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Resources > Author : Edge Training or HM Prison and Probation Service or Law Society or Ruck Keene, Alex

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Resource Type Sentence Abstract Date
39 Essex Chambers, 'Mental Capacity Report' (issue 101, February 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a tribute to Mr E; fluctuating capacity; improperly resisting a deputy appointment; DoLS, BIAs and RPRs, and finding the right balance with constrained resources; (2) In the Property and Affairs Report: the OPG, investigations and costs; e-filing for professional deputies, and a guest article about the National Will Register; (3) In the Practice and Procedure Report: the Vice-President issues guidance on serious medical treatment; an important judgment on contingent declarations; the permission threshold; and disclosure to a non-party; (4) In the Wider Context Report: brain death and the courts; deprivation of liberty and young people; (5) In the Scotland Report: supplemental reports from the Independent Review of Learning Disability and Autism; the Scott review consults; and relevant cases and guidance."

February 2020
39 Essex Chambers, 'Mental Capacity Report' (issue 102, March 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a cautionary tale about re-using material for DoLS assessment and capacity complexities in the context of medical treatment; (2) In the Property and Affairs Report: an important case on the limits of powers of professional deputies to act without recourse to the Court of Protection; (3) In the Practice and Procedure Report: medical treatment - delay, neglect and judicial despair, developments relating to vulnerable parties and witnesses, and Forced Marriage Protection Orders under the spotlight; (4) In the Wider Context Report: Mental Capacity Action Days, when not to presume upon a presumption, and a number of important reports from bodies such as the CQC; (5) In the Scotland Report: the DEC:IDES trial. We have also recently updated our capacity guide and our guide to the inherent jurisdiction."

March 2020
39 Essex Chambers, 'Mental Capacity Report' (issue 103, April 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the DHSC emergency guidance on MCA and DoLS, the Court of Protection on contact and COVID-19, treatment escalation and best interests, and capacity under the microscope in three complex cases; (2) In the Property and Affairs Report: the Golden Rule in (in)action and the OPG’s ‘rapid response’ search facility for NHS and social care staff to access the register of deputies / attorneys; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19 and an important decision on the s.48 threshold; (4) In the Wider Context Report: COVID-19 and the MCA capacity resources, guidance on SEND, social care and the MHA 1983 post the Coronavirus Act 2020, dialysis at the intersection between the MHA and the MCA and an important report on the international protection of adults; (5) In the Scotland Report: the response of the legal community to AWI law and practice under COVID-19, and an update from the Mental Health Law Review."

April 2020
39 Essex Chambers, 'Mental Capacity Report' (issue 104, May 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Protection, COVID-19 and the rule of law; best interests and dying at home; and capacity and silos (again); (2) In the Property and Affairs Report: further guidance from the OPG in relation to COVID-19 and an unusual case about intestacy, minority and the Court of Protection; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19; remote hearings more generally; and injunctions and persons and unknown; (4) In the Wider Context Report: National Mental Capacity Forum news, and when can mental incapacity count as a ‘status?’; (5) In the Scotland Report: further updates relating to the evolution of law and practice in response to COVID-19. We also note that 9 May 2020 was the 20th anniversary of the Adults with Incapacity (Scotland) Act 2000 receiving Royal Assent."

May 2020
Alex Ruck Keene (ed), Assessment of Mental Capacity (4th edn, Law Society 2015) Book

Mental capacity book

2015
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) Article Coronavirus resource

Impact of coronavirus on operation of MCA

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.

2020-03-25
Alex Ruck Keene et al, 'Rapid response guidance note: Testing for COVID-19 and mental capacity' (4/5/20) Coronavirus resource

Coronavirus testing and capacity

"The Court of Protection team has been asked to advise on a number of occasions as to the legal position in relation to testing for COVID-19, especially as testing (a) starts to be more generally available; and (b) is increasingly been rolled out as mandatory in certain settings. What follows is a general discussion, as opposed to legal advice on the facts of individual cases, which the team can provide. It primarily relates to the position in England in relation to those aged 18 and above; specific advice should be sought in respect of Wales and those under 18."

2020-05-04
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (2nd edn, LAG 2016) Book

Court of Protection book

2016
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (2nd rev edn, LAG 2017) Book

Court of Protection book

Note that a 3rd edition has now been published.

2017
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (3rd edn, LAG 2019) Book

Court of Protection book

2019
Alex Ruck Keene, 'COVID-19 and MCA - first guidance out' (Mental Capacity Law and Policy, 19/3/20) Article Coronavirus resource

Article about coronavirus guidance mentioning MCA

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).

2020-03-19
Alex Ruck Keene, 'Foreign powers of attorney - an unfortunate judicial wrong turn' (Mental Capacity Law and Policy, 26/3/18) Web page

Commentary on protective measure case

This article states that the two litigants in person, in seeking recognition and enforcement of a Canadian "Continuing Power of Attorney for Property" as a protective measure (under Part 4 Schedule 3 MCA 2005), had led the judge astray, as the relevant question was whether (under Part 3) the Canadian power was valid according to Ontario law, assuming JMK had been habitually resident there at the point of granting the power. A application can be made under rule 23.6 Court of Protection Rules 2017 in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.

2018-03-26
Alex Ruck Keene, 'Going beyond the Mental Capacity Act in assessing capacity: recognising and overcoming biases and stereotypes' (The Mental Elf, 26/3/20) Blog post

Summary of capacity assessment briefing note

This blog post summarises Sophie Stammers and Lisa Bortolotti, 'Mitigating the risk of assumptions and biases in assessments of mental capacity' (University of Birmingham, 23/3/20).

2020-03-26
Alex Ruck Keene, 'Public health restrictions and capacity' (Mental Capacity Law and Policy, 29/3/20) Blog post Coronavirus resource

Coronavirus public health restrictions

"Two sets of regulations brought into force in the past week have radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society. This post looks at them through the prism of the law relating to those with impaired decision-making capacity; it also looks at through a similar prism at a part of the Coronavirus Act 2020 which is not (yet) in force, but is likely to come into force shortly,"

2020-03-29
Edge Training, 'Liberty Protection Safeguards: Jargon Buster' (18/6/19) Document

LPS glossary

Edge's summary of this document is as follows: "The Edge LPS Jargon Buster provides a detailed explanation of terms used in LPS such as ‘condition’ (used in a number of different ways), reviews, determinations and the relevant person (did you know the same term can relate to three different roles?)"

2019-06-18
Gareth Owen et al, 'Advance decision-making in mental health - suggestions for legal reform in England and Wales' (2019) 64 Intl JL & Psychiatry 162 Journal article

Advance decision-making

Publisher's abstract: "This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based ‘fusion’ law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government’s 2018 Independent Review of the Mental Health Act 1983."

May 2019
HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) Document

Conditional discharge/DOL guidance

The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM [2018] UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.

2019-01-08
HMPPS, 'Leave Application for Restricted Patients' (3/5/19) Form

Leave application form

This updated form is for all leave except medical leave for high profile cases (for which there is a separate form).

2019-05-03
HMPPS, 'Medical Leave application for high profile restricted patients' (3/5/19) Form

Medical leave application form

This updated form is required when applying for permission to grant medical leave to a high profile patient.

2019-05-03
HMPPS, 'Mental Health Casework Section and NHS England - joint performance management framework and target timescales 2019/20' (1/8/19) Document

MHCS targets

This document presents target timescales for the Mental Health Casework Section to consider key decisions for restricted patients. The targets, measured in calendar days from receipt of application to decision issued, are: (1) prison transfer, 5 days; (2) remission to prison, 7 days; (3) hospital transfer - trial leave from high to medium secure, 28 days; (4) hospital transfer - downgrade in security, excluding high to medium, 28 days; (5) hospital transfer, level, 14 days; (6) hospital transfer, upgrade, 7 days; (7) community leave, escorted day, 28 days; (8) community leave, unescorted day, 35 days; (9) community leave, overnight, 35 days; (10) community leave, long-term escorted leave, 35 days; (11) conditional discharge, 28 days; (12) absolute discharge, 28 days; (13) recall, same day. Compassionate and medical leave have not been included in this set of targets; where cases are urgent, they remain at 24 hours.

2019-08-01
Law Society, 'Coronavirus (COVID-19) advice and updates' (19/3/20) Web page Coronavirus resource

Law Society coronavirus guidance

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.

2020-03-19
Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 5/12/18) Web page

This document contains updated guidance on the professional development requirements for panel membership. Dated: December 2018. Metadata: created 5/12/18. Downloaded 7/12/18. Filename: mental-health-accreditation-guidance-december-2018.pdf

2018-12-05
Law Society, 'Parliamentary briefing: Mental Capacity (Amendment) Bill: House of Commons second reading' (18/12/18) Document

Parliamentary briefing on Mental Capacity (Amendment) Bill

Extract from Law Society website: "The Law Society is concerned by provisions in the Mental Capacity (Amendment) Bill. While attempting to simplify the current arrangements under the Deprivation of Liberty Safeguards (DoLS), the Bill removes vital existing safeguards for cared-for people. The Bill should be amended to avoid the unlawful treatment of the vulnerable individuals who receive care and treatment under conditions of detention. Many changes have been made but there is still some way to go. There is a real risk that many of the flaws in the existing system will be duplicated and that the new system will replace one deficient system with another than removes existing safeguards for people. This briefing sets out our key positions on the Bill."

2018-12-18
Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 31/3/20) Document Coronavirus resource

Social distancing and mental capacity

"The Court of Protection team have been asked to advise on a number of occasions since 17 March 2020 as to the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19. Clearly the consequences of P going into the community, as she ordinarily would, are (a) that she is at risk of contracting COVID-19, (b) that she may infect others, if she has the virus, and (c) that she may be in breach of the new police powers which have come into effect."

2020-03-31

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