November 2018 update

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Website

  • 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.

Case law

  • Deprivation of liberty case (MM). SSJ v MM [2018] UKSC 60The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient.
  • Contact case. SR v A Local Authority [2018] EWCOP 36 — "At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary."
  • DOL case (child). Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 — "The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction."
  • Ordinary residence case. R (Western Health and Social Care Trust) v Secretary of State for Health [2018] NIQB 67 — "The impugned determination is that of the [Secretary of State for Health of England and Wales] to the effect that a lady whom I shall describe as CM (aged 32 years) is 'ordinarily resident' in Northern Ireland and has been thus since 2009, with the result that the care management and funding responsibilities for her have fallen on the Trust, rather than [the London Borough of Enfield], since that date. In very brief compass, lying at the heart of this challenge is a funding dispute between the Trust and Enfield."
  • CQC prosecution. CQC v Hillgreen Care Ltd [2018] MHLO 50(1) The care home provider charged with failing between 1/4/15 and 1/12/15 to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by failing to provide care and treatment in a safe way for service users (reg 12) and failing to put in place, and operate effectively, systems and processes to protect service users from abuse, including sexual abuse (reg 13). The provider had known since 2004 that its resident XX posed risk a of causing sexual abuse. Following an allegation of anal rape of a woman in 2008 his care plan stated that he "identifies with both male and female around his sexual orientation" and that he "needs to be supported at all times and not to be left alone unsupervised when around other service users and when in the community". XX admitted to having sex with two other residents, neither of whom had capacity to consent: a female resident AA in April 2015 and a male resident YY on 1/11/18. The provider had not followed the care plan and the district judge concluded that "[t]he incident with YY could not have happened had there been an extra member of staff on duty to watch XX and where he went." It was found guilty of both charges and was fined £300,000. (2) The judgement states that the CQC's inspection of the care home and seizure of documents took place on 27/7/17: this is the same day as a critical article in the Times (Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17)). Information about the chronology can be found in the CQC's subsequent report (CQC, 'CQC publishes independent investigation into its regulation of 14 Colne Road' (press release, 13/6/18)).
    • Transcript now available in CQC v Hillgreen case. CQC v Hillgreen Care Ltd [2018] MHLO 50(1) The care home provider charged with failing between 1/4/15 and 1/12/15 to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by failing to provide care and treatment in a safe way for service users (reg 12) and failing to put in place, and operate effectively, systems and processes to protect service users from abuse, including sexual abuse (reg 13). The provider had known since 2004 that its resident XX posed risk a of causing sexual abuse. Following an allegation of anal rape of a woman in 2008 his care plan stated that he "identifies with both male and female around his sexual orientation" and that he "needs to be supported at all times and not to be left alone unsupervised when around other service users and when in the community". XX admitted to having sex with two other residents, neither of whom had capacity to consent: a female resident AA in April 2015 and a male resident YY on 1/11/18. The provider had not followed the care plan and the district judge concluded that "[t]he incident with YY could not have happened had there been an extra member of staff on duty to watch XX and where he went." It was found guilty of both charges and was fined £300,000. (2) The judgement states that the CQC's inspection of the care home and seizure of documents took place on 27/7/17: this is the same day as a critical article in the Times (Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17)). Information about the chronology can be found in the CQC's subsequent report (CQC, 'CQC publishes independent investigation into its regulation of 14 Colne Road' (press release, 13/6/18)).
  • Medical treatment case. Leeds Teaching Hospitals NHS Trust v JF [2018] EWCOP 32 — "... N suffered a cardiac arrest in the taxi as she was arriving at Leeds General Infirmary and as a result for some 20 minutes or so ceased breathing and suffered a severe hypoxic injury. In consequence she has suffered a very significant and severe brain injury. The position now and since then has remained that she is essentially unconscious. ... The issues before me have been threefold. First, whether or not the tracheostomy tube should be removed. ... The second issue has rather retreated in significance. I have to consider whether or not N should receive an escalation of invasive care or treatment, in particular vasoactive drugs, renal replacement therapy, ventilation treatment that requires central venous action or CPR. ... That brings me on to morphine, and that is a difficult issue."
  • Child DOL case. Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance."
  • Care plan/CAMHS case. Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance."
  • Family court case. Z v Kent County Council [2018] EWFC B65This family court case - subtitled 'Revocation of placement order - Failure to assess Mother's capacity and Grandparents' - has a detailed consideration of the MCA 2005. Extract: "The law - capacity, presumption of capacity and determining protected party status. This issue is governed primarily by the Family Procedure Rules 2010 Part 15 and Practice Directions 15A and 15B, and by the Mental Capacity Act 2005. Additionally, there is guidance provided by the Department for Children, Schools and Families’ publication 'The Children Act 1989 Guidance and Regulations', and in April 2010 the Family Justice Council published guidance for proceedings and pre-proceedings called 'Parents who Lack Capacity to Conduct Public Law Proceedings' [updated in April 2018]."
  • Disciplinary case. Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB) — "The Claimant, Dr. Caroline Ardron, is a very experienced consultant psychiatrist employed by the Defendant [Trust]. The Trust considers it appropriate for Dr. Ardron to face disciplinary proceedings for alleged gross misconduct relating to her work at HMP Lewes in late 2015 and early 2016. At that time, Dr. Ardron was the responsible clinician of a young prisoner known as JO, who committed suicide by hanging himself on 12 February 2016. The proposed disciplinary proceedings relate, almost exclusively, to Dr. Ardron's care of JO including her record-keeping in that respect. Dr. Ardron does not suggest that disciplinary proceedings are inappropriate as a matter of principle, or that there is no case of misconduct that could be brought against her. However, she contends that there is no basis for a charge of gross misconduct; a charge which, if established, could potentially lead to the termination of her contract and serious ramifications for her including her prospects of obtaining subsequent employment. On 18 June 2018, an interlocutory injunction was granted by Mr. Pushpinder Saini QC, sitting as a Deputy Judge of the High Court, which restrained the Trust from proceeding until further order with a disciplinary hearing into gross misconduct. The question for resolution now is whether that injunction should be made permanent. That issue depends upon whether Dr. Ardron can prove that the Trust will breach her contract of employment by holding the proposed disciplinary hearing on a charge of gross misconduct. The Trust's intention to proceed to such a hearing was communicated in its letter to Dr. Ardron dated 20 March 2018, and the issue is therefore whether the Trust should be prevented from operating on the basis of that letter. The resolution of that issue depends principally upon the question of whether the facts found in an investigation into Dr. Ardron's conduct could, taken at their highest, amount to gross misconduct."

Legislation

  • Legislation. Mental Health Units (Use of Force) Act 2018 — Preamble: "An Act to make provision about the oversight and management of the appropriate use of force in relation to people in mental health units; to make provision about the use of body cameras by police officers in the course of duties in relation to people in mental health units; and for connected purposes." Royal assent: 1/11/18. The power to make regulations (s16) came into force when the Act was passed, and regulations will set out when the remainder comes into force.

Mental Health Tribunal

  • TPC consultation response. TPC, 'Responses to the consultation on possible changes to the Tribunal Procedure (FTT) (HESC) Rules 2008 regarding pre-hearing examinations and decisions without a hearing in the case of references by the hospital or Department of Health' (23/10/18) — One interesting response, of many, is this from an MHT judge: "If cases are decided on papers alone, I can see little point in having those cases referred to the Tribunal. I have done a number of paper hearings and they are unsatisfactory." The TPC noted the following points and in consequence rejected the proposed rule changes: (1) The PHE provides for greater participation in the process by the patient. (2) The PHE reduces stress and anxiety at the hearing for the patient who will not need to be asked distressing questions. (3) The PHE allows the patient to talk about their situation privately to a person not involved in their detention. (4) The PHE allows for information missing from reports to be picked up. (5) The PHE is a lesser cost to the public purse than independent psychiatric reports. (6) The High Court has confirmed that there is no reason why the MM cannot carry out a PHE, provided the findings are disclosed at the outset of the hearing as they are currently. (7) Having a second medical opinion to assist the panel reduces the possibility of the wrong decision being made, thus reducing the risk to both the patient and the general public. (8) The system in England is not comparable to the Scottish system which operates in a fundamentally different way. (9) In Wales PHEs are carried out in every case and there are no current plans to alter that. (10) The outcome of MHTs cannot be measured by the numbers discharged but by whether the patient and their representative are satisfied that the case has been properly scrutinised with all relevant evidence before it. (11) Those who have their cases referred to the MHT are the most vulnerable members of society, often lacking the mental capacity to make an application to the MHT. (12) Disposals without a hearing would mean that the MHT panel would have evidence from only one party. (13) The MHT panel would not have adequate information to decide whether an oral hearing is appropriate. (14) There are a significant number of examples of MHTs reaching a decision on referred cases based on evidence that came out at the hearing and not contained in the reports.
  • Updated tribunal forms. The T129 (legal representation and tribunal doctor form) and T131-144 (all the report proformas) were updated on 3/10/18 to include GDPR information. Restructured T110 (application) and T111 (referral) forms were published on 19/10/18. See Tribunal forms

Care Quality Commission

  • CQC survey. CQC, 'Community mental health survey 2018' (web page, 22/11/18) — This web page contains information about the survey and links to the following documents or links: (1) Statistical release; (2) Quality and methodology report; (3) A-Z list of community mental health survey results by NHS trust (on CQC and NHS surveys websites); (4) Technical document; (5) Outliers report; (6) National tables and control charts; (7) Benchmark data; (8) Results from previous surveys; (9) Pre-release access list.
  • CQC MHA report corrections. CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (13/11/18) — There is a newer version of the document: CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18). The CQC published the following text alongside a full list of corrections to their 2016/17 report: "We are currently amending this document after our analysts found that we had displayed some data gathered by Mental Health Act reviewers on their visits in an inaccurate way. We will publish the updated report in November 2018. An explanation for the amendments: (1) Up until 2015-16, we used ‘Yes/No’ to document whether providers could show evidence of patient involvement in care planning. (2) In 2015-16, we added an option for Mental Health Act reviewers to document this as ‘Requires improvement’. This gave reviewers the option of documenting that the provider had shown some evidence of recording patient information, but it still required improvement. (3) When working on the 2016/17 report, our analysts found that reviewers had been inconsistent in how they had documented this information. Some reviewers had recorded patient involvement just as ‘Yes’ or ‘No’, while others had recorded as ‘Yes’, ‘No’, or ‘Requires Improvement’. (4) In preparing the report, we sought to present the information in the ‘Yes/No’ style to show a trend from past results. However, in doing so we combined the responses of ‘requires improvement’ with the ‘No’ responses, which was inaccurate. As a result, we have amended the report."
  • CQC MHA report. CQC, 'Monitoring the Mental Health Act in 2016/17' (27/2/18) — An amended version of this document has been published: see CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19). Summary from Gov.uk website: "This report sets out the Care Quality Commission’s (CQC) findings from engagement with people subject to the Mental Health Act 1983 (MHA) and review of services registered to assess, treat and care for people detained using the MHA. The report was compiled using information gathered from across CQC activities to report on the quality of care people are receiving while detained. The report also looks at how providers use the MHA to make sure people with a mental health disorder have access to the right care and treatment when their or others’ health or safety is at risk. CQC reports limited or no improvement in the key concerns that it has raised in previous years. In particular, no improvement in evidence of: (a) patient involvement being recorded in care plans; (b) patients’ views about their care being recorded; (c) whether clinicians have considered the least restrictive option for care."
  • Hillgreen case. CQC, 'Statement on CQC's actions in relation to Hillgreen Care Ltd' (27/7/17) — In this response to the Times article of the same date, the CQC's chief executive stated: "Today's coverage in the Times has rightfully challenged the action we have taken in respect of the care provided to the people who were resident at Colne Road. Whilst we did take action that led to the closure of this and two other services run by the Hillgreen Care Ltd, I believe that we could and should have taken action more speedily, both to ensure people were safe and in prosecuting this provider. Consequently, I am commissioning an independent investigation, which will report publicly to the CQC Board and identify what has happened, what we should have done differently and which will make recommendations to strengthen our future work."
  • Hillgreen case. Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17) — This article related to a "cluster" of sex alerts at residential homes owned by Hillgreen Care, a private company that specialised in the care of young adults with learning disabilities. It was said that confidential documents revealed that: (a) the deputy manager of one home was a convicted sex offender working in Britain illegally; (b) concerns were raised at other homes over “sexual grooming” of residents, and staff having sex while on duty; (c) care workers were initially told not to inform police of a suspected rape in November 2015 of a severely autistic 23-year-old man who lacked capacity to consent to sexual relations; and (d) potential DNA evidence linked to the incident was destroyed. The CQC said it was "actively pursuing what criminal action can be taken in relation to the failings" at the Enfield home, and had not made any of the concerns public because its desire to be "open and transparent" needed to be balanced alongside a risk of "compromising ongoing investigations".

Home Office

  • Forced marriage consultation document. Home Office, 'Preventing and tackling forced marriage: a consultation' (15/11/18) — The introduction of this document begins: "This consultation seeks views about whether it is necessary to introduce a new legal mandatory reporting duty relating to cases of forced marriage and, if it is, what such a reporting requirement would look like. It also seeks views on how the current guidance on forced marriage could be improved and strengthened." The Background chapter begins: "A forced marriage is a marriage where one or both of the spouses does not consent to the marriage and is coerced into it, or where one or both of the spouses lacks the capacity to consent. Coercion may involve violence, threats, or different types of pressure (e.g. psychological, financial, or emotional). Forced marriage is a criminal offence in England and Wales under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014. The offence applies regardless of whether the marriage ceremony is legally binding or not."

Journals

  • IJMHCL issue 5. [2018] IJMHCL pages 1-77 — The fifth issue of the International Journal of Mental Health and Capacity Law (volume 24) contains the following: (1) Editorial (Daniel Wang, Alex Ruck Keene, Ruth Fletcher, Catherine Penny, Richard Ashcroft); (2) Letters to the Editor: (a) Rejoinder (Response to article by Christopher Maylea and Christopher Ryan) (Matthew Carroll); (b) Response to Carroll, President of the Victorian Mental Health Tribunal (Christopher Maylea, Christopher James Ryan); (3) The 'Tricky Dance' of Advocacy: A study of non-legal Mental Health Advocacy (Wanda Bennetts, Christopher Maylea, Brian McKenna, Helen Makregiorgos); (4) The Right to Independent Living and being included in the Community: Lessons from the United Nations (Piers Gooding); (5) Psychosocial Disability and Deprivation of Liberty: Reviewing the case of Qatar in the light of the Convention on the Rights of Persons with Disabilities (Patricia Cuenca Gómez, María del Carmen Barranco Avilés, Pablo Rodríguez del Pozo).
  • IJMHCL issue 4. [2017] IJMHCL pages 84-149 — The fourth issue of the International Journal of Mental Health and Capacity Law (volume 23) contains the following: (1) Editorial (Jill Stavert); (2) Decision-making capacity and the Victorian Mental Health Tribunal Christopher Maylea, Christopher James Ryan); (3) What makes a 'good' conference from a service user perspective? (Sarah Gordon, Kris Gledhill); (4) Why futile and unwanted life-prolonging treatment continues for some patients in permanent vegetative states (and what to do about it): Case study, context and policy recommendations (Jenny Kitzinger, Celia Kitzinger); (5) Review: Melbourne Social Equity Institute, 'Unfitness to Plead and Indefinite Detention of Persons with Cognitive Disabilities'; and Justice, 'Mental Health and Fair Trial' (Kris Gledhill).

Newsletter

Events

  • Event. Edge Training: AMHP Conference - London, 7/12/18 — This one-day conference explores issues relevant to AMHP practice. The conference can contribute towards the statutory requirement of 18 hours relevant training for AMHPs each year. Speakers: David Carson (A principled and practical means of tackling The Risk Problem); Simon Foster (Case law update); Louise Blakeney (Exploring Service User experiences of MHA assessments - a research study); Professor Diana Rose; Mark Trewin (MHA Review 2018 - an update); Debbie Martin (Community Treatment Orders - use or abuse of power?). Chair: Christine Hutchinson. Price: £145 plus VAT (£174); 10% discount for groups of 10 or more in one booking. See Edge Training website for further details and booking information
  • COPUG minutes. Minutes of Court User Group Meeting (17/10/18) — (1) Apologies. (2) Minutes and Action points. (3) Court Manager’s Report: (a) Issue volumes; (b) Disposals; (c) Timeliness; (d) Backlogs; (e) COP 9s; (f) Multiple Points of Entry. (4) Filing of Bundles on time. (5) Delays in dealing with applications and urgent applications. (6) Update on court dress in public hearings. (7) Removal of bundles after Hearing. (8) E-Bundles. (9) Update on Accredited Legal Representatives (ALR). (10) Bonding of Lay deputies. (11) Capacity regarding financial scams. (12) Use of professional visitors. (13) Any other business. (14) Date of next meeting: Tuesday 23/4/19 at 2pm at First Avenue House.

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