39 Essex Chambers, 'Mental Capacity Case Reports' (issue 1, April 2023) |
Case reports |
Mental capacity case reports |
This series of law reports will cover cases which contain an authorative interpretation of the MCA or address a point of practice or procedure of wider significance. The cases in this issue are: (1) North Bristol NHS Trust v R [2023] EWCOP 5, [2023] 39ECMCR 1; (2) A Local Authority v PG & Ors [2023] EWCOP 9B, [2023] 39ECMCR 2. |
39 Essex Chambers, 'Mental Capacity Case Reports' (issue 2, July 2023) |
Case reports |
Mental capacity case reports |
The cases in this issue are: (1) EG v AP [2023] EWCOP 15B, [2023] 39ECMCR 3; (2) Re Public Guardian’s Severance Applications [2023] EWCOP 24B, [2023] 39ECMCR 4; (3) Baker v Hewston [2023] EWHC 1145 (Ch), [2023] 39ECMCR 5. |
39 Essex Chambers, 'Mental Capacity Case Reports' (issue 3, October 2023) |
Case reports |
Mental capacity case reports |
The cases in this issue are: (1) Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] 9ECMCR 6; (2) Re RK (Capacity; Contact; Inherent Jurisdiction) [2023] 39ECMCR 7; (3) Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] 39ECMCR 8. |
39 Essex Chambers, 'Mental Capacity Report' (issue 128, December 2022) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Collection of sperm where a person is on the edge of brain death; public protection and deprivations of liberty; and many newly-reported ‘part 2’ judgments tell us what happened next. (2) In the Property and Affairs Report: Lasting Powers of Attorney bill is published; and deprivations of assets. (3) In the Practice and Procedure Report: Cross-border placements; and amendments to the Court of Protection Rules. (4) In the Wider Context Report: ‘A gloriously ordinary life’; Crowter in the Court of Appeal; consent to adoption and capacity; prolonged disorders of consciousness; and a Strasbourg update. (5) In the Scotland Report: A new checklist for cross-border placements; a decision to close day centres is reduced; and model laws for advance choices." |
39 Essex Chambers, 'Mental Capacity Report' (issue 129, February 2023) |
Newsletter |
Mental capacity law newsletter |
Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: is depriving a person of their phone depriving them of their liberty, a reminder that the court is the ultimate arbiter of best interests and an Ombudsman comes belatedly to the rescue; (2) In the Property and Affairs Report: a reminder of the new process for applying for deputyship and how the Powers of Attorney Bill would amend the MCA 2005; (3) In the Practice and Procedure Report: the Vice-President intervenes on s.49 reports and new contempt rules; (4) In the Wider Context Report: Parliamentary consideration of the draft Mental Health Bill, a toolkit for supporting decision-making, and confidentiality and common sense; (5) In the Scotland Report: the Supreme Court dismisses an appeal against assessment for services and an opposed application for guardianship. |
39 Essex Chambers, 'Mental Capacity Report' (issue 130, March 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: fluctuating capacity and emotional dysregulation; (2) In the Property and Affairs Report: the Court of Protection divorce, refreshed deputy standards and relevant legislative developments; (3) In the Practice and Procedure Report: ‘closed hearings’ guidance and Forced Marriage Protection Orders; (4) In the Wider Context Report: covert medication guidance, an updated litigation capacity certificate, the malign influence of Andrew Wakefield, and changes afoot in Ireland; (5) In the Scotland Report: a Scottish perspective on the Powers of Attorney Bill and implementation of the Scott Report." |
39 Essex Chambers, 'Mental Capacity Report' (issue 131, May 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS on the shelf; fluctuating capacity and the interface under the judicial spotlight; (2) In the Property and Affairs Report: the new surety bonds structure and an update on the Powers of Attorney Bill; (3) In the Practice and Procedure Report: reporting restrictions and the Court of Appeal, and costs in serious medical treatment cases; (4) In the Wider Context Report: DNACPR notices and disability, litigation capacity, the new SCIE MCA database, and Ireland commences the 2015 Act; (5) In the Scotland Report: problems of powers of attorney in different settings and a very difficult Article 5 choice." |
39 Essex Chambers, 'Mental Capacity Report' (issue 132, June 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the JCHR has questions for the Government about the delay to the LPS; anorexia and capacity, and Caesarean sections and P-centricity; (2) In the Property and Affairs Report: Hegel and testamentary capacity, and cross-border management of personal injury settlements; (3) In the Practice and Procedure Report: a freeze on freezing injunctions, and ss.48 and 49 MCA under the spotlight; (4) In the Wider Context Report: Mental Health Act reform potential and pitfalls, an update to the Mental Health and Justice Capacity Guide, and food refusal in prison; (5) In the Scotland Report: Issues with powers of attorney – an unprecedented tangle, the Powers of Attorney Bill and Implementation of the Scott Report." |
39 Essex Chambers, 'Mental Capacity Report' (issue 133, July 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an Anglo-Welsh LPS update and cases covering contingency planning, executive capacity, decision-specificity and restraining the detained patient; (2) In the Property and Affairs Report: Hayden J takes on common LPA problems, an MOJ toolkit and a rather startling assertion about the position of professional solicitor deputies; (3) In the Practice and Procedure Report: habitual residence under the spotlight, contempt and the Court of Appeal and the most recent Court of Protection statistics; (4) In the Wider Context Report: the LGSCO ombudsman and deprivation of liberty, Article 2 and DoLs, visiting in care homes, and a report from our new Irish correspondents; (5) In the Scotland Report: AWI masterclasses and the Scottish Government respondents to the Scott Report." |
39 Essex Chambers, 'Mental Capacity Report' (issue 134, September 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the MHA/MCA interface revisited; belief, diagnosis and capacity, and questioning an independent spirit; (2) In the Property and Affairs Report: the SRA looks at law firms providing LPA / deputyship services, OPG guidance on completing LPA forms and a shedinar on the MCA and money; (3) In the Practice and Procedure Report: transparency in committal hearings and on death, and why belief is not the same as proof when it comes to capacity; (4) In the Wider Context Report: the wider MHA context within which many MCA matters arise, the limits of autonomy in medical settings; litigation capacity under the spotlight in both civil and family courts; and the second of our reports from Ireland as the new Act beds in; (5) In the Scotland Report: Articles 3 and 2 ECHR in play in the capacity context." |
39 Essex Chambers, 'Mental Capacity Report' (issue 135A, October 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Brain stem death before the courts and conveyancing; (2) In the Property and Affairs Report: the Powers of Attorney Act 2023 gets Royal Assent, and how it will change the Mental Capacity Act 2005; (3) In the Practice and Procedure Report: revised guidance for Accredited Legal Representatives and anonymisation of clinicians in cases involving the MCA 2005; (4) In the Wider Context Report: a revised online ADRT service and a revised clinical guide for staff working with autistic people and those with a learning disability, and our Irish correspondents highlight two specific aspects of the Assisted Decision-Making (Capacity) Act 2015; (5) In the Scotland Report: attorneys as executors." |
39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: reasonably adjusting to disability in the context of dialysis and identifying will and preferences across a spectrum of difficult medical cases; (2) In the Property and Affairs Report: the Law Commission’s further consultation on wills; (3) In the Practice and Procedure Report: two sets of ‘Ps’ and the costs of welfare appeals; (4) In the Wider Context Report: the CQC’s State of Care report, deprivation of liberty and those under 18, litigation capacity and access to court, and the inherent jurisdiction in Ireland; (5) In the Scotland Report: bureaucracy vs justice and a tribute to Adrian upon his retirement from one of his posts." |
39 Essex Chambers, 'Mental Capacity Report' (issue 136, December 2023) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the least worst option as regards compulsory feeding, putting values properly into the mix and the need for a decision actually to be in contemplation before capacity is considered; (2) In the Property and Affairs Report: relief from forfeiture in a very sad case; (3) In the Practice and Procedure Report: counting the costs of delay, guidance on termination cases, and a consultation on increasing Court of Protection feeds; (4) In the Wider Context Report: forgetting to think and paying the price, the cost of getting it wrong as litigation friend, Wales potentially striking out alone on mental health reform, and a review of Arianna’s book on social care charging; (5) In the Scotland Report: reduction of a Will: incapacity and various vitiating factors, and an update on law reform progress." |
39 Essex Chambers, 'When P is an offender' (webinar recording, 21/2/23) |
Video |
Capacity and offending |
Following DY v A City Council [2022] EWCOP 51, this two-hour webinar deals with how the law approaches offenders and those at risk of offending who lack the relevant mental capacity. The recording is available on Youtube. |
Alex Ruck Keene (ed), Assessment of Mental Capacity (5th edn, Law Society 2022) |
Book |
Mental capacity book |
I don't have this edition but earlier editions were good. |
Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/11/22) |
Web page |
Book update |
Newer version: Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/2/23). |
Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/2/23) |
Web page |
Book update |
This web page contains quarterly updates to Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (4th edn, LAG 2022). |
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (4th edn, LAG 2022) |
Book |
Court of Protection book |
Quarterly updates are available online. |
Alice Roe, 'Children subject to deprivation of liberty orders' (Nuffield Family Justice Observatory, 15/9/23) |
Report |
Children and DOL |
"Children subject to deprivation of liberty (DoL) orders are among the most vulnerable children in England and Wales and living with severe restrictions on their day-to-day freedoms. Over the last 12 months we have been working with the national DoL court to understand the number of children and their circumstances. This briefing paper summarises our key findings to date and outlines five principles of care." |
Amy Holmes, 'Powers of Attorney Bill receives Royal Assent' (Office of the Public Guardian, 25/9/23) |
Blog post |
Powers of Attorney Act |
This blog post describes the Powers of Attorney Act 2023 using corporate speak. |
Andy Dolan, 'Priory hospital chain is charged by the healthcare watchdog over death of an NHS patient, 23, who absconded while in its care after being left unattended in courtyard' (Mail Online, 6/11/23) |
News article |
CQC prosecution |
The CQC is prosecuting Priory Healthcare Limited under regulation 22(2)(a) and (b) Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 for failing to comply with regulation 12 (safe care and treatment) resulting in avoidable harm to the patient, Matthew Caseby, or exposing him to a significant risk of such harm occurring. Last year an inquest found that neglect contributed to his death, noting that he had been left unattended in a courtyard and so was able to climb a low (7'6") fence. |
Anselm Eldergill, 'LPS weaknesses' (LinkedIn, 13/12/23) |
Blog post |
LPS criticism |
The proposed LPS scheme is described as having the following fundamental weaknesses (paraphrased): (1) it "bakes in" the illegality of DOLS and "seems designed to permit citizens to be deprived of their liberty for months on end without any legal authorisation in place"; (2) it permits the COP to detain people who are detainable under the MHA; (3) the mental disorder condition is not ECHR compliant; (4) arguably, DOLS also does not incorporate the second Winterwerp condition; (5) it is no simpler or less bureaucratic, in reality the same six requirements remain, and the procedures are labyrinthine; (6) the legal liability provisions leave practitioners dangerously exposed. (The second Winterwerp condition is that the mental disorder must be of a kind or degree warranting compulsory confinement.) |
Anselm Eldergill, 'LPS weaknesses' (LinkedIn, 13/12/23) |
Blog post |
LPS criticism |
The proposed LPS scheme is described as having the following fundamental weaknesses (paraphrased): (1) it "bakes in" the illegality of DOLS and "seems designed to permit citizens to be deprived of their liberty for months on end without any legal authorisation in place"; (2) it permits the COP to detain people who are detainable under the MHA; (3) the mental disorder condition is not ECHR compliant; (4) arguably, DOLS also does not incorporate the second Winterwerp condition; (5) it is no simpler or less bureaucratic, in reality the same six requirements remain, and the procedures are labyrinthine; (6) the legal liability provisions leave practitioners dangerously exposed. (The second Winterwerp condition is that the mental disorder must be of a kind or degree warranting compulsory confinement.) |
Anselm Eldergill, 'Mental Health Legislative Reform' (29/5/23) |
Document |
Criticism of LPS and MH Bill |
(1) This document criticises the proposed LPS scheme, including that it is "not notably simpler or more practical" than the existing scheme, it "tries to legitimise [tens of thousands of unlawful detentions] by providing that such detentions are lawful without a proper legal authorisation", and contains drafting deficiencies. (2) It also criticises the Mental Health Bill, with 16 numbered points, including that: the Bill is too limited and does not provide the needed root-and-branch reform; "[t]he Wessely Reviewers somehow completely failed to see the elephant standing in front of them", this being that there are now far more detentions under the MCA than MHA; the Bill does not properly address the review's main aims, and fails to deal with or deals ineffectively with tribunal discretionary discharges, seclusion, restraint, hospital managers, spouses and partners, the complicated AWOL provisions, treatment in prison, short-term powers, guardianship, and MHA-MCA interface or fusion; it does not reintroduce an MHA Commission (the CQC "now has no legally qualified members and is totally unqualified to monitor and enforce legal standards"); and does not address the shortcomings in the Court of Protection or lessons learnt from MCA implementation. (3) The conclusion is: "The problems with the legislation and the Bill are, in my view, mainly due to over-reliance on academic input and insufficient experienced practitioner input. The same problem beset the long-drawn-out Mental Health Bill process between 1998 and 2007. That began with a similarly abortive report by Professor Genevra Richardson and her committee of academics and policy officers. Legislation should have a practical focus, which can be difficult for academics and policy advisors who have not spent much time practising in psychiatric hospitals. What is now needed is a small Commission of experienced MHA practitioners to review the work that has been done and to draft themselves a completely new Bill. Extensive consultation has already taken place which will save a great deal of time. Since LPS has been postponed to the next Parliament, it may make sense to put a new Mental Health Act back until then. The revised Bill/Mental Health Act can either replace LPS with more workable arrangements and a fused scheme or make the necessary amendments to LPS within a Mental Health Bill." |
Care Quality Commission, 'How we support the rights and interests of people on community treatment orders (CTOs)' (August 2012) |
CQC guidance |
CTOs |
"This booklet is for anyone on a community treatment order under the Mental Health Act 1983." |
Care Quality Commission, 'Mental Health Act community treatments orders (CTO) - focused visits report' (1/11/22) |
Report |
CQC report |
"Introduced as part of the Mental Health Act (MHA) in 2007, community treatment orders (CTOs) enable people detained under the MHA to be discharged into the community providing they meet certain conditions. This may include, for example, living in a certain place, attending appointments with mental health professionals, or not taking drugs and drinking alcohol. If they don’t comply, they may be recalled to hospital under the MHA. ... Between February 2019 and November 2021, Mental Health Act Reviewers from the London region explored how CTOs were being used in 9 boroughs across London." They spoke to patients, carers and relatives, care co-ordinators, RCs, AMHPs, managers of community services, MHA administrators, and IMHAs (but did not speak to legal representatives). |
Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15) |
Guidance |
Residence conditions |
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. |
Committee on the Rights of Persons with Disabilities, 'Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland' (3/10/17) |
Report |
CRPD |
Various recommendations. |
COP User Group, 'Meeting (General): Minutes and action points' (19/4/23) |
Minutes |
COPUG minutes |
These are the minutes and action points arising from the meeting on 19/4/23, which were circulated on 11/10/23. |
COP User Group, 'Minutes and action points' (18/1/23) |
Minutes |
COPUG minutes |
These are the minutes and action points arising from the meeting on 18/1/23, which were circulated on 2/3/23. |
COP User Group, 'Minutes' (12/10/16) |
Minutes |
COPUG minutes |
Minutes of 12/10/16 meeting. |
COP User Group, 'Minutes' (26/4/17) |
Minutes |
COPUG minutes |
Minutes of 26/4/17 meeting. |
Court of Protection, 'Letter about s49 reports' (Mr Justice Hayden, 16/12/22) |
Court guidance |
Section 49 reports |
This letter from the Vice President discusses the ambit and scope of section 49 reports and when an independent expert report would be more suitable, and recirculates PD 14E with some paragraphs highlighted. |
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23) |
Tribunal guidance |
Tribunal victims guidance |
This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review. |
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23) |
Tribunal guidance |
Tribunal victims guidance |
This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review. |
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23) |
Tribunal guidance |
Tribunal victims guidance |
This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review. |
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23) |
Tribunal guidance |
Tribunal victims guidance |
This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review. |
Courts and Tribunals Judiciary, 'The Administrative Court Judicial Review Guide 2023' (October 2023) |
Court guidance |
JR guide |
"This is the eighth edition of the Judicial Review Guide, which has become a valuable resource for all who are involved in proceedings before the Administrative Court. It covers all the stages of a claim for judicial review. Good practice is identified and pitfalls foreshadowed. It is required reading for all those who conduct judicial review cases (whether or not they are lawyers)." |
Department of Health, 'Report of the Expert Committee: Review of the Mental Health Act 1983' (November 1999) |
Report |
MHA reform |
This is the report of the committee chaired by Genevra Richardson. |
DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 5/10/23) |
Statutory guidance |
Ordinary residence and s117 |
Ordinary residence disputes which had been stayed pending R (Worcestershire County Council) v SSHSC [2023] UKSC 31 will now be progressed, with the DHSC working through previously stayed cases in the order in which they had been stayed. |
DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 5/10/23) |
Statutory guidance |
Ordinary residence and s117 |
Ordinary residence disputes which had been stayed pending R (Worcestershire County Council) v SSHSC [2023] UKSC 31 will now be progressed, with the DHSC working through previously stayed cases in the order in which they had been stayed. |
Emmett Maginn, 'Who pays? Significant changes to determining which CCG is responsible for funding s117 MHA 1983 aftercare after 1 April 2016' (Browne Jacobson, 11/5/16) |
Blog post |
Aftercare guidance |
"The much criticised Who pays? Determining responsibility for payments to providers (2013) has been significantly revised with effect from 1 April 2016, as have the regulations underpinning the Guidance. Although further changes are in the pipeline, the changes which came into effect this April relate solely to how responsibility for a patient’s s117 Mental Health Act 1983 aftercare should be determined." |
Form CNL1: Case Notification Letter (1) and Directions (2015) |
Tribunal form |
CNL1 |
The tribunal secretariat uses this form to notify parties that an application or reference has been received. The parties are directed to submit form HQ1 within two weeks, or sometimes two working days longer (e.g. CNL1 Thursday 11/5/23, HQ1 by 4.30pm Thursday 25/5/23). The responsible authority is directed to submit reports within three weeks (e.g. 4.30pm Thursday 1/6/23). The listing window for unrestricted cases (and restricted recall cases) lasts four weeks and begins four weeks after the CNL1 date (e.g. Thursday 8/6/23). The listing window for other restricted cases lasts three weeks and begins 11 weeks after the CNL1 date. |
Form T113 (CMR1): Case management and pre-hearing (v05.23) |
Tribunal form |
T113 (CMR1) |
The main change from the November 2022 version is the addition of the words "Do the other parties in the case agree to your request?" and "The direction should be sent to:". |
Form T113: Case management request (November 2022) |
Tribunal form |
T113 (CMR1) |
Use for interlocutory matters: (1) Postponements/date brought forward/time change; (2) HQ1 extension; (3) Listing window extension; (4) Prohibition of Disclosure of information: (5) Pre-hearing examination; (6) Permission to withdraw an application; (7) Reinstatement of application; (8) Extension of reports submission/reports directions; (9) Rule 11 request; (10) Telephone conference request; (11) Observer request; (12) Other. This is a simplified form, compared with the September 2020 version, with more tick boxes but only one other box which is for providing reasons. Newer version: Form T113 (CMR1): Case management and pre-hearing (v05.23). |
Form T144: Victim's representations to the Tribunal (September 2023) |
Tribunal form |
T144 |
This form allows the victim to provide representations on: (1) the tribunal's decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim's attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests. |
Form T144: Victim's representations to the Tribunal (September 2023) |
Tribunal form |
T144 |
This form allows the victim to provide representations on: (1) the tribunal's decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim's attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests. |
HMCTS, 'Mental Health Tribunal contact details for professionals' (5/11/19) |
Web page |
Tribunal contact details |
A fuller list is available at: Mental Health Tribunal, 'Email addresses for MHT' (20/8/21). |
HMPPS, 'MAPPA Guidance' (dated March 2023, updated 13/9/23) |
Guidance |
MAPPA guidance |
This guidance still states "Updated March 2023" on its front page, but the document was last updated on 13/9/23. There are minor changes to chapter 24: some paragraph numbering is corrected and a new paragraph is added. |
HMPPS, 'MAPPA Guidance' (March 2023) |
Guidance |
MAPPA guidance |
"This Guidance on MAPPA has been issued by the Secretary of State for Justice under the CJA 2003 in order to help the relevant agencies in dealing with MAPPA offenders. These agencies are required to have regard to the Guidance (so they need to demonstrate and record their reasons if they depart from it)." This is the latest version on Gov.uk but chapter 24 was updated in September 2023: HMPPS, 'MAPPA Guidance' (dated March 2023, updated 13/9/23). |
Jag Bahra, 'High Court victory for victims' rights and open justice' (Saunders Law, 13/1/23) |
Press release |
MHT and victims |
This press release notes that: (1) prior to the decision in R (Maher) v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin), the Mental Health Tribunal was "perhaps the only Court left that operates entirely in secrecy, such that its decisions are beyond any public scrutiny"; (2) the tribunal has indicated that it intends to update its Practice Guidance to make it clear that victims are in fact entitled to request reasons when a patient is discharged; and (3) the Government has also indicated in a consultation that it supports proposals to allow victims to provide a Victim Personal Statement when a patient is being considered for discharge, which would bring the Tribunal's practice closer into line with the Parole Board. |
Jonathan Sumption, 'Judgment call: the case for leaving the ECHR' (Spectator, 30/9/23) |
Journal article |
ECHR |
Lord Sumption takes issue not with the text of the European Convention of Human Rights, which was agreed upon by the member states, but with the European Court of Human Rights - in particular, its "living instrument" doctrine through which he says it has "emancipated itself from the text and allowed itself to wander freely over the whole realm of social policy" and made law in a manner which lacks democratic legitimacy. He cites examples relating to territorial jurisdiction, binding interim orders, Article 8, and qualified convention rights. He concludes that the convention should be replaced with a domestic code of basic rights which would look very like it, and that our own courts, with their long tradition of defending fundamental rights and holding governments to account, can be trusted to enforce human rights. (Avoid paying by using the Archive link.) |
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022) |
Journal article |
Case law update |
This article considers mental health case law from the past year relating to remote MHA assessments, after-care responsibility, discharge from long-term leave, deprivation of liberty during conditional discharge, removing all conditions of discharge, change in status before a tribunal hearing, and other matters. |
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022) |
Journal article |
Case law update |
This article considers mental health case law from the past year relating to remote MHA assessments, after-care responsibility, discharge from long-term leave, deprivation of liberty during conditional discharge, removing all conditions of discharge, change in status before a tribunal hearing, and other matters. |
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2023) |
Journal article |
Case law update |
This article considers mental health case law from the past year relating to open justice and provision of reasons to victims, change of status during tribunal proceedings, hearings in the absence of the patient, adjournment and recommendations, criminal appeals, and other matters. |
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2023) |
Journal article |
Case law update |
This article considers mental health case law from the past year relating to open justice and provision of reasons to victims, change of status during tribunal proceedings, hearings in the absence of the patient, adjournment and recommendations, criminal appeals, and other matters. |
Jonathan Wilson, Mental Health Law Online: Annual Review 2022 (published 2023) |
Book |
Annual Review |
This booklet contains all news items, arranged thematically, which were added to the website during 2022. Price: paperback £5.99, Kindle £2.99. |
Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10) |
Report |
COP Report |
Extract from Foreword: "This report covers a period of twenty-seven months, from 1 October 2007, when the Mental Capacity Act 2005 came into force, until 31 December 2009, and I cannot pretend that it has been plain sailing." The report summarises several reported decisions. |
Julian Hendy, 'Open Justice consultation - response from the Hundred Families charity' (22/8/23) |
Consultation response |
Open justice consultation response |
"Our submission covers our understanding of open justice, some serious problems in the application of open justice where the offender is mentally disordered – particularly in diminished responsibility cases and at First Tier Tribunals (mental health). We say that despite clear guidance on the need for open justice in such cases there is a lack of sufficient openness or accountability in the Criminal Justice System for our families, or the wider public. We say without such transparency our families, and the wider public, cannot be assured the current system is impartial, competent, or just. There is urgent need for reform." |
LAA, 'Civil news: mental health work change for tribunal appointments' (21/3/23) |
Legal Aid resource |
Rule 11(7)(a) remuneration |
Firms will be able to claim a level 1 fee of £129 if a client refuses to engage following a rule 11(7)(a) appointment, if the appointment is made on or after 21/3/23 and the conditions in para 9.105(a) of the contract are met. |
Landmark Chambers, 'Delayed Transfer of Care leads to £100k legal bill for an ICB' (24/11/22) |
Blog post |
Delayed transfer of care |
(1) The patient sought judicial review of NHS bodies, arguing that he had been stuck on a (non-psychiatric) ward for over eight months because they had failed to agree on a discharge plan (constantly seeking further assessments, disagreeing on funding, and lack of engagement from the out-of-area section 117 providers). (2) The main issue settled when the parties agreed process leading to a discharge plan, with the divisional Court ordering the ICB to pay the patient's legal costs estimated at more than £100,000. (3) The Court of Appeal granted permission for the patient's argument that, in the case of delayed discharge patient in hospital, the regulation 21 duty to assess for NHS Continuing Healthcare (CHC) is triggered and therefore following the "Discharge to Assess" model is unlawful; however, the issue did not have to be decided in this case because the ICB backed down. |
Law Society, 'Guide: Financial abuse' (13/6/23) |
Practice Note |
Financial abuse |
"This guidance is aimed at all solicitors who advise clients who are or may be at risk of financial abuse, in particular those conducting private client work involving estate and financial planning, property transactions, execution of wills or lasting powers of attorney (LPAs). It may also be useful to other professionals working with adults at risk of financial abuse, and to carers, families and friends." |
Law Society, 'Guide: Meeting the needs of vulnerable clients' (29/11/22) |
Guide |
Vulnerable clients |
"This guide will help you identify and meet the needs of clients who may have difficulty using legal services, or who may be at risk of acting against their own best interests." |
Law Society, 'Practice note: Accredited legal representatives in the Court of Protection' (4/9/23) |
Practice Note |
ALRs in COP |
This practice note covers: "communicating with and taking instructions from your client; representing the subject of the proceedings (P) and ensuring P’s effective participation; your duties of confidentiality and disclosure; good practice in the Court of Protection; funding of P’s legal costs; applications under section 21A Mental Capacity Act 2005; other legal issues arising in the course of the case". |
Law Society, 'Practice note: Accredited legal representatives in the Court of Protection' (5/12/19) |
Practice Note |
ALRs in COP |
"This practice note includes detailed advice on: the role of an accredited legal representative; communicating with and taking instructions from your client; representing P and ensuring P’s effective participation; your duties of confidentiality and disclosure; good practice in the Court of Protection; funding of P’s legal costs; applications under s21A Mental Capacity Act 2005; other issues e.g. breach of the HRA 1998." Superseded by: Law Society, 'Practice note: Accredited legal representatives in the Court of Protection' (4/9/23). |
Law Society, 'Working with clients who may lack mental capacity' (14/6/23) |
Guide |
Clients and capacity |
"This guidance is aimed at solicitors, and will help you assess whether clients have mental capacity to instruct you, and whether you can accept and act on the client’s instructions. It explains the principles for assessing capacity, and the legal tests you can use in different circumstances, such as making a will, making a lifetime gift, and conducting civil proceedings. It also covers techniques for assessing capacity, and what to do if a client lacks capacity to give you instructions." |
Legal Aid Agency, '2018 Standard Civil Contract: Category Specific Rules: Mental Health (section 9)' (20/3/23) |
Legal Aid resource |
Civil contract mental health section |
The change from the version is the addition of paragraphs 9.105 to 9.109. These set out the requirements for claiming a fee for work done following a rule 11(7)(a) appointment for a client who does not provide instructions. The new text is reproduced here. |
Legal Aid Agency, '2018 Standard Civil Contract: Category Specific Rules: Mental Health (section 9)' (20/3/23) |
Legal Aid resource |
Civil contract mental health section |
The change from the version is the addition of paragraphs 9.105 to 9.109. These set out the requirements for claiming a fee for work done following a rule 11(7)(a) appointment for a client who does not provide instructions. The new text is reproduced here. |
Legal Aid Agency, 'Award Criteria Invitation to Tender' (13/9/23) |
Legal Aid resource |
Award ITT |
"ITT Responses will be assessed in the following stages: Stage 1 - SQ ITT assessment; Stage 2 - Award ITT assessment; Stage 3 - Contract award (subject to verification); Stage 4 - Verification." |
Legal Aid Agency, 'Civil 2024 Contract Procurement Process' (13/9/23) |
Legal Aid resource |
Procurement process |
Questions may be asked by 2359 on 26/9/23 and answers will be published in the week beginning 2/10/23. Tenders must be submitted by 1700 on 17/10/23. This guidance web page provides links to the following documents: Selection Questionaire ITT; Award ITT; Mental Health Category-Specific Information; Community Care Category-Specific Information; and category-specific information relating to the other areas of law. |
Legal Aid Agency, 'Civil Finance Electronic Handbook' (v3.4, dated 1/8/23) |
Legal Aid resource |
Certificated work guidance |
The changes since the previous version, as listed in Appendix 11, are: 1.6 Confirmation added that bills on revoked certificates must be submitted within six years; 3.5 Updated guidance on panel membership enhancement; 6.1 Added guidance on FAS webinar; 6.4 Additional guidance added into final hearing guidance, Added paper hearing guidance, Remove reference to hearing on same day, Added reference to early neutral evaluation hearings, Added guidance on Dispute Resolution Appointment; 6.5 Guidance on calculating remote hearings; 10.1 Updated guidance on admin costs; 10.5 Added reference to appointment and apportionment; 10.17 Updated to reflect new CAFCASS rate for ISW; 10.18 Added guidance where interpreter above codified rate; 10.32 Added new rates for accommodation; 16 Added reference to webinar, Clarified position with initial document request; 16.1 Confirmation that assessment following previous reject where no evidence of work; 21.1 Cross reference to submission of claim within six years; 21.2 Further guidance on client refunds. Document dated 1/8/23 but PDF created on 31/8/23. |
Legal Aid Agency, 'Civil news: changes to civil legal aid forms' (3/7/23) |
Legal Aid resource |
New forms |
New forms will come into force on 3/8/23 and will appear on the Gov.uk website on the same day. Previous versions will be accepted up to 3/9/23. The following forms will be changed: CW1, CW1&2 MH, CW2 (IMM), CW5, CIVAPP1, CIVAPP3, CIVAPP6, CIVMEANS3 and CIVMEANS7. Form CIVMEANS4 will be removed. The changes are a result of the Means Test Review (MTR). |
Legal Aid Agency, 'Civil news: immigration and mental health work forms updated' (1/9/23) |
Legal Aid resource |
News story about Legal Aid forms |
The LAA published three PDFs of Form CW1&2MH recently: (1) 3/8/13 to 13/8/23 inclusive (the original v18); (2) 14/8/23 to 31/8/21 inclusive (v19 but still saying v18 on the form); (3) 1/9/23 onwards (v19). In relation to using the previous forms the LAA say: "We would like you to download the current forms. But we are still accepting the versions published on 3 August. Providers should complete the case details and merits section, as appropriate, for under 18s before making payment submissions." The news story sets out the changes between the original v18 and v19. |
Legal Aid Agency, 'Civil news: tender opens for 2024 standard civil contract' (13/9/23) |
Legal Aid resource |
Legal Aid tender process announced |
The procurement process for supplying Legal Aid services under the 2024 Standard Civil Contract runs from 13/9/23 to 17/10/23. The contract will begin on 1/9/24 and will cover all categories of civil and family legal aid (including mental health and community care). This news story gives basic information and provides links to the relevant documents. |
Legal Aid Agency, 'Community Care Category-Specific Information' (13/9/23) |
Legal Aid resource |
Community care category-specific information |
This document contains the following headings: (1) Procurement Areas; (2) Lots; (3) Category-Specific Requirements; (4) Verification Requirements; (5) ITT questions and assessment. |
Legal Aid Agency, 'Contract management: mental health guidance' (v4, 20/3/23) |
Legal Aid resource |
Contract management guidance |
The reason given for this version is: "Amended to include Rule 11(7)(a) & 13(5)(a)(i) appointments & information on remote communication with clients". These sections are new: (4) Remote Hearings; (5) Remote Communication with Clients; (6) Rule 11(7)(a) and 13(5)(a)(i) Appointments. The full text of those sections is reproduced here. The remainder is unchanged. |
Legal Aid Agency, 'Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts' (v6, October 2022) |
Legal Aid resource |
Costs guidance |
Changes from v4 (February 2021) to v5 (April 2021): "Further amendments to extend the temporary changes regarding claims for payments on account." Changes from v5 to v6: "Replacing references to QC/Queen’s Counsel to KC/King’s Counsel." Newer version: Legal Aid Agency, 'Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts' (v10, December 2023). |
Legal Aid Agency, 'Escape Case Electronic Handbook' (v2.3, 1/8/23) |
Legal Aid resource |
Escape case guidance |
Changes from previous version are listed in Appendix 12 as being: Added highlight boxes for regulations and guidance; 5.1 Simplified admin cost guidance; 5.5 Added reference to appointment as well as hearing; 5.15 Updated to reflect new CAFCASS rate for ISW; 5.16 Updated paragraph numbers on Guidance document, Added guidance on when the codified rate can be exceeded; 5.31 Removed reference to priority returns, Added new rates for accommodation; 7.8 Updated scenario 1 to reject to reflect current process; 8.1 Added table to confirm when we reject and assess; 8.2 Removed reference to attaching checklist to claim, Removed reference to FI and phone calls; 8.4 Update reference to claim fix rather than reject fix; 8.5 Removed section as now in s8.1 |
Legal Aid Agency, 'Form CW 1&2 MH' (amended v18, August 2023) |
Legal Aid resource |
Mental health Legal Aid form |
This version was published on 14/8/23. The only differences from the original v18 are in the guidance notes on page 2. The footer still said "version 18". It was later re-issued as "version 19": for details, see Legal Aid Agency, 'Form CW 1&2 MH' (v19, August 2023). |
Legal Aid Agency, 'Form CW 1&2 MH' (original v18, August 2023) |
Legal Aid resource |
Mental health Legal Aid form |
For use from 3/8/23. LAA update notes: "Published new version of the CW1&2 MH form for phase 1 of the Means Test Review". This form was only online from 3/8/23 to 13/8/23 inclusive. Superseded by: Legal Aid Agency, 'Form CW 1&2 MH' (amended v18, August 2023). |
Legal Aid Agency, 'Form CW 1&2 MH' (original v18, August 2023) |
Legal Aid resource |
Mental health Legal Aid form |
For use from 3/8/23. LAA update notes: "Published new version of the CW1&2 MH form for phase 1 of the Means Test Review". This form was only online from 3/8/23 to 13/8/23 inclusive. Superseded by: Legal Aid Agency, 'Form CW 1&2 MH' (amended v18, August 2023). |
Legal Aid Agency, 'Form CW 1&2 MH' (v19, August 2023) |
Legal Aid resource |
Mental health Legal Aid form |
Version 19 (dated 14/8/23, published 1/9/23) is the same as amended version 18 (published 14/8/23) except for the footer which now states "Version 19". The only differences between version 19 and original version 18 (published 3/8/23) are amendments to the guidance notes on page 2. The LAA will accept original version 18 as long as the form is completed in accordance with the amended guidance (see Legal Aid Agency, 'Civil news: immigration and mental health work forms updated' (1/9/23)). Presumably they will also accept amended v18 as its contents are the same as v19. Note 1 now reads "As you have answered YES to questions 1 and 2 confirming that the client is a child who is applying for Controlled Legal Representation, no further assessment is required. Go directly to [Please complete the Case Details and Merits Criteria on page 6 and] the client declaration on page 11." Note 2 now reads: "As you have answered NO to questions 3, 4 and 5, confirming that the client is a child who is not to be aggregated with a maintaining adult and does not have a regular income or capital in excess of £2,500, no further assessment is required. Go directly to [Please complete the Case Details and Merits Criteria on page 6 and] the client declaration on page 11. Superseded by Legal Aid Agency, 'Form CW 1&2 MH' (v20, September 2024). |
Legal Aid Agency, 'Keycard 59' (April 2023) |
Legal Aid resource |
Financial eligibility |
This document is helpful when working out financial eligibility for civil Legal Aid. |
Legal Aid Agency, 'Mental Health Category-Specific Information' (13/9/23) |
Legal Aid resource |
MH category-specific information |
This document contains the following headings: (1) Procurement Areas; (2) Lots; (3) Category-Specific Requirements; (4) Verification Requirements; (5) ITT questions and assessment. |
Legal Aid Agency, 'Procurement process for 2024 Standard Civil Contract from September 2024 - Frequently Asked Questions' (5/10/23) |
Legal Aid resource |
2014 Contract FAQs |
"Questions that we consider to be of wider interest have been collated and answered centrally in writing to ensure that all potential Applicants have equal access to information. These questions and answers have been published in this FAQ document." |
Legal Aid Agency, 'Selection Questionnaire Invitation to Tender' (13/9/23) |
Legal Aid resource |
SQ ITT |
"Where an Applicant’s SQ Response is assessed as successful the LAA will proceed, as applicable, to assess the Award ITT Response(s) for each Category of Law, and where applicable, HLPAS ITT Response(s)." |
Legal Aid Agency, 'Standard civil contract 2024' (13/9/23) |
Legal Aid resource |
Contract documentation |
The 2024 civil contract consists of: Standard terms; Specification (General Provisions & Category Specific Rules); Schedule; Contract for Signature; Category Definitions 2024. This guidance page contains links to the following draft documents (among others): standard terms; specification (general provisions 1-6); category specific rules mental health (section 9); category specific rules community care (section 11); schedule; contract for signature; category definitions; supervisor self-declaration forms (mental health routes 1 and 2, community care, etc); guidance on completing supervisor declaration forms; provider data security guidance and requirements documents; indemnity proformas (separate forms for limited company, LLP, partnership). |
Legal Aid Agency, 'Tribunal appointed representatives in mental health (rule 11(7) cases)' (8/6/17) |
Legal Aid resource |
Legal Aid and rule 11 |
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). |
Mental Health Casework Section, 'Guidance: Section 42 Discharge' (March 2022) |
Guidance |
Restricted patient discharge guidance |
"This guidance sets out the SoS’s approach to applications for discharge under section 42(2) of the Mental Health Act 1983 (MHA)." Very detailed guidance is given on when conditional and absolute discharge will be granted. Headings: (1) Introduction; (2) Legal Provisions; (3) Types of Restricted Patients; (4) Specific Categories of Patients; (5) Applications for Discharge; (6) Types of Discharge; (7) Lifting the Restriction Order; (8) Patient Management; (9) Victim Involvement; (10) Multi Agency Public Protection arrangements (MAPPA); Annex A - Glossary of Terms; Annex B - Standard Conditions of Discharge. |
Mental Health Tribunal, 'Email addresses for MHT' (20/8/21) |
Document |
Tribunal contact details |
The document was last updated in 2021 but the tribunal secretariat confirmed that it is pretty much up to date in July 2023. Add "cjsm.net" for secure email, e.g. mhtapplications@justice.gov.uk becomes mhtapplications@justice.gov.uk.cjsm.net. |
MHAC, 'Eighth biennial report 1997-99' (1999) |
Report |
MHA report |
MHAC's 8th biennial report. |
MHAC, 'Eleventh biennial report 2003-05: In place of fear' (2005) |
Report |
MHA report |
MHAC's 11th biennial report. |
MHAC, 'Fifth Biennial Report 1991-93' (1993) |
Report |
MHA report |
MHAC's fifth biennial report. |
MHAC, 'First Biennial Report 1983-85' (1985) |
Report |
MHA report |
MHAC's first biennial report. |
MHAC, 'Key findings about the use of the MHA: Taken from the Commission's Twelfth Biennial Report' (2007) |
Report |
MHA report |
"This briefing note contains some of the key contents of the Mental Health Act Commission’s Twelfth Biennial Report, Risks, Rights, Recovery, which reviews the operation of the Mental Health Act 1983 between 2005 and 2007. It is not a full summary of all aspects of the Biennial Report, but seeks to describe the use of the Act and the experience of detention for people who may be less familiar with the legislation and its operation." |
MHAC, 'Ninth biennial report 1999-2001' (2001) |
Report |
MHA report |
MHAC's 9th biennial report. |
MHAC, 'Seventh biennial report 1995-97' (1997) |
Report |
MHA report |
MHAC's seventh biennial report. |
MHAC, 'Sixth biennial report 1993-95' (1995) |
Report |
MHA report |
MHAC's sixth biennial report. |
MHAC, 'Tenth biennial report 2001-03: Placed amongst strangers' (2003) |
Report |
MHA report |
MHAC's 10th biennial report. |
MHAC, 'Thirteenth biennial report 2007-09: Coercion and consent' (2009) |
Report |
MHA report |
MHAC's 13th biennial report. |
MHAC, 'Twelfth biennial report 2005-07: Risk, rights, recovery' (2007) |
Report |
MHA report |
MHAC's 12th biennial report. |
Ministry of Justice, 'Discharge Application for Restricted Patients' (v2.1, 24/2/22) |
Form |
Form for requesting MOJ discharge |
"Please use this form for all forms of discharge (absolute, conditional or lifting the s41 Restriction Order). This form is primarily designed for use by patients’ Responsible Clinicians but can be used by patients themselves or their representatives (Legal or Independent Mental Health Advocates). Please note, however, that the Responsible Clinician’s views on discharge will be sought prior to any decision being made by MHCS." Changes since the 2017 version to the suggested discharge conditions are shown as tracked changes on the MHLO page. |
Ministry of Justice, 'Discharge Application for Restricted Patients' (v2.1, 24/2/22) |
Form |
Form for requesting MOJ discharge |
"Please use this form for all forms of discharge (absolute, conditional or lifting the s41 Restriction Order). This form is primarily designed for use by patients’ Responsible Clinicians but can be used by patients themselves or their representatives (Legal or Independent Mental Health Advocates). Please note, however, that the Responsible Clinician’s views on discharge will be sought prior to any decision being made by MHCS." Changes since the 2017 version to the suggested discharge conditions are shown as tracked changes on the MHLO page. |
Ministry of Justice, 'Open Justice: the way forward' (consultation from 11/5/23 to 7/9/23) |
Consultation |
Open justice consultation |
"We want to hear from all interested parties, including the judiciary, legal professionals, the media, businesses, academics, law and technology experts and our court and tribunal users on how you think the government can uphold and strengthen open justice in the modern age." |
Ministry of Justice, 'Open Justice: the way forward' (consultation from 11/5/23 to 7/9/23) |
Consultation |
Open justice consultation |
"We want to hear from all interested parties, including the judiciary, legal professionals, the media, businesses, academics, law and technology experts and our court and tribunal users on how you think the government can uphold and strengthen open justice in the modern age." |
National Preventive Mechanism, 'Monitoring places of detention: 13th Annual Report of the UK's NPM' (17/4/23) |
Report |
Detention report |
"The National Preventive Mechanism (NPM) produces an annual report setting out its finding from the visits the bodies which make up the NPM have undertaken." |
NHS England, '‘Who Pays’ amendment to the section on ‘persons detained under the Mental Health Act 1983’' (19/4/16) |
Health guidance |
Aftercare guidance |
This document discusses 2016 amendments to the Who Pays? guidance. |
NHS England, 'Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers' (v2, 30/6/22) |
Health guidance |
NHS commissioning |
"This version of Who Pays? is being published because of changes introduced by the Health and Care Act 2022 and associated regulations ... Although the legislation which underpins Who Pays? is changing in some respects, the new arrangements effective from 1 July 2022 will in practice provide a very high level of continuity with the rules which have applied under the 2020 version of Who Pays?" The introduction notes changes in three key areas: (1) People for whom an ICB is to have core responsibility; (2) Responsibility for detention and aftercare under the Mental Health Act; (3) Transition to adult continuing care. Updates from the 2020 version are highlighted in yellow. |
NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 21/9/16) |
Guidance |
Aftercare guidance |
Annex A ("'Who Pays' amendment to the section on 'persons detained under the Mental Health Act 1983'") sets out replacements for paragraphs 33 and 34 of the August 2013 Who Pays? guidance. |
NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 9/6/16) |
Health guidance |
Aftercare guidance |
Superseded by NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 21/9/16). |
Office of the Public Guardian, 'Public Guardian practice note (SD15): OPG’s approach to surety bonds' (updated 23/6/23) |
Guidance |
Security bonds |
"The practice note explains what OPG expects from a bond provider, so that its surety bonds are suitable for deputies." Update since previous version: "Change to the available bond providers." |
Office of the Public Guardian, 'Simplified process for verifying the death of a donor, attorney, deputy or guardian' (blog, 13/1/23) |
Blog post |
OPG procedure |
"We have simplified the process we follow after being notified that someone has died. We now verify deaths using the Life Event Verification system, so there is no longer a need for people to send in a death certificate unless we specifically ask for it." |
Office of the Public Guardian, 'Surety bonds: Public Guardian practice note' (SD15 09.16, 20/9/16) |
Guidance |
Security bonds |
"This practice note (SD15) explains what OPG expects from a bond provider, so that its surety bonds are suitable for deputies." PDF version published on Gov.uk on 17/4/23. Superseded by Office of the Public Guardian, 'Public Guardian practice note (SD15): OPG’s approach to surety bonds' (updated 23/6/23). |
Office of the Public Guardian, 'Updating Public Guardian registers: Notification of death' (practice note SD16, January 2023) |
Practice Note |
Notification of death |
"The Public Guardian is responsible for maintaining registers of lasting powers of attorney, enduring powers of attorney, orders appointing deputies, and orders appointing guardians. This practice note outlines the requirements for notifying the Office of the Public Guardian (OPG) of deaths affecting the registers." |
Parole Board, 'Mental Capacity Assessments and Litigation Friends: Member Guidance' (v1.0, October 2021) |
Guidance |
Parole Board and capacity |
"The Parole Board has published guidance for its members on factors to take into consideration when reviewing cases where mental capacity is a consideration." |
Rebecca Thomas, 'Hospital of horrors: 1,643 ‘sexual safety incidents’ in a single 59-bed children’s unit' (Independent, 11/4/23) |
Newspaper article |
CAMHS hospital |
"A single children’s mental health hospital with just 59 beds reported more than 1,600 'sexual safety incidents' in four years, shocking NHS figures reveal. Huntercombe Hospital in Maidenhead [Taplow Manor] was responsible for more than half of the sex-related investigations reported in the 209 children’s mental health units across the country. Despite warnings being sent to the health service at a rate of more than one a day since 2019 – a total of 1,643 sexual incident reports – no action was taken to stop vulnerable NHS patients being sent to the scandal-hit unit. ... Last year The Independent revealed that police were investigating the alleged rape of a child at Taplow Manor, involving two staff members. A young female patient also made a report to the police of an alleged rape by another patient in 2019. Last month it was revealed that a further sexual assault, at a unit in Stafford owned by Active Care Group, had been reported to the police in recent weeks. It comes after the Huntercombe Group closed its Watcombe Hall unit in Devon after a nurse was convicted of the grooming and sexual abuse of two patients. ... Active Care Group claimed that the high number of reports was a “sign of best practice”, indicating a safer culture." |
Rebecca Thomas, 'NHS criticised for sending patients to children’s hospital despite 1,600 ‘sexual safety incidents’' (Independent, 18/4/23) |
Newspaper article |
CAMHS hospital |
"[L]eading mental health charity Mind has criticised the NHS for continuing to use the hospital, despite evidence of 'catastrophic failings in physical and sexual safety' spanning several decades. ... Taplow Manor, which is run by Active Care Group after it merged with The Huntercombe Group, is set to be closed in May. ... Thames Valley Police have launched an investigation into an alleged rape of a patient involving two staff members at the unit. The private provider revealed shortly after it hopes to reopen the hospital as an adult unit within months. Although Taplow Manor is set to close the provider’s second children’s unit, Ivetsey Bank in Stafford is still open and NHS commissioners have admitted 16 children to the hospital since October, The Independent can reveal. Ivetsey Bank is also facing a police investigation into an alleged sexual assault of a patient in March." |
T121: Information for restricted patients detained under the Mental Health Act 1983 (October 2022) |
Tribunal guidance |
Guidance for restricted patients |
This document is sent by the tribunal to patients (via the lawyer if represented). |
Tigrinya translation of Care Quality Commission, 'How we support the rights and interests of people on community treatment orders (CTOs)' (August 2012) |
CQC guidance |
CTOs |
Translation of Care Quality Commission, 'How we support the rights and interests of people on community treatment orders (CTOs)' (August 2012). Translated in 2023 by Translation Empire Group for Livewell SouthWest. |
TPC, 'Consultation on possible amendments to the HESC Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s68 MHA 1983' (consultation from 18/7/23 to 29/8/23) |
Consultation |
Paper reference hearings for hospital-based patients |
(1) The tribunal wants its rule 35 power to determine reference cases on the papers (where an adult patient does not wish to attend or be represented) to be extended from community patients to hospital-based patients. The tribunal suggests that this would be better for patients: its proposal to the TPC talks of giving patients "the right to determine how they want their case to be considered" and "respect[ing] the autonomy of those in hospital", and the conclusion states that "[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community". However, resources and finances are major motivations: "it is an inefficient use of the Tribunal’s resources to have an oral hearing", given that "[a] judge can typically dispose of between 4 and 8 automatic references in a single day", especially if the Mental Health Bill 2022 is passed and references triple. (2) The TPC seem aware that the proposal could make matters worse: (a) they suggest "safeguarding measures" (noting that "it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny" and suggesting "a requirement that every second or third reference (depending on the statutory duration of each) must be considered at an oral hearing which would be able to hear the evidence of witnesses or call for additional information as required"); (b) they suggest that the rule change might be premature prior to the Bill's enactment ("it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now"); (c) they note that the Senior President of Tribunals would amend the relevant PD to ensure that, contrary to the tribunal's proposal, these decisions for hospital-based patients would be made by a full panel and not a judge alone. |
TPC, 'Consultation on possible amendments to the HESC Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s68 MHA 1983' (consultation from 18/7/23 to 29/8/23) |
Consultation |
Paper reference hearings for hospital-based patients |
(1) The tribunal wants its rule 35 power to determine reference cases on the papers (where an adult patient does not wish to attend or be represented) to be extended from community patients to hospital-based patients. The tribunal suggests that this would be better for patients: its proposal to the TPC talks of giving patients "the right to determine how they want their case to be considered" and "respect[ing] the autonomy of those in hospital", and the conclusion states that "[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community". However, resources and finances are major motivations: "it is an inefficient use of the Tribunal’s resources to have an oral hearing", given that "[a] judge can typically dispose of between 4 and 8 automatic references in a single day", especially if the Mental Health Bill 2022 is passed and references triple. (2) The TPC seem aware that the proposal could make matters worse: (a) they suggest "safeguarding measures" (noting that "it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny" and suggesting "a requirement that every second or third reference (depending on the statutory duration of each) must be considered at an oral hearing which would be able to hear the evidence of witnesses or call for additional information as required"); (b) they suggest that the rule change might be premature prior to the Bill's enactment ("it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now"); (c) they note that the Senior President of Tribunals would amend the relevant PD to ensure that, contrary to the tribunal's proposal, these decisions for hospital-based patients would be made by a full panel and not a judge alone. |
Tribunal guidance T118: Victims of violent or sexual offences (April 2012) |
Tribunal guidance |
Victims guidance |
"What to do if you're a victim (or family member of a victim) of a violent or sexual offence committed by a person detained under the Mental Health Act." |
Tribunal guidance T122: Information for non-restricted patients detained under the Mental Health Act 1983 (27/9/22) |
Tribunal guidance |
Guidance for patients |
The tribunal secretariat emails this to representatives (requesting that it be sent to the patient) and presumably sends it directly to unrepresented patients. Headings: The tribunal; Members of the tribunal; What the tribunal does; Recommendations the tribunal can make; How to apply to the tribunal; When to apply to the tribunal; When a hearing will take place; After you apply; Legal representation; Where the tribunal will be held; If you change your mind about having a tribunal; The tribunal hearing; Support at the hearing from someone other than a legal representative; The tribunal decision; Appeal against a tribunal decision; Further information. |