May 2015 update

Case law

  • Best interests and available options. Re MN (An Adult) [2015] EWCA Civ 411 — "The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself."
  • COP costs case. LB Redbridge v G (No 6) [2015] EWCA Civ 446, [2015] MHLO 40The Official Solicitor unsuccessfully appealed against an order that Associated Newspapers Limited should pay (only) 30% of his costs. (1) The primary ground of appeal - that the COP Rules did not apply - was described by the Court of Appeal as "simply a device to suggest that the costs presumption should be reversed". (2) The alternative ground was that if the COP Rules did apply then the judge had erred in the exercise of his discretion in the proportionate costs order that he made. In relation to this the Court of Appeal held that (a) given that inaccurate letters from the OS (stating that that ANL were prevented from visiting G) had triggered ANL's application, and that the OS had not understood the public importance of the media's general role, a proportionate costs order was unsurprising; and (b) multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs.§

Legal Aid Agency

  • Legal Aid Agency, 'Keycard 51' (April 2015). This document is helpful when working out financial eligibility for civil Legal Aid. In force 6/4/15. See Legal Aid#Guidance documents
  • Legal Aid audits. Different mental health firms have reportedly been given different information about the current round of audits: (a) that larger firms are selected based on contract size, or (b) that every firm will be audited in the next year or so. The official position is that: (1) the focus is on higher-risk providers, and volume of work will not by itself lead to an audit; (2) "higher risk" is not tightly defined, but is a combination of: (a) does the firm have a history of claiming errors? (b) if so, when these have been brought to the firm's attention, is a fix effectively made? (c) are bills rejected or assessed down higher than the norm? (d) are there significant changes in people at the firm? (3) towards the end of the summer, recent audits will be reviewed to see whether the published guidance has reduced problems (source: John Sirodcar, Head of Contract Management, 8/5/15). See Legal Aid

Mental Health Tribunal

  • New HQ1 and procedure for late reports from 5/5/15. Tribunal Procedure: Failure to submit reports to the tribunal on time (17/4/15) — This letter to MHA Administrators sets out their duties in relation to an amended HQ1 form (which must be used from 5/5/15) and a related email to "stakeholders" sets out the duties of representatives. (1) The CNL1 letter will direct MHA Administrators to (a) provide contact details for all the responsible authority's witnesses, including any out-of-area social circumstances report author; (b) advise the tribunal if any details change; (c) certify that the information can be relied upon by the tribunal for service of directions and summonses. (2) When a report or statement is not received within the three-week deadline, a specific direction will be sent - generally by secure email - to the person at fault, requiring the evidence within 7 days, and warning that a referral may be made to the Upper Tribunal for consideration of a personal penalty. (3) If the required contact details have not been provided then any directions or summonses will be sent to the Chief Executive or Medical Director. (4) Representatives need only complete the patient details and listing parts of form HQ1 and, while form HQ2 is no longer required, the CNL2 letter will contain a reminder to (a) make representations if half a day is not a suitable time estimate; (b) inform the tribunal early if an interpreter is required; (c) use best endeavours to request any withdrawal at least two full working days before the hearing start time, and provide reasons for requests within that period.

Care Quality Commission


  • Taking Stock Conference, 16/10/15. The 2015 Annual Taking Stock Conference (The Mental Health & Mental Capacity Acts in Practice) will take place on Friday 16/10/15 at the Royal Northern College of Music, Manchester. Confirmed speakers (others TBC): Diana Rose, Alistair Burns, Neil Allen, Mathieu Culverhouse, Mat Kinton, Jenny Shaw. CPD: 4.5 SRA-accredited hours (0930-1600). Fee: £125; £100 for bookings made before 27/6/15; reduced-price places for voluntary sector organisations. See flyer for further details and booking information. See Events



  • Just Giving, 'Paul's British Isles Walk: Walking through The British Isles for Big C' (April-May 2015). Paul Veitch is a great mental health solicitor who has given permission this link to be included here. Introductory story from website: "Two years ago I was diagnosed with incurable bowel cancer as it had secondaried into my lymph system. So far I have responded very well to treatment and so I am embarking on a two month walk mainly because I love nature and walking. If all goes well I plan to walk part of the east coast of Suffolk and Essex, the Ridgeway National Trail, the South Downs Way and Saint Cuthberts Way. I will then spend a week with the community on Iona and then in May walk up the West Coast of the outer Hebrides. I should be walking approximately 400 miles. While we all want to be cured of cancer, just as important is to be cared for, and that is why I have chosen the Big C as a charity if you would like to make a donation. Big C provides that care by giving sufferers the space to relax in their centres. They also give practical help and advice, friendship and support as well as supporting research." See Just Giving website (and Miscellaneous external links page)

Website and CPD

  • New Mental Health Law Online Facebook page. MHLO now has a Facebook page - click "Like" on that page to follow it and have MHLO news items appear on your timeline. It's a "page" rather than a "group" so is not designed to replace the email discussion list, but it is possible to share each item with friends and add comments.
  • MHLO Annual Review 2014. Each year an Annual Review is published, which contains all news items, arranged thematically, which were added to Mental Health Law Online during that year. You can support the website by purchasing the Annual Review in paperback or in Kindle format. Additionally, the full text is available online without charge. See the Annual Review page to obtain the 2011-2014 editions.
  • CPD scheme. Obtain 12 SRA-accredited CPD points for £60 (also compatible with the SRA's new CPD regime). Suitable for non-lawyers as well. See CPD scheme for details.