October 2022 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 2022 update for a thematic summary of these changes.

  • 31/10/22
    : Case (Residence). Lancashire and South Cumbria NHS Foundation Trust v AH [2022] EWCOP 45 — AH lacked capacity to make decisions about residence, care, sharing information concerning her physical and mental health and care, and conducting these proceedings. The judge noted that a DOLS mental capacity assessment had concluded that AH did not lack capacity, so AH had been detained under his order rather than DOLS (which attracts non-means-tested Legal Aid); he recommended that the court report author should carry out a DOLS assessment or, alternatively, the assessor should have access to the court report and any judgment about capacity.
  • 30/10/22
    : Case (Placement for 17-year-old boy). South Gloucestershire Council v DN [2022] EWCOP 35 — "The court has before it two applications. First, an application on behalf of DN, by his litigation friend the Official Solicitor, for welfare orders under the Mental Capacity Act 2005. Second, an application by the local authority for orders under the inherent jurisdiction, authorising DN’s deprivation of liberty in an unregulated placement."
  • 30/10/22
    : Case (Hoarding). Re AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 — The issue to be resolved was whether AC should return home for a trial period, receiving a package of care there. The parties and court agreed a 15-page statement of legal principles which is appended to the judgment, and agreed that information relevant to making decisions in respect of one’s items and belongings falls under these headings: (a) volume of belongings and impact on use of rooms; (b) safe access and use; (c) creation of hazards; (d) safety of building; (e) removal/disposal of hazardous levels of belongings.
  • 29/10/22
    : Case (DPP replaced with s37/41). R v Surrey [2022] EWCA Crim 1379 — A sentence of detention for public protection had been imposed on the appellant (his 29th offence at the age of 17 was to stab someone in the neck from behind for giving him "dirty looks" and calling him a ginger nut) but subsequent evidence stated that he has a learning disability and had been in the prodromal phase of schizophrenia. The Court of Appeal quashed the DPP and substituted it with a restricted hospital order under s37/41.
  • 29/10/22
    : Case (Article 2 inquest). R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410 — The coroner was right to conclude that the patient's circumstances did not give rise to an operational duty under Article 2 upon the Trust to protect her from the risk of accidental death from the use of recreational drugs, and therefore was right to conclude that the parasitic procedural duty to hold a Middleton inquest did not arise. There was no error in the Divisional Court upholding that decision, and the appeal was dismissed.
  • 28/10/22
    : Case (DOL and care order). Re E (A Child) [2022] EWHC 2650 (Fam) — "These proceedings concern E who is 17 years of age. There are two applications before the Court: (i) The Local Authority's application to extend [DOL] provisions. (ii) The parents' application to discharge the Care Order." The judge commented that Legal Aid for deprivation of liberty proceedings should, like care proceedings (and DOLS appeals), be non-means-tested.
  • 27/10/22
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 126, October 2022) —Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Capacity to make decisions regarding hoarding, parental consent for deprivations of liberty, and Article 2 and informed consent. (2) In the Property and Affairs Report: A new guidance notes on selling properties; (3) In the Practice and Procedure Report: The Court of Appeal weighs in on the test for injunctions in the Court of Protection, and a new Civil Justice Council working group considers litigation capacity in civil proceedings; (4) In the Wider Context Report: Withdrawal of treatment; jurisdiction of the Ombudsman; mental capacity and Article 14 status; and ‘Shedinars’ galore. (5) In the Scotland Report: An update on the Mental Health Law Review.
  • 27/10/22
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 125, September 2022) —Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Person specific contact and sexual relations capacity; treatment plans for disordered eating; and updated DoLS statistics. (2) In the Property and Affairs Report: Electronic billing pilot rolls out. (3) In the Practice and Procedure Report: Transparency orders; and the BMA opines on s.49 MCA reports. (4) In the Wider Context Report: Brain stem death testing; deprivations of liberty of young people in Scotland; the CRPD’s application in the Battersbee case; foreign convictions; coercive control; litigation capacity; the Care Act considered in the Court of Appeal. (5) In the Scotland Report: Further updates on Guardians’ remuneration and the PKM litigation; nearest relatives; and the MHTS project concludes. You can find our past issues, our case summaries, and more on our dedicated sub-site here, where you can also find updated versions of both our capacity and best interests guides.
  • 27/10/22
    : Case (Participation - anonymity - transparency order). Re EM [2022] EWCOP 31 — This judgment considered participation by the protected person, anonymity, and the correctness of the standard transparency order. (1) The fundamental rule is that, where an application is made which seeks the deprivation of the protected person's liberty, he must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for him, with the only exception being where an interim order is very urgently needed and there is just not enough time to secure his representation before the hearing (but at the hearing his representation at future hearings must be enabled). An unjustified failure by the court to secure such representation when making a non-urgent deprivation of liberty order will very likely render the order unlawful. (2) The anonymisation of orders (as opposed to published judgments) should cease. (3) The transparency order in this case may have been technically unsound for two separate reasons (which are both condoned by r4 COPR and PD4C): (a) it was made in the absence of a Re S-type balancing exercise, weighing the Article 8 ECHR rights of EM with the Article 10 ECHR rights of the public at large, exercised via the press; and (b) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRA 1998.
  • 27/10/22
    : Case (Injunctions). Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312 — "The Court of Protection does have power to grant injunctions under s.16(5) of the 2005 Act, both in the case where a deputy has been appointed under s.16(2)(b) and in the case where the Court has made an order taking a decision for P under s.16(2)(a). In doing so, it is exercising the power conferred on it by s.47(1) and such an injunction can therefore only be granted when it is just and convenient to do so. This requirement is now to be understood in line with the majority judgment in Broad Idea as being satisfied where there is an interest which merits protection and a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something. In the present case, as is likely to be the case wherever an injunction is granted to prevent the Court's decision under s.16(2)(a) from being frustrated or undermined, those requirements are satisfied because G's interest in the December order being given effect to is an interest that merits protection, and the principle that the Court may make ancillary orders to prevent its orders being frustrated is ample justification for the grant of injunctive relief if the facts merit it."
  • 26/10/22
    : Case (Residence - reporting restrictions). Re J (Deprivation of Liberty: Hospital) [2022] EWHC 2687 (Fam) — "J is a 13-year-old girl with complex needs who was made the subject of an interim care order on 20 July 2022 in favour of the Applicant Council/Manchester City Council. The Council has a statutory duty to place J in a placement but for about three months now it has not been able to find any accommodation for her and so she has been living in a hospital. J does not want to live in a hospital. She has no physical or mental health requirement for in-patient treatment and the environment of a hospital is not at all suitable for her needs but the Council has not been able to find any alternative place for her to live. A team of agency care staff funded by the Local Authority attend the hospital to look after her. J's presence in the hospital and the attention she requires cause disruption and adversely affect the ability of hospital staff to care for their patients. Resources that should be used to treat someone who requires in-patient care are being used to house a child who does not require in-patient care. All parties in this case agree that J needs to be placed somewhere else but such is the state of provision for children with complex needs in England and Wales that there has been nowhere else for J to go."
  • 20/10/22
    : Consolidated version of HESC rules. Tribunal Procedure Committee, 'HESC Rules: consolidated version' (as in effect from 11/8/22) —This PDF document includes changes made to the original rules since 2008. Note that some changes have been made since that date, in particular new rule 5A (urgent decisions without a hearing) expired on 25/9/22, and the temporarily extended 10-day deadline for listing s2 cases expired on 25/9/22 but was reintroduced permanently on 1/11/22.
  • 20/10/22
    : 10 days for s2 listing. Tribunal Procedure Committee, 'Reply from the Tribunal Procedure Committee' (following consultation on changes to section 2 listing, 19/10/22) —During the coronavirus pandemic the 7-day listing deadline for s2 cases was temporarily extended to 10 days. This consultation proposed making the change permanent. 8 of 11 respondents were against. But the TPC considered it "entirely appropriate" to take into account an earlier, similar consultation in 2020, in which 51 of 60 respondents were in favour. The TPC decided to make the extended 10-day deadline permanent for the following reasons: (1) the great majority of the two consultations taken together were in favour (if the 2020 respondents had changed their views they might have been expected to respond to the 2022 consultation); (2) the 10-day period was useful in 15% of cases during 2021/22; (3) the DCP's observations (within the 2022 consultation document) carried significant weight; (4) nothing concerning had emerged as a consequence of the temporary arrangements.
  • 20/10/22
    : Case (Criminal appeal). R v Cobley [2021] EWCA Crim 954 — The applicant had been convicted of the murder of her new-born baby. Based on fresh psychiatric evidence, she wanted the conviction quashed and directions for retrial so that she could argue the partial defence of diminished responsibility.
  • 17/10/22
    : Case (Order of evidence). Re F [2021] MHLO 6 (FTT) — The tribunal, without first consulting the patient's representative, directed that the patient give evidence first in a video hearing, and rejected a submission that the responsible authority should be heard first. The representative stated that the judge had referred to a policy which required this order of evidence in CVP hearings (the panel judge accepted it was possible she used the term 'policy'). On review, the STJ decided that there was a clear error of law: if the justification for the direction on the order of evidence included reference to a policy, whether that was intended to convey a tribunal wide policy or a policy specific to this judge it would constitute an unlawful fetter of the tribunal's discretionary powers. There is no policy that patients must give evidence first in CVP hearings.
  • 13/10/22
    : Case (Covert medication - closed proceedings). Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44 — "This case concerns closed proceedings at which the Court of Protection has authorised the covert administration of hormone treatment to a young woman without the knowledge of her family. A is the subject of these proceedings. B is her mother. This judgment is published as a single judgment but Part One follows a closed hearing on 15 September 2022, to which B was not a party, on the Trust’s application in relation to the covert medication of A. Part Two follows an open hearing involving all parties on 20-22 September 2022. Given my decisions (i) to approve the continuation of covert medication but (ii) to end the closed proceedings and to inform B of the covert treatment of A, I circulated my draft judgment in Part One to all parties’ representatives during the open hearing. B was then made a party to the Trust’s application and the closed proceedings bundle of documents was disclosed to her. At the open hearing I gave oral rulings on the next steps in the proceedings, contact, and reporting restrictions, and informed the parties that I would prepare a written judgment on those issues. I then circulated my full draft judgment. This judgment, approved for publication in anonymised form, includes both the closed and open judgments. The paragraph numbering is consecutive over the two parts."
  • 08/10/22
    : Future of CPA. NHS England, 'Care Programme Approach: NHS England position statement' (v2.0, 1/3/22) —"The Community mental health framework replaced the Care Programme Approach (CPA) for community mental health services. It enables services to shift away from an inequitable, rigid and arbitrary CPA classification and bring up the standard of care towards a minimum universal standard of high-quality care for everyone in need of community mental healthcare."
  • 06/10/22
    : Event. Event:MHLA: Panel Course (online, 13-14 October 2022) —The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s accreditation scheme. The booking deadline has been extended to 9am on 10/10/22. Cost: £300 (member), £390 (non-member), £270 (group discount). See MHLA website for further details and booking information.
  • 05/10/22
    : Return to face-to-face hearings. Mental Health Tribunal, 'Update on face-to-face pilot' (27/9/22) —Updated tribunal forms should be used between 3/10/22 and 6/11/22 inclusive: T110A (s2 applications), T110 (non-s2 applications), T111A (s2 references), T111 (non-s2 references), T116 (guardianship appeals), T128 (CTO attendance), T129 (PHE). The forms will be updated again from 7/11/22 when the pilot expands to include s2 cases.