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Recent updates on website

For details of recent news items, please see the MHLO updates forum category.

  • 18/07/25
    (1800)
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 152, July 2025) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: what to do when an advance decision to refuse treatment may be in play, and the consequences of the gaps between services for those with disordered eating; (2) In the Property and Affairs Report: capacity in the rear view mirror: how does the presumption work?; (3) In the Practice and Procedure Report: disclosing position statements to observers; habitual residence, moving jurisdictions and ‘lawful authority;’ and the impact on P of being assessed; (4) In the Mental Health Matters Report: progress of the Mental Health Bill and the tort consequences of a finding of Not Guilty by Reason of Insanity; (5) In the Children’s Capacity Report: a depressing snapshot from the national DoL court, human rights of children in the social care system and capacity and gender-affirming treatment; (6) In the Wider Context Report: the Oliver McGowan statutory learning disability and autism training, and the pitfalls of facilitated communication (7) In the Scotland Report: joint attorneys in dispute: appropriate remedies and; “If at first you don’t succeed ...”: res judicata in tribunal proceedings."
  • 03/07/25
    (2128)
    : Case (No complaint without consent). West Sussex County Council (24 017 091) [2025] MHLO 15 (LGSCO) — Ombudsman's summary: "We will not investigate this complaint about the Council’s response to safeguarding and other actions relating to Mrs X’s mental capacity assessment. This is because we do not have consent from Mrs X to investigate, and nor do we believe Mrs Y can make a complaint about these actions, on Mrs X’s behalf, as her representative."
  • 30/06/25
    (1904)
    : Ill-treatment by care worker. Aidan Rednedge, 'Moment cruel carer throws dementia-stricken pensioner, 88, around 'like a rag doll' and threatens to 'flog him' days before he died' (Daily Mail, 30 June 2025) — Bilikesu Olagunju pleaded guilty to one count of ill-treating or wilfully neglecting an individual while acting as a care worker, under s20 Criminal Justice and Courts Act 2015. The victim was John Attard, a frail elderly man with dementia, her first patient since entering the UK to be a carer. A hidden camera recorded her shouting at him to stand, manhandling him when he slipped, dragging him by the arm and scruff of his collar across the floor and yanking him up, making breakfast while threatening violence ("Me, I'll flog you, flog you ... Maybe I'll beat you up. I'll flog you..."), taunting him by pouring marmalade into his coffee despite knowing he was diabetic, pulling his table away, making it difficult for him to reach any of the food and spilling hot coffee on him in the process. The judge gave her a six-week prison sentence, suspended for 18 months, plus 50 hours' unpaid work, saying to her that "I accept that there was no malicious intent to your actions". The victim's son Chris Attard condemned her sentence as an insult.
  • 30/06/25
    (1405)
    : Case ("Right Care Right Person" PFD report). Sophie Cotton (Durham Constabulary) [2025] MHLO 14 (PFD) — The police refused three times to carry out a welfare check, under "Right Care Right Person" (and another time refusing a 999 call because there had been no suicide threat that day). The family then forced their own way into the home and found the deceased hanging by a ligature. The matters of concern (paraphrased) were that: the police refused to attend even when a family member was expressing the view that there was a real and immediate risk to life; the family were advised to contact mental health services who lacked power to enter locked premises; the refusal continued despite four calls and three callers (including two professional callers); the procedure for supervisor review of negative RCRP decisions causes additional delay.
  • 30/06/25
    (1018)
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 151, June 2025) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the court is not a rubber stamp for clinicians and what does it mean to represent P’s interests; (2) In the Property and Affairs Report: Professional Deputy Costs, and paying drug debts for P; (3) In the Practice and Procedure Report: capacity to conduct proceedings and the costs of inadequate disclosure; (4) In the Mental Health Matters Report: capacity to conduct Tribunal proceeding, and the independent investigation into the care and treatment of Valdo Calocane; (5) In the Children’s Capacity Report: looking at other options before using the inherent jurisdiction to authorize a deprivation of liberty; (6) In the Wider Context Report: what happens if you never had litigation capacity and new books; (7) In the Scotland Report: AWI reform and the UK Protocol on Judicial Cooperation."
  • 27/06/25
    (2106)
    : Case (Immigration). Re DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) — "Depending on the facts, a ‘person living with disability or mental ill health’ may qualify as a member of a Particular Social Group (“PSG”) either as (i) sharing an innate characteristic or a common background that cannot be changed, or (ii) because they may be perceived as being different by the surrounding society and thus have a distinct identity in their country of origin. "
  • 27/06/25
    (2059)
    : Case (Section 139 leave refused). Appiah v Leeds City Council [2022] EWHC 2546 (KB) — This judgment is not available but here is an extract from a later judgment in the case: "The claim against D1, Leeds City Council, was struck out by order of Mrs Justice Yip DBE dated 15 July 2022 on the basis that Cs should not have leave pursuant to s.139 to bring proceedings against D1 because Cs did not have an arguable claim that D1 had acted "in bad faith or without reasonable care" pursuant to s.139 MHA 1983 - see [2022] EWHC 2546 (KB)M ("the Yip judgment")."
  • 27/06/25
    (2037)
    : Case (Claim for unlawful detention etc). Appiah v Leeds City Council [2025] EWHC 1537 (KB) — The claimant patient had been detained under s3 and treated for 4 months until release by the tribunal. She sued the trust for unlawful detention, false imprisonment and ECHR breaches. Her husband claimed under Article 8 for being deprived of her company. The trust applied for the claim to be struck out (on four grounds: limitation; statement of case disclosed no reasonable grounds; abuse of process; failure to comply with court orders etc) but were unsuccessful. The trust had itself breached a court order in relation to ADR.
  • 27/06/25
    (2004)
    : MHRTW-01. Form MHRTW-01: Application Form (June 2025) — The form now has a section entitled Tribunal Hearing Format with the options being "Videoconference" and "Face to face". The form states: "If you do not state a preference your hearing will automatically default to a videoconference." This is more open than than the English form, which has a third option "I have no preference which type of hearing I have" that always results in a video hearing. The Welsh form also notes that a hearing in accordance with patient's preference cannot always be guaranteed.
  • 27/06/25
    (1042)
    : Legislation. Tribunal Procedure (Amendment) Rules 2025 — The changes to the HESC rules relate to (1) making decisions which dispose of reference proceedings without a hearing (informally called paper hearings) under Tribunal rule 35; and (2) setting aside decisions under Tribunal rule 45. The intention of the rule 35 change is to undo the 2024 amendment which accidentally applied extra safeguards for CTO patients (those being requirements that the first and at least alternate decisions thereafter be made at hearings). But an accidental side-effect of the 2025 amendment is to remove those and other safeguards from detained patients. Their safeguards now do not apply if their case either has not previously been considered by the tribunal or was last considered without a hearing (which is the reverse of what must be intended). The lost safeguards are any restrictions on repeated paper hearings (as above), the requirement to be legally represented, and the requirement that the representative state in writing: that the patient does not wish to attend or be represented; that the representative has discussed any reports or other documents provided; and that the patient has capacity to decide. (The requirement that the tribunal be satisfied of patient's capacity is possibly also part of the disapplied detained-patient safeguards.) The change to rule 45 expressly provides that the set-aside power can be exercised either on the application of a party or on the tribunal's own initiative.
  • 27/06/25
    (1016)
    : Paper reference hearing rule mistake. Tribunal Procedure Committee, 'Minutes' (6 February 2025) — The TPC was informed by the HESC DCP that the 2024 amendment tp Tribunal rule 35 introducing paper reference hearings for detained patients "had accidentally altered the Tribunal’s approach to cases involving community patients". The main change is that the first and every alternate hearing thereafter must be oral hearings. The TPC decided that this should be resolved at the earliest opportunity, subject to legal advice on potential judicial review and the Public Sector Equality Duty, and also sought "any available statistical data on the annual number of community patient cases received by the Tribunal and to provide a breakdown for: i) first reference (paper cases at 6 months), ii) reference at the three years stage and iii) the number of Section 68(7) Community Treatment Orders that had been revoked (and then back in the community)".
  • 27/06/25
    (0944)
    : T144. Form T144: Victim representations and Victim Impact Statement (v1, 06.2025) — The form has four sections: (1) Case details; (2) Representation for conditions; (3) Victim Impact Statement; (4) Hearing options; (5) Summary of reasons. Each main section explains the limited power to direct non-disclosure and allows the victim to address the rule 14 criteria (serious harm and interest of justice). The notes explain a VIS can only be used to decide whether to set conditions on a patient’s release and what those conditions should be. If victims attend ("usually over video or phone"): "they will attend remotely and the VLO will be with them. ... they must leave after the statement is read as they are not involved in the case. They cannot add anything to their statement at the hearing."
  • 26/06/25
    (1017)
    : Tribunal victim impact statements. Ministry of Justice, 'Changes to the MHT under the Victim and Prisoner Act 2024: Victim Impact Statements and the MHT' (24 June 2025) — This letter explains the introduction of victim impact statements. The statute does not distinguish between remote and face-to-face hearings but but the letter introduces the idea that victims will only be allowed to read statements to the tribunal remotely ("Where ... the victim has applied to attend the hearing (remotely) to read their VIS aloud ..."). It notes that victims should not provide views on whether the patient should be discharged, as the statement will only be considered in relation to conditions. In relation to content: "The VIS allows the victim to explain the impact the crime has had on them and provides the Tribunal with context for any discharge condition requests they make. For example, it may cover: (a) any physical, financial, emotional or psychological injury the victim has suffered and/or any treatment they may have received as a result of the crime; (b) if they feel vulnerable or intimidated; (c) if they no longer feel safe; (d) the impact on their family; (e) how their quality of life has changed on a day-to-day basis."
  • 16/06/25
    (1123)
    : Case (Caesarean). Oxford University NHS Foundation Trust v AX [2025] EWCOP 21 (T3) — "The Applicants seek urgent declarations that AX lacks capacity to make decisions about the imminent birth of her second child and that it is her best interests to undergo an elective Caesarean section with associated care and treatment."
  • 12/06/25
    (1430)
    : Case (Potentially preventable suicide). Re Pellumb Olaj (Islington Council) [2025] MHLO 13 (PFD) — The matters of concern are: "Mr Olaj had paranoid schizophrenia and had attempted to kill himself in the past, including by trying to jump from a high window on more than one occasion, but Islington Council failed to take that into account in 2020 when housing him in a sixth floor property. I heard at inquest that, in preparing for inquest (not immediately following Mr Olaj’s death), Islington has now recognised the need to take such matters into account, but I am not clear that it has mapped a way to do this for new and existing tenants."
  • 12/06/25
    (1352)
    : Case (Conditions and review of detention). Spivak v Ukraine 21180/15 [2025] ECHR 136 — Breaches of Article 3 and Article 5 arising from psychiatric detention. This extract shows how much better oral hearings in hospital are in principle compared with court or paper-based hearings held elsewhere: "The applicant did not attend any of the court hearings; each time he signed a pre-typed request for the case to be considered in his absence. According to him, he - like other patients - had been forbidden by the Dnipro hospital administration to attend the court hearings and had been forced to sign waivers of his right to participate."
  • 12/06/25
    (0933)
    : Case (Advance decision to refuse treatment). Re AB (ADRT: Validity and applicability) [2025] EWCOP 20 (T3) — "This case demonstrates difficulties that can arise when: (a) An individual who has made an ADRT does not provide it to a healthcare professional or make clear arrangements for it to be brought to the attention of clinicians in the event that they lose capacity to make decisions about their own medical treatment. (b) The authenticity, validity and applicability of an apparent ADRT are the subject of dispute amongst the individual's loved ones and family. (c) An ADRT which is the subject of dispute or doubt is not brought promptly to the attention of lawyers, Mental Capacity Act specialists, or the Court of Protection."
  • 06/06/25
    (1051)
    : MHLA panel course now hybrid — The MHLA's mental health tribunal panel course on 24-25 June 2025 will now be a hybrid event (London and online) and the booking deadline has been moved to 19 June 2025. See MHLA: Panel course (London and online, 24-25 June 2025) for details.
  • 04/06/25
    (2138)
    : Case (DOL authorisation complaint). Bath and North East Somerset Council (24 001 607) [2025] MHLO 12 (LGSCO) — Ombudsman's summary: "Mrs X complains the Council has failed to assess her sister’s needs properly and has failed to get the deprivation of her sister’s liberty authorised. The Council has delayed in reviewing her sister’s needs and in applying to have the deprivation of her liberty authorised. It also failed to ensure she received a consolidated response to all her concerns. The Council needs to apologise to Mrs X for the distress it has caused. It also needs to apply to the Court of Protection to have the deprivation of her sister’s liberty authorised and take action to improve its services."
  • 02/06/25
    (0931)
    : Event. MHLA: Panel course (London and online, 24-25 June 2025) — 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’). Originally to be held in London, it will now be held as a hybrid course (London and online). Please book as soon as possible and by 19 June 2025. Cost: £300 (members), £390 (non-members), £270 (group discount). See MHLA website for further details and booking information.

Monthly updates

The relevant month's updates, categorised and on one webpage:

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