July 2023 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 2332 categorised cases


Cases

  • Case (Section 136 detention and section 139 leave). KU v Commissioner of the City of London Police [2023] EWHC 1853 (KB) — The police entered the claimant's flat, asked him to enter the corridor, and in the corridor detained him under s136. The claimant sought damages for false imprisonment, arguing that the s136 power had been unlawfully exercised in his flat. The defendant argued that the High Court's s139 leave should be set aside (on the basis that a Master cannot grant leave, or because of procedural failings or impropriety), or that the claim should be struck out (for similar procedural reasons), or that summary judgment should be granted, or that the decision to grant leave was wrong on the merits. The defendant's arguments were unsuccessful.
  • Case (Pre-inquest costs). Briley v Leicester Partnership NHS Trust [2023] EWHC 1470 (SCCO) — Legal Aid for an inquest ran alongside CFAs for civil litigation. Pre-inquest work would have been recoverable under Legal Aid but was instead claimed from the defendant at market rates when the litigation concluded successfully. The costs judge decided that this work was recoverable from the defendant.
  • Case (Transparency in committal proceedings). Esper v NHS North West London ICB [2023] EWCOP 29 — This was an appeal from a COP district judge's decision in committal proceedings to (a) publish a judgment naming Dr Esper as a contemnor; and (b) permit the publication of Dr Esper's name, while restricting the identification of AB, and two other relatives of AB who are respondents in the Court of Protection proceedings.
  • Case (MCA treatment for MHA patient). Norfolk and Suffolk NHS Foundation Trust v HJ [2023] EWFC 92 — HJ was detained under MHA 1983 s3 but treatment under restraint for her constipation could not be provided under MHA 1983 s63. The trust asked the court to authorise deprivation of liberty; the judge in email correspondence expressed doubts; subsequently the trust and Official Solicitor changed their minds and agreed that the treatment did not involve deprivation of liberty. The judge decided: (1) The following principles apply: (a) only in exceptional cases will something amount to a further deprivation of liberty of someone already lawfully deprived of liberty; (b) this is because the usual position is that Article 5(1)(e) is not in principle concerned with suitable treatment or conditions; (c) the test is whether there is an unacceptable element of arbitrariness in the actions taken by a state body. (2) Applying that approach, proper and lawful exercise of clinical judgment will, save in exceptional circumstances, lack arbitrariness and will not amount to deprivation of residual liberty; partly that is because the trust owe a common law duty of care to the patient to provide appropriate treatment (the patient cannot be deprived of liberty by actions that the trust are required to take). (3) The MCA 2005 s4 best interests process, MCA 2005 s6 restraint limitations, MHA framework and Mental Health Units (Use of Force) Act 2018 requirements are a sufficient procedural framework for Article 8 purposes and do not need to be supplemented by a court order.
  • Case (Deputyship and employment dispute). Brassington v Knights Professional Services Ltd [2023] EWHC 1568 (Ch) — The claimant solicitor had been a salaried partner at the defendant law firm. When she resigned, the firm for the first time sought payment of £211,632.76 so-called "work in progress" which had accumulated over six years, of which £166,468.97 was for time costs which had been disallowed by the SCCO in deputyship cases (it was the firm's practice never to write off these costs). The firm relied on badly drafted engagement letters to argue that she, rather than "P", was their client (stating in litigation that "Knights has no duty or obligation to the various patients whom Katie accepted responsibility for") and that she was personally liable to the firm for all unpaid fees. The court had no hesitation in deciding that that she had been contracting solely as deputy, and as agent, for "P", and had accepted no personal liability: summary judgment was given in her favour.
  • Case (Habitual residence). Aberdeenshire Council v SF [2023] EWCOP 28 — A Scottish patient was transferred to an English psychiatric hospital in 2015, was fit for discharge in 2017, and was eventually discharged in 2022 to a placement in England because nothing could be found in Scotland. Aberdeenshire Council sought to have a Scottish Guardianship Order recognised and enforced in England. All parties agreed that she was habitually resident in Scotland; this judgment sets out the law and explains why the judge agreed.

Resources

  • Paper reference hearings for hospital-based patients. TPC, 'Consultation on possible amendments to the HESC Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s68 MHA 1983' (consultation from 18/7/23 to 29/8/23) — (1) The tribunal wants its rule 35 power to determine reference cases on the papers (where an adult patient does not wish to attend or be represented) to be extended from community patients to hospital-based patients. The tribunal suggests that this would be better for patients: its proposal to the TPC talks of giving patients "the right to determine how they want their case to be considered" and "respect[ing] the autonomy of those in hospital", and the conclusion states that "[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community". However, resources and finances are major motivations: "it is an inefficient use of the Tribunal’s resources to have an oral hearing", given that "[a] judge can typically dispose of between 4 and 8 automatic references in a single day", especially if the Mental Health Bill 2022 is passed and references triple. (2) The TPC seem aware that the proposal could make matters worse: (a) they suggest "safeguarding measures" (noting that "it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny" and suggesting "a requirement that every second or third reference (depending on the statutory duration of each) must be considered at an oral hearing which would be able to hear the evidence of witnesses or call for additional information as required"); (b) they suggest that the rule change might be premature prior to the Bill's enactment ("it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now"); (c) they note that the Senior President of Tribunals would amend the relevant PD to ensure that, contrary to the tribunal's proposal, these decisions for hospital-based patients would be made by a full panel and not a judge alone.
  • Tribunal contact details. Mental Health Tribunal, 'Email addresses for MHT' (20/8/21) — The document was last updated in 2021 but the tribunal secretariat confirmed that it is pretty much up to date in July 2023. Add "cjsm.net" for secure email, e.g. mhtapplications@justice.gov.uk becomes mhtapplications@justice.gov.uk.cjsm.net.
  • Clients and capacity. Law Society, 'Working with clients who may lack mental capacity' (14/6/23) — "This guidance is aimed at solicitors, and will help you assess whether clients have mental capacity to instruct you, and whether you can accept and act on the client’s instructions. It explains the principles for assessing capacity, and the legal tests you can use in different circumstances, such as making a will, making a lifetime gift, and conducting civil proceedings. It also covers techniques for assessing capacity, and what to do if a client lacks capacity to give you instructions."
  • Financial abuse. Law Society, 'Guide: Financial abuse' (13/6/23) — "This guidance is aimed at all solicitors who advise clients who are or may be at risk of financial abuse, in particular those conducting private client work involving estate and financial planning, property transactions, execution of wills or lasting powers of attorney (LPAs). It may also be useful to other professionals working with adults at risk of financial abuse, and to carers, families and friends."
  • New forms. Legal Aid Agency, 'Civil news: changes to civil legal aid forms' (3/7/23) — New forms will come into force on 3/8/23 and will appear on the Gov.uk website on the same day. Previous versions will be accepted up to 3/9/23. The following forms will be changed: CW1, CW1&2 MH, CW2 (IMM), CW5, CIVAPP1, CIVAPP3, CIVAPP6, CIVMEANS3 and CIVMEANS7. Form CIVMEANS4 will be removed. The changes are a result of the Means Test Review (MTR).
  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 133, July 2023) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an Anglo-Welsh LPS update and cases covering contingency planning, executive capacity, decision-specificity and restraining the detained patient; (2) In the Property and Affairs Report: Hayden J takes on common LPA problems, an MOJ toolkit and a rather startling assertion about the position of professional solicitor deputies; (3) In the Practice and Procedure Report: habitual residence under the spotlight, contempt and the Court of Appeal and the most recent Court of Protection statistics; (4) In the Wider Context Report: the LGSCO ombudsman and deprivation of liberty, Article 2 and DoLs, visiting in care homes, and a report from our new Irish correspondents; (5) In the Scotland Report: AWI masterclasses and the Scottish Government respondents to the Scott Report."

News

  • New subcategory and notification structure on forum. To make forum navigation easier, the main "Law and practice" category now has four subcategories: (a) Mental Capacity Act; (b) Mental Health Act; (c) Mental Health Tribunal; and (d) Other. The Law and practice page still shows topics from all the new subcategories. Links to the subcategory pages appear in the sidebar menu. The default notification setting is "watching first post" for each subcategory, but you could choose to have different settings for each subcategory. For instance, if you are a Court of Protection lawyer you might want to keep Mental Capacity Act at "watching first post" but change the others to "normal" so that you don't get sent any notifications about them. The Updates category has been structured similarly, with MHLO updates and MHLO monthly updates as subcategories, but with "normal" being the default notification setting. Visit the forum to see it in action.

Jobs

Social media

Nothing to report this month.


Other items

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