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24/05/15 (1): Best interests case.Re MN (An Adult) (2015) EWCA Civ 411, (2015) MHLO 41 — "The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself."
23/05/15 (2): COP costs case.LB Redbridge v G (No 6) (2015) EWCA Civ 446, (2015) MHLO 40 — The Official Solicitor unsuccessfully appealed against an order that Associated Newspapers Limited should pay (only) 30% of his costs. (1) The primary ground of appeal - that the COP Rules did not apply - was described by the Court of Appeal as "simply a device to suggest that the costs presumption should be reversed". (2) The alternative ground was that if the COP Rules did apply then the judge had erred in the exercise of his discretion in the proportionate costs order that he made. In relation to this the Court of Appeal held that (a) given that inaccurate letters from the OS (stating that that ANL were prevented from visiting G) had triggered ANL's application, and that the OS had not understood the public importance of the media's general role, a proportionate costs order was unsurprising; and (b) multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs.
23/05/15 (1): Negligence claim.ABC v St George's Healthcare NHS Trust (2015) EWHC 1394 (QB), (2015) MHLO 39 — The claimant's father had killed his wife, was detained under s37/41, and refused to allow the Trust to inform his pregnant daughter of his Huntingdon's disease diagnosis. She claimed that the failure to inform her: (a) was negligent and breached Article 8; and (b) had caused psychiatric damage, and (if her daughter also has the disease) additional expense which she would have avoided by an abortion. Her claim was struck out.
14/05/15 (5): Taking Stock Conference, 16/10/15. The 2015 Annual Taking Stock Conference (The Mental Health & Mental Capacity Acts in Practice) will take place on Friday 16/10/15 at the Royal Northern College of Music, Manchester. Confirmed speakers (others TBC): Diana Rose, Alistair Burns, Neil Allen, Mathieu Culverhouse, Mat Kinton, Jenny Shaw. CPD: 4.5 SRA-accredited hours (0930-1600). Fee: £125; £100 for bookings made before 27/6/15; reduced-price places for voluntary sector organisations. See flyer for further details and booking information. See Events
14/05/15 (4): Legal Aid Agency, 'Keycard 51' (April 2015). This document is helpful when working out financial eligibility for civil Legal Aid. In force 6/4/15. See Legal Aid#Guidance documents
14/05/15 (1): Legal Aid audits. Different mental health firms have reportedly been given different information about the current round of audits: (a) that larger firms are selected based on contract size, or (b) that every firm will be audited in the next year or so. The official position is that: (1) the focus is on higher-risk providers, and volume of work will not by itself lead to an audit; (2) "higher risk" is not tightly defined, but is a combination of: (a) does the firm have a history of claiming errors? (b) if so, when these have been brought to the firm's attention, is a fix effectively made? (c) are bills rejected or assessed down higher than the norm? (d) are there significant changes in people at the firm? (3) towards the end of the summer, recent audits will be reviewed to see whether the published guidance has reduced problems (source: John Sirodcar, Head of Contract Management, 8/5/15). See Legal Aid
01/05/15 (1): New HQ1 and procedure for late reports from 5/5/15.Tribunal Procedure: Failure to submit reports to the tribunal on time (17 April 2015) (2015) MHLO 38 — This letter to MHA Administrators sets out their duties in relation to an amended HQ1 form (which must be used from 5/5/15) and a related email to "stakeholders" sets out the duties of representatives. (1) The CNL1 letter will direct MHA Administrators to (a) provide contact details for all the responsible authority's witnesses, including any out-of-area social circumstances report author; (b) advise the tribunal if any details change; (c) certify that the information can be relied upon by the tribunal for service of directions and summonses. (2) When a report or statement is not received within the three-week deadline, a specific direction will be sent - generally by secure email - to the person at fault, requiring the evidence within 7 days, and warning that a referral may be made to the Upper Tribunal for consideration of a personal penalty. (3) If the required contact details have not been provided then any directions or summonses will be sent to the Chief Executive or Medical Director. (4) Representatives need only complete the patient details and listing parts of form HQ1 and, while form HQ2 is no longer required, the CNL2 letter will contain a reminder to (a) make representations if half a day is not a suitable time estimate; (b) inform the tribunal early if an interpreter is required; (c) use best endeavours to request any withdrawal at least two full working days before the hearing start time, and provide reasons for requests within that period.
29/04/15 (3): Edge Training: DoLS Signatory Course on 12/6/15. Edge Training are running a "DoLS Signatory Course" on Friday 12/6/15 in London. This will be a practical training day designed for DoLS supervisory body signatories. The course will, among other things, look at the new DoLS forms and consider what signatories should expect to see in relation to the evidence and rationale for decisions made. Price: £115 +VAT. Speaker: Steven Richards. See flyer for further details and booking information. See Events
29/04/15 (2): Edge Training: BIA Legal Update on 26/6/15. Edge Training are running a BIA Legal Update (also open to MH Assessors) on Friday 26/6/15 in London. The course will provide information on the key cases and news over the last six to twelve months, and will focus on practical issues and case studies. Price: £115 +VAT. Speaker: Steven Richards. See flyer for further details and booking information. See Events
29/04/15 (1): Tribunal practice statement on delegation of functions.Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 (2015) MHLO 36 — The Practice Statement sets out the functions which may be carried out by clerks and registrars at the Tribunal secretariat. It replaces Practice Statement: Delegation of Functions to Staff and to Registrars on or after 10 June 2014 (2014) MHLO 44. In force 27/4/15. The two changes are: (1) para 2(a) (in relation to standard non-compliance directions) now refers to "the defaulting person" rather than "the defaulting party"; and (2) para 2(c) (in relation to consent by clerks to withdrawal) now states "...subject to the notice of withdrawal being received by the tribunal 48 hours or more before the scheduled start time of the hearing of the application to the tribunal; and subject to the case not being part-heard, there being in existence no concurrent application or reference, and no other reason for tribunal staff to believe that consent to the withdrawal should be refused, such as it appearing that the withdrawal is merely tactical" (the "48 hour" text replaces "not later than 4.30pm on the day before any listed hearing" and the other italicised text is new).
28/04/15 (1): Legal Aid Agency, 'Mental Health Common Errors' (v1, 6/2/15, published April 2015). This document contains the following headings: Claiming Errors; Tackling poor quality; Web links to documents. Details in relation to the following claiming errors are set out in the document: (1) Incorrect coding. (2) Failure to conduct a means assessment for the client in a non-MHT matter, where no advice has been given with regards the Tribunal process, or any advice given was not necessary. (3) Failure to evidence of client’s means in a non-MHT matters where the client is in detention and there is little/no evidence on file that the fee-earner has undertaken reasonable steps to check whether the ward manager, social workers, family members etc. can confirm the client’s financial position. (4) Opening a separate non-MHT matter start and claiming a separate non-MHT fee when it should have been rolled up' into a concurrent MHT fee. (5) Failure to understand matter start rules where the client is the Nearest Relative (NR), particularly with regard to non-MHT and MHT matter start rules. (6) Claiming a MHT fee for standalone non-MHT work such as a Hospital Managers Meeting/Review or S117 meeting. (7) Claiming the MHT Level 3 Fee where an effective MHT has not taken place, or the provider has not carried out any representation. (8) Claiming the MHT Level 2 Fee before an MHT application has been submitted, or where neither 30 minutes work has been done nor negotiations with a third party have been carried out. (9) [I]f the provider makes [an s2] application too late for it to be considered by the tribunal ... only the MHT level 1 fee should be claimed. (10) Failure to open a new NMS in circumstances where an informal patient is detained under Section. (11) Claiming a separate fee in relation to a renewal hearing [in the wrong circumstances]. (12) Claims for Remote Travel Payments. (13) Excessive travel cost claims: the Cost Assessment Guidance indicates a limit of 5 hours unless reasonable justification is evidenced on file. (14) Excessive disbursement claims: includes the claiming of Counsel fees (which should be paid out of the fees claimed except where prior authority has been granted to incur a higher rate) and multiple independent expert reports (where they are not justified by the case). (15) Consideration must be given to whether attendance at HMH, s117 or CPA meetings is necessary and/or appropriate. See Legal Aid#Guidance documents
27/04/15 (4): MHLA: Court of Protection Conference. The Mental Health Lawyers Association's second annual Court of Protection Conference will be held on Friday 3/7/15 in London. Keynote speaker: Sir James Munby, President of the Family Division and 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.
27/04/15 (3): MHLA: Panel courses. The Mental Health Lawyers Association are running their Panel Course (a) on Monday 1/6/15 and Tuesday 2/6/15 in London, and (b) on Thursday 4/6/15 and Friday 5/6/15 in Leeds. 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 (London course and Leeds course) for further details and to book online.
27/04/15 (2): MHLA: Foundation courses. The Mental Health Lawyers Association are running a mental health law Foundation Course on Monday 18/5/15 in London and on Tuesday 19/5/15 in Manchester. This course is aimed at new practitioners and those intending to attend the panel course in the near future. The foundation course takes an interactive approach. It covers the basics of mental health law, Legal Aid, and running a mental health file. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website (London course and Manchester course) for further details and to book online.
27/04/15 (1): MHLA: Introduction to the Court of Protection course. The Mental Health Lawyers Association are running an "Introduction to the Court of Protection" course on Thursday 7/5/15 and Friday 8/5/15 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.
22/04/15 (1): Department of Health and Welsh Government, 'Mental health aftercare in England and Wales: Arrangements for resolving disputes over ordinary residence involving local authorities in England and Wales' (March 2015). These arrangements, made under s117(5), set out the process by which the Secretary of State for Heath and the Welsh Ministers will decide which of them will determine a dispute about where a person was ordinarily resident for the purposes of s117(3) if the dispute is between an LSSA in England and an LSSA in Wales. See After-care
19/04/15 (2): Mental Health Law Online is 9 years old today! To celebrate this anniversary there are several new website features, including a Facebook page and a menu of icons which you can use to share pages across social media. See Main Page
19/04/15 (1): New Mental Health Law Online Facebook page. MHLO now has a Facebook page - click "Like" on that page to follow it and have MHLO news items appear on your timeline. It's a "page" rather than a "group" so is not designed to replace the email discussion list, but it is possible to share each item with friends and add comments.
16/04/15 (1): Deprivation of liberty case (own home).W City Council v Mrs L (2015) EWCOP 20, (2015) MHLO 35 — "This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer's disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues: (a) whether the care arrangements for the lady (Mrs L) constitute a deprivation of her liberty; (b) if so, then whether the State is responsible for such deprivation of liberty; and (c) if so, then whether such deprivation of liberty should be authorised by the court and what the arrangements for continuing authorisation should be."
13/04/15 (1): PI quantum case.DD v Dudley and Walsall NHS Trust (2014) MHLO 145 (PI) — The Claimant's partner committed suicide while being detained under s2 Mental Health Act. The Claimant and the deceased were not married but had been cohabiting for a number of years. The deceased was also the Claimant's full time carer as a result of the spinal fusion surgery the Claimant had undergone some years previously. The deceased had a history of mental illness which was depressive in nature. At the time of his death his mental health had deteriorated significantly. While detained under the Mental Health Act, the deceased was initially assessed as not having capacity nor insight into his illness; he was also becoming aggressive and a risk to himself and others. However, an assessment by the duty doctor the following night did not indicate that the deceased was a self-harm risk, nor were there any known acts/plans since admission. Later that evening the deceased killed himself. The Trust carried out a Serious Untoward Incident investigation which highlighted a number of failings in the care of the deceased. The Defendant made some admissions of liability in its Letter of Response. However, the Defendant put the Claimant to proof as to the nature of his relationship with the deceased and the level of care he required. The Claimant made a claim for dependency as the deceased had been his full time carer. A claim was also made under the Human Rights Act 1998 for a breach of Article 2, the Right to Life. It was acknowledged by the Claimant that there would be no monetary award under this Act (only an acknowledgement of the breach) as compensation was sought under the Fatal Accidents Act 1976. A Round Table Meeting was held in June 2014 and the Claimant accepted a settlement of £185,000. (Summary provided by claimant's solicitor.)
12/04/15 (1): Mind, 'Legal Newsletter' (Issue 18, March 2015). This issue contains the following headings. (1) Articles: (a) The Care Act; (b) Policing and mental health: Report of the Home Affairs Committee; (c) CQC fifth annual monitoring report on the implementation of DoLS; (d) Revised code of practice for the Mental Health Act published; (e) Take action for better mental health: Mind manifesto for the General Election 2015. (2) Case Reports and Case Notes: (a) Essex County Council v RF (2015) EWCOP 1, (2015) MHLO 2, 7 January 2015; (b) Bostridge v Oxleas NHS Foundation Trust (2015) EWCA Civ 79, (2015) MHLO 12; (c) Court rules that Mother of Six can be sterilised; (d) Re AJ (DOLS) (2015) EWCOP 5, (2015) MHLO 11; (e) NL v Hampshire CC (2014) UKUT 475 (AAC), (2014) MHLO 107, 21 October 2014. (3) News: (a) Mental Health Act Annual Report 2013/14; (b) Legal Aid Agency, 'Requests for Supplementary Matter Starts: Guidance to Contract Managers'; (c) FCO Advice to travellers with mental health problems; (d) Law Society practice note on representation before Mental Health Tribunals; (e) Mental Capacity Act DoLS (Deprivation of Liberty Safeguards) Procedure; (f) New CQC Guidance, information about some important changes coming into effect on 1 April 2015; (g) Local Government Ombudsman Decision Cambridgeshire County Council 13 016 935 (2015) MHLO 9 (LGO); (h) Strengthening the Rights of People with Learning Disabilities, Autism and Mental Health Conditions. See Mind (Charity)#Newsletter
10/04/15 (5): Judiciary website, 'Court of Protection Practice Directions come into force 6 April 2015' (2/4/15). Also: Sophy Miles, 'New Practice Directions out now!' (Court of Protection Handbook Blog, 8/4/15). See Court of Protection Practice Directions
10/04/15 (4): Guardianship/DOLS case.NM v Kent County Council (2015) UKUT 125 (AAC), (2015) MHLO 34 — NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. He also said that a limitation inherent in the DOLS regime was that, while it could prevent NM from leaving, it could not deal with the possibility that he may abscond. (3) In some (other) cases guardianship may not be necessary for the purposes of s72(4)(b) as DOLS may provide sufficiently for the person’s welfare and the protection of others. (4) The First-tier Tribunal's reasons on the statutory criteria (the key being that NM would not remain at the home without guardianship) and the relationship with DOLS (concerning return following absconsion) were in substance adequate to explain and justify its decision.
10/04/15 (3): New tribunal forms: T110-Guardianship and HQ1-Guardianship. From 7/4/15 these forms should be used in guardianship cases. See Tribunal forms
10/04/15 (2): Alex Ruck Keene et al, 'Deprivation of liberty: a practical guide' (Law Society, 9/4/15). Law Society summary: "The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards. The safeguards aim to ensure that those who lack capacity and are residing in care home, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives. The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings. It uses case scenarios to explain the law following the landmark judgment of the Supreme Court in the case of Cheshire West (2014). The complete guidance is available below. You can also download individual chapters relating to specific care settings. Quick reference sheets also highlight relevant liberty restricting factors and key questions for practitioners relating to each individual setting." The guidance contains the following chapters: (1) introduction; (2) the law; (3) Cheshire West; (4) the hospital setting; (5) the psychiatric setting; (6) the care home setting; (7) supported living; (8) at home; (9) under 18s; (10) summaries of key cases; (11) further resources. See DOLS#Academic articles etc
10/04/15 (1): Event: conference in Cork. The Centre for Criminal Justice and Human Rights at the University College Cork, and the Irish Mental Health Lawyers Association, are holding a Mental Health Law Conference on Saturday 25/4/15 from 10am to 2pm in Cork. Speakers and chairs include: Ms Kathleen Lynch, TD, Minister of State for Primary Care, Mental Health and Disability; Judge John O’Connor, District Court; Judge Anselm Eldergill, Court of Protection, England; Ms Joan Doran, Solicitor, Chairperson of IMHLA; Dr Maria Morgan, Psychiatrist; Dr Ciaran Craven, Senior Counsel; Dr Darius Whelan, School of Law, UCC. Cost: €80 (NGOs €30, full-time students free). For further details and booking information see University College Cork website. See Events
31/03/15 (2): Deprivation of liberty case.Re D (A Child: deprivation of liberty) (2015) EWHC 922 (Fam), (2015) MHLO 33 — "I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents' consent to his placement there. I am satisfied that, on the particular facts of this case, the consent of D's parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the 'zone of parental responsibility'. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement. In the case of a young person under the age of 16, the court may, in the exercise of the inherent jurisdiction, authorise a deprivation of liberty."
31/03/15 (1): Criminal case.R v Marshall (2015) EWCA Crim 474, (2015) MHLO 32R v Marshall (2015) EWCA Crim 474, (2015) MHLO 32 — "On 12th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986. On 12th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years. With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order. ... Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal."
29/03/15 (1): Department of Health, Reference Guide to the Mental Health Act 1983 (2015). A new Reference Guide was published in England to coincide with the coming into force of the new Code of Practice on 1/4/15. Description from Government website: "It is a reference source for people who want to understand the main provisions of the Mental Health Act 1983 and the regulations under the Act, as amended at 1 April 2015, including by the Mental Health Act 2007, Health and Social Care Acts 2008 and 2012 and Care Act 2014. The revised reference guide complements the revised Mental Health Act Code of Practice, with the Code giving guidance on how the Act should be applied." See Reference Guide to the Mental Health Act 1983
* To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website (for now), and will be marked with asterisks.