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- 05/03/14 (17): Ian Hunt, 'Adding a Bayes Leaf to the Law' (1/3/14). Commentary on Mostyn J's approach to assessing and combining probabilities in Re D (a Child): A Local Authority v B and C  EWHC 121 (Fam). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (16): 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 43, March 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (15): 39 Essex Street, 'Good practice in the implementation of the DOLS safeguards, as drawn from the CQC's Report: Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012-13' (February 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (14): Adrian Ward, 'An introduction to Scottish adult incapacity law (1)' (January 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (13): 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 42, February 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (12): Adrian Ward and Jill Stavert, 'Deprivation of liberty and adults with incapacity: a Scottish perspective' (January 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (11): 39 Essex Street, 'Mental Capacity Law Newsletter' (issue 41, January 2014). See 39 Essex Street Mental Capacity Law Newsletter
- 05/03/14 (10): Legal Aid Agency: 'Civil face to face contracts from August 2014' page. This page contains documents relating to the tendering process for mental health and community care contracts which runs from 25/2/14 to noon on 25/3/14. See Legal Aid
- 05/03/14 (9): My Daft Life Blog, 'Our #justiceforLB summary statement' (1/3/14). See Independent inquiries
- 05/03/14 (8): Bindmans LLP, 'Death of 18-year old Connor Sparrowhawk was preventable' (press release, 28/2/14). See Independent inquiries
- 05/03/14 (7): Southern Health NHS Foundation Trust, 'Publication of investigation report into the death of Connor Sparrowhawk' (press release, 24/2/14). See Independent inquiries
- 05/03/14 (6): Verita, 'Independent investigation into the death of CS: A report for Southern Health NHS Foundation Trust' (February 2014). See Independent inquiries
- 05/03/14 (5): LPA case. Neutral citation added (case was already on MHLO). Re Buckley: The Public Guardian v C (2013) EWHC 2965 (COP), (2013) MHLO 13 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. ... Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA." [Summary required; detailed external summary available.]
- 05/03/14 (4): Deprivation of liberty case. The Local Authority v Mrs D (2013) EWHC B34 (COP), (2013) MHLO 140 — "These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR. ... However, despite this non-admission of liability, the Local Authority had offered in compromise: (a) an apology to Mrs D for the delay in bringing these proceedings; (b) to pay a sum of £15,000 to Mrs D; (c) to pay the reasonable costs of the action incurred by Mrs D's litigation friend; (d) to pay a sum of £12,500 to her husband Mr D; (e) to pay Mr D's reasonable costs of the action. ... For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of rights, and as such it was approved."
- 05/03/14 (3): Medical case. Newcastle upon Tyne Hospitals Foundation Trust v LM (2014) EWHC 454 (COP), (2014) MHLO 14 — "On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. ...At the end of the hearing I granted the application and made the following declaration: 'It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.' ... In consequence, I find that LM made a decision that the doctors rightly considered must be respected. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. ... The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death  1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court's jurisdiction to restrict the reporting after a person's death of information gathered during proceedings that took place during her lifetime. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question."
- 05/03/14 (2): Capacity case. LB Redbridge v G (2014) EWHC 485 (COP), (2014) MHLO 13 — "Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. ... I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction. ... The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare. It is my intention to so direct. ... Rule 90 (3) allows me to authorise any person or class of persons to attend the hearing and, given the interest of the Press, I will allow accredited members of the media to attend. However there will be an order, as before, prohibiting the publication of anything that will lead to the identification of G, C and F and any other private individual concerned with the proceedings."
- 05/03/14 (1): Deputyship case. JS v KB and MP (Property And Affairs Deputy for DB) (2014) EWHC 483 (COP), (2014) MHLO 12 — "This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for: (i) the financial and emotional vulnerability of the person who lacks capacity; and (ii) the requirements for formal, and legal, authorisation for the family's actions, specifically in relation to property and financial affairs. ... For the reasons set out above, the order I make is that: (i) JS shall pay four-fifths of the deputy's litigation costs to date; (ii) JS shall pay two-thirds of the litigation costs of KB. Given the possibility that JS will be unable to fund the costs within a reasonable time, either from the sale of the Spanish property or otherwise, I propose to allow MP to explore the mechanics of an equity release scheme to permit JS to discharge her liability for costs by way of a loan against the equity in Beech Avenue. I give MP leave to apply for such a scheme. ... I give further leave to MP to investigate, and if the need arises to bring proceedings against PK solicitors for any financial loss suffered by DB."
- 04/03/14 (10): Best interests case. Westminster City Council v Sykes (2014) EWHC B9 (COP), (2014) MHLO 11 — "It is my view that it is in Ms S's best interests to attempt a one-month trial of home-based care. Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed. ... Having thought about the issue carefully, I have decided on balance - and it is quite finely balanced - that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence."
- 04/03/14 (9): Deputyship case. Re ES: Kent County Council v PLC and AJS (2014) EWHC B6 (COP), (2014) MHLO 10 — "Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs. ... I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed."
- 04/03/14 (8): Medical case. Heart of England NHS Foundation Trust v JB (2014) EWHC 342 (COP), (2014) MHLO 9 — "My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her."
- 04/03/14 (7): LPA case. Re DP (Revocation of LPA): OPG v JM (2014) EWHC B4 (COP), (2014) MHLO 8 — "Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP's best interests. Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP's property and affairs."
- 04/03/14 (6): Capacity case. RC v CC (2014) EWHC 131 (COP), (2014) MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment."
- 04/03/14 (5): Capacity case. Re X, Y and Z (Minors) (2014) EWHC 872 (COP), (2014) MHLO 6 — "On 20th and 29th November 2013, sitting as a judge in the Family Division and in the Court of Protection, I made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother (hereafter referred to as "P") who is a person lacking capacity within the meaning of the 2005 Act. This judgment sets out the reasons for making those orders."
- 04/03/14 (4): COP practice guidance. Practice Guidance (Transparency in the Court Of Protection) (2014) EWHC B2 (COP), (2014) MHLO 5 — "The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)."
- 04/03/14 (3): Committal case. Re PW (Court of Protection Order) (2014) EWHC B8 (COP), (2014) MHLO 4 — "The applicant in this matter, Sunderland City Council, brings these proceedings for committal against Lindsey M for breach of an order which this court made on 14th October 2013. ... Lindsey M admits that on 28th October she breached the order which the court had made and therefore brought herself within breach of the suspended order for imprisonment which the court had made on 14th October. Upon that date the court made a suspended order, which was suspended upon the basis that she complied with the previous court order and that she did not seek to have contact, or go into the property of PW. ... In all the circumstances, it seems to me that before I determine what is an appropriate sentence in all the circumstances it would be preferable to see whether Miss M, in fact, does carry out what she says to the court she will do, namely not to have a relationship with PW. I make it clear for Miss M's sake that if there are no further breaches then I will deal with the admitted breach by taking no action upon it."
- 04/03/14 (2): Neutral citation number changed. The transcript of YLA v PM (2013) EWHC 4020 (COP), (2013) MHLO 114 was initially made available with the neutral citation number  EWHC 3622 (Fam), but the case has since been published on Bailii as  EWHC 4020 (COP).
- 04/03/14 (1): CPD scheme. The CPD questionnaires for all months up to and including January 2014 are now online. Obtain 12 CPD points online for £60. For details see CPD scheme
- 20/02/14 (1): Event. Browne Jacobson Solicitors, together with Nottingham University Hospitals NHS Trust, are running a one-day conference in Nottingham on Tuesday 11/3/14 entitled 'Liabilities in elderly care conference 2014: Reducing legal risk in an ageing Britain'. Speakers include representatives from the NHS Litigation Authority, CQC, Department of Health, RCGP, HM Coroner, and British Geriatrics Society, plus academics and leading counsel. Standard price is £150 plus VAT, but a discounted price of £100 plus VAT is available for MHLO readers (mention MHLO in the online 'invoice details' box, or when you email or call). For more details see flyer, and to register online please go to the Browne Jacobson website. See Events
- 18/02/14 (3): West Midlands Police, 'Statement about suspension of "Mental Health Cop" Twitter account' (15/2/14). See Miscellaneous external links
- 18/02/14 (2): Emergency Shorts website: Mental Health Cop. The blog posts are, at the time of writing, still available on this website. See Miscellaneous external links
- 18/02/14 (1): Kashmira Gander,' Mental Health Cop Twitter account suspended: Inspector's feed under investigation by West Midlands Police' (Independent, 17/2/14). See Miscellaneous external links
- 16/02/14 (3): Peter Edwards, 'When should local authorities stop people having sex' (Peter Edwards Law website, 10/2/14). See IM v LM (2014) EWCA Civ 37, (2014) MHLO 1
- 16/02/14 (2): Jess Connolly, 'Court of Appeal on the issue of capacity to consent to sexual relations: IM, LM, AB and LCC  EWCA Civ 37' (Legally Blog website, 27/1/14). See IM v LM (2014) EWCA Civ 37, (2014) MHLO 1
- 16/02/14 (1): Sex case. AB v LM (2013) EWHC 1234 (COP), (2013) MHLO 139 — "I find on paying close attention to Dr P's advice, but also considering the contribution of Dr G, that Lisa does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been full to sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for Lisa would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality."
- 05/02/14 (4): Extradition case. Republic of South Africa v Dewani (2014) EWHC 153 (Admin), (2014) MHLO 3 — If the RSA government were to give a suitable undertaking, it would not be oppressive or unjust to return Dewani to the RSA for trial. The undertaking would need to be to the following effect: 'In the event of the appellant being found unfit to be tried, he will be free to return to the UK, unless there is found to be a realistic prospect of his being tried within a year (or other stated reasonable period) of that finding and the trial takes place within the period. In any event the appellant must be free to return in the event a Court in South Africa, having found him unfit to be tried, embarked on the process of determining under the Criminal Procedure Act 1977 whether he did the act.'
- 05/02/14 (3): Thoughts by Dylan Benson: The story of Dylan and Iver (blog). See Miscellaneous external links
- 05/02/14 (2): CTV News, 'Community rallies behind husband of brain-dead pregnant woman (3/2/14). See Miscellaneous external links
- 05/02/14 (1): Caesarian case. Re P (Caesarian - Royal Free) (2014) MHLO 2 (COP) — The press has reported this case as follows: Hayden J decided that it was in the best interests of a pregnant woman, who suffered from schizophrenia, to have a caesarian at 32 weeks in order for her life-threatening condition to be treated, although she was not to be restrained or have force used against her.