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Resources > Author: Ruck Keene, Alex

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Resource Type Sentence Abstract Date
39 Essex Chambers, 'Mental Capacity Report' (issue 100, December 2019) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an important guest article from Inclusion London, and reflections fromTor and Alex on 100 issues; (2) In the Property and Affairs Report: a report of an interview with HHJ Hilder and deputyship refunds; (3) In the Practice and Procedure Report: the administration of appeals, and important judgments shedding light by analogy on factfinding, costs and vulnerable witnesses; (4) In the Wider Context Report: assisted dying, Article 2 obligations and informal patients, and reports of developments in Northern Ireland, Jersey and wider afield; (5) In the Scotland Report: an important judgment on guardianship and deprivation of liberty, a judicial review of conditions of excessive security and further observations on the operation of ‘foreign’ powers of attorney in England & Wales from the Scottish perspective."

December 2019
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
39 Essex Chambers, 'Mental Capacity Report' (issue 105, June 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal presses the reset button in relation to capacity and sexual relations, and three difficult medical treatment decisions; (2) In the Property and Affairs Report: the impact of grief on testamentary capacity; (3) In the Practice and Procedure Report: a remote hearings update, and a pragmatic solution to questions of litigation capacity arising during the course of a case; (4) In the Wider Context Report: DoLS and the obligations of the state under Article 2 ECHR, the Parole Board and impaired capacity, and recent relevant case-law from the European Court of Human Rights; (5) In the Scotland Report: the interim report of the Scott Review critiqued."

June 2020
39 Essex Chambers, 'Mental Capacity Report' (issue 106, July 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS delayed to April 2022; alcohol dependence and other capacity conundrums; stem cell donation and altruism, and when to come to court in medical treatment cases; (2) In the Property and Affairs Report: updated OPG guidance on making LPAs under light-touch lockdown and a face-off between potential professional deputies; (3) In the Practice and Procedure Report: a basic guide to the CoP; litigation capacity and litigation friends and observations about intermediaries and lay advocates; (4) In the Wider Context Report: capacity and the Mental Health Tribunal, a change of approach to s.117 aftercare and lessons learned from a close encounter with triage; (5) In the Scotland Report: the Scott Review summary of responses to its initial survey and a response from the Chair to the critique in our last issue."

July 2020
39 Essex Chambers, 'Mental Capacity Report' (issue 107, September 2020) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated MCA/DoLS guidance, the anorexia Catch-22, and two important cases on deprivation of liberty; (2) In the Property and Affairs Report: remote witnessing of wills, professional deputy remuneration and the OPG annual report; (3) In the Practice and Procedure Report: CoP statistics, short notes on relevant procedural points and the UN principles on access to justice for persons with disabilities; (4) In the Wider Context Report: the NICE quality standard on decision-making and capacity, litigation friends in different contexts, and a guest piece giving a perspective on living with a tracheostomy and a ventilator; (5) In the Scotland Report: the human rights blind spot in thinking about discharge from hospital in the context of COVID-19.

September 2020
39 Essex Chambers, 'Mental Capacity Report' (issue 99, November 2019) Newsletter

Mental capacity law newsletter

"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: two deprivation of liberty cases making clear what should (and should not) happen before the court; two important cases about reproductive rights and capacity, and capacity under stress in different contexts; (2) In the Property and Affairs Report: welcome clarity as to how to make foreign powers of representation effective; and capacity and the financial implications of marriage; (3) In the Practice and Procedure Report: two important judgments from the Vice-President highlighting different aspects of case management and confirmation as to the procedural rules governing inherent jurisdiction applications in relation to adults; (4) In the Wider Context Report: news from the National Mental Capacity Forum (and a survey they need completing); an important case about the intersection of capacity, the inherent jurisdiction and the Mental Health Act 1983 in the context of force-feeding; and when you can rely upon your own incapacity to your benefit; (5) In the Scotland Report: four important publications from the Mental Welfare Commission."

November 2019
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
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
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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