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For details of any news item, click on the relevant link below.

  • 22/04/15 (1): Department of Health and Welsh Government, 'Mental health aftercare in England and Wales: Arrangements for resolving disputes over ordinary residence involving local authorities in England and Wales' (March 2015). These arrangements, made under s117(5), set out the process by which the Secretary of State for Heath and the Welsh Ministers will decide which of them will determine a dispute about where a person was ordinarily resident for the purposes of s117(3) if the dispute is between an LSSA in England and an LSSA in Wales. See After-care
  • 19/04/15 (2): Mental Health Law Online is 9 years old today! To celebrate this anniversary there are several new website features, including a Facebook page and a menu of icons which you can use to share pages across social media. See Main Page
  • 19/04/15 (1): New Mental Health Law Online Facebook page. MHLO now has a Facebook page - click "Like" on that page to follow it and have MHLO news items appear on your timeline. It's a "page" rather than a "group" so is not designed to replace the email discussion list, but it is possible to share each item with friends and add comments.
  • 16/04/15 (1): Deprivation of liberty case (own home). W City Council v Mrs L (2015) EWCOP 20, (2015) MHLO 35 — "This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer's disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues: (a) whether the care arrangements for the lady (Mrs L) constitute a deprivation of her liberty; (b) if so, then whether the State is responsible for such deprivation of liberty; and (c) if so, then whether such deprivation of liberty should be authorised by the court and what the arrangements for continuing authorisation should be."
  • 13/04/15 (1): PI quantum case. DD v Dudley and Walsall NHS Trust (2014) MHLO 145 (PI)The Claimant's partner committed suicide while being detained under s2 Mental Health Act. The Claimant and the deceased were not married but had been cohabiting for a number of years. The deceased was also the Claimant's full time carer as a result of the spinal fusion surgery the Claimant had undergone some years previously. The deceased had a history of mental illness which was depressive in nature. At the time of his death his mental health had deteriorated significantly. While detained under the Mental Health Act, the deceased was initially assessed as not having capacity nor insight into his illness; he was also becoming aggressive and a risk to himself and others. However, an assessment by the duty doctor the following night did not indicate that the deceased was a self-harm risk, nor were there any known acts/plans since admission. Later that evening the deceased killed himself. The Trust carried out a Serious Untoward Incident investigation which highlighted a number of failings in the care of the deceased. The Defendant made some admissions of liability in its Letter of Response. However, the Defendant put the Claimant to proof as to the nature of his relationship with the deceased and the level of care he required. The Claimant made a claim for dependency as the deceased had been his full time carer. A claim was also made under the Human Rights Act 1998 for a breach of Article 2, the Right to Life. It was acknowledged by the Claimant that there would be no monetary award under this Act (only an acknowledgement of the breach) as compensation was sought under the Fatal Accidents Act 1976. A Round Table Meeting was held in June 2014 and the Claimant accepted a settlement of £185,000. (Summary provided by claimant's solicitor.)
  • 12/04/15 (1): Mind, 'Legal Newsletter' (Issue 18, March 2015). This issue contains the following headings. (1) Articles: (a) The Care Act; (b) Policing and mental health: Report of the Home Affairs Committee; (c) CQC fifth annual monitoring report on the implementation of DoLS; (d) Revised code of practice for the Mental Health Act published; (e) Take action for better mental health: Mind manifesto for the General Election 2015. (2) Case Reports and Case Notes: (a) Essex County Council v RF (2015) EWCOP 1, (2015) MHLO 2, 7 January 2015; (b) Bostridge v Oxleas NHS Foundation Trust (2015) EWCA Civ 79, (2015) MHLO 12; (c) Court rules that Mother of Six can be sterilised; (d) Re AJ (DOLS) (2015) EWCOP 5, (2015) MHLO 11; (e) NL v Hampshire CC (2014) UKUT 475 (AAC), (2014) MHLO 107, 21 October 2014. (3) News: (a) Mental Health Act Annual Report 2013/14; (b) Legal Aid Agency, 'Requests for Supplementary Matter Starts: Guidance to Contract Managers'; (c) FCO Advice to travellers with mental health problems; (d) Law Society practice note on representation before Mental Health Tribunals; (e) Mental Capacity Act DoLS (Deprivation of Liberty Safeguards) Procedure; (f) New CQC Guidance, information about some important changes coming into effect on 1 April 2015; (g) Local Government Ombudsman Decision Cambridgeshire County Council 13 016 935 (2015) MHLO 9 (LGO); (h) Strengthening the Rights of People with Learning Disabilities, Autism and Mental Health Conditions. See Mind (Charity)#Newsletter
  • 10/04/15 (5): Judiciary website, 'Court of Protection Practice Directions come into force 6 April 2015' (2/4/15). Also: Sophy Miles, 'New Practice Directions out now!' (Court of Protection Handbook Blog, 8/4/15). See Court of Protection Practice Directions
  • 10/04/15 (4): Guardianship/DOLS case. NM v Kent County Council (2015) UKUT 125 (AAC), (2015) MHLO 34NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. He also said that a limitation inherent in the DOLS regime was that, while it could prevent NM from leaving, it could not deal with the possibility that he may abscond. (3) In some (other) cases guardianship may not be necessary for the purposes of s72(4)(b) as DOLS may provide sufficiently for the person’s welfare and the protection of others. (4) The First-tier Tribunal's reasons on the statutory criteria (the key being that NM would not remain at the home without guardianship) and the relationship with DOLS (concerning return following absconsion) were in substance adequate to explain and justify its decision.
  • 10/04/15 (3): New tribunal forms: T110-Guardianship and HQ1-Guardianship. From 7/4/15 these forms should be used in guardianship cases. See Tribunal forms
  • 10/04/15 (2): Alex Ruck Keene et al, 'Deprivation of liberty: a practical guide' (Law Society, 9/4/15). Law Society summary: "The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards. The safeguards aim to ensure that those who lack capacity and are residing in care home, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives. The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings. It uses case scenarios to explain the law following the landmark judgment of the Supreme Court in the case of Cheshire West (2014). The complete guidance is available below. You can also download individual chapters relating to specific care settings. Quick reference sheets also highlight relevant liberty restricting factors and key questions for practitioners relating to each individual setting." The guidance contains the following chapters: (1) introduction; (2) the law; (3) Cheshire West; (4) the hospital setting; (5) the psychiatric setting; (6) the care home setting; (7) supported living; (8) at home; (9) under 18s; (10) summaries of key cases; (11) further resources. See DOLS#Academic articles etc
  • 10/04/15 (1): Event: conference in Cork. The Centre for Criminal Justice and Human Rights at the University College Cork, and the Irish Mental Health Lawyers Association, are holding a Mental Health Law Conference on Saturday 25/4/15 from 10am to 2pm in Cork. Speakers and chairs include: Ms Kathleen Lynch, TD, Minister of State for Primary Care, Mental Health and Disability; Judge John O’Connor, District Court; Judge Anselm Eldergill, Court of Protection, England; Ms Joan Doran, Solicitor, Chairperson of IMHLA; Dr Maria Morgan, Psychiatrist; Dr Ciaran Craven, Senior Counsel; Dr Darius Whelan, School of Law, UCC. Cost: €80 (NGOs €30, full-time students free). For further details and booking information see University College Cork website. See Events
  • 31/03/15 (2): Deprivation of liberty case. Re D (A Child: deprivation of liberty) (2015) EWHC 922 (Fam), (2015) MHLO 33 — "I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents' consent to his placement there. I am satisfied that, on the particular facts of this case, the consent of D's parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the 'zone of parental responsibility'. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement. In the case of a young person under the age of 16, the court may, in the exercise of the inherent jurisdiction, authorise a deprivation of liberty."
  • 31/03/15 (1): Criminal case. R v Marshall (2015) EWCA Crim 474, (2015) MHLO 32 R v Marshall (2015) EWCA Crim 474, (2015) MHLO 32 — "On 12th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986. On 12th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years. With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order. ... Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal."
  • 29/03/15 (1): Department of Health, Reference Guide to the Mental Health Act 1983 (2015). A new Reference Guide was published in England to coincide with the coming into force of the new Code of Practice on 1/4/15. Description from Government website: "It is a reference source for people who want to understand the main provisions of the Mental Health Act 1983 and the regulations under the Act, as amended at 1 April 2015, including by the Mental Health Act 2007, Health and Social Care Acts 2008 and 2012 and Care Act 2014. The revised reference guide complements the revised Mental Health Act Code of Practice, with the Code giving guidance on how the Act should be applied." See Reference Guide to the Mental Health Act 1983
* To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website (for now), and will be marked with asterisks.

Update archive