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Recent updates on website

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

  • 18/05/25
    (2122)
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 150, May 2025) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: new and updated guidance notes; (2) In the Practice and Procedure Report: naming clinicians (and other professionals), and cross-border deprivation of liberty; (3) In the Mental Health Matters Report: Section 63 MHA 1983 and diabetes, and the Mental Health Bill progresses to the Commons; (4) In the Children’s Capacity Report: the Court of Appeal explains why local authorities cannot consent to the confinement of children in their care; (5) In the Wider Context Report: the other party’s interest in litigation capacity, how far landlords are supposed to go in hoarding cases, and a new Convention on the rights of older adults on the cards? (6) In the Scotland Report: AWI reform update and cross-border deprivation of liberty – Scottish reflections what is appealable in the AWI context."
  • 16/05/25
    (1035)
    : Contract management guidance. Legal Aid Agency, 'Contract management: mental health guidance' (v5, 1 September 2024) — The version history states that the changes made since v4 (20 March 2023) are: "Amended to include a new provision under alternative arrangements. Designated Accredited Representatives has been removed as a provision from the mental health specification. Reference to advocacy before the Mental Health Tribunal (MHT) has been added."
  • 15/05/25
    (1203)
    : Case (Discharge of rule 11(7)(b) appointments). KH v Nottinghamshire Healthcare NHS Foundation Trust [2025] UKUT 128 (AAC) — (1) In KH's case the representative asked for the rule 11(7)(b) appointment to be discharged on the basis that the patient had capacity and objected. The tribunal's reasons for refusing were inadequate: it was not clear that the RC or the tribunal had applied the appropriate capacity test; 2. using the words "As such..." following a recitation of the conflicting evidence on capacity was insufficient in the absence of any analysis or evaluation; no reasons were given on best interests; no thought was given to the potential for causing distress by imposing an unwanted representative; there was no indication that the matter was kept under review. The decision had the unintended effect of reducing the effective participation of the patient, as he could not cross-examine and it appeared that neither did the representative. (2) In AH's case the tribunal did discharge the appointment, on the basis of objection and distress, but its reasons were inadequate because it failed to consider whether the patient might regain capacity with support and whether an adjournment might achieve greater participation. An adjournment cannot be used to see whether improvement will increase chances of discharge, but can be to facilitate ability to participate meaningfully. (3) In each case it could not be said with confidence that the outcome would otherwise have been the same, so the error was material and the appeal allowed.
  • 14/05/25
    (2125)
    : Case (PB release set aside). Re Griffiths [2023] PBSA 24 — The Parole Board had directed the release of a s47/49 patient. The Secretary of State applied for the decision to be set aside, and was successful on the basis of new information which demonstrated a change in circumstances since the direction for release.
  • 12/05/25
    (1029)
    : Case (Prosecution of independent hospital). R v Cygnet Health Care Limited [2023] MHLO 6 — Cygnet were fined £1,530,000, and ordered to pay £79,773.59 costs and £180 victim surcharge, after pleading guilty to failing to provide safe care and treatment contrary to regulations 12 and 22 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 at Cygnet Hospital Ealing. A patient had been able to kill herself while on the ward despite the hospital having been aware of her attempts to harm herself in an almost identical way four months earlier.
  • 12/05/25
    (0910)
    : Case (Non-treatment of diabetes under MHA). Nottinghamshire Healthcare NHS Foundation Trust v MC [2025] EWHC 920 (Fam) — The trust sought a declaration under the inherent jurisdiction that it would be lawful not to treat a s37/41 patient in Rampton for diabetes even if that led to his physical decline and premature death. The High Court decided that: (1) the refusal to engage with the treatment plan, and the resultant end-stage complications of diabetes, were manifestations of the patient's severe personality disorder, despite his capacity to make the unwise decisions, so treatment for diabetes would be medical treatment for mental disorder within the meaning of s63 MHA 1983; (2) it would be lawful not to impose treatment as the restraint required would raise blood pressure and risk serious complications; (3) any future urgent treatment immediately necessary to save life would have to be considered separately by the clinicians at the time.
  • 06/05/25
    (2022)
    : Case (Employment status of associate hospital managers). Lancashire and South Cumbria NHS Foundation Trust v Moon [2024] EAT 4 — Summary from beginning of judgment: "The [Employment] Tribunal had made no error of law in concluding that the claimant, who had been appointed as an Associate Hospital Manager, namely a person authorised by the board of the respondent NHS trust under section 23(6) of the Mental Health Act 1983, had been a worker under section 230(3)(b) of the Employment Rights Act 1996 and employed under a contract personally to do work, as defined by section 83(2)(a) of the Equality Act 2010, such that it had jurisdiction to consider her substantive claims."
  • 14/04/25
    (1432)
    : Case (Supported living accommodation and s117). Cheshire East Council (23 005 368) [2025] MHLO 9 (LGSCO) — The council ceased paying rent under s117 when a residential care home was deregistered to become supported living accommodation. During the Ombudsman's investigation the council relied on the three-stage Mwanza test, arguing that it was not specialised accommodation and that the resident had not been placed there involuntarily owing to a lack of capacity; the Ombudsman applied the test without criticism (curiously), though not in favour of the council. It was "accommodation plus" (enhanced specialised accommodation) rather than ordinary housing, and was still required, so remained within the scope of s117. The council agreed to repay £59,149.86 for rent (which had been paid from savings until the resident became eligible for housing benefit), plus interest, and £9,143 legal fees, and to consider the cases of 21 other residents who were also told to claim housing benefit. The Ombudsman noted: "When accommodation is part of a person's section 117 aftercare, it must be free to the person. The Council and the ICB should not advise people to claim housing benefit to pay for accommodation which is part of their section 117 aftercare. ... Aftercare services cannot be withdrawn simply because the status of a person’s accommodation changes from registered residential care accommodation to supported housing accommodation."
  • 13/04/25
    (2140)
    : Case (Failure to secure appointment of deputy). London Borough of Haringey (24 008 874) [2025] MHLO 8 (LGSCO) — Ombudsman's summary: "Mrs Z complained about the Council’s failure to ensure Mr X had somebody to take decisions about his welfare and finances. We found fault with the Council for delaying a Mental Capacity assessment for the complainant (Mr X) and for not acting to appoint a person who could take decisions about Mr X’s welfare and finances. The Council’s failings caused injustice to Mr X. The Council agreed to apologise to Mr X, to apply for the appointment of a deputy and to carry out some service improvements."
  • 03/04/25
    (1328)
    : Case (Not allocating care coordinator). Peterborough City Council [2025] MHLO 7 (LGSCO) — Ombudsman's summary: "We have found fault by an NHS Trust, a Council and an NHS ICB for not allocating a care coordinator to someone who is entitled to one. The situation has caused avoidable uncertainty and distress. The organisations have agreed to provide an apology and small financial payments and to take steps to find a bespoke solution and work to resolve the wider issues."
  • 03/04/25
    (1317)
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 149, April 2025) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a masterclass in determining a particularly complex set of capacity questions; (2) In the Property and Affairs Report: statutory will applications and publicity; OPG guidance on family care payments, and the bond provider saga continues; (3) In the Practice and Procedure Report: a helpful reminder of elephant traps for the unwary as regards when time runs for purposes of appealing decisions; (4) In the Mental Health Matters Report: the Mental Health Bill progresses, and the CQC reports on the MHA 1983 in 2023-24; (5) In the Children’s Capacity Report: a new BMA toolkit to help with capacity and other issues in relation to those aged 16 and 17, and back to the vexed question of parental consent to confinement; (6) In the Wider Context Report: the inherent jurisdiction rebuffed in a personal injury case, recent research of relevance, and strong views from the CRPD Committee on medical assistance in dying and the 2000 Hague Convention; (7) In the Scotland Report: what is appealable in the AWI context, and the complexities of the position of those aged 16 and 17 in Scotland."
  • 01/04/25
    (2031)
    : Probation Service court related functions. HMPPS, 'Probation Court Services Policy Framework' (14 January 2025) — This document has paragraphs on "Defendants with mental health conditions" and the "Mental health treatment requirement". Also of relevance to mental health (and the "two-tier" justice system debate) is the following extract: "Practitioners delivering bail information services should consider the prioritisation guidance, but key criteria to be taken into consideration for the identification of priority defendant cohorts include: vulnerable defendants, such as those with mental health conditions and learning disabilities; young adults (18–25 years old); women, pregnancy and maternity; defendants from ethnic minorities; transgender defendants."

Monthly updates

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

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