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1 Crown Office Row, 'Alasdair Henderson secures award of damages for false imprisonment in a hospital setting' (30/1/19) 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.
Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (April 2019 edition, 24/4/19) 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) This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019).
Alex Ruck Keene, 'Foreign powers of attorney - an unfortunate judicial wrong turn' (Mental Capacity Law and Policy, 26/3/18) 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.
Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17) This article related to a "cluster" of sex alerts at residential homes owned by Hillgreen Care, a private company that specialised in the care of young adults with learning disabilities. It was said that confidential documents revealed that: (a) the deputy manager of one home was a convicted sex offender working in Britain illegally; (b) concerns were raised at other homes over “sexual grooming” of residents, and staff having sex while on duty; (c) care workers were initially told not to inform police of a suspected rape in November 2015 of a severely autistic 23-year-old man who lacked capacity to consent to sexual relations; and (d) potential DNA evidence linked to the incident was destroyed. The CQC said it was "actively pursuing what criminal action can be taken in relation to the failings" at the Enfield home, and had not made any of the concerns public because its desire to be "open and transparent" needed to be balanced alongside a risk of "compromising ongoing investigations".
Andrew Norfolk, 'Sexual predator’s victim was failed at every turn' (The Times, 27/7/17) (1) This article is critical of the CQC's response to sexual abuse in a care home: "It had the power to bring criminal charges against the company or the senior individuals responsible for its running. Instead, it chose a much quieter, less public course of action. The Enfield home no longer has any vulnerable adults in its care. It is one of four Hillgreen homes that have ceased to operate since November 2015 because the CQC identified, and publicised, lesser problems in their operation. In the case of the home where Tom was allegedly attacked, the commission’s website carries the report of a 2016 inspection that was published in October last year. It rated the facilities as inadequate and unsafe, but not because a high-risk sex offender was allowed unsupervised access to the bedroom of a defenceless, highly vulnerable resident. Instead, the report criticised the home for failings that included storing mops and buckets in the garden and having overflowing bins, scuffed skirting boards, loose handles on kitchen drawers and a broken dishwasher. The report noted the recent promotion of a senior care worker to deputy manager but chose not to reveal that the vacancy was created by the exposure of her predecessor as a convicted sex offender. ... No one has told the residents of those homes, or their families, what happened at the Enfield home in November 2015. It is almost a year since anyone spoke to Tom’s mother about the attack." (2) It is also critical of the care home management: "In written statements seen by The Times, three Hillgreen workers said that Ross Dady, the company’s regional manager, and Roger Goddard, its director of care, initially told them they should not contact police or any external authorities. ... [Tom's mother's] shock and dismay increased, she said, when the manager told her that Tom had not yet been taken to hospital and that JL had not been arrested because '[Tom] may have consented to it'. There is some disagreement as to how swiftly, and by what means, the various safeguarding authorities became aware of the incident but by the time the police were involved Tom’s underwear had already been put through the laundry." (3) After this article the CQC did prosecute: see CQC v Hillgreen Care Ltd [2018] MHLO 50.
Andy McNicholl, 'Court quashes “unlawful” Care Act assessment of learning disabled man' (Community Care, 3/7/17) This article summarises R (JF) v London Borough of Merton [2017] EWHC 1519 (Admin).
BBC News, 'Peterborough roof jump woman wins appeal bid' (25/3/10) The article ends as follows: Lord Justice Elias agreed, saying: "What was before the crown court did not substantiate sufficient risk to the public to justify a restriction order. We therefore quash that part of the sentence."
Belfast Telegraph, 'Blind veteran tells judge he is ‘living again’ after going home' (19/3/19) 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).
Ben Troke, 'The death of DoLS - the "Liberty Protection Safeguards" are before Parliament now' (Browne Jacobson, 4/7/18) 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."
Claire Tyler, 'The stormy passage of the Mental Capacity (Amendment) Bill' (The House Magazine, 2/5/19) 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) 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) 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, '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) 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."
CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (13/11/18) 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."
CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18) 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."
CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19) "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) 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) 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) 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.
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) This document details how the CQC will conduct the review.
CQC, 'Use of the Mental Health Act 1983 in general hospitals without a psychiatric unit' (April 2010) Apparently this guidance document has been "withdrawn".
Crown Prosecution Service, 'Prosecution Guidance: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) 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."
DHSC, 'Equality Analysis: Liberty Protection Safeguards – Mental Capacity (Amendment) Bill' (17/12/18) 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."
Edge Training, 'Liberty Protection Safeguards: Jargon Buster' (18/6/19) 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?)"
Evening Gazette, 'Canvey: Cash damages for patient “an insult”' (4/12/00) The defendant's offer was rejected, so the case was to proceed to a jury trial.
Evening Gazette, 'Canvey: Gary's Pyrrhic victory' (27/2/01) The claimant was awarded damages of £26,000, which was less than defendant's £30,000 offer.
Form T132: In-patient: Statement of information about the patient 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 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."
HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) 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.
HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18) 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.
HMPPS, 'Leave Application for Restricted Patients' (3/5/19) 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) 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) 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.
Home Office, 'Preventing and tackling forced marriage: a consultation' (15/11/18) 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."
Independent Review of the Mental Health Act 1983, 'Modernising the Mental Health Act: Increasing choice, reducing compulsion' (final report, 6/12/18) 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.
Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 5/12/18) 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
Law Society, 'Parliamentary briefing: Mental Capacity (Amendment) Bill: House of Commons second reading' (18/12/18) 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."
Legal Aid Agency, 'Keycard 54' (issued Apr 2018, updated Sep 2018) This document is helpful when working out financial eligibility for civil Legal Aid. Superseded by: Legal Aid Agency, 'Keycard 55' (April 2019).
Legal Aid Agency, 'Keycard 55' (April 2019) This document is helpful when working out financial eligibility for civil Legal Aid.
Lucy Series et al, 'Welfare cases in the Court of Protection: A statistical overview' (Cardiff University, 28/9/17) The report is based on findings from (1) a study based on data gathered from CoP welfare case files held by the court; and (2) a study using the Freedom of Information Act 2000 to gather data from local authorities and NHS bodies about their involvement in CoP welfare litigation.
Luke Haynes and Mithran Samuel, 'Government issues deprivation of liberty definition in bid to provide clarity to practitioners' (Community Care, 11/1/19) 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".
Mark Hinchliffe and Zoe Blake, 'Letter to all Hospitals regarding our Minimum Requirements' (11/4/18) This is a covering letter for HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18).
Matthew Stanbury, 'The making of hospital orders and the use of hybrid orders' (Garden Court North, 27/3/18) This article, written by counsel for one of the appellants, summarises the case of R v Edwards [2018] EWCA Crim 595.
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) 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.
Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09) This guidance has been superseded by 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). It deals with the various categories of observers and the terms on which they may be permitted to attend tribunal hearings.
Ministry of Justice, 'Circular 2018/01: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) 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, 'Family Court Statistics Quarterly, England and Wales, April to June 2017' (28/9/17) 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) 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) 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, 'Updated guidance on the Rehabilitation of Offenders Act 1974' (4/3/14) 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).
Minutes of Court User Group Meeting (11/4/19) (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.
Minutes of Court User Group Meeting (15/10/19) (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.
Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19) 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.
NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2017-18' (2/10/18) 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."
Paul Bracchi, 'How DID they let this legal aid lawyer con us all out of £22m?' (Daily Mail, 11/1/19) 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."
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) This document, together with Tribunal Procedure Committee, 'Extracts from the Minutes of the Tribunal Procedure Committee' (4/10/17 to 7/3/18), 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).
Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16) Supersedes Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 [2015] MHLO 36.
Richard Jones, 'Response to MHA Review (1): Removing the distinction between s2 and s3' (8/12/18) This article discusses the fact that the MHA Review does not recommend merging s2 and s3.
Richard Jones, 'Response to MHA Review (2): Managers' hearings' (10/12/18) This article considers the MHA Review's recommendations in relation to hospital managers' hearings.
Richard Jones, 'Response to MHA Review (3): Jurisdiction of the First-tier Tribunal' (28/12/18) This article considers the MHA Review's recommendations in relation to the Mental Health Tribunal.
Richard Jones, 'Response to MHA Review (4): Bureaucratic burdens' (14/1/19) 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) 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.
Ruth Atkinson-Wilks, 'Case Summary: RW v Chelsea and Westminster Hospital NHS Foundation Trust (2018) EWCA Civ 1067' (Bevan Brittan, 10/9/18) This document contains a well-structured summary of the judgment in PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067.
Scottish Government, 'Mental Health Law in Scotland: A Guide to Named Persons' (15/1/19) "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, 'Manslaughter: Definitive guideline' (published 31/7/18, enforcement date 1/11/18) 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.
Sentencing Council, 'Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders: Consultation' (9/4/19) 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' (draft guidance, 9/4/19) 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).
Sophy Miles, 'High Court to scrutinise restrictions on areas where P has capacity' (Doughty Street Chambers, 6/11/18) This article summarises the case of Manchester City Council Legal Services v LC [2018] EWHC 2849 (Fam).
SRA, 'Ethics guidance: Disclosure of client's confidential information' (5/2/16) This guidance deals with Outcome 4.1 of the SRA Code of Conduct 2011, which is that "you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents", to which there are no exceptions (in contrast with the previous SRA Code). The status of this guidance is described as follows: "This advice does not form part of the SRA Handbook and is not mandatory, but the SRA may have regard to it when exercising its regulatory functions. This guidance is intended to highlight that where you disclose client information, your justification for doing so will be taken into consideration for conduct purposes. In some limited circumstances, the justification is likely to result in us deciding to take no regulatory action as a result." Circumstances in which disclosure may be justified for conduct purposes are described under the following headings: (1) Where a client has indicated their intention to commit suicide or serious self harm; (2) Preventing harm to children or vulnerable adults; (3) Preventing the commission of a criminal offence.
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) 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.
Tribunal Procedure Committee, 'Extracts from the Minutes of the Tribunal Procedure Committee' (4/10/17 to 7/3/18) 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).
Tribunal Procedure Committee, 'Minutes' (25/7/18) 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).
Tribunal Procedure Committee, 'Minutes' (6/6/18) Minutes of 6/6/18 meeting, including discussions about proposed rule changes (relating to pre-hearing examinations and paper hearings) and litigation friends.
Upper Tribunal case summary document (January 2016) This is a document issued to tribunal judges as guidance. The summary of PJ v A Local Health Board [2015] UKUT 480 (AAC), [2015] MHLO 63 (in relation to the tribunal's role when faced with an ECHR breach) effectively rephrases as correct the position found to be unlawful by the Upper Tribunal (whose decision has since been overturned on appeal). The summary of WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132 (in relation to the appropriate medical treatment test applying to the detaining hospital only) appears to contradict the ratio of the Upper Tribunal decision. See the case law pages for further details.

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