Updates
You can receive these updates by email: see Email updates.
Recent updates on website
For details of recent news items, please see the MHLO updates forum category.
- 04/10/24(1121): DOL guidance. Law Society, 'Identifying a deprivation of liberty: a practical guide' (18/3/24) — The guidance applies the legal framework, including considerations relating to those under 18, to different settings: hospitals; psychiatric care; care homes; supported living/shared lives/extra care; at home; palliative care and hospices.
- 04/10/24(1045): Capacity assessment. Alex Ruck Keene et al, 'Guidance note: Relevant information for different categories of decision' (39 Essex Chambers, May 2024) — "This guidance note sits alongside our guidance note on carrying out and recording capacity assessments, and is designed to assist social workers and those working in frontline clinical settings when they asked to consider a person’s capacity to make a decision or decisions. As set out in our guidance note, the courts have now applied the MCA 2005 in respect of very many types of decision. In the course of doing so, they have given indications as to what they consider to be relevant (and sometimes irrelevant) information for purposes of those decisions – i.e. what the person must be able to understand, retain, use and weigh to able to make the decision. This guidance note pulls together the guidance given in relation to some of the most common decisions that are encountered in practice in the context of health and welfare matters."
- 02/10/24(1303): Report on MH Bill. Joint Committee on the Draft Mental Health Bill, 'Draft Mental Health Bill 2022: Report of Session 2022-23' (HC 696, HL Paper 128, 11/1/23) — Key recommendations: "(1) Creation of a new statutory Mental Health Commissioner post. (2) The Principles underpinning the 2018 Review and respect for racial equality should be included in the Bill. (3) Health organisations should appoint a responsible person to collect and monitor data on detentions under the MHA, broken down by ethnicity, with annual figures published by Government, and to implement policies to reduce inequalities. (4) Community Treatment Orders are used disproportionately for black and ethnic minority patients and should be abolished for the majority of patients, except those involved in criminal proceedings or under sentence where their continued use should be reviewed. (4) Strengthened duties for Integrated Care Boards and Local Authorities to ensure adequate supply of community services for people with learning disabilities and autistic people to avoid long-term detention. (5) Patients detained or previously detained under the MHA should have a statutory right to request an advance choice document is drawn up"
- 02/10/24(1212): UT case summary. Roger Pezzani and Alex Schymyck, 'Upper Tribunal provides important guidance on proceeding without aftercare evidence' (Garden Court Chambers, 17/11/23) — Extract from this summary of SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC): "(1) The Tribunal should adjourn to obtain aftercare evidence where it is capable of affecting the the outcome of the hearing. AM was a relatively unusual case where aftercare evidence was not capable of affecting the outcome. (2) It is procedurally unfair to refuse an adjournment request from a patient where the detaining authority has failed to provide relevant evidence such as that addressing aftercare. (3) The Tribunal must not 'kick the can down the road' and leave matters to be resolved by a future Tribunal. Procedural fairness applies at each stage of the process and an unfair Tribunal hearing cannot be cured by the possibility of a future hearing."
- 01/10/24(2148): Event. MHLA: 25th Annual Conference (Bristol, 15/11/24) — Confirmed speakers include: Najmus Madarbux (Legal Aid Agency); Sarah Johnston (DCP); Dr Alexander Hamilton (consultant forensic psychologist); Tam Gill; Dr Laura Janes. Full programme to be announced. Chairman: Neil Cronin. Cost: £160 (member); £145 (group discount); £230 (non-member). See MHLA website for further details and booking information.
- 01/10/24(2144): Event. MHLA: Panel course (London, 4-5 November 2024) — 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 (formerly called the ‘panel’). Cost: £270 (members), £390 (non-members), £270 (group discount). See MHLA website for further details and booking information.
- 01/10/24(2057): Case (Change in status - C/D to recalled). AC v Southern Health NHS Foundation Trust [2024] UKUT 297 (AAC) — An application to the tribunal was made by a conditionally discharged patient. The tribunal lost its jurisdiction on the application when the patient was recalled.
- 01/10/24(1346): Annual CQC report on MHA. CQC, 'Monitoring the Mental Health Act in 2022/23' (23/3/24) — "This report sets out CQC’s activity and findings during 2022/23 from our engagement with people who are subject to the Mental Health Act 1983 (MHA) as well as a review of services registered to assess, treat and care for people detained using the MHA."
- 01/10/24(1301): Case (Sentencing following CQC prosecution). R v Priory Healthcare Limited [2024] MHLO 2 — Priory Healthcare Limited was fined £650,000 and ordered to pay £43,672 costs and £180 victim surcharge. Matthew Caseby, a patient in Priory Hospital Woodbourne, had climbed a fence and died after being hit by a train.
- 01/10/24(1251): CQC prosecution. CQC, 'Priory Healthcare Limited ordered to pay £693,852 after failing to provide safe care and treatment to Mr Matthew Caseby' (12/3/24) — Priory Healthcare Limited was fined £650,000 and ordered to pay £43,672 costs and £180 victim surcharge.
- 27/09/24(2121): Case (Termination of litigation friend appointment). Major v Kirishana [2023] EWHC 1593 (KB) — Appeal against refusal to order termination of litigation friend appointment.
- 27/09/24(2052): DOL Court data. Nuffield Family Justice Observatory, 'National deprivation of liberty court: Latest data trends' (June 2023) — "This briefing highlights high-level data trends during the full 12 months of the court pilot."
- 27/09/24(2001): National DOL list. President of the Family Division, 'Revised national listing protocol for applications that seek deprivation of liberty orders relating to children under the inherent jurisdiction' (September 2023) — "Following the conclusion of the initial pilot scheme in July 2023 and the extensive consultation with judges and other stakeholders which followed, the organisation and listing of DoL orders relating to children under the inherent jurisdiction is being revised. The National DoL Court will no longer operate under that title. In future, all initial applications will be dealt with as part of the National DoL List ('NDL') which will continue to be overseen as part of the work of the Family Division."
- 25/09/24(2116): MHA book. Richard Jones, Mental Health Act Manual (27th edn, Sweet and Maxwell 2024) — The MHA book.
- 25/09/24(2110): Event. Browne Jacobson: Mental health and capacity forum - case law update (online, 5/11/24) — Specifically designed for professionals in health and social care, this session will cover significant recent cases related to mental health, mental capacity and deprivation of liberty. Speakers: Victoria Colclough, Julia Catherall. Time: 9.30am to 10.30am. Cost: free. See Browne Jacobson website for further details and booking information.
- 21/09/24(2034): Event. Blake Morgan: Mental Health & Capacity Matters (online, 10/10/24) — The firm's annual review of mental health and mental capacity law. Speakers: Eve Piffaretti, Tina Whitman, Daniel Taylor. Cost: free. Time: 10am - 11am. See Blake Morgan website for further details and booking information.
- 11/09/24(1212): Event. PELT: Becoming a Mental Health Act Administrator - the Basics (online, 23/10/24) — The course is designed to equip new or less experienced MHAAs with the tools to do their job effectively. It will assume little or no knowledge of the MHA. Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 11/09/24(1210): Event. PELT: Introduction to the MHA, Code and Tribunals (online, 30/10/24) — The basic course is for all those who need an understanding of the MHA and Code and how it works in practice. It is aimed at all those whose work involves working with those detained, or who may be detained, under the MHA. Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 11/09/24(1209): Event. PELT: Introduction to MCA and Deprivation of Liberty (online, 6/11/24) — Intensive introduction to all those who need a basic understanding of the MCA and DOLS. Identifying the ‘decision maker’ as the person responsible for the outcome of that particular decision is the key to lawful decision making on behalf of those who lack capacity. Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 11/09/24(1208): Event. PELT: Introduction to COP, including s21A appeals (online, 13/11/24) — The Court of Protection has a very wide ambit potential touching the lives of many vulnerable people. DoLS and procedures are authorised or challenged and where arguments about capacity or adult protection and best interests are resolved. It is essential for those working with vulnerable people/safeguarding. Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 11/09/24(1206): Event. PELT: Masterclass for MHA Administrators (online, 20/11/24) — This course assumes basic knowledge and experience and will examine the many demands of job and provide some effective and legal coping mechanisms. The course will enable a group of experienced MHAAs to get together and share both the demands of the job and some solutions. Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 11/09/24(1205): Event. PELT: MHA Masterclass (online, 27/11/24) — This course will allow practitioners to reflect and update their practice by ensuring they have an up to date understanding of the law. The contents of the course will be up to date and reflect any changes or significant developments which affect lawful practice. To include relationship between MHA and DoLs. Speaker: Peter Edwards. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 11/09/24(1201): Event. PELT: Court of Protection and MCA Masterclass (online, 3/12/24) — Reviews recent developments in Court of Protection cases. It will include the latest CoP cases on deprivation of liberty, capacity, health and welfare, legal aid and treatment and what practitioners can learn from these cases that will promote effective and lawful MCA practice. Speakers: Peter Edwards; Sophy Miles, Deputy District Judge of the Court of Protection. Cost: £125 plus VAT (£150). See PELT website for further details and booking information.
- 08/09/24(2010): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 143, September 2024) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal on belief and capacity, and both sexual and medical complexities before the courts; (2) In the Property and Affairs Report: a guest post updating deputies and attorneys on important responsibilities; (3) In the Practice and Procedure Report: which decisions are for doctors, and which for the courts; jury-rigging Article 5(4) compliance in community DoL cases, and transparency under the spotlight; (4) In the Mental Health Matters Report: a Mental Health Bill on the way, the hard edges of the MHA 1983 and the CQC and Valdo Calocane; (5) In the Wider Context Report: the limits of Article 3 in the context of the inherent jurisdiction, the CQC and covert medication and Lord Falconer’s Assisted Dying Bill; (6) In the Scotland Report: the Scottish Government consults on legislative measures to respond to the Scott Review and a report from the World Congress on Adult Care and Support."
- 08/09/24(1242): Case (Nursing care home - functions of public nature). Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB) — The patient died while in a nursing care home operated by the first defendant. The claimant sought damages for clinical negligence and false imprisonment, and under s7 HRA 1998. The High Court struck out the HRA claim (and alternatively would have granted the first defendant summary judgment) as the first defendant was not a public authority or exercising a public function. The House of Lords decision in YL, that a private care home was not performing functions of a public nature had been overidden by Parliament in certain circumstances (by s145 Health and Social Care Act 2008 and now s73 Care Act 2014) but those circumstances did not apply in this case: the "absence of any special statutory power" (since this patient had been unlawfully deprived of his liberty without DOLS authorisation) was an "important factor" in that decision! The Article 2 claim would have been struck out in any event as the required "very exceptional circumstances" required before the State could become responsible for the acts and omissions of health care providers were not present.
- 02/09/24(1449): Case (Section 117 reimbursement). Kent County Council (23 012 780) [2024] MHLO 1 (LGSCO) — The council (having initially ignored a complaint) repaid £114,721.36 which had wrongly been charged between 2002 and 2021 and (having initally paid no interest) agreed to pay £17,368.50 interest, and was directed to pay £700 to remedy distress and £300 to acknowledge the time and trouble pursuing the complaint.
- 02/09/24(1408): Case (Capacity and Article 14 other status). Dudley Metropolitan Borough Council v Mailley [2023] EWCA Civ 1246 — This housing law case considered capacity and "other status" in an Article 14 discrimination claim.
- 02/09/24(1127): Mental health Legal Aid form. Legal Aid Agency, 'Form CW 1&2 MH' (v20, September 2024) — The LAA website update dated 1/9/24 states: "CW1&2 MH and CWC MH updated to reference the 2024 Standard Civil Contract." Note that para 3.12 of the 2018 Standard Civil Contract Specification states: "We may amend the Application Forms from time to time upon giving at least 28 days' notice to you." At the very least (if the website update counts as contractual notice) they will have to accept the old version for 28 days after 1/9/24.
Monthly updates
The relevant month's updates, categorised and on one webpage: