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Recent updates on website

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  • 19/06/17 (2): Delayed discharges (request for case studies). Mind are looking into potential legal reform in relation to delayed discharges from hospital, and request that people send case studies of patients who have remained in hospital for a number of months owing to delays in arranging aftercare packages (e.g. s117 packages, social care or community psychiatric provision). Please forward any case studies to m.henson-webb@mind.org.uk by the end of June 2017. See Mind (Charity)
  • 19/06/17 (1): Legal Aid Agency, 'Tribunal appointed representatives in mental health (rule 11(7) cases)' (8/6/17). This is guidance which has been provided to LAA auditors. In its summary section it states that: (1) No work on a client's case should be started before an application for legal aid has been made and properly signed. (2) The provider should in general always seek to visit the client to see if he has capacity and is willing to apply for legal aid himself (subject to bullets 6 and 7 below). (3) If the client lacks capacity then any person can make the application for legal aid on his behalf. That individual does not otherwise have to be involved in the case. (4) If the client lacks capacity or is unwilling/unable to sign the application form (and it is not appropriate for a third party to apply on his behalf) the provider can sign the application form in accordance with paragraph 9.40 of the contract specification. (5) In all Rule 11(7) cases, we expect to see the authority from the tribunal appointing the firm/individual on the file (usually an email). (6) If it is clear from the outset of the case that client lacks capacity or will be unwilling to sign the application form then the provider does not necessarily need to visit the client to see if he is unable/willing to apply. (7) In these circumstances, the provider should justify on file why he has not made any such attempts (e.g. the client clearly lacks capacity and/or has informed staff that he does not wish to see a solicitor). See Legal Aid#Guidance documents
  • 15/06/17 (5): HMCTS, 'Guidance for the conduct of cases before the restricted patient panel' (updated 29/3/16). This document sets out the responsibilities of the MoJ and MHT in the Tribunal procedure. For instance, the protocol provides that no MoJ comments are required in the following circumstances: (1) for initial reports, the MoJ have had the reports for 21 days; (2) for subsequent reports, including addendum and independent reports, the MoJ have received the reports at all.. See Ministry of Justice#MOJ/MHT Protocol
  • 15/06/17 (4): Edge Training: Best Interests Assessors Report Writing Course - London, 30/10/17 — 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 Safeguards (DOLS). Speaker: Piers McNeil. Cost: £130 + VAT (£156). See flyer for further details and booking information.
  • 15/06/17 (3): Edge Training: DOLS Authorised Signatories - Sheffield, 3/11/17 — This course aims to provide guidance on the role of signatories and to update designated signatories in relation to the latest case law around their specific role within the DOLS procedures. Please note: this course is not designed for BIAs but specifically the role of local authority managers acting as authorised signatories. Speaker: Steven Richards. Cost: £130 + VAT (£156). See flyer for further details and booking information.
  • 15/06/17 (1): Smoking ban case. McCann v State Hospitals Board for Scotland [2017] UKSC 31, [2017] MHLO 22 — "This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. ... Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. ... [T]he prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. ... [B]ut for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCann’s article 8 right to respect for his private life. ... The article 14 challenge ... fails."
  • 10/06/17 (1): Legal representation case. R (Brady) v Lord Chancellor [2017] EWHC 410 (Admin), [2017] MHLO 21To obtain Legal Aid funding, a representative must have a contract under LASPO 2012 covering mental health law, and there is no ECHR right to publicly-funded representation for a lawyer of choice. "In this case, Ian Stewart Brady applies for permission to bring a claim for judicial review of two decisions relating to his legal representation in proceedings before the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health. The Claimant wishes to be represented at those proceedings by a solicitor, Mr Robin Makin, and is seeking public funding for that representation. The decisions challenged are: (1) The decision of the Lord Chancellor dated 3 November 2016, the First Defendant, effectively not to make available or facilitate the public funding of Mr Makin as the Claimant's solicitor in the Proceedings. (2) The decision of the Tribunal, the Second Defendant, dated 4 October 2016 declining to appoint Mr Makin as the Claimant's legal representative under Rule 11(7)(a) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008."
  • 08/06/17 (1): NOMS and NHS England, 'Working with personality disordered offenders: A practitioners guide' (second edition, September 2015). Link to this 2015 document added. This replaced the January 2011 version. See Ministry of Justice#Personality disorder
  • 06/06/17 (1): Court of Protection User Group. (1) Minutes of Court User Group Meeting (12/10/16); (2) Carolyn Hilder, 'Court User Group' (notification of 26/4/17 meeting, 29/3/17); (3) Minutes of Court User Group Meeting (26/4/17). The next meeting will be held on Wednesday 11/10/17 at 2pm at First Avenue House. See Court of Protection User Group.
  • 29/05/17 (2): Switalskis Solicitors: Ninth Annual Review of the Mental Capacity Act 2005 - York, 21/9/17 — This conference is aimed at advocates, IMCAs, and professionals working in community care, adult social care, health care, voluntary organisations and charities. Speakers: Mr Justice Baker, Sophy Miles, Alastair Pitblado, Neil Allen, Christian Walsh, David Lock QC, Joseph O’Brien. Cost: £100 plus VAT (free places are available for registered charities). See Switalskis website for further details and booking information.
  • 26/05/17 (2): Edge Training: Deprivation of liberty in children and young people - Sheffield, 29/6/17 — 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 their 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: £130 plus VAT (£156). See flyer for further details and booking information.
  • 25/05/17 (2): Felicity Auer and Joanna Dean, 'Mental health: focus' (Legal Action, May 2017, p34). This article (written before the Conservative party's policy announcement) proposes wide-ranging reforms to the MHA 1983 "to bring it into the 21st century and in line with international human rights law" under the following headings: mental disorder; nearest relative; involuntary treatment; involuntary detention; fusion of mental health law and mental capacity law. See Mental Health Treatment Bill
  • 25/05/17 (1): Karen Early, 'Mental Health Tribunal Bulletin' (HMCTS, 22/5/17). The following is the text of this bulletin: "An important message regarding the administration office: Further to last week’s message, I confirm that the Leicester office remains severely affected by a burst water pipe with some floors remaining closed. Staff have been relocated to alternative floors within the building and urgent work will continue to take priority whilst we recover from the disruption. All inboxes will be monitored but there still may be some delays in providing a response. We are now able to take calls on our usual number - 0300 123 2201 – but would ask that this is for urgent matters only. It is likely that this situation will remain for several weeks. I would like to thank you for your continued patience and support during this difficult time." See Mental Health Tribunal
  • 23/05/17 (4): Edge Training: MH Assessors Annual Refresher Course - London, 14/7/17 — 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. Price: £180 + VAT (£216). See flyer for further information and booking details.
  • 23/05/17 (3): Edge Training: Best Interests Assessors Legal Update Course - London, 10/7/17 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: consider the latest DoLS news, research and guidance; examine the latest case law relevant to DoLS and the BIA role; reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Cost: £130 plus VAT. See flyer for further details and booking information
  • 23/05/17 (2): Edge Training: DOLS: a new beginning? - London, 26/6/17 — 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.
  • 23/05/17 (1): Edge Training: Best Interests Assessors Report Writing Course - London, 23/6/17 — 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.
  • 19/05/17 (2): MHT office closure. The following is the text of an email dated 18/5/17 in relation to an office closure: "Dear All, Please be aware that due to a burst water pipe the Leicester office is closed. We do not have access to the building and have staff travelling to other locations within the City and County. We have not been able to divert the telephones so are unable to take calls. Urgent work will take priority. All emails will be monitored but there may be some delays in providing a response. At this point in time I have no idea when the office will reopen. I will provide further updates as they become available. Thank you for your continued patience and support. Karen Early, Operations Manager, Her Majesty's Courts and Tribunals Service". See Mental Health Tribunal
  • 19/05/17 (1): Negligence case. ABC v St George's Healthcare NHS Trust & Ors [2017] EWCA Civ 336, [2017] MHLO 19 — "The Claimant alleges that the particular circumstances of her case mean that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father's diagnosis, firstly presumed and subsequently confirmed, in the light of her pregnancy. This was her first and only child. It was all along known that she would be a single mother with sole responsibility for the upbringing of the child. If informed of her father's diagnosis she would have sought to be tested for Huntington's Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child might in due course be dependent on a seriously ill single parent or become an orphan, and the risk that in due course her child might inherit the disease. Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a 'wrongful birth' claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case, one way or another."
  • 18/05/17 (1): Edge Training: Consent, the Mental Capacity Act and Medical Treatment Conference - London, 9/6/17 — This one-day conference will provide professionals with essential information and guidance on the legislation and case law surrounding consent and the Mental Capacity Act. It will consider the practical application of this in healthcare settings, to enable compliance with the law to protect both staff and patients. Speakers: Mr Justice Charles, Steven Richards, Alex Ruck Keene, Dr Shahid Dadabhoy, and Aasya Mughal. Cost: £125 plus VAT. See flyer for further details and booking information.
  • 10/05/17 (1): Extradition case. Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 18 — "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'?"
  • 09/05/17 (5): MHLA - Reaccreditation course - London, 5/6/17 — The Mental Health Lawyers Association's refresher and re-accreditation course is suitable for those seeking re-accreditation and 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 information and to book online.
  • 09/05/17 (4): MHLA - Legal Aid supervision - London, 16/5/17 — This course is aimed at experienced supervisors looking to refresh their skills, or those considering applying for supervisor status, and will cover the Legal Aid Agency supervisor standards and procedures. Cost: £150 (MHLA members); £195 (non-members). See MHLA website for further information and booking details.
  • 09/05/17 (3): ‎MHLA: Court of Protection Conference - London, 30/6/17 — This is the Mental Health Lawyers Association's fourth annual Court of Protection Conference. Keynote speaker: Mr Justice Munby. Speakers: Penny Cooper, Jake Kraft, Sophy Miles, Floyd Porter, Alex Ruck Keene, and Tim Spencer-Lane. Cost: £120 (MHLA members); £180 (non-members). See MHLA website for further details and booking information.
  • 09/05/17 (2): Immigration detention case. ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 17 — "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."
  • 09/05/17 (1): Difficult Conversations: End of Life Care: Advanced Legal Issues Masterclass - London, 13/5/17 — This course covers: informed consent when a patient has capacity; the Mental Capacity Act and Human Rights Act; DOLS update; advance care planning; confidentiality and information sharing. Facilitator: Tim Spencer-Lane. Time: 1300-1700. Cost: £150 (inc VAT). See flyer for further details and booking information.
  • 08/05/17 (5): Michael Savage, 'Theresa May pledges mental health revolution will reduce detentions' (Guardian, 7/5/17). See Mental Health Treatment Bill
  • 08/05/17 (4): Ben Riley-Smith, 'Theresa May unveils biggest shake-up of mental health policies in 30 years' (7/5/17). See Mental Health Treatment Bill
  • 08/05/17 (3): BBC, 'General election 2017: Conservatives pledge to end mental health "injustice"' (7/5/17). See Mental Health Treatment Bill
  • 08/05/17 (2): Mental Health Treatment Bill. The Prime Minister has stated that the Mental Health Act 1983 will be repealed following a Conservative victory in the June 2017 general election. See press articles for details. See Mental Health Treatment Bill
  • 08/05/17 (1): Deprivation of liberty case. SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16(1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of Article 5 deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme.
  • 05/05/17 (1): DOLS funding case. R (Liverpool City Council) v SSH [2017] EWHC 986 (Admin), [2017] MHLO 15 — "By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine."
  • 04/05/17 (3): BIHR: Mental Health, Mental Capacity and Human Rights: cross-sector collaboration - Blackburn, 10/5/17 — The British Institute of Human Rights are holding an event for people working on mental health or mental capacity in the public or voluntary and community sectors to think about how human rights can help them to work collaboratively to improve services locally. Events are being held in London, Blackburn, Exeter, Norwich and Brighton. Time: 1330-1630. Cost: free. See BIHR website for further details and booking information. See the Events page for details of the events in the other towns.
  • 04/05/17 (2): York Law School: 'Nothing about us without us' - York, 26/5/17 — York Law School holding a half-day symposium on the ethical and methodological isuses in researching with, and working co-productively with people whose disability/illness means they lack the capacity to consent. Speakers: Professor Dan Goodley, Gilllian Loomes, Elaine James, Julie Latchem. Time: 1300 to 1700. Cost: free. See Eventbrite website for further details and booking information. See Events
  • 04/05/17 (1): HRLA: Mental Health and Human Rights - London, 22/5/17 — This Human Rights Lawyers Association event will examine the intersection of mental health law and human rights law. Speakers: Prof Jill Peay, Victoria Butler-Cole and Oliver Lewis. Chair: Ranette Prime. Time: 1830 to 2030. Cost: free. See HRLA website for further details and booking information. See Events

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