39 Essex Chambers Mental Capacity Law Newsletter

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This barristers' chambers produce good monthly updates on Court of Protection cases.

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Report Abstract
Alex Ruck Keene et al, 'Mental Capacity Report - End of term update' (39 Essex Chambers, 1/4/21) There is no April 2021 Mental Capacity Report, but this "end of term update" briefly lists nine key developments in relation to: (1) three COP decisions; (2) e-filing of DOL cases; (3) OPG rapid register search service; (4) supported living and care home guidance; (5) CQC DNACPR report; (6) parental consent to puberty blockers; (7) removal of Care Act "easements"; (8) Worcestershire s117 guidance case; (9) EU settlement scheme.
39 Essex Chambers, 'Mental Capacity Report' (issue 112, March 2021) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: two cases each on vaccination, how long to keep going with life-sustaining treatment and obstetric arrangements, and important decisions on both family life and sexual relations; (2) In the Property and Affairs Report: Mostyn J takes on marriage, ademption and foreign law, and updates from the OPG; (3) In the Practice and Procedure Report: reasonable adjustments for deaf litigants and a new edition of the Equal Treatment Bench book; (4) In the Wider Context Report: DNACPR guidance from NHS England, NICE safeguarding guidance, reports on law reform proposals of relevance around the world and (an innovation) a film review to accompany book reviews and research corner; (5) In the Scotland Report: Scottish Parliamentary elections, Child Trust funds and analogies to be drawn from cases involving children."
39 Essex Chambers, 'Mental Capacity Report' (issue 111, February 2021) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: vaccination; interim authority to treat pending a final order, and a further LPS impact assessment; (2) In the Property and Affairs Report: guidance following ACC for professional deputies; (3) In the Practice and Procedure Report: a checklist for international relocation, covert treatment and the courts, and recording of court proceedings; (4) In the Wider Context Report: decision-making and 16/17 year olds, FAQs following the Devon judgment on personal assessment, spotting coercion and control and the BIHR’s resources for service providers; (5) In the Scotland Report: further developments relating to the Scott review, including an update from the Chair, and Scottish consideration of relocation."
39 Essex Chambers, 'Mental Capacity Report' (issue 110, January 2021) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated DHSC MCA/DoLS COVID-19 guidance, an important LPS update, and the judicial eye of Sauron descends on new areas to consider (ir)relevant information; (2) In the Property and Affairs Report: a complex case about when the settlement of an inheritance; (3) In the Practice and Procedure Report: for how long does a Court of Protection judgment remain binding, and helpful guidance for experts reporting upon capacity; (4) In the Wider Context Report: challenging reports about the disproportionate effect of COVID-19 upon those with learning disability, young people with learning disability and autism under detention, and capacity and public hearings before the Mental Health Tribunal; (5) In the Scotland Report: discharge from hospital without proper consideration of ECHR rights."
39 Essex Chambers, 'Mental Capacity Report' (issue 109, November 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated DHSC MCA/DoLS COVID-19 guidance, an important LPS update, and the judicial eye of Sauron descends on new areas to consider (ir)relevant information; (2) In the Property and Affairs Report: a complex case about when the settlement of an inheritance; (3) In the Practice and Procedure Report: for how long does a Court of Protection judgment remain binding, and helpful guidance for experts reporting upon capacity; (4) In the Wider Context Report: challenging reports about the disproportionate effect of COVID-19 upon those with learning disability, young people with learning disability and autism under detention, and capacity and public hearings before the Mental Health Tribunal; (5) In the Scotland Report: discharge from hospital without proper consideration of ECHR rights."
39 Essex Chambers, 'Mental Capacity Report' (issue 108, October 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated DHSC MCA/DoLS COVID-19 guidance, the CRPD in the Court of Protection and spotting the signs of abuse; (2) In the Property and Affairs Report: two important cases about deputies and fixed costs and how to get financial deputyship applications right; (3) In the Practice and Procedure Report: s.21A applications and interim declarations; the limits of the court’s jurisdiction; contempt proceedings and when not to recognise a foreign order; (4) In the Wider Context Report: new GMC consent guidance, Sir James Munby returns to the inherent jurisdiction, new CQC publications and relevant ECHR developments; (5) In the Scotland Report: a new Chief Executive for the Mental Welfare Commission, MWC publications, and what COVID-19 has revealed about ageism and disability discrimination."
39 Essex Chambers, 'Mental Capacity Report' (issue 107, September 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated MCA/DoLS guidance, the anorexia Catch-22, and two important cases on deprivation of liberty; (2) In the Property and Affairs Report: remote witnessing of wills, professional deputy remuneration and the OPG annual report; (3) In the Practice and Procedure Report: CoP statistics, short notes on relevant procedural points and the UN principles on access to justice for persons with disabilities; (4) In the Wider Context Report: the NICE quality standard on decision-making and capacity, litigation friends in different contexts, and a guest piece giving a perspective on living with a tracheostomy and a ventilator; (5) In the Scotland Report: the human rights blind spot in thinking about discharge from hospital in the context of COVID-19.
39 Essex Chambers, 'Mental Capacity Report' (issue 106, July 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS delayed to April 2022; alcohol dependence and other capacity conundrums; stem cell donation and altruism, and when to come to court in medical treatment cases; (2) In the Property and Affairs Report: updated OPG guidance on making LPAs under light-touch lockdown and a face-off between potential professional deputies; (3) In the Practice and Procedure Report: a basic guide to the CoP; litigation capacity and litigation friends and observations about intermediaries and lay advocates; (4) In the Wider Context Report: capacity and the Mental Health Tribunal, a change of approach to s.117 aftercare and lessons learned from a close encounter with triage; (5) In the Scotland Report: the Scott Review summary of responses to its initial survey and a response from the Chair to the critique in our last issue."
39 Essex Chambers, 'Mental Capacity Report' (issue 105, June 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal presses the reset button in relation to capacity and sexual relations, and three difficult medical treatment decisions; (2) In the Property and Affairs Report: the impact of grief on testamentary capacity; (3) In the Practice and Procedure Report: a remote hearings update, and a pragmatic solution to questions of litigation capacity arising during the course of a case; (4) In the Wider Context Report: DoLS and the obligations of the state under Article 2 ECHR, the Parole Board and impaired capacity, and recent relevant case-law from the European Court of Human Rights; (5) In the Scotland Report: the interim report of the Scott Review critiqued."
39 Essex Chambers, 'Mental Capacity Report' (issue 104, May 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Protection, COVID-19 and the rule of law; best interests and dying at home; and capacity and silos (again); (2) In the Property and Affairs Report: further guidance from the OPG in relation to COVID-19 and an unusual case about intestacy, minority and the Court of Protection; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19; remote hearings more generally; and injunctions and persons and unknown; (4) In the Wider Context Report: National Mental Capacity Forum news, and when can mental incapacity count as a ‘status?’; (5) In the Scotland Report: further updates relating to the evolution of law and practice in response to COVID-19. We also note that 9 May 2020 was the 20th anniversary of the Adults with Incapacity (Scotland) Act 2000 receiving Royal Assent."
39 Essex Chambers, 'Mental Capacity Report' (issue 103, April 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the DHSC emergency guidance on MCA and DoLS, the Court of Protection on contact and COVID-19, treatment escalation and best interests, and capacity under the microscope in three complex cases; (2) In the Property and Affairs Report: the Golden Rule in (in)action and the OPG’s ‘rapid response’ search facility for NHS and social care staff to access the register of deputies / attorneys; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19 and an important decision on the s.48 threshold; (4) In the Wider Context Report: COVID-19 and the MCA capacity resources, guidance on SEND, social care and the MHA 1983 post the Coronavirus Act 2020, dialysis at the intersection between the MHA and the MCA and an important report on the international protection of adults; (5) In the Scotland Report: the response of the legal community to AWI law and practice under COVID-19, and an update from the Mental Health Law Review."
39 Essex Chambers, 'Mental Capacity Report' (issue 102, March 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a cautionary tale about re-using material for DoLS assessment and capacity complexities in the context of medical treatment; (2) In the Property and Affairs Report: an important case on the limits of powers of professional deputies to act without recourse to the Court of Protection; (3) In the Practice and Procedure Report: medical treatment - delay, neglect and judicial despair, developments relating to vulnerable parties and witnesses, and Forced Marriage Protection Orders under the spotlight; (4) In the Wider Context Report: Mental Capacity Action Days, when not to presume upon a presumption, and a number of important reports from bodies such as the CQC; (5) In the Scotland Report: the DEC:IDES trial. We have also recently updated our capacity guide and our guide to the inherent jurisdiction."
39 Essex Chambers, 'Mental Capacity Report' (issue 101, February 2020) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a tribute to Mr E; fluctuating capacity; improperly resisting a deputy appointment; DoLS, BIAs and RPRs, and finding the right balance with constrained resources; (2) In the Property and Affairs Report: the OPG, investigations and costs; e-filing for professional deputies, and a guest article about the National Will Register; (3) In the Practice and Procedure Report: the Vice-President issues guidance on serious medical treatment; an important judgment on contingent declarations; the permission threshold; and disclosure to a non-party; (4) In the Wider Context Report: brain death and the courts; deprivation of liberty and young people; (5) In the Scotland Report: supplemental reports from the Independent Review of Learning Disability and Autism; the Scott review consults; and relevant cases and guidance."
39 Essex Chambers, 'Mental Capacity Report' (issue 100, December 2019) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an important guest article from Inclusion London, and reflections fromTor and Alex on 100 issues; (2) In the Property and Affairs Report: a report of an interview with HHJ Hilder and deputyship refunds; (3) In the Practice and Procedure Report: the administration of appeals, and important judgments shedding light by analogy on factfinding, costs and vulnerable witnesses; (4) In the Wider Context Report: assisted dying, Article 2 obligations and informal patients, and reports of developments in Northern Ireland, Jersey and wider afield; (5) In the Scotland Report: an important judgment on guardianship and deprivation of liberty, a judicial review of conditions of excessive security and further observations on the operation of ‘foreign’ powers of attorney in England & Wales from the Scottish perspective."
39 Essex Chambers, 'Mental Capacity Report' (issue 99, November 2019) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: two deprivation of liberty cases making clear what should (and should not) happen before the court; two important cases about reproductive rights and capacity, and capacity under stress in different contexts; (2) In the Property and Affairs Report: welcome clarity as to how to make foreign powers of representation effective; and capacity and the financial implications of marriage; (3) In the Practice and Procedure Report: two important judgments from the Vice-President highlighting different aspects of case management and confirmation as to the procedural rules governing inherent jurisdiction applications in relation to adults; (4) In the Wider Context Report: news from the National Mental Capacity Forum (and a survey they need completing); an important case about the intersection of capacity, the inherent jurisdiction and the Mental Health Act 1983 in the context of force-feeding; and when you can rely upon your own incapacity to your benefit; (5) In the Scotland Report: four important publications from the Mental Welfare Commission."
39 Essex Chambers, 'Mental Capacity Report' (issue 96, July 2019) "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: when to appoint welfare deputies, termination and best interests, capacity in the context of sexual relations and birth arrangements, and the interaction between the MHA and the MCA in the community; (2) In the Property and Affairs Report, fraud and vulnerability; news from the OPG, and deputyship and legal incapacitation; (3) In the Practice and Procedure Report: Court of Protection fees changes; contingency planning, costs and s.21A applications; mediation in the Court of Protection; (4) In the Wider Context Report: the Chair of the National Mental Capacity Act Forum reports, a new tool to assist those with mental health/capacity issues to know their rights, older people and the CPS/police; and books for the summer; (5) In the Scotland Report: establishing undue influence and an update on the Scott review."

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