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Recent updates on website

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  • 18/08/18 (1): Medical case. Y v A Healthcare NHS Trust [2018] EWCOP 18 — "This application was made by Y on 12 July 2018 when I was sitting as the emergency applications judge. It required urgent determination by reason of the critical medical condition of Z, Y's husband. Y sought the following relief: (a) A declaration that, notwithstanding her husband's incapacity and his inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death; (b) An order pursuant to section 16 of the Mental Capacity Act 2005 directing that a suitable person should sign the relevant consent form for the storage of Z's sperm on her husband's behalf."
  • 14/08/18 (12): Event. PELT: Introduction to the Mental Health Act - Hoylake, 18/9/18 — The basic course is for all those who need an understanding of the MHA and Code and how it works in practice. It is aimed at all those whose work involves working with those detained, or who may be detained, under the MHA. Comments from previous course – “Found the course excellent” - “Well presented” - “Very interesting”. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • 14/08/18 (11): Event. PELT: Introduction to MCA and DOLS - Hoylake, 17/10/18 — 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 his or her 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. Cost: £125 plus VAT. See Edwards Law website for further details and booking information.
  • 14/08/18 (10): Event. PELT: Accredited - Admission to the MHT Panel - Hoylake, 20/11/18 and 21/11/18 — This course is designed for those who want to be accredited tribunal representatives. The course will also be of benefit for all those who want a more detailed understanding of tribunals. Day 2 will very useful for lawyers who are going through the reaccreditation process. Cost: £175 + VAT per day (£350 + VAT both days); lunch included. See Peter Edwards Law website for further details and booking information.
  • 14/08/18 (8): Event. PELT: Depriving Children and Young People of their liberty lawfully - Hoylake, 29/11/18 — DOLs start at 18. MCA: 16. MHA: no minimum age for detention. Considering how lawfully to deprive a child or young person of his or her 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 s25 Children Act (secure accommodation) fit in? Cost: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • 14/08/18 (7): Event. PELT: Court of Protection Masterclass (new material) - Hoylake, 6/12/18 — This course will review the all the recent developments in Court of Protection cases. It will include the latest COP cases on deprivation of liberty, capacity, health and welfare, Legal Aid, and treatment, and what practitioners can learn from these cases that will promote effective and lawful practice. It will examine the new Court of Protection Rules and in particular the emphasis of putting P at the centre. How can this be effectively achieved? The developing role of ALRs and how can they be utilised, and what will be the implications for litigation friends and IMCAs? Cost: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • 14/08/18 (6): Event. PELT: Introduction to COP, including s21A appeals - Hoylake, 13/12/18 — The Court of Protection has a very wide ambit potential touching the lives of many vulnerable people. It is now the place where deprivation of liberty safeguards and procedures are authorised or challenged and where arguments about capacity or 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. Cost: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • 14/08/18 (3): Event. MHLA: Advocacy, Risk and Cross-examination - Leicester, 15/10/18 — This one-day course is designed to enhance advocacy and case preparation skills. The focus is on preparing for advocacy, with advice on cross-examination of the medical witnesses and taking evidence-in-chief from the client, along with formulation and delivery of effective submissions. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
  • 14/08/18 (2): Event. MHLA: Refresher and Re-accreditation course - London, 3/10/18 — This course will be suitable for those seeking re-accreditation (by reviewing the legal and procedural developments of the last three years; providing a forum for discussing these along with the re-accreditation process; fulfilling the requirement to obtain six mental health CPD points for re-accreditation). It will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information
  • 14/08/18 (1): Event. MHLA: Foundation course - London, 29/8/18 — 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. Speakers: Sarah Burke and Tam Gill. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
  • 08/08/18 (2): Criminal appeal case. R v Taj [2018] EWCA Crim 1743 — (1) Appeal against conviction: "The defence sought to rely on self-defence as codified in s76 Criminal Justice and Immigration Act 2008 noting, in particular, s76(4)(b) which makes it clear that the defence is available even if the defendant is mistaken as to the circumstances as he genuinely believed them to be whether or not the mistake was a reasonable one for him to have made. Although s76(5) provides that a defendant is not entitled to rely upon any mistaken belief attributable to intoxication that was voluntarily induced, it was argued that as there was no suggestion that Taj had alcohol or drugs present in his system at the time, he was not 'intoxicated' and so was not deprived of the defence. It was also submitted that R v McGee, R v Harris, R v Coley [2013] EWCA Crim 223 supported the proposition that to be in a state of 'voluntarily intoxication' there had to be alcohol or drugs active in the system at the time of the offence. ... In our view, the words "attributable to intoxication" in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia. This is consistent with common law principles. We repeat that this conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse. In the circumstances, we agree with Judge Dodgson, that the phrase "attributable to intoxication" is not confined to cases in which alcohol or drugs are still present in a defendant's system. It is unnecessary for us to consider whether this analysis affects the decision in Harris: it is sufficient to underline that the potential significance of voluntary intoxication in the two cases differs." The appeal against conviction was dismissed. (2) The application for leave to appeal against sentence was refused.
  • 08/08/18 (1): Children/DOL case. Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam) — "The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases."
  • 01/08/18 (4): Event. Edge Training: MHA admin and management skills - London, 13/12/18 and 14/12/18 — This two-day course aims to provide mental health administration staff and hospital managers with the skills and knowledge needed to manage the Act effectively in practice. It considers the necessary tools to ensure effective compliance with the legislation and Code of Practice. Speakers: Stephen Klein and Cassie Finnigan. Cost: £280.00 plus VAT. See Edge website for further details and booking information.
  • 01/08/18 (3): Event. Edge Training: Self Neglect and the Mental Capacity Act - London, 26/11/18 — This one-day course aims to enable delegates to consider the application of the Mental Capacity Act 2005 in relation to cases of self -neglect through the safeguarding adults procedures. It is for all staff involved in contributing to or making safeguarding enquiries where the adult at risk is self-neglecting. This could include social workers, community care officers, social care workers, social care managers, GPs, practice nurses, heads of quality, chief nurses, designated nurses for safeguarding adults, occupational therapists, psychologists and psychiatrists. Speaker: Dawn Revell. Cost: £140 plus VAT. See Edge website for further details and booking information.
  • 01/08/18 (2): Event. Edge Training: Deprivation of liberty, children and young people - London, 16/11/18 — This course aims to update staff working with children, young people and those in transition with the latest case law and developments in relation to deprivation of liberty. The course will consider these developments and the impact on practice. It examines the Supreme Court ruling on deprivation of liberty and considers practical issues in its application for children and young people. Speaker: Dawn Revell. Cost: £140 plus VAT. See Edge website for further details and booking information.
  • 01/08/18 (1): Event. Edge Training: AMHP Legal Update - London, 5/10/18 — The main aim is to give AMHPs the opportunity to update their legal knowledge and skills regarding their work under the Mental Health Act 1983. This update has a focus on practice dilemmas arising from recent statutory changes as well as case law developments. Speaker: Rob Brown. Cost: £140 plus VAT. See Edge website for further details and booking information.
  • 31/07/18 (1): CANH case. NHS Trust v Y [2018] UKSC 46 — "The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. ... In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases."
  • 29/07/18 (1): Miscellaneous case. Re A (A Patient, now deceased) (No 4) [2018] EWCOP 17 — "On 24 July 2018, Mr Fitzgerald issued an application in the Family Division of the High Court of Justice, under number FD13P90056, seeking an order that, as President of the Family Division, I 'withdraw from public record Judgement EWCOP16 [2018] on the grounds that: (1) It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.' ... Mr Fitzgerald's latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order."
  • 19/07/18 (2): Negligence case. Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) — "The claim arises out of the death of the Deceased who was found dead at her home on the morning of the 30th of January 2012. For present purposes it is accepted that the Deceased took her own life. There are two pleaded causes of action: common law negligence and alleged breaches of convention rights under the Human Rights Act 1998. The Recorder, as I am, was concerned only with the negligence claim and then only with the issue as to the existence of a duty of care owed to the Deceased. Issues as to breach of any such duty or issues as to causation were not before the Recorder. The pleaded particulars of negligence amount to allegations that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the Deceased in a 999 call made by the Deceased's mother."
  • 19/07/18 (1): COP costs case. Re A (A Patient, now deceased) (No 3) [2018] EWCOP 16 — "I have before me an application [which] relates to certain costs orders against Mr Fitzgerald dated 22 and 24 March 2016 which I made in the Court of Protection, as President of the Court of Protection, in proceedings (95908524), to which Mr Fitzgerald was a party. Those proceedings related to Mr Fitzgerald's now deceased aunt A, a patient whose affairs were under the control of the Court of Protection until her death on 5 March 2018. Central to Mr Fitzgerald's application are the circumstances in which, in the course of those proceedings, SJ Lush, by an order dated 28 May 2013, had appointed her niece, C, to be A's deputy for property and affairs."
  • 11/07/18 (1): Costs of intervention case. John Blavo v Law Society [2017] EWHC 561 (Ch) — "In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums."
  • 06/07/18 (3): Capacity case. Re FX [2017] EWCOP 36 — "I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions."
  • 06/07/18 (1): Appeal status information. On 3/7/18 the Supreme Court (Lady Hale, Lord Carnwath, Lord Lloyd-Jones) granted PJ permission to appeal and directed that the appeal did not need to be listed with MM. The appeal in PJ will be heard by the Supreme Court on 22/10/18. Court order and further information provided by PJ's solicitor, Natalie Roberts of GHP Legal Solicitors. See SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16
  • 04/07/18 (3): DOLS reform article. Alex Ruck Keene, 'Mental Capacity (Amendment) Bill published - headlines' (Mental Capacity Law and Policy, 4/7/18) — This article notes the following information about the Mental Capacity (Amendment) Bill: "(1) The Bill is focused solely upon a (version of) the Liberty Protection Safeguards, so the Law Commission’s proposed amendments to ss.4/5 have gone, as have regulation-making powers in relation to supported decision-making; (2) There is no statutory definition of deprivation of liberty (or provision for advance consent); (3) There are provisions for emergency deprivation of liberty/deprivations pending authorisation under the LPS; (4) The scheme of the LPS is broadly replicated, albeit from age 18 upwards, and with a significant change in relation to care homes, where considerably more responsibility is going to be placed on the care home managers in terms of arranging assessments/carrying out consultation. The reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality; (5) The Law Commission’s proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone; (6) The LPS ‘line’ of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained."
  • 04/07/18 (2): Legislation. Mental Capacity (Amendment) Bill — "A Bill to amend the Mental Capacity Act 2005 in relation to procedures in accordance with which a person may be deprived of liberty where the person lacks capacity to consent, and for connected purposes."
  • 03/07/18 (1): Capacity case. Royal Borough of Greenwich v CDM [2018] EWCOP 15 — "In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests."
  • 02/07/18 (1): Assisted suicide case. R (Conway) v SSJ [2018] EWCA Civ 1431 — "This is an appeal from the order dated 5 October 2017 of the Divisional Court (Sales LJ, Whipple and Garnham JJ) dismissing the claim of the appellant, Mr Noel Conway, for a declaration under section 4 of the Human Rights Act 1998 in respect of section 2(1) of the Suicide Act 1961, which imposes a blanket ban on assisted suicide. Mr Conway contends that section 2(1) constitutes a disproportionate interference with his right to respect for his private life under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms."

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