September 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 September 2020 update for a thematic summary of these changes.
- 29/09/20(2209): Case (Public hearing and capacity). AR v West London NHS Trust  UKUT 273 (AAC) — (1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points.
- 26/09/20(0859): Medical treatment book. Ben Troke, A Practical Guide to the Law of Medical Treatment Decisions (Law Brief Publishing, 2020) —This book is aimed not only at lawyers, but also clinicians and anyone with an interest in how medical treatment decisions are made.
- 25/09/20(1949): ASC winter plan. DHSC, 'Adult social care: our COVID-19 winter plan 2020 to 2021' (18/9/20) —"Here we set out the key elements of national support available for the social care sector for winter 2020 to 2021, as well as the main actions to take for local authorities, NHS organisations, and social care providers, including in the voluntary and community sector."
- 25/09/20(1929): Coronavirus care home visiting guidance. DHSC, 'Update on policies for visiting arrangements in care homes' (updated 21/9/20) —"Directors of public health and care providers should follow this guidance to ensure policies for visiting arrangements and decisions are based on a dynamic risk assessment and minimise risk wherever possible." The only difference between this and the 31/7/20 version of the page is the addition of the following text to the top of the page: "For the latest care home visiting guidance please see the Adult social care: coronavirus (COVID-19) winter plan 2020 to 2021. This guidance will be updated shortly."
- 23/09/20(2100): Event. MHLA: Panel course (online, 12-14 Oct 2020) —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.
- 19/09/20(2138): Tribunal coronavirus Practice Direction. Amended General Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) —This extends Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20), with some amendments, until 18/3/21. Superseded by: Amended General Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (18/3/21).
- 19/09/20(2117): Coronavirus tribunal composition (non-MH). Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) —This Practice Direction states that it applies to all appeals and applications within the First-tier and Upper Tribunal, except in mental health cases; however, the appointment of single judges under Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20) is said to be made under this PD. It extends Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) until 18/3/21 with some amendments. Superseded by: Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (18/3/21).
- 19/09/20(2102): FAQs about HESC hearings. Courts and Tribunals Judiciary, 'Frequently asked questions about hearing arrangements during the coronavirus pandemic - July 2020' (published August 2020) —There are FAQs about technology, hearings and mental health tribunals. (1) The technology questions are: (a) What is Kinly CVP? (b) How do I prepare for a Kinly CVP video hearing? (c) Can I test my connection beforehand? (d) I can’t connect to Kinly CVP from my laptop/computer. What do I do? (e) What browser is best for Kinly CVP on my laptop or PC? (f) Can I use a smartphone? (2) The hearings questions are: (a) What if I want a friend to support me at the hearing? (b) What if my hearing requires interpreters or British Sign Language (BSL) interpreters? (3) The mental health questions are: (a) I would prefer to have a face to face hearing; can this be arranged? (b) I want to see the tribunal doctor before the hearing - can this be arranged? (c) I am a community patient and I cannot afford to join the hearing; (d) I need a full day’s hearing; (e) I have had my case referred to the Tribunal but I don’t want to contest it. What should I do? [Unrepresented patients referred to the tribunal "should contact the HMCTS ... and let them know that you are not contesting"!]; (f) Are the hearings private? (g) How will I be given the decision?
- 19/09/20(2054): MHT guidance for patients. Mental Health Tribunal, 'Help for Users' (updated, 28/7/20) —This document was updated to reflect the situation as it was in July 2020. It mentions that "those cases that are listed for paper hearings under the usual procedures or cases where the patient has indicated through his or her solicitor that the detention is not contested ... are likely to be heard by a judge alone on the papers".
- 19/09/20(2041): MHT video hearing guidance. Mental Health Tribunal, 'Video Hearing Guidance for Participants in Mental Health Tribunals' (24/8/20) —This document contains the following headings: (1) To connect; (2) The hearing; (3) At the end of the hearing; (4) The written decision.
- 19/09/20(1954): Mental Health Tribunal coronavirus Practice Direction. Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) —This extends Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20) until 18/3/21, with two amendments: (1) instead of "a judge alone shall make every decision unless the Chamber President [etc] considers it to be inappropriate in a particular case..." the new wording is "the provisions of the Composition Statement that apply to mental health cases shall be amended to include that a judge alone may make any decision (including decisions that dispose of proceedings) as directed by the Chamber President, Deputy Chamber President or an authorised salaried Judge in accordance with Amended Pilot Practice Direction: Panel Composition In The First-Tier Tribunal And The Upper Tribunal."; (2) instead of "it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place" the new wording is "it shall be deemed not practicable under rule 34 of the 2008 Rules for any pre-hearing examinations to take place, unless the Chamber President [etc] direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre hearing examination to take place, having regard to the overriding objective and any health and safety concerns. ...". Superseded by: Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21)
- 15/09/20(2034): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 107, September 2020) —"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated MCA/DoLS guidance, the anorexia Catch-22, and two important cases on deprivation of liberty; (2) In the Property and Affairs Report: remote witnessing of wills, professional deputy remuneration and the OPG annual report; (3) In the Practice and Procedure Report: CoP statistics, short notes on relevant procedural points and the UN principles on access to justice for persons with disabilities; (4) In the Wider Context Report: the NICE quality standard on decision-making and capacity, litigation friends in different contexts, and a guest piece giving a perspective on living with a tracheostomy and a ventilator; (5) In the Scotland Report: the human rights blind spot in thinking about discharge from hospital in the context of COVID-19.
- 14/09/20(2038): MHT video hearing guidance. Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20) —This document contains information under the following headings: (1) Before the hearing; (2) Listing hearings; (3) PHEs [see comments]; (4) Uncontested References where patients do not want to attend a hearing [see comments]; (5) Connecting to a video hearing; (6) The hearing; (7) At the end of the hearing; (8) The written decision.
- 05/09/20(2048): Missing pages from Gostin book uploaded. Thanks to Richard Jones for sending the missing pages C21-24. Now the online version of the book is complete. See Larry Gostin, Mental Health Services: Law and Practice (Shaw & Sons, supplement issue no 18, June 2000).
- 03/09/20(2222): Case (Remote pre-hearing examinations are practicable). Re C  MHLO 48 (FTT) — (1) A salaried tribunal judge initially refused to allow a pre-hearing examination (PHE) because the coronavirus Pilot Practice Direction states: "During the Covid-19 pandemic it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place, due to the health risk such examinations present." (2) Having treated the rule 46 application for permission to appeal as a rule 6 challenge, a different salaried tribunal judge decided that: (a) the practice direction is subordinate to the rules and overriding objective; (b) in video-enabled hearings with a full panel a PHE is practicable by that means; (c) hearings and PHEs should be conducted remotely as, even if the hospital would allow access, the tribunal will not put its members at risk of contracting or spreading coronavirus; (d) in this case, the PHE would take place by video link on the morning of the hearing. [First-tier Tribunal decisions are not binding.]