October 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.

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 2189 categorised cases

Cases

  • Case (Prostitution). Secretary of State for Justice v A Local Authority [2021] EWCA Civ 1527 — The words "causes or incites" found in s39 Sexual Offences Act 2003 carry their ordinary meaning, and care workers implementing a care plan facilitating contact between a person with mental disorder and a prostitute would clearly be at risk of committing a criminal offence. Section 39 does not interfere with an Article 8 right (and would be justified if it did), and the discrimination involved (compared with someone whose physical disability prevented him from making the practical arrangements) is justified under Article 14. The court noted situations where facilitating contact might not fall foul of s39, such as where a person with dementia wishes to spend time at home with a spouse, or a young person wishes to meet people of his own age and make friends.
  • Case (Section 117 and Housing Benefit). London Borough of Lewisham (20 006 910) [2021] MHLO 5 — The council, CCG and trust initially reneged on a promise to update their s117 policy, but eventually changed it to state: "If accommodation is included as part of after-care, it should not be charged for, nor should person be told to claim Housing Benefit. Service and utility charges should be deemed part of the s117 accommodation." Ombudsman's summary: "The Ombudsmen investigated and upheld an earlier complaint about charging for accommodation which should have been free under section 117 of the Mental Health Act 1983. We have now investigated a complaint about the [London Borough of Lewisham], [South London and Maudsley NHS Foundation Trust] and [NHS South East London CCG] failing to carry out actions agreed during the earlier investigation. We have upheld the complaint. We have also found that an estimated 57 other patients may not have up-to-date section 117 aftercare plans. The organisations accept our recommendations, so we have completed our investigation."
  • Case (No Article 2 inquest for voluntary patient). R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin) — The issue in this case was whether there was a duty to hold a Middleton inquest (an inquest which fulfils the enhanced investigative duty required by Article 2) following the death of a voluntary in-patient of a psychiatric rehabilitation unit due to an overdose of recreational drugs when she was at home in the community.
  • Case (Caesarean section). Dartford And Gravesham NHS Trust v SEB [2021] EWCOP 55 — In this out-of-hours application, made when SEB was already in labour, it was decided that she lacked capacity to litigate or to make decisions about her obstetric care, and that a caesarean section, together with any necessary restraint and deprivation of liberty, was in her best interests.
  • Case (Contact and marriage). Re BU [2021] EWCOP 54 — (1) BU lacked capacity to decide whether to maintain contact with NC, and it was ordered that there be no further contact with him. (2) She had capacity to marry but could not give valid consent as she was under NC's undue influence, so a forced marriage protection order was made for 12 months. (3) An injunction preventing a civil partnership was granted, without the need to clarify the test for capacity to enter a civil partnership. (3) The judge noted that no reporting restriction order should operate so as to have retrospective effect.
  • Case (Deprivation of liberty in own home). London Borough of Havering v AEL [2021] EWCOP 9 — The father of AEL, a 31-year-old woman with trisomy 4p syndrome, objected to the description of his care for his daughter as a deprivation of liberty, his approach to care being founded on the principle that "AEL decides what she wants to do and when she wants to do it excepting if her safety could be compromised". The judge applied the Cheshire West "acid test", and decided that the objective element of deprivation of liberty was met (the subjective element and imputability to the state were not discussed) and therefore that AEL was being deprived of her liberty.
  • Case (Committal for contempt of court). AB v HB [2021] EWCOP 45 — HB had prevented assessments of his father's capacity, contrary to a court order, but having heard from HB (who had a low level of comprehension himself but now understood that he had to comply with court orders) and as an assessment had since taken place it was decided not to punish him for the contempt.
  • Case (DOL of child at children's home). Nottinghamshire County Council v LH (No 2) [2021] EWHC 2593 (Fam) — In response to the High Court's refusal to authorise LH's deprivation of liberty in a psychiatric ward, the local authority proposed to place her in an empty four-bed children's home. Restrictions on her liberty, amounting to deprivation of liberty (e.g. 3:1 escort inside and outside the home), would be imposed because of the risk of self-harm and violence. The judge concluded that it was necessary and proportionate and in LT’s best interests to be deprived of her liberty there, and during her transfer there.
  • Case (Refusal to authorise DOL under inherent jurisdiction). Nottinghamshire County Council v LH (No 1) [2021] EWHC 2584 (Fam) — The local authority asked the court to authorise LH's deprivation of liberty in an acute adolescent psychiatric unit because there was nowhere else available in the country. She had autistic spectrum disorder, ADHD, and other difficulties but, despite being detained on the ward, was not detained under the MHA as hospital treatment was not considered appropriate. The clinicians did not want her to remain there: her presence was endangering not only herself (e.g. she had started to attempt ligature strangulation) but also the other children and staff. The judge concluded that "authorisation of the deprivation of LT’s liberty in a psychiatric unit which is harmful to her and contrary to her best interests would only serve to protect the local authority from acting unlawfully: it would not protect this highly vulnerable child".

Resources

  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 116, October 2021) —"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the 14th birthday of the MCA, an important case about the scope and limits of ADRTs, and the impact of coercive control on capacity; (2) In the Property and Affairs Report: a deputy stand-off and new blogs from the OPG; (3) In the Practice and Procedure Report: anticipatory declarations and medical treatment - two different scenarios; (4) In the Wider Context Report: children, competence and capacity in different contexts, the JCHR launches an inquiry into human rights in care settings, and a Jersey perspective on deprivation of liberty; (5) In the Scotland Report: the Supreme Court, devolution and implications for CRPD incorporation, and resisting guardianship."
  • COP newsletter. Hill Dickinson, 'Court of Protection' (September 2021) —The articles are: (1) Court of Protection Cases from July to September 2021; (2) LPS - Likely, perhaps, soon (ish); (3) Mother successfully appeals against being discharged as a party but is not awarded costs; (4) Compulsory vaccination of care home workers; (5) A timely reminder: making applications to court without delay; (6) Caselaw update: JB, Re C and Re T and how they connect; (7) COVID vaccine, Victoria Gillick and kids; (8) Is a decision of the Court of Protection refusing permission to appeal susceptible to judicial review?
  • Automatic disclosure of medical records. Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives' (27/9/21) —This direction has similar wording to its predecessor but instead of applying for the duration of the mental health coronavirus practice direction (which was not extended beyond 18/9/21) applies "[w]here there are restrictions on the ability of legal representatives to visit patients without undue delay and risk to themselves and others in the ongoing coronavirus pandemic".

Events

  • Event. Event:Bond Solon: BIA legal update training package (online, any time) — The BIA Legal Update training package consists of six modules and includes videos and activities to carry out. The training has been designed to reinforce you’re learning by helping you consider how you will apply what you have learnt to your work. The course will help you continue to develop the skills necessary to obtain, evaluate and analyse complex evidence and differing views. You will learn how to weigh them appropriately in decision making. The course will help you meet your statutory duties and allow you to continue to practice as a BIA. It will help you consider the role of the BIA in the new era of the LPS. Speaker: Sue Inker. Cost: £95 plus VAT. See Bond Solon website for further details and booking information.
  • Event. Event:MHLA: 22nd Annual Conference (online, 12/11/21) — Speakers include Graham McDonald, Mark Caulfield, Keir Harding, Rikki Garg, Dr Alexander Langford, Rosie Viva, and Tam Gill. Chaired by Kate Tyrrell. Price: £200 (non-member), £115 (member), £100 (group discount), £450 (for 5+ delegates). See MHLA website for further information and booking details.

Social media

Nothing to report this month.


Other items

  • Oct 2021:
    Judicial Review and Courts Bill will get rid of rule in Cart - clause 2 - Exclusion of review of Upper Tribunal’s permission-to-appeal decisions
  • Oct 2021:
    Calderdale MBC v AB & Ors (Order) [2021] EWCOP 56M (06 August 2021)
  • Oct 2021:
    NHS County Durham Clinicial Commissioning Group (20 009 115) and Tees, Esk and Wear Valleys NHS Foundation Trust (20 009 115) "Durham County Council correctly charged Mr A for his social care support when his circumstances changed. Tees, Esk and Wear Valleys NHS Foundation Trust missed the opportunity to reassess Mr A's section 117 aftercare needs after that time. That fault caused Mr A uncertainty. The Trust should apologise to Mr A and reassess his section 117 aftercare needs."
  • Oct 2021:
    Evans v Betesh Partnership & Ors [2021] EWCA Civ 1194B (30 July 2021) - mentions capacity to litigate
  • Oct 2021:
    AK (Inherent Jurisdiction: Patient: Move to residential care: Contact) [2021] NIFam 9B (18 March 2021)
  • Oct 2021:
    QR v Official Solicitor for Northern Ireland [2021] NIFam 6B (03 March 2021)
  • Oct 2021:
    The Western Health and Social Care Trust for Judicial Review v Secretary of State for Health and London Borough of Enfield (Interested Party) [2018] NIQB 67M (03 August 2018)
  • Oct 2021:
    Belfast Health and social Care Trust and PT and The Official Solicitor to the Court of Judicature Northern Ireland [2017] NIFam 1M
  • Oct 2021:
    North Yorkshire County Council v M & Ors (Medium Secure Bed) [2021] EWHC 2171 (Fam)B (30 July 2021)
  • Oct 2021:
    A Local Authority v SE & Ors [2021] EWCOP 44B (01 July 2021)
  • Oct 2021:
    London Borough of Southwark v P & Ors [2021] EWCOP 46B (28 June 2021)
  • Oct 2021:
    SM v The Court of Protection & Anor [2021] EWHC 2046 (Admin)B (20 July 2021)
  • Oct 2021:
    Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam)B (14 July 2021)

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