November 2011 update
From Mental Health Law Online
- R (Modaresi) v SSH (2011) EWCA Civ 1359 — The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles.
- Cheshire West and Chester Council v P (2011) EWCA Civ 1333 — The council sought a costs order against P in relation to the Court of Appeal proceedings. (1) The general rule on appeals from the COP to the Court of Appeal is, in accordance with CPR 44.3(2)(a), that the unsuccessful party will be ordered to pay the costs (subject, where relevant, to costs protection under s11 Access to Justice Act 1999). (2) The general rule in COP welfare cases (that there be no order as to costs) was irrelevant, as was the council's discreditable conduct at first instance. (2) Other factors were taken into account and the court made no order as to costs: 'Among the primary reasons for making no order is that the reason for and the importance of the appeal was not really at all about how P will be dealt with. The point of major importance for the local authority, and indeed local authorities generally, was how often they have to come back to court in this and other like cases.'
- Cheshire West and Chester Council v P (2011) EWCA Civ 1257 — P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation."
- Hadzic and Suljic v Bosnia Herzegovina 39446/06 (2011) ECHR 911 — The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of Article 5(1); the applicants were awarded compensation of €15,000 and €25,000 respectively.
- R v Shah (2011) EWCA Crim 2333 — Following a special verdict of not guilty by reason of insanity, a restricted hospital order was imposed; an appeal, relying on post-sentence medical evidence, was made against the restriction order. (1) In exceptional cases the court can consider good progress after sentencing, but in this case the task was to decide whether, on the material before him on the date of sentence, the judge's sentence was wrong in principle or manifestly excessive: it was not. (2) The sentence provides a mechanism for release by a Tribunal from the restriction order and the full rigour therefore of the hospital order [this is incorrect], so the appeal court should not taken over the function of that body.
- Re RB (Adult); A London Borough v RB (Adult) (No 4) (2011) EWHC 3017 (Fam) — There is no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults, so it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court.
- R v Goucher (2011) EWCA Crim 2473 — On appeal, the restriction order was quashed: the judge had applied the correct test (whether it was necessary to protect the public from serious harm) but, as confirmed by a psychiatric report prepared for the appeal, he had got the answer wrong. [Summary based on All ER (D) report.]
- R v Heaney (2011) EWCA Crim 2682 — The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character.
- De Louville De Toucy v Bonhams 1793 Ltd (2011) All ER (D) 32 (Nov) — (1) There was no inconsistency between the Insolvency Rules (defining an 'incapacitated person') and the CPR (defining a 'protected party'). (2) The registrar should not have declared the claimant bankrupt: he ought to have (a) been aware that the claimant was incapable, (b) adjourned the case for a representative or litigation friend to be appointed, and (c) heard representations from such a person. (3) On the evidence, the financial situation was complex and, without proper investigation, it was impossible to be sure that it was appropriate to make a bankruptcy order, so the order was set aside and the matter referred to the registrar to be heard again. [Summary based on All ER (D) report.]
- R (BA) v SSHD (2011) EWHC 2748 (Admin) — Judicial review of detention pending deportation (psychiatric background). [Summary required.]
- R v Lavender (2011) EWCA Crim 2420 — (1) On the material before the sentencing judge, there was nothing wrong in principle with an extended sentence. (2) However, given the recent psychiatric evidence, it was now arguable that the option of a hospital order with or without a restriction order needed to be considered, so leave to appeal was given and a representation order was granted.
- R (Smith) v LB Camden (2011) EWCA Civ 1207 — Unsuccessful application for permission for second appeal against strike-out of claim for want of compliance with s139. (The claim was for damages of £100 billion for wrongful removal from his flat and for being forced to live in various mental health institutions where he claimed to have been assaulted many times.)
- R v Clark (2011) EWCA Crim 2516 — The defendant appealed against a sentence of 56 months' imprisonment for GBH (financial worries had led him to decide to kill his wife and himself). The sentencing guidelines could never have been intended to apply to such an exceptional case; the sentence was replaced with a community rehabilitation order with a mental health treatment requirement.
- Hossack v Legal Services Commission (2011) EWHC 2700 (Admin) — Unsuccessful judicial review of a decision of the LSC rejecting the claimant's tender for the provision of legal services in the field of community care following a competitive tendering exercise in 2010.
Case summaries - OPG
- Re Clare (2011) COP 8/9/11 — The donor made two LPAs, each appointing an attorney and a replacement attorney. In each she directed as follows: "My Attorney may at any time appoint a substitute to act as my Attorney and may revoke any appointment without giving a reason. Each appointment is to be in writing signed by my Attorney. Every substitute has full powers as my Attorney as if appointed by this Deed, except the power to appoint a substitute." On the application of the Public Guardian the provision was severed as being a plain breach of section 10(8)(a) of the MCA, which provides that an LPA cannot give the attorney power to appoint a substitute or successor. [OPG summary - LPA case.]
- Re Dhir (2011) COP 15/11/11 — The donor set out eight restrictions, one of which was: "My attorney must not sell any of my properties unless it is required for my wife's medical treatment." On the application of the Public Guardian the restriction was severed on the ground that it authorised the attorneys to make gifts beyond the scope of the statutory power set out in section 12 of the MCA 2005. [OPG summary - LPA case.]
- Re Hamilton (2011) COP 25/10/11 — The donor appointed one primary attorney and one replacement attorney. On page 5 of the LPA the donor inappropriately ticked the box indicating that the attorneys were appointed to act jointly for some decisions and jointly and severally for other decisions, and continued: "My No 1 Attorney will make all decisions re my everyday expenses and decisions [and] will make joint decisions with the Replacement Attorney in reference to any large decisions re the selling of investments, property and the eventual need of a nursing home etc." On the application of the Public Guardian the provision was severed on the ground that, having appointed the attorneys to act successively, the donor could not authorise them to make any decisions concurrently, whether jointly or jointly and severally. [OPG summary - LPA case.]
- Re Stewart (2011) COP 9/11/11 — The donor included the following direction in the guidance section: "I authorise my attorneys to refuse or consent to my deprivation of liberty." The Public Guardian applied for severance on the ground that: "The deprivation of the donor's liberty is only lawful if ordered by the court or done in accordance with the procedures prescribed by law under the Mental Capacity Act 2005 as amended by the Mental Health Act 2007. The donor does not have power to authorise her attorneys to consent to the deprivation of her liberty in the absence of a court order or going through the Deprivation of Liberty Safeguarding procedures." The court determined that the direction was invalid for the reasons given by the Public Guardian. [OPG summary - LPA case.]
- Re McGregor (2011) COP 16/11/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others, and directed as follows: "Jointly - decisions on sale of house. Decisions on type of care received if no longer able to stay in own home. Severally - financial matters regarding bank accounts and general cash flow." On the application of the Public Guardian the words "decisions on sale of house" and "Severally - financial matters regarding bank accounts and general cash flow" were severed because they purported to give Health and Welfare attorneys authority to make decisions regarding the donor's property and financial affairs. (The result would be that, by implication, the attorneys would be able to decide jointly and severally all matters other than the type of care the donor would receive if no longer able to stay in his own home.) [OPG summary - LPA case.]
- Re Hurren (2011) COP 28/9/11 — The Public Guardian refused to register the instrument as an LPA because the Part B certificate had been signed before the donor signed Part A, in contravention of Regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (The donor had subsequently lost capacity.) On the attorney's application, the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument was to be treated as if it were in the prescribed form and directed registration. The Public Guardian applied to set aside the order on the ground that paragraph 3(2) did not apply in the case of defective execution. The court set aside the order, and confirmed that the discretion given to the court under paragraph 3(2) applies only to an instrument which is not in the prescribed form and does not apply to any prescribed requirements in connection with its execution. [OPG summary - LPA case.]
- Re Steiner (2011) COP 17/10/11 — The donor appointed two attorneys to act jointly. She then gave the following guidance: "Should the need arise relating to the management of my financial affairs and my business interests, whoever at the time is acting for me personally as my accountant or solicitor shall adjudicate over my personal financial interests and whoever is acting professionally for me in respect of my business interests either my accountant or solicitor shall adjudicate over my business interests." On the application of the Public Guardian the court severed the provision from the LPA on the ground that it could potentially oust the jurisdiction of the court. [OPG summary - LPA case.]
- Re Wormsley (2011) COP 24/10/11 — The donor appointed two primary attorneys and two replacement attorneys, and directed them to act jointly and severally. He further directed as follows: "If a replacement attorney is required to replace an original attorney, the two replacement attorneys shall decide which one of them shall serve as attorney." On the application of the Public Guardian the court severed the provision as being inconsistent with the joint and several appointment of the replacement attorneys. [OPG summary - LPA case.]
- Re Clarke (2011) COP 19/9/11 — The donor made an LPA for property and financial affairs, appointing her husband and daughter as attorneys and her other two daughters as replacement attorneys. She also made an LPA for health and welfare, appointing her husband and three daughters as attorneys. When an application was made to register the instruments, the husband objected on the ground that the instruments had not been properly witnessed. He alleged that the witness had not been in the house when the donor signed, but had added his signature later. The court preferred the evidence of the witness and one daughter, to the effect that the donor had signed at the dining room table and that the witness was in an adjacent room and could see her sign through glass doors separating the two rooms. Applying the old case Casson v Dade (1781), the court held that the instruments had been properly witnessed. (The husband also objected on the ground that the donor lacked capacity to make an LPA, but this was also dismissed. The donor's GP had acted as certificate provider and the court commented on the difficulties facing GPs who act as certificate providers within the time constraints of an appointment at the surgery). [OPG summary - LPA case.]
- Re DC (Judicial Review) (2011) CSOH 193 — Various questions of Scots law arose in this judicial review claim for damages for unlawful detention. [Summary required.]
- AB v MHTS (2011) ScotSC B694/11 — Unsuccessful challenge to MHTS decision. [Summary required.]
- Re P; A Local Authority v PB (2011) EWHC 2675 (COP) — Case concerning residence, contact, and deprivation of liberty. [Summary required.]
- Re FL; HN v FL and Hampshire CC (2011) EWHC 2894 (COP) — 'The primary issues requiring determination by the court were as follows: (1) FL’s capacity to make personal welfare decisions; (2) FL’s mental health needs; (3) FL’s medication; (4) The Z Home’s ability to meet FL’s physical and mental health needs; (5) Whether HN had conducted herself inappropriately or whether such conduct was justified; (6) Whether HCC and or The Z Home conducted themselves inappropriately or whether such conduct was justified; (7) Depending on the outcome of (5) and (6) whether restrictive orders should be made.' 'IPL were permitted to publish details about the case subject to the restrictions in that order.' [Summary required.]
- Re HM; SM v HM (2011) COP 11875043 4/11/11 — 'The issue is whether it is ever, and if so in what circumstances, appropriate for the Court (ie the Court of Protection) to authorise the creation of a trust – in particular a personal injury trust - of P’s assets as the means of administering those assets for him, rather than appointing a deputy for him under s 16 of the 2005 Act.' [Summary required.]
- LB Tower Hamlets v BB (2011) EWHC 2853 (Fam) — 'There are two sets of proceedings which concern BB. In the first, her litigation friend, sought guidance from the court under sections 16 and 18(k) of the Mental Capacity Act 2005 about the conduct of proceedings concerning BB and declarations that she a) lacks capacity to conduct those proceedings and b) it is in her best interests that, in the event that her marriage to MA is a valid marriage, it be annulled or that there be a declaration that it is not recognised by the law of England and Wales. In the second, the local authority as substituted applicant seeks declarations that BB a) lacks the capacity to litigate, b) lacks capacity to decide where she should live, with whom she should have contact, who should provide her with care, what care should be provided to her and the medical treatment she should receive for her mental disorder. The court is asked to make decisions on her behalf as respects those questions which the court determines she is incapacitated to answer.' [Summary required.]
- Court of Protection (Amendment) Rules 2011 — These Rules add rule 7A to the Court of Protection Rules 2007 to enable the Senior Judge or the President to authorise a court officer to exercise the jurisdiction of the court in such circumstances as set out in the relevant practice direction. Such a court officer: (a) must refer to a judge any application, proceedings or any question arising in any application or proceedings which ought, in the officer’s opinion, to be considered by a judge; (b) may not deal with any application or proceedings or any question arising in any application or proceedings by way of a hearing; and (c) may not deal with an application for the reconsideration of an order made by that court officer or another court officer. In force 12/12/11.
- Tribunal Procedure (Amendment) Rules 2011/651 — These Rules amend the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 so that Tribunal applications can be made by email with a typed signature rather than requiring a handwritten signature. In force 1/4/11.
- Mental Capacity Act 2005 (Appropriate Body) (England) Amendment Regulations 2011 — These Regulations amend the definition of 'appropriate body' (i.e. a body which can approve certain research) in the Mental Capacity Act 2005 (Appropriate Body) (England) Regulations 2006 to clarify that, in the definition of an appropriate body, a committee recognised by the Secretary of State means a committee recognised by the Secretary of State in exercise of his powers in section 2 of the National Health Service Act 2006. See Explanatory Memorandum for background. In force 1/12/11.
- Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011 — 'These Regulations contain provisions about arrangements for the appointment of Independent Mental Health Advocates. They contain provisions about who may be appointed to act as an IMHA, and persons who may be visited and interviewed by an IMHA for the purpose of providing help to a Welsh qualifying patient who has been admitted under section 4 (admission for assessment in cases of emergency) of the Mental Health Act 1983' (extract from Explanatory Note). Made 18/10/11; in force on 2/4/12 in relation to Welsh qualifying informal patients, and otherwise on 3/1/12.
- Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011 — 'These Regulations contain provisions about mental health assessments for former users of secondary mental health services' (extract from Explanatory Note). Made 18/10/11; in force 6/6/12.
- Family Procedure (Modification of Enactments) Order 2011/1045 — This Order amends the Court of Protection Rules 2007 by amending the text of rule 39 (Application of Family Procedure (Adoption) Rules 2005). In force 6/4/11.
- Legal Services Act 2007 (Consequential Amendments) Order 2009/3348 — This Order amends the Court of Protection Rules 2007 by amending the definition of 'legal representative' in rule 6. In force 1/1/10.
- Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010/976 — 'This Order amends certain statutory provisions and makes other provision in consequence of, or for giving full effect to, the Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010. That Order amends Schedule 3 to the Northern Ireland Act 1998 so that certain policing and justice matters (as defined in section 4(6) of the 1998 Act) cease to be reserved matters and become transferred matters.' (extract from explanatory note) Amends MHA 1983 s82, s82A, s86 and s139.
- Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010/813 — This Order makes amendments to primary legislation, including the MHA 1983, consequential on the replacement, for England, of the registration of health and social care providers under Part 2 of the Care Standards Act 2000 with the new registration system under Part 1 of the Health and Social Care Act 2008. Amends s24, s34, s119 and s145. In force 1/10/10.
- Postal Services Act 2011 — 'An Act to make provision for the restructuring of the Royal Mail group and about the Royal Mail Pension Plan; to make new provision about the regulation of postal services, including provision for a special administration regime; and for connected purposes.' (preamble) Amends MHA 1983 s134.
- Second reading of Mental Health (Discrimination) Bill, Hansard HL Deb, 25 November 2011, col 1283. Mental Health (Discrimination) Bill 2010 — This Private Member's Bill, introduced by Lord Stevenson, received its first reading on 6/4/11. If enacted it would: (1) Repeal s141 MHA 1983 so that the seat of an MP is no longer vacated upon long-term detention under the Act; (2) amend the Juries Act 1974 so that (in addition to the existing category of those lacking capacity) only those liable to be detained under the MHA are excluded from jury service (see jury service page for current provisions); (3) amend the Companies (Model Articles) Regulations 2008 so that a person no longer ceases to be a director when 'by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have'; (4) amend the School Governance (Constitution) (England) Regulations 2007 so it is no longer the case that '[a] person is disqualified from holding or from continuing to hold office as a governor of a school at any time when he is detained under the Mental Health Act 1983'. See Mental Health (Discrimination) (No. 2) Bill 2012.
- Second Reading of LAPSO Bill, Hansard HL Deb, 21 November 2011, col 820. See Legal Aid, Sentencing and Punishment of Offenders Bill 2011
- Hansard HL Deb, 26 October 2011, col 831. This is the transcript of a debate in the House of Lords on a motion to annul the Community Legal Service (Funding) (Amendment No.2) Order 2011 (the order which reduces civil fee rates by 10%); following the debate the motion was withdrawn. See Legal Aid News
- Mind, 'Health and Social Care Bill: Amendment 236B' (November 2011). Mind's proposal: 'Our amendment would still allow for the wording "Primary Care Trusts" to be replaced with "clinical commissioning groups" in the Mental Health Act, and for consequential amendments resulting from the abolition of PCTs. However, our amendment would: (1) Retain the joint duty on CCGs and social services authorities, (2) ensure that CCGs continue to arrange for provision of services under s117 in co-operation with relevant voluntary agencies, (3) ensure that the arrangement of services by CCGs under s117 are not limited to services arranged under section 3 or section 3A of the NHS Act (by deleting proposed subsection (2E)), (4) ensure that the duty on CCGs will not be regarded as a duty under section 3 NHS Act. This means it remains a freestanding duty under section 117 MHA, and the possibility of charging for aftercare is removed (by deleting proposed subsection (2F)).' See Mind (Charity)
Mental Capacity Act
Court of Protection
- Three Court of Protection Practice Directions were amended on 25/11/11: (1) Practice Direction 10AA (Deprivation of liberty applications) has been amended to reflect fact that the Court of Protection has moved. The DOLS Application Branch's new contact details are: Court of Protection, Royal Courts of Justice, Thomas More Building, Strand, London WC2A 2LL, DX 44450 Strand, tel 0300 456 4600. The PD also contains a new internet address for the relevant court forms. (2) Practice Direction 14B (Depositions) has similarly been updated to reflect the new address. (3) Practice Direction 19A (Costs in the Court of Protection) has been amended to replace 'Supreme Court Costs Office' with 'Senior Court Costs Office'. See Court of Protection Practice Directions
- Link added to Guardian newspaper's list of Court of Protection articles. Selected articles: Amelia Hill, 'Court of protection should be open to public scrutiny, says leading judge' (Guardian, 6/11/11); Amelia Hill, 'The court of protection: defender of the vulnerable or shadowy and unjust?' (Guardian, 6/11/11); Martin Terrell, 'Court of protection must balance needs of vulnerable with rights of family' (Guardian, 7/11/11). See Court of Protection
Office of the Public Guardian
- Hansard HL, 18 October 2011, col WS14. Since the implementation of the MCA 2005, the Office of the Public Guardian carried out insolvency checks on potential LPA donees; to save money, this practice has ceased. See Lasting Power of Attorney
- BBC Radio 4: The Report: Deprivation of Liberty Safeguards. This programme, broadcast at 2000hrs on Thursday 24/11/11, discusses whether the DOLS are adequate, whether they are understood by care workers, and why they are so unevenly applied across the country. See DOLS#Other links
- John Leighton, 'Deprivation of liberty safeguards guide for care homes' (Community Care, 7/11/11) and Mithran Samuel, 'Helping care home managers navigate the deprivation of liberty process' (Community Care, 10/11/11). See DOLS#Other links
- Mental Health Alliance, 'The Deprivation of Liberty Safeguards' (pre-publication draft of chapter of forthcoming report, 25/11/11). The key issues are stated to be: '(1) The DoLS scheme is not fit for purpose in its present form – implementation has been extremely uneven, with the result that the protections the scheme is supposed to afford to vulnerable people are effectively unavailable in large parts of the country; (2) Its review and appeals processes do not comply with the requirements of ECHR Article 5(4), largely negating its intended purpose; (3) The scheme is incredibly bureaucratic and wasteful of scarce professional resources, and the burdensome paperwork itself discourages use; (4) Nevertheless, where agencies have managed, with a great deal of effort, to make it work reasonably well, DoLS does perform a valuable protective function and has achieved at least some of the objectives set out for it, demonstrating that there is a need for a measure of this kind.'
- Jaspreet Phull, 'The Deprivation of Liberty Safeguards: observations and limitations' (2011) 51 Med Sci Law 187 (subscription only). Abstract: 'The recently introduced Deprivation of Liberty Safeguards (DoLS), which came into force in April 2009, was created to protect the liberty of people lacking capacity admitted to care homes and hospitals in England and Wales. This paper discusses observations and some limitations of the DoLS for protecting the liberty of residents within institutional settings. The regulation, safeguards and recent relevant case law are examined critically. The author suggests that their effectiveness may be limited by the under-recognition of cases, ambiguity and limited safeguards within the statute. The paper concludes that the DoLS legislation has been a positive step towards protecting the liberty of those lacking capacity but that limitations present could undermine the purpose of the legislation.' See DOLS
- Ruth Cairns et al, 'Mired in confusion: making sense of the Deprivation of Liberty Safeguards' (2011) 51 Med Sci Law 228 (subscription only). Extract from abstract: 'Participants and setting Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London. Results Lawyers attributed key importance to a patient's ‘freedom to leave’ and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty. Conclusions Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.' See DOLS
- Links to articles added. (1) Tim Ross, 'Dementia doctors may face jail for using chemical cosh' (Daily Telegraph, 2/11/11). (2) Pulse, 'Minister warns GPs could require PCT permission to prescribe antipsychotics - or face jail' (3/11/11). Health Minister Paul Burstow claims that 'Antipsychotic drugs prescribed against the evidence, without clear clinical justification, amount to a deprivation of liberty'. (3) Mithran Samuel, 'Burstow bid to use Dols to curb antipsychotics use "draconian"' (Community Care, 10/10/11). See DOLS#'Chemical cosh'
Ministry of Justice
- Ministry of Justice, 'Appointments and Diversity: A Public Consultation' (Consultation paper CP19/2011, 21/11/11). 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. Consultation runs from 21/11/11 to 13/2/12. See Consultations
- Ministry of Justice consultation: Fees in the High Court and Court of Appeal (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.' (introductory text)
Department of Health
- Dept of Health, 'Cross-border transfers of patients under the Mental Health Act' (gateway ref 14651, 2/9/10). Guidance and forms in relation to the transfer of patients to Scotland, Northern Ireland, the Channel Islands and the Isle of Man. See New cross-border arrangements for leave and transfer
- NHS Information Centre, 'Mental Health Bulletin - Fifth report from Mental Health Minimum Dataset (MHMDS) annual returns, 2011' (29/11/11). See Statistics
- NHSIC, 'Guardianship under the Mental Health Act 1983 - England 2011' (8/9/11). Key facts: (1) The number of new Guardianship cases fell by 22 per cent between 2009/10 and 2010/11 from 435 to 339 cases, which is the largest reduction in new cases since 2001/02, the first year analysed in this report; (2) For the fifth consecutive year there was a decrease in the number of continuing Guardianship cases open at the end of the year; (3) There are large regional variations in the rates of Guardianship usage; (4) Variations in the rate of Guardianship usage are also noticeable across different types of authorities; (5) These variations in Guardianship usage are also very apparent at Local Authority level. See Statistics
- NHS Information Centre, 'Inpatients formally detained in hospitals under the Mental Health Act 1983 and patients subject to supervised community treatment, Annual figures, England 2010/11' (11/10/11). Extract from summary: 'The latest figures for 2010/11 suggest that the number of people subject to restrictions under the Mental Health Act continues to rise. Whilst the number of formal admissions for treatment and new Community Treatment Orders (CTOs) has decreased since the previous reporting period, the overall number of people remaining in detention or subject to a CTO is higher than before. The number of uses of Place of Safety Orders has also increased. The figures also show major changes in the number of formal detentions, uses of Place of Safety Orders and CTOs.'
- Mind, 'Legal E-newsletter' (issue 10, November 2011). The edition contains the following articles and case reports: (1) Section 117 of the Mental Health Act 1983 and the Health and Social Care Bill 2011; (2) Reasonable adjustments – how the law is developing; (3) Enhanced Criminal Record Checks (ECRC): Disclosure of Mental Health History; (4) Accommodation provided by social services under s21 of the National Assistance Act 1948; (5) Legal representation in mental health cases (feature by Richard Charlton, MHLA chairman); (6) AH v West London MH NHS Trust (2011) UKUT 74 (AAC) (public hearing); (7) DN v Northumberland Tyne and Wear NHS Foundation Trust (2011) UKUT 327 (AAC) (MHA/MCA interface); (8) CX v A Local Authority (2011) EWHC 1918 (Admin) (NR consultation); (9) Jackson v Liverpool City Council (2011) EWCA Civ 1068 (employer references); (10) Rabone v Pennine Care NHS Trust (2010) EWCA Civ 698 (Article 2: recently heard by the Supreme Court). See Mind (Charity)
- 39 Essex Street, 'Court of Protection Newsletter' (issue 15, November 2011). The case mentioned in this special issue is Cheshire West and Chester Council v P (2011) EWCA Civ 1257. See 39 Essex Street COP Newsletter
- 39 Essex Street, 'Court of Protection Newsletter' (issue 14, October-November 2011). The cases referred to are: Re S; D v R (the deputy of S)  EWHC 3748 (COP), Sharma v Hunters  EWHC 2546 (COP), Re GM; FP v GM and A Health Board  EWHC 2778 (COP), LG v DK  EWHC 2453 (COP), A Local Authority v DL  EWHC 2675 (Fam), R (Sessay) v South London and Maudsley NHS Foundation Trust  EWHC 2617 (QB), DN v Northumberland Tyne and Wear NHS Foundation Trust  UKUT 327 (AAC). Also mentioned is the Law Commission report on kidnapping, which includes a discussion of Re HM; PM v KH  EWHC 870 (Fam). See 39 Essex Street COP Newsletter
- LSC, 'New prior authority form to instruct civil legal aid experts' (CLS News, 9/11/11). New form APP8A introduced, together with guidance document. See Legal Aid News
- Consultation on the draft code of practice to parts 2 and 3 of the Mental Health (Wales) Measure 2010 (18/10/11 to 16/01/12). '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.' See Consultations#National Assembly for Wales
- Text of Welsh update email added. 'On Tuesday 8 November 2011 the Minister for Health and Social Services laid before the National Assembly for Wales the Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011 along with an accompanying Explanatory Memorandum. These Regulations are being introduced under Part 2 of the Mental Health (Wales) Measure 2010.' (extract). See Mental Health (Wales) Measure 2010
- Welsh legislation consultation. 'On 7 November 2011 the Welsh Government began a formal consultation on the draft Mental Health (Primary Care Referrals and Eligibility to Conduct Primary Mental Health Assessments) (Wales) Regulations 2012. These Regulations propose arrangements which will enable GPs to refer individuals to local primary mental health support services (including individuals who are not registered with them). The Regulations also set out eligibility requirements for those who may undertake primary mental health assessments. The consultation period begins on 7 November 2011 and all responses must be submitted to the Welsh Government's Mental Health Legislation Team no later than 27 January 2012.' (Text of circular email 8/11/11.) See Mental Health (Wales) Measure 2010
- Link added - 'National Archives: CQC website'. Some documents are not available on the current CQC website, but many of these can be located in these archives
- RCPsych, 'Being sectioned (in England and Wales)' (November 2011). See Royal College of Psychiatrists
- Martin Beckford, 'Man kept in hospital for three months over infection fears' (Telegraph, 24/10/11). See Public Health (Control of Disease) Act 1984
- Leicester Mercury, 'Woman who abused patients has jail term cut' (5/11/11). See MCA 2005 s44
- Kirsten Sjvoll, 'Case Preview: Rabone & Anor v Pennine Care NHS Trust' (UKSC Blog, 10/11/11). See Rabone v Pennine Care NHS Trust (2010) EWCA Civ 698
- UKPA, 'Brain-damage woman ruling challenge' (26/10/11). Applicant seeks leave to appeal to Court of Appeal. See Re M; W v M (2011) EWHC 2443 (COP)
- Philip Hoult, 'Local authority wins appeal in landmark ruling on deprivations of liberty' (Local Government Lawyer, 10/11/11); O'Donnells Solicitors, 'Article 5 – The Court of Appeal Has Another Go!' (10/11/11). See Cheshire West and Chester Council v P (2011) EWCA Civ 1257
- Thanks to the following: Ben Troke of Browne Jacobson Solicitors for adding a summary of Cheshire West and Chester Council v P (2011) EWCA Civ 1257; James Batey of the Court of Protection for providing transcripts of Re FL; HN v FL and Hampshire CC (2011) EWHC 2894 (COP) and Re HM; SM v HM (2011) COP 11875043 4/11/11
- The following pages have been created or tidied up: Court of Protection, Court of Protection Rules 2007, Court of Protection Practice Directions, Court of Protection forms
- The text of the Mental Health Act 1983 on this website has been updated: (1) the Postal Services Act 2011 amends s134, with effect from 1/10/11; (2) the Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010/813 amends s24, s34, s119 and s145, wef 1/10/10; (3) the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010/976 amends s82, s82A, s86 and s139, wef 12/4/10. See Mental Health Act 1983
- On 30/11/11, Mental Health Law Online contained 1096 categorised cases
- See November 2011 chronology for this month's changes to the website in date order