February 2021 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 2118 categorised cases
- Chronology. See February 2021 chronology for this month's changes to the website in date order.
- Case (Medical treatment and children). Re X (A Child): Barking, Havering and Redbridge University Hospitals NHS Trust v X  EWHC 1630 (Fam) — Neither X, a 15-year-old Jehovah's Witness, nor her mother would consent to urgent treatment by way of blood transfusion, though neither would resist if the court ordered it. Noting that "the court, in suitable circumstances, has the jurisdiction to override the decisions and wishes of a Gillick competent child where it is in the child's best interests for it to do so", the blood transfusion was declared to be in her best interests.
- Case (Transfer of child to DOL in Scotland). London Borough of X v M and Y  EWHC 440 (Fam) — The English Court of Protection granted orders permitting the local authority (a) to place a child Y outside of the jurisdiction, in Scotland, pursuant to paragraph 19, Schedule 2, Children Act 1989; (b) to deprive Y of his liberty; and (c) to utilise the services of a secure transport company to transport Y to the proposed placement in Scotland, using reasonable force if necessary.
- Case (Death). University Hospitals of Leicester NHS Trust v NZ  EWCOP 16 — NZ was receiving life-sustaining treatment by way of an extracorporeal membrane oxygenation machine (ECMO), a last-resort treatment which had increased by a third during the coronavirus pandemic. The clinical lead consultant for ECMO stated that rather than seeking to preserve her life he was now "prolonging her death", and signalled to the judge that further treatment would be professionally unethical. The judge stated that best interests "requires the broad canvas of NZ's life, circumstances and needs to be considered in their totality" (not just medical opinion, religious beliefs, or wishes and feelings) and that "a court will never seek to compel or encourage a medical professional to act in a way that he or she considers unethical", and concluded that the treatment was not in her best interests.
- Case (Timing of CTO discharge). R (Gisagara) v Upper Tribunal  EWHC 300 (Admin) — The Responsible Clinician's evidence to the MHT was that the Community Treatment Order (CTO) criteria were met, and that a CTO was an "essential precondition" to discharge as otherwise the patient would not accept medication; she had granted s17 leave while the CTO was being arranged. When the MHT did not discharge him from s3, the patient argued that: (a) the discharge criteria mirror the admission criteria, s3(2)(c) requires detention, and the tribunal had failed to determine whether he was detained or merely liable to be detained; (b) the CTO criteria are incompatible with the detention criteria. In this application for permission for judicial review of the Upper Tribunal's refusal of permission to appeal, the Administrative Court decided that: (a) in relation to the principle that the discharge criteria mirror the admission criteria, there was no conflict of authority (the Court of Appeal had repeatedly agreed with the House of Lords on this despite the Court of Appeal decision to the contrary never having been overruled) so there was no important point of principle; and (b) there no arguable case. Permission was therefore refused.
- Case (Death following stroke). Sandwell and West Birmingham Hospitals NHS Trust v TW  EWCOP 13 — (1) TW suffered catastrophic brain injury, arising from a stroke, which meant he lacked the capacity to decide whether to continue to receive life-sustaining treatment. (2) The continuation of ventilatory support and likely invasive treatment could no longer be reconciled with his best interests. (3) His three daughters wished to travel from Canada to be with him at the very end of his life and be present, if possible, when he died, a journey which owing to coronavirus restrictions would take over three weeks to arrange. The medical evidence was that the likely treatment "comes perilously close to, if not crossing, an ethical boundary" and the judge decided that any plan artificially to sustain his situation during this period would not be in his best interests.
- Case (Return to country of origin). Re UR: Derby City Council v NHS Derby and Derbyshire CCG  EWCOP 10 — It was in UR's best interests to return to live with and be cared for by her family in Poland, rather than remain in her care home in England. The judge discussed coronavirus issues, cross-border considerations and habitual residence, and set out a checklist for guidance in similar cases.
- Case (Capacity to marry). NB v MI  EWHC 224 (Fam) — The application for a declaration of non-recognition of a Muslim marriage pursuant to the inherent jurisdiction of the High Court and the petition for nullity were unsuccessful: the wife had capacity (though maybe not wisdom) when she got married, so the marriage was valid under English law at its formation; even if the marriage had been voidable the judge would have refused to grant a non-recognition declaration as that would be contrary to statute; and the condition for granting leave out of time for the nullity petition was not satisfied. The judgment contains guidance on capacity to marry.
- Case (DOL of child at unregulated placement). Lancashire County Council v G (No 4)  EWHC 244 (Fam) — The judge authorised the continued deprivation of liberty, concluding as follows: "In the circumstances I have set out above, I once again and wearily must authorise the continued deprivation of G in an unregulated placement that is not fully equipped to meet her complex needs by reason of the fact that I have no other option but to do so. I make clear that I consider that I can say that the placement is in G's best interests only because it is the sole option available to the court to prevent G causing herself serious and possibly fatal harm. Even then, it is clear that the placement is increasingly struggling to achieve even that limited goal. As has been the case each time this matter has come before me in the past number of months, I make the decision I do because I am left with no choice."
- Case (Cancer treatment). Newcastle upon Tyne Hospitals NHS Foundation Trust v RB  EWCOP 11 — RB lacked capacity to make decisions regarding his treatment. During the course of the hearing his litigation friend came to the view that the form of cancer care set out by the Trust was in RB's best interests. The matter was therefore agreed, but the court gave a short judgment.
- Case (DOL of child at unregulated placement). A Borough Council v E  EWHC 183 (Fam) — The court, with reservations, authorised the deprivation of a child's liberty in a placement unregulated by Ofsted: she was being deprived of her liberty in an inappropriate hospital setting and there were no regulated placements available or willing to meet her identified welfare needs.
- Case (Unlawful DOL damages). London Borough of Haringey v Emile  MHLO 70 (CC) — The local authority commenced proceedings seeking payment of £80,913.38 outstanding care fees, and were successful, but ended up also being ordered to pay damages of £130,000 (uplifted to £143,000) for 7 years and 10 months of unlawful deprivation of liberty, and costs following their refusal of an offer to settle. It appealed from the District Judge to a Circuit Judge, unsuccessfully.
- Case (Medical treatment and children). Re X (A Child) (No 2): An NHS Trust v X  EWHC 65 (Fam) — The applicant, a Jehovah's Witness child refusing blood transfusions, unsuccessfully challenged the conventional wisdom that the court can in an appropriate case overrule the consent or refusal of medical or surgical treatment given by a person who has not yet reached the age of 18.
- Coronavirus vaccination and learning disability, Coronavirus vaccination and learning disability. DHSC, 'Letter from the Health and Social Care Secretary on COVID-19 vaccination in people with learning disabilities' (24/2/21) —The Health Secretary has asked the NHS to ensure that everyone on the Learning Disability Register is invited for vaccination as part of cohort 6., The Health Secretary has asked the NHS to ensure that everyone on the Learning Disability Register is invited for vaccination as part of cohort 6.
- Licence conditions. NOMS, 'Licence conditions, licences, and licence and supervision notices' (PSI 12/2015, updated 18/1/21) —"This Instruction updates the arrangements for the application of standard and additional licence conditions for offenders being released on licence following the creation of the National Probation Service and the Community Rehabilitation Companies. It also updates advice on the setting of conditions as well as updating the menu of additional conditions available, and adds the templates for licence and supervision notices to be used for offenders sentenced under the changes to be introduced under the Offender Rehabilitation Act 2014. It also includes a breakdown of who is responsible for approving additional conditions for each type of sentence. This instruction also introduces the new licence conditions for polygraph examinations for sex offenders."
- Mental health law journal. IJMHCL volume 26 (2020), pages 1-57 —This edition of the International Journal of Mental Health and Capacity Law contains: (1) Editorial (Alex Ruck Keene); (2) Substituted Decision Making and Coercion: The Socially Accepted Problem in Psychiatric Practice and a CRPD-Based Response to Them (Giles Newton-Howes, Leah Kininmonth, Sarah Gordon); (3) Adult Incapacity Law: Visions for the Future Drawn from the Unfinished Story of a New Subject with a Long History (Adrian Ward); (4) Offenders with a Mental Impairment Under a 'Fusion Law': Non-Discrimination, Treatment, Public Protection (George Szmukler); (5) Book reviews (Alex Ruck Keene).
- MHA reform. Neil Allen, 'Discussion paper: Modernising the Mental Health Act' (15/1/21) —This document contains information under the following headings: (a) Introduction; (b) A Matter of Principle; (c) Civil Admission Criteria; (d) Treatment for Mental Disorder; (e) Community Treatment Orders; (f) Improving support for people who are detained; (g) Tribunals; (h) Caring for patients in the Criminal Justice System; (i) Children and Young People; (j) Useful resources.
- Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 111, February 2021) —"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: vaccination; interim authority to treat pending a final order, and a further LPS impact assessment; (2) In the Property and Affairs Report: guidance following ACC for professional deputies; (3) In the Practice and Procedure Report: a checklist for international relocation, covert treatment and the courts, and recording of court proceedings; (4) In the Wider Context Report: decision-making and 16/17 year olds, FAQs following the Devon judgment on personal assessment, spotting coercion and control and the BIHR’s resources for service providers; (5) In the Scotland Report: further developments relating to the Scott review, including an update from the Chair, and Scottish consideration of relocation."
- Mental health Legal Aid form. Legal Aid Agency, 'Form CW 1&2 MH' (v15, 1/2/21) —This is an amended version of the form to reflect the removal of the mortgage cap as part of the means test for civil Legal Aid. Under Total Net Equity the text reads "Deduct the full amount of any debt secured by a mortgage or charge on the property." instead of "The maximum disregard allowable is capped at £100,000 for all outstanding mortgages/loans covering all property held. You must carry out the calculation of total net equity on 'other property' before 'main home' (i.e. use the mortgage disregard on other property first)." Superseded by Legal Aid Agency, 'Form CW 1&2 MH' (v16, 24/11/21).
- OPG vaccination guidance. James Morrey, 'Lasting Power of Attorney and the COVID Vaccine' (OPG blog, 8/2/21) —This guidance is under two main headings: (1) Guidance for those administering vaccines, including to seek legal advice if you disagree with an attorney or deputy's refusal (no mention is made of disagreement with consent), or make a best interests decision if there is no COP order or LPA; (2) Guidance for attorneys and deputies, including to think about what the person's wishes would be, and to ensure that you are contacted for your decision.
- OPG procedure. OPG, 'NHS and social care staff: check if a COVID-19 patient has an attorney or deputy' (5/2/21) —This guidance has been updated to add information about searching on behalf of patients in relation to coronavirus vaccinations.
- Panel guidance. Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 27/1/21) —The main changes since the 30/9/20 version are under the "Initial accreditation", "The interview" and "Information to be provided following the interview" headings, for instance: (a) all interviews during the coronavirus pandemic are held via Microsoft Teams; (b) the case study will be read out, and notes may be taken; (c) reference materials can be used for the case study but not for the practice and professional conduct part; and (d) the interview will now be recorded for "quality assurance purposes only" rather than also for assessor training and appeal purposes as before.
- Remote MHA assessments. NHS England, 'Further legal advice on remote MHA assessments' (3/2/21) —This guidance advises that (a) there be no further remote assessments for s2, s3 or s4 detention, or s7 guardianship, and that anyone subject to those sections as a result of a remote assessment be reassessed as soon as possible, and (b) providers and councils may wish to take a precautionary approach and stop all remote assessments and renewals where the clinician or AMHP is required to "examine" or "see" the patient (including s136, and renewals of s3, s7, s37 and CTOs) and should seek their own legal advice if they have further concerns.
- Remote MHA assessments. NHS England, 'Legal advice on remote MHA assessments' (26/1/21) —This email sets out advice on Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin) and "immediate action required" based on that advice: (1) "The ruling applies to Part II of the MHA only, and not Part III of the MHA. It applies to both new assessments for detention and section renewals (including CTO renewals). Individuals who are currently detained following a remote assessment will need to be reassessed in person, if ongoing detention is deemed necessary." (2) "Stop using remote methods for any new or ongoing assessments for detention or section renewals under Part II of the Act. All mental health providers should identify and reassess individuals who are currently detained under Part II of the MHA following a remote assessment as soon as possible, if ongoing detention is deemed necessary. We also recommend notifying people who were detained via remote assessment, but have since been discharged from their section, that this Court ruling has now passed." Updated guidance: NHS England, 'Further legal advice on remote MHA assessments' (3/2/21).
- Event. Event:PELT: Introduction to COP, including s21A appeals (online, 27/4/21) — "The Court of Protection has a very wide ambit potential touching the lives of many vulnerable people. DoLS and procedures are authorised or challenged and where arguments about capacity or adult protection and best interests are resolved. It is essential for those working with vulnerable people/safeguarding." Speaker: Peter Edwards. Cost: £125 + VAT (£150). See PELT website for further details and booking information.
- Event. Event:PELT: Getting ready for Liberty Protection Safeguards (online, 8/4/21) — The course will carefully examine the steps that need to be taken NOW to prepare for this, from a very practical perspective. Speakers: Peter Edwards and Lorraine Currie. Cost: £125 + VAT (£150). See PELT website for further details and booking information.
- Event. Event:PELT: Accredited - Admission to the MHT Panel (online, 11-12 May 2021) — This course is designed for those who want to be accredited tribunal representatives. The course will also be of benefit for all those who want a more detailed understanding of tribunals. Day 2 will very useful for lawyers who are going through the reaccreditation. Speaker: Peter Edwards and Dr Rob Brown. Cost: £175 + VAT per day (£350 + VAT both days). See PELT website for further details and booking information.
- Event. Event:Thalamos: Managing the change to digital MHA forms (online, 3/3/21) — "March’s webinar will again focus on the 1st December legislation change." Cost: free. CPD: 1 hour. See Thalamos website for further details and booking information.
- Event. Event:MHLA: Panel Course (online, 1-3 March 2020) — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and to book online.
Nothing to report this month.
- Feb 2021: Community Care - Lack of shared understanding of Mental Health Act-MCA interface leading to unlawful detentions, says report
- Feb 2021: Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 Draft SI
- Feb 2021: Jonathan Auburn and Lucy McCann - Community Treatment Orders: does seeing patients remotely suffice?
- Feb 2021: Employment Tribunal describes a Cygnet medical director’s email to the GMC about a whistleblower as “venomous and dishonest”. Dr Ambreen Malik wins her whistleblowing case.
- Feb 2021: Civil news: changes to mortgage debt in eligibility calculations
- Feb 2021: JAIME LINDSEY & ROSIE HARDING - Capabilities, capacity, and consent: sexual intimacy in the Court of Protection
- Feb 2021: 39 Essex Chambers - RAPID RESPONSE GUIDANCE NOTE: VACCINATION AND MENTAL CAPACITY (THIRD UPDATE) - February 2021
- Feb 2021: forum.
=Has been added to MHLO
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