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29/04/16 (2): Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15). In response to a case in which the MOJ had not closely managed a patient's movements (it had not registered a change of address), the following policy will apply from 4/1/16: (1) All conditionally-discharged patients will have a condition giving an actual residence address, and RCs will not have a discretion to move patients without providing 14 days' notice; (2) If the tribunal does not specify an address the MOJ will add one; (3) Existing conditions will be re-examined on receipt of conditionally-discharged patient reports and conditions may be amended (to add an address or remove the RC's discretion to move the patient); (4) Discharges by the MOJ will also accord with this policy; (5) Dialogue with the MOJ before the 14-day point is encouraged. See Ministry of Justice#External links
29/04/16 (1): Judiciary website, 'Court of Protection: draft Case Management Pilot Practice Direction' (2/3/16). This web page contains information about, and links to, two draft Practice Directions: "Practice Direction: Case Management Pilot" and "Practice Direction: Section 49 Reports Pilot". Comments on the drafts are invited. The final Practice Directions are expected to come into force in June 2016. See Court of Protection Practice Directions
28/04/16 (1): Immigration case.R (O) v SSHD (2016) UKSC 19, (2016) MHLO 12 — "The appellant, O, is a woman of Nigerian nationality, aged 38. In November 2003, with her son, then aged three, she illegally entered the UK. In July 2008 she pleaded guilty to offences of cruelty towards her son, who had returned to live in Nigeria, and the court sentenced her to 12 months' imprisonment and recommended that she be deported. On 8 August 2008 her sentence came to an end, whereupon the respondent, the Home Secretary, detained her - at first pending the making of a deportation order and then, following the making of such an order, pending her deportation pursuant to it. O's detention, which was at the Immigration Removal Centre at Yarl's Wood in Bedfordshire, continued until 6 July 2011 when, pursuant to a grant of bail on 1 July 2011, she was released. It follows that O was detained at Yarl's Wood for almost three years. The court knows nothing about her circumstances after 6 July 2011 but infers that she has not, or not yet, been deported. ... In the present proceedings, which - chronologically - encompass her fourth claim for judicial review, O challenges the lawfulness of the later period of her detention, namely from 22 July 2010, and in particular from say 4 March 2011, until 6 July 2011. The object of the present proceedings has never been to secure her release, which had already occurred at the time of their issue. The object has been to secure a declaration that the detention was unlawful and, perhaps in particular, an award of substantial damages for false imprisonment. ... O has the misfortune to have suffered for many years from serious mental ill-health. So the appeal requires this court to consider the Home Secretary's policy relating to the detention of the mentally ill pending deportation; and perhaps also to identify the criterion by which the court should determine a complaint that she has failed to implement some aspect of her policy relating to it. Furthermore the Home Secretary is obliged to conduct monthly reviews of whether a person's detention pending deportation should continue. There were, as the Court of Appeal held, defects in the Home Secretary's conduct of the monthly reviews of O's detention between March and July 2011. ... [W]ere O's claim for judicial review permitted to proceed, the result in all likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and an award to her of damages in the sum of £1. ... I would dismiss the appeal."
25/04/16 (3): MHLA: Panel course - London, 28/6/16 and 29/6/16. — The Mental Health Lawyers Association are running their Panel Course on Tuesday 28/6/16 and Wednesday 29/6/16. 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). CPD: 12 hours. See MHLA website for further details and to book online.
25/04/16 (2): MHLA: Court of Protection conference - Manchester, 24/6/16. — The Mental Health Lawyers Association's third annual Court of Protection Conference will be held on Friday 24/6/16 in Manchester. Keynote speaker: Mr Justice Charles, Vice President of the Court of Protection. Price: £120 (MHLA members); £180 (non-members). CPD: 6 hours. See MHLA website for further details and to book online.
25/04/16 (1): MHLA: Intro to Court of Protection - London, 12/5/16 and 13/5/16. — The Mental Health Lawyers Association are running an "Introduction to the Court of Protection" course on Thursday 12/5/16 and Friday 13/5/16 in London. This course is primarily aimed at practitioners with little or no experience in conducting matters before the Court and those seeking a practical foundation to undertaking proceedings in the Court. The course will cover health and welfare matters, deprivation of liberty, funding and, to a lesser extent, issues relating to property and affairs. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website for further details and to book online.
19/04/16 (1): Mental Health Law Online is 10 years old today! Celebrate by buying the Annual Review and leaving good feedback on Amazon :-)
13/04/16 (1): New (corrected) neutral citation number available for this case.LB Southwark v KA (Capacity to Marry) (2016) EWCOP 20, (2016) MHLO 10 — "These proceedings under the Mental Capacity Act 2005 concern a 29 year old learning disabled man, KA, one of five children of a Bangladeshi family. I am asked to make declarations that KA lacks capacity to make decisions as to: (a) Litigation; (b) Personal care and welfare; (c) Sexual relations; (d) Marry. It is common ground that KA does not have capacity to litigate thus the Official Solicitor is his litigation friend."
12/04/16 (1): MHLO Annual Review 2015. Paperback and Kindle versions are £6 and £3 respectively. The Annual Review contains all news items, arranged thematically, which were added to the website during the year. Please support the website by purchasing a copy. See Annual Review
08/04/16 (1): Recognition of Foreign Order case.Re Z (Recognition of Foreign Order) (2016) EWHC 784 (Fam), (2016) MHLO 11 — "This judgment considers the exercise of the court's powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union. On 4 March 2016, I made an interim order in respect of a girl, Z, who lives in the Republic of Ireland, declaring that orders made by the High Court of Ireland on 2 March 2016 should stand as orders of this court, thereby permitting emergency admission for treatment in a hospital in this country. At a hearing on is notice on 23rd March, I made a further interim order to that effect. This judgment set out the reasons for those orders."
07/04/16 (1): NAS: Autism and CJS Conference - Manchester, 18/4/16. — This new one-day conference will look at the kinds of issues that can arise when autistic individuals interact with the criminal justice system, and what can be done to help reduce problems and prevent escalation of issues. Key topics: (a) the implications of the Adult Autism Strategy for autistic people, nationally and locally; (b) how local authorities can engage with partners within the criminal justice system; (c) autism and cybercrime; (d) street triage; (e) autism and sex offending. Cost: £95 plus VAT, but a 50% discount is available until 8/4/16 (World Autism Awareness Week discount: use code WAAW). See NAS website for further details and booking information.
03/04/16 (1): Capacity to marry case.LB Southwark v KA (Capacity to Marry) (2016) EWHC 661 (Fam), (2016) MHLO 10 — "These proceedings under the Mental Capacity Act 2005 concern a 29 year old learning disabled man, KA, one of five children of a Bangladeshi family. I am asked to make declarations that KA lacks capacity to make decisions as to: (a) Litigation; (b) Personal care and welfare; (c) Sexual relations; (d) Marry. It is common ground that KA does not have capacity to litigate thus the Official Solicitor is his litigation friend."
12/03/16 (1): Conditional discharge and DOL. On 9/3/16 the Court of Appeal granted permission in MM v WL Clinic because "[T]he appeal raises important points of principle which ought to be considered by this court and on which there is a real prospect of success" and directed that the hearing of the appeal be expedited. See MM v WL Clinic (2016) UKUT 37 (AAC), (2016) MHLO 3. The Court of Appeal decision form was provided by Donald Tiong of Bison Solicitors. If anyone has information about a case which is suitable for publication then please do send it in.
25/02/16 (1): Criminal case.R v Marcantonio (2016) EWCA Crim 14, (2016) MHLO 9 — "This is the judgment in two cases, an appeal against conviction (R v. Marcantonio) and an application for permission to appeal against conviction (R v. Chitolie), which have in common the submission that the appellant/applicant in each case was unfit to plead, within section 4, Criminal Procedure (Insanity) Act 1964, at the time of his trial, and that this court should therefore quash his conviction and consider the exercise of its powers under section 6, Criminal Appeals Act 1968. A third case (R v. T) was heard at the same time. A separate judgment is handed down in that case which, because of the orders made, is subject to reporting restrictions."
21/02/16 (1): Legal Aid case.Public Law Project v Lord Chancellor (2015) EWCA Civ 1193, (2015) MHLO 136 — The proposed Legal Aid residence test was lawful (the High Court had been wrong to decide it to be ultra vires and unjustifiably discriminatory). The proposed test is described as follows in the judgment: "To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days). There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."
17/02/16 (3): Office of the Public Guardian, 'OPG's approach to solicitor client accounts' (Practice Note no 02/2016, 15/2/16). Detail from Government website: "This practice note explains the Office of the Public Guardian’s (OPG) approach to the use of client accounts to manage deputyship funds, and how the deputy acts under the Mental Capacity Act 2005 (MCA), the Solicitors Regulation Authority Accounts Rules 2011 (SARs) and the MCA Code of Practice." See Office of the Public Guardian
17/02/16 (2): Medical case.A Local Health Board v Y (A Child) (2016) EWHC 206 (Fam), (2016) MHLO 8 — "In all the circumstances, therefore, I conclude that the course proposed by the clinicians is in Y's best interests. In accordance with the parties' ultimate agreement, I therefore conclude that (1) It is lawful and will be in Y's best interests for him to be extubated at the point where the clinicians, following discussion with Y's family, consider that his condition is optimal for extubation, and that "optimal" for these purposes is likely to mean when (a) he remains on minimal ventilation: (b) he has a body temperature of less than 37.5 and (c) that he has not required CPR for the previous 12 hours; (2) Upon extubation, it is lawful and in his best interests not to re-intubate him if he is unable to support his own respiration. (3) Upon extubation, it is lawful and in his best interests not to receive CPR (save for stimulation, which may be provided) or ventilation or inotropes."