December 2020 update
This page is automatically generated: it will only be complete at the end of the month. All monthly updates are available here: Archive of monthly updates.
- Magic Book. The Magic Book is a database of contact details. The main idea is to add the hospitals and other places you visit (not just your own place of work). To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book
- Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.
- Cases. By the end of this month, Mental Health Law Online contained 2098 categorised cases
- Chronology. See December 2020 chronology for this month's changes to the website in date order.
- Case (PHEs: "exceptional" merely refers to an exception to the deeming provision). EB v Dorset Healthcare University NHS Foundation Trust  UKUT 362 (AAC) — The Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) (APPD) deems that PHEs are not "practicable" within the meaning of rule 34, unless an authorised judge directs that "in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". EB appealed against a refusal to allow a PHE. The Upper Tribunal held that: (1) the APPD cannot override the terms of the rule, and has to be interpreted, if possible, so as to be valid; (2) circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable [in other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34]; (3) health and safety concerns would be relevant to practicability even if there had been no pandemic; (4) the overriding objective is also relevant, although it does not allow the tribunal to refuse a PHE for any reason unrelated to practicability (in particular, the amended practice direction can make no change to the existence of the r34 duty, the cases to which it applies, or the purpose of the examination; and the patient’s ability to participate in the hearing is not relevant); (5) the availability of the requisite technology for PHEs is relevant to the overriding objective and "[w]here that exists, a PHE need not necessarily have (and may well not have) any material impact on the tribunal’s resources" [the decision does not state that the current practice of holding PHEs via CVP and on the hearing day is necessary]; (6) on the facts, the FTT had unlawfully misinterpreted the APPD by considering reasons unrelated to practicability; were EB still detained the decision would have been set aside.
- Case (Private law restitution claim between public bodies). Surrey County Council v NHS Lincolnshire CCG  EWHC 3550 (QB) — The local authority successfully brought a private law claim in restitution against the CCG to recover accommodation and care costs of JD, a young autistic man, on the basis that the CCG had made an error of public law when it twice declined to assess whether JR was eligible for NHS care.
- Case (Death and religion). JB v University Hospitals Plymouth NHS Trust  EWCA Civ 1772 — The COP had decided that it was in RS's best interests not to receive life-sustaining treatment, including artificial ventilation, nutrition and fluids. On appeal, his niece argued that the decision was unjust because of serious procedural error in that it was taken with an insufficient degree of inquiry into how RS would have wanted to be treated against the backdrop of the tenets of his Roman Catholic faith (and also that the judge breached natural justice and Article 6 by prohibiting cross-examination of RS's wife on the grounds that she was distressed and/or by permitting her to communicate additional evidence by a confidential letter to the judge which was not disclosed to the parties). Permission to appeal was not granted.
- Case (DOL of child at unregulated placement). Lancashire County Council v G (No 3)  EWHC 3280 (Fam) — (1) The judge authorised deprivation of liberty at a sub-optimal placement as there was no other option but discharge into the community where she would almost certainly cause herself possibly fatal harm. (2) The judge noted the following points from the Children's Commissioner's November 2020 report entitled "Who are they? Where are they? 2020 - Children Locked Up": "(i) There continues to be a group of children who are being deprived of their liberty in settings which are not deemed appropriate. These children are in need of a placement that can manage the high level of risk that they present whilst holding them securely but there are no such placements available. (ii) There is no official data on the numbers of children who find themselves in this position but it would appear that at there are a significant number of extremely vulnerable children who professionals have decided are in need of a bed in a secure accommodation unit but who are instead are placed in unregulated placement. (iii) There is evidence that, with high numbers of children waiting to be placed, perverse incentives exist for placements to take the children who pose the least risk rather than the children who have the most need. (iv) There are a group of children who fall between the gaps of all placement settings, children for whom secure accommodation is not available or appropriate but who also do not meet the criteria under the Mental Health Act 1983 for admission to a mental health ward."
- Case (DOL of child at unregulated placement). Lancashire County Council v G (No 2)  EWHC 3124 (Fam) — (1) The judge concluded that "once again with deep reservations, I [remain] satisfied on balance that it is in G's best interests to authorise the deprivation of her liberty in her current placement notwithstanding that the placement is plainly sub-optimal from the perspective of meeting G's identified and highly complex welfare needs and is an unregulated placement". (2) The following observations by the Children's Commissioner in a briefing paper entitled "The children who no-one knows what to do with" (published in November 2020 after the previous judgment in this case) were noted: (a) no work is being done to forecast and co-ordinate provision of secure accommodation and regulated placements in order to match need; (b) there are some 200 children awaiting a place in secure accommodation; (c) during 2018/2019 12,800 children spent some time accommodated in unregulated placements with no regulatory oversight by OFSTED.
- Case (Whether to register LPAs). Re KC: LCR v SC  EWCOP 62 — (1) The three-stage test in Re J  MHLO 167 (COP) for revocation of an LPA was applied to LPA registration in this case: the LPAs were not registered as the acrimonious relationship among the donees would prevent them from acting in KC's best interests. (2) a panel deputy for property and affairs was appointed, but no personal welfare deputy.
- Case (Care, and deputyship). Essex County Council v CVF  EWCOP 65 — The court dealt with three issues: (1) the amount of care and support CVF needed; (2) whether the local authority should replace CVF's mother, JF, as property and affairs deputy (yes); (3) whether JF should be appointed as personal welfare deputy (no).
- Case (Hybrid order or restricted hospital order). R v Nelson  EWCA Crim 1615 — The Court of Appeal considered the differences between a hybrid order (s45A) and a restricted hospital order (s37/41), the guidance from caselaw and the Sentencing Council's Guideline on "Sentencing offenders with mental disorders, developmental disorders or neurological impairment" which came into effect on 1/10/20.
- Case (Competence/capacity and puberty blockers). Bell v Tavistock And Portman NHS Foundation Trust  EWHC 3274 (Admin) — (1) The relevant information that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers, would be as follows: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking puberty blockers go on to cross-sex hormones and therefore that he or she is on a pathway to much greater medical interventions; (iii) the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery; (iv) the fact that cross-sex hormones may well lead to a loss of fertility; (v) the impact of cross-sex hormones on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain. (2) Gillick competence is treatment- and person-specific but the court gave clear guidance that it is highly unlikely that a child aged 13 or under, and very doubtful that a child aged 14 or 15, would ever be Gillick competent to give consent to being treated with puberty blockers. (3) There is a presumption that young people aged 16 or over have capacity to consent but, given the long-term and potentially irreversible consequences and the experimental nature of the treatment, clinicians may well consider that it is not appropriate to move to treatment such as puberty blockers or cross-sex hormones without the involvement of the court, and it would be appropriate to involve the court when there may be any doubt about long-term best interests.
- Case (Unlawful refusal to adjourn telephone hearing). GL v Elysium Healthcare  UKUT 308 (AAC) — It was wrong for the tribunal to have proceeded with the telephone hearing because: (1) the tribunal had, without investigation, assumed that the patient's flatmate (with whom he was self-isolating to avoid coronavirus) could not overhear; (2) the tribunal had improperly dealt with the patient's anxiety: either it had concluded, without investigation, that the anxiety was without foundation (when he had in fact previously been assaulted because other patients discovered his history), or it had believed the same anxiety would arise at a future hearing (when in fact it arose from the specific circumstances that day); the tribunal should have considered whether his anxiety was genuine and, if so, the impact on his ability to participate; (3) the tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (i.e. telephone) rather than the fear of being overheard that day.
- MCA/DOLS coronavirus guidance. DHSC, 'The MCA and DOLS during the coronavirus pandemic: additional guidance' (updated 24/12/20) — This web page contains the following main headings: (1) [Best interests] decisions; (2) Life-saving treatment; (3) Depriving a person of their liberty; (4) Hospitals and care homes; (6) Other settings; (7) Supervisory bodies; (8) Emergency coronavirus health powers. It was updated on 24/12/20 with information under the subheading "Offering a vaccine to someone who lacks the relevant mental capacity". Superseded by: DHSC, 'The MCA and DOLS during the coronavirus pandemic: additional guidance' (updated 12/1/21).
- MCA/DOLS coronavirus guidance. DHSC, 'The MCA and DOLS during the coronavirus pandemic: additional guidance' (updated 12/1/21) — This web page contains the following main headings: (1) [Best interests] decisions; (2) Life-saving treatment; (3) Depriving a person of their liberty; (4) Hospitals and care homes; (6) Other settings; (7) Supervisory bodies; (8) Emergency coronavirus health powers. It was updated on 24/12/20 with information under the subheading "Offering a vaccine to someone who lacks the relevant mental capacity". A minor change about the January 2021 lockdown was made on 12/1/21. Superseded by DHSC, 'The MCA and DOLS during the coronavirus pandemic: additional guidance' (updated 27/4/21).
- Care home visits. Court of Protection, 'COVID-19 restrictions and the Court of Protection' (15/10/20) — "Of particular concern to us, in the Court of Protection, is the impact the present arrangements may have on elderly people living in Care Homes."
- Annual CQC report on MHA. CQC, 'Monitoring the Mental Health Act in 2019/20: The Mental Health Act in the COVID-19 pandemic' (26/11/20) — "This annual report on our monitoring of the Mental Health Act (MHA) puts a specific focus on the impact that the COVID-19 pandemic has had on patients detained under the MHA, and on the services that care for and treat them."
- Shortage of secure accommodation. Ellen Lloyd, 'Case Summary: Lancashire CC v G (2020) EWHC 2828' (Bevan Brittan, 9/12/20) — This article discusses the court's approach to deprivation of liberty of children in unregulated non-secure accommodation. Headings include: (1) Practical impact; (2) What is the difference between secure and non-secure accommodation, regulated and unregulated?; (3) What should a Court consider when determining an application for a secure accommodation order?; (4) What happens if there is no secure accommodation available?
- Parole Board mental health guidance. Parole Board, 'Guidance on Restricted Patients and the Mental Health Act' (v1.0, October 2020) — "This guidance provides information on the different types of transfers under the Mental Health Act 1983 (as amended 2007) and guidance to Parole Board members sitting in secure mental health settings. This replaces the following pieces of guidance: (1) Member Case Assessment Guidance - Annex 6 - Guidelines for MCA members on assessment of cases where the offender is held within a mental health unit (MHU) establishment. (2) References to the previous guidance have also been removed from: Oral Hearing guide - Chapter 1 - Pre-Hearing Issues (section 5)"
Nothing to report this month.
- Dec 2020: Martin Barrett
- Dec 2020: WHITHER THE INHERENT JURISDICTION? How did we get here? Where are we now? Where are we going? A Lecture by Sir James Munby to the Court of Protection Bar Association 10 December 2020
- Dec 2020:
- Dec 2020: Louise Perry, 'Men do not have the ‘right’ to sex' (UnHerd, 8/12/20)
- Dec 2020: Open Justice COP - Is it lawful for Z’s carers to support him in accessing a sex worker?
- Dec 2020:
- Dec 2020: Michele Janas, 'Puberty blockers and consent to treatment: an analysis of the High Court’s ruling' (Community Care, 11/12/20)
- Dec 2020: Piotr Kierzkowski
- Dec 2020: Julian Hendy, 'Emily Jones won't be the last to die if we don't admit that some mental patients are time bombs' (Mail, 5/12/20)
- Dec 2020: Victims’ Commissioner responds to consultation on making parole hearings open to victims - 3/12/20
- Dec 2020: Open Justice COP Project - Challenging Reporting Restrictions in the Court of Protection
=Has been added to MHLO
=Only appears in this list