Drilldown: Resources

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Resources > Date: 2019

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Showing below up to 44 results in range #1 to #44.

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Resource Type Sentence Abstract Date
1 Crown Office Row, 'Alasdair Henderson secures award of damages for false imprisonment in a hospital setting' (30/1/19) Web page

MCA-related damages

This web page reports on a claim against Kings College Hospital in which the High Court held that there had been a failure to follow the DOLS requirements to undertake a full capacity assessment and, if appropriate, a best interests assessment, and that the hospital had intentionally kept the family in the dark about Christiana Esegbona's discharge to a nursing home until the last minute in order to prevent objection. The claim for false imprisonment and for negligent failures to provide adequate information to the nursing home (at which the patient died after pulling out her tracheostomy tube) was successful, and the court awarded aggravated damages because of the deliberate exclusion of the family from the discharge planning process.

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 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
Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (April 2019 edition, 24/4/19) Document

DOLS case law summaries

This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019). A newer version is available: Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19).

Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19) Document

DOLS case law summaries

This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019). There is a newer version: Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary' (May 2020 edition, 21/5/20).

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

Court of Protection book

Belfast Telegraph, 'Blind veteran tells judge he is ‘living again’ after going home' (19/3/19) Newspaper article

Man returns home after inherent jurisdiction case

The article states that Hayden J is overseeing developments at follow-up hearings in London, and that at a hearing the previous week the council's lawyers stated that Douglas Meyers had returned home. The High Court decision is: Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam).

Claire Tyler, 'The stormy passage of the Mental Capacity (Amendment) Bill' (The House Magazine, 2/5/19) Article

Summary of LPS legislation passage through Parliament

In this article Baroness Tyler summarises the history of this legislation, concluding that "much relies on what will be set out in the Code of Practice and in secondary legislation, which will be vital in determining how the new system will work, including the vexed issue of a definition of what does and doesn’t constitute a deprivation of liberty" and that "without proper funding[,] staff resources and training it will fail in practice".

CQC, 'Avon & Wiltshire Mental Health Partnership fined £80,000 after patient is injured falling from hospital roof' (21/8/19) Case summary

Trust fined for failing to provide safe care and treatment

Extract from press release: "The risk of the low roof at Applewood Ward had been highlighted in previous annual risk assessments since 2011. The outcome was that the risk should be managed through staff observation. CQC believe this was an inappropriate and inadequate response to the risk posed to all service users by this low roof. In 2015 there were 28 direct references to the low roof in the garden of Applewood Ward between January and December at seven different Trust forums. The Trust was also aware that numerous other service users had been able to access the low roof prior to the service user’s fall in January 2016. The trust was fined £80,000 for failing to provide safe care and treatment and putting patient at risk of avoidable harm. It was also ordered to pay the prosecution costs of £12,033.96 and a £170 victim surcharge."

CQC, 'CQC finds improvements in use of the Mental Health Act but remains concerned about safety' (26/2/19) Press release

Press release about MHA report

Extract from press release: "In its Monitoring the Mental Health Act in 2017/18 report published today, CQC has concluded that there has been an overall improvement in some aspects of care in 2016 to 2018, compared with findings in 2014 to 2016. They found: (1) Some improvement in the quality of care planning and patient involvement. A higher proportion of care plans are detailed, comprehensive and developed in collaboration with patients and carers. However, there is still considerable room for further improvement. (2) The provision of information about legal rights to patients and relatives is still the most frequently raised issue from visits. In many cases, patients may struggle to understand information given to them on admission because they are most ill at this point. (3) The greatest concern from Mental Health Act monitoring visits is about the quality and safety of mental health wards; in particular acute wards for adults of working age."

CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19) Report

Amended version of report

"This document has been amended after our analysts found that we had displayed some data gathered by Mental Health Act reviewers on their visits in an inaccurate way." See CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18) for details.

CQC, 'Monitoring the Mental Health Act in 2017/18' (26/2/19) Report

Annual CQC report on MHA

The two parts of this report contain the following headings. (1) Part 1: Key findings from our MHA activities: (1.1) National figures on the use of the Mental Health Act; (1.2) What are the key issues we have found in people's experience of the MHA? (1.21) How is information being provided to patients? (1.22) How are people being involved in care planning? (1.23) Are people accessing Independent Mental Health Advocacy? (1.24) How are services challenging restrictive practices? (1.25) Are physical health issues being identified on admission? (1.26) How is the Second Opinion Appointed Doctor service working for patients? (1.27) How are people being supported in discharge planning? (2) Part 2: CQC and the Mental Health Act: (2.1) Deaths in detention; (2.2) Complaints and contacts; (2.3) Absence without leave; (2.4) Children and young people admitted to adult mental health wards; (2.5) The First-Tier Tribunal (Mental Health).

CQC, 'Relationships and sexuality in adult social care services' (21/9/19) Document

Relationships and sexuality guidance

Headings include: (6) Can a best interests assessment be made in relation to a person’s consent to sex? (12) What if someone lacks capacity to consent to sexual relations? (13) How is someone’s capacity to consent to sexual relations assessed?

CQC, 'The state of health care and adult social care in England 2018/19' (14/10/19) State of Care report

State of Care report 2018/19

This document contains chapters on mental health care and the Deprivation of Liberty Safeguards. The headings in the summary chapter are: (1) The care given to people with a learning disability or autism is not acceptable; (2) Other types of care are under pressure; (3) More and better community care services are needed; (4) Care services and organisations must work more closely together; (5) More room and support need to be given for innovations in care.

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?)"

Form T132: In-patient: Statement of information about the patient Tribunal form

Proforma: statement of information

Information from responsible authority.

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.

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

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.

Jonathan Wilson, 'Mental health: update' (Legal Action, February 2019) Journal article

Case law update

Jonathan Wilson considers mental health case law from the past year relating to deprivation of liberty in the community, tribunal procedure, detention criteria, pocket money, after-care and other matters.

Legal Aid Agency, 'Keycard 55' (April 2019) Legal Aid resource

Financial eligibility

This document is helpful when working out financial eligibility for civil Legal Aid.

Luke Haynes and Mithran Samuel, 'Government issues deprivation of liberty definition in bid to provide clarity to practitioners' (Community Care, 11/1/19) Web page

Proposed statutory DOL definition

Subheading: "Ministers’ amendment to DoLS replacement bill sets out when a person would not be deprived of liberty, but sparks concerns over compatibility with human rights law".

Martin Picton et al, 'The Crown Court Compendium' (Judicial College, December 2019) Sentencing guidelines

Crown Court trials and sentencing

"The main aim of this Compendium is to provide guidance on directing the jury in Crown Court trials and when sentencing, though it contains some practical suggestions in other areas, for example jury management, which it is hoped will be helpful." Both Part I (Jury and Trial Management and Summing Up) and Part II (Sentencing) have content relevant to mental health law.

December 2019
Mental Health Tribunal, 'Guidance for the observation of tribunal hearings in the First-tier Tribunal Health Education and Social Care Chamber (mental health jurisdiction)' (10/1/19) Tribunal guidance

Observation guidance

This guidance supersedes Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09), the main difference being that it is no longer necessary for observation requests by solicitors, barrister, nurses, doctors, social workers etc to be made in advance to the Deputy Chamber President.

Ministry of Justice, 'FOIA response 181221028: DOL conditions' (23/1/19) Document

FOIA response

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: 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."

Minutes of Court User Group Meeting (15/10/19) Minutes

COPUG minutes

(1) Apologies; (2) Minutes and Action points; (3) Court Manager’s Report; (4) Misplaced COP20As and COP20Bs; (5) Interim deputyship orders that specify the date on which the appointment will end; (6) Clerical mistakes or slip rules on court orders; (7) Service of final orders (Rule 6.2); (8) Anonymised deputyship orders; (9) Delayed issue of COPDOL 11 applications; (10) Delivery of bundles and position statements; (11) Problems in deputyship orders; (12) Service of orders on Local Authority applicant; (13) P&A deputyship orders - exclusion of authority to (a) enter into/terminate tenancies or (b) sell; (14) Required forms; (15) Photographs of court as visual aid for P; (16) E-mails received out of hours to vacate next day hearings; (17) Any other business.

Minutes of Court User Group Meeting (30/4/19) Minutes

COPUG minutes

(1) Apologies; (2) Minutes and Action points; (3) Court Manager's Report; (4) Update on the Mental Capacity Amendment Bills; (5) Response to correspondence; (6) Update on ALR scheme; (7) Contacting the court by telephone; (8) Update on progress of e-bundling; (9) COP9 papers not served; (10) COP General visitors using insecure IT equipment when visiting lay deputies; (11) Dealing with urgent applications; (12) Applications for authorities outside the standard terms of deputyship; (13) Request for consideration of a streamlined property and affairs process; (14) Amendment of property and affairs order templates to include reference to support for making decisions when P has capacity; (15) Naming solicitors in judgments; (16) Any other business. Next meeting: 15/10/19 at 1400, at First Avenue House.

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.

NCISH, 'Annual Report: England, NI, Scotland and Wales' (13/12/19) Report

Suicide and homicide report

"The 2019 annual report from the National Confidential Inquiry into Suicide and Safety in Mental Health (NCISH) provides findings relating to people who died by suicide in 2007-2017 across all UK countries. Additional findings are presented on the number of people convicted of homicide, and those under mental health care."

NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2018-19' (21/11/19) Statistics

DOLS statistics

"These official statistics provide findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2018 to 31 March 2019."

Paul Bracchi, 'How DID they let this legal aid lawyer con us all out of £22m?' (Daily Mail, 11/1/19) Newspaper article

Summary of Blavo case

The following quotation is from this detailed article: "In another ludicrous example, investigators found that the mental health facility in question had closed (in 2008) and burnt down (in 2010), so was not operational at the time the tribunal supposedly took place. The officials who checked this nonsense must have wondered if the person who put it on paper was a solicitor or a comedian."

Practice Direction: Statements and reports for MHRTs in Wales (October 2019) Tribunal guidance

Welsh tribunal report PD

This practice direction, which is based on and is similar to the English 2013 equivalent, sets out what is required of tribunal reports.

October 2019
Richard Jones, 'Response to MHA Review (4): Bureaucratic burdens' (14/1/19) Article


This article argues that the MHA Review's recommendations would lead to an unnecessary increase in bureaucracy.

Richard Jones, 'Response to MHA Review (5): MHA or MCA?' (29/1/19) Article


This article argues against the MHA Review's recommendation that patients who lack capacity to consent to admission or treatment for mental disorder, but who are clearly not objecting, should only be detained under the MCA.

Richard Jones, Mental Health Act Manual (22nd edn, Sweet and Maxwell 2019) Book

MHA book

The paperback is available from Amazon. The publishers also sell an eBook version (paperback, eBook or both). This is the book everybody needs to have.

Ross Tomison, 'Electronic Signatures and the Mental Health Act' (Thalamos, 20/11/19) Article

Electronic signatures

The conclusion of this article is: "The Mental Health Act doesn’t require a signature to be handwritten. Provided all other formalities have been met under the act for the form which is being completed, then an electronic signature is legally valid."

Scottish Government, 'Mental Health Law in Scotland: A Guide to Named Persons' (15/1/19) Document

Scottish guidance

"A named person is someone who can look after your interests if you are cared for or treated under mental health legislation. This guide provides information to help you understand your rights."

Sentencing Council, 'Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders: Consultation' (9/4/19) Document

Mental health sentencing consultation

Extract from introduction: "The Council has developed a draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders. The aim of the guideline is to consolidate and explain information which will assist courts to pass appropriate sentences when dealing with offenders who have either a mental health condition or disorder, neurological impairment or developmental disorder, and to promote consistency of approach in sentencing. "

Sentencing Council, 'Sentencing offenders with mental health conditions or disorders consultation' (consultation from 9/4/19 to 9/7/19) Consultation

"The Sentencing Council is issuing a new consultation on its proposed guideline on sentencing offenders with mental health conditions or disorders."

Sentencing Council, 'Sentencing Offenders with Mental Health Conditions or Disorders' (draft guidance, 9/4/19) Sentencing guidelines

Draft sentencing guidelines

These are the draft guidelines in relation to Sentencing Council, 'Sentencing offenders with mental health conditions or disorders consultation' (consultation from 9/4/19 to 9/7/19).


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