March 2020 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 2038 categorised cases
- Chronology. See March 2020 chronology for this month's changes to the website in date order.
- Case (Interim declarations under s48 MCA 2005). DA v DJ  EWHC 3904 (Fam) — In this case Parker J followed the approach of HHJ Marshall QC in Re F M rather than the approach of Hayden J in Wandsworth LBC v A McC B in relation to the correct approach to the threshold test for making an interim order under MCA 2005 s48 (which requires that there is "reason to believe that P lacks capacity in relation to the matter"). There is no need for the the purpose and extent of the capacity assessment to be explained to the person concerned, and the evidence does not need to go so far as to rebut the presumption of capacity.
- Case (Diminished responsibility sentencing). R v Rodi  EWCA Crim 330 — Unsuccessful appeal against s45A and 10-year sentence, in which the November 2018 sentencing guidelines for diminished responsibility manslaughter were applied.
- Case (Disclosure of patient's medical information). ABC v St George's Healthcare NHS Trust  EWHC 455 (QB) — "By this claim brought against three NHS trusts, the claimant contends that the defendants breached a duty of care owed to her and/or acted contrary to her rights under Article 8 of the European Convention on Human Rights in failing to alert her to the risk that she had inherited the gene for Huntington's disease in time for her to terminate her pregnancy."
- Case (Lay advocates in public law family proceedings). Re C (Lay Advocates)  EWHC 3738 (Fam) — "In my judgment that there is no material difference between the services provided by an interpreter, an intermediary or a lay advocate insofar as they each enable and support parties and witnesses to communicate and understand these proceedings. HMCTS routinely pay for the services of interpreters and intermediaries, I cannot see any principled reason why it should not also pay for the services of lay advocates in an appropriate case. ... Accordingly, I will appoint a lay advocate for the mother and a lay advocate for the father. They cost £30 per hour which I consider to be entirely reasonable. I have assessed the likely number of hours of work on this for the lay advocates to be 50 hours."
- Case (Force feeding under s63 MHA 1983). JK v A Local Health Board  EWHC 67 (Fam) — "In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s.63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder. However, that does not mean that I by any means accept that force feeding JK would be in his best interests, or critically would be "treatment" that falls within the definition in s.145(4) of the MHA, as being "to alleviate or prevent a worsening of the disorder…". It is apparent that force feeding is a highly intrusive process, which involves sedating the patient whilst the naso-gastric tube is inserted and potentially having to restrain the patient for fairly prolonged periods. This process would be extremely upsetting for any patient, but for JK with his ASD and his aversion to eating in front of other people, the process would be even more traumatic. JK said in oral evidence that he viewed the possibility as abhorrent, and it was clear from that response how incredibly upsetting for all concerned having to go through that process would be. If it came to that stage close consideration would necessarily have to be given to the terms of article 3 ECHR and the caselaw such as Herczegfalvy v Austria  15 EHRR 437 and the test of medical necessity."
- Case (Haemodialysis under s63 MHA 1983). A Healthcare and B NHS Trust v CC  EWHC 574 (Fam) — "By reason of the above, the Court finds that: (i) The physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC's refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983. (ii) CC's capacity to consent to dialysis treatment fluctuates, however his consent is not required in order to be treated, by way of dialysis treatment, under section 63 MHA 1983. (iii) The decision whether it is in CC's best interests to receive dialysis treatment is a matter for CC's responsible clinician (having consulted clinicians attending to his physical health, including the consultant nephrologist), subject to the supervisory jurisdiction of the Court. (iv) Section 58 has no applicability. Section 62 disapplies section 58 in urgent treatment cases such as this where treatment is immediately necessary to save CC's life, to prevent a serious deterioration of his condition, and to alleviate serious suffering. Section 63 is the appropriate course. (v) As section 63 MHA 1983 can be used as authority to provide medical treatment to CC, including by dialysis treatment and by the use of light physical restraint and chemical restraint (if required), it is unnecessary for the court to exercise its discretion and make a contingent declaration pursuant to section 15(1)(c) MCA 2005 that it is lawful to treat CC in accordance with the proposed dialysis treatment plan in the event that he lacks capacity to make a decision regarding dialysis treatment at the relevant time."
- Case (Charitable status of foundation trusts). Derby Teaching Hospitals NHS Foundation Trust v Derby City Council  EWHC 3436 (Ch) — Seventeen NHS foundation trusts argued that, as foundation trusts, they were entitled under s43(5) Local Government Finance Act 1988 to the four-fifths reduction in non-domestic rates because they were charities and the relevant properties were wholly or mainly used for charitable purposes. The High Court answered the preliminary question "Whether the Lead Claimant is a charity for the purposes of section 43(6) of the Local Government Finance Act 1988?" in the negative.
- Case (Section 117 complaint). Milton Keynes CCG (17 018 823e)  MHLO 61 (LGSCO) — "Whilst the Trust was acting on behalf of the CCG in carrying out the s117 actions, the CCG is ultimately responsible for s.117 provision, along with the Council. ... The CCG, Trust and the Council should, by 23 December: (a) Write to Mrs B apologising for the impact of the fault in relation to not refunding the care fees relating to the supported living placement. (b) Confirm with Mrs B and refund the supported living fees which have not already been reimbursed. Mrs B may need to provide additional information to the organisations about fees paid as part of this. (c) Write to Miss A and Mrs B personally and apologise for the impact the lack of s.117 planning had on both of them individually due to the length of time Miss A went without adequate support. They should also apologise for the uncertainty caused by not knowing whether the incidents outlined above could have been avoided. (d) Pay Miss A £1500 and Mrs B £1000 each in recognition of the impact of the and length of time Miss A had a lack of s.117 support. By 20 February 2020, the Council, CCG and Trust should create an action plan of how they will notify and cooperate with each other to ensure patients are assessed promptly and s.117 care put in place in line with the MHA Code of Practice. This action plan should include a review of progress and the impact of any changes following implementation of the plan."
- Case (Section 117 complaint). NHS Guilford and Waverley CCG (18 007 431a)  MHLO 60 (LGSCO) — "(1) Within one month of my final decision, the Council and CCG will: (a) Write to Miss X and Mr Y, acknowledging the fault identified in this decision and offering meaningful apologies; (b) Jointly pay Mr Y £500 for failure to provide support as outlined on his s117 aftercare plan, delayed care planning, loss of opportunity to re-engage him and distress as a result of poor communication around his care plan and eviction; (c) Jointly pay Miss X £150 for poor complaint handling, stress and inconvenience. (2) Within three months of my final decision, the Council and CCG will ensure that Cherrytrees and all other providers acting on their behalf under s117 review their policies and procedures to ensure compliance with the relevant parts of the Code of Practice: Mental Health Act Code 1983, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Act 2014, in relation to: (a) Care planning; (b) Daily record keeping; (c) Complaint handling, including ensuring all points are responded to adequately and complainants are properly signposted should they wish to escalate their complaint."
- Case (Sentencing and mental health). R v PS  EWCA Crim 2286 — "These three cases, otherwise unconnected, raise issues about proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders."
- Legislation. Coronavirus Act 2020 — This Act, among other things, amends the MHA 1983 in light of the coronavirus pandemic. The Act is in force on 25/3/20, although s10 and schedules 8-11 (amendments to the MHA and NI/Scottish equivalents) will commence on a date to be specified in regulations. The paragraphs of schedule relating to "Constitution and proceedings of the Mental Health Review Tribunal for Wales" came into force on 27/3/20.
- Legislation. Health Protection (Coronavirus) Regulations 2020 — The explanatory note states: "These Regulations supplement the health protection regime found in Part 2A of the Public Health (Control of Disease) Act 1984 in the event that there exists a serious and imminent threat to public health from the virus known as 'Wuhan novel coronavirus (2019-nCoV)'."
- Legislation. Parole Board Rules 2019 — The Gov.uk website lists the following as significant changes: (1) IPP licence termination; (2) New powers to release any prisoner on the papers; (3) Third party directions; (4) Appointing representatives; (5) Non-disclosure applications; (6) Decision on the papers after a case has been sent to oral hearing; (7) Decision summaries; (8) Reconsideration mechanism. Supersedes the Parole Board Rules 2016 (though those rules apply for parole reviews referred before 22/7/19).
- MHCS coronavirus guidance. Mental Health Casework Section, 'Q and A for healthcare professionals and MHCS staff' (30/3/20) — The questions are: (1) Will MHCS relax a requirement that supervisors should have face-to-face contact with patients living in the community, for conditional discharge reports? (2) What happens if a patient, who is detained in hospital, requires urgent treatment as a result of suspected COVID-19? (3) What happens if there is an urgent need to transfer a patient with suspected Covid-19 from one mental health hospital to another? (The document contains a new shorter transfer request template for use in this scenario.) (4) Is there still a requirement to submit Conditional Discharge Reports (CDRs) and Annual Statutory Reports (ASRs)? (5) How do I extend previously granted overnight leave at a community placement, to prevent the need for the patient to go back and forth between the hospital and community placement?
- Electronic signatures. Simon Lindsay, 'Digital mental health: Use of electronic forms and signatures' (Bevan Brittan, 31/3/20) — This article provides equivocal advice about the use of electronic signatures.
- Electronic signatures. Ross Tomison, 'Electronic Signatures and the Mental Health Act' (Thalamos, 20/11/19) — The conclusion of this article is: "The Mental Health Act doesn’t require a signature to be handwritten. Provided all other formalities have been met under the act for the form which is being completed, then an electronic signature is legally valid."
- MHCS coronavirus update. Mental Health Casework Section, 'MHCS Update: Covid-19' (Dear Colleague letter, 19/3/20) — This letter explains that MHCS staff are all working from home, their policies and procedures remain the same, and the ability to deliver casework is unchanged. If staffing levels decrease: the priorities will be recalls, prison transfers, upward transfers, tribunal statements and level/downward transfers and repatriations; there might be delays in leave decisions and discharges; and conditional discharge reports (CDRs) and applications for changes of discharge conditions (unless important because of risk) will be the lowest priority.
- E-cigarette policy guidance. Public Health England, 'Using electronic cigarettes in NHS mental health organisations' (4/3/20) — This document contains recommendations which were designed to provide a single reference point for NHS service providers to standardise smokefree policies on the use of e-cigarettes. This guidance states that e-cigarettes are not covered by smokefree legislation, that they are less harmful than smoking, and that 1 in 3 cigarettes smoked in England is by a person with a mental health condition. The headings are: (1) Summary; (2) Purpose of this advice; (3) Introduction; (4) The difference between smoking and vaping; (5) Current position of leading health organisations on e-cigarettes; (6) The evidence on quitting with e-cigarettes; (7) Recommendations for organisational policies; (8) Recommendations for care; (9) Next steps; (10) Other useful resources; (11) Case study.
- Guidance on learning disability and autism. NHS, 'Clinical guide for front line staff to support the management of patients with a learning disability, autism or both during the coronavirus pandemic - relevant to all clinical specialities' (ref 001559, v1, 24/3/20) — The Overview states: "People with a learning disability have higher rates of morbidity and mortality than the general population and die prematurely. At least 41% of them die from respiratory conditions. They have a higher prevalence of asthma and diabetes, and of being obese or underweight in people; all these factors make them more vulnerable to coronavirus. There is evidence that people with autism also have higher rates of health problems throughout childhood, adolescence, and adulthood, and that this may result in elevated risk of early mortality". The following key points are discussed: (1) Be aware of diagnostic overshadowing; (2) Pay attention to healthcare passports; (3) Listen to parents/carers; (4) Make reasonable adjustments; (5) Communication; (6) Understanding behavioural responses to illness/pain/discomfort; (7) Mental Capacity Act; (8) Ask for specialist support and advice if necessary; (9) Mental wellbeing and emotional distress.
- CQC coronavirus procedure for SOADs. Care Quality Commission, 'COVID-19: Interim Methodology for Second Opinions' (Dear Colleague letter, 20/3/20) — The summary stated in the letter is: "(1) We are asking mental health services to provide a summary of the patient’s current issues to CQC when submitting a second opinion request, which SOADs will use instead of visiting the hospital to examine care records. (2) Consultations with professionals, including with the responsible clinician, will be undertaken by telephone or video (Skype or Microsoft teams). (3) Following telephone consultations, we will ask services to support patients who agree to speak with SOADs to have access to telephones or technology to support a video call with the SOAD. (4) SOADs will not be asked to post original copies of certificates. We encourage services to accept electronic copies of certificates and act on that. The Government may lift the requirement for a paper copy, and we will issue further communications once this is confirmed."
- Coronavirus guidance for psychiatrists. Royal College of Psychiatrists, 'Legal matters - COVID-19 guidance for clinicians' (March 2020, updated periodically) — This contains information under the following headings: (1) Emergency legislation and the Mental Health Act - not yet in force; (2) Update on the operation of Mental Health Tribunals; (3) Changes to SOAD procedures.
- Critical lay view of remote COP hearing. Celia Kitzinger, 'Remote justice: a family perspective' (Transparency Project, 29/3/20) — This article is written from the perspective of the daughter of the patient in the video hearing in A Clinical Commissioning Group v AF B.
- Guidance to psychiatrists about remote hearings. Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20) — (1) This guidance to psychiatrists includes the following: all evidence will be taken before a tribunal judge alone, using phone (BT MeetMe) or video; the doctor giving evidence will released after giving evidence except in all but exceptional cases; the patient will not be given the decision orally. (2) To help the tribunal, clinical teams should: (a) submit s2 reports the day before the hearing (to avoid delays); (b) advise the tribunal judge if the patient will be unable to stay in the room or should give evidence first; (c) tell the tribunal judge whether the patient can remain as a voluntary patient (which is no longer possible in many areas); (d) emphasise any limitations of the evidence (for instance if the patient has recently been moved between "clean" and "dirty" coronavirus wards); (e) focus on the statutory criteria; (f) suggest delayed discharge for follow-up to be arranged; (g) give evidence from a private area. (3) The tribunal are encouraging wing members to return to clinical work, and are looking at formats for shorter reports.
- Proposed reduction on tribunal panel sizes (not MHT). Senior President of Tribunals, 'Proposal to amend Composition Statements' (18/2/20) — This consultation relates to the General Regulatory Chamber, the Social Entitlement Chamber, the Property Chamber and the Health, Education and Social Care Chamber (SEND, Primary Health Lists and Care Standards cases only - not MHT). Consultation closes 14/4/20.
- Summary of Coronavirus Act 2000. Hill Dickinson LLP, 'Coronavirus Act - key facts' (26/3/20) — This detailed summary of the Coronavirus Act 2020 contains the following headings: (1) Emergency registration of health and social care professionals; (2) Suspension of duties to undertake assessments of need/discharge of patients from hospital; (3) Deaths and inquests; (4) Indemnity for health service activity; (5) Powers in relation to potentially infectious persons; (6) Children; (7) Offences; (8) Impact on NHS employers; (9) Emergency volunteering leave; (10) Statutory sick pay; (11) Changes to the Mental Health Act 1983: (a) Applications for detention under section 2 and section 3; (b) Holding powers; (c) Treatment - administration of medicine to persons liable to detention in hospital; (d) Detention in place of safety; (e) Patients concerned with the criminal justice system.
- Guidance about LAA contract terms. LAPG, 'Guidance on what the Legal Aid Contract and LAA COVID-19 Guidance Allows' (25/3/20) — This detailed guidance contains information under the following headings: (1) Your office; (2) Progressing Current Cases; (3) Potential New Clients; (4) Providing “Remote” Advice and Digital Signatures; (5) Means Assessment for Remote Advice; (6) Supervision; (7) Supervisor Absence; (8) Key Workers; (9) Speak to the LAA.
- Impact of coronavirus on operation of MCA. Alex Ruck Keene and Rosie Scott, 'The COVID-19 pandemic, the Coronavirus Bill and the Mental Capacity Act 2005' (39 Essex Chambers, 25/3/20) — This article contains information under the following headings: (1) The Coronavirus Bill; (2) Non-Statutory Guidance; (3) Guidance from the Court of Protection; (4) Advance care planning; (5) Commentary.
- Civil escape case claims. LAA, 'Contingency Measure for Civil Escape Cases - Electronic Submission' (24/3/20) — As a temporary measure, the LAA are requiring that these be submitted electronically. The guidance document contains full details.
- Tribunal coronavirus hygiene guidance. Senior President of Tribunals, 'Guidance for tribunal judges and members - COVID-19 measures' (23/3/20) — This guidance covers matters such as 2m separation and hand washing.
- COP guidance on remote hearings and serious cases. Court of Protection, 'Further Guidance for Judges and Practitioners in the Court of Protection arising from Covid-19' (Mr Justice Hayden, 24/3/20) — (1) The guidance on remote hearings is now: "as from today no 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." (emphasis in original) (2) Genuinely urgent and life/death cases will be identified and prioritised in the usual way, but if any difficulty arises the VP's clerk may be emailed.
- HIVE group and 2m separation at court. Court of Protection, 'Dear Colleagues letter' (Mr Justice Hayden, 23/3/20) — The "HIVE" group has been established, the objective being "to continue to refine our approach to dealing with the Court’s business and to seek to ensure that it runs as smoothly as possible". It consists of: The Vice President; The Senior Judge, HHJ Hilder; Sarah Castle, the Official Solicitor; Vikram Sachdeva QC; Lorraine Cavanagh QC; Alex Ruck Keene; Kate Edwards; Mary Macgregor, Office of Public Guardian; Joan Goulbourn, Senior Policy Advisor, Ministry of Justice. All those who attend court should keep 2m separation from others at all times.
- Civil courts remote hearing protocol. Judiciary of England and Wales, 'Civil justice in England and Wales: Protocol regarding remote hearings' (20/3/20) — "This Protocol seeks to provide basic guidance as to the conduct of remote hearings."
- Jury trials have been paused. Lord Chief Justice, 'Review of court arrangements due to COVID-19, message from the Lord Chief Justice' (23/3/20) — (1) This message notes that jury trials cannot be conducted remotely and states that all jury trials will be paused for a short time to enable appropriate precautions to be put in place (this topic is only of peripheral interest to MHLO readers so please check the Judiciary website or elsewhere for further updates). (2) In relation to family and civil courts it confirms that hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.
- Description of MHA changes in Coronavirus Bill. Simon Burrows, 'Amendments to the Mental Health Act 1983 proposed in the Coronavirus Bill 2020 as originally submitted to Parliament' (Law in the Time of Corona Blog, 23/3/20) — This article contains information under the following headings: (1) Introduction; (2) The Coronavirus Bill - its purpose; (3) The process of detention: sections 2, 3, 4 and 5 MHA; (4) Patients involved in the criminal justice process; (5) Administration of medication without consent; (6) Police powers: places of safety; (7) Transitional Provisions; (8) Deprivation of liberty under the Mental Capacity Act?; (9) Concluding remarks.
- Law Society coronavirus guidance. Law Society, 'Coronavirus (COVID-19) advice and updates' (19/3/20) — This guidance contains information under the headings: (1) Advice for employers; (2) Advice for firm owners, managing partners or senior leaders; (3) Advice for members visiting police stations, prisons or courts; (4) Advice for international firms; (5) Advice for conveyancers; (6) Advice for litigators; (7) Advice for legal aid firms.
- Bar Council coronavirus guidance. Bar Council, 'Coronavirus advice and updates' (March 2020, updated periodically) — This web page contains information and links under the hearings: (1) Bar Council guidance; (2) Bar Council statements; (3) Bar Council, LPMA and IBC advice bulletins; (4) HMCTS updates; (5) Legal Aid Agency updates; (6) General government guidance.
- Telephone and video hearing coronavirus guidance. HMCTS, 'HMCTS telephone and video hearings during coronavirus outbreak' (18/3/20) — This guidance on telephone and video technology has information under the following headings: (1) The decision to use telephone and video hearings; (2) Using existing technology and making new technology available; (3) The rules on using video and audio technology in courts; (4) Proposed legislation
- HMCTS and MOJ coronavirus guidance. HMCTS and MOJ, 'Coronavirus (COVID-19): courts and tribunals planning and preparation' (published 13/3/20 and updated periodically) — Advice and guidance for court and tribunal users during the coronavirus outbreak. This Gov.uk page is updated regularly, contains its own information, and also contains links to many of the relevant documents.
- MOJ coronavirus update. Ministry of Justice, 'COVID-19 Stakeholder Update' (22/3/20) — This email contains (among other things) clarification that the "key worker" category includes: advocates required to appear before a court or tribunal (remotely or in person); other legal practitioners required to support the administration of justice, including duty solicitors and lawyers and others who work on imminent or ongoing court or tribunal hearings; solicitors and barristers advising people living in institutions or deprived of their liberty.
- Parole Board coronavirus guidance. Martin Jones, 'Guidance to members' (Parole Board, 20/3/20) — The guidance from the PB CEO's Twitter account is: (1) The Parole Board is considering changes to guidance, so that fewer cases are directed to oral hearing. (2) The views of the prisoner or representative will be sought but the decision on whether an oral hearing is needed lies with the panel chairman. (3) At oral hearings, panel members, legal representatives, witnesses and victims may be allowed to undertake video/telephone links from home to try to avoid delay to hearings. (4) If one panel member cannot attend owing to coronavirus then the hearing should proceed wherever possible. (5) More cases will be concluded by a single panel member. See also: Parole Board, 'Further guidance to members' (1/4/20)
- MHT coronavirus telecon procedure. Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20) — The following procedure will apply to hearings from Monday 23/3/20: (1) section 2 and conditional discharge recall hearings will be prioritised; (2) no pre-hearing examinations will take place; (3) new cases will be listed as a telephone conference before a single judge; (4) the judge can seek advice by telephone from that day's allocated medical or lay member, then repeat that advice in the telecon and allow submissions; (5) it is suggested that an unrepresented patient be allowed to speak to the judge without others in the room; (6) it is suggested that the decision is not announced. (See the document for full details.)
- Article about coronavirus guidance mentioning MCA. Alex Ruck Keene, 'COVID-19 and MCA - first guidance out' (Mental Capacity Law and Policy, 19/3/20) — This article contains brief comments on the following: (1) DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20); (2) HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20).
- Coronavirus hospital discharge service requirements. HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20) — The covering letter states: "We face an unprecedented challenge in the weeks and months ahead to provide health and social care services that meet the needs of people affected by coronavirus (COVID-19)." The document summary states: "This document sets out the Hospital Discharge Service Requirements for all NHS trusts, community interest companies and private care providers of acute, community beds and community health services and social care staff in England, who must adhere to this from Thursday 19th March 2020. It also sets out requirements around discharge for health and social care commissioners (including Clinical Commissioning Groups and local authorities). ... Implementing these Service Requirements is expected to free up to at least 15,000 beds by Friday 27th March, with discharge flows maintained after that." In Annex A (The Discharge to Assess Model) the MCA is mentioned: "Duties under the Mental Capacity Act 2005 still apply during this period. If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge."
- Department of Health coronavirus ethical guidance. DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20) — The introduction states: "Recognising increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making." There are eight values and principles: (1) respect; (2) reasonableness; (3) minimising harm; (4) inclusiveness; (5) accountability; (6) flexibility; (7) proportionality; (8) community. Under the "respect" heading it states that "those making decisions should ... where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person’s best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf".
- Coronavirus Family Court guidance. President of the Family Divison, 'COVID 19: National Guidance for the Family Court' (19/3/20) — This guidance for all levels of the Family Court and in the High Court Family Division provides detailed guidance on remote hearings and states that "whilst the default position should be that, for the time being, all Family Court hearings should be undertaken remotely either via email, telephone, video or Skype, etc, where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place".
- Scottish MHT's coronavirus guidance. Mental Health Tribunal for Scotland, 'Covid-19 Outbreak - Important Update' (19/3/20) — The MHTS intends to hold all hearings by teleconference from Monday 23/3/20. The update details how this will work in practice, including assisting patients to participate in proceedings.
- Coronavirus court guidance on remote hearings. Lord Chief Justice, 'Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts' (19/3/20) — This message states: "The rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime we have phones, some video facilities and Skype." It contains some outline guidance in relation to social distancing, litigants in person, trials and hearings involving live evidence, prioritising work, possession proceedings, injunctions and committal hearings, civil appeals, and family matters.
- Coronavirus jury trials guidance. Lord Chief Justice, 'Coronavirus (COVID-19): Jury trials' (17/3/20) — (1) No new trial should start in the Crown Court unless it is expected to last for three days or fewer; (2) all cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned; (3) trials currently underway will generally proceed in the hope that they can be completed.
- Summary of legislation relating to coronavirus. James Goddard, 'Coronavirus: emergency legislation' (House of Lords Library, 18/3/20) — This article describes the Health Protection (Coronavirus) Regulations 2020, the proposed Coronavirus Bill (which was introduced after the article's publication), and the Civil Contingencies Act 2004, and provides a list of further reading.
- Progress of Coronavirus Bill in Parliament. Parliament website, 'Coronavirus Bill 2019-21' — This web page contains the links to the full text of the Bill as introduced on 19/3/20, explanatory notes, and other documents.
- Tribunal coronavirus Practice Direction. Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) — During the pilot period, initially six months: (1) decisions should usually be made without a hearing where the rules permit [MHT: rule 35 limits this to Part 5 and strike-out decisions, and certain CTO referrals]; (2) in jurisdictions where a hearing is required unless the parties consent to a determination on the papers [MHT: certain CTO referral cases] Chamber Presidents may allow a paper "triage" scheme in which provisional decisions are provided in cases in which a successful outcome for the applicant/appellant is likely; (3) all hearings should be held remotely where it is reasonably practicable and in accordance with the overriding objective [MHT: rule 1 states that hearings may be "conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication"]; (4) where permitted, hearings will proceed in the absence of parties who have not made an adjournment/postponement application [MHT: a requirement of rule 39 is that the patient has decided not to attend or is unable to attend for reasons of ill health]; (5) tribunals will take into account the impact of the pandemic when considering applications for extension of time for compliance with directions or the postponement of hearings. [Notes in square brackets are not part of the PD itself.]
- Coronavirus tribunal composition (non-MH). Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) — This PD applies to all appeals and applications within the First-tier and Upper Tribunal, except in mental health cases. For the duration of the pilot period, initially six months: (1) a salaried tribunal judge may decide, having regard to urgency among other matters, may depart from the usual rules on panel composition; (2) in such cases, the tribunal may seek the advice of one or more non-legal members to assist with its decision-making, provided the advice is recorded and disclosed to the parties.
- Mental Health Tribunal coronavirus Practice Direction. Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20) — For the pilot period, initially six months: (1) every decision, including those that dispose of proceedings, will be made by a judge alone, unless the CP, DCP or authorised salaried judge appoints two or three people; (2) the tribunal will suggest that CTO reference hearings are dealt with on the papers under rule 35; (3) it will not be "practicable" under rule 34 for any pre-hearing medical examinations to take place during the pandemic (no mention is made of video or telephone conferencing); (4) panels of one of two may seek the advice of one or more non-legal members to assist in decision-making, provided the advice is recoded and disclosed to the parties.
- COP User Group coronavirus update. HHJ Carolyn Hilder, 'Court User Group meeting (28/4/20) cancellation notice' (Letter to stakeholders, 18/3/20) — The next CUG meeting has been postponed from 28/4/20 until 6/10/20, and any issues arising in the meantime should be addressed to the Senior Judge of the Court of Protection's Business Support Officer.
- Official Solicitor coronavirus guidance. Official Solicitor, 'Coronavirus update - property and affairs team' (19/3/20) — The Official Solicitor and Public Trustee Office is operating but, because all staff are working remotely and do not have access to anything sent by post, it is requested that all documents are sent electronically. In order to avoid administrative delay, attachments should be sent as clearly-labelled separate files rather than single large files.
- Information about Coronavirus Bill. DHSC, 'Coronavirus bill: what it will do' (18/3/20) — "The Department of Health and Social Care (DHSC) has identified that to effectively manage a coronavirus outbreak in the UK, we need to introduce new fast-tracked legislation. This will provide us with the legal measures to be able to implement our phased response. This paper sets out, subject to final approvals, the elements of the new legislation and why they are needed." It will involve changes to mental health law.
- Bar Council coronavirus statement. Bar Council, 'Chair of the Bar sets out concerns to MoJ, HMCTS, the Legal Aid Agency, the senior judiciary, the Bar Standards Board and the Inns of Court' (18/3/20) — The Bar Council is "calling for a suspension of all in-person hearings across all jurisdictions, save in very exceptional circumstances where a video link or phone hearing cannot accommodate the interests of justice" for an initial 30-day period.
- Further COP coronavirus guidance. Court of Protection, 'Additional Guidance for Judges and Practitioners arising from Covid-19' (The Hon Mr Justice Hayden, 18/3/20) — (1) This guidance contains the following key messages (paraphrased): (a) hearings of less than 2 hours will be by telephone, but longer hearings will proceed unless the judge decides otherwise; (b) all practitioners must consider the range of options, including Skype and telephone conferences; (c) if directions hearings cannot be dealt with by agreement then a remote hearing should be sought; (d) every sensible effort to alleviate the pressure on court staff should be made; (e) further use of Skype beyond the current limited circumstances is being considered. (2) The guidance answers various questions in relation to: (a) acceptance of electronic signatures; (b) notification of P; (c) interim appointment of professional deputies; (d) service by email; (e) scanned documents and electronic bundles; (f) capacity assessments undertaken via video. (3) A "Core Working Group (COVID-19)" including judges and representatives of the (legal) profession will be set up to look at ongoing interim solutions.
- LAA coronavirus guidance. Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20) — This LAA web page is the main source of Legal Aid guidance, and contains links to various sub-pages.
- MHT coronavirus guidance. Mental Health Tribunal, 'Update on coronavirus situation' (18/3/20) — The position set out in this guidance is that: (1) hearings will continue as planned; (2) hearings require all three panel members, but this may change as part of the contingency plan being prepared; (3) requests to give evidence via telephone should be sent to the mhtcorrespondence email address; (4) hearings are being arranged as telephone conferences when hospitals are in lock-down; (5) listing window extension requests should be submitted to mhtcasemanagementrequests, but extended windows may be part of the contingency plan; (6) the tribunal is pushing for greater provision for paper hearings; (7) pre-hearing medical examinations are continuing, subject to the circumstances of each case, but these could cease if all hearings become telephone reviews. Largely superseded by: Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20).
- COP coronavirus guidance. Court of Protection, 'Visits to P by Judges and Legal Advisors' (The Hon Mr Justice Hayden, 13/3/20) — This guidance from the Vice President of the Court of Protection states that "visits should only be made to P where that is assessed as absolutely necessary", that "[a]lternative arrangements should always be considered first, such as telephone FaceTime and Skype conferencing", and that "[v]isits to care home are to be strongly discouraged" (emphasis in original). Judges should discuss any potential visits with the Regional Lead Judge, and keep informed of the advice on the judicial intranet which is reviewed daily.
- CQC letter to providers about coronavirus. CQC, 'Routine inspections suspended in response to coronavirus outbreak' (16/3/20) — The CQC has written to all registered health and social care providers stating that inspections will stop from 16/3/20 (except in a very small number of cases when there is concern about harm), asking to be notified within 24 hours of any suspected or known case or outbreak of COVID-19, and stating: "We encourage everyone to act in the best interests of the health of the people they serve, with the top priority the protection of life. We encourage you to use your discretion and act in the best way you see fit." (emphasis in original)
- Mind's legal newsletter. Mind, 'Legal Newsletter' (March 2020) — This newsletter contains news under the following headings: (1) Comprehensive mental health service for children still a long way off; (2) Making decisions for someone with fluctuating capacity; (3) National inquiry into the use of restraint in schools; (4) CQC monitoring the Mental Health Act in 2018/2019; (5) New guidance for the Court of Protection; (6) The meaning of "long-term" in the definition of disability; (7) Veganism - Equalities and Human Rights issues in mental health settings; (8) Deloitte highlight poor mental health which costs employers billions; (9) Can an incapacious patient still choose their solicitor? (10) New study about Community Treatment Orders
- Victims and tribunals. Julian Hendy, 'Victims and the Mental Health Tribunal' (UK Administrative Justice Institute, 10/3/20) — In this article Julian Hendy (founder of the Hundred Families charity) argues that the Mental Health Tribunal "could easily be more transparent and accountable to victims if only [it] had the will do to so". He argues for less secrecy and more transparency (making comparisons with the Court of Protection's transparency pilot and the Family Court's transparency review) and a greater role for victims in the tribunal's decision-making process (by analogy with the Parole Board's post-Warboys measures and its welcoming of victim personal statements).
- Medication book. British National Formulary (Pharmaceutical Press, 79th edn 2020) — This edition is published on 20/3/20. The book is updated every March and September, so always check the Amazon page for the latest edition.
- Crown Court trials and sentencing. Martin Picton et al, 'The Crown Court Compendium' (Judicial College, December 2019) — "The main aim of this Compendium is to provide guidance on directing the jury in Crown Court trials and when sentencing, though it contains some practical suggestions in other areas, for example jury management, which it is hoped will be helpful." Both Part I (Jury and Trial Management and Summing Up) and Part II (Sentencing) have content relevant to mental health law.
- LAA coronavirus guidance update. The 27/3/20 update to this guidance states: "Most Mental Health Tribunal (MHT) hearings will now be heard remotely. We can confirm the MHT Level 3 Fee will be payable where representation is carried out at a remote hearing intended to dispose of a case and would have ordinarily taken place in person." See Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20).
- LAA coronavirus guidance update. The 24/3/20 version states: "In situations where it is not possible to get a client signature, digitally or otherwise, please make a note on the file explaining why, countersigned by a supervisor, and also make a note on the application/form when submitted to avoid delays or issues with processing. Please seek a signature at the earliest possible opportunity." See Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20)
- Edge Training courses postponed owing to coronavirus pandemic. Edge Training have postponed their March to June courses owing to the coronavirus pandemic. Some courses may be converted to webinars (to be confirmed). See Events
- MHLA courses postponed owing to coronavirus pandemic. The Mental Health Lawyers Association have postponed their March and April courses owing to the coronavirus pandemic. See Events.
- PELT courses postponed owing to coronavirus pandemic. The following are the new dates: (1) PELT: Mental Health Act Masterclass - Legal Update (Hoylake, 4/6/20); (2) PELT: Introduction to MCA and Deprivation of Liberty Safeguards (Hoylake, 5/6/20); (3) PELT: Introduction to the Mental Health Act (Hoylake, 8/6/20); (4) PELT: Introduction to using Court of Protection including s21A Appeals (Hoylake, 9/6/20); (5) PELT: Accredited - Admission to the MHT Panel (Hoylake, 15/6/20 and 16/6/20); (6) PELT: Court of Protection/MCA Masterclass - Legal Update (Hoylake, 2/7/20); (7) PELT: Depriving Children and Young People of their liberty lawfully (Hoylake, Autumn 2020). See Events for full details.
- Event. Court of Protection User Group Meeting (London, 6/10/20) — Following the postponement of the 28/4/20 meeting, the next meeting will beheld on 6/10/20. Please contact Tolulope Somade (tolulope.somade@Justice.gov.uk) for further information.
- Event. Thalamos: Expert Report Writing - The Fundamentals (Birmingham, autumn 2020) — This course was originally scheduled for 23/4/20 but was postponed owing to the coronavirus pandemic (new date TBC). This intensive, practical, one-day course covers the fundamentals of expert report writing and what is required from the expert witness giving medical opinions within a legal context. It will cover the key analytical and evidential writing skills necessary to deliver the very best reports to instructing lawyers and the courts. This course is aimed at psychiatrists, but is suitable for any medical professionals looking to improve their report writing or preparing for writing in the future. Speaker: Giles Eyre. Cost: £205 (standard); £180 (trainee). See Ticket Tailor website for further details and booking information.
- Event. Edge Training: AMHP Refresher and Re-approval course (webinar, 21/5/20, 22/5/20 and 26/5/20) — This 3-day course has been rescheduled as an Edge Training webinar (home-based preparation each morning, and webinar in the afternoon) at a reduced price. It prepares AMHPs for re-approval as well as providing 18 hours' training to meet the annual Regulations requirement. Speakers: Rob Brown and Christine Hutchison. Cost £300 + VAT. See Edge Training website for further details and booking information. (Originally a RAB course scheduled for 1-3 Jun 20 at the London Boroughs' training venue, priced £400 + VAT.)
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