May 2021 update

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Website

  • 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 2156 categorised cases

Cases

  • Case (Removal of family member from home). A Local Authority v TA [2021] EWCOP 22GA was an 87-year-old woman who lacked capacity to make decisions about her residence, health, or care needs owing to severe and deteriorating dementia. Living with her was her son TA (a controlling presence), daughter XA (visiting to assist TA), and son HA (believed to have schizophrenia). The court ordered TA and XA to leave the home, so that GA could receive social and medical care at home and have contact with other members of the family, and authorised GA's deprivation of liberty there. The court also prevented TA from returning within 100 yds, ordered him not to use GA's Motability car and not to publish information on the internet, limited his correspondence with the local authority and Official Solicitor, and made a civil restraint order for a period of two years. Committal proceedings brought by the local authority were to be considered at a future hearing.
  • Case (Residence/care capacity). Y CCG v KG [2021] EWCOP 30In these s21A proceedings, the Court of Protection decided that KG, who had been clinnicially fit for discharge from Kingsgate Hospital for two years but was extremely resistant to leaving hospital, lacked capacity in relation to future residence and care.
  • Case (Litigation capacity and litigation friend). Greetham v Greetham [2021] EWHC 998 (QB)The court considered whether the defendant lacked capacity to conduct litigation, and was therefore a protected party; and if so whether his brother's application to be appointed as litigation friend satisfied the conditions of CPR 21.4(3) as applied by 21.6(5).
  • Case (Testamentary capacity and delusions). Clitheroe v Bond [2021] EWHC 1102 (Ch) — (1) It was not in the interests of justice to allow the question whether testamentary capacity should be determined using the MCA test rather than the Banks v Goodfellow test (though the judge would have concluded that the Banks test continues to apply). (2) In relation to delusions (part of the Banks test): "In order to establish whether a delusion exists, the relevant false belief must be irrational and fixed in nature. It not an essential part of the test that it is demonstrated that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature can be demonstrated in another way, for example by showing that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware and would not have forgotten."
  • Case (Protected party and Part 36). Wormald v Ahmed [2021] EWHC 973 (QB)After suffering a cardiac episode in September 2020, the claimant in this road traffic PI claim (through his litigation friend) accepted a Part 36 offer made in 2014, and died later the same day. The defendants sought to withdraw the offer when informed of the death. The court considered the following questions: (a) where a protected party accepts a Part 36 offer is the other party subsequently able to withdraw that offer before approval of the settlement? and (b) when the court is asked to approve a settlement, on what grounds (if any) can a Part 36 offer be withdrawn and approval of a settlement be refused? On the facts (including the disparity in the parties' knowledge about the changed prognosis) it seemed unjust for the defendant to be bound by the Part 36 offer, but a final determination would be made after the claimant had had the opportunity to provide further information.
  • Case (Subject-matter and litigation capacity). An NHS Trust v P [2021] EWCOP 27P's psychiatrist initially stated that P lacked subject matter capacity (whether to take HIV medication) yet had litigation capacity. (1) The judge: (a) disagreed with the proposition that if a person lacks capacity to conduct proceedings as a litigant in person she might, nevertheless, have capacity to instruct lawyers to represent her and that the latter capacity might constitute capacity to conduct the litigation in question; (b) thought it virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter (it would be as rare as a white leopard). (2) On the facts, P lacked both subject matter capacity and litigation capacity.

Resources

  • Publishing and reporting UT decisions. Upper Tribunal, 'Consultation paper on access to decisions and reporting in UTAAC' (consultation from 10/5/21 to 1/8/21) —This consultation sets out the difference between Upper Tribunal (Administrative Appeals Chamber) decisions which are unpublished, published (which have a UKUT neutral citation number) and reported (which in addition have an AACR citation); and the rules and customs for precedent within the UT (AAC). There are two questionnaires (one for social security, and one for everybody else) asking about how you access UT (AAC) decisions and your views on the Administrative Appeal Chamber Reports.
  • MHA reform consultation response. Law Society, 'White paper on reforming the Mental Health Act - Law Society response' (22/4/21) —The website's summary page mentions resources, treatment to facilitate early discharge, arbitrary distinctions between classes of patients (based on capacity and involvement in the criminal justice system), earlier automatic tribunal references for people with impaired mental capacity, and community-based alternatives for those with LD/autism rather than continued detention outside the MHA.

News

Events

  • Event. MHLA: Refresher and Re-accreditation course (online, 23/7/21) — This course will be suitable for those seeking re-accreditation, by: (a) reviewing the legal and procedural developments of the last three years; (b) providing a forum for discussing these along with the re-accreditation process; (c) fulfilling the requirement to obtain six mental health CPD points for re-accreditation. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. MHLA: Refresher and reaccreditation (online, 16/7/21) — This course will be suitable for those seeking re-accreditation, by: (a) reviewing the legal and procedural developments of the last three years; (b) providing a forum for discussing these along with the re-accreditation process; (c) fulfilling the requirement to obtain six mental health CPD points for re-accreditation. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. MHLA: Panel course (online, 28-30 June 2021) — 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. The course will take place via Zoom on three consecutive afternoons, from 1300 until 1700 each day. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). Booking closes at 1700 on 30/9/20. See MHLA website for further details and to book online.
  • Event. MHLA: Foundation course (online, 18/6/21) — "This course is aimed at new practitioners and those intending to attend the Panel course in the near future. Attendance at the Foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day Panel course, which is a pre-requisite for application to The Law Society’s mental health panel." Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. MHLA: Refresher and Re-accreditation course (online, 4/6/21) — This course will be suitable for those seeking re-accreditation, by: (a) reviewing the legal and procedural developments of the last three years; (b) providing a forum for discussing these along with the re-accreditation process; (c) fulfilling the requirement to obtain six mental health CPD points for re-accreditation. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. MHLA: Peer Review (online, 21/5/21) — This course will broaden practitioners' knowledge of the peer review process and the peer review 'Improving your Quality' guidance. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. MHLA: Restricted cases (online, 11/6/21) — Learning Objectives: (1) Restricted sections and provenance; (2) Duration of restricted sections; (3) Powers of MHT; (4) Managing a restricted case - key things to consider for the MH lawyer; (5) MAPPA. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. MHLA: Restricted cases (online, 14/5/21) — Learning Objectives: (1) Restricted sections and provenance; (2) Duration of restricted sections; (3) Powers of MHT; (4) Managing a restricted case - key things to consider for the MH lawyer; (5) MAPPA. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.
  • Event. PELT: Introduction to COP, including s21A appeals (online, 10/11/21) — "The Court of Protection addresses issues not only of finances but also where deprivation of liberty safeguards and procedures are authorised or challenged, disputed capacity issues are resolved, and where arguments about adult protection and best interests are determined. It is essential that all those working with vulnerable people / safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court. The course will include updates relating to appeals against Liberty Protection Safeguards if implementation is imminent." Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • Event. PELT: Sex, marriage and relationships (online, 16/6/21) — "Most of us have the right to make unwise decisions. However, in the murky and untidy world of incapacity, life is not like that. The MCA is clear, if you lack capacity to engage in sexual relations, that is it, you cannot do it. Even if you have been married to that person for 60 years. The Court of Protection has been grappling with this thorny subject for many years. There are also many related aspects." Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.

Jobs

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