From Mental Health Law Online
Various consultations, listed thematically:
- All are closed except those whose headings begin with ***OPEN***.
- A list of #Open consultations can be found at the bottom of the page.
Both of the above features are automated so should always be accurate.
Care Quality Commission
Consultation on our assessments of quality 2010-11 (from 2/2/10 to 27/4/10)
Consultation on the CQC mental health strategy (from 7/9/09 to 7/9/09)
"We are currently developing our strategic plan for our work on mental health over the next three to five years. We are keen to get a range of views to help us develop this plan.
"We would like to invite you to give your views as part our consultation on:
- Where does the Care Quality Commission need to focus its efforts in the next three to five years to really make a difference in mental health?
- How should we involve people who use services and their families and carers in developing, implementing and monitoring the strategy?"
"The regulation of health and adult social care is changing. Take part in our public consultation to help us develop guidance on what care services must do to meet new legally enforceable registration standards. From April 2010 all regulated health and adult social care providers will be required by law to register with us. This is the first time all public and independent health and adult social care services in England will need to meet essential common standards of quality and safety. We would like your feedback on whether our guidance appropriately reflects the new registration standards and what should rightly be expected of a safe, quality care service."
Interim guidance on assisted suicide (from 23/9/09 to 16/12/09)
The purpose of this consultation is to seek a wide range of views on the Director of Public Prosecution’s (DPP’s) recently published interim guidance on assisted suicide.
See also: Assisted suicide
Cases involving people with mental health problems and/or learning disabilities as victims and witnesses (from 1/3/09 to 1/3/09)
Department of Health
***OPEN*** Changes to Mental Health Act 1983 Code of Practice (from 7/7/14 to 12/9/14)
Extract from press release: "Our consultation ‘Stronger Code: Better Care’ is asking for your thoughts on a new draft Code which includes: (1) five new guiding principles; (2) significantly updated chapter on how to support children and young people, on the use of restraint and seclusion and the use of police powers and places of safety; (3) new chapters on care planning, equality and human rights, links to the Mental Capacity Act and Deprivation of Liberty Safeguards, and support for victims."
- Department of Health, 'Mental Health Act Code of Practice consultation launched' (press release, 7/7/14)
- Department of Health, 'Stronger Code: Better Care: Consultation on proposed changes to the Code of Practice: Mental Health Act 1983' (7/7/14)
Bournewood Consultation: The approach to be taken in response to the judgement of the European Court of Human Rights in the 'Bournewood' case (from 23/3/05 to 17/6/05)
"This document seeks views on the issues raised by, and consequent options for public policy arising from, the judgement of the European Court of Human Rights (ECtHR), published on 5th October 2004, in the case of H.L. v. the United Kingdom (the 'Bournewood' judgement - so called because H.L's care and treatment took place in Bournewood Hospital)."
Review of NHS complaints system (from 15/3/13 to 30/7/13)
Dept of Health, 'Review of NHS complaints system' (press release, 15/3/13). The review will be encouraged to make recommendations about: (a) any aspect of the NHS complaints arrangements and other means by which patients make concerns known; (b) the way that organisations receive and act on concerns and complaints; (c) how Boards and managers carry out their functions; (d) the process by which individual organisations are held to account for the way that they handle concerns and complaints. Contact details are provided for anyone wishing to submit evidence. Review begins 15/3/13 and is due to report by 30/7/13.
Consultation on low secure services and psychiatric intensive care (from 19/1/12 to 19/4/12)
"A consultation document on low secure services and psychiatric intensive care is being issued today for a three month consultation by stakeholders. The purpose of this consultation is to invite the views of stakeholders on how new guidance will operate by explaining the rationale behind the strategic approach and raising questions which cover a broad range of issues."
Consultation on the joint Department of Health / NOMS Offender Personality Disorder Pathway Implementation Plan (from 17/2/11 to 12/5/11)
'This consultation is seeking your views about a new pathway approach for the treatment and management of offenders with serious personality disorders.'
Consultation on allocation options for funding for Local Healthwatch: PCT Deprivation of Liberty Safeguards (from 27/7/11 to 24/10/11)
'Subject to the passage of the Health and Social Care Bill, the Department (DH) will allocate funding for local HealthWatch and, potentially, PCT Deprivation of Liberty Safeguards from October 2012. This new funding will be added to the current DH Learning Disabilities and Health Reform grant. This consultation is asking for your views on options for distributing the new funding for local HealthWatch and PCT Deprivation of Liberty Safeguards (DOLS).'
Consultation on preventing suicide in England: a cross-government outcomes strategy to save lives (from 19/7/11 to 11/10/11)
'This document sets out a proposal for a new suicide prevention strategy for England with the aims of reducing the suicide rate and improving support for those bereaved or affected by suicide. The draft strategy brings together knowledge about groups at higher risk of suicide, effective interventions and resources available. The closing date for consultation responses is 11 October 2011. Consultation responses will inform the final strategy, early in 2012.'
Swine flu and temporary MHA amendments (from 10/9/09 to 7/10/09)
Pandemic influenza and the Mental Health Act 1983: consultation on proposed changes to the Mental Health Act 1983 and its associated secondary legislation.
"You are invited to comment on proposals for temporary amendments to the Mental Health Act 1983 which may be required in the event of the severe staff shortages that may be expected during an influenza pandemic. You are invited to say whether you think these proposals are likely to be helpful. Please let us know if there are any significant issues which you think we should have included, or if we have included anything unnecessary."
Law Society response - 14/10/09
Dept of Health, 'Pandemic Influenza and the Mental Health Act 1983: Response to Consultation on Proposed Changes to the Mental Health Act 1983 and its Associated Secondary Legislation' (29/7/11). The Government have concluded that all of the proposed temporary amendments (and further amendments to s5) would be an appropriate part of a package of contingency measures. The proposals requiring legislative changes are: (1) Allowing just one medical recommendation on an application by an AMHP for someone to be detained under sections 2 or 3 of the 1983 Act. (2) To facilitate C1 above, preparing special forms A2A and A6A for use by a doctor making a single medical recommendation. (3) Changing the number of doctors involved in decisions to transfer people from prison to hospital under Part 3 of the 1983 Act. (4) Suspending the obligation to obtain SOAD opinions on medication. (5). Suspending time limits on conveying people and admitting them to hospital under Part 3. (6). Suspending time limits on warrants for transferring people from prison to hospital. (7) Giving courts discretion to renew remands under the 1983 Act beyond the normal 12 week maximum. (8) Allowing SHAs the flexibility to approve former RMOs and former approved clinicians to be temporary approved clinicians. (9) Allowing SHAs the flexibility to approve current section 12 doctors who have not previously acted as RMOs to be temporary approved clinicians (10) Allowing local social services authorities the flexibility to approve former ASWs and former AMHPs to be temporary AMHPs. (11) Seeking a three-month transitional period for SOAD second opinions. (12) If there should be a large number of staff deaths, keeping the contingency measures for temporarily approved AMHPs and approved clinicians in place until fully trained replacements can be approved. (13) Extending the periods of emergency detention permitted under section 5(2) (emergency detention of a hospital in-patient by a doctor or approved clinician) from up to 72 hours to up to 120 hours. (14) Extending the periods of emergency detention permitted under section 5(4) (emergency detention of a hospital in-patient by a nurse with special expertise in mental health or learning disability) from up to 6 hours to up to 12 hours. (15) Allowing any approved clinician or registered medical practitioner to detain a hospital in-patient under section 5(2) rather than just the one in charge of the case. (16) To facilitate C15 above, preparing special form H1A for use by an approved clinician or doctor who is not in charge of the case.
Safety and Security Directions – High Secure Psychiatric Services (from 10/8/09 to 2/11/09)
"The aim of this consultation is to gather views on the proposed revision of The High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2009 and associated guidance, by inviting the views of key stakeholders"
New Horizons (from 23/7/09 to 15/10/09)
"Good mental health is fundamental to the well-being and prosperity of England. In the last decade, greater investment and reforms have transformed mental health care, but now we need to go further. We need to target the root causes of mental illness and support the local development of higher quality, more personalised services."
- New Horizons: Towards a shared vision for mental health: Report on responses to the consultation - 12/3/10
DOLS regulations (from 30/1/09 to 30/1/09)
"These draft regulations confer power on the Care Quality Commission for the purpose of monitoring, and reporting on, the Mental Capacity Act 2005 Deprivation of Liberty Safeguards.
"The draft regulations also amend regulation 3 of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008. Regulation 3 currently sets out that one of the requirements for a person to be eligible to carry out a MCA DOLS assessment is that they must be insured in respect of any liabilities arising in connection with carrying out the assessment. We are proposing to amend this regulation so that assessors will be eligible if they have satisfied the supervisory body that they have adequate and appropriate insurance and / or indemnity arrangements in place."
- Response to the consultation - published 23/2/09
Direct payments regulations (from 19/8/08 to 11/11/08)
"Direct payments are crucial to achieving the Government's aim to increase independence, choice and control, for service users and their carers, through allowing them the opportunity to arrange their own personalised care. The Health and Social Care Act 2008 extends the availability of direct payments to those people who lack the capacity to consent to their receipt. In addition, the government is also reviewing the current exclusions to receiving direct payments for those people who are subject to various provisions of mental health legislation in light of the modernisation of mental health law brought about by the Mental Health Act 2007. The Government is now consulting on regulations relating to these two changes."
Environmental design principles for adult medium secure units (from 17/4/09 to 10/7/09)
"This draft document launches a consultation on revisions to previously published medium secure environmental guidance (Design Guide 1993). It is anticipated the document will annex the Best Practice Guidance and Specification for Adult Medium Secure Services, published by the Department of Health in 2007."
Safeguarding adults: a consultation on the review of the ‘No Secrets’ guidance (from 16/10/08 to 31/1/09)
"The Department of Health, the Home Office and the Ministry of Justice have launched the national consultation on the review of the No Secrets guidance. Minister for Care Services; Phil Hope MP said: 'This consultation paper is about learning. It is about how we as a society learn to empower people - both the public and the professionals - to identify risk and manage risk. It is about how we empower people to say no to abusive situations and criminal behaviour. It is about locating safeguarding in the wider agenda of choice and control. It is about recognising safeguarding as everyone's business. It is about identifying the tools we need for better safeguarding.'
"The consultation is for everyone - it has questions for social workers, and housing officers, for police officers and for lawyers. It has questions for members of the public and for service users."
Summary of responses published 17/7/09. Government response to follow
- Summary of responses - 17/7/09
Violent Offender Order (Information About Release or Transfer) Regulations (from 12/3/10 to 12/5/10)
"Violent Offender Orders (VOOs) were introduced on 3 August 2009 as part of the government’s commitment to do more to protect the public from violent offenders. They are civil preventative orders which the police can use to place controls on violent offenders in circumstances where they could potentially pose the greatest danger to the public. The VOO (information about release or transfer) Regulations will make it a legal requirement for responsible bodies, including mental health services (where an individual is detained under part 3 of the Mental Health Act 1983), to notify the police service or the receiving institution if an offender subject to a VOO is to be released or transferred from their care.
"We are consulting to seek views specifically of mental health service providers on the extent to which they may be affected by the proposals contained within the regulations and to establish what support they would need from the Home Office to enable them to comply with the new duty to notify. Within the consultation paper we are proposing to develop a short guide and/or standard template to enable hospitals to more easily comply with the proposed duty to notify and the consultation seeks the view of mental health services on this."
Unfitness to plead (from 2/5/14 to 25/7/14)
"We are now reviewing our provisional proposals in light of the consultation responses, and taking into account the changes to the criminal justice system since we produced the consultation paper in October 2010. ... These further questions address issues such as: (1) How should special measures to enhance the defendant’s ability to participate in trial be fairly incorporated into the test for unfitness? (2) Should the procedure in the magistrates’ and youth courts mirror that in the Crown Court? (3) What should the process be for dealing with a defendant when he or she has been found unfit to plead? (4) At a hearing to deal with a defendant found unfit, what issues should be considered by the court? (5) What options should the court have in dealing with unfit defendants?"
Unfitness to Plead and the Insanity Defence (from 27/10/10 to 27/1/11)
"Our recommendations focus on a new legal test for determining whether a person is unfit to plead and reform of the section 4A hearing which follows a finding that an accused is unfit to plead. The proposals seek to bring the criminal law into line with modern psychiatric understanding and the approach of the civil law to capacity – both in the civil common law and under the Mental Capacity Act 2005."
- Background information and main page (broken link)
- Law Commission, 'Unfitness to plead: a consultation paper' (LCCP 197, 2010) (broken link)
- Press release (broken link)
Adult Social Care (from 24/2/10 to 1/7/10)
"The overall aim of the project is to provide a clearer, modern and more cohesive framework for adult social care."
- Law Society response to the Law Commission review of adult social care - 14/7/10 - The Law Society are supportive of the proposed reforms and urge the government to implement the recommendations as matter of priority
- The Government response to Law Commission consultation paper 192. Review of the law on adult social care - 14/9/10
- Law Commission, 'Adult Social Care: Consultation Analysis' (31/3/11). This document summaries the responses to the Adult Social Care consultation.
Transforming Legal Aid: Delivering a more credible and efficient system (from 9/4/13 to 4/6/13)
This consultation sets out the Government's proposals for further reform of the legal aid system in England and Wales.
One proposal is a residence test. Under the proposed residence test, civil Legal Aid would only be available to those who are lawfully resident (in the UK, Crown Dependencies or British Overseas Territories) at the time the application for civil Legal Aid was made, and also had been so resident for a continuous period of at least 12 months at any point in the past. There will be some exceptions to the residence test. One exception is for 'detention cases', in specified areas including mental health (see para 125 of Annex B to the government response).
Specialist Support Services (from 30/3/12 to 11/5/12)
The LSC is consulting on their proposal to discontinue funding for the Specialist Support Service, as a result of conceding a judicial review of their decision to do so.
The specialist support service for mental health is run by Scott Moncrieff Solicitors, and is available from Monday to Friday, 10am to 4pm, on 0844 800 3364.
Following the consultation process the LSC has decided to discontinue the Specialist Support Service. Contracts will end on 6/7/12.
Quality Assurance Scheme for Advocates (from 10/5/10 to 10/5/10)
This discussion paper sets out the LSC's proposed future minimum quality requirements for purchasing criminal advocacy services. The focus is on crime but the intention is for quality assurance schemes to apply to all areas of law.
Civil Bid Rounds for 2010 Contracts (from 23/1/09 to 23/1/09)
Consultation closed on 23/1/09. "Through this consultation we are seeking views on our proposals for the bid criteria and award process for civil legal aid contracts that will be introduced from 2010. We are also consulting on key changes to the contract terms and to changes to the scope of legal aid funding."
Mental Health Tribunal
Medical examination of the patient (from 18/6/13 to 10/9/13)
The Tribunal Procedure Committee propose to amend the rules as follows: (a) to make the medical examination discretionary (except in s2 cases, where there is to be no change); (b) to allow any member of the tribunal to view the medical records (rather than just the medical member); (c) to require either a medical examination or a finding that one is unnecessary or not practicable before a tribunal can proceed in the patient's absence.
- Julie McCallen, 'Consultation on proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (letter, 18/6/13)
- Tribunal Procedure Committee, 'Proposal to amend Rule 34 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (medical examination of the patient in mental health cases): Stakeholder Consultation' (June 2013)
- Tribunal Procedure Committee, 'Response to consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (March 2014)†
- Tribunal Procedure (Amendment) Rules 2014/514 — Extract from Explanatory Note: 'Rules 17 to 20 amend rules 32, 34, 37 and 39 of the HESC Rules. The amendments relate to the examination by the Tribunal of patients and their medical records and to the circumstances in which the Tribunal may proceed with the hearing of the appeal in the absence of the patient.' In force 6/4/14.
- Practice Direction and Guidance: Medical Examinations (2014) MHLO 43 — This document, dated 11/3/14, explains the regime in relation to medical examinations in cases received by the tribunal on or after 6/4/14. This page of the website contains a detailed summary of the changes.
The Role of IMHAs in Hearings (from 14/10/10 to 15/11/10)
Consultation on draft Guidance Note on the role of IMHAs (in their capacity as IMHAs, rather than as representatives) at Tribunal hearings. Consideration is given to (1) attendance at the hearing; (2) seating arrangements; (3) relationship with the legal representative; (4) role in relation to any procedural issues; (5) giving of evidence; (6) asking questions and addressing the panel; (7) right of access to the Tribunal's decision.
Proposed changes to listing procedure (from 30/4/10 to 30/4/10) (April 2010)
The Tribunals Service are consulting stakeholders on new procedures and forms for the listing of cases.
Consultation details on "MHRT" website - 12/4/10
Mental Health Lawyers Association: Consultation - proposed changes to Tribunal listing procedure - 7/4/10 - Membership required
Summary of Consultation Responses - 30/7/10
Consultation on proposed amendments to the Tribunal Procedure Rules (from 1/6/11 to 23/8/11) (1/6/11 - 23/8/11)
The Tribunal Procedure Committee is consulting on changes to the rules so that the Tribunal may (1) make a decision on a reference under s68 (duty of managers to refer cases to tribunal) without a hearing if the patient is a community patient and has consented to this; and (2) strike out a party's case without a hearing. The purpose is to save money. The rationale given for the first proposal is that community patients are often content with their position and do not want to attend the hearing or medical examination; that if the patient does not attend then full reports often mean there is little point having a hearing; and that hearings place an unnecessary burden on community patients, who are likely to be quite capable of making the necessary decisions and are entitled to IMHAs and Legal Aid. It is anticipated that all community patients would be posted a form inviting them to consent to their case being decided without a hearing. In relation to the second proposal, it is intended that the power would be used when it is obvious that the tribunal lacks jurisdiction. Consultation runs from 1/6/11 to 23/8/11.
Tribunal Procedure Committee, 'Response to consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (1 June 2011 – 29 August 2011)' (February 2012)
Ministry of Justice
Court Fees: Proposals for reform (from 3/12/13 to 21/1/14)
From Government website: "Under the proposals contained in this consultation paper, those using the civil court system would, in future, be expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost. Fee remissions will continue to be provided for those who qualify, so that access to justice is not denied."
The proposals include introducing new, and amended, fees for the Court of Protection, and increased fees for judicial review.
Ministry of Justice, 'Court Fees: Proposals for reform' (December 2013)† (main consultation document)
Regulatory Policy Committee, 'Impact assessment opinion: enhanced court fees' (20/1/14)† The summary of this report is: 'The Impact Assessment is not fit for purpose. The Department needs to make clear whether the proposal will result in the Court Service raising more funds than is necessary to cover their costs.'
Appointments and Diversity (from 21/11/11 to 13/2/12) (21/11/11 to 13/2/12)
Of relevance to mental health law are the following proposals: (1) Amending s63 Constitutional Reform Act 2005, which currently requires judicial appointment to be 'solely on merit', to allow the Equality Act 2010's protected characteristics (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, gender and sexual orientation) to be taken into account: where a 'selection assessment on a range of criteria rates them as equally capable of doing the job' then the presumption will be that protected characteristics will tip the balance in favour of those possessing them. (2) To provide more opportunity for appointments based on diversity, changing the tenure of fee-paid appointments so that they no longer last until retirement, but instead for a maximum of three five-year terms save in exceptional cases where there is a clear business need.
Fees in the High Court and Court of Appeal (from 15/11/11 to 7/2/12) (15/11/11 to 7/2/12)
'A consultation proposing changes to fees in the High Court and Court of Appeal Division. It is aimed at users of the High Court and Court of Appeal Civil Division, the legal profession, the judiciary, the advice sector and all with an interest in this area in England and Wales. The aim of these proposals is to charge users of these two jurisdictions more proportionally for the resource their cases consume, while protecting access to justice for the most vulnerable. This will reduce the taxpayer subsidy of the courts service.'
Office of the Public Guardian: Call for evidence: Not for profit delivery of deputyship services (from 4/8/11 to 27/10/11)
The paper cites the 'Big Society' concept. The introduction states that 'Not for profit delivery of deputyship services has three purposes: (1) to understand the reasons behind the low take up amongst not-for-profit organisations of deputyship work; (2) to benchmark the costs of providing deputyship services within the sector; (3) to test interest in such organisations providing personal welfare deputyships in the future.' The appendix shows that the hope is to get the same service for approximately half the price of sa solicitor deputy.
Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers (from 28/6/11 to 20/9/11)
'A consultation on the proposal that an amendment be made to the Court of Protection Rules to provide for authorised officers to deal with specified types of applications. '
Ministry of Justice, 'Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers' (consultation paper CP9/2011, June 2011)
Discussion paper on a proposed European Regulation on mutual recognition of protection measures in civil matters (from 30/6/11 to 8/7/11) (?start date)
'We are inviting views on a proposal for a European Regulation on mutual recognition of protection measures in civil matters. ... The Regulation aims to ensure that a protection measure (for example a non-molestation order) provided to a person in one Member State is recognised and maintained when that person travels or moves to another Member State. It is hoped that this Regulation will provide a quick and efficient mechanism which will avoid the person requiring protection having to go through time consuming court procedures in the Member State of recognition, or give evidence on the same matters a second time in order to get equivalent protection in that State.'
Proposals on changes to the Office of the Public Guardian fees (from 28/2/11 to 21/5/11)
'A consultation on the Office of the Public Guardian (OPG) fees 2011/2012 which aims to ensure that the OPG fee policy remains fair, equitable and proportionate to the services being provided whilst at the same time reflecting the current economic climate. The proposed changes will help ensure that the fee structure remains fair and equitable whilst fully covering OPG costs. We are now seeking your views.' (MOJ website).
The proposals are listed on the OPG website as:
- Raising the LPA Application to Register fee from £120 to £130;
- Implementing a new 'Resubmission Fee' of £65 each time an LPA is resubmitted to the OPG within 3 months of it being returned to the Applicant as invalid;
- Discontinuing the production of LPA office copies by the OPG, except in extreme and limited circumstances, and for a £50 fee;
- Removing the Application to Search the Registers fee;
- Replacing Type 1, 2A and 2 supervision fees with a flat fee of £320 and introducing an administration fee of £35 for those in type 3 requiring the de minimis level of supervision;
- Raising the maximum threshold of capital for those cases qualifying for Type 3 supervision from £16,000 to £21,000 over a period of 4 years;
- Introducing a new Fee Remissions policy of 50% for those who have a gross income of up to £12,000;
- Allowing the Public Guardian to vary the levels of fees payable in the future, examples of which could be:
- Implementing a new discounted fee for any LPA applications that are submitted together;
- Removing or discounting the LPA registration fee for Armed Service Personnel
- Renaming a number of OPG fees in order to make it clearer what they cover.
See also: MCA Update emails
Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders (from 7/12/10 to 4/3/11)
"The Ministry of Justice Structural Reform Plan published in July 2010 set out a commitment to introduce a 'rehabilitation revolution' and conduct a review of sentencing policy. This consultation sets out the resulting proposals which aim to break the destructive cycle of crime and protect the public, through more effectively punishing and rehabilitating offenders and reforming the sentencing framework."
The proposals in relation to managing offenders with mental health problems are as follows: 'We want to ensure that our valuable resources are targeted on the people who are committed to changing their lives and being rehabilitated. In some cases, the criminal justice system is not the best place for them. This is particularly the case for offenders with mental health problems. We propose to: (a) work with the Department of Health and the Home Office to pilot and roll out liaison and diversion services nationally by 2014 for mentally ill offenders; and (b) increase the treatment capacity for offenders who present a high risk of harm where this is linked to severe personality disorders.'
A Platform for the Future (from 30/11/10 to 25/2/11) (30/11/10 to 25/2/11)
"In March 2010 an announcement was made that the Ministry of Justice would be bringing Her Majesty’s Courts Service (HMCS) and the Tribunals Service together, creating a single unified organisation. This consultation paper sets out the rationale for the creation of a new agency and explains what we believe the benefits will be. In seeking the views of the public on these benefits it also sets out what will remain the same following the creation of the agency."
Proposals for the Reform of Legal Aid in England and Wales (from 15/11/10 to 14/2/11)
"This consultation seeks views on proposals for reform of legal aid in England and Wales. The proposals represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for those cases in which legal advice or representation is justified. This consultation is aimed at providers of publicly funded legal services and others with an interest in the justice system."
In relation to mental health law the proposals are to (1) retain legal aid for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeal as to the Court of Protection on deprivation of liberty issues; (2) retain legal aid for judicial review challenges; (3) remove legal aid for tort or other general damages claims unless the claims are of a very serious nature (paras 4.92 to 4.94). The summary for the scope of mental health law is that 'We propose to retain the current provision of Legal Help and Controlled Legal Representation' (Annex F). All civil hourly rates and fixed fees are to be reduced by 10% (para 7.6 to 7.7) and there are also proposals for reducing experts' fees (see chapter 8). There are less generous rules on financial eligibility and contributions, but these proposals will not affect those cases, such as Tribunal work, which are not subject to means testing (para 5.4).
Ministry of Justice, 'Reform of Legal Aid in England and Wales: the Government Response' (Cm 8072, June 2011). Other related documents are also available. Some points particularly relevant to mental health law are: (1) There will be a 10% cut in all civil fees, including mental health law (para 34). (2) Advice and representation under the MHA 1983 or MCA 2005 will remain in scope (para 86). However claims involving tort or other general damages claims will be excluded except where these meet the criteria for 'claims against public authorities' or 'claims arising out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault' (para 87). The 'claims against public authorities' criteria allow legal advice and representation for claims (typically claims for damages) against public authorities concerning 'abuse of position or power' or 'significant breach of human rights' (no longer for 'serious wrong-doing') (para 10ff). (3) Legal aid will remain available for judicial review and habeas corpus (subject to immaterial exceptions) (para 88ff).
Proposals for reform of civil litigation funding and costs in England and Wales (from 15/11/10 to 14/2/11) (15/11/10 to 14/2/11)
"This consultation seeks views on implementing a package of Lord Justice Jackson's proposals for reforming conditional fee agreements and other aspects of civil litigation funding and costs."
Office of the Public Guardian: Amendments to secondary legislation (from 17/12/09 to 9/3/10)
"This consultation paper represents the next step in the review process of the Mental Capacity Act 2005 and addresses areas of legislation and policy that in practice have not worked as well as intended. The proposed changes will help the Act meet its aims and objectives. The OPG intends to implement them on the 1 April 2010 and is now seeking views."
- Consultation page - including response
Legal aid: funding reforms (from 20/8/09 to 12/11/09)
Responses published 16/12/09.
Response re experts' fees published 3/3/10. See bottom of consultation page and:
- Press release: Major new project on expert witness fees - 3/3/10 - New project entitled "Analysis and control of expert witness fees paid in legal aid work".
The future of the Parole Board (from 20/7/09 to 20/11/09)
"Since its creation in 1968, the role of the Parole Board has changed significantly, from an advisory body to a court-like decision-making body. It has evolved in light of legislative changes, court judgments and changing caseloads, but its functions, status and resources have not been systematically considered in light of these changes. This consultation paper represents an opportunity to address this, and consider whether any changes to its sponsorship and role would support the Parole Board in carrying out its functions more effectively and efficiently."
Legal Aid: refocusing on priority cases (from 16/7/09 to 8/10/09)
"This paper sets out proposals for reforming the legal aid rules to ensure that limited resources are focused on priority cases. The changes proposed include strengthening public interest considerations in deciding whether to grant civil legal aid; ceasing to provide funding for low priority civil and criminal matters, where issues can be resolved instead through complaints procedures or ombudsman schemes; restricting access to civil legal aid for those not resident in the UK; and notifying the other side when civil legal aid is applied for to discourage fraudulent applications."
Response to consultation - Feb 2010
Amendments to the Community Legal Service (Financial) Regulations 2000 (from ?/?/09 to 17/2/09) (?start date)
The plan is to increase income eligibility limits by 5%, and to introduce non-means-tested legal aid for COP proceedings for those deprived of their liberty, from April 2009. Closing date 17/2/09.
The response to the consultation is included in the explanatory memorandum to the following Regulations:
Mental Capacity Act 2005: forms, supervision and fees (from 23/10/08 to 15/1/09)
Responses published: 11 March 2009
A consultation on proposed changes to three areas of the work of the Office of the Public Guardian and the Court of Protection following the implementation of the Mental Capacity Act:
1. redesign of the Lasting Power of Attorney forms 2. restructuring of the Supervision of Deputies by the Public Guardian 3. alterations to the fee structure.
This consultation was the initial stage of a wider 12-18 month investigation into the implementation of the Mental Capacity Act.
See the following for details:
- MoJ consultation page, including response (the text above is taken from here)
- MoJ press release: "Power of Attorney forms to be cheaper and simpler" - summary of the consultation response
Office of Fair Trading
See also: Office of Fair Trading
Mental Capacity Guidance (from 6/12/10 to 4/3/10)
"Following the consultation on irresponsible lending the OFT identified a need to provide further clarity on the issue of mental capacity as it impacts on borrowing decisions."
See also: Mental Health (Wales) Measure 2010. (Some of the circular emails reproduced there relate to consultations.)
Consultation on Mental Health (Regional Provision) (Wales) Regulations 2012 (from 26/9/11 to 16/12/11)
'This consultation seeks your views on regulations which would enable Local Health Boards (LHBs) and local authorities in Wales to enter into regional working arrangements.'
Consultation on the draft code of practice to parts 2 and 3 of the Mental Health (Wales) Measure 2010 (from 18/10/11 to 16/1/12)
'This consultation seeks views on a draft Code of Practice for care and treatment planning. It also covers reassessment for secondary mental health services under the Mental Health (Wales) Measure 2010. Part 2 of the Measure is concerned with: (1) the appointment of care coordinators as part of the process of planning and coordinating care; and (2) care and treatment plans for people receiving secondary mental health services. Part 3 of the Measure is concerned with: (1) former users of secondary mental health services; and (2) providing a right for them to refer themselves back to secondary services for assessment directly. The draft code sets out guiding principles and practice guidance for the operation of the Measure.'
Consultation on proposed Mental Health (Wales) Measure (from 29/3/10 to 14/5/10)
As part of its Stage 1 consideration, the National Assembly for Wales’ Legislation Committee No. 3 is calling for evidence on the general principles of the proposed Mental Health (Wales) Measure.
Consultation: Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011 (from 21/2/11 to 16/5/11)
'Part 4 of the Mental Health (Wales) Measure 2010 expands the statutory independent mental health advocacy scheme established by the 1983 Act. Patients subject to certain "short term" sections of the 1983 Act, and those in hospital informally (i.e. not under compulsion) are able to access the service. The Welsh Assembly Government is proposing to make Regulations connected to the expanded independent mental health advocacy scheme. This will relate to the provision, appointment and approval of advocates. It will also say which people advocates can talk to in undertaking their role of supporting patients. This consultation seeks your views on these draft Regulations.'
Consultation: Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011 (from 21/2/11 to 16/5/11)
'Part 3 of the Mental Health (Wales) Measure 2010 is concerned with mental health assessments for former users of secondary mental health services. The Welsh Assembly Government is proposing to make Regulations under this part of the Measure which will set out certain eligibility criteria for such assessments. For example, the length of time a person will be eligible for such an assessment following their discharge from services. This consultation seeks your views on these draft regulations.'
Consultation: Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011 (from 21/2/11 to 16/5/11)
'[This consultation] is concerned with the coordination of secondary mental health services, and care and treatment planning for secondary mental health service users. The Welsh Assembly Government is proposing to make Regulations connected to Part 2 of the Measure. This relates to the appointment of care coordinators and the making, reviewing and revising of care and treatment plans. This consultation seeks your views on these draft regulations.'
Consultation on a Separate Legal Jurisdiction for Wales (from 27/3/12 to 19/6/12)
The Welsh Government are consulting on making things even more unnecessarily complicated, by creating an entirely separate legal jurisdiction for Wales.
Consultation on an Equality Impact Assessment for New Mental Capacity Legislation (from 30/7/10 to 31/10/10)
"Following publication of the Bamford Review report, A Comprehensive Legislative Framework and consultation on the Department's proposal, A Legislative Framework for Mental Capacity and Mental Health Legislation, the Minister in September 2009 announced his intention of preparing a single Bill encompassing mental capacity and mental health provisions."
Consultation Document: Delivering Excellence: Achieving Recovery: A Professional Framework for the Mental Health Nursing Profession in Northern Ireland (2010-2015) (from ?/?/10 to 10/9/10) (?start date)
Consultation run by NI's Department of Health, Social Services and Public Safety.
A Consultation on proposals for a Mental Health (Scotland) Bill (from 23/12/13 to 25/3/14)
From Scottish Government website: "This consultation paper seeks views on proposals for a draft Mental Health Bill. This draft Bill brings forward changes to improve the operation of the 2003 Act - notably in relation to named persons, advance statements, medical matters and suspension of detention. In addition the draft Bill makes provision for a Victim Notification Scheme for victims of Mentally Disordered Offenders."
Consultation in relation to section 268 appeals against conditions of excessive security (from 2/8/13 to 25/10/13)
"A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers."
Certification of Incapacity for Medical Treatment under Part 5 Section 47 Adults with Incapacity (Scotland) Act 2000 (from 18/7/11 to 10/10/11)
'This consultation seeks views on four issues on Adults with Incapacity (Scotland) Act 2000 Part 5 in relation to medical treatment. The issues are: widening the range of institutions which can offer training, whether dentists should be required to undertake training for this purpose; whether multiple section 47 medical treatment certificates should be required in some circumstances; and whether other medical practitioners not specified should be enabled to certify incapacity for medical treatment'
Disclosure of Information to Victims of Mentally Disordered Offenders (from 30/8/10 to 22/11/10)
"Consultation on the possible introduction of a scheme for victims of mentally disordered offenders similar to the current criminal justice Victim Notification Scheme"
Rule 58 consultation (from 21/3/11 to 16/5/11)
The Scottish Government, 'Scottish Government Consultation: Amendment to Rule 58 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005: Rule 58: Power to Decide Case Without a Hearing' (March 2011)
The Scottish Government is consulting on plans to increase the availability of rule 58 which allows the Tribunal, if all parties agree in writing, to dispose of a case without an oral hearing. The three proposed options, all dispensing with the need for agreement and presumably with the intention of cutting costs, are: (1) any party wanting a hearing must show cause why a hearing is necessary, or (2) as option 1 except the patient has the automatic right to hearing if requested, or (3) as option 1 except the hearing will take place unless the patient positively elects not to have one. It is envisaged that the rule would be used 'where there is no real dispute between the parties'.
Consultation responses. On this page, published 15/6/11, can be found all the responses to this consultation
Adults with incapacity (from 31/7/12 to 31/10/12)
Scottish Law Commission, 'Discussion Paper on Adults with Incapacity' (discussion paper 156, 31/7/12). Extract from news release: 'The main questions raised by the Discussion Paper are: (1) Is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area? and (2) If not, how should it be changed? In particular, there is a need to decide if there should be a new procedure for authorising deprivation of liberty in residential care for adults with incapacity. If there should, what should that process be? And, very importantly, what sorts of care and what type of facilities should be regarded as involving deprivation of liberty for those who live there?'
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