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For details of recent news items, click on the relevant link below.
- 28/07/21(2216): Job advert. Abbotstone Law, London - Court of Protection solicitor (deadline 13/9/21). See Jobs
- 28/07/21(2213): Job advert. Abbotstone Law, London - Mental Health Consultant Solicitors (deadline 13/9/21). See Jobs
- 20/07/21(2032): Response to MHA review. SSHSC, LC and SSJ, 'Reforming the Mental Health Act: Government response to consultation' (CP 501, July 2021) — The easy-read version contains the following headings: Introduction; Four principles; Reasons for keeping people in hospital; Your right to go to a tribunal; People who have gone back into hospital; Giving tribunals more power; Hospital manager’s panel hearings; Choosing your care and treatment; Making sure your choices are listened to; Care and treatment plans; Refusing treatment; Asking a tribunal to stop your treatment; Agreeing to go into hospital; Nominated person; Advocacy; The Mental Capacity Act; Accident and emergency departments; Going to a mental health hospital from prison; People who have been in trouble with the law; The Social Supervisor; People with a learning disability and autistic people; People with a learning disability who get into trouble with the law; Care (Education) and Treatment Reviews; The Care Quality Commission (CQC); Community Treatment Orders (CTOs).
- 12/07/21(2003): Short case law summaries. Aasya Mughal and Steven Richards, 'MHA and MCA case law summary sheet' (Edge Training, June 2021) — This five-page document contains short summaries of cases under the following headings: (1) surgery; (2) covert medication; (3) pregnancy and caesarean section; (4) mental capacity to consent to admission or accommodation; (5) anorexia nervosa - MHA or MCA? (6) use or weigh information; (7) personality disorder; (8) religious delusions and mental capacity; (9) sexual relations; (10) fluctuating capacity; (11) self-neglect; (12) DoLS for the objecting patient in a care home, and prescription of clozapine; (13) alcohol use and the MCA; (14) 17 year old in hospital and neither MHA or DoLS apply; (15) dialysis as a treatment for mental disorder under the MHA; (16) Mental Health Act or DoLS when admitting a person to a MH hospital; (17) Leave of absence (MHA) and DoLS; (18) Guardianship and DoLS; (19) Community Treatment Orders (CTO) and DoLS; (20) Conditional Discharge and DoLS.
- 12/07/21(1934): DOLS case law summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards - case law summary' (Edge Training, July 2021 edition) — This five-page document summarises selected domestic and European caselaw on deprivation of liberty.
- 12/07/21(1916): Event. PELT: Advanced course for Mental Health Act Administrators (online, 24/11/21) — "This course is specifically for MHAA’s. It enables the more experienced to get together and learn and share skills using an evidence base approach in order to fulfil your statutory and non statutory duties as MHAAs on behalf of hospital managers. The course will include an update on recent legal developments which impact on the role of the MHAA." Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
- 12/07/21(1914): Event. PELT: Introduction to COP, including s21A appeals (online, 22/11/21) — "The Court of Protection addresses issues not only of finances but also where deprivation of liberty safeguards and procedures are authorised or challenged, disputed capacity issues are resolved, and where arguments about adult protection and best interests are determined. It is essential that all those working with vulnerable people / safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court. The course will include updates relating to appeals against Liberty Protection Safeguards if implementation is imminent." Speaker: Peter Edwards. Cost: £125 + VAT (£150). See PELT website for further details and booking information.
- 12/07/21(1913): Event. PELT: Sex, marriage and relationships (online, 1/11/21) — "Most of us have the right to make unwise decisions. However, in the murky and untidy world of incapacity, life is not like that. The MCA is clear, if you lack capacity to engage in sexual relations, that is it, you cannot do it. Even if you have been married to that person for 60 years. The Court of Protection has been grappling with this thorny subject for many years. There are also many related aspects." Speaker: Peter Edwards and Ben McCormack. Cost: £125 plus VAT. See PELT website for further details and booking information.
- 12/07/21(1911): Event. PELT: Getting ready for Liberty Protection Safeguards (online, 24/9/21) — "Although LPS are due to be implemented perhaps in April 2022, there much is to be done before then. Some provisions, covering new roles and training, will come into force ahead of that date." Speakers: Peter Edwards and Lorraine Currie. Cost: £125 + VAT (£150). See PELT website for further details and booking information.
- 09/07/21(1027): Tribunal guidance on references, Tribunal guidance on references. Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) — The DHSC has agreed to make an urgent reference on the day of a hearing when the tribunal find that the patient lacked capacity to make the application but the hearing should go ahead., The DHSC has agreed to make an urgent reference on the day of a hearing when the tribunal find that the patient lacked capacity to make the application but the hearing should go ahead.
- 09/07/21(1008): Devon case tribunal guidance. Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21) — If tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application. The guidance focusses on the patient making an application, rather than seeking a reference to preserve the right to make a later application (see Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) for the ability to seek an urgent reference in another context), or the argument mentioned in this forum topic that the changed section could be treated in the same way as other changes of status.
- 04/07/21(2107): Escape fee guidance. Legal Aid Agency, 'Guidance for electronic submission of Escape Case Claims' (13/5/21) — Electronic submission of escape fee claims will be possible, though not mandatory, after the coronavirus restrictions are removed. From 21/6/21 the LAA will require file notes for all items of 1 hour or more. The guidance sets out the requirements and procedure.
- 30/06/21(2124): Job advert. Burke Niazi, London - Court of Protection solicitor (listed until 30/9/21). See Jobs
- 30/06/21(2124): Job advert. Burke Niazi, London - Mental health solicitor (listed until 30/9/21). See Jobs
- 30/06/21(2105): Solicitors' ethics guidance. SRA, 'Guidance: Confidentiality of client information' (25/11/19) — Paragraph 6.3 of the SRA Code of Conduct states: "You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents." There are no exceptions. Instead of rectifying this deficiency in the rules, the SRA published this guidance (on 5/2/16, updated 25/11/19). Before setting out some scenarios, it states: “[I]n the situations described although there will be a breach of your duty, from a disciplinary point of view, the justification will be taken into account and is likely to mitigate against regulatory action by the SRA.” The scenarios are set out under the headings following headings: (a) Where a client has indicated their intention to commit suicide or serious self harm; (b) Preventing harm to children or vulnerable adults; (c) Preventing the commission of a criminal offence.
- 26/06/21(2014): Job advert. Hill Dickinson LLP, Manchester - Healthcare Advisory Associate (listed until 24/9/21). See Jobs
- 24/06/21(2058): Contributors page updated — The contributors page has been updated (and now uses a database to simplify keeping it up to date). If you have anything previously unpublished, especially a court or tribunal decision, then please send it in. You can remain anonymous if you prefer! See Contributors.
- 24/06/21(2056): New database search forms — Search forms have been added on the following pages: (1) Mental health case law; (2) Legislation; (3) Resources; (4) 39 Essex Chambers Mental Capacity Law Newsletter. Please try them out and let me know how you find them.
- 24/06/21(0917): Event. MHLA: Legal Aid supervision (online, 6/8/21) — This course covers the supervisor standards and procedures, and provides guidance and advice on how to supervise effectively and in line with contractual obligations. Cost: £120 (MHLA members); £160 (non-members). See MHLA website for further details and booking information.
- 24/06/21(0915): Event. MHLA: Legal Aid supervision (online, 2/7/21) — This course covers the supervisor standards and procedures, and provides guidance and advice on how to supervise effectively and in line with contractual obligations. Cost: £120 (MHLA members); £160 (non-members). See MHLA website for further details and booking information.
- 19/06/21(1344): Case (Caesarean - severe criticism of Trust). University Hospitals Dorset NHS Foundation Trust v Miss K  EWCOP 40 — (1) The application should have been made significantly earlier than the day before the proposed caesarean, and judicial criticism of delay felt like "a waste of breath" as it had been made so often. The OS had been instructed the same day, and was unable to form a view on best interests, rendering her role effectively a "tick box exercise". (2) The OS was "appalled" at the evidence of the consultant obstetrician, who decided that Miss K had capacity on 10/6/21 when she chose a caesarean on the basis that she could hold and keep safe her baby earlier, when in fact it had been decided on 20/5/21 that the local authority would take the baby so that when she woke up there would be no baby. (3) The court decided that a planned caesarean, having been taken from PICU to obstetric unit by force if necessary, was in Miss K's best interests. In the event no force was necessary.
- 15/06/21(1948): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 114, June 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: substance over form in DoLS authorisations, complex questions of coercion in medical treatment, and the limits of fluctuating capacity in the context of sex; (2) In the Property and Affairs Report: a brisk dismissal of an attempt to appeal a judgment of Senior Judge Hilder about charging by a deputy, and easy read guides to making LPAs; (3) In the Practice and Procedure Report: an important rapid consultation on hearings and the judicial view of remote hearings; (4) In the Wider Context Report: the CPR responds to vulnerability, strengthening the right to independent living, capacity in the rear view mirror and the ECHR and the CRPD at loggerheads; (5) In the Scotland Report: the Mental Welfare Commission on hospital discharges, change at Scottish Government (but how much) and welfare guardianships and deprivation of liberty."
- 15/06/21(1944): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 113, May 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a judgment looking beyond the diagnosis, paying for sex and the Court of Protection, navigating autism and indoctrination and relevant updates about visiting guidance in relation to care homes; (2) In the Property and Affairs Report: a staunch judicial defence of Banks v Goodfellow, Child Trust Funds and capacity, and updates from the OPG; (3) In the Practice and Procedure Report: discharging a party without notice, the white leopard of litigation capacity and CoP statistics; (4) In the Wider Context Report: DNACPR decisions during COVID-19, litigation capacity in the civil context, and the interaction between capacity and the MHA 1983 in two different contexts; (5) In the Scotland Report: the new Mental Welfare Commission practice guidance on capacity, rights, and sexual relationships. Our Scottish team has been too busy making law in different countries to write more this month, but will bring updates next month about legislative developments on the cards as the new Scottish administration finds its feet."
- 11/06/21(2115): Family and COP consultation. Courts and Tribunals Judiciary, 'Launch of two-week rapid consultation on remote, hybrid and in-person hearings in the family justice system' (consultation from 10/6/21 to 27/6/21) — Consultation by Nuffield Family Justice Observatory (NFJO) at the request of the President of the Family Division: "This third survey will focus specifically on recovery; identifying good practice from remote and hybrid hearings and providing an evidence base to assist with the decisions regarding future ways of working, as we return to court."
- 10/06/21(1301): Case (DOLS scrutiny). Re YC  EWCOP 34 — "This appeal raises an important question about how supervisory bodies should evidence their scrutiny of requests for authorisation of deprivation of liberty."
The relevant month's updates, categorised and on one webpage: