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Resources > Date: 2018

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Resource Type Sentence Abstract Date
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
Ben Troke, 'The death of DoLS - the "Liberty Protection Safeguards" are before Parliament now' (Browne Jacobson, 4/7/18) Web page

This article lists several initial observations about the detail of the Mental Capacity (Amendment) Bill, and in relation to its implementation notes: "On the timescales, we understand that it is anticipated that the Bill will be out of the Lords by the end of November 2018, and through the Commons early next year, with Royal Assent perhaps by April 2019. Allowing for implementation and training, we might expect it to come into force perhaps in late 2019, early 2020."

2018-07-04
CQC, 'CQC to review the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism' (3/12/18) Web page

CQC to review restraint, seclusion and segregation

Extract from CQC website: "We will review and make recommendations about the use of restrictive interventions in settings that provide inpatient and residential care for people with mental health problems, a learning disability and/or autism. ... We will take forward this work and will report on its interim findings in May 2019, with a full report by March 2020. We have encountered the use of physical restraint, prolonged seclusion and segregation in wards for people of all ages with a learning disability and/or autism and in secure and rehabilitation mental health wards. The review will consider whether and how seclusion and segregation are used in registered social care services for people with a learning disability and/or autism. This will include residential services for young people with very complex needs - such as a severe learning disability and physical health needs - and secure children’s homes. This aspect of the review will be undertaken in partnership with Ofsted."

2018-12-03
CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (13/11/18) Document

List of amendments

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."

2018-11-13
CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18) Document

List of amendments

This document contains the amendments which have been incorporated into CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19). "An explanation for the amendments: (1) Up until 2015/16, we used ‘Yes/No’ categories to document specific types of data gathered by Mental Health Act Reviewers on their visits. In 2015/16, we added an option for Reviewers to use a category of ‘Requires improvement’. This gave Reviewers the option of documenting that the provider had shown some evidence of meeting requirements, but that it still required improvement. (2) When working on the 2016/17 report, our analysts found that Reviewers had been inconsistent in how they had documented this information. Some had recorded results with just ‘Yes’ or ‘No’, while others had recorded ‘Yes’, ‘No’, or ‘Requires improvement’. (3) 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."

2018-12-31
CQC, 'Thematic review of the use of restraint, prolonged seclusion and segregation for people with mental health problems, learning disabilities and/or autism: Terms of Reference' (26/11/18) Document

Restraint review's terms of reference

This document details how the CQC will conduct the review.

2018-11-26
Crown Prosecution Service, 'Prosecution Guidance: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) Web page

CPS guidance

Extract: "Headlines: (1) Police and prosecutors should cease charging the existing offences of common assault, battery, assaulting a police officer in the execution of their duty and other existing similar offences where the complainant is an emergency worker (in accordance with the definition in the Act). Prosecutors should charge under the provisions of the 2018 Act as at the commencement of the legislation where there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public interest. (2) Police should charge the offence at section 1 of the 2018 Act (where a guilty plea is anticipated and the offence is suitable for sentence in a magistrates’ court) in preference to existing summary offences that apply to assaults against emergency workers."

2018-11-13
DHSC, 'Equality Analysis: Liberty Protection Safeguards – Mental Capacity (Amendment) Bill' (17/12/18) Document

LPS equality analysis

Details from Gov.uk website: "This document looks at the positive, neutral and negative effects that this legislation could have on people with protected characteristics and other groups, such as carers. This is in line with the Secretary of State’s Public Sector Equality Duty, and duties under the National Health Service Act 2006. The Mental Capacity (Amendment) Bill sets out the measures the government will take to replace the Deprivation of Liberty Safeguards (DoLS) scheme in the Mental Capacity Act 2005. This is a process that authorises deprivations of liberty for the care and treatment of those who lack capacity. The new system is called liberty protection safeguards. As changes are made to the bill, the government will consider the equality issues and this document will be updated when appropriate."

2018-12-17
George Szmukler, Men in White Coats: Treatment Under Coercion (OUP 2018) Book

Mental health law book

This book proposes mental health law reform so is topical in light of the Wessely review of the Mental Health Act.

2018
HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18) Tribunal guidance

Requirements imposed on hospitals

This document states that "[a] hearing room is as essential to a psychiatric hospital as an operating theatre is to a surgical hospital" and that if hospitals do not adhere to the minimum requirements or obtain a written exemption then the tribunal "may consider holding its judicial hearings elsewhere". The main headings are (1) Minimum standards of safety and security, and (2) Minimum requirements for facilities and amenities.

2018-04-11
Home Office, 'Preventing and tackling forced marriage' (consultation from 15/11/18 to 23/1/19) Consultation

Summary from Gov.uk website: "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 consultation is open to everyone. We are particularly interested in hearing from victims and survivors of forced marriage, those with expertise in the area of forced marriage, and relevant professionals, including those working in social care, education, the police and healthcare."

2018-11-15
Home Office, 'Preventing and tackling forced marriage: a consultation' (15/11/18) Report

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."

2018-11-15
Independent Review of the Mental Health Act 1983, 'Modernising the Mental Health Act: Increasing choice, reducing compulsion' (final report, 6/12/18) Report

The report states that "[a] purpose and a set of principles should be included in the Act itself" and makes recommendations under the following headings: (1) Principle 1 - Choice and autonomy: (a) Making decisions about care and treatment; (b) Family and carer involvement; (c) Advocacy; (d) Complaints; (e) Deaths in detention. (2) Principle 2 - Least Restriction: (a) Tackling the rising rates of detention; (b) Criteria for detention; (c) A statutory Care and Treatment Plan; (d) Length of detention; (e) Challenging detention; (f) Deprivation of liberty: MCA or MHA?; (g) Community Treatment Orders; (h) Coercion and restrictive practices within inpatient settings. (3) Principle 3 - Therapeutic Benefit: (a) Care planning/aftercare; (b) Hospital visitors; (c) Inpatient social environments; (d) Inpatient physical environments. (4) Principle 4 - The Person as an Individual: (a) Person centred care; (b) Recognition of patient individuality at the tribunal; (c) The experiences of people from ethnic minority communities; (d) Children and young people; (e) People with learning disabilities, autism or both; (f) Policing; (g) Patients in the criminal justice system; (h) Immigration Detention; (i) Victims. (5) System wide enablers: (a) Data; (b) Digital enablers; (c) Quality Improvement (QI); (d) Staffing; (e) Improving staff morale.

2018-12-06
Joint Committee on Human Rights, 'Reform of the DOLS inquiry' (call for evidence from 9/2/18 to 2/3/18) Consultation

Extract from website: "The Committee is issuing an open call for evidence from interested parties and would welcome written submissions by Friday 2 March on: (1) Whether the Law Commission's proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards; (2) Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency; (3) Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute. Submissions should be no more than 1500 words."

2018-02-09
Jonathan Wilson, 'Mental health: update' (Legal Action, February 2018) Journal article

Case law update

Jonathan Wilson considers mental health case law relating to capacity, deprivation of liberty, discharge, after-care, and procedural matters.

2018-02-01
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
Legal Aid Agency, 'Keycard 54' (issued Apr 2018, updated Sep 2018) Document

Financial eligibility

This document is helpful when working out financial eligibility for civil Legal Aid. Superseded by: Legal Aid Agency, 'Keycard 55' (April 2019).

September 2018
Mark Hinchliffe and Zoe Blake, 'Letter to all Hospitals regarding our Minimum Requirements' (11/4/18) Tribunal guidance

Covering letter for minimum requirements guidance

This is a covering letter for HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18).

2018-04-11
Matthew Stanbury, 'The making of hospital orders and the use of hybrid orders' (Garden Court North, 27/3/18) Web page

Summary of sentence guidance case

This article, written by counsel for one of the appellants, summarises the case of R v Edwards [2018] EWCA Crim 595.

2018-03-27
Ministry of Justice, 'Circular 2018/01: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) Document

MOJ circular

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."

2018-11-13
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."

2018-04-28
NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2017-18' (2/10/18) Statistics

DOLS statistics

Extract from NHS Digital summary: "This official statistics report provides the findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2017 to 31 March 2018. ... The report looks at aspects of DoLS activity, including the profile of people for whom a DoLS application was received, applications completed and their outcome, and applications not completed. The data tables and interactive business intelligence tool published alongside the report present further analyses and breakdowns of the data, including breakdowns by local authority."

2018-10-02
Richard Jones and Eve Piffaretti, Mental Capacity Act Manual (8th edn, Sweet and Maxwell 2018) Book

MCA book

2018
Richard Jones, 'Response to MHA Review (1): Removing the distinction between s2 and s3' (8/12/18) Article

Article

This article discusses the fact that the MHA Review does not recommend merging s2 and s3.

2018-12-08
Richard Jones, 'Response to MHA Review (2): Managers' hearings' (10/12/18) Article

Article

This article considers the MHA Review's recommendations in relation to hospital managers' hearings.

2018-12-10
Richard Jones, 'Response to MHA Review (3): Jurisdiction of the First-tier Tribunal' (28/12/18) Article

Article

This article considers the MHA Review's recommendations in relation to the Mental Health Tribunal.

2018-12-28
Richard Jones, Mental Health Act Manual (21st edn, Sweet and Maxwell 2018) Book

MHA book

2018
Ruth Atkinson-Wilks, 'Case Summary: RW v Chelsea and Westminster Hospital NHS Foundation Trust (2018) EWCA Civ 1067' (Bevan Brittan, 10/9/18) Case summary

Case summary

This document contains a well-structured summary of the judgment in PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067.

2018-09-10
Sentencing Council, 'Manslaughter: Definitive guideline' (published 31/7/18, enforcement date 1/11/18) Document

Guideline for manslaughter sentencing

This document has the following headings: (1) Applicability of guideline; (2) Unlawful act manslaughter; (3) Gross negligence manslaughter; (4) Manslaughter by reason of loss of control; (5) Manslaughter by reason of diminished responsibility.

2018-07-31
Sophy Miles, 'High Court to scrutinise restrictions on areas where P has capacity' (Doughty Street Chambers, 6/11/18) Web page

This article summarises the case of Manchester City Council Legal Services v LC [2018] EWHC 2849 (Fam).

2018-11-06
Steven Richards and Aasya Mughal, Working with the Mental Capacity Act 2005 (3rd edition, Matrix Training 2018) Book

MCA book

Updated for 2018 (the introduction is dated April 2018).

2018
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) Report

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.

2018-10-23
Tribunal Procedure Committee, 'Extracts from the Minutes of the Tribunal Procedure Committee' (4/10/17 to 7/3/18) Document

This document, together with Phillip Sycamore, Mark Hinchliffe and Joan Rutherford, 'Representations to the Tribunals Procedure Committee from the Chamber President, Deputy Chamber President and Chief Medical Member (HESC)' (undated, probably late 2017), were obtained under the Freedom of Information Act by the charity Rethink Mental Illness. They relate to the proposal to abolish pre-hearing examinations and have paper reviews in certain cases. They provide information on the rationale behind the proposals which was omitted from the final version of the consultation document - mainly saving money and promoting flexibility in panel composition (judge-only hearings, including for all s2 cases, and judge-only paper reviews, including for many reference cases).

2018-03-07
Tribunal Procedure Committee, 'Minutes' (25/7/18) Document

Minutes of 25/7/18 meeting, including the news that the proposals to abolish pre-hearing medical examinations and to reduce the number of oral hearings had been abandoned (the context for this included the ongoing MHA review, Rethink's FOI requests and the overwhelmingly negative response to the consultation).

2018-07-25
Tribunal Procedure Committee, 'Minutes' (6/6/18) Document

Minutes of 6/6/18 meeting, including discussions about proposed rule changes (relating to pre-hearing examinations and paper hearings) and litigation friends.

2018-06-06
Tribunal Procedure Committee, 'Proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (consultation from 22/3/18 to 11/6/18) Consultation

The MOJ, with support from the senior HESC judiciary, proposed that: (1) preliminary medical examinations should be abolished; and (2) mandatory references for adult patients, unless a party requests or the tribunal directs an oral hearing, should be determined by a paper review procedure. Following consultation, the Tribunal Procedure Committee roundly rejected the proposal.

Consultation documents

Papers released under the Freedom of Information Act

TPC Minutes

Response

2018-03-22

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