October 2020 chronology
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.
See October 2020 update for a thematic summary of these changes.
- 29/10/20(2218): Case (Inherent jurisdiction - dispensing with service). A Local Authority v B  EWHC 2741 (Fam) — It was proper to dispense with service of proceedings on B's father in relation to inherent jurisdiction proceedings seeking a declaration authorising the deprivation of B's liberty at a community therapeutic placement following discharge from section 2 detention in hospital.
- 29/10/20(2154): Case (Inherent jurisdiction and DOL). Lancashire County Council v G  EWHC 2828 (Fam) — A 16-year-old girl was inappropriately placed on an adult mental health ward, there was no secure placement or regulated non-secure placement was available in the UK, the only placement was an unregulated placement that was not prepared to apply to OFSTED for registration, and the alternative was discharge with nowhere to go and a very high risk of fatal self-harm. The judge authorised deprivation of liberty at the unauthorised placement but noted grave reservations about whether the court was really exercising its welfare jurisdiction or simply being forced by mere circumstance to make an order irrespective of welfare considerations. The judge directed the judgment be sent to the Children's Commissioner for England, the Secretary of State for Education, the Chair of the Residential Care Leadership Board, the Minister for Children, the Chief Social Worker, OFSTED and SWCU.
- 29/10/20(2136): Case (Inherent jurisdiction). Mazhar v Birmingham Community Healthcare Foundation NHS Trust  EWCA Civ 1377 — Mr Mazhar was removed from his home to hospital without warning by police and paramedics in the middle of the night under the High Court's inherent jurisdiction on the basis of an out-of-hours application. (1) The Trust's application for, and the granting of, the order for which there was no proper evidence and without giving Mr Mazhar the opportunity to be heard amounted to a clear breach of his Article 6 rights and was a flagrant denial of justice. (2) It was unnecessary to decide whether the inherent jurisdiction extends to the making of an order that has the effect of depriving a vulnerable adult of liberty provided the provisions of Article 5 are met. (3) The President of Family Division was invited to consider whether fresh guidance should be given to practitioners and judges about applications of this sort, and the court set out a list of seven clear lessons to be learnt.
- 28/10/20(2232): Legislation. Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2020 — These Regulations amend Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 to provide for the service of documents by electronic communication.
- 28/10/20(2213): Legislation. Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020 — This legislation expires most of the mental health amendments in sch 8 Coronavirus Act 2020 in relation to England, and some in relation to Wales. None of the expired provisions had commenced. Some other amendments will continue in Wales (mainly those relating to the MHRT) and transitional provisions will remain in force in both countries.
- 28/10/20(2203): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 108, October 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated DHSC MCA/DoLS COVID-19 guidance, the CRPD in the Court of Protection and spotting the signs of abuse; (2) In the Property and Affairs Report: two important cases about deputies and fixed costs and how to get financial deputyship applications right; (3) In the Practice and Procedure Report: s.21A applications and interim declarations; the limits of the court’s jurisdiction; contempt proceedings and when not to recognise a foreign order; (4) In the Wider Context Report: new GMC consent guidance, Sir James Munby returns to the inherent jurisdiction, new CQC publications and relevant ECHR developments; (5) In the Scotland Report: a new Chief Executive for the Mental Welfare Commission, MWC publications, and what COVID-19 has revealed about ageism and disability discrimination."
- 26/10/20(1616): MHLO forum launched. An online forum is now available: see the forum itself for full details and to get involved.
- 24/10/20(2015): DOLS case law summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards - case law summary' (October 2020 edition, 22/10/20) — This four-page document summarises selected domestic and European caselaw on deprivation of liberty.
- 20/10/20(2159): Case (Condition removed from conditional discharge). Re E  MHLO 52 (FTT) — The tribunal added a condition to the written reasons which was not stated at the hearing: "Abide by the rules applicable to such accommodation in particular to sleep there every night and not to have overnight guests." There had been a clear error of law and the condition was removed: (a) the tribunal had failed to address in its decision why it had made the conditions it made; (b) it was required to provide a brief explanation; (c) it was also required to announce the conditions that the patient was subject to in exact terms, which was crucial given that the patient was being conditionally discharged immediately. [First-tier Tribunal decisions are useful but not binding.]
- 20/10/20(2128): Case (Video tribunal hearing set aside). Re D  MHLO 51 (FTT) — (1) The decision in this case was set aside because it was not clear whether or not the patient had a reasonable opportunity to hear all the evidence that was given at the hearing: it was not possible to be sure that the patient had a fair hearing. (2) The patient's microphone had been muted for much of the time after giving her evidence at the outset because she "would not stop talking", but this did not amount to exclusion under Tribunal rule 38. [First-tier tribunal decisions are useful but not binding.]
- 20/10/20(2022): Event. Edge Training: Level 3 Safeguarding Adults (online, 1-2 Feb 2021) —A single training course delivered in two sessions via live webinar. This Level 3 Safeguarding Adults webinar offers delegates the opportunity to explore the legal framework, which underpins safeguarding adults work, and to explore the key challenges that may arise in practice. It will guide the delegates through the safeguarding adults process and focus on making safeguarding personal. Speaker: Dawn Revell. Cost: £150 plus VAT. See Edge website for further details and booking information.
- 17/10/20(0813): Case (Deprivation of liberty during conditional discharge). Birmingham City Council v SR  EWCOP 28 — (1) Both patients supported but lacked capacity in relation to the proposed care plans, which involved deprivation of liberty concurrently with a conditional discharge, and those plans were in their best interests. (2) Obiter, the division in the MOJ's post-MM guidance (MCA DOL for incapacitous patients whose risk is to themselves, but MHA s17 leave for incapacitous patients whose risk is to others and for capacitous patients) did not withstand scrutiny as it is in patients' best interests to be kept "out of mischief" and therefore out of psychiatric hospital.
- 07/10/20(2034): Social distancing and mental capacity. Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 6/10/20) — "This guidance note provides an overview of the framework within which decisions need to be taken in England relating to social distancing and self-isolation in the context of those with impaired decision-making capacity, including about considerations of deprivation of liberty."
- 07/10/20(0954): Sentencing proposals. Ministry of Justice, 'A Smarter Approach to Sentencing' (CP 292, 16/9/20) — This document mentions mental health several times, in particular in relation to Community Sentence Treatment Requirements.