April 2014 update

Case law

  • Advance decision case. Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1136 (COP), [2014] MHLO 20A detained patient with a severe personality disorder was self-harming by cutting and had to be mechanically restrained to prevent this. (1) He had made an advance decision, apparently with capacity to do so, refusing blood transfusions because of his religious beliefs: the court ruled that this was valid and applicable, but only on an interim basis since the document did not state that it was signed by the maker and the witness in each other's presence. (2) The Responsible Clinician accepted that a blood transfusion would be medical treatment for mental disorder under s63 MHA 1983, and therefore the advance decision could be overridden; however, because the patient's wishes were religious, she did not want to impose treatment: the Trust therefore sought the protection of a court declaration that her decision was lawful. (3) The court was unwilling to make the declaration, without hearing both sides of the argument, because of the importance of the issues (including the right to life under Article 2, freedom of religion under Article 9, and respect for private life, which includes bodily integrity, under Article 8). (4) The Official Solicitor was invited to attend a hearing the following day, the Trust was asked to facilitate the patient being directly represented and to encourage the father to attend, and the judge concluded that if there is an argument for the use of s63 it was very important for the court to hear it.§
  • Capacity case. Wandsworth CCG v IA [2014] EWHC 990 (COP), [2014] MHLO 19This case illustrates the difficulties in assessing capacity where: (a) the cognitive difficulties of the subject are multi-factorial; (b) there is evidence that the subject displayed strong and challenging pre-morbid personality traits; and (c) there is no doubt that he plainly has capacity in relation to decision-making in some domains of his life. Having heard oral evidence for the jointly-instructed expert neuro-psychiatrist, the court decided that IA had capacity in relation to (a) ongoing medical treatment; (b) future residence and care; and (c) management of his property and affairs.§
  • Gift application case. Julia Lomas v AK (gift application) [2014] EWHC B11 (COP), [2014] MHLO 21AK's financial deputy sought the court's approval of a £150,000 gift to AK's parents to allow them to build a suitably-adapted house for when AK stayed in Pakistan each year; she sought a gift as it would be unrealistic in Pakistan to obtain receipts for all expenditure and expensive to translate those received. The Official Solicitor supported the proposed gift only if it proved impossible for AK instead to purchase an interest in the land or part of it. The judge decided that it would be in AK's best interests for a 10-year interest-free £150,000 loan to be made to his parents, and authorised the deputy to make annual gifts of £15,000, from any surplus, to AK's parents to assist them in repaying this loan. This arrangement was preferable to a gift because AK would retain the capital as part of his estate, and it was more likely to ensure that his parents actually carried out the building work; coincidentally, it should avoid inheritance tax.§
  • Community care case. R (LH) v Shropshire Council [2014] EWCA Civ 404, [2014] MHLO 18 — "This is an appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre. LH is 63 years old, has a learning disability, has been assessed as having substantial care needs and has been using the services of Hartleys Day Centre in Shrewsbury. Shropshire Council has decided to close that day centre as a result of its re-thinking of day centre care in the county; that re-thinking is itself a result partly of budgetary constraints and partly of encouragement from central Government to give disabled people their own personalised budget for spending in relation to their disability. The Council contends that it consulted generally about the new system which it brought in and made clear that some day centres would close; LH contends by JL (her litigation friend and sister) that LH and others should have been consulted in relation to the closure of Hartleys itself before it occurred. There is also an allegation of failure to comply with the statutory Public Sector Equality Duty as contained in section 149 of the Equality Act 2010. ... my own conclusion is that the omission to consult the users and relatives on the closure of Hartleys Day Centre before it was decided to close it was indeed unlawful. ... If I had held that the Council had complied with their duty to consult at common law, I would not have held that there was a breach of the statutory duty under the Equality Act. ... I would therefore allow this appeal and (subject to any written observations from the parties on the terms of the declaration before hand down) formally declare that, in breach of its common law duty, the Council failed to consult the users of Hartleys Day Centre and their carers before deciding to close the centre."§
  • LPA case. Re Davies [2012] MHLO 184 (LPA)The donor appointed four attorneys, A, B, C and D, to act jointly and severally, and imposed the following restriction: "The appointment of C and D shall not take effect unless I am mentally and/or physically incapable of managing my affairs and the appointment of C shall not take effect unless she has been in my employment within the period of one month preceding my loss of capacity to manage my affairs." This restriction was severed on the ground that the appointments of co-attorneys cannot be activated at different times. [OPG summary - LPA case.]§
  • LPA case. Re Buckley [2013] MHLO 144 (LPA)The donor made an LPA for property and financial affairs and included the following provision: "Assets should be used firstly to ensure the well being and comfort of [my wife] and secondly to meet any urgent need of the families of the Attorneys and thereafter managed until distributed in accordance with the terms of my will." On the application of the Public Guardian the provision was severed. Although the attorneys would have power to maintain the donor's wife (see Re Bloom above), this should not be the priority of the LPA because section 1(5) of the MCA provides that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." The attorneys had no authority to meet the needs of their families, as the donor was not under any legal obligation to maintain them. Any maintenance of the families would be a gift which would potentially fall outside section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • LPA case. Re Rider [2013] MHLO 143 (LPA)The donor made an LPA for property and financial affairs which included the following provision: "No political donations to be made other than to the conservative party." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. While section 12(2)(b) permits the making of gifts to charities (subject to certain conditions), donations to the conservative party, or any other political party, would not fall within that provision. [OPG summary - LPA case.]§
  • LPA case. Re Barac [2013] MHLO 142 (LPA)The donor made an LPA for property and financial affairs which included the following provision: "After having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation [e.g. Inheritance Tax] and be able to create Trusts where beneficial." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]§
  • LPA case. Re Bishop [2013] MHLO 141 (LPA)The donor appointed attorneys to act jointly and severally and included the following provision: "I direct that my attorneys shall endeavour to act jointly on decisions wherever possible. They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made." On the application of the Public Guardian the provision was severed as being incompatible with a joint and several appointment. Although in the guidance section, it was expressed in mandatory terms and was in substance a restriction. [OPG summary - LPA case.]§


  • Mind, 'The effects of changes to Legal Aid' (April 2014). (1) Mind has posted a survey on its website to find out how legal aid cuts introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are affecting people with mental health problems. It will also be used to respond to the call for evidence for the Justice Committee. The survey can be completed by those with experience of mental health problems, whether themselves or as a friend, advocate, family member or carer. (2) Additionally, Mind would like to hear from lawyers and those providing advice or support or services to people with mental health conditions in relation to how those advised and represented have been affected (ideally with case studies). Responses to Andy Kempster (a.kempster@mind.org.uk) by 23/4/14. See Mind (Charity)

Law Society

  • Law Society, 'Practice note: Financial abuse' (13/6/13). This practice note contains information under the following headings: (1) Introduction; (2) SRA principles; (3) Financial abuse: (a) what is financial abuse? (b) forms of financial abuse; (4) Identification of adults vulnerable to abuse and precaution to be taken: (a) groups at particular risk; (b) what to be alert for - known indicators for abusive activity; (c) identification and the assessment of capacity; (5) Taking action to prevent abuse: (a) powers of attorney; (b) gifts; (c) wills; (d) estate administration; (e) mis-selling; (f) language and cultural barriers; (6) Addressing suspected abuse - what steps to take: (a) confidentiality; (b) Office of the Public Guardian; (c) litigation; (d) deputyship; (e) appointeeship; (f) the role of the local authority; (g) abuse and neglect by legal professionals; (h) criminal offences; (7) Further information: (a) Law Society; (b) Solicitors Regulation Authority; (c) guidance; (d) useful contacts; (e) other resources; (f) acknowledgements. See Law Society

Care Quality Commission

  • Care Quality Commission, 'Briefing for providers on the Deprivation of Liberty Safeguards' (4/4/14). See CQC

Healthcare Inspectorate Wales

  • Healthcare Inspectorate Wales, 'Monitoring the use of the Mental Health Act in 2011-2013' (22/4/14). Also: HIW, 'Healthcare Inspectorate Wales publishes its third report for monitoring the use of the Mental Health Act' (website news item, 22/4/14); HIW, 'Monitoring the use of the Mental Health Act: HIW produces third report' (press release, 22/4/14). See Healthcare Inspectorate Wales


  • Tristan Donovan, 'Court of Protection adds weight to social worker evidence in mental capacity assessments' (Community Care, 4/4/14). This article relates to the 7/11/13 version of form COP3. See Court of Protection forms


  • Conference. The York Chronic Disorders of Consciousness Research Centre and Court of Protection Practitioners' Association are jointly holding a conference on Friday 9/5/14 at the University of York entitled 'Withholding and Withdrawing Treatment from Patients in a Vegetative or Minimally Conscious State'. Price: Free to COPPA members and staff and University of York students; £30 to others. CPD: SRA and BSB accreditation sought. See flyer for further details and booking information. See Events
  • Taking Stock conference. The 2013 Annual 'Taking Stock' Conference (The Mental Health and Mental Capacity Acts in Practice) will take place at the Royal Northern College of Music in Manchester on Friday 17/10/13 from 9.30am to 4.00pm. The speakers are: Neil Allen (Thoughts on the New Code); Yogi Amin (Benevolence - How does this fit in to the Test for Liberty?); Phil Fennell (The Myth of Consent in Psychiatry); Camilla Parker (The Mental Health Care of Children and Young People - A minor concern?); Alison Yung (Early Intervention in Psychosis - Evidence and Evidence Gaps); plus a key-note speaker to be confirmed. CPD: SRA accreditation sought. Price: £125; £100 for bookings confirmed before 27/6/14; concessions for voluntary sector organisations. See flyer for further information about the programme and speakers, and for booking information. See Events
  • MHLA panel courses. The Mental Health Lawyers Association have organised a further two-day panel course in London on Monday 12/5/14 and Tuesday 13/5/14 (the April course in London having sold out, and the Law Society having announced that 13/6/14 is the latest date for an application to the panel to be guaranteed to be decided by 1/8/14). The course will also be held in Newcastle on Tuesday 22/4/14 and Wednesday 23/4/14. Price: £300 (members); £390 (non-members); £250 (for third and subsequent members in a group). CPD: 12 SRA-accredited hours. See MHLA website for further details. See Events

Website and CPD

  • CPD. Questionnaires for February and March 2014 have been uploaded. Obtain 12 CPD points online for £60: see CPD scheme for details.