The following updates were made to the site in February 2009.

Website information

• The Wikimentalhealth CPD scheme is now online. For £50 per annum, solicitors can earn 12 CPD points. The course is also suitable for psychiatrists (CPD) and social workers (post-registration training). For more information see CPD scheme

• During February, Bailii uploaded 90 mental health law court judgments at the request of Wikimentalhealth. This brings the total number of cases available through Wikimentalhealth to 520. There are still some cases on the wish list, so if you have any judgments not on this site then please send them in. Links to these newly-added transcripts have been incorporated into the Cases to be added page

• See February 2009 chronology for changes to the website in date order

Legislation

• Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 — In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.
• Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009 — In force 1/4/09, subject to approval by resolution of each House of Parliament. Relates to (1) the role of the Care Quality Commission in monitoring schedule A1 and (2) two amendments relating to (a) insurance/indemnity of assessors, and (b) recovery of expenditure between local authorities.
• Tribunal Procedure (Amendment) Rules 2009 — Various amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008 (and other Rules). In force 1/4/09.
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) (Wales) Regulations 2009 — This page does not exist yet
• Mental Capacity (Deprivation of Liberty: Assessments, Standard Authorisations and Disputes about Residence) (Wales) Regulations 2009 — In force 1/4/09 (subject to approval).
• Joint Committee on Statutory Instruments: Fifth Report of Session 2008-09, clearing up an ambiguity in the Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008

Other documents

Relating to the Mental Capacity Act

• Deprivation of Liberty Safeguards Standard Forms — On 27/2/09 the Department of Health, and the Welsh Assembly government, separately published final versions of all DOLS-related forms, for managing authorities, supervisory bodies etc. These forms are not compulsory but their use is encouraged. Forms were last updated in March 2011 (at the time of writing).
• Dept of Health: DOLS guidance for (1) PCTs and local authorities, (2) hospitals and care homes and (3) relevant person's representatives. Also, a document on "MCA DOLS and Section 75 partnerships under the National Health Service Act 2006" See Deprivation of Liberty Safeguards

• Welsh Assembly Government: DOLS guidance for (1) managing authorities and (2) supervisory bodies. See Deprivation of Liberty Safeguards

• DH: "Mental Capacity Act (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009 - response to the consultation". See Consultations

• Office of the Public Guardian: February 2009 (edition 20) MCA Update. See Mental Capacity Act 2005 Overview

Relating to the Mental Health Act

• Nursing Reports - Advice to Panels from Regional Tribunal Judges — Advice on whether the report author should give oral evidence, and on matters about which it is appropriate for nurses to give evidence. Issued 23/2/09.
• New information leaflet for SCT patients. See Supervised Community Treatment replaces Supervised Discharge

• MoJ Mental Health Unit: Bulletin No 6. Also, revised guidance for (1) clinical supervisors and (2) social supervisors. See Ministry of Justice

• New children documents: "Systems Model for Planning the Implementation of the Age Appropriate Environment", and "Updated Headspace Toolkit" (for children). See Children and mental health law

• The charity Rethink: "The Mental Health Act: Essential information for parents and carers". See Children and mental health law

• Some statutory forms added to the site (Forms A2, A3, A6, A7, A10, A11). See Mental Health Act 1983 Statutory Forms

• Department of Health: "Independent advocacy qualifications" and "IMHA Myth Buster". See New Independent Mental Health Advocate scheme and Independent Mental Capacity Advocate service

Cases

February 2009

• M v East London NHS Foundation Trust CO/1065/2009 — The nearest relative's statement to the AMHP that he disagreed with detention under s3 was sufficient to amount to the notification of an objection under s11; it was unaffected, in the absence of any clear evidence of a change of mind, by the failure to state an objection in a subsequent conversation immediately prior to the making of the application.
• Re P (2009) EWHC 163 (Ch) — The Court of Protection is not bound by the substituted judgment approach from the previous legislation, including the Mental Health Acts 1959 and 1983, but must apply the Mental Capacity Act 2005 best interests approach (the general philosophy of which is discussed) [Detailed summary available on case page.]
• Scottish Ministers v MHTS, re JK (2009) CSIH 9 — The Mental Health Tribunal for Scotland, in terminating a restiction order of a detained patient, had erred in law: (1) The threshold requirements in section 193(2) (that the patient has a mental disorder and that it is necessary for the patient to be detained in order to protect any other person from serious harm) must be considered and found wanting before considering the rest of the section including, under s193(5), whether to terminate the restriction order; (2) the criteria in s193(5)(b) (that the serious harm test is satisfied and that the restriction order is a continuing necessity) are disjunctive and must be separately considered. Obiter, there was a failure to deal with large parts of the evidence, in particular the RMO's evidence that the serious risk test was met.
• R (Purdy) v DPP (2009) EWCA Civ 92 — The absence of a crime-specific policy relating to assisted suicide (identifying the facts and circumstances where it will not be in the public interest to prosecute) does not make the operation and effect of section 2(1) of the Suicide Act 1961 Act unlawful nor mean that it is not in accordance with law for the purposes of Article 8(2). [Overturned on appeal.] [Detailed summary available on case page.]

January 2009

• R (B) v DPP (2009) EWHC 106 (Admin) — The decision to discontinue a prosecution for wounding with intent and witness intimidation, on the basis that the victim's mental illness meant he could not be placed before the jury as a credible witness, was irrational on the facts; s49A Disability Discrimination Act 1995 added nothing to the ordinary position under public law principles; there had been a breach the positive obligation under Article 3 (which includes the duty to provide a legal system for bringing to justice those who commit serious acts of violence against others) and £8000 was awarded in compensation. [Detailed summary available on case page.]
• R (Wright) v SSH (2009) UKHL 3 — Section 82(4)(b) of the Care Standards Act 2000, which provides for the provisional inclusion in the POVA list of a care worker (thus depriving him of employment) immediately after concerns are raised but before any judicial hearing, is incompatible with Articles 6 and 8.

2008

• C v V, re S and S (Protected Persons) (2008) 25/11/08‎ — (1) Under the Mental Capacity Act 2005, there is a presumption in favour of implementing P's wishes unless they are irrational, impractical, or irresponsible (with reference to resources), or there is a sufficiently countervailing consideration. (2) The appointment of donees jointly (rather than jointly and severally) under a power of attorney created the presumption that the donors wanted decisions made jointly or by neither appointee. (3) Mr and Mrs S's wishes (that if both daughters were unable to act jointly then neither should act singly) would be implemented, and an independent Deputy would be appointed.