April 2019 update

This page is automatically generated: it will only be complete at the end of the month. All monthly updates are available here: Archive of monthly updates.

Website

  • Magic Book. The Magic Book is a database of contact details. The main idea is to add the hospitals and other places you visit (not just your own place of work). To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book
  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.
  • Cases. By the end of this month, Mental Health Law Online contained 1981 categorised cases

Cases

  • Case (Nominal damages (Barrymore)). Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 — "In the early hours of 31 March 2001, Michael Parker (a celebrity entertainer who is better known by his stage name, Michael Barrymore) returned to his home with eight guests. ... In relation to Mr Parker, that arrest was to be effected by Det. Con. Susan Jenkins who had played a central role in the re-investigation and was well aware of the evidence: she believed she had reasonable grounds both to suspect Mr Parker of committing an offence and to conclude that it was necessary to effect his arrest. In the event, she was detained in traffic and a surveillance officer (P.C. Cootes) was ordered to effect the arrest, which he did. ... For these reasons, I would conclude that Stuart-Smith J was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, however, I have no doubt that had things been done as they should have been done (to quote Baroness Hale in Kambadzi), a lawful arrest would have been effected. Thus, I would allow this appeal and, in answer to the issue posed by the Master, declare that Mr Parker is entitled to nominal damages only."
  • Case (LPA witnessed by attorney). Re BGO: Office of the Public Guardian v PGO [2019] EWCOP 13 — "Some time later one of the financial institutions to which the registered property and affairs LPA was sent noticed that BGO’s signature on the instrument had been witnessed by one of the attorneys (MAB), which is contrary to the requirements of Regulations. ... The Public Guardian applied to the Court for a determination as to whether or not the requirements for creation of an LPA were met, and directions as to whether the Public Guardian should cancel the registration of the instrument. ... The wording of paragraph 18 of Schedule 1 is mandatory. Because the requirements of execution have not been met, I must direct the Public Guardian to cancel the registration of BGO’s LPAs. ... For many donors, the failure of their LPA because of a defect in execution can be overcome by the relatively simple step of granting fresh powers, taking care to ensure that the requirements are met – an irritation perhaps and an expense but not an insurmountable hurdle. However, that option is not open to BGO. Sadly, before this defect was identified, BGO’s capacity had deteriorated to the point where she is unable to execute fresh LPAs. ... In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. ... In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect. ... The Respondents are invited to make an application for appointment as property and affairs deputies for BGO. ... If the Respondents, or any of them, seek the appointment of a welfare deputy or deputies for BGO, they should also file at Court within 28 days a COP24 statement which sets out any welfare issues which require decisions to be made, why (having regard to s5 of the Mental Capacity Act 2005) an order is needed and why (having regard to section 16(4) of the Act) the decisions should be taken by a deputy rather than the Court."
  • Case (Death). Hounslow Clinical Commissioning Group v RW [2019] EWCOP 12 — "This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect."
  • Case (Amputation). East Lancashire Hospitals NHS Trust v PW [2019] EWCOP 10 — "This is an application by East Lancashire NHS Trust for orders under the Mental Capacity Act 2005 that PW lacks capacity "to make a decision regarding whether to undergo the leg amputation surgery to address his high risk of sepsis"; and that it is lawful to carry out that surgery having regard to his best interests. Before dealing with the substantive issues in this case I will deal with the timing of the application."
  • Case (Damages for unlawful psychiatric detention). PB v Priory Group Ltd [2018] MHLO 74A Part 36 offer of £11,500 plus legal costs was accepted in this claim brought for unlawful detention and breach of Article 5. The patient had been detained under s5(2) when not an in-patient, and this section had lapsed for nearly seven hours before detention under s2 began.
  • Case (Appointment of property and affairs deputy). NKR v The Thomson Snell And Passmore Trust Corporation Ltd [2019] EWCOP 15 — "The application before the Court is for the discharge of the appointment of an existing professional property and affairs deputy, and the appointment of another instead. The discharge of the current deputy is agreed but there is an issue as to who should be appointed instead. ... In the matter of Re AS; SH v LC [2012] MHLO 113 (COP), [2013] COPLR 29 at paragraph 22 Senior Judge Lush set out "generally speaking" an order for preference of various candidates for appointment as deputy. A panel deputy is included "as deputy of last resort," after "a professional adviser, such as the family's solicitor or accountant." ... I am not aware of any previous appointments of a barrister as professional deputy (as distinct from a family member who just happens to be a barrister by profession but is appointed on the usual non-remunerated basis of a family member). Not being considered by the Bar Council as 'a legal service', discharge of the functions of deputyship is apparently not subject to the Bar Council's full regulatory force. However, the risk of property and affairs deputyship lies chiefly in misappropriation of funds. It seems to me beyond debate that misappropriation of MBR's funds whilst acting as deputy would count as "behaviour which diminishes trust and confidence" in Ms. Sood individually and her profession generally, and so Ms. Sood's holding of deputyship appointment would be subject to some professional regulation. ... On the information presently available to me, I am willing to accept that Ms. Sood is personally and professionally a suitable person to hold a deputyship appointment. Her appointment is however not the only option before the Court. A panel deputy has also been identified as willing to act ... Taking all matters into consideration, I conclude that it is in the best interests of MBR for Mr. Kambli to be appointed as replacement deputy upon discharge of the appointment of TSPTC."
  • Case (Withdrawal of CANH; advance decision). NHS Cumbria CCG v Rushton [2018] EWCOP 41 — "This is an application regarding the proposed withdrawal of clinically assisted nutrition and hydration in respect of Mrs Jillian Rushton, who is now 85 years of age. Since sustaining a traumatic head injury in December 2015, Mrs Rushton has suffered from a prolonged period of disorder of consciousness. Insofar as a label is relevant, the consensus of medical opinion, in respect of which there is no dissent at all, is that she is in a persistent vegetative state (PVS). In their recent guidance, ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’, the Royal College of Physicians and the British Medical Association have noted that the importance of obtaining a precise and definitive diagnosis has reduced. It is recognised by the Courts and clinicians that drawing a firm distinction between vegetative state and minimally conscious state is frequently both artificial and unnecessary. In practice, when assessing best interests, information about the patient’s current condition and prognosis for functional recovery and the level of confidence with which these can be evaluated is invariably of greater importance than a precise diagnosis. ... It perhaps requires to be said, though in my view it should be regarded as axiomatic, that the medical profession must give these advanced decisions the utmost care, attention and scrutiny. I am confident the profession does but I regret to say that I do not think sufficient care and scrutiny took place here. The lesson is an obvious one and needs no amplification. Where advanced decisions have been drawn up and placed with GP records there is an onerous burden on the GP to ensure, wherever possible, that they are made available to clinicians in hospital. By this I mean a copy of the decision should be made available and placed within the hospital records with the objective that the document should follow the patient. It need hardly be said that it will rarely, if ever, be sufficient to summarise an advance decision in a telephone conversation. ... The family have ... made it clear to me that she would not have regarded her present situation as tolerable. Whilst I have no doubt that she would understand the commitment of her son, Tim and his profound resistance to letting her go, I have equally no doubt that she would want to be let go and I have no hesitation in concluding that it is my responsibility to respect this."

Resources

  • General consent granted for medical leave. Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19) — The Secretary of State for Justice has provided all responsible clinicians at any hospital with general consent to exercise their power to grant leave for medical treatment. This general consent does not apply to (a) patients who already have specifically-agreed terms for medical leave; or (b) "high profile" cases (i.e. those which merit attention from a senior manager at all stages). The precise terms are set out three annexes: (A) any restricted patient at high secure hospitals; (B) section 45A, 47/49, and 48/49 patients in other hospitals; (C) section 37/41 or equivalent in other hospitals.
  • Advance decision-making. Gareth Owen et al, 'Advance decision-making in mental health - suggestions for legal reform in England and Wales' (2019) 64 Intl JL & Psychiatry 162 — Publisher's abstract: "This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based ‘fusion’ law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government’s 2018 Independent Review of the Mental Health Act 1983."
  • Mental health sentencing consultation. Sentencing Council, 'Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders: Consultation' (9/4/19) — Extract from introduction: "The Council has developed a draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders. The aim of the guideline is to consolidate and explain information which will assist courts to pass appropriate sentences when dealing with offenders who have either a mental health condition or disorder, neurological impairment or developmental disorder, and to promote consistency of approach in sentencing. "

Consultations

Events

  • Event. Northumbria University: BIA Refresher - Newcastle, 24/5/19 — Health and Social Care professionals who are qualified as Mental Capacity Act Best Interest Assessors (BIAs) are statutorily required to complete annual refresher training. This programme provides this statutory refresher training, and is being delivered in a new conference style format. Speakers: Neil Allen, Lorraine Currie, Wayne Martin. Price: £110. See Northumbria University website for further details and booking information.

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