February 2019 update
This page is automatically generated: it will only be complete at the end of the month. All monthly updates are available here: Archive of monthly updates.
- 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 1958 categorised cases
- Chronology. See February 2019 chronology for this month's changes to the website in date order.
- Case (Medical treatment, including CPR). University Hospitals Birmingham NHSFT v HB  EWCOP 39 — "When considering what is in HB's best interests, I take account of the fact that the balance of medical evidence would support the view that the treatment set out in the second part of the treatment plan would bring about no significant improvement in HB's underlying condition and, to that end, they might be seen as futile. ... Against that, I have to balance the very clear wishes, expressed by HB to her daughter, that she would want all steps taken to preserve her life ... Where it is not clear whether HB will make an improvement in her neurological condition, it is, in my judgment, contrary to her best interests and premature to rule out the treatments set out in Part 2 of the updated treatment plan, numbers (2) to (6). ... Mr McKendrick submits that it would not be in HB's best interests that the potentially last moments of her life were lived with her undergoing the violent and invasive procedures necessary in providing CPR, that it would be a traumatic scene for her children to witness in her final moments. I entirely accept those submissions and the force in them, but key to the decision must be the wishes and feelings of HB and it is plain that administering CPR in the event of a further collapse and giving her, albeit a very, very small chance of life, is what she would wish. In my judgment, at the moment, it remains in her best interests for that treatment to be provided to her. I entirely accept that there will undoubtedly come a time when such treatments would no longer be in her best interests but I am entirely satisfied that that stage has not been reached yet."
- Case (Settlement of property on trust). LCN v KF  EWCOP 1 — "This is an application under section 18(1)(h) of the Mental Capacity Act 2005 for the settlement of CJF's property on trust. ... By the time of the hearing it was expected that CJF would die in a matter of days. As noted earlier in this judgement, CJF died the following week. ... LCN [CJF's deputy] made an application on 20th November 2018 for the settlement of CJF's assets including his property at 1AY on revocable trust for himself during his lifetime and thereafter for 1AY to pass to EH [CFJ's daughter] and AH [EH's husband] and the residue of CJF's estate to pass to KF [CFJ's mother]. ... By the rules of intestacy, CJF's estate would be divided equally between KF and CJF's biological father, stated by KF to be BJF. This is subject to section 18 of the Family Law Reform Act 1987 which raises a rebuttable presumption that BJF pre-deceased CJF as his name did not appear on CJF's birth certificate. KF was able to contact BJF, but only through social media. That contact was sufficient, in my view, to rebut the presumption. If the court did not approve the settlement of CJF's property, it would be divided equally between KF and BJF with nothing passing to EH and AH. It would be open to EH and AH to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, but the outcome of such an application was uncertain. ... In this case, I consider that there were exceptional circumstance justifying proceeding without BJF being notified. These circumstances were his complete lack of involvement in CJF's life and care and his denial of paternity. There was a genuine urgency and balancing the prejudice of proceeding in the absence of BJF with the prejudice to EH and AH of not proceeding, I considered that the hearing had to take place despite the lack of service on BJF. It was agreed between the parties, and I ordered, that attempts should be made after the hearing to locate BJF and serve him with a copy of the final order so that it would be open to him to apply to set aside or vary it. ... The parties agree, and I find, that the authorities on the making of a statutory will apply to the settlement of CJF's estate in this case. I was advised by Miss Hughes that between 1925 and 1959 the Court had no power to make a statutory will and so would have approved settlement trusts as an alternative. ... All agreed that 1AY should pass to EH and AH and that the residue of the estate should pass to KF. I take that agreement into account and see no reason to depart from it. ... The question remains whether AH and EH should be effectively liable for some of the Inheritance Tax liability or whether the liability should all be borne by the estate, and in effect KF. ... I do not consider that it would be in CJF's best interests for there to be any risk to the security and stability of EH's and AH's home and therefore I consider that they should inherit 1AY effectively free of Inheritance Tax."
- Case (Aggravated damages following MCA breaches). Esegbona v King’s College Hospital NHS Foundation Trust  EWHC 77 (QB) — "The claimant, Dr Gloria Esegbona, brings this claim as administrator of the estate of the deceased, her mother, Christiana Esegbona. The action is brought in negligence and false imprisonment. The amended claim form states that the claimant's claim is a claim in clinical negligence and/or pursuant to the Fatal Accidents Act 1976 and/or the Law Reform (Miscellaneous Provisions) Act 1934. The claimant claims damages for pain, suffering and loss of amenity as well as damages, including aggravated damages, for false imprisonment. It is the claimant's case not only that the medical, nursing and other staff at the defendant’s hospital owed her mother a duty to treat her with reasonable care and skill but also that the defendant had duties under the Mental Capacity Act 2005: to take reasonable steps to establish whether Mrs Esegbona lacked capacity before doing any act in connection with her care or treatment; and further that if the defendant reasonably believed that Mrs Esegbona lacked capacity whether it would be in her best interests for any act in connection with her care or treatment to be done; and to take steps to obtain a court order or the relevant authorisation under schedule A1 to the Act before depriving Mrs Esegbona of her liberty. The claimant says the defendant acted in breach of these duties."
- Case (Australian case on capacity and ECT). PBU v Mental Health Tribunal (2018) VSC 564 — Headnotes from judgment: (1) "ADMINISTRATIVE LAW – appeal – decisions of Victorian Civil and Administrative Tribunal (‘VCAT’) that two persons with mental illness be compulsorily subjected to electroconvulsive treatment (‘ECT’) – determination that they lacked the capacity to give informed consent to or refuse treatment – whether VCAT properly interpreted and applied requirement that person be able to ‘use or weigh’ information relevant to decision – further requirement that there be no less restrictive way for the person to be treated – whether this requirement only met where treatment immediately needed to prevent serious deterioration in person’s health or serious self-harm or harm to another – ‘capacity to give informed consent’ – Mental Health Act 2014 (Vic) ss 68, 69, 70, 72, 93 and 96." (2) "HUMAN RIGHTS – two persons having mental disability found by VCAT to lack capacity to give informed consent to or refuse ECT – whether incompatible with human rights to self-determination, to be free of non-consensual medical treatment and to personal inviolability – assessing capacity compatibly with those rights and the right to health – applicable principles – dignity of risk – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3), 10(c), 13(a), International Covenant on Economic, Social and Cultural Rights art 12(1), Convention on the Rights of Persons with Disabilities arts 12(4), 24."
- Case (LPA attorney as substituted personal representative). Whittaker v Hancock & Ors  EWHC 3478 (Ch) — "The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as substitute personal representative of the estate of John Parker in place of the second defendant, her mother, and for a caveat entered by the third defendant on 20 July 2016 to be removed. ... The third defendant is the deceased's daughter and opposes the claim. ... In a statement accompanying the Will, signed by the deceased and witnessed by a legal secretary the deceased explains that he has made no provision for the third defendant ... On 20 July 2016 the third defendant caused a caveat to be entered. She subsequently entered an appearance to the claimant's warning asserting that the 2003 Will may be invalid due to the deceased lacking testamentary capacity, being subject to undue influence and want of knowledge and approval. ... Mr Devereux-Cooke submits that I should make an order appointing the claimant as substitute personal representative for the second defendant. The claimant is the attorney for the second defendant, the LPA having been registered on 16 January 2014. The second defendant cannot consent to the claim as she lacks capacity. The first defendant does not oppose the claim. ... It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant's property and financial affairs. There are no conditions or restrictions specified in the instrument. ... It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries. ... I accept Mr Devereux-Cooke's analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke's analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary. ... I consider that in order for the deceased's estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant."
- Case (Damages for Parole Board delay). R (Bate) v Parole Board  EWHC 2820 (Admin) — "Four grounds of claim were pleaded in detail. They can be summarised as challenging: (i) a failure, in violation of Art 5(4), to provide a parole hearing within a reasonably speedy interval; (ii) a systemic failure to maintain and operate a system for speedy and prompt parole reviews; (iii) an unlawful policy for prioritisation of listing which ignores support for release and prospects of release which are identified as realistic, and/or ignores a legitimate expectation given as to the timetable for a deferred hearing; (iv) an unlawful failure, by the decision letter of 2nd December 2016, to direct expedition in the listing of Mr Bate's deferred hearing. ... For the reason I have given, I would find in Mr Bate's favour on ground 1 and ground 4, and would award him damages on the basis indicated in paragraphs 77, 88 and 89 above. I would refuse relief in respect of grounds 3 and 4."
- Case (Dishonest solicitor). Maitland-Hudson v SRA  EWHC 67 (Admin) — "The Appellant appeals against findings of misconduct and dishonesty made against him by ... the Solicitors Disciplinary Tribunal ... Pursuant to those findings, on 2 May 2018 the Appellant was struck off the Roll of Solicitors and ordered to pay the SRA's costs, including £300,000 by way of interim payment. The Tribunal found the Appellant to have been guilty of misconduct "at the highest level", characterised as "deliberate, calculated and repeated… over a number of years". It was aggravated by the Appellant's dishonesty and attempts to defend his conduct. The appeal is based on grounds of alleged procedural unfairness, specifically that the Appellant, a litigant in person, was substantially impaired in his ability to defend himself, to the extent that he admitted himself to hospital. Despite the fact that consultant psychiatrist experts on both sides found that the Appellant was unable to represent himself, the Tribunal refused to dismiss the proceedings on the basis of "incurable unfairness" or even to stay or adjourn their remainder."
- Legislation. Mental Health (Northern Ireland) (Amendment) Order 2018 — This Order amends Article 77 (power to discharge patients other than restricted patients) of the Mental Health (Northern Ireland) Order 1986. The pre-existing situation "could have [had] the effect that a patient who is detainable for assessment, in accordance with Article 4, is discharged before the assessment period is completed even if they meet the criteria for detention assessment (but not the criteria the Tribunal must use)" (para 6.7 of explanatory memorandum).
- Parliamentary briefing on Mental Capacity (Amendment) Bill. Law Society, 'Parliamentary briefing: Mental Capacity (Amendment) Bill: House of Commons second reading' (18/12/18) — Extract from Law Society website: "The Law Society is concerned by provisions in the Mental Capacity (Amendment) Bill. While attempting to simplify the current arrangements under the Deprivation of Liberty Safeguards (DoLS), the Bill removes vital existing safeguards for cared-for people. The Bill should be amended to avoid the unlawful treatment of the vulnerable individuals who receive care and treatment under conditions of detention. Many changes have been made but there is still some way to go. There is a real risk that many of the flaws in the existing system will be duplicated and that the new system will replace one deficient system with another than removes existing safeguards for people. This briefing sets out our key positions on the Bill."
- LPS equality analysis. DHSC, 'Equality Analysis: Liberty Protection Safeguards – Mental Capacity (Amendment) Bill' (17/12/18) — Details from Gov.uk website: "This document looks at the positive, neutral and negative effects that this legislation could have on people with protected characteristics and other groups, such as carers. This is in line with the Secretary of State’s Public Sector Equality Duty, and duties under the National Health Service Act 2006. The Mental Capacity (Amendment) Bill sets out the measures the government will take to replace the Deprivation of Liberty Safeguards (DoLS) scheme in the Mental Capacity Act 2005. This is a process that authorises deprivations of liberty for the care and treatment of those who lack capacity. The new system is called liberty protection safeguards. As changes are made to the bill, the government will consider the equality issues and this document will be updated when appropriate."
- Restraint review's terms of reference. CQC, 'Thematic review of the use of restraint, prolonged seclusion and segregation for people with mental health problems, learning disabilities and/or autism: Terms of Reference' (26/11/18) — This document details how the CQC will conduct the review.
- CQC to review restraint, seclusion and segregation. CQC, 'CQC to review the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism' (3/12/18) — Extract from CQC website: "We will review and make recommendations about the use of restrictive interventions in settings that provide inpatient and residential care for people with mental health problems, a learning disability and/or autism. ... We will take forward this work and will report on its interim findings in May 2019, with a full report by March 2020. We have encountered the use of physical restraint, prolonged seclusion and segregation in wards for people of all ages with a learning disability and/or autism and in secure and rehabilitation mental health wards. The review will consider whether and how seclusion and segregation are used in registered social care services for people with a learning disability and/or autism. This will include residential services for young people with very complex needs - such as a severe learning disability and physical health needs - and secure children’s homes. This aspect of the review will be undertaken in partnership with Ofsted."
- Parole Board consultation outcome. Ministry of Justice, 'Reconsideration of Parole Board decisions: creating a new and open system: Government response to the public consultation' (Cm 30, 4/2/19) — Details of outcome from Gov.uk website: "This consultation sought the public’s view on a mechanism that would allow the Parole Board to reconsider its decisions in certain circumstances. The Government has concluded that there should be a mechanism to allow reconsideration of parole decisions. The process will provide an easier way to challenge decisions which appear to be seriously flawed. The Secretary of State will able to apply for reconsideration to the Parole Board, taking account of any representations from victims. It will no longer be necessary to resort to costly and time-consuming judicial review proceeding. Decisions on whether a case should be reconsidered will be taken by judicial members of the Parole Board. Reasons for their decisions will be provided to victims. We will make provision in the Parole Board Rules to implement these changes later this year. Between now and then, we will put into place the necessary guidance, training and resources need to operate this mechanism."
- MCA-related damages. 1 Crown Office Row, 'Alasdair Henderson secures award of damages for false imprisonment in a hospital setting' (30/1/19) — This web page reports on a claim against Kings College Hospital in which the High Court held that there had been a failure to follow the DOLS requirements to undertake a full capacity assessment and, if appropriate, a best interests assessment, and that the hospital had intentionally kept the family in the dark about Christiana Esegbona's discharge to a nursing home until the last minute in order to prevent objection. The claim for false imprisonment and for negligent failures to provide adequate information to the nursing home (at which the patient died after pulling out her tracheostomy tube) was successful, and the court awarded aggravated damages because of the deliberate exclusion of the family from the discharge planning process.
- Consultation. Ministry of Justice, 'Reconsideration of Parole Board decisions: Creating a new and open system' (consultation from 28/4/18 to 28/7/18) — "This paper considers and seeks views on the proposed parameters for and operation of the proposed reconsideration process, with respect to: (1) which types of decisions should be reconsidered; (2) who should be able to apply for reconsideration of a decision; (3) on what basis a decision should be reconsidered; (4) how we can make the process transparent whilst also ensuring there are sufficient safeguards to protect panel members, victims and others.", "This paper considers and seeks views on the proposed parameters for and operation of the proposed reconsideration process, with respect to: (1) which types of decisions should be reconsidered; (2) who should be able to apply for reconsideration of a decision; (3) on what basis a decision should be reconsidered; (4) how we can make the process transparent whilst also ensuring there are sufficient safeguards to protect panel members, victims and others."
- Event. MHLA: Panel course - Leeds, 6/3/19 and 7/3/19 — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website for further details and to book online.
- Event. MHLA: Panel course - London, 27/2/19 and 28/2/19 — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website for further details and to book online.
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