January 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 2116 categorised cases
- Chronology. See January 2021 chronology for this month's changes to the website in date order.
- Case (Capacity to discontinue proceedings). Wickham v Riley  EWHC 3711 (Fam) — (1) When the claimant served notice of discontinuance of this Inheritance (Provision for Family and Dependants) Act 1975 claim he had capacity to do so, and was not subject to duress or undue influence, so the notice was effective. (2) The court gave permission to issue a second set of proceedings notwithstanding the expiry of the limitation period (one factor being that the decision to discontinue was not a decision taken by a commercial entity after careful consideration but was the almost-certainly unwise decision of a vulnerable just 18 year old under the influence of and on the advice of his mother who was his primary carer).
- Case (Reasonable excuse to leave home). NG v Hertfordshire County Council  EWCOP 2 — The issue in this appeal was whether NG’s mother and step-father had a reasonable excuse to leave their homes to provide care to NG, pursuant to regulation 6(2)(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
- Case (Southern Irish criminal appeal). DPP v Kenna (2020) IECA 265 — "The appellant seeks to overturn the conviction on the basis that the evidence given by the prosecution’s expert - to the effect that the appellant was not legally insane at the time of the incident - was devoid of cogency, was contradicted by the other evidence, and was otherwise unworthy of any credit. In those circumstances, it is argued that no reasonable jury could have convicted the appellant thereby making the verdict perverse and the appellant’s conviction unsafe."
- Case (Southern Irish habeas corpus case). SM v Governor of Cloverhill Prison (2020) IEHC 639 — "This case concerns the circumstances in which otherwise legal detention can be rendered unlawful by a failure to provide appropriate medical treatment, thus entitling an applicant to an order of habeas corpus under Article 40.4 of the Constitution. ... I am not persuaded that, to the extent the applicant’s rights of bodily integrity are breached by the current failure to admit him to the CMH, such a breach is sufficiently egregious or exceptional or fundamental to render unlawful his detention."
- Case (Coronavirus vaccination). Re E (Vaccine): LB Hammersmith and Fulham v W  EWCOP 7 — Mrs E's adult son objected to her receiving a coronavirus vaccine. The Court of Protection decided that it would be in her best interests, having regard to factors including the following: (a) when she had capacity she had received the swine flu and influenza vaccinations; (b) she currently wanted "whatever is best for me"; (c) she was at risk of death from coronavirus because she was in her 80s, suffered from diabetes, lived in a care home which recently had coronavirus, and found social distancing difficult to understand; the vaccine would reduce the risk of death.
- Case ("Personally seen" and "personally examined" require physical presence). Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin) — In this case the Trust sought declarations that the s12 requirement that a medical practitioner must have "personally examined" a patient before completing a medical recommendation and the s11 requirement that an AMHP must have "personally seen" the patient before making an application (both requirements being in relation to s2, 3, 4 and 7) could be met by remote means, as suggested in NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20). (1) The High Court agreed to give an advisory opinion on statutory construction in this exceptional case, as there was a real (not hypothetical or academic) question, the Trust had a real interest in it, and the court had heard proper argument. (2) The High Court decided that both phrases require the physical attendance of the person in question on the patient, because of the following six considerations: (a) in this country, powers to deprive people of their liberty are generally exercised by judges and where, exceptionally, statute authorises administrative detention the powers are to be construed particularly strictly; (b) splitting up the compound phrases into individual words fails to capture their true import as understood when enacted; (c) Parliament understood the medical examination as necessarily involving physical presence (confirmed by the word "visiting" used elsewhere, and the fact that psychiatric assessment may involve a multi-sensory assessment); (d) it is not appropriate to apply an "updating construction", as the words were intended to be restrictive and circumscribed, and when enacted were understood as connoting physical presence; (e) medical examinations should ideally be carried out face-to-face (the Code of Practice and guidance both state this is preferable), and it is for Parliament to weigh up the competing interests (namely the need to ensure that administrative deprivations of liberty are properly founded on objective evidence and the need to maintain the system of MHA detention given the exigencies of the pandemic); (f) interpretation by the court would be applicable immediately and may remain in force for some time after the end of the current pandemic, but modification by Parliament could involve ongoing judgement on whether to bring them into force and whether to make them time limited.
- NHSE advice following remote assessment decision. Andrew Parsons, 'Court says video assessments unlawful' (RadcliffesLeBrasseur, 28/1/21) — (1) This article discusses the advice in NHS England, 'Legal advice on remote MHA assessments' (26/1/21) which was given in light of the High Court decision in Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin).
- NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v4, 25/1/21) — This version has removed section 14 (Application of digital technology to MHA assessments) and Annex F (Guidance on the testing and isolation of people of all ages in in mental health, learning disability, autism, dementia and specialist inpatient facilities during the coronavirus pandemic) following the decision in Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin) that to act on the guidance would be unlawful. Some references to section 14 remain but can be ignored.
- EPA/LPA registration fee refund. Gov.uk, 'Claim a power of attorney refund' (deadline 1/2/21) — "You can get part of your application fee back if you applied to register a power of attorney from 1 April 2013 to 31 March 2017. This applies to lasting powers of attorney (LPA) and enduring powers of attorney (EPA). You must claim your refund by 1 February 2021."
- Scottish coronavirus guidance. Mental Welfare Commission for Scotland, 'Covid-19 Mental Welfare Commission Advice Note' (v22, 29/1/21) — The main changes are stated to be: (a) Updated: 2.2 Human rights of care home residents; (b) New: 4.1 Does the recent High Court decision in England that a MHA medical examination needs to be face-to-face mean that this is also the case in Scotland? - replaces item specific to extending CCTOs; (c) Updated: 4.2 Second report for CTO application; (d) Updated: 4.6 MHA and AWI assessments and examinations by video technology or by telephone; (e) New: 4.17 MHO access to interview a resident in a care home in a level 4 area; (f) Updated: 6.9 Visiting to and from residential settings other than care homes; (g) New: 9.12 Face coverings, communication and exemptions; (h) Updated: 11.3 Learning disability – new resources about vaccination.
- Ordinary residence and s117. Luke Clements, 'Ordinary Residence s117 - all change in England (and Wales?)' (June 2020) — This article discusses the potential implications of DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20).
- Ordinary residence and s117. DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20) — (1) The DHSC position, which is subject to ongoing proceedings in R (Worcestershire CC) v SSHSC, is that if a patient is detained in Area 1, then provided with accommodation under s117 in Area 2, then detained in Area 2: (a) the patient remains ordinarily resident in Area 1, applying R (Cornwall Council v SSH  UKSC 46; (b) in the alternative, "immediately before being detained" in s117 means "immediately before being first detained"; (c) in the further alternative, Area 1's duties may continue throughout the second detention. (2) Ordinary residence disputes must still be referred in the usual timeframe but, absent exceptional circumstances, cases which raise similar issues as the Worcestershire case will be stayed. (3) The current position contradicts the Care and Support statutory guidance, which will be updated when the court case has been decided.
- Law Society MHT practice note. Law Society, 'Practice note: Representation before mental health tribunals' (12/12/19) — This practice note contains information under the following headings: (1) Introduction; (2) The right to legal advice and representation before the tribunal; (3) Communication with the client; (4) Taking instructions; (5) Your duties towards your client; (6) Good tribunal practice; (7) Representing children and young people before the tribunal; (8) More information. The changes mainly arise from the the SRA Handbook being replaced by the SRA Standards and Regulations on 25/11/19. A tracked changes version is available on MHLO.
- White Paper on MHA reform. SSHSC, LC and SSJ, 'Reforming the Mental Health Act' (CP 355, 2021, consultation from 13/1/21 to 21/4/21) — "It is two years since Professor Sir Simon Wessely delivered his landmark Independent Review of the Mental Health Act. ... We accept, and we will take forward, the vast majority of its recommendations for change. ... The changes are based on 4 principles that have been developed with people with lived experience of the MHA. They are: (1) choice and autonomy - ensuring service users’ views and choices are respected; (2) least restriction - ensuring the MHA’s powers are used in the least restrictive way; (3) therapeutic benefit - ensuring patients are supported to get better, so they can be discharged from the MHA; (4) the person as an individual - ensuring patients are viewed and treated as individuals."
- Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 110, January 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated DHSC MCA/DoLS COVID-19 guidance, an important LPS update, and the judicial eye of Sauron descends on new areas to consider (ir)relevant information; (2) In the Property and Affairs Report: a complex case about when the settlement of an inheritance; (3) In the Practice and Procedure Report: for how long does a Court of Protection judgment remain binding, and helpful guidance for experts reporting upon capacity; (4) In the Wider Context Report: challenging reports about the disproportionate effect of COVID-19 upon those with learning disability, young people with learning disability and autism under detention, and capacity and public hearings before the Mental Health Tribunal; (5) In the Scotland Report: discharge from hospital without proper consideration of ECHR rights."
- Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 109, November 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated DHSC MCA/DoLS COVID-19 guidance, an important LPS update, and the judicial eye of Sauron descends on new areas to consider (ir)relevant information; (2) In the Property and Affairs Report: a complex case about when the settlement of an inheritance; (3) In the Practice and Procedure Report: for how long does a Court of Protection judgment remain binding, and helpful guidance for experts reporting upon capacity; (4) In the Wider Context Report: challenging reports about the disproportionate effect of COVID-19 upon those with learning disability, young people with learning disability and autism under detention, and capacity and public hearings before the Mental Health Tribunal; (5) In the Scotland Report: discharge from hospital without proper consideration of ECHR rights."
- DOLS statistics. NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2019-20' (12/11/20) — "These official statistics provide findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2019 to 31 March 2020."
- New legal aid forms. LAA, 'Changes to Privacy Notices on Legal Aid Forms' (11/1/21) — This web page sets out recent changes made to some Legal Aid forms, and states that the LAA would prefer the new versions to be used as soon as possible but will accept previous versions until 31/3/21.
- Updated peer review guidance document. LAA, 'Improving Your Quality in Mental Health' (v5, December 2020, published 4/1/20) — The main substantial changes are: (1) the guidance is no longer "for the benefit of those wishing to achieve the highest levels of quality of legal advice and work" but for those "wishing to achieve good levels of quality of legal advice and work"; (2) the addition of three new "major concerns": (a) Where there is no written advice at the conclusion of a case in terms of rights as to informal status/s117 rights/detained patients' further rights of application or referral and relevant entitlement/detention dates; (b) Where there is no evidence of an informed discussion with the client about whether to seek a r34 Medical Examination in non s2 cases; (c) Where there is concern as to the client’s capacity, has a rule 11 appointment has been considered, and has the issue as to the client's capacity been noted, and kept under review as the case progressed? A version with highlighted changes is available on MHLO. Superseded by LAA, 'Improving Your Quality in Mental Health' (v6, February 2021, published 2/3/21).
- Supreme Court PTA refused in B v A Local Authority. Permission to appeal was refused by the Supreme Court (Lord Hodge, Lady Black, Lord Kitchin) on 13/10/20 for the following reason: "Permission to appeal be refused because the application does not raise a point of law of general public importance which ought to be considered at this time bearing in mind that the issue has already been the subject of judicial decision and reviewed on appeal." See B v A Local Authority  EWCA Civ 913.
- New CW 1&2 MH form. On 23/12/20 version 14 of this form was uploaded to the Gov.uk website with the following notice: "Published new versions of the CW1&2 and CW4 with updated privacy notices. These changes are part of our preparations for exiting the European Union once the transition period ends on 31/12/20." 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." As in the past, if no notice was given to you of this change at the time then you should expect the LAA to commence the 28-day period from when notification under the contract was belatedly made. See Legal Aid forms
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