March 2014 update

Case law

Cheshire West

  • Deprivation of liberty. Cheshire West and Chester Council v P [2014] UKSC 19(1) The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person's compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty.§

Community care

  • Community care case. R (Cornwall Council) v SSH [2014] EWCA Civ 12 — (1) In deciding the ordinary residence of an adult lacking capacity the Secretary of State had erred in applying 'test 1' from the Vale case (that a person who is so severely handicapped as to be totally dependent upon a parent or guardian in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base). (2) Instead, the words 'ordinary residence' should, unless the context indicates otherwise, be given their ordinary and natural meaning. (3) There is much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A (namely where he is integrated into a social and family environment). (3) On the facts, the person was ordinarily resident in South Gloucestershire (where he lived) rather than Cornwall (where his parents lived).

Mental Health Tribunal

  • Transcript added and summary updated. Re Ian Brady [2013] MHLO 89 (FTT)After a public hearing the tribunal issued a notice on 28/6/13 that: 'Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.' The full reasons, dated 11/12/13, were published on 24/1/14: (1) When deciding to hold a public hearing the tribunal had concluded that it was not satisfied that Ian Brady suffered from schizophrenia but, in reaching the opposite conclusion when considering the detention criteria, it did not consider itself bound by its previous finding of fact. (2) The tribunal set out at length the reasons for concluding that the detention criteria were met in this case.§

Solicitor's Regulation Authority

  • 16/03/14 (1): SRA decision. Lucia Benyu of Peters Legal Limited (SRA decision: prosecution) [2014] MHLO 15 (SRA) — On 28/1/14 the SRA published their 30/5/13 decision to prosecute, before the Solicitors Disciplinary Tribunal, Lucia Benyu (who until 18/4/2013 was the director of Peters Legal Limited, one of the largest mental health law firms). The Tribunal certified that there is a case to answer in respect of allegations which are or include that she: (1) failed to maintain properly written up and accurate accounting records; (2) authorised or permitted improper withdrawals of client money from client account; (3) failed promptly or at all to remedy the breaches; (4) failed to manage the financial affairs of the firm either effectively or properly; (5) submitted misleading correspondence and/or documents to third parties; (6) created correspondence and/or documents; (7) continued to act on behalf of clients when there existed a conflict between her own interests and those of her clients; and (8) failed to provide to a client adequate information regarding costs.§

Lasting Power of Attorney and Deputyship

  • LPA case. Neutral citation added (case was already on MHLO). Re Buckley: The Public Guardian v C [2013] EWHC 2965 (COP), [2013] MHLO 13 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. ... Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA."§
  • LPA case. Re DP (Revocation of LPA): OPG v John Marney [2014] EWHC B4 (COP), [2014] MHLO 8 — "Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP's best interests. Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP's property and affairs."§
  • Deputyship case. JS v KB and MP (Property And Affairs Deputy for DB) [2014] EWHC 483 (COP), [2014] MHLO 12 — "This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for: (i) the financial and emotional vulnerability of the person who lacks capacity; and (ii) the requirements for formal, and legal, authorisation for the family's actions, specifically in relation to property and financial affairs. ... For the reasons set out above, the order I make is that: (i) JS shall pay four-fifths of the deputy's litigation costs to date; (ii) JS shall pay two-thirds of the litigation costs of KB. Given the possibility that JS will be unable to fund the costs within a reasonable time, either from the sale of the Spanish property or otherwise, I propose to allow MP to explore the mechanics of an equity release scheme to permit JS to discharge her liability for costs by way of a loan against the equity in Beech Avenue. I give MP leave to apply for such a scheme. ... I give further leave to MP to investigate, and if the need arises to bring proceedings against PK solicitors for any financial loss suffered by DB."§
  • Deputyship case. Re ES: Kent County Council v PLC and AJS [2014] EWHC B6 (COP), [2014] MHLO 10 — "Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs. ... I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed."§


  • Medical case. Newcastle upon Tyne Hospitals Foundation Trust v LM [2014] EWHC 454 (COP), [2014] MHLO 14 — "On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. ...At the end of the hearing I granted the application and made the following declaration: 'It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.' ... I find that LM made a decision that the doctors rightly considered must be respected. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. ... The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court's jurisdiction to restrict the reporting after a person's death of information gathered during proceedings that took place during her lifetime. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question."§
  • Medical case. Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), [2014] MHLO 9 — "My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her."§

Other capacity cases

  • Deprivation of liberty case. The Local Authority v Mrs D [2013] EWHC B34 (COP), [2013] MHLO 140 — "These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR. ... However, despite this non-admission of liability, the Local Authority had offered in compromise: (a) an apology to Mrs D for the delay in bringing these proceedings; (b) to pay a sum of £15,000 to Mrs D; (c) to pay the reasonable costs of the action incurred by Mrs D's litigation friend; (d) to pay a sum of £12,500 to her husband Mr D; (e) to pay Mr D's reasonable costs of the action. ... For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of rights, and as such it was approved."§
  • Capacity case. LB Redbridge v G [2014] EWHC 485 (COP), [2014] MHLO 13 — "Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. ... I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction. ... The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare. It is my intention to so direct. ... Rule 90 (3) allows me to authorise any person or class of persons to attend the hearing and, given the interest of the Press, I will allow accredited members of the media to attend. However there will be an order, as before, prohibiting the publication of anything that will lead to the identification of G, C and F and any other private individual concerned with the proceedings."§
  • Best interests case. Westminster City Council v Sykes [2014] EWHC B9 (COP), [2014] MHLO 11 — "It is my view that it is in Ms S's best interests to attempt a one-month trial of home-based care. Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed. ... Having thought about the issue carefully, I have decided on balance - and it is quite finely balanced - that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence."§
  • Capacity case. RC v CC [2014] EWHC 131 (COP), [2014] MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment."§
  • Capacity case. Re X, Y and Z (Minors) [2014] EWCOP 87 — "On 20th and 29th November 2013, sitting as a judge in the Family Division and in the Court of Protection, I made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother who is a person lacking capacity within the meaning of the 2005 Act. This judgment sets out the reasons for making those orders."§
  • Committal case. Re PW (Court of Protection Order) [2014] EWHC B8 (COP), [2014] MHLO 4 — "The applicant in this matter, Sunderland City Council, brings these proceedings for committal against Lindsey M for breach of an order which this court made on 14th October 2013. ... Lindsey M admits that on 28th October she breached the order which the court had made and therefore brought herself within breach of the suspended order for imprisonment which the court had made on 14th October. Upon that date the court made a suspended order, which was suspended upon the basis that she complied with the previous court order and that she did not seek to have contact, or go into the property of PW. ... In all the circumstances, it seems to me that before I determine what is an appropriate sentence in all the circumstances it would be preferable to see whether Miss M, in fact, does carry out what she says to the court she will do, namely not to have a relationship with PW. I make it clear for Miss M's sake that if there are no further breaches then I will deal with the admitted breach by taking no action upon it."§

Practice Directions and Guidance

Mental Health Tribunal

  • Legislation. Tribunal Procedure (Amendment) Rules 2014 — Extract from Explanatory Note: "Rules 17 to 20 amend rules 32, 34, 37 and 39 of the HESC Rules. The amendments relate to the examination by the Tribunal of patients and their medical records and to the circumstances in which the Tribunal may proceed with the hearing of the appeal in the absence of the patient." In force 6/4/14.
  • Consultation response (medical members). Tribunal Procedure Committee, 'Response to consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (March 2014). See Consultations#Mental Health Tribunal

Court of Protection


Care Quality Commission

  • CQC, 'Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/13' (January 2014). The following are the chapter headings and key points from each chapter. (1) Patterns of use of the Deprivation of Liberty Safeguards. (a) Use of the Deprivation of Liberty Safeguards overall did not increase greatly during 2012/13, but there were still unexplained regional differences in their use. (b) There has been a significant increase in applications for the use of the Deprivation of Liberty Safeguards to protect the rights of older people deprived of their liberty in their best interests. In contrast, there has been a slight fall in the applications relating to people aged 18 to 64. (2) Monitoring the use of the DOLS through inspection of care homes and hospitals. (a) To carry out our fundamental responsibility to protect and promote the rights of people who use health and social care, it is essential that we monitor how well care homes and hospitals understand when and how to use the Deprivation of Liberty Safeguards. (b) As in previous years, a majority of care homes and hospitals fail to comply with their statutory requirement to notify us of applications to use the Deprivation of Liberty Safeguards, and their outcomes. This makes it harder for our inspectors to identify people subject to application or authorisation for inclusion in pathway tracking. (c) We expect hospitals and care homes to notify all outcomes of Deprivation of Liberty Safeguards applications to CQC. (d) We remind all care homes and hospitals of the requirement to work with people who may lack capacity to consent within the framework of the MCA, and in particular to make every effort to minimise restraint and restrictions on liberty. (e) We are working to improve the knowledge and confidence of our staff with regard to the Deprivation of Liberty Safeguards and the wider MCA. (3) Monitoring of supervisory bodies. (a) We are pleased to have strengthened our collaborative relationship with supervisory bodies, and hope to build on this to improve our shared understanding of the operation of the Deprivation of Liberty Safeguards. (b) There appears a wide range of practice with regard to extending urgent authorisations. We encourage local authorities to ensure that this practice is kept to a minimum. (c) Very few of the reviews that happen are undertaken at the request of people subject to an authorisation or their representatives. We encourage local authorities and IMCAs to support these people to request reviews where appropriate. (4) Better understanding of the experience of people who have been the subject of authorisation applications. (a) We are very grateful to the IMCAs who helped us this year by completing our survey on the experiences of people personally affected by the Deprivation of Liberty Safeguards. We plan to build on this next year, by interviewing people identified by local authorities or IMCAs as agreeing to talk to us. (b) The IMCA survey provided some important and useful insights into the experience of people who may be subject to the Deprivation of Liberty Safeguards and their representatives. It paints a mixed picture of people’s experience, with some evidence of good practice but also evidence of people still not always being listened to or involved in important decisions about their lives or the lives of a relative or close friend. (c) There appears to be variation in practice among IMCAs in how actively they encourage people subject to authorisation and their representatives to ask for reviews or to challenge the authorisation to the Court of Protection. We encourage IMCAs to share knowledge of how and when to do this, and IMCA organisations to support their staff to gain the knowledge and confidence to help people affected by the Deprivation of Liberty Safeguards to challenge the status quo. See CQC
  • CQC, 'Monitoring the Mental Health Act in 2012/13 - Summary' (January 2014). See CQC
  • CQC, 'Monitoring the Mental Health Act in 2012/13' (January 2014). The following are the report's key findings for each chapter, and its concluding recommendations: (1) The use of the Mental Health Act in 2012/13. (a) The number of detentions continued to rise, with the highest number of uses of the Act ever recorded. The national statistics on use of the Act showed a rise in detentions, whether these are at the point of admission to hospital or subsequent to informal admission. (b) In 2012/13, 27% of recorded outcomes of section 2 detentions showed that the patient continued to be detained. This is a small but significant rising trend from the 24% in the previous year. (c) Since the introduction of community treatment orders (CTOs) in 2008, the power had been used 18,942 times by 31 March 2013. (d) Data available for 2012/13, as in previous years, showed a continuing trend in high rates of detention among certain black and minority ethnic groups. (e) Data on self-harm, restraint, assaults and seclusion, which were previously collected for inpatients in the Count Me In census, are now being collected through the Mental Health Minimum Data Set. CQC is looking at how we can use this data to monitor the experience of inpatients, including any associations with ethnicity. (2) A service responsive to people’s needs. (a) Some progress has been made in this area, although there is still a long way to go, with evidence that care plans and risk assessments had not considered the principle of least restriction in 10% of wards visited. (b) 27% of care plans we reviewed in six months of 2012/13 showed no evidence of patients being involved in their creation. And at least 22% of care plans showed no evidence of patients’ views being taken into account. This is no improvement on our finding in 2011/12. (c) Inadequate discharge planning can lead to prolonged periods of detention and we are very concerned there was a lack of evidence of discharge planning in 29% of the care plans we viewed. The Code of Practice is clear in its expectations for providers to consider aftercare with all detained patients and we expect this to be evident for all patients subject to the MHA. (d) We are pleased to report almost all wards had access to Independent Mental Health Advocacy (IMHA) services. This is a considerable improvement in basic access to IMHAs with 92% of wards reporting direct access for patients to IMHA. (e) However, there was no improvement in evidence of patients’ rights being explained to them. In the last two years we have not seen adequate evidence of discussions with patients about their rights in at least one in 10 wards. (3) Ways in which people are subject to restrictions. (a) We continued to see widespread use of blanket rules. Some type of blanket rule was in place in more than three quarters of the wards we visited. Such practices have no basis in law or national guidance on good practice and are unacceptable. (b) In 46% of cases reviewed the reason given for the blanket rules was ‘hospital policy’. We were also told it was because of a historical incident, or in 13% of cases no-one seemed able to give a reason. (c) The most common restrictions related to using the internet and mobile phones, smoking, and access to secure outdoor space and communal rooms. In many cases these rules applied across the ward to both detained and informal patients. (d) Overall, about a third of ward managers told us the police had been called to their ward at least once in the previous 12 months to help contain patient behaviour. (e) We continue to hear accounts of patients’ experiences of being restrained. We promote examples of good practice where providers of inpatient mental health services have taken positive steps to reduce the use of restraint. (4) Consent to treatment. (a) We continue to observe that in a significant proportion of records there are no recorded assessments of patients’ consent or capacity at the point of admission or at the three month stage in detention. (b) We noted improving good practice in helping patients to draw up advance statements of their preferences for care and treatment. (c) In 2012/13, we arranged 13,520 visits by Second Opinion Appointed Doctors (SOADs). This is the heaviest demand for second opinions to date. This was despite an amendment to regulations that, from June 2012, removed the legal requirement for second opinion certification in the case of consenting CTO patients. (d) Where the treatment plan proposes medicine above BNF limits our SOADs are twice as likely to make significant (8%) or slight changes (32%) to the prescribed treatment as when it falls within BNF limits. This gives an indication of the safeguard provided by our SOADs against unwarranted treatment. (5) Access to care during a mental health crisis and the Mental Health Act. (a) In some areas difficulty in accessing Approved Mental Health Professionals (AMHPs), with waits of over four hours out of hours, are being reported. (b) In 2012/13, there were 21,814 uses of section 136, with over 7,500 estimated to involve the use of a police cell. This is a decrease of 7% on the previous reporting period. (c) Only 17% of recorded uses of hospital- based places of safety under section 136 resulted in further detention, following assessment by mental health professionals. (d) In one area police told us that 41 young people had been detained in police cells over the previous year, the youngest of whom was 11. This is unacceptable. (e) Health-based places of safety are often not staffed at all times. This has led to hospital places of safety lying empty while a patient is taken to police custody. (f) When we met with carers through our MHA monitoring they told us they were not always provided with enough information to understand the role and function of services or how to get help in a crisis. (6) Deaths of patients subject to the Mental Health Act. (a) In 2011/12 and 2012/13 we were notified of 595 deaths in total. There were 511 deaths of detained patients, and 84 deaths of patients subject to CTOs. (b) We support the recommendation of the Ministerial Board on Deaths in Custody that, NHS England - with input from CQC and the Coroners Society - should produce clear and consistent guidance on how all mental health providers should undertake investigations following the death of a detained patient. (c) We will be working with others to review national data and how this can be combined and shared to improve scrutiny and embed learning. We believe this will improve national understanding and our ability to work together to protect patients’ rights and increase safety. (d) We have introduced a patient safety outliers programme in mental health and will be using the data from this and our collaborative work with other national organisations to inform our understanding of providers and our assessment of how safe their services are. (e) The total number of reported deaths by unnatural causes for detained patients deaths reported to CQC rose from 36 to 48 in 2012/13 compared to the previous year. (7) Conclusions and next steps. We expect to see change in the following areas: (a) Hospitals must ensure that their policies promote the principle of least restriction and that their staff are supported to promote the dignity and autonomy of people in their care. (b) Hospitals must promote cultures that support therapeutic practices and reduce to a minimum the use of restraint and seclusion. The principles of the Code of Practice and the emerging national evidence on restraint need to be considered by all services. We expect detaining authorities to audit and review their local practices to minimise the use of restraint and seclusion. We expect to see evidence of coordinated care planning that allows patients’ preferences to be taken into account. This is to promote individual choice and involvement in avoiding or managing episodes that may otherwise result in restraint or seclusion. (c) NHS and local authority service commissioners of mental health services must act on these findings and on guidance in the Implementation Framework to the national mental health outcomes strategy to improve access to services and outcomes for people with mental health problems. We expect Clinical Commissioning Groups to ensure that local special urgency arrangements (section 140) are clear and provided to local authorities. (d) Commissioners and providers of mental health services must be proactive in initiating and embedding learning from the deaths of people subject to the MHA. We expect to see alignment of local preventative and investigative work with the national findings on mental health related deaths. This includes emerging guidance from national bodies and the use of the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness toolkit. We expect services to notify us of deaths of detained patients and patients who are on a community treatment order at the time of their death. See CQC

House of Lords

  • House of Lords report on MCA. House of Lords Select Committee on the Mental Capacity Act 2005, 'Mental Capacity Act 2005: post-legislative scrutiny' (HL Paper 139, 13/3/14). This is the final report. The following is the 'easy-read' version of the 39 recommendations (without the pictures or headings) for those who want to have an initial skim-read. (1) Everyone needs to be told more about the MCA, including staff, people who use services, carers and families. (See point 12 as well.) (2) The Government needs to check how much the MCA is used in health and social care and other areas, from banks to the police. (3) There are lots of organisations that should make sure the MCA happens. But it’s not working. We want a single organisation to be in charge of making sure the MCA happens. It should be separate from government. They should write a report each year on what they are doing. It should include people who might be seen as unable to make decisions as well as their families and carers. (4) A government group, called the MCA Steering Group, should be asked to look at how the organisation should do its work and who should be in the organisation. (5) CQC should check health and social care services are using the MCA in the right way and people are getting their rights. (6)-(11) Professionals must get more training about using the MCA. The people who buy services must be made to use the MCA. All the organisations in charge of professionals should be told to help make the MCA happen. (12) Different people need different information about the MCA. All the people who need to know about the MCA, from people who use services to lawyers, must have the information they need about the MCA. In the ways they need it. This information needs to be good and kept up to date by the organisation in charge of making the MCA happen. (13)-(21) The next part (13 to 21) is all about the Deprivation of Liberty Safeguards (or DoLS). These are rules about people who are made to stay in a hospital or care home. They are meant to give people rights and make sure they are looked after properly and kept safe. (13)-(17) & (20)-(21). These rules (DoLS) need to be done again. They were meant to give people rights and make sure everything was done properly. They are very complicated, not good enough and not always used. The new rules need to: (a) be clear why they are needed; (b) be much easier to understand; (c) fit in with the rest of the MCA which people like; (d) make sure everyone who needs it has the protection of these rules. This includes people in supported living and in mental health wards. (18) Your local council can agree for a person to speak up for you. They are called an RPR (Relevant Person’s Representative). This needs to be made better so the right person gets the job and they are listened to. (19) The people who decide that someone should be made to stay in a hospital or care home should be checked themselves. To make sure they’re doing it properly. (22)-(24). Some people can get an advocate called an IMCA. IMCA means they are working under the MCA rules. People said these advocates were good and wanted them to do more. We think so too. IMCAs should be: (a) trained; (b) asked to be involved sooner; (c) asked to be more involved as well. People should be able to ask for an IMCA themselves. (25)-(26). If you are able to make decisions, you can say who you would like to make them for you if you can’t anymore. This is done using a legal document called an LPA or Lasting Power of Attorney. This puts in writing who can make decisions about things when you can’t. (25) Staff need to know more about LPAs and how the person named in one can make decisions for someone else. Councils need to tell people about LPAs and what they can do. We need new rules about what to do if services and others do not do what someone with an LPA has asked them to do. (26) You can write down that you do not want a particular treatment in the future when you might not be able to make a decision about it. This is called an Advance Decision. This helps if you are unable to say what you want because you are too ill. People need to know you can do this. Staff need to know people can do this and follow what has been written down. Health staff need to talk to people early on in an illness to help do this. These decisions need to be kept on patient’s records. (27)-(31) When someone can’t make a decision, there are some things that need to go to a special court to be decided. This is called the Court of Protection. They need to have more staff who can make decisions so it doesn’t take so long. The court is making changes to be more open so people can see what they do. We think that is a good thing. They need to be able to put their own words on their website so people know what they do. Before a problem goes to court, other ways to sort it out should be tried. New rules are needed about helping a case go to court. This is really important if it is the person who they think can’t make a decision who wants to do that. (32)-(34) We know there is not enough legal aid money to pay for everything. But we need to make sure people who have been seen as unable to speak up in court for themselves can still go to court if they need to. This is really important when someone is being made to stay in a hospital or care home. We want the government to look again at how much money there is to pay for people to speak up for them. (35) There is a law in the MCA about not neglecting or treating badly people who can’t make a decision. There have not been many cases that have gone to court using this law. Even the staff at Winterbourne View did not get charged with breaking this law. We think the government should look at this part of the MCA to make sure it does what it is meant to do. (36)-(39) We think the MCA should be checked more often to see if it is working properly. The right people to make sure this happens would be the organisation that is put in charge of the MCA (see point 3). They should also check what staff, people who use services and others think about decision making to see if any changes have happened. And we want a check made to see what changes have been made by government over the next year. See House of Lords Select Committee on the Mental Capacity Act 2005

Independent Inquiry

  • Verita, 'Independent investigation into the death of CS: A report for Southern Health NHS Foundation Trust' (February 2014). See Independent inquiries
  • Bindmans LLP, 'Death of 18-year old Connor Sparrowhawk was preventable' (press release, 28/2/14). See Independent inquiries
  • Southern Health NHS Foundation Trust, 'Publication of investigation report into the death of Connor Sparrowhawk' (press release, 24/2/14). See Independent inquiries


Legal Aid Agency

  • Legal Aid Agency: 'Civil face to face contracts from August 2014' page. This page contains documents relating to the tendering process for mental health and community care contracts which runs from 25/2/14 to noon on 25/3/14. See Legal Aid


  • 39 Essex Street, 'Good practice in the implementation of the DOLS safeguards, as drawn from the CQC's Report: Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012-13' (February 2014). See 39 Essex Street Mental Capacity Law Newsletter

New website

  • New website. Alex Ruck Keene of 39 Essex Street Chambers has today launched a website entitled 'Mental Capacity Law and Policy' with the motto 'Bringing together the best people and the best practice in the field of mental capacity'. See Other websites



  • MHLA panel course. The Mental Health Lawyers Association will be running their successful two-day course for membership of the Law Society's Mental Health Accreditation Scheme (formerly the MHRT panel) in Newcastle on Tuesday 22/4/14 and Wednesday 23/4/14. The course will also be held in London on Monday 28/4/14 and Tuesday 29/4/14. 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. [UPDATE 1/4/14: The London course sold out so a further London course is being held on 12/5/14 and 13/5/14.]
  • DOLS. Cardiff University and the Law Society are holding a conference entitled 'The Deprivation of Liberty Procedures: Safeguards for Whom?' on Friday 13/6/14 at the Law Society in Chancery Lane, London. The speakers are: Neil Allen, Peter Bartlett, Paul Bowen, Graham Enderby, Phil Fennell, Roger Hargreaves, Richard Jones, Sophy Miles, Mark Neary, Paula Scully, Lucy Series, and Susan Thompson. Price: £150. See flyer for further information and booking form. See Events

Website and CPD

  • CPD scheme. The CPD questionnaires for all months up to and including January 2014 are now online. Obtain 12 CPD points online for £60. For details see CPD scheme