March 2009 update

The following updates were made to the site in March 2009.

Legislation

• Tribunal Procedure (Amendment) Rules 2009 — Various amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008 (and other Rules). In force 1/4/09.
• Court of Protection (Amendment) Rules 2009 — These Rules amend the Court of Protection Rules 2007 by amending rules (rules 6 and 51), adding rules (rule 82A), and adding a Practice Direction (PD 10A) for the new deprivation of liberty jurisdiction. In force 1/4/09.
• Court of Protection Fees (Amendment) Order 2009 — This Order amends the Court of Protection Fees Order 2007, which set out the fees to be charged for matters coming to the Court of Protection, by abolishing the fee for a certified copy of a document and providing for an additional circumstance under which fees may be exempted (i.e. if the relevant person is in receipt of income-related employment and support allowance). In force 1/4/09.
• Public Guardian (Fees, etc) (Amendment) Regulations 2009 — These Regulations, in amending the Public Guardian (Fees, etc) Regulations 2007, amend the fees to be charged for the services provided by the Public Guardian: the LPA fee is reduced from £150 to £120; a new fee for EPA and LPA office copies is introduced; the Deputy Assessment fee is reduced to £100; the Deputy Supervision fees remain, with an additional level of supervision Type IIA attracting a £350pa fee.
• Community Legal Service (Financial) (Amendment) Regulations 2009 — These Regulations increase the financial eligibility limits for civil legal aid and ensure the non-means-tested provision of legal representation in certain ‘deprivation of liberty’ cases (s21A appeals). In force 1/4/09 (DOL funding) and 6/4/09 (uprating).
• Health and Social Care Act 2008 (Commencement No 9, Consequential Amendments and Transitory, Transitional and Saving Provisions) Order 2009 — These Regulations relate to the dissolution of the Commission for Healthcare Audit and Inspection (CHAI), the Commission for Social Care Inspection (CSCI) and the Mental Health Act Commission (MHAC), and the creation of the Care Quality Commission. In force 1/4/09 (except for two minor amendments in force on 6/4/09).
• Care Quality Commission (Additional Functions) Regulations 2009 — These Regulations give the Care Quality Commission functions, previously exercised by the MHAC, in relation to reviewing decisions to withhold items brought to high secure hospitals, internal post in high secure hospitals and decisions to record or monitor telephone calls in high secure hospitals.
• NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2009 — These Regulations amend the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 to include Schedule A1 to the Mental Capacity Act 2005 (the Mental Capacity Act Deprivation of Liberty Safeguards) as a function of NHS Bodies. This will enable primary care trusts to enter into formal partnership arrangements with local authorities. In force 1/4/09, immediately after the coming into force of the Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008
• Laid before Parliament in February 2009: Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 — In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.

Other documents

• The Ministry of Justice published new guidance documents for (a) clinical supervisors and (b) social supervisors. See Ministry of Justice#Guidance

• NIMHE have published the final edition of their Update Bulletin (about the MHA 2007). See Mental Health Act 2007 Overview#Updates

• The LSC have re-issued their "Principles of mental health fees" guidance document. See Legal Aid.

• The MoJ published their response to the "MCA 2005 forms, supervision and fees" consultation. See Consultations

• The DH published "Mental Capacity Act 2005 Deprivation of Liberty Safeguards: A guide for family, friends and unpaid carers". See Deprivation of Liberty Safeguards

• The DH published a Dear Colleague letter "The Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS)" - "This letter from David Nicholson outlines roles and responsibilities for health and social care providers under the Mental Capacity Act 2005 Deprivation of Liberty Safeguards which 'go live' on 1 April." See Deprivation of Liberty Safeguards

• The DH and OPG published "Making decisions: The Independent Mental Capacity Advocate (IMCA) service" - "This document sets out the role and responsibilities of the Independent Mental Capacity Advocate (IMCA) under the Mental Capacity Act 2005. This edition has been updated to reflect the requirements of the MCA and MCA DOLS legislation." See Independent Mental Capacity Advocate service

Caselaw

New cases

• R (EM) v SSWP [2009] EWHC 454 (Admin) — The Regulations which deprive of welfare benefits transferred prisoners (s47/49 and s45A patients until they would be entitled to release if in prison) are lawful; this is because there is enough of a relevant difference between them and civil/s37 patients to justify different treatment (i.e. they have been sentenced to a term of imprisonment to which they remain subject); in general, this applies all determinate and indeterminate sentence prisoners, including post-tariff lifers, technical lifers being the only exception because they had not been considered when the Regulations were drawn up and there is not enough of a relevant difference present.
• Re J (Enduring Power of Attorney) [2009] EWHC 436 (Ch) — An Enduring Power of Attorney appointing successive or alternative attorneys is valid if it is stated for each set of attorneys, in the event that they exercise the power, whether they must exercise it jointly or jointly and severally.§
• R v Tabbakh [2009] EWCA Crim 464 — The judge was entitled to rule that it was open to the jury to draw adverse inferences from the fact that the appellant had not given evidence, and that the exception in s35(1)(b) Criminal Justice and Public Order Act 1994 (that it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence) did not apply to him even though he suffered from a mental health condition.§
• R v Stewart [2009] EWCA Crim 593‎ — Guidance on directions to the jury where the defence case was diminished responsibility based on alcohol dependency syndrome.§

Old cases

• Re Whitbread (No 2) (Habeas Corpus: Continued Detention) [1999] EWHC Admin 2 — (1) The duty to discharge under s72 following a Tribunal decision to discharge on a future date is subject to s29(4) which provides a further basis for detention during displacement proceedings; (2) The managers' reasons for upholding the RMO's barring certificate were adequate.§
• Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission) [1997] EWCA Civ 1944 — The ASW's [now AMHP's] consultation with the nearest relative under s11(4) can take place before his interview with the patient; the Act allowed for a flexible approach. Provided that the social worker explains to the NR that he is considering making an application and why, the NR will be afforded the necessary opportunity for objecting to the application.§
• Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission) [1997] EWHC Admin 102 — The ASW's [now AMHP's] consultation with the nearest relative under s11(4) can take place before a full assessment of the patient for the purposes of s3 has taken place, including before the two necessary medical recommendations have been obtained; the Act allowed for a flexible approach.§

Website information

• Currently there are 533 cases on the site (325 categorised cases plus 208 other Bailii links)

• See March 2009 chronology for changes to the website in date order