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Recent updates on website

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

  • 21/03/17 (1): Edge Training: DOLS: a new beginning? - London, 31/3/17 — This half-day course aims to provide a detailed overview and analysis of the Law Commission's recent proposals and draft legislation to replace DOLS with the Liberty Protection Safeguards. It will consider the potential impact of the proposals on individuals, professionals and organisations. There are separate morning (0930-1230) and afternoon (1330-1630) sessions. Speaker: Steven Richards. Cost: £65 + VAT (£78). See flyer for further details and booking information.
  • 17/03/17 (5): Edge Training: DOLS MH Assessor Annual Refresher Course - London, 24/4/17 — This refresher course has been designed to meet the needs of DOLS Mental Health Assessors. It will cover key topics that cause uncertainty or dilemmas for MH Assessors and go over the main basic requirements of this challenging role. Common Mental Health Act and DOLS interface issues will also be addressed such as the law around the provision of mental health treatment under DOLS. Speaker: Aasya Mughal. Cost: £180 + VAT (£216). See flyer for further details and booking information.
  • 17/03/17 (4): Edge Training: Best Interests Assessors Report Writing Course - Sheffield, 27/3/17 — This course is targeted specifically at qualified Best Interests Assessors (BIAs) and aims to provide them with the knowledge and skills needed to ensure robust and legally defensible assessments under the Deprivation of Liberty Safeguarding (DOLS). Speaker: Piers McNeil. Cost: £130 + VAT (£156). See flyer for further details and booking information.
  • 17/03/17 (1): Upper Tribunal case. LB v BMH [2017] MHLO 10 (UT) — "The First-tier Tribunal decided that the patient should not be discharged from liability to be detained and to make no recommendation pursuant to section 72(3) and (3A) of the 1983 Act. Paragraph 19 of its written decision recorded the following: 'The solicitor representing the patient sought an adjournment as she had concerns about the quality of the evidence regarding the patient's clinical treatment in the past. We have some sympathy with the view that the patient's treatment history is incomplete. A summary of the previous treatments should be available to the panel wherever possible. However, the recent treatment history during the in-patient admission at [this hospital] was available to the panel. There was ample evidence before the panel that the patient is floridly psychotic and in our view the evidence satisfied the criteria for detention. We refused the request for an adjournment.' ... The grounds of appeal argue that the reports before the First-tier Tribunal gave very little information about the patient' s previous placement, nor about the reasons for the transfer, nor about any previous trials with clozapine. The application for an adjournment was made with a view to persuading the First-tier Tribunal to recommend a transfer under section 72(3), which was not possible without further information. This was especially important because the First-tier Tribunal proceedings were by way of reference and the patient was unlikely to appeal himself 'and may remain inappropriately placed for a further three years'. I agree with these grounds and also note that the application to adjourn was not made by or on the instructions of the patient but by an experienced specialist solicitor who had herself been appointed by the tribunal and felt that there was inadequate evidence before the tribunal (which, to an extent, the tribunal itself acknowledged). ... [T]he refusal to adjourn amounted to a breach of the rules of natural justice and fair procedure and for these reasons this appeal is allowed."
  • 06/03/17 (1): Testamentary capacity case. White v Philips [2017] EWHC 386 (Ch), [2017] MHLO 9 — "The claimant, Linda Anne White is the testator's widow. They had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contends that at the time he gave instructions and when he signed his will Mr White lacked testamentary capacity with the result that the will is invalid and, since there was no prior will, his estate should be distributed in accordance with the rules relating to intestacy. A pleaded claim to the effect that the execution of the will was obtained by undue influence is no longer being pursued. The only matter for determination therefore is whether at the time Mr White had testamentary capacity."
  • 01/03/17 (1): Peter Edwards Law, 'Legal aid agency undermine right of s21A appeal' (1/3/17). This article discusses an email from the LAA (relating to a currently unreported case) which stated: "Unfortunately you will not be covered under the current certificate for the period in which the standard authorisation was not in place as this is a condition of non-means funding. As you confirm the standard authorisation has now been renewed, the certificate would be able to continue but there would be a gap in funding. Apologies that this is not the outcome you were hoping for and I do understand that this was out of your hands, but it will not be possible to claim when the authorisation was not in place." See UF v A Local Authority [2013] EWHC 4289 (COP), [2013] MHLO 105
  • 23/02/17 (4): Upper Tribunal capacity case. PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity."
  • 23/02/17 (3): Northern Irish best interests/DOL case. Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 61 — "This case relates to an elderly lady, NS. She has been represented by the Official Solicitor (OS) throughout these proceedings. ... The case therefore first came to court when the Trust sought to place NS in a residential facility after the hospital admission in May 2016. This was at a time when a stay in hospital was no longer required. The issue in the case was really whether NS should be discharged to a residential facility or to the care of MS with a care package. ... This case therefore involves consideration of a number of questions which I summarise as follows: (i) Is the patient incapable of making a decision regarding the particular issue put before the court? (ii) If so is the plan/treatment proposed in the best interests of the patient? (iii) Is the intervention necessary and proportionate pursuant to Article 8 of the ECHR? (iv) If the plan involves a deprivation of liberty under Article 5 of the ECHR should that be authorised by the court and if so under what terms regarding duration and review?"
  • 23/02/17 (2): Northern Irish DOL case. Belfast Health and Social Care Trust v PT [2017] NIFam 1, [2017] MHLO 7 — "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ..→
  • 23/02/17 (1): Mental health accreditation scheme. (1) A new accreditation application form has been published (dated 17/2/17). The main changes are the removal of question 20 ("Please state the number of CPD hours attributable to mental health related courses that you have undertaken") and a new professional development statement (referring to "Learning outcomes", "Category of learning and relevant competence" etc). (2) A new re-accreditation application form has been published (dated 20/2/17). The main change is a new format for each year's Professional development training record. See Law Society mental health accreditation scheme
  • 19/02/17 (3): Updated DH contact details for seeking tribunal references. The current details are as follows. Department of Health, Mental Health Legislation, Area 226, Richmond House, 79 Whitehall, London SW1A 2NS. Email: mentalhealthact2007@dh.gsi.gov.uk Fax: 0115 902 3211 or 0207 451 7978. Tel: Matthew Lees , MHA Policy lead (020 7210 5774), Gillian Baker , MHA Policy Manager (0113 254 6787) or Rose Cofie (020 7210 5548). See MHA 1983 s67
  • 19/02/17 (2): COPPA: Costs in the Court of Protection - Bristol, 22/2/17 — This training event will include an update on fixed costs and interim billing options in the Court of Protection, file management/time recording, and key cases in the Court of Protection. Times: 1730-1915. Price: £10 (free for COPPA members). For further details and booking information see the Court of Protection Practitioners Association website
  • 19/02/17 (1): Law and Compassion Research Network: Symposium on Law, Compassion, and Healthcare - London, 18/5/17 — A symposium exploring compassion in relation to law and healthcare - through presentations and discussion, with speakers from academia, practice, and the judiciary. Speakers: Sir Mark Hedley, Prof Hazel Biggs, Paul Bowen QC, Dr Paquita de Zulueta, Kate Rohde, Dr. Phil Bielby, Dermot Feenan. Chairmen: Dr Glenys Williams, Katy Peters. Price: £59.00. Times: 1400 to 1730. For further details and booking information see Eventbrite website
  • 16/02/17 (2): Peter Edwards Law, 'The Signpost' (February 2017). See Newsletters
  • 16/02/17 (1): Lucy Series, Phil Fennell and Julie Doughty, 'The Participation of P in Welfare Cases in the Court of Protection' (Cardiff University, 16/2/17). See Court of Protection#Participation of P
  • 15/02/17 (1): Ministry of Justice, 'Transforming our justice system: assisted digital strategy, automatic online conviction and statutory standard penalty, and panel composition in tribunals: Government response' (Cm 9391, February 2017). In the consultation document it was proposed to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the Senior President of Tribunals (SPT) "greater freedom to adopt a more proportionate and flexible approach to panel composition", by (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT; and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system. Following the consultation, the government will proceed with proposal (b) as the existing requirement is "an unnecessary restriction to the SPT to base decisions on what is the most appropriate and proportionate approach", but will not proceed with proposal (a) because of concerns arising from "the assumption that this will apply in all cases" (although it appears that this concession is not intended to make any difference in practice). To this end, the Order will be amended so that that "the SPT may provide that a panel should consist of one, two or three members, as required, in order to determine the matters before the tribunal justly and fairly". The consultation response envisages that the SPT will consult with both the tribunal judiciary and wider stakeholders before making any changes to panel composition. See Ministry of Justice, 'Transforming our justice system' (consultation from 15/9/16 to 27/10/16)
  • 14/02/17 (3): Best interests (residence) case. Devon County Council v Manuel Martins and Teresa Kirk [2016] EWCOP 45, [2016] MHLO 60A consent order signed on 9/2/17, which followed an application notice dated 23/1/17 and the death of Manual Martins on 1/2/17, led to the publication of this judgment of 10/6/16, together with the lifting of all reporting restrictions. Extract from judgment: "These proceedings in the Court of Protection concern an 81 year old man called Manuel Martins, now suffering from dementia. He is currently in Portugal, having been taken there by his sister, Teresa Kirk. Previous orders have been made by other judges of this court ordering his immediate return. To date, Mrs Kirk has failed to comply with those orders and it may be therefore that she is in contempt of court as a result. That is not however a matter for this hearing. Because of the passage of time, I considered it appropriate at an earlier hearing to direct a further assessment of where Mr Martins' best interests lay. The fact is that he has now been living in Portugal for some time and I considered that it would be right in the circumstances to direct a further assessment. That assessment having now been carried out, I have today conducted a hearing to determine whether it is in Mr Martins' best interests to return to this country, to reside at a unit hereafter referred to as "A House" in the town where he lived for many years before going to Portugal, or rather to remain in his current residential unit in Portugal. ... I conclude that the balance plainly comes down in favour of a return to this country and a placement at A House."
  • 14/02/17 (2): Daily Telegraph, 'Ian Brady begins "unique" High Court fight over tribunal lawyer' (14/2/17). See Ian Brady
  • 14/02/17 (1): Sue Reid, 'Touching picture of sibling devotion that was BANNED until now: Pensioner who was jailed by a secret court can finally tell the story of how she tried to protect her brother because, shortly after these photographs were taken, he died' (Daily Mail, 13/2/16). See Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, [2016] MHLO 51
  • 12/02/17 (1): Habitual residence case. Re DB [2016] EWCOP 30, [2016] MHLO 59 — "DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court."
  • 11/02/17 (1): SDT case. Victoria Wadsworth (strike off) [2016] MHLO 58 (SDT)Since 2007 Victoria Wadsworth had been in charge of a law firm's mental health department, and had invented another firm called "Healthy Minds" to pretend to write medical reports for clients, at the Legal Services Commission's expense. In the Crown Court she had admitted to obtaining £25,000 between 2007 and 2012 (though the law firm stated it had repaid £181,887.72, and the Legal Aid Agency statement referred to a value exceeding £134,000 being repaid). At the time of the hearing, she was in prison having been sentenced to three years (reduced to two on appeal) for fraud, but the Solicitors Disciplinary Tribunal proceeded in her absence. The Tribunal agreed that the rule 5(2) allegations which had commenced its proceedings had been superseded by the conviction and should lie on file. The Tribunal found breaches of Principle 1 (which requires a solicitor to uphold the rule of law and the proper administration of justice), Principle 2 (which requires a solicitor to act with integrity) and Principle 6 (which requires a solicitor to behave in a way that maintains the trust the public places in him and in the provision of legal services). The mitigation related to Proceeds of Crime Act 2002 proceedings, financial hardship, and caring responsibilities for her severely disabled adult son. She was struck off the roll of solicitors and ordered to pay the agreed costs of £21,864.10.
  • 09/02/17 (2): Mental Health Law Reports. Kris Gledhill has kindly provided short summaries of 24 cases from 2016. The full reports can be purchased from Southside Online Publishing. See Text:MHLR 2016
  • 09/02/17 (1): Immigration case. ASK v SSHD [2017] EWHC 196 (Admin), [2017] MHLO 6 — "The issue in this case concerns an allegation that in 2013 the Claimant - 'ASK' - was unlawfully detained in an Immigration Removal Centre pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts. The case raises a number of issues. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19 and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45. In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained? Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law? Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends? Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 what is meant by 'prompt' transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee? Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports."
  • 08/02/17 (3): Criminal appeal case. R v Holloway [2016] EWCA Crim 2175, [2016] MHLO 57 — "The applicant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. ... Subsequently, the judge decided to appoint counsel, a Mr David Malone, to assist the court and the applicant with legal issues. ... Ms Tayo asserts that the judge should have refused to allow the applicant to represent himself. She conceded, as she must, that he had been deemed fit to plead and stand trial and in principle had a right to defend himself but she maintained that the judge was obliged to force legal representation on him because of the nature and extent of his mental illness. ... Our conclusion on ground 1 can be stated shortly. This applicant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. ... It is clear that a defendant who is fit to stand trial cannot dismiss his legal representatives, insist on representing himself and then come to this court claiming he should not have been allowed to represent himself. ... The circumstances in which an advocate is appointed are very restricted. A memorandum dated 19 December 2001 agreed between the then Attorney General and Lord Chief Justice states in clear terms that an amicus will not be appointed for the purposes of cross‑examination in criminal trials and they will not be appointed 'simply because a defendant in criminal proceedings refuses representation'. Her Majesty's Attorney may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. Mr Little invited us to note that in such a situation, it is not the court who appoints the advocate but the Attorney and the advocate does not act on behalf of an accused in cross‑examining witnesses or presenting arguments before a jury. ... It is now accepted that a court has an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. In this case, however, an intermediary was not necessary. HHJ Lyons, with the best of intentions, purported to appoint an amicus 'to assist the court' who in truth was appointed to act as a defence advocate and adviser. We see considerable force in Mr Little's submissions that, save where statute provides, there is no power to appoint an advocate in these circumstances to perform such a role. Further, there is no need for any such power. The court now has ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation has been refused. Accordingly, we can find no basis for the appointment of Mr Malone, as helpful as he undoubtedly was to the court and to the applicant. Through no ..→
  • 08/02/17 (2): Extradition case. Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 5 — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?"
  • 07/02/17 (1): Link added to Government website: EC-CLAIM 1: escape fee case claim form. "Forms and checklists to submit escape fee case claims under the 4 different categories." The following documents are relevant to mental health law: (1) LAA, 'EC-CLAIM 1 MH: escape fee case claim form - mental health' (v8, April 2015); (2) LAA, 'Escape claim checklist - mental health' (v1.4, September 2016). See Legal Aid forms
  • 04/02/17 (5): Legal Aid Agency, 'Headline intentions for civil legal aid contracts from April 2018 (20/1/17). The LAA anticipate the procurement process for 2018 contracts is likely to start in April 2017, with services commencing on 1/4/18. Details of the process can be found in the document. It states the following in relation to mental health law: "We intend to change the case requirements under the current mental health supervisor standard to increase the number of tribunal cases to be evidenced from 5 to 10. We also intend to introduce a secondary route for supervisors that supervise a mixture of tribunal work and mental capacity work. Supervisors following this route will need to evidence 5 tribunal cases and 5 mental capacity cases. All supervisors following either route will additionally need to evidence 2 non-tribunal mental health cases. We also intend to limit the number of hearings where representation can be conducted either by counsel or an agent who do not carry out contract work for the provider for at least 14 hours per week. The Law Society is currently developing and implementing specialist panel accreditation for Mental Capacity (Welfare) Cases. Once introduced we wish to use this panel accreditation as the basis to restrict authorisation for Court of Protection work to offices with at least one accredited individual who is actively involved in delivering this work. We intend to implement this at the earliest practical opportunity and further information will be published once details of the accreditation scheme and implementation timescale are clearer." See Legal Aid#2018 contract
  • 04/02/17 (1): Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2015-17' (26/1/17). See Newsletters#Edge Training
  • 02/02/17 (2): HRA limitation case. AP v Tameside MBC [2017] EWHC 65 (QB), [2017] MHLO 4 — "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant."
  • 31/01/17 (1): Edge Training: MHA administration and management skills - London, 6/3/17 and 7/3/17 — This course aims to provide mental health administration staff and hospital managers with the skills and knowledge needed to effectively manage the Act in practice. It considers the necessary tools to ensure effective compliance with the legislation and Code of Practice. Speakers: Stephen Klein and Cassie Finnigan. Price: £260 + VAT (£312). See flyer for further details and booking information
  • 27/01/17 (10): Strike-out/capacity case. R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have jurisdiction", but only after "giving the applicant an opportunity to make representations in relation to the proposed striking out". (3) The solicitor accepted that the patient had lacked capacity to make the application, but argued: (a) that R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 (in which the House of Lords had decided that the MHA scheme was Convention compliant) was distinguishable, as MH related to section 2 where different timescales applied; and, therefore, (b) that s66 (Applications to tribunals), in order to be Convention compliant, should be read as applying to a patient "with the assistance of a litigation friend if needed". (4) The First-tier Tribunal judge's subsequent decision "that the matter may be closed as an invalid application", which was effectively a rule 8 strike-out decision, was the decision considered by the Upper Tribunal. (5) The challenge was made by way of judicial review, but there was a right of appeal so that route would have been more appropriate. (6) UTJ Jacobs, dismissing the JR application, decided that MH could not be distinguished (the timescales in the MH case were not significant, still less decisive) and there was no Convention breach: any apparent gap in the Tribunal rules (in the protection of a patient's right to bring his case to the Tribunal) disappeared when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. In conclusion, he stated that "[a]n application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review". (6) The Upper Tribunal decision makes no reference to the later ECHR decision in the MH case (MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94), which found that, during part of MH's detention, neither the Secretary of State referral process nor habeas corpus were adequate remedies ..→
  • 27/01/17 (9): PELT: Introduction to COP, including s21A appeals - Hoylake, 14/2/17 — Course description: "There was a time when the Court of Protection was just about financial issues. The Court is now the place where deprivation of liberty safeguards and procedures are authorised or challenged and where arguments about adult protection and best interests are resolved. It is essential that all those working with vulnerable people/safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (8): PELT: Introduction to the Mental Health Act - Hoylake, 14/3/17 — This course is for all those who need a basic understanding of the basics of the MHA. Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (7): PELT: Introduction to MCA and DOLS - Hoylake, 28/3/17 — Course description: "This is an intensive introduction to all those who need a basic understanding of the MCA and DOLS. Identifying the ‘decision maker’ as the person responsible for the outcome of that particular decision is the key to lawful decision making on behalf of those who lack capacity. Realising that depriving a person of their liberty removes the legal protection given to decision makers unless the deprivation is ‘prescribed by law’ catches many people out. Not knowing what you don’t know promotes risky practice." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (6): PELT: Depriving Children and Young People of their liberty lawfully - Hoylake, 25/4/17 — Course description: "DOLs start at 18. MCA 16. MHA no minimum age for detention. How to lawfully deprive a child or young person of their liberty requires great care. What is a DOL and where does parental responsibility fit? The course will look at the complex inter relationship between the MCA, MHA and Children Act. When should a child or young person be sectioned? What alternatives are there? Where does s.25 Children Act (secure accommodation) fit in?" Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (5): PELT: Court of Protection Masterclass - Hoylake, 16/5/17 — This course will review the all the recent developments in Court of Protection case law especially the last 12 months. It will include the latest COP cases on deprivation of liberty, capacity, health and welfare, legal aid and treatment. It will consider what practitioners can learn from these cases that will promote effective and lawful practice. It will examine you the practice directions and rules are working in practice. Any decision maker under the MCA has got to follow procedures ‘prescribed by law’ in order to protect not only the rights of those using services but also their own professional position. Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (4): PELT: Mental Health Act masterclass and legal update - Hoylake, 18/5/17 — This course will allows Mental Health Act practitioners to reflect on and update their practice by ensuring they have an up to date understanding of the law. To act lawfully, decision makers are required to follow ‘procedures prescribed by law’. These can be found not only in the Act but importantly in the Code (2015) and developing case law. How important is it to incorporate the Code into your practice? The Code states:“Where the principles and guidance of the Code are not implemented, the CQC may use its regulatory powers to facilitate change and improvement in local services as a failure to apply the Act and its Code may show a breach of one of the registration requirement.” Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (3): PELT: Introduction to Care Act for those working with MHA or MCA - Hoylake, 15/6/17 — As the MHA new Code states: "[P]rofessionals ... should also consider the general responsibilities of local authorities under Part 1 of the Care Act 2014 (eg duty to promote wellbeing, promote integration and co-operation duties), which applies to the care and support arranged or provided by local authorities to patients in the community, such as patients subject to CTOs, guardianship or leave from hospital. Professionals should consider the principles that the Care Act introduces about the centrality of the patient and a holistic approach to care and support. These are in line with the guiding principles proposed in [the MHA] Code." The course will examine the way that the following dovetail with duties under the MHA and MCA (including deprivation of liberty) including: (a) Independent advocacy; (b) Safeguarding to protect vulnerable people; (c) Assessments under the Care Act 2014; (d) The impact on Children and Young People in transition to adult services; (e) The duty to Involve carers; (f) Changes to s.117 MHA. Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (2): PELT: Introduction to Forensic Patients - Hoylake, 11/7/17 — Full title: "Introduction to Forensic Patients - A journey through the system". Course description: "Professionals working in the criminal justice system often have little understanding of what happens once a person enters the mental health system. The opposite is also true. Forensic patients are those sent to hospital by the criminal justice system. This course will take you on a journey from arrest to charge to sentence and then into hospital with Tribunals/Hospital Managers hearings and then back into the community. The course will focus on the different law and procedures of those who are subject to the powers of the Ministry of Justice. It will be of particular value to mental health lawyers who want to obtain a greater understanding of the world of the forensic patient and criminal lawyers who need to understand the journey that those sentenced under the MHA take. It will assist managers who are often faced with particular difficulties in admitting forensic patients and will be of value to all those whose work involves contact with this patient group." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 27/01/17 (1): PELT: DOL made simple, including MHA or MCA - Hoylake, 20/7/17 — Course description: "The disagreements between the judiciary have not helped our understanding of DOLs. This course will leave you feeling much more confident. The CQC has made DOL a priority on inspections. The Supreme Court leaves us in no doubt what is and is not a DOL. But how is all this applied in practice to protect not only the service user, but the professionals and service providers as well? How does this impact on ‘informal’ patients under the MHA and the role of AMHPs and Tribunals? What does ‘continuous supervision and control’ really mean? What is ‘free to leave’? Damages for unlawful DOL. This course will leave you feeling confident in how the law should be applied." Fee: £125 + VAT (£150). See Peter Edwards Law website for further details.
  • 26/01/17 (1): Deprivation of liberty/inquests case. R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a ..→
  • 24/01/17 (1): Edge Training: DoLS Assessors Conference - London, 10/3/17 — Edge Training's next conference for DOLS Assessors will be held at Inner Temple in London. The conference may be used as part of the annual refresher training for either BIAs or Mental Health Assessors and certificates will be provided for delegates according to their roles. Speakers: Nageena Khalique QC, Alex Ruck Keene, Steven Richards, Professor Clive Bowman, and Aasya Mughal. Cost: £135 plus VAT (10% discount for groups of 10 or more in one booking). See flyer for further details and booking information.
  • 22/01/17 (1): Immigration detention case. ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 1 — "In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4. ... For the avoidance of doubt, I therefore find that the Claimant's detention was unlawful at common law under the Hardial Singh principles from 30 June 2012 (see paragraphs 133 and 137 above). I find that her detention was unlawful by reason of public law error in relation to her report of torture in the Rule 35 report from 2 weeks from the date of receipt of that report, that is 16 March 2012 (see paragraph 144 above) and in respect of her mental illness from receipt of the last of the Part C reports in May 2012 (see paragraph 141 above). I find that. as somebody suffering from serious mental illness, aspects of the Claimant's detention from mid May 2012 amounted to a breach of her Article 3 rights (see paragraph 148 above)."
  • 06/01/17 (4): MHLA: Panel course - Leeds, 2/3/17 and 3/3/17 — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and to book online.
  • 06/01/17 (3): MHLA: Panel course - London, 27/2/17 and 28/2/18 — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and to book online.
  • 06/01/17 (2): MHLA: Foundation course - Manchester, 20/2/17 — This course is aimed at new practitioners and those intending to attend the Panel course in the near future. Attendance at the Foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day Panel course, which is a pre-requisite for application to The Law Society’s mental health panel. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and to book online.

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