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|A Platform for the Future - consultation||Consultation||
"In March 2010 an announcement was made that the Ministry of Justice would be bringing Her Majesty’s Courts Service (HMCS) and the Tribunals Service together, creating a single unified organisation. This consultation paper sets out the rationale for the creation of a new agency and explains what we believe the benefits will be. In seeking the views of the public on these benefits it also sets out what will remain the same following the creation of the agency."
|Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders - consultation||Consultation||
"The Ministry of Justice Structural Reform Plan published in July 2010 set out a commitment to introduce a 'rehabilitation revolution' and conduct a review of sentencing policy. This consultation sets out the resulting proposals which aim to break the destructive cycle of crime and protect the public, through more effectively punishing and rehabilitating offenders and reforming the sentencing framework."
The proposals in relation to managing offenders with mental health problems are as follows: 'We want to ensure that our valuable resources are targeted on the people who are committed to changing their lives and being rehabilitated. In some cases, the criminal justice system is not the best place for them. This is particularly the case for offenders with mental health problems. We propose to: (a) work with the Department of Health and the Home Office to pilot and roll out liaison and diversion services nationally by 2014 for mentally ill offenders; and (b) increase the treatment capacity for offenders who present a high risk of harm where this is linked to severe personality disorders.'
|Consultation on amendments to the Community Legal Service (Financial) Regulations 2000 (2009)||Consultation||
The plan is to increase income eligibility limits by 5%, and to introduce non-means-tested legal aid for COP proceedings for those deprived of their liberty, from April 2009. Closing date 17/2/09.
The response to the consultation is included in the explanatory memorandum to the following Regulations:
|Consultation on Appointments and Diversity||Consultation||
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 on Fees in the High Court and Court of Appeal||Consultation||
'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.'
|Consultation on Mental Capacity Act 2005: forms, supervision and fees||Consultation||
Responses published: 11 March 2009
A consultation on proposed changes to three areas of the work of the Office of the Public Guardian and the Court of Protection following the implementation of the Mental Capacity Act:
1. redesign of the Lasting Power of Attorney forms 2. restructuring of the Supervision of Deputies by the Public Guardian 3. alterations to the fee structure.
This consultation was the initial stage of a wider 12-18 month investigation into the implementation of the Mental Capacity Act.
See the following for details:
|Consultation on the future of the Parole Board (2009)||Consultation||
"Since its creation in 1968, the role of the Parole Board has changed significantly, from an advisory body to a court-like decision-making body. It has evolved in light of legislative changes, court judgments and changing caseloads, but its functions, status and resources have not been systematically considered in light of these changes. This consultation paper represents an opportunity to address this, and consider whether any changes to its sponsorship and role would support the Parole Board in carrying out its functions more effectively and efficiently."
|Court Fees: Proposals for reform||Consultation||
From Government website: "Under the proposals contained in this consultation paper, those using the civil court system would, in future, be expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost. Fee remissions will continue to be provided for those who qualify, so that access to justice is not denied."
The proposals include introducing new, and amended, fees for the Court of Protection, and increased fees for judicial review.
Ministry of Justice, 'Court Fees: Proposals for reform' (December 2013)† (main consultation document)
Regulatory Policy Committee, 'Impact assessment opinion: enhanced court fees' (20/1/14)† The summary of this report is: 'The Impact Assessment is not fit for purpose. The Department needs to make clear whether the proposal will result in the Court Service raising more funds than is necessary to cover their costs.'
|Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers||Consultation||
'A consultation on the proposal that an amendment be made to the Court of Protection Rules to provide for authorised officers to deal with specified types of applications. '
Ministry of Justice, 'Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers' (consultation paper CP9/2011, June 2011)
|Discussion paper on a proposed European Regulation on mutual recognition of protection measures in civil matters||Consultation||
'We are inviting views on a proposal for a European Regulation on mutual recognition of protection measures in civil matters. ... The Regulation aims to ensure that a protection measure (for example a non-molestation order) provided to a person in one Member State is recognised and maintained when that person travels or moves to another Member State. It is hoped that this Regulation will provide a quick and efficient mechanism which will avoid the person requiring protection having to go through time consuming court procedures in the Member State of recognition, or give evidence on the same matters a second time in order to get equivalent protection in that State.'
[Check start date.]
|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  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.
|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).
|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.
|HMPPS, 'Mental Health Casework Section and NHS England - joint performance management framework and target timescales 2019/20' (1/8/19)||Document||
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.
|Legal aid: funding reforms (2009)||Consultation||
Responses published 16/12/09.
Response re experts' fees published 3/3/10. See bottom of consultation page and:
|Ministry of Justice, 'Circular 2018/01: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18)||Document||
Extract from document: "The purpose of this circular is to provide guidance on the Act’s provisions. The circular is for guidance only and should not be regarded as providing legal advice. Guidance for prosecutors on the new offence of assault on an emergency worker contained in the Act will be made available on the CPS website. The CPS are responsible for advising police for the purposes of criminal proceedings. For other operational advice, police should seek advice from their own legal advisors."
|Ministry of Justice, 'COVID-19 Stakeholder Update' (22/3/20)||Email • Coronavirus resource||
MOJ coronavirus update
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.
|Ministry of Justice, 'Family Court Statistics Quarterly, England and Wales, April to June 2017' (28/9/17)||Report||
Statistics including COP and OPG
This quarterly statistical bulletin includes the following chapters: (10) Mental Capacity Act - Court of Protection; (11) Mental Capacity Act - Office of the Public Guardian. Extract from Gov.uk website: "This report presents the latest statistics on type and volume of cases that are received and processed through the family court system of England and Wales in the second quarter of 2017 (April to June). The material contained within this publication was formerly contained in Court Statistics Quarterly, a publication combining Civil, Family and Criminal court statistics."
|Ministry of Justice, 'FOIA response 181221028: DOL conditions' (23/1/19)||Document||
In response to a FOIA request the MOJ have stated that (paraphrased): (1) There are 2712 conditionally-discharged patients. (2) A database search for the keywords "escorted" and "accompanied" identified 39 cases where the patient has a condition not to go into the community unless escorted or accompanied by staff. (3) A database search for the keyword "permission" did not identify any cases where the patient has a condition not to leave without permission. (4) It cannot be known for certain that these conditions amount to confinement for Article 5 purposes until each case is examined in discussion with the RC. (5) No information can be provided about capacity to abide by the conditions as this information is not held (information about capacity held within RCs' reports is not considered to be sufficiently recent). (6) There may be more than these 39 cases because: (a) the wording of conditions varies considerably; and (b) it is likely that in some cases the care plan, rather than a condition, includes arrangements that amount to a deprivation of liberty (RCs and others have been asked to contact the MOJ for advice in such cases).
|Ministry of Justice, 'Reconsideration of Parole Board decisions: Creating a new and open system' (consultation from 28/4/18 to 28/7/18)||Consultation||
"This paper considers and seeks views on the proposed parameters for and operation of the proposed reconsideration process, with respect to: (1) which types of decisions should be reconsidered; (2) who should be able to apply for reconsideration of a decision; (3) on what basis a decision should be reconsidered; (4) how we can make the process transparent whilst also ensuring there are sufficient safeguards to protect panel members, victims and others."
|Ministry of Justice, 'Reconsideration of Parole Board decisions: creating a new and open system: Government response to the public consultation' (Cm 30, 4/2/19)||Document||
Parole Board consultation outcome
Details of outcome from Gov.uk website: "This consultation sought the public’s view on a mechanism that would allow the Parole Board to reconsider its decisions in certain circumstances. The Government has concluded that there should be a mechanism to allow reconsideration of parole decisions. The process will provide an easier way to challenge decisions which appear to be seriously flawed. The Secretary of State will able to apply for reconsideration to the Parole Board, taking account of any representations from victims. It will no longer be necessary to resort to costly and time-consuming judicial review proceeding. Decisions on whether a case should be reconsidered will be taken by judicial members of the Parole Board. Reasons for their decisions will be provided to victims. We will make provision in the Parole Board Rules to implement these changes later this year. Between now and then, we will put into place the necessary guidance, training and resources need to operate this mechanism."
|Ministry of Justice, 'Revising the Mental Capacity Act 2005 Code of Practice: Call for evidence' (consultation from 24/1/19 to 7/3/19)||Consultation||
Extract: "Since the MCA came into force in 2007, the COP has been used extensively by a wide range of stakeholders. In light of changes in case law, and lessons learned through practical use of the COP over the past 11 years, revision of the COP is required in order to better reflect current needs. The Act itself is currently not under review, however the survey below provides an opportunity to comment on the practical guidance outlined in the COP. Comments received will inform decisions to revise, update and where relevant to provide further guidance in the COP."
|Ministry of Justice, 'Transforming our justice system' (consultation from 15/9/16 to 27/10/16)||Consultation||
The main proposal relevant to the MHT is an amendment (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the Senior President of Tribunals, and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system.
The following three principles and aims are taken from the first, overview chapter. (1) Proportionate: (a) More use of case officers for routine tasks, (b) More decisions made 'on the papers', (c) More virtual hearings, (d) More cases resolved out of court. (2) Accessible: (a) Putting probate applications online, (b) Managing divorce online, (c) Digitising applications for Lasting Powers of Attorney. (3) Just: (a) Provide a system that works for everyone, (b) Continue to ensure open justice. In relation to LPAs, it states: "Allowing people to make arrangements for a time in the future when they may not be able to make decisions by themselves is a helpful but often emotionally stressful process. Applications have been partially digitised since 2014, resulting in fewer application forms being returned because of errors. We will build on this by making the system fully digital to deliver a quicker service."
Chapters 2-5 relate to Criminal, Civil, Family, and Tribunals. The following are the aims in relation to tribunals: (a) Streamlining procedures and encouraging a balanced approach, (b) Digitising the Social Security and Child Support Tribunal, (c) Simplifying panel composition, (d) Reforming employment tribunals. In relation to panel composition it states: "Another factor in taking a balanced, tailored approach to tribunal cases is making sure the panels that make decisions in tribunals are designed to best suit the circumstances of the case. Most tribunals currently reflect historic arrangements that may be out of date and do not tailor the expertise of the panel according to the case. We propose to revise the current arrangements for setting panel composition to make sure that that appropriate expertise is focussed on those cases that need it. We would welcome views on how best to achieve this – more details are available later in Chapter 7.3."
Chapter 6 states that views are invited on three specific elements: (a) Assisted digital facilities, (b) Online conviction and statutory fixed fine, and (c) Panel composition in the tribunals.
The following are extracts from chapter 7.3: "As we streamline the tribunals system, we need to be more tailored and flexible in the way that non legal members are used. Panel composition will remain a matter for the Senior President of Tribunals (SPT), but we want to move away from a blanket approach of using non-legal members regardless of whether their specialist expertise and knowledge is relevant or required. Instead, they should only be part of the panel where their presence is relevant to the case. ... The terms of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 allow the SPT to set the composition of tribunal panels in the unified system via Practice Statements. ... Some change has already been introduced by way of revised Practice Statements, and has not been shown to have any negative effects on decisions. ... We therefore propose to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the SPT greater freedom to adopt a more proportionate and flexible approach to panel composition, by: (a) Providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT, and (b) Removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system. ... The use of multiple panel members in the unified tribunals currently costs the taxpayer around £21m per year in fees alone, with daily fees for each member ranging from £200 - £500, plus additional costs for travel and subsistence, training, appraisal and general administration. By using NLMs in a more tailored, flexible way, we can make sure that more people in the tribunals will benefit from their specialist expertise and knowledge, while delivering better value for the taxpayer."
The questions in chapter 7.3 in relation to the last element are: (a) "Question 7: Do you agree that the SPT should be able to determine panel composition based on the changing needs of people using the tribunal system? Please state your reasons." (b) "Question 8: In order to assist the SPT to make sure that appropriate expertise is provided following the proposed reform, which factors do you think should be considered to determine whether multiple specialists are needed to hear individual cases? Please state your reasons and specify the jurisdictions and/or types of case to which these factors refer."
In the consultation document it was proposed to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the Senior President of Tribunals (SPT) "greater freedom to adopt a more proportionate and flexible approach to panel composition", by (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT; and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system.
Following the consultation, the government will proceed with proposal (b) as the existing requirement is "an unnecessary restriction to the SPT to base decisions on what is the most appropriate and proportionate approach", but will not proceed with proposal (a) because of concerns arising from "the assumption that this will apply in all cases" (although it appears that this concession is not intended to make any difference in practice). To this end, the Order will be amended so that that "the SPT may provide that a panel should consist of one, two or three members, as required, in order to determine the matters before the tribunal justly and fairly". The consultation response envisages that the SPT will consult with both the tribunal judiciary and wider stakeholders before making any changes to panel composition.
|Ministry of Justice, 'Updated guidance on the Rehabilitation of Offenders Act 1974' (4/3/14)||Document||
Guidance on spent convictions etc
Is a restricted hospital order spent when the patient is conditionally discharged or when he is absolutely discharged? The Ministry of Justice does not have an official position on the matter, but refers to this guidance document which states that under the Rehabilitation of Offenders Act 1974 the rehabilitation period of a hospital order, with or without a restriction order, is the "period of the order" (email correspondence, 11/7/19).
|Ministry of Justice, Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice (2008)||Book||
MCA DOLS Code of Practice
|Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19)||Letter||
General consent granted for medical leave
The Secretary of State for Justice has provided all responsible clinicians at any hospital with general consent to exercise their power to grant leave for medical treatment. This general consent does not apply to (a) patients who already have specifically-agreed terms for medical leave; or (b) "high profile" cases (i.e. those which merit attention from a senior manager at all stages). The precise terms are set out three annexes: (A) any restricted patient at high secure hospitals; (B) section 45A, 47/49, and 48/49 patients in other hospitals; (C) section 37/41 or equivalent in other hospitals.
|Office of the Public Guardian: Amendments to secondary legislation - consultation||Consultation||
"This consultation paper represents the next step in the review process of the Mental Capacity Act 2005 and addresses areas of legislation and policy that in practice have not worked as well as intended. The proposed changes will help the Act meet its aims and objectives. The OPG intends to implement them on the 1 April 2010 and is now seeking views."
|Office of the Public Guardian: Call for evidence: Not for profit delivery of deputyship services||Consultation||
The paper cites the 'Big Society' concept. The introduction states that 'Not for profit delivery of deputyship services has three purposes: (1) to understand the reasons behind the low take up amongst not-for-profit organisations of deputyship work; (2) to benchmark the costs of providing deputyship services within the sector; (3) to test interest in such organisations providing personal welfare deputyships in the future.' The appendix shows that the hope is to get the same service for approximately half the price of sa solicitor deputy.
|Proposals for reform of civil litigation funding and costs in England and Wales||Consultation||
"This consultation seeks views on implementing a package of Lord Justice Jackson's proposals for reforming conditional fee agreements and other aspects of civil litigation funding and costs."
|Proposals for the Reform of Legal Aid in England and Wales (2010)||Consultation||
"This consultation seeks views on proposals for reform of legal aid in England and Wales. The proposals represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for those cases in which legal advice or representation is justified. This consultation is aimed at providers of publicly funded legal services and others with an interest in the justice system."
In relation to mental health law the proposals are to (1) retain legal aid for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeal as to the Court of Protection on deprivation of liberty issues; (2) retain legal aid for judicial review challenges; (3) remove legal aid for tort or other general damages claims unless the claims are of a very serious nature (paras 4.92 to 4.94). The summary for the scope of mental health law is that 'We propose to retain the current provision of Legal Help and Controlled Legal Representation' (Annex F). All civil hourly rates and fixed fees are to be reduced by 10% (para 7.6 to 7.7) and there are also proposals for reducing experts' fees (see chapter 8). There are less generous rules on financial eligibility and contributions, but these proposals will not affect those cases, such as Tribunal work, which are not subject to means testing (para 5.4).
Ministry of Justice, 'Reform of Legal Aid in England and Wales: the Government Response' (Cm 8072, June 2011). Other related documents are also available. Some points particularly relevant to mental health law are: (1) There will be a 10% cut in all civil fees, including mental health law (para 34). (2) Advice and representation under the MHA 1983 or MCA 2005 will remain in scope (para 86). However claims involving tort or other general damages claims will be excluded except where these meet the criteria for 'claims against public authorities' or 'claims arising out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault' (para 87). The 'claims against public authorities' criteria allow legal advice and representation for claims (typically claims for damages) against public authorities concerning 'abuse of position or power' or 'significant breach of human rights' (no longer for 'serious wrong-doing') (para 10ff). (3) Legal aid will remain available for judicial review and habeas corpus (subject to immaterial exceptions) (para 88ff).
|Proposals on changes to the Office of the Public Guardian fees||Consultation||
'A consultation on the Office of the Public Guardian (OPG) fees 2011/2012 which aims to ensure that the OPG fee policy remains fair, equitable and proportionate to the services being provided whilst at the same time reflecting the current economic climate. The proposed changes will help ensure that the fee structure remains fair and equitable whilst fully covering OPG costs. We are now seeking your views.' (MOJ website).
The proposals are listed on the OPG website as:
See also: MCA Update emails
|Transforming Legal Aid: Delivering a more credible and efficient system - consultation||Consultation||
This consultation sets out the Government's proposals for further reform of the legal aid system in England and Wales.
One proposal is a residence test. Under the proposed residence test, civil Legal Aid would only be available to those who are lawfully resident (in the UK, Crown Dependencies or British Overseas Territories) at the time the application for civil Legal Aid was made, and also had been so resident for a continuous period of at least 12 months at any point in the past. There will be some exceptions to the residence test. One exception is for 'detention cases', in specified areas including mental health (see para 125 of Annex B to the government response).