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- 21/10/21(1251): MHT book. Neil Hickman and Christine Hutchison, The Mental Health Tribunal: An Essential Guide (Sage 2021) — Part of the Post-Qualifying Social Work Practice Series. 25% discount when bought via Sage Publishing with discount code UK21AUTHOR (see flyer).
- 20/10/21(1034): 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.
- 19/10/21(2056): Case (No Article 2 inquest for voluntary patient). R (Morahan) v HM Assistant Coroner for West London  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.
- 19/10/21(2045): Case (Caesarean section). Dartford And Gravesham NHS Trust v SEB  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.
- 19/10/21(2010): Case (Contact and marriage). Re BU  EWCOP 54 — (1) BU lacked capacity 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.
- 12/10/21(1146): Event. Black Belt Advocacy: National Advocacy Conference (online and Birmingham, 1-3 and 5 November 2021) — This conference involves 15 online sessions held on 1-3 November 2021, then six in-person special interest groups on 5 November 2021. The speakers will explore themes and topics connected to independent advocacy and human rights, and the special interest groups are designed to "dig deep" into a topic. Cost: pay what you can afford (free, £15 or £30). See Black Belt Advocacy website for further details and booking information.
- 10/10/21(2004): Case (Deprivation of liberty in own home). London Borough of Havering v AEL  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.
- 10/10/21(1953): Case (Committal for contempt of court). AB v HB  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.
- 07/10/21(1032): 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.
- 05/10/21(2119): 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.
- 05/10/21(1348): MHA book. Richard Jones, Mental Health Act Manual (24th edn, Sweet and Maxwell 2021) — Order from the Amazon or Bookshop.org affiliate links. The publishers also sell an eBook version and eBook and paperback bundle.
- 05/10/21(1023): Case (DOL of child at children's home). Nottinghamshire County Council v LH (No 2)  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.
- 05/10/21(0951): Case (Refusal to authorise DOL under inherent jurisdiction). Nottinghamshire County Council v LH (No 1)  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".
- 04/10/21(1110): 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?
- 02/10/21(2005): 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".
- 30/09/21(1127): Case (Inherent jurisdiction costs). T v L  EWHC 2147 (Fam) — The respondents sought an order that their costs, which exceeded £215,000, would be met in full by K (the vulnerable person who was the subject of the proceedings). The court made no order as to costs, the judge noting that "it is my view that no order for costs is likely to be the appropriate starting point in welfare-oriented proceedings under the inherent jurisdiction concerning a vulnerable adult".
- 30/09/21(1014): COP newsletter. Hill Dickinson, 'Court of Protection' (June 2021) — The articles are: (1) Court of Protection Cases from April 2021 to June 2021; (2) Depriving 16/17 year olds of their liberty in hospital; (3) Hot off the press: Reporting Restriction Orders; (4) The involvement of the ECHR and UN in withdrawal of treatment cases; (5) P’s right to have sex with a sex worker; (6) Are you being pro-active enough when it comes to obstetric cases?; (7) Hybrid Courts; (8) Top tips on working between in house teams and external lawyers.
- 29/09/21(0853): Event. COPPA: National Conference (online, 7/10/21) — This Court of Protection Practitioners Association conference is subtitled "The Pandemic and P". Speakers: Tim Farmer (Virtual capacity assessments); Shane Booth (The impact of Covid-19 from a client perspective); Celia Kitzinger (Remote hearings & findings of the Open Justice Project); Sheralee Ellis (The impact of Covid-19 on Investments & focus on the market moving forwards); Eliza Sharron & Alexis Hearnden (In conversation: observations during Covid-19 and the future); HHJ Hilder & Keynote Speaker Mr Justice Hayden (Judicial address). Cost: free. See COPPA website for further details and booking information.
- 24/09/21(1852): Case (Replacement of deputy). Sunil Kambli v Public Guardian  EWCOP 53 — The third panel deputy in this case sought discharge of his appointment on the same basis as the first two: a breakdown in relations with family members, particulary the father of MBR. Initially his request was refused but on reconsideration it was granted. It was not in MBR's best interests for the deputyship to continue: aspects of managing his financial affairs which should be straightforward would be drawn out and acrimonious, costs would be higher than necessary, and it would cause household stress (other considerations were the deputy's withdrawal of consent and the father's inappropriate behaviour). Rather than appoint a fourth panel deputy, two relatives were appointed despite the lack of experience and indemnity insurance: they were appointed jointly, for one accounting period initially, with £400,000 security, authority to sell property or withdraw from investments excluded, and a requirement to apply to court about any unresolved family dispute.
- 23/09/21(2058): Case (Jehovah's Witness - validity of advance decision). Re PW  EWCOP 52 — A blood transfusion would change 80-year-old PW's outlook from being at risk at any time of sudden death to the possiblity of living for another 5-10 years, but 20 years previously she had signed a proforma advance directive. The advance directive met the MCA requirements for an advance decision refusing life-sustaining treatment and was applicable to the proposed treatment. However, the Trust (supported by the PW's children but not the Official Solicitor) established on the balance of probablities that it was not valid because she had "done [something] clearly inconsistent with the advance decision remaining [her] fixed decision" (s25(2)(c) MCA 2005): she had created an LPA and requested the removal of a DNR notice, both without mentioning her advance decision, and (when lacking capacity) had expressed wishes and feelings inconsistent with the advance decision.
- 20/09/21(0939): Case (Inherent jurisdiction and money). FS v RS and JS  EWFC 63 — The 41-year-old applicant sought financial relief against his parents (who had reduced their financial support) pursuant to s27 Matrimonial Causes Act 1973, sch 1 Children Act 1989 and "that branch of the recently rediscovered inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are 'vulnerable'". His argument on the inherent jurisdiction failed: (a) his claim lay far outside its accepted paramaters; (b) it cannot be used to compel an unwilling third party to provide money or services; (c) it is ousted by any relevant statutory scheme.
- 17/09/21(1944): Case (Competence/capacity and puberty blockers). Bell v Tavistock And Portman NHS Foundation Trust  EWCA Civ 1363 — The Court of Appeal decided that the High Court should not have: (a) made a declaration about the relevant information that a child under 16 would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers; or (b) given its guidance on likely Gillick competence to give consent and, in relation to children and young people, on court involvement. The Court concluded that "applications to the court may well be appropriate in specific difficult cases, but it was not appropriate to give guidance as to when such circumstances might arise".
- 16/09/21(2001): Case (Inherent jurisdiction and unauthorised placements). Re T (A Child)  UKSC 35 — Where a child or young person meets the s25 Children Act 1989 secure accommodation order criteria but the local authority proposes to place him in an unregulated placement (either because no regulated placement is available or because his needs would be better met elsewhere) the inherent jurisdiction of the High Court may authorise his deprivation of liberty at the unregulated placement. This is despite it being a criminal offence under s11 Care Standards Act 2000 to carry on or manage a children's home without being registered.
- 15/09/21(1040): Mental Capacity Report note. 39 Essex Chambers, 'MCA update - all the capacity news that’s fit to print for July 2021' (23/7/21) — This note contains a summary of key developments in the Court of Protection and mental capacity law.
- 15/09/21(1026): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 115, September 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: capacity, silos and pigeon-holes, medical treatment dilemmas, and the limits of support; (2) In the Property and Affairs Report: LPA modernisation and help with COP1 and COP1A forms; (3) In the Practice and Procedure Report: the Court of Protection is, in fact, a court, costs updates, and insights in the future of remote hearings; (4) In the Wider Context Report: a policy round-up, the inherent jurisdiction and children, advocacy in restricted settings, and the limits on the duty to secure life; (5) In the Scotland Report: Mental Welfare Commission reports on the use of the Mental Health Act during COVID-19 and advance statements, and thoughts about SIDMA."
- 13/09/21(1007): Case (Coronavirus vaccination). A CCG v AD  EWCOP 47 — The court decided that it was it was in AD's best interests to be administered two doses of the Oxford coronavirus vaccine: the plan was for a sedative to be given, not only to sedate but also to prevent memory formation, and for a nurse to swiftly enter the room, inject him, then leave, while AD was distracted by his care team. Any booster vaccination, or any care plan involving force, would have to be considered at a future court hearing.
- 12/09/21(2023): Case (Sex and contact). A local Authority v P and CCG  EWCOP 48 — P had capacity in relation to sex, but lacked capacity in relation to litigation, residence, care and contact. The judge's letter to P included the following explanation: "Sex is a part of contact with other people but in law considered separately. Everyone was prepared to agree you could understand what decisions you and the person you have sex with have to take. However the decision about who is a person who you can trust enough to have sex with is a decision about contact and the evidence shows me that this is something you do not have understanding about."
- 12/09/21(1957): Case (Litigation capacity). Aderounmu v Colvin  EWHC 2293 (QB) — The claimant, in a negligence case against his GP, argued that the limitation period had not started to run since he had lacked capacity to conduct the litigation (alternatively that he did not obtain the requisite knowledge more than three years before issuing the claim, or that the limitation period should be disapplied by the court). The court held that the limitation period had expired but allowed the claim to proceed.
- 12/09/21(1944): Case (Capacity to access the internet and social media). Re C  EWCOP 73 — C lacked capacity to take decisions in relation to using the internet and social media: "I do not find that C can understand, retain and weigh the relevant information independently and, sadly, if the process could only really occur with the degree of supervision and prompting suggested then that would, in truth, be a fiction rather than a genuine exercise in autonomy. It would probably also be impractical in the care setting."
- 12/09/21(1051): Pre-hearing examinations. Mental Health Tribunal, 'Advice to representatives on the listing of Mental Health Tribunal hearings after 18 September 2021 and the return of PHEs' (Sarah Johnston, 9/9/21) — (1) The tribunal will begin to obey the rules again after 18/9/21 when Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21) expires: "PHE’s in section 2 cases will return unless the patient tells us that they do not want a PHE". (2) Section 2 and community cases (C/D and CTO) will be listed in the morning, with the PHE at 0900 in the CVP room; in other cases the PHE will before the hearing date via Microsoft Teams where practicable.
- 11/09/21(2016): Case (DOL of under 16s in unlawful placements). MBC v AM  EWHC 2472 (Fam) — The Care Planning, Placement and Case Review (England) Regulations 2010 make unlawful the placement of a looked after child under the age of 16 in unregulated accommodation, but the High Court decided that its inherent jurisdiction can still authorise deprivation of liberty in that accommodation.
- 04/09/21(2135): Event. MHLA: Panel course (online, 11-13 October 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 26/9/21. See MHLA website for further details and to book online.
- 04/09/21(2125): Children in unregulated settings. David Lock, 'Looked after children and secure accommodation after 9 September' (Local Government Lawyer, 3/9/21) — This article discusses the implications of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. It notes: "The effect of the 2021 Regulations is that from 9 September 2021 a placement by a local authority in an unregulated setting is not lawful for any looked after child who is under 16 years of age. That almost certainly applies to existing placements as well as new placements. ... On 30/7/21 the Supreme Court ruled in Re T (A Child) M that the inherent jurisdiction could be used to declare that such placements, however undesirable, were lawful if they were the only practical option available to local authorities. However, it is hard to see how a placement can be declared lawful under article 5 if it is unlawful under UK domestic law." It later transpired that the inherent jurisdiction can authorise deprivation of liberty despite the placement being unlawful: see MBC v AM  EWHC 2472 (Fam).
- 04/09/21(2120): Legislation. Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 — These regulations insert new regulation 27A (Prohibition on placing a child under 16 in other arrangements) into the Care Planning, Placement and Case Review (England) Regulations 2010.
- 04/09/21(2107): Case (Serious medical treatment). Cambridge University Hospitals NHS Foundation Trust v AH  EWCOP 51 — AH was, in terms of the neurological impact and complications, "the most complex COVID patient in the world", and the central issue in the case was whether her ventilatory support should continue.
- 03/09/21(2107): DOLS failures. Local Government Lawyer, 'Council claims Ombudsman request for it to process DoLS applications within set time constraints “not possible”' (3/9/21) — This article reports Kent County Council's Corporate Director of Adult Social Care and Health as saying: "[W]e believe that it is not possible for us to comply with the [Ombudsman's] recommendations to 'ensure all current and future requests for standard authorisations are completed within prescribed timescales' and 'to provide written evidence showing that we have monitored all requests for standard authorisations post-dating the final report and completed them within the legal timeframes described in the report'. The article also notes that the Ombudsman's recommendations would be formally debated at a council committee, and that Kent had agreed to apologise to the complainant and pay him £500 for his distress.
- 03/09/21(2055): Ordinary residence and s117. DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 27/8/21) — This guidance was updated after the Court of Appeal gave permission to appeal the High Court's decision on s117 aftercare in R (Worcestershire County Council v SSHSC  EWHC 682 (Admin). See DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20) (the original guidance) for a summary.
The relevant month's updates, categorised and on one webpage: