discharged (C/D) patients (s75(2)); (c) periodic mandatory references in the cases of CTO patients (s68(2) and s68(6)). (4) The following will not be postponed: (a) discretionary references for CTO patients (s67(1)); (b) discretionary references for C/D patients (s71(1)); (c) revocation references for CTO patients (s68(7)); (d) recall references for C/D patients (s75(1)). (5) The order purports to postpone periodic mandatory references for C/D patients (s71(2)) but these references are only made for a "restricted patient detained in a hospital". (6) The hearings will take place on the first convenient date after revocation of the Pilot Practice Direction, or earlier if the tribunal orders (the parties are to agree a new listing window after revocation and apply for a new date). (7) All parties are at liberty to apply to vary the order and directions in exceptional cases. (8) The reason given for the order is that (a) it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing"; (b) cases where the patient is deprived of his liberty are being prioritised for listing; (c) postponement is proportionate to the "extreme demands being placed on health, social care and justice services by the pandemic"; (d) the case will be relisted as soon as practicable "having regard to any temporary regulations or other priorities that may prevail during the coronavirus emergency".
  • MHT video hearings. Mental Health Tribunal, 'Video Conference Hearings' (6/4/20) — From 13/4/20 all cases will be listed as video hearings using the Common Video Platform (CVP), instead of telephone hearings. Telephone hearings had taken longer and made communication more difficult, and it is hoped that video hearings will be an improvement.
  • Care Act "easements". DHSC, 'Care Act easements: guidance for local authorities' (1/4/20) — "This guidance sets out how Local Authorities can use the new Care Act easements, created under the Coronavirus Act 2020, to ensure the best possible care for people in our society during this exceptional period." The first sentences of the changes (which are each followed by "however"-type sentences) are: (1) Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. (2) Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. (3) Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. (4) The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs.
  • Parole Board guidance. Parole Board, 'Further guidance to members' (1/4/20) — (1) A panel can now make these decisions at MCA (Member Case Assessment): (a) to release or recommend transfer to open conditions in appropriate cases on the papers; (b) to refuse release or decline transfer to open conditions in appropriate cases on the papers; (c) to direct a case to an oral hearing. (2) Members have the option to expand the panel if they wish. (3) The guidance includes factors to consider when deciding whether an oral hearing is needed.
  • Annual CQC report on MHA. CQC, 'Monitoring the Mental Health Act in 2018/19' (6/2/20) — The Foreword to the report states that the CQC found: "(1) Services must apply human rights principles and frameworks. Their impact on people should be continuously reviewed to make sure people are protected and respected. (2) People must be supported to give their views and offer their expertise when decisions are being made about their care. (3) People who are in long-term segregation can experience more restrictions than necessary. They also may experience delays in receiving independent reviews. This is particularly true for people with a learning disability and autistic people. (4) People do not always get the care and treatment they need. Some services struggle to offer appropriate options, both in the community and in hospital. (5) It is difficult for patients, families, professionals and carers to navigate the complex laws around mental health and mental capacity."
  • Coronavirus mental health law changes. Hannah Taylor, 'Coronavirus Act 2020 - Changes for Mental Health' (Bevan Brittan, 1/4/20) — This web page sets out the proposed changes to the MHA in table format. It then gives some information under the following headings: (1) What about potentially infectious persons in the mental health context? (2) Patients who refuse to self-isolate; (3) How should public authorities be preparing for the changes? (a) Communication; (b) Environmental preparation; (c) Informing staff; (d) Training and guidance; (e) Alternative arrangements; (f) Statutory forms.
  • MHT telephone hearing guidance. Mental Health Tribunal, 'First-tier Tribunal (Mental Health) update' (2/4/20) — Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient's number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call.
  • MHT update including listing. Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20) — (1) All hearings have been postponed for certain community patients (CTO and conditional discharge), unless they have already been listed for paper review, until the revocation of the coronavirus pilot PD, or earlier if the tribunal directs. (The original summary here wrongly said "all community patients" - apologies.) (2) Section 2, conditional discharge recall, and CAMHS cases are the priority for listing; other cases were not being listed, but s3 and restricted cases should now begin to be listed. (3) Representatives are requested not to call the tribunal unless absolutely necessary, and to seek directions for late reports.
  • Academic briefing note about assessment of mental capacity. Sophie Stammers and Lisa Bortolotti, 'Mitigating the risk of assumptions and biases in assessments of mental capacity' (University of Birmingham, 23/3/20) — "Mental health and social care professionals routinely assess the capacity of people to make decisions about their lives, in accordance with the Mental Capacity Act 2005 (MCA). The briefing note outlines how the functional approach to testing capacity in the MCA underdetermines decisions, describing the risks for stereotypes and assumptions to affect outcomes. It advocates for the need for specific training for professionals using the MCA to enable them to recognise the role of value judgements in capacity decisions, to mitigate the effects of stereotyping and assumptions, and to improve decision making."
  • Coronavirus public health restrictions. Alex Ruck Keene, 'Public health restrictions and capacity' (Mental Capacity Law and Policy, 29/3/20) — "Two sets of regulations brought into force in the past week have radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society. This post looks at them through the prism of the law relating to those with impaired decision-making capacity; it also looks at through a similar prism at a part of the Coronavirus Act 2020 which is not (yet) in force, but is likely to come into force shortly,"
  • Social distancing and mental capacity. Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 31/3/20) — "The Court of Protection team have been asked to advise on a number of occasions since 17 March 2020 as to the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19. Clearly the consequences of P going into the community, as she ordinarily would, are (a) that she is at risk of contracting COVID-19, (b) that she may infect others, if she has the virus, and (c) that she may be in breach of the new police powers which have come into effect."
  • Detailed COP remote hearing protocol. Court of Protection, 'Remote access to the Court of Protection guidance' (Mr Justice Hayden, 31/3/20) — This 20-page document confirms that no COP hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing. It includes a template case management order, and sets out sets out operational protocols governing remote hearings under the following headings: (1) General; (2) Legislative framework; (3) Judicial access to audio/visual conferencing platforms; (4) video/visual Conferencing: (a) Cloud Video Platform MoJ/HMCTS; (b) Skype for Business; (c) Microsoft Teams; (d) Zoom; (e) FaceTime; (f) Lifesize; (5) Audio/Telephone; (6) Security; (7) Transparency; (8) Transcription/recording of the hearing; (9) GDPR; (10) Attendance of P at the remote hearing; (11) Litigants in Person; (12) Witness Evidence; (13) Electronic Bundles; (14) Use of Interpreters and Intermediaries; (15) Orders and Service; (16) Legal aid funding.

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