June 2023 update

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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 2326 categorised cases


Cases

  • Case (RROs in end-of-life proceedings). Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 — "These appeals concern the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order ("RRO") made long before in end-of-life proceedings in the High Court. ... The orders made in these cases provide for the indefinite continuation of injunctions against the world prohibiting publication of the names of a small number of clinicians in the Abbasi case and a wide range of health service staff in the Haastrup case. The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to "tell their story" outweigh such article 8 rights of clinicians and staff as may still be in play, long after the RROs were made in the respective end-of-life proceedings. The wider systemic concerns which affect the operation of the NHS laid before the court by representative bodies cannot justify the creation of a practice, not anchored to the specific circumstances of the case, of granting indefinite anonymity to those involved in end-of-life proceedings. Such a step is one that is controversial and intensely political and suitable for Parliament rather than the courts."
  • Case (Anticipatory declarations). Somerset NHS Foundation Trust v Amira [2023] EWCOP 25 — The trust sought anticipatory declarations concerning what would be lawful and in Amira's best interests were she to lose capacity during childbirth: under s15 MCA 2005 about treatment under the care plan, and under the inherent jurisdiction about associated restraint or deprivation of liberty. The day before the hearing the trust assessed that she now lacked capacity. The court agreed and declared the care plan to be in her best interests, but made the following obiter comments: (1) The Court of Protection does not have any power to make anticipatory declarations under s15(1)(c) in relation to someone who currently has capacity, and earlier cases were wrongly decided. (2) A s48 interim order (which would have been relevant if the decision on capacity had been different) cannot authorise deprivation of liberty, but it is ECHR-compliant for temporary deprivation of liberty in emergency cases to be authorised under the inherent jurisdiction. (3) In a litigious world trusts want "the gold standard of immunity" (orders under ss16(2)(a) and 4A(3) and (4), or even a s48 interim order with inherent jurisdiction deprivation of liberty), but these could be difficult to obtain quickly enough and equivalent immunity could be obtained using ss4B, 5 and 6, which is the route that Parliament intended.
  • Case (DOLS ineligibility under Case E). Manchester University NHS Foundation Trust v JS [2023] EWCOP 12 — Jane, a 17-year-old patient, had been detained under s2 on an acute medical ward following a paracetamol overdose. When the s2 expired her detention continued as before, purportedly under common law but in fact unlawfully, and an application was made to the court. The plan was to discharge Jane to her mother's in a few days once a care package was arranged. (1) The court decided that she lacked capacity in relation to residence, care and treatment and that, inappropriate as it was (the ward being mixed-sex, all-ages, non-psychiatric and non-CAMHS), it was in her best interests to remain for the time being, and it therefore authorised the plan in the interim. (2) The court subsequently considered "ineligibility" under Case E for MCA detention, which arises when a patient is within the scope of the MHA (essentially, when an MHA application could be made and the patient could be detained) and the patient objects to at least some of the mental health treatment. The team responsible for conducting gatekeeping assessments for Tier 4 in-patient units had decided she did not meet the MHA criteria, but when the matter goes to court it is for the judge to decide. The patient clearly objected. She met the MHA criteria: she needed to be nursed safely and medicated to address the effects of her mental disorder, and no alternative was yet available. The decision on using the MHA cannot be viewed in isolation from what is (or is not) available elsewhere at the time. The jurisdictional label (MHA, MCA, inherent jurisdiction, or common law) is irrelevant when the care plan and length of detention would be the same in practice. (3) To use the inherent jurisdiction would be inappropriate because there is no statutory gap to patch (Jane could and should have been treated under the MHA) and because to do so would provide an incentive to avoid using the MHA.
  • Case (Divorce). D v S [2023] EWCOP 8 — "There are two applications before this Court. The first to be determined (in the Court of Protection) relates to a best interests decision in respect of D, who lacks capacity in a wide sphere of decision-taking in consequence of a severe acquired brain injury. The injury which occurred in 2006, resulted in significant physical and cognitive impairment. The second application (in the Family Court), which as will become clear below, is contingent upon the decision in the first, is an application for a decree nisi of divorce."
  • Case (Caesarean section). North Bristol NHS Trust v R [2023] EWCOP 5 — "This is an application by North Bristol NHS Trust (hereafter “the Trust”) for declarations that R lacks capacity to decide whether or not her unborn baby should be delivered pre-term by elective Caesarean section and that an elective Caesarean section at 34 weeks is in her best interests. ... This case is unusual in that R has not expressed an objection to giving birth by way of Caesarean section. However, the medical team caring for R are concerned that there is a risk that she may ultimately refuse the Caesarean in the same way as she has intermittently refused foetal monitoring, resulting in her physical and/or mental heath being compromised through damage to, or the death of her baby."
  • Case (Paedophilia). A Local Authority v H [2023] EWCOP 4 — "H prefers to be referred to by female pronouns. ... H has expressed a sexual interest in pre-pubescent children. ... In the opinion of a highly experienced psychiatrist, instructed in these proceedings, H presents a real risk of sexual harm to children, both in contact with them and online. ... The Court has been asked to consider H's capacity to take decisions in the following areas: (i) Residence; (ii) Care/support; (iii) Contact with others (both adults and children); (iv) Use of the internet and social media."
  • Case (Contact with mother). SCC v FP [2022] EWCOP 30 — "The challenging issue for the court to determine in this case is whether it is in the best interests of a vulnerable 36 year old woman, FP, who lacks capacity to make decisions about residence, care, and contact with others, to be deprived of direct contact with her mother, RT, with whom she wants to have contact, for a period of at least five months. RT’s behaviour forms the basis of the Local Authority’s application to prohibit contact with her daughter for a long interim period, and her behaviour as an unrepresented party made it very difficult to manage the hearing of the application before this court."
  • Case (Contempt). Sunderland City Council v Macpherson [2023] EWCOP 3 — "Sunderland City Council has applied for an order committing the Defendant Lioubov Macpherson to prison for contempt of court by breaching injunctive orders made by the court in Court of Protection proceedings on 30 June 2022. ...[T]he Defendant’s daughter, FP is the protected party in Court of Protection proceedings. She is a very vulnerable woman in her early 30’s who was diagnosed with cerebral palsy as a child, suffered meningitis in adulthood, and who now suffers from paranoid schizophrenia. She lacks capacity to make decisions for herself about where she should live, her care, and her contact with others. This judgment not only sets out the breaches of orders found to constitute contempt of court and the court’s sentencing of the Defendant, but also a determination that whilst reporting of the name of the Defendant will risk revealing the identity of the protected person, FP, there should be no prohibition on the reporting of the Defendant’s identity."
  • Case (Advance decision and death). NHS Surrey Heartlands ICB v JH [2023] EWCOP 2 — "This is an application brought by [the ICB], in respect of the respondent, JH [for] a declaration pursuant to section 26(4) [MCA 2005] that JH made an advance decision on 10 December 2017 which is valid and which applies to any invasive test or treatment (including life sustaining treatment). Further and for the avoidance of doubt, the draft declaration seeks a recording 'that a person does not, therefore, incur liability for the consequences of withholding such tests or treatment from JH'."
  • Case (Residence). Lancashire and South Cumbria NHS Foundation Trust v AH [2023] EWCOP 1 — "Due to the risk to AH's life because of her inconsistent engagement with services, I was asked initially to approve a care plan for AH that involved a period of assessment in Placement 1. That meant she would spend a period of a few months at the placement. She would be deprived of her liberty there because she was not free to leave and could only leave the placement for visits to her own flat with the permission of staff and was required to return in accordance with her care plan. I am in no doubt that AH is deprived of her liberty. She does not want to be at Placement 1. She wants to be in her own home. She is allowed to go there, but she is in effect on leave when she does, and she has to return to Placement 1 when required. She is not allowed permanently to leave Placement 1 and reside somewhere else. Whilst she is at Placement 1 she is under continuous supervision and control, i.e. necessary monitoring, and is not free to leave as and when she wishes."

Resources

  • CAMHS hospital. Rebecca Thomas, 'NHS criticised for sending patients to children’s hospital despite 1,600 ‘sexual safety incidents’' (Independent, 18/4/23) — "[L]eading mental health charity Mind has criticised the NHS for continuing to use the hospital, despite evidence of 'catastrophic failings in physical and sexual safety' spanning several decades. ... Taplow Manor, which is run by Active Care Group after it merged with The Huntercombe Group, is set to be closed in May. ... Thames Valley Police have launched an investigation into an alleged rape of a patient involving two staff members at the unit. The private provider revealed shortly after it hopes to reopen the hospital as an adult unit within months. Although Taplow Manor is set to close the provider’s second children’s unit, Ivetsey Bank in Stafford is still open and NHS commissioners have admitted 16 children to the hospital since October, The Independent can reveal. Ivetsey Bank is also facing a police investigation into an alleged sexual assault of a patient in March."
  • CAMHS hospital. Rebecca Thomas, 'Hospital of horrors: 1,643 ‘sexual safety incidents’ in a single 59-bed children’s unit' (Independent, 11/4/23) — "A single children’s mental health hospital with just 59 beds reported more than 1,600 'sexual safety incidents' in four years, shocking NHS figures reveal. Huntercombe Hospital in Maidenhead [Taplow Manor] was responsible for more than half of the sex-related investigations reported in the 209 children’s mental health units across the country. Despite warnings being sent to the health service at a rate of more than one a day since 2019 – a total of 1,643 sexual incident reports – no action was taken to stop vulnerable NHS patients being sent to the scandal-hit unit. ... Last year The Independent revealed that police were investigating the alleged rape of a child at Taplow Manor, involving two staff members. A young female patient also made a report to the police of an alleged rape by another patient in 2019. Last month it was revealed that a further sexual assault, at a unit in Stafford owned by Active Care Group, had been reported to the police in recent weeks. It comes after the Huntercombe Group closed its Watcombe Hall unit in Devon after a nurse was convicted of the grooming and sexual abuse of two patients. ... Active Care Group claimed that the high number of reports was a “sign of best practice”, indicating a safer culture."
  • Criticism of LPS and MH Bill. Anselm Eldergill, 'Mental Health Legislative Reform' (29/5/23) — (1) This document criticises the proposed LPS scheme, including that it is "not notably simpler or more practical" than the existing scheme, it "tries to legitimise [tens of thousands of unlawful detentions] by providing that such detentions are lawful without a proper legal authorisation", and contains drafting deficiencies. (2) It also criticises the Mental Health Bill, with 16 numbered points, including that: the Bill is too limited and does not provide the needed root-and-branch reform; "[t]he Wessely Reviewers somehow completely failed to see the elephant standing in front of them", this being that there are now far more detentions under the MCA than MHA; the Bill does not properly address the review's main aims, and fails to deal with or deals ineffectively with tribunal discretionary discharges, seclusion, restraint, hospital managers, spouses and partners, the complicated AWOL provisions, treatment in prison, short-term powers, guardianship, and MHA-MCA interface or fusion; it does not reintroduce an MHA Commission (the CQC "now has no legally qualified members and is totally unqualified to monitor and enforce legal standards"); and does not address the shortcomings in the Court of Protection or lessons learnt from MCA implementation. (3) The conclusion is: "The problems with the legislation and the Bill are, in my view, mainly due to over-reliance on academic input and insufficient experienced practitioner input. The same problem beset the long-drawn-out Mental Health Bill process between 1998 and 2007. That began with a similarly abortive report by Professor Genevra Richardson and her committee of academics and policy officers. Legislation should have a practical focus, which can be difficult for academics and policy advisors who have not spent much time practising in psychiatric hospitals. What is now needed is a small Commission of experienced MHA practitioners to review the work that has been done and to draft themselves a completely new Bill. Extensive consultation has already taken place which will save a great deal of time. Since LPS has been postponed to the next Parliament, it may make sense to put a new Mental Health Act back until then. The revised Bill/Mental Health Act can either replace LPS with more workable arrangements and a fused scheme or make the necessary amendments to LPS within a Mental Health Bill."
  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 132, June 2023) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the JCHR has questions for the Government about the delay to the LPS; anorexia and capacity, and Caesarean sections and P-centricity; (2) In the Property and Affairs Report: Hegel and testamentary capacity, and cross-border management of personal injury settlements; (3) In the Practice and Procedure Report: a freeze on freezing injunctions, and ss.48 and 49 MCA under the spotlight; (4) In the Wider Context Report: Mental Health Act reform potential and pitfalls, an update to the Mental Health and Justice Capacity Guide, and food refusal in prison; (5) In the Scotland Report: Issues with powers of attorney – an unprecedented tangle, the Powers of Attorney Bill and Implementation of the Scott Report."
  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 131, May 2023) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS on the shelf; fluctuating capacity and the interface under the judicial spotlight; (2) In the Property and Affairs Report: the new surety bonds structure and an update on the Powers of Attorney Bill; (3) In the Practice and Procedure Report: reporting restrictions and the Court of Appeal, and costs in serious medical treatment cases; (4) In the Wider Context Report: DNACPR notices and disability, litigation capacity, the new SCIE MCA database, and Ireland commences the 2015 Act; (5) In the Scotland Report: problems of powers of attorney in different settings and a very difficult Article 5 choice."

Events

  • Event. Event:PELT: Sex, marriage and relationships (online, 10/10/23) — Engaging in and consenting to sex. Preventing sex by limiting contact. The right to pay for sex (and can staff facilitate this?) Capacity to understand the other person’s ability to consent. Capacity to marry. Vulnerability to sex through social media. Contraception and sterilisation. Termination of pregnancy. Capacity to agree to IVF. Speakers: Peter Edwards and Ben McCormack. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • Event. Event:PELT: Introduction to MCA and Deprivation of Liberty (online, 2/11/23) — 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. See PELT website for further details and booking information.
  • Event. Event:PELT: Depriving Children and Young People of their liberty lawfully (online, 28/11/23) — How to lawfully deprive a C or YP of their liberty requires great care. What is a DoL and where does PR fit? The course looks at the complex inter relationship between the MCA, MHA and Children Act. When should a child or young person be sectioned? What alternatives are there? Where does s.25 Children Act fit in? Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • Event. Event:PELT: Masterclass for MHA Administrators (online, 30/11/23) — 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. See PELT website for further details and booking information.
  • Event. Event:PELT: Court of Protection/MCA Masterclass - Legal Update (online, 5/12/23) — 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 practice. Implications of delay of LPS. Speakers: Peter Edwards and Oliver Lewis. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • Event. Event:PELT: MHA Masterclass - Legal Update (online, 7/12/23) — 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. Speakers: Peter Edwards and Dr Robert Brown. Cost: £125 plus VAT. See PELT website for further details and booking information.

Jobs

Social media

Nothing to report this month.


Other items

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