| 39 Essex Chambers, 'Mental Capacity Report' (issue 137A, February 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: medical treatment dilemmas of different hues, how risky can the court be, and capacity in context; (2) In the Property and Affairs Report: useful guides for those creating LPAs and an Australian take on balancing risk and (false) hope in the context of scamming; (3) In the Practice and Procedure Report: medical evidence, mental disorder and deprivation of liberty, and the approach to propensity evidence; (4) In the Wider Context Report: the new framework for care home visiting in England, an important consultation on capacity in civil litigation, new core ethics guidance from the BMA, and the Circuit Court rolls up its sleeves in Ireland; (5) In the Scotland Report: discrimination narrowly avoided, and a case posing questions about compensation for unlawful detention." |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 137B, March 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: sexual and contraceptive complexities and an important light shed on DoLS from Northern Ireland; (2) In the Property and Affairs Report: the obligations on the LPA certificate provider, telling P their damages award, and dispensing with notification in statutory will cases; (3) In the Practice and Procedure Report: when it is necessary to go to court in serious medical treatment cases, and a Scottish cross-border problem; (4) In the (new) Mental Health Matters Report: medical evidence, mental disorder and deprivation of liberty, and the approach to propensity evidence; (5) In the Wider Context Report: when not to try CPR, developments in the context of assisted dying / assisted suicide and with Martha’s Rule, and news from Ireland; (6) In the Scotland Report: a Scottish take on the Cheshire West anniversary and a tribute to Karen Kirk." |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 138, April 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a very difficult dilemma arising out of covert medication, and key deprivation of liberty developments; (2) In the Property and Affairs Report: fixed costs for deputies, deputies and conflicts of interest, and the Child Trust Fund saga continues; (3) In the Practice and Procedure Report: three amended Practice Directions, when (and why) should the judge visit P and fact-finding in the Court of Protection; (4) In the Mental Health Matters Report: the Government (rather surprisingly) responds to the Joint Committee on the draft Mental Health Bill, and important reports from the PHSO and CQC; (5) In the Wider Context Report: a snapshot into litigation capacity and Jersey sheds light on the concrete realities of assisted dying / suicide; (6) In the Scotland Report: the Assisted Dying for Terminally Ill Adults (Scotland) Bill." |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 140, May 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a rare successful capacity appeal, evicting someone from P's house and holistically approaching hoarding; (2) In the Practice and Procedure Report: when you can remove deputies, and publishing judgments in serious medical treatment and closed material procedure cases; (3) In the Mental Health Matters Report: when not to rely on capacity in the mental health context; (4) In the Wider Context Report: capacity, autonomy and the limits of the obligation to secure life, and the European Court of Human Right raises the stakes for psychiatric admission for those with learning disabilities; (5) In the Scotland Report: licence conditions and deprivation of liberty, and Executor qua attorney - a few steps back?" |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 141, June 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: when no option is a good one, snapshots from the frontline, and are we listening closely enough to the person in the context of deprivation of liberty; (2) In the Property and Affairs Report: the Powers of Attorney Act 2023 on election hold, contesting costs in probate cases and guidance on viewing LPAs online; (3) In the Practice and Procedure Report: post-death costs, what does it mean to be an expert in the person, and procedure in brain stem death cases; (4) In the Mental Health Matters Report: the MHA 1983 under strain in police cells and the hospital setting; (5) In the Wider Context Report: the inherent jurisdiction – a case, guidance, and a challenge from Ireland; the older child and medical treatment decisions – mental capacity or competence, and Capacity and contempt proceedings – what is the test? (6) In the Scotland Report: guardianship under examination before the Sheriff Appeal Court and Scottish Government’s Mental Health and Capacity Reform Programme. |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 142, July 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: sexual capacity complexities, wishes and feelings in the balance, and finding the P in a PDOC case; (2) In the Property and Affairs Report: deputy bond provider problems and a job opportunity in the Official Solicitor's office; (3) In the Practice and Procedure Report: how far can the Court of Protection go to ensure its orders are complied with, and risk taking, best interests and health and welfare deputies; (4) In the Mental Health Matters Report: Tier 4 beds (again) and the Mental Health Tribunal and the Parole Board; (5) In the Wider Context Report: local authority consent to confinement, the Irish courts continue to grapple with the consequences of the framework, and Strasbourg pronounces on assisted dying; (6) In the Scotland Report: exasperation at the pace of the Scottish Government's Mental Health and Capacity Reform Programme." |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 143, September 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal on belief and capacity, and both sexual and medical complexities before the courts; (2) In the Property and Affairs Report: a guest post updating deputies and attorneys on important responsibilities; (3) In the Practice and Procedure Report: which decisions are for doctors, and which for the courts; jury-rigging Article 5(4) compliance in community DoL cases, and transparency under the spotlight; (4) In the Mental Health Matters Report: a Mental Health Bill on the way, the hard edges of the MHA 1983 and the CQC and Valdo Calocane; (5) In the Wider Context Report: the limits of Article 3 in the context of the inherent jurisdiction, the CQC and covert medication and Lord Falconer’s Assisted Dying Bill; (6) In the Scotland Report: the Scottish Government consults on legislative measures to respond to the Scott Review and a report from the World Congress on Adult Care and Support." |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 144, October 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: what to do where there is no reliable evidence of P’s wishes and feelings; (2) In the Property and Affairs Report: gifts, attorneys and deputies; (3) In the Practice and Procedure Report: the perfect as the enemy of the good, and what to do when the situation changes; (4) In the Mental Health Matters Report: the human rights consequences of outsourcing in the mental health context; (5) In the Wider Context Report: the Law Commission consults on disabled children’s social care law and the Grand Chamber of the European Court of Human Rights balances Articles 2 and 8 in the medical treatment context; (6) In the Scotland Report: AWI legislative reform on the cards?" |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 145, November 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: anticipatory declarations; systemic failure in considering PDOC patients, and the CQC and DoLS; (2) In the Property and Affairs Report: Senior Judge Hilder reversing reverse indemnities and considering the scope of deputies’ authority in the context of Personal Health Budgets; (3) In the Practice and Procedure Report: costs and delay and capacity in cross-border cases; (4) In the Mental Health Matters Report: the Mental Health Bill is introduced; (5) In the Wider Context Report: Strasbourg suggests that the Supreme Court was wrong in the Maguire case; (6) In the Scotland Report: Scottish Government’s law reform proceeds at breakneck speed, and a symposium for Adrian." |
| 39 Essex Chambers, 'Mental Capacity Report' (issue 146, December 2024) |
Newsletter |
Mental capacity law newsletter |
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal grapples again with sexual capacity, and important reminders of best interests as good governance and operating in an imperfect world; (2) In the Property and Affairs Report: Simon Edwards retires, and deputyship updates; (3) In the Practice and Procedure Report: flight risk, and a coercive control dilemma regarding a lasting power of attorney; (4) In the Mental Health Matters Report: a Mental Health Bill update, detainability and the courts, and Right Care, Right Person under scrutiny; (5) In the Wider Context Report: Assisted dying / assisted suicide developments, capacity and surrogacy and two important Strasbourg cases; (6) In the Scotland Report: Kirsty Mcgrath retires, and a blank space for developments regarding legislative reform in Scotland." |
| Alex Ruck Keene et al, 'Guidance note: Relevant information for different categories of decision' (39 Essex Chambers, May 2024) |
Guidance |
Capacity assessment |
"This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be able to understand, retain, use and weigh to able to make the decision. This guidance note pulls together the guidance given in relation to some of the most common decisions that are encountered in practice in the context of health and welfare matters." |
| Alex Ruck Keene et al, 'Guidance note: Relevant information for different categories of decision' (March 2024) |
Guidance |
Capacity assessment |
This version was superseded by Alex Ruck Keene et al, 'Guidance note: Relevant information for different categories of decision' (39 Essex Chambers, May 2024). |
| Alex Ruck Keene et al, 'Guidance note: Relevant information for different categories of decision' (November 2021) |
Guidance |
Capacity assessment |
More recent version: Alex Ruck Keene et al, 'Guidance note: Relevant information for different categories of decision' (March 2024). |
| Alex Ruck Keene, 'Annotated Mental Health Act 1983 with changes proposed in 2024 Mental Health Bill' (8/11/24) |
Document |
MHA showing proposed amendments |
This document uses Microsoft Word tracked changes to show the amendments proposed by the Mental Health Bill 2024 to the Mental Health Act 1983, except for the transitional provisions in paras 19-23 of Schedule 1 in relation to autism and learning disability. |
| Amy Fenton, 'Blackburn psychiatrist cleared of misconduct after lying about medication' (LancsLive, 20/7/21) |
News article |
Fitness to practise |
This news article provides some background information on the Medical Practitioners Tribunal decision in Ambreen Malik [2021] MHLO 8 (MPT). |
| Anselm Eldergill, 'A time to live, a time to die?' (27/11/24) |
Document |
Voluntary euthanasia |
In relation to the Terminally Ill Adults (End of Life) Bill 2024, this briefing note argues that "much more careful thought is required before we open this Pandora's Box" and that a more sensible approach, prior to legalising state- and physician-assisted death, would involve a Royal Commission or Law Commission report, or similar, with extensive consultation and reflection, accompanied by a government commitment to place a Bill drafted by the Commission before Parliament on a free vote. Problems mentioned include: (1) there is a risk that changing perceptions of doctors and nurses will undermine trust in them; (2) the 'six-month rule' suggests a degree of prognostic reliability that does not accord with reality; involves a social class bias; means the legislation would not cater for most of the test cases that have come before the courts; and would prolong the suffering of some while allowing others to die for reasons unrelated to life expectancy and even though they are not physically suffering and their death is likely to be painless; (3) a "slippery slope" of extensions may begin; some campaigners see the Bill as a Trojan Horse; the breaking of the taboo would make it less likely that people would oppose dangerous or ill-thought-out extensions; soon it would be sought to extend it to persons with constant and unbearable physical or mental suffering as the result of an incurable condition that cannot be appeased; over time that is likely to be flexibly interpreted by doctors sympathetic to euthanasia or engaged in the new medical speciality of physician-assisted death; it would next be argued that the law is discriminatory (including under the CRPD) because it excludes those who legally lack capacity to decide to die, and because children are excluded; (4) in relation to those with mental health disorders, many people "will wonder whether these out-patients were offered adequate, intensive assisted living ... before being assisted to die"; (5) the Bill is silent on Legal Aid and therefore on whether the new law would in reality be available only to the well-to-do; (6) the High Court judge is not obliged to hear from the person in question (only from a doctor, with the risk that contradictory evidence is not obtained) and there is no right of appeal; (7) no provision is made for the person, or family members, to be supported by a social worker or solicitor, which would be important to allow the person to mitigate potential significant consequences for others and reconsider their decision in the light of those; (8) the drafting is ambiguous in relation to the role of private clinics, but it seems likely that they will provide an independent doctor service including substitute decisions when the original doctor is of the opinion that the conditions for assisted suicide are not met, and the profit element may distort decision-making; (9) there does not appear to be a means by which a doctor who provided a statement that the conditions are met can rescind it; (10) the Bill only applies to England & Wales and so would divide the UK; (11) there appears to be no clear, close scrutiny of assisted suicides after the event, which is required to comply with Article 2. |
| Anselm Eldergill, Matthew Evans and Eleanor Sibley, European Court of Human Rights and Mental Health (Bloomsbury 2024) |
Book |
ECHR book |
Everything about the ECHR and mental health. |
| Children's Commissioner, 'Children with complex needs who are deprived of liberty' (18/11/24) |
Report |
Children and DOL |
Report with various recommendations. |
| Civil Justice Council, 'Procedure for Determining Mental Capacity in Civil Proceedings Working Group: Consultation Paper' (consultation from 15/12/23 to 17/3/24) |
Consultation |
Capacity in civil proceedings |
"The Working Group will consider how the Civil Courts approach mental capacity. It will have regard to the procedure and common practice in use for determining whether a party lacks capacity to conduct proceedings (i.e. is a protected party within the meaning of Part 21 CPR)." |
| COP User Group, 'Meeting (General): Minutes and action points' (18/10/23) |
Minutes |
Minutes |
Minutes and action points from meeting. |
| COP User Group, 'Meeting (P and A): Minutes and action points' (10/7/24) |
Minutes |
Minutes |
Minutes and action points from meeting |
| COP User Group, 'Meeting (P and A): Minutes and action points' (12/7/23) |
Minutes |
Minutes |
Minutes and action points from meeting. |
| COP User Group, 'Meeting (P and A): Minutes and action points' (17/1/24) |
Minutes |
Minutes |
Minutes and action points following meeting. |
| CQC, 'Guidance for clinicians and SOADs: the imposition of medical treatment in the absence of consent' (October 2008) |
CQC guidance • MHAC guidance |
SOAD guidance |
"The legal judgment R (on the application of PS) v (1) Responsible Medical Officer Dr. G, (2) Second Opinion Appointed Doctor Dr. W addressed responsibilities and requirements under the Mental Health Act Code of Practice and the Care Programme Approach when imposing medical treatment upon a detained patient refusing consent. This guidance presents the Commission‟s view on how the requirements as outlined in the judgement should be met by approved clinicians in charge of the treatments in question. It is updated to reflect the changes in the Mental Health Act 1983 which take effect on 3 November 2008." This MHAC guidance was re-published, then withdrawn, by the CQC. |
| CQC, 'Guidance for SOADs: Consent to treatment and the SOAD role under the revised Mental Health Act' (October 2008) |
CQC guidance • MHAC guidance |
SOAD guidance |
"This note provides guidance to Second Opinion Appointed Doctors on the key changes to consent to
treatment provisions of the Mental Health Act 1983 as the revisions to that Act are implemented on
the 3 November 2008." This MHAC guidance was re-published, then withdrawn, by the CQC. |
| CQC, 'Guidance note for Commissioners on consent to treatment and the Mental Health Act 1983' (September 2009) |
CQC guidance • MHAC guidance |
Guidance for MHA Commissioners |
"This guidance is intended for Mental Health Act Commissioners to use when reviewing consent documentation. It gives a brief definition of medication for mental disorder and information on the completion of statutory forms that Commissioners will see in relation to Consent to Treatment during the course of their visits. Guidance is also given on the action Commissioners should take in relation to issues raised by the review of these forms." This MHAC guidance was amended by the CQC in September 2009 (and subsequently withdrawn). |
| CQC, 'Monitoring the Mental Health Act in 2022/23' (23/3/24) |
Report |
Annual CQC report on MHA |
"This report sets out CQC’s activity and findings during 2022/23 from our engagement with people who are subject to the Mental Health Act 1983 (MHA) as well as a review of services registered to assess, treat and care for people detained using the MHA." |
| CQC, 'Priory Healthcare Limited ordered to pay £693,852 after failing to provide safe care and treatment to Mr Matthew Caseby' (12/3/24) |
Press release |
CQC prosecution |
Priory Healthcare Limited was fined £650,000 and ordered to pay £43,672 costs and £180 victim surcharge. |
| DHSC, 'Mental Health Bill 2025: fact sheet' (policy paper, 7/11/24) |
Policy paper |
MH Bill fact sheet |
Brief information under these headings: (1) Introduction: the Mental Health Act; (2) The Independent Review; (3) Facts and figures. |
| DHSC, 'Statutory guidance: Discharge from mental health inpatient settings' (26/1/24) |
Statutory guidance |
Mental health discharge guidance |
"This document sets out how health and care systems should work together to support discharge from all mental health and learning disability and autism inpatient settings for children, young people and adults. It sets out best practice on: how NHS bodies and local authorities should work closely together to support the discharge process and ensure the right support in the community, and provides clarity in relation to responsibilities; patient and carer involvement in discharge planning. Guidance on how budgets and responsibilities should be shared to pay for section 117 aftercare (Mental Health Act 1983) is provided as an annex." |
| Health Services Safety Investigations Body, 'Mental health inpatient settings: Creating conditions for the delivery of safe and therapeutic care to adults' (24/10/24) |
Report |
Patient safety report |
"This investigation explored the risks to patient safety associated with the workforce and working conditions in acute mental health inpatient settings for adults." |
| HMCTS, 'Minimum security standards' (checklist, October 2023) |
Tribunal document |
Tribunal room standards |
This checklist was sent to hospitals alongside Mark Sutherland Williams, 'Safety and security of tribunal members and others attending hospital mental health hearings' (letter to hospital Chief Executives, 4/4/24). |
| HMCTS, 'Safety and security in hospitals and trusts' (letter to MHLA, 4/4/24) |
Tribunal letter |
Remote hearings |
This letter states that from 8/4/24, for "health and safety" reasons, all hearings at venues that have not confirmed compliance with the minimum safety and security requirements will be held by video link. Of over 820 venues contacted (in February 2024), 150 stated that they cannot comply, and others have not yet replied. Representations can be made if there is "a particular medical or other reason that the patient cannot have a VH hearing" and directions might include "reasonable adjustments or a transfer to a suitable hospital". |
| HMPPS, 'Information for patients - Decision summaries and victim statements in restricted patient cases' (April 2024) |
Guidance |
Victims and MOJ discharge |
(1) From Spring 2024, patients and victims have been able to request a summary of Ministry of Justice decisions in relation to discharge. The summary provided to patients and victims will differ, because of medical confidentiality, and both will overlap with the reasons already given to the Responsible Clinician. (2) Victims will also be able to make Victim Personal Statements in relation to discharge decisions. The purpose is "catharsis" and it will have no influence on the discharge decision. This is in addition to the pre-existing ability to provide information and make requests for conditions. |
| HMPPS, 'Information for victims - Statements and decision summaries in restricted patient cases' (April 2024) |
Guidance |
Victims and MOJ discharge |
(1) From March 2024, victims and family members registered with the Victim Contact Scheme (VCS) have been able to submit a Victim Personal Statement in relation to Ministry of Justice discharge decisions. The purpose is catharsis and to provide further information and context on requests for conditions, and is in addition to the pre-existing ability to make representations in relation to conditions. Some brief guidance is given on what might be included in a statement. The statement will not be sent to the patient, Responsible Clinician, or tribunal, although it is possible that might be disclosed during other legal proceedings. (2) Applications will also be able to be made for decision summaries. |
| HMPPS, 'MAPPA Guidance' (August 2024) |
Guidance |
MAPPA guidance |
Current version (at the time of writing) of this regularly updated guidance. |
| Jenny Johnston, 'My dad was stolen from me' (Daily Mail, 27/1/24) |
News article |
LPA abuse |
This article tells the appellant's story in the case of Re VS (deceased) [2024] EWCOP 6. |
| Joint Committee on the Draft Mental Health Bill, 'Draft Mental Health Bill 2022: Report of Session 2022-23' (HC 696, HL Paper 128, 11/1/23) |
Report |
Report on MH Bill |
Key recommendations: "(1) Creation of a new statutory Mental Health Commissioner post. (2) The Principles underpinning the 2018 Review and respect for racial equality should be included in the Bill. (3) Health organisations should appoint a responsible person to collect and monitor data on detentions under the MHA, broken down by ethnicity, with annual figures published by Government, and to implement policies to reduce inequalities. (4) Community Treatment Orders are used disproportionately for black and ethnic minority patients and should be abolished for the majority of patients, except those involved in criminal proceedings or under sentence where their continued use should be reviewed. (4) Strengthened duties for Integrated Care Boards and Local Authorities to ensure adequate supply of community services for people with learning disabilities and autistic people to avoid long-term detention. (5) Patients detained or previously detained under the MHA should have a statutory right to request an advance choice document is drawn up" |
| Law Commission, 'Disabled Children's Social Care' (consultation from 8/10/24 to 20/1/25) |
Consultation |
Social care consultation |
"The Law Commission is reviewing the legal framework governing social care for disabled children in England to ensure that the law is fair, modern and accessible, allowing children with disabilities to access the support they need." |
| Law Commission, 'Reviewing the law of homicide' (web page, 6/12/24) |
Web page |
Law Commission homicide project |
"The Law Commission will review the law relating to homicide offences, including full and partial defences to those offences, and the existing sentencing framework for murder." |
| Law Society, 'Identifying a deprivation of liberty: a practical guide' (18/3/24) |
Guidance |
DOL guidance |
The guidance applies the legal framework, including considerations relating to those under 18, to different settings: hospitals; psychiatric care; care homes; supported living/shared lives/extra care; at home; palliative care and hospices. |
| Law Society, 'Practice note: Representation before mental health tribunals' (24/2/24) |
Practice Note |
Law Society MHT practice note |
Unhelpfully, this practice note gives no indication of what changes have been made since the August 2022 version. However, we have created a tracked changes version for MHLO. |
| Legal Aid Agency, 'Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts' (v10, December 2023) |
Legal Aid resource |
Costs guidance |
The (minor) changes made in each version are listed on the second page of this document. |
| Legal Aid Agency, 'Form CW 1&2 MH' (v20, September 2024) |
Legal Aid resource |
Mental health Legal Aid form |
The LAA website update dated 1/9/24 states: "CW1&2 MH and CWC MH updated to reference the 2024 Standard Civil Contract." Note that para 3.12 of the 2018 Standard Civil Contract Specification states: "We may amend the Application Forms from time to time upon giving at least 28 days' notice to you." At the very least (if the website update counts as contractual notice) they will have to accept the old version for 28 days after 1/9/24. Superseded by Legal Aid Agency, 'Form CW 1&2 MH' (v21, February 2025). |
| Legal Aid Agency, 'Keycard 60' (April 2024) |
Legal Aid resource |
Financial eligibility |
This document is helpful when working out financial eligibility for civil Legal Aid. |
| Mark Sutherland Williams, 'Safety and security of tribunal members and others attending hospital mental health hearings' (letter to hospital Chief Executives, 4/4/24) |
Tribunal letter |
Remote hearings |
This letter states that from 8/4/24 face-to-face hearings will not take place at venues which are "not compliant with minimum safety standards or have not replied to say they are". |
| Mental Health Tribunal, 'Minimum security requirements and amenities for tribunal hearing rooms in hospitals' (29/1/24) |
Tribunal guidance |
Hospital tribunal requirements |
There are minimal changes to the 2022 version throughout the document. The main changes seem to be: (1) New paragraph 17 under the heading "Standards of safety and security": Contact details for a named responsible officer and an emergency number should always be provided to the panel on arrival in case security is required."; (2) changed email addresses; (3) further details on reporting concerns or incidents. |
| MHLO, 'Guidance on cases transitioning to Court of Protection' (FOI request, 7/10/24) |
FOI request |
DOL and children |
President of the Family Division, 'Revised national listing protocol for applications that seek deprivation of liberty orders relating to children under the inherent jurisdiction' (September 2023) mentions guidance on cases being transferred to the Court of Protection when a child turns 18, so we asked for a copy. The response was: "The MOJ does not hold any information in the scope of your request. This is because there is no legal or business requirement for MoJ to do so. The document referred to at paragraph 7 is an internal document and not intended for the public domain. Please accept our apologies the error, the website containing the document will be amended and the document removed." |
| Ministry of Justice and HMPPS, 'Early release on compassionate grounds' (16/8/23) |
Guidance |
Compassionate release |
"Guidance on applying for the early release of a sentenced prisoner, child or young person on compassionate grounds." |
| Ministry of Justice, 'Restricted Patients Statistics, 2023, England and Wales' (25/4/24) |
Statistics |
Restricted patients statistics |
"This annual publication covers the number, offence, admissions, disposals, discharges and ethnicity of restricted patients in England and Wales." |
| Ministry of Justice, 'Tough new measures to bolster landmark victims' law' (press release, 9/4/24) |
Press release |
Victims and the MHT |
The government has proposed amendments to the Victims and Prisoners Bill 2022 which would mean that victims could make a Victim Impact Statement during the Mental Health Tribunal process. There would also be a duty placed on police and criminal justice agencies to deliver services in relation to the exiting duty to inform victims of their rights, and this duty would be overseen by the Victims' Commissioner. |
| NHS England, 'The effect of the Worcestershire decision on section 117 aftercare duty' (undated, late 2023) |
Health guidance |
Aftercare and ICBs |
This guidance is part of NHS England's "Who Pays?" page (which mainly relates to the guidance document) and begins: "The position under the Integrated Care Board (ICB) Responsibilities Regulations, under which the originating ICB retains responsibility for care during subsequent detentions, even if the patient moves to a different part of the country, is not affected by the Supreme Court’s judgment in the case of R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care concerning which local authority was responsible for the provision of aftercare under section 117 of the Mental Health Act 1983." |
| Nuffield Family Justice Observatory, 'National deprivation of liberty court: Latest data trends' (June 2023) |
Statistics |
DOL Court data |
"This briefing highlights high-level data trends during the full 12 months of the court pilot." |
| Penelope Dash, 'Review into the operational effectiveness of the Care Quality Commission' (DHSC, 15/10/24) |
Report |
Report about CQC |
Extract: "The review has found significant failings in the internal workings of CQC, which have led to a substantial loss of credibility within the health and social care sectors, a deterioration in the ability of CQC to identify poor performance and support a drive to improve quality - and a direct impact on the capacity and capability of both the social care and the healthcare sectors to deliver much-needed improvements in care." |
| Practice Guidance: Recording of hearings in the HESC and transcription of recordings (Presidential guidance note no 3 of 2003, 14/12/23) |
Tribunal guidance |
Recording and transcripts |
Guidance on recording hearings and transcripts. |
| President of the Family Division, 'Revised national listing protocol for applications that seek deprivation of liberty orders relating to children under the inherent jurisdiction' (September 2023) |
Court guidance |
National DOL list |
"Following the conclusion of the initial pilot scheme in July 2023 and the extensive consultation with judges and other stakeholders which followed, the organisation and listing of DoL orders relating to children under the inherent jurisdiction is being revised. The National DoL Court will no longer operate under that title. In future, all initial applications will be dealt with as part of the National DoL List ('NDL') which will continue to be overseen as part of the work of the Family Division." |
| Richard Jones, Mental Health Act Manual (26th edn, Sweet and Maxwell 2023) |
Book |
MHA book |
Published in September 2023. |
| Richard Jones, Mental Health Act Manual (27th edn, Sweet and Maxwell 2024) |
Book |
MHA book |
The MHA book. |
| Rob George, Wards of Court and the Inherent Jurisdiction (Hart Publishing 2024) |
Book |
Inherent jurisdiction book |
Includes chapters on: Secure Accommodation and Deprivation of Liberty of Children; Adults without Mental Capacity; Vulnerable Adults with Mental Capacity. Available to purchase in hardback, or to download free. |
| Roger Pezzani and Alex Schymyck, 'Upper Tribunal provides important guidance on proceeding without aftercare evidence' (Garden Court Chambers, 17/11/23) |
Web page |
UT case summary |
Extract from this summary of SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC): "(1) The Tribunal should adjourn to obtain aftercare evidence where it is capable of affecting the the outcome of the hearing. AM was a relatively unusual case where aftercare evidence was not capable of affecting the outcome. (2) It is procedurally unfair to refuse an adjournment request from a patient where the detaining authority has failed to provide relevant evidence such as that addressing aftercare. (3) The Tribunal must not 'kick the can down the road' and leave matters to be resolved by a future Tribunal. Procedural fairness applies at each stage of the process and an unfair Tribunal hearing cannot be cured by the possibility of a future hearing." |
| Royal College of Physicians, 'Prolonged disorders of consciousness following sudden onset brain injury: National clinical guidelines' (2020) |
Health guidance |
PDOC guidance |
"These guidelines update the previous RCP’s Prolonged disorders of consciousness, National clinical guidelines (2013) particularly in relation to recent developments in assessment and management: and with respect to recent changes in the law governing procedures for the withdrawal of clinically assisted nutrition and hydration. They lay out for clinicians, service providers and commissioners what constitutes best practice within the existing legal framework, to enable them to fulfil their various responsibilities to the patient and their family." |
| Sarah Johnston, 'Recording in hearings' (Letter, 15/12/23) |
Tribunal guidance |
Recording hearings |
This letter describes how Practice Guidance: Recording of hearings in the HESC and transcription of recordings (Presidential guidance note no 3 of 2003, 14/12/23) will work in the mental health jurisdiction. Remote hearings will be recorded from 15/1/24, but face-to-face hearings will not be recorded and neither will pre-hearing examinations. |
| Special Hospitals Service Authority, 'Report of the committee of inquiry into the death in Broadmoor hospital of Orville Blackwood and a review of the deaths of two other Afro-Caribbean patients' (1993) |
Report |
Inquiry report |
Inquiry report into patient deaths in Broadmoor. |
| Tim Spencer-Lane, 'Legal analysis: the Supreme Court's verdict on ordinary residence and mental health aftercare' (Community Care, 18/8/23) |
Article |
Worcestershire decision summarised |
This article summarises the Worcestershire decision and notes: (1) the Supreme Court's comments on ordinary residence (to the effect that any best interests decision to place a person in an area means that the person has voluntarily adopted that residence and is hence ordinarily resident there) were obiter but could lead to confusion and further legal challenges; (2) the draft MH Bill included provisions that (if enacted) would insert the deeming rules from the Children Act 1989 and Care Act 2014 into section 117, and so reverse part of the court's decision. |
| TPC, 'Reply to Consultation and Further Consultation on possible amendments to the TPR regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s.68 MHA' (consultation from 19/12/23 to 13/2/24) |
Consultation • Consultation reply |
Paper reference hearings for hospital-based patients |
The Tribunal Procedure Committee seem aware that paper hearings are inferior to oral hearings and that their proposal would undermine the important statutory protection provided by automatic tribunal references, so now propose to co-opt legal representatives into the so-called "safeguarding measures". Maybe it is hoped that representatives who object on principle will not bother to respond yet again, and other representatives might be happy to receive the same L1+L2 fixed fee (£450) for advising on a potential paper hearing as for fully preparing for an oral hearing. The proposal is "to allow the Tribunal to make a decision on a reference hearing, in respect of a patient detained in hospital aged 18 or over, with capacity and is legally represented, and who has made a written request that they do not wish to attend or be represented at a hearing of their reference, and the Tribunal is satisfied that the patient has the capacity to make that decision". |
| TPC, 'Reply to two Consultations on possible amendments to the HESC Rules regarding proposed changes to the way that the FTT decides cases referred pursuant to s68' (1/8/24) |
Consultation reply |
Paper reference hearings for hospital-based patients |
Tribunal rule 35 will be amended to allow mandatory references made under s68, s71(2) and s75(1) in relation to a patient who is not a community (CTO) patient to be decided without a hearing if: (a) he is legally represented; (b) the representative "has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference"; (c) "the patient’s representative has discussed with the patient the contents of any reports and any other documents provided by the responsible clinician and any social supervisor in respect of the patient and is satisfied that the patient has the capacity to decide whether or not to make that decision"; and (d) "the Tribunal is satisfied that the patient has the capacity to make that decision". The TPC must realise that they are weakening the statutory safeguards as, in addition to commenting that if patients seek discharge "they are unlikely to request a paper hearing, nor would they be advised to", the new procedure will not apply if either the patient's case has not previously been considered by the tribunal or the patient's case was last considered by the tribunal without a hearing. The TPC "does not view the proposed change as being made for financial reasons" but notes that paper hearings will "ensure the panel's time is used efficiently when cases come out at short notice or are adjourned on the day". From a Legal Aid perspective, "remuneration will be significantly reduced if there is no hearing, removing the attraction of a paper review" (same £450 for just agreeing to a paper hearing as for full tribunal preparation, additional £294 for tribunal advocacy). |
| Tribunal Procedure Committee, 'Consultation on possible amendments to the power to set-aside a decision' (consultation from 15/5/24 to 7/8/24) |
Consultation |
Change to set aside rule |
Consultation on potential change to rule 45 HESC Rules (and other similar rules) to allow tribunals to set aside procedurally irregular decisions on their own initiative. |
| Tribunal Procedure Committee, 'HESC Rules: consolidated version' (1/5/24) |
Tribunal guidance |
Consolidated version of HESC rules |
This PDF document includes changes made to the original rules since 2008. Last updated 1/5/24. |
| Welsh Government, 'Code of Practice: Mental Health Act 1983' (2016) |
Code of Practice |
Welsh MHA Code of Practice |
"Includes: guidance for professionals about aspects of medical treatment for mental disorder; information for patients and their families and carers." In force 3/10/16. |