Drilldown: Resources

A summary of the coronavirus resources can be found here: Coronavirus resources.

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Ministry of Justice (32) · Department of Health (18) · Care Quality Commission (14) · Jones, Richard (11) · Welsh Government (9) · Ruck Keene, Alex (8) · Mental Health Tribunal (8) · Tribunal Procedure Committee (6) · Richards, Steven (6) · Ryder, Ernest (6) · Scottish Government (6) · None (6) · Wilson, Jonathan (6) · Miles, Sophy (5)
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Resource Type Sentence Abstract Date
1 Crown Office Row, 'Alasdair Henderson secures award of damages for false imprisonment in a hospital setting' (30/1/19) Web page MCA-related damages This web page reports on a claim against Kings College Hospital in which the High Court held that there had been a failure to follow the DOLS requirements to undertake a full capacity assessment and, if appropriate, a best interests assessment, and that the hospital had intentionally kept the family in the dark about Christiana Esegbona's discharge to a nursing home until the last minute in order to prevent objection. The claim for false imprisonment and for negligent failures to provide adequate information to the nursing home (at which the patient died after pulling out her tracheostomy tube) was successful, and the court awarded aggravated damages because of the deliberate exclusion of the family from the discharge planning process. 2019-01-30
A Platform for the Future - consultation Consultation "In March 2010 an announcement was made that the Ministry of Justice would be bringing Her Majesty’s Courts Service (HMCS) and the Tribunals Service together, creating a single unified organisation. This consultation paper sets out the rationale for the creation of a new agency and explains what we believe the benefits will be. In seeking the views of the public on these benefits it also sets out what will remain the same following the creation of the agency."

Consultation page

Ministry of Justice, 'A Platform for the Future', ref CP14/10, 30/11/10

Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (April 2019 edition, 24/4/19) Document DOLS case law summaries This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019). A newer version is available: Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19). 2019-04-24
Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19) Document DOLS case law summaries This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019). 2019-06-10
Adult Social Care consultation Consultation "The overall aim of the project is to provide a clearer, modern and more cohesive framework for adult social care." 2010-02-24
Alex Ruck Keene (ed), Assessment of Mental Capacity (4th edn, Law Society 2015) Book Mental capacity book 2015
Alex Ruck Keene and Rosie Scott, 'The COVID-19 pandemic, the Coronavirus Bill and the Mental Capacity Act 2005' (39 Essex Chambers, 25/3/20) Article Coronavirus resource Impact of coronavirus on operation of MCA This article contains information under the following headings: (1) The Coronavirus Bill; (2) Non-Statutory Guidance; (3) Guidance from the Court of Protection; (4) Advance care planning; (5) Commentary. 2020-03-25
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (2nd edn, LAG 2016) Book Court of Protection book 2016
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (2nd rev edn, LAG 2017) Book Court of Protection book Note that a 3rd edition has now been published. 2017
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (3rd edn, LAG 2019) Book Court of Protection book 2019
Alex Ruck Keene, 'COVID-19 and MCA - first guidance out' (Mental Capacity Law and Policy, 19/3/20) Article Coronavirus resource Article about coronavirus guidance mentioning MCA This article contains brief comments on the following: (1) DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20); (2) HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20). 2020-03-19
Alex Ruck Keene, 'Foreign powers of attorney - an unfortunate judicial wrong turn' (Mental Capacity Law and Policy, 26/3/18) Web page Commentary on protective measure case This article states that the two litigants in person, in seeking recognition and enforcement of a Canadian "Continuing Power of Attorney for Property" as a protective measure (under Part 4 Schedule 3 MCA 2005), had led the judge astray, as the relevant question was whether (under Part 3) the Canadian power was valid according to Ontario law, assuming JMK had been habitually resident there at the point of granting the power. A application can be made under rule 23.6 Court of Protection Rules 2017 in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating. 2018-03-26
Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17) Newspaper article This article related to a "cluster" of sex alerts at residential homes owned by Hillgreen Care, a private company that specialised in the care of young adults with learning disabilities. It was said that confidential documents revealed that: (a) the deputy manager of one home was a convicted sex offender working in Britain illegally; (b) concerns were raised at other homes over “sexual grooming” of residents, and staff having sex while on duty; (c) care workers were initially told not to inform police of a suspected rape in November 2015 of a severely autistic 23-year-old man who lacked capacity to consent to sexual relations; and (d) potential DNA evidence linked to the incident was destroyed. The CQC said it was "actively pursuing what criminal action can be taken in relation to the failings" at the Enfield home, and had not made any of the concerns public because its desire to be "open and transparent" needed to be balanced alongside a risk of "compromising ongoing investigations". 2017-07-27
Andrew Norfolk, 'Sexual predator’s victim was failed at every turn' (The Times, 27/7/17) Newspaper article Criticisms of CQC and care home (1) This article is critical of the CQC's response to sexual abuse in a care home: "It had the power to bring criminal charges against the company or the senior individuals responsible for its running. Instead, it chose a much quieter, less public course of action. The Enfield home no longer has any vulnerable adults in its care. It is one of four Hillgreen homes that have ceased to operate since November 2015 because the CQC identified, and publicised, lesser problems in their operation. In the case of the home where Tom was allegedly attacked, the commission’s website carries the report of a 2016 inspection that was published in October last year. It rated the facilities as inadequate and unsafe, but not because a high-risk sex offender was allowed unsupervised access to the bedroom of a defenceless, highly vulnerable resident. Instead, the report criticised the home for failings that included storing mops and buckets in the garden and having overflowing bins, scuffed skirting boards, loose handles on kitchen drawers and a broken dishwasher. The report noted the recent promotion of a senior care worker to deputy manager but chose not to reveal that the vacancy was created by the exposure of her predecessor as a convicted sex offender. ... No one has told the residents of those homes, or their families, what happened at the Enfield home in November 2015. It is almost a year since anyone spoke to Tom’s mother about the attack." (2) It is also critical of the care home management: "In written statements seen by The Times, three Hillgreen workers said that Ross Dady, the company’s regional manager, and Roger Goddard, its director of care, initially told them they should not contact police or any external authorities. ... [Tom's mother's] shock and dismay increased, she said, when the manager told her that Tom had not yet been taken to hospital and that JL had not been arrested because '[Tom] may have consented to it'. There is some disagreement as to how swiftly, and by what means, the various safeguarding authorities became aware of the incident but by the time the police were involved Tom’s underwear had already been put through the laundry." (3) After this article the CQC did prosecute: see CQC v Hillgreen Care Ltd [2018] MHLO 50. 2017-07-27
Andy McNicholl, 'Court quashes “unlawful” Care Act assessment of learning disabled man' (Community Care, 3/7/17) News article Community care case summary This article summarises R (JF) v London Borough of Merton [2017] EWHC 1519 (Admin). 2017-07-03
Bar Council, 'Chair of the Bar sets out concerns to MoJ, HMCTS, the Legal Aid Agency, the senior judiciary, the Bar Standards Board and the Inns of Court' (18/3/20) Letter Coronavirus resource Bar Council coronavirus statement The Bar Council is "calling for a suspension of all in-person hearings across all jurisdictions, save in very exceptional circumstances where a video link or phone hearing cannot accommodate the interests of justice" for an initial 30-day period. 2020-03-18
Bar Council, 'Coronavirus advice and updates' (March 2020, updated periodically) Web page Coronavirus resource Bar Council coronavirus guidance This web page contains information and links under the hearings: (1) Bar Council guidance; (2) Bar Council statements; (3) Bar Council, LPMA and IBC advice bulletins; (4) HMCTS updates; (5) Legal Aid Agency updates; (6) General government guidance. March 2020
BBC News, 'Peterborough roof jump woman wins appeal bid' (25/3/10) News article News report on restriction order being quashed The article ends as follows: Lord Justice Elias agreed, saying: "What was before the crown court did not substantiate sufficient risk to the public to justify a restriction order. We therefore quash that part of the sentence." 2010-03-25
Belfast Telegraph, 'Blind veteran tells judge he is ‘living again’ after going home' (19/3/19) Newspaper article Man returns home after inherent jurisdiction case The article states that Hayden J is overseeing developments at follow-up hearings in London, and that at a hearing the previous week the council's lawyers stated that Douglas Meyers had returned home. The High Court decision is: Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam). 2019-03-19
Ben Troke, 'The death of DoLS - the "Liberty Protection Safeguards" are before Parliament now' (Browne Jacobson, 4/7/18) Web page This article lists several initial observations about the detail of the Mental Capacity (Amendment) Bill, and in relation to its implementation notes: "On the timescales, we understand that it is anticipated that the Bill will be out of the Lords by the end of November 2018, and through the Commons early next year, with Royal Assent perhaps by April 2019. Allowing for implementation and training, we might expect it to come into force perhaps in late 2019, early 2020." 2018-07-04
Bernadette McSherry and Ian Freckelton (eds), Coercive Care: Rights, Law and Policy (Routledge 2013) Book Academic book 2013
Bournewood Consultation: The approach to be taken in response to the judgement of the European Court of Human Rights in the 'Bournewood' case Consultation "This document seeks views on the issues raised by, and consequent options for public policy arising from, the judgement of the European Court of Human Rights (ECtHR), published on 5th October 2004, in the case of H.L. v. the United Kingdom (the 'Bournewood' judgement - so called because H.L's care and treatment took place in Bournewood Hospital)."

Consultation page on National Archives website

Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders - consultation Consultation "The Ministry of Justice Structural Reform Plan published in July 2010 set out a commitment to introduce a 'rehabilitation revolution' and conduct a review of sentencing policy. This consultation sets out the resulting proposals which aim to break the destructive cycle of crime and protect the public, through more effectively punishing and rehabilitating offenders and reforming the sentencing framework."

The proposals in relation to managing offenders with mental health problems are as follows: 'We want to ensure that our valuable resources are targeted on the people who are committed to changing their lives and being rehabilitated. In some cases, the criminal justice system is not the best place for them. This is particularly the case for offenders with mental health problems. We propose to: (a) work with the Department of Health and the Home Office to pilot and roll out liaison and diversion services nationally by 2014 for mentally ill offenders; and (b) increase the treatment capacity for offenders who present a high risk of harm where this is linked to severe personality disorders.'

Consultation page

Another consultation page (more detailed content)

Ministry of Justice, 'Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders', 7/12/10

Brenda Hale, Mental Health Law (5th edn, Sweet & Maxwell 2010) Book Mental health law book Covers mental health law and associated mental capacity law topics. 2010
Brenda Hale, Mental Health Law (6th edn, Sweet and Maxwell 2017) Book Mental health law book Covers mental health law and associated mental capacity law topics. See book review by Alex Ruck Keene, 1/5/17. 2017
British National Formulary (Pharmaceutical Press, 73rd edn 2017) Book 2017
British National Formulary (Pharmaceutical Press, 79th edn 2020) Book Medication book This edition is published on 20/3/20. The book is updated every March and September, so always check the Amazon page for the latest edition. 2020-03-20
Cases involving people with mental health problems and/or learning disabilities as victims and witnesses Consultation 2009-03-01
Changes to Mental Health Act 1983 Code of Practice Consultation Extract from press release: "Our consultation ‘Stronger Code: Better Care’ is asking for your thoughts on a new draft Code which includes: (1) five new guiding principles; (2) significantly updated chapter on how to support children and young people, on the use of restraint and seclusion and the use of police powers and places of safety; (3) new chapters on care planning, equality and human rights, links to the Mental Capacity Act and Deprivation of Liberty Safeguards, and support for victims."


Christine Hutchinson and Neil Hickman, Focus on Social Work Law: Mental Health (Palgrave 2016) Book Mental health law book 2016
Christopher Johnston (ed), Medical Treatment: Decisions and the Law: the MCA in Action (2nd edn, Bloomsbury 2009) Book MCA book - medical treatment 2009
Civil Bid Rounds for 2010 Contracts - consultation Consultation Consultation closed on 23/1/09. "Through this consultation we are seeking views on our proposals for the bid criteria and award process for civil legal aid contracts that will be introduced from 2010. We are also consulting on key changes to the contract terms and to changes to the scope of legal aid funding." 2009-01-23
Claire Barcham, The Pocketbook Guide to Mental Health Act Assessments (2nd edn, OUP 2016) Book MHA book 2016
Claire Tyler, 'The stormy passage of the Mental Capacity (Amendment) Bill' (The House Magazine, 2/5/19) Article Summary of LPS legislation passage through Parliament In this article Baroness Tyler summarises the history of this legislation, concluding that "much relies on what will be set out in the Code of Practice and in secondary legislation, which will be vital in determining how the new system will work, including the vexed issue of a definition of what does and doesn’t constitute a deprivation of liberty" and that "without proper funding[,] staff resources and training it will fail in practice". 2019-05-02
Claire Wills-Goldingham et al, Court of Protection Made Clear (Bath 2016) Book Court of Protection book 2016
Consultation Document: Delivering Excellence: Achieving Recovery: A Professional Framework for the Mental Health Nursing Profession in Northern Ireland (2010-2015) Consultation Consultation run by NI's Department of Health, Social Services and Public Safety.

Consultation documents

Consultation in relation to section 268 appeals against conditions of excessive security Consultation "A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers."

Consultation page

Consultation on a Separate Legal Jurisdiction for Wales Consultation The Welsh Government are consulting on making things even more unnecessarily complicated, by creating an entirely separate legal jurisdiction for Wales.

Consultation page

Consultation on Adults with incapacity (Scotland) Consultation Discussion page

Scottish Law Commission, 'Discussion Paper on Adults with Incapacity' (discussion paper 156, 31/7/12). Extract from news release: 'The main questions raised by the Discussion Paper are: (1) Is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area? and (2) If not, how should it be changed? In particular, there is a need to decide if there should be a new procedure for authorising deprivation of liberty in residential care for adults with incapacity. If there should, what should that process be? And, very importantly, what sorts of care and what type of facilities should be regarded as involving deprivation of liberty for those who live there?'

Consultation on allocation options for funding for Local Healthwatch: PCT Deprivation of Liberty Safeguards Consultation 'Subject to the passage of the Health and Social Care Bill, the Department (DH) will allocate funding for local HealthWatch and, potentially, PCT Deprivation of Liberty Safeguards from October 2012. This new funding will be added to the current DH Learning Disabilities and Health Reform grant. This consultation is asking for your views on options for distributing the new funding for local HealthWatch and PCT Deprivation of Liberty Safeguards (DOLS).'

Consultation page

Consultation on amendments to the Community Legal Service (Financial) Regulations 2000 (2009) Consultation The plan is to increase income eligibility limits by 5%, and to introduce non-means-tested legal aid for COP proceedings for those deprived of their liberty, from April 2009. Closing date 17/2/09.

The response to the consultation is included in the explanatory memorandum to the following Regulations:

Consultation on an Equality Impact Assessment for New Mental Capacity Legislation Consultation "Following publication of the Bamford Review report, A Comprehensive Legislative Framework and consultation on the Department's proposal, A Legislative Framework for Mental Capacity and Mental Health Legislation, the Minister in September 2009 announced his intention of preparing a single Bill encompassing mental capacity and mental health provisions."

Consultation document

Related press release

Consultation on Appointments and Diversity Consultation Of relevance to mental health law are the following proposals: (1) Amending s63 Constitutional Reform Act 2005, which currently requires judicial appointment to be 'solely on merit', to allow the Equality Act 2010's protected characteristics (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, gender and sexual orientation) to be taken into account: where a 'selection assessment on a range of criteria rates them as equally capable of doing the job' then the presumption will be that protected characteristics will tip the balance in favour of those possessing them. (2) To provide more opportunity for appointments based on diversity, changing the tenure of fee-paid appointments so that they no longer last until retirement, but instead for a maximum of three five-year terms save in exceptional cases where there is a clear business need.

Ministry of Justice, 'Clarke: Judiciary in need of modernisation and diversification' (press release, 21/11/11)

Consultation page

Ministry of Justice, 'Appointments and Diversity: A Public Consultation' (Consultation paper CP19/2011, 21/11/11)

Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Adults with Incapacity (Scotland) Act 2000 Consultation 'This consultation seeks views on four issues on Adults with Incapacity (Scotland) Act 2000 Part 5 in relation to medical treatment. The issues are: widening the range of institutions which can offer training, whether dentists should be required to undertake training for this purpose; whether multiple section 47 medical treatment certificates should be required in some circumstances; and whether other medical practitioners not specified should be enabled to certify incapacity for medical treatment'

Consultation page

Consultation on Fees in the High Court and Court of Appeal Consultation 'A consultation proposing changes to fees in the High Court and Court of Appeal Division. It is aimed at users of the High Court and Court of Appeal Civil Division, the legal profession, the judiciary, the advice sector and all with an interest in this area in England and Wales. The aim of these proposals is to charge users of these two jurisdictions more proportionally for the resource their cases consume, while protecting access to justice for the most vulnerable. This will reduce the taxpayer subsidy of the courts service.'

Consultation page

Katy Dowell, 'MoJ plans massive rise in court fees' (The Lawyer, 16/11/11)

Consultation on low secure services and psychiatric intensive care Consultation "A consultation document on low secure services and psychiatric intensive care is being issued today for a three month consultation by stakeholders. The purpose of this consultation is to invite the views of stakeholders on how new guidance will operate by explaining the rationale behind the strategic approach and raising questions which cover a broad range of issues."

Consultation page

Consultation on Mental Capacity Act 2005: forms, supervision and fees Consultation Responses published: 11 March 2009

A consultation on proposed changes to three areas of the work of the Office of the Public Guardian and the Court of Protection following the implementation of the Mental Capacity Act:

1. redesign of the Lasting Power of Attorney forms 2. restructuring of the Supervision of Deputies by the Public Guardian 3. alterations to the fee structure.

This consultation was the initial stage of a wider 12-18 month investigation into the implementation of the Mental Capacity Act.

See the following for details:

Consultation on Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011 Consultation 'Part 3 of the Mental Health (Wales) Measure 2010 is concerned with mental health assessments for former users of secondary mental health services. The Welsh Assembly Government is proposing to make Regulations under this part of the Measure which will set out certain eligibility criteria for such assessments. For example, the length of time a person will be eligible for such an assessment following their discharge from services. This consultation seeks your views on these draft regulations.'

Consultation page

Consultation documents

Consultation on Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011 Consultation '[This consultation] is concerned with the coordination of secondary mental health services, and care and treatment planning for secondary mental health service users. The Welsh Assembly Government is proposing to make Regulations connected to Part 2 of the Measure. This relates to the appointment of care coordinators and the making, reviewing and revising of care and treatment plans. This consultation seeks your views on these draft regulations.'

Consultation page

Consultation documents

Consultation on Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011 Consultation 'Part 4 of the Mental Health (Wales) Measure 2010 expands the statutory independent mental health advocacy scheme established by the 1983 Act. Patients subject to certain "short term" sections of the 1983 Act, and those in hospital informally (i.e. not under compulsion) are able to access the service. The Welsh Assembly Government is proposing to make Regulations connected to the expanded independent mental health advocacy scheme. This will relate to the provision, appointment and approval of advocates. It will also say which people advocates can talk to in undertaking their role of supporting patients. This consultation seeks your views on these draft Regulations.'

Consultation page

Consultation documents

Consultation on Mental Health (Regional Provision) (Wales) Regulations 2012 Consultation 'This consultation seeks your views on regulations which would enable Local Health Boards (LHBs) and local authorities in Wales to enter into regional working arrangements.'

Consultation page

Consultation on OFT Mental Capacity Guidance Consultation "Following the consultation on irresponsible lending the OFT identified a need to provide further clarity on the issue of mental capacity as it impacts on borrowing decisions."

Office of Fair Trading, 'OFT launches mental capacity guidance consultation', Press release 6/12/10

Consultation page

Office of Fair Trading, 'Mental capacity: Draft OFT guidance for creditors: A consultation', 6/12/10

Mind's response

OFT press release: OFT publishes mental capacity guidance (28/9/11)

Consultation on our assessments of quality 2010-11 Consultation Press release, 2/2/10

Consultation documents, 2/2/10

Consultation on paper hearings for CTO reference cases Consultation The Tribunal Procedure Committee is consulting on changes to the rules so that the Tribunal may (1) make a decision on a reference under s68 (duty of managers to refer cases to tribunal) without a hearing if the patient is a community patient and has consented to this; and (2) strike out a party's case without a hearing. The purpose is to save money. The rationale given for the first proposal is that community patients are often content with their position and do not want to attend the hearing or medical examination; that if the patient does not attend then full reports often mean there is little point having a hearing; and that hearings place an unnecessary burden on community patients, who are likely to be quite capable of making the necessary decisions and are entitled to IMHAs and Legal Aid. It is anticipated that all community patients would be posted a form inviting them to consent to their case being decided without a hearing. In relation to the second proposal, it is intended that the power would be used when it is obvious that the tribunal lacks jurisdiction. Consultation runs from 1/6/11 to 23/8/11.

Tribunal Procedure Committee consultation page

Tribunal Procedure Committee, 'Consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699)' (1/6/11)

Tribunal Procedure Committee, 'Response to consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (1 June 2011 – 29 August 2011)' (February 2012)

Consultation on police guidance for mental health Consultation "The College of Policing has published new draft national guidance clarifying the police's role in dealing with incidents involving people in mental health crisis.

"The draft Authorised Professional Practice (APP) is now open for consultation and sets out guidance for police officers and staff when investigating an offence or assisting people with mental health problems, learning disabilities and difficulties and other vulnerabilities."

Consultation on preventing suicide in England: a cross-government outcomes strategy to save lives Consultation 'This document sets out a proposal for a new suicide prevention strategy for England with the aims of reducing the suicide rate and improving support for those bereaved or affected by suicide. The draft strategy brings together knowledge about groups at higher risk of suicide, effective interventions and resources available. The closing date for consultation responses is 11 October 2011. Consultation responses will inform the final strategy, early in 2012.'

Consultation page

Consultation on proposals for a Mental Health (Scotland) Bill (2013) Consultation From Scottish Government website: "This consultation paper seeks views on proposals for a draft Mental Health Bill. This draft Bill brings forward changes to improve the operation of the 2003 Act - notably in relation to named persons, advance statements, medical matters and suspension of detention. In addition the draft Bill makes provision for a Victim Notification Scheme for victims of Mentally Disordered Offenders."

Consultation page

Scottish Government, 'A Consultation on draft proposals for a Mental Health (Scotland) Bill' (December 2013)

Consultation on proposed changes to listing procedure Consultation The Tribunals Service are consulting stakeholders on new procedures and forms for the listing of cases.

Consultation details on "MHRT" website - 12/4/10

Mental Health Lawyers Association: Consultation - proposed changes to Tribunal listing procedure - 7/4/10 - Membership required

Summary of Consultation Responses - 30/7/10

Consultation on proposed Mental Health (Wales) Measure Consultation As part of its Stage 1 consideration, the National Assembly for Wales’ Legislation Committee No. 3 is calling for evidence on the general principles of the proposed Mental Health (Wales) Measure.

Consultation page

Consultation on revision of the Mental Health Act 1983 Code of Practice for Wales Consultation "The new draft Code takes account of the changes to relevant legislation since the previous Code was written. In particular: (a) the requirements in the Mental Health (Wales) Measure 2010 with regards to care and treatment planning and the expanded provision of independent mental health advocacy; (b) the relationship between the Act, the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards.

Within the draft Code there is strengthened emphasis on: (a) the involvement of patients and, where appropriate, their families and carers in all aspects of assessment and treatment; (b) understanding the principles of the Mental Capacity Act 2005 and how these should apply to all care and treatment; (c) the involvement of Independent Mental Health Advocates; (d) the use of appropriate transport for patient subject to the Act to ensure their dignity and safety as far as is practicable.

There are 2 other matters of proposed guidance in the draft Code that are not in the existing code. (a) Firstly, it reiterates that the Act provides a limit of 72 hours for detention under section 136 and that assessments should only take place in a police station in exceptional circumstances. However in relation to the timing of assessments both at the police station and elsewhere, the draft Code proposes: (i) that they should be undertaken within 3 hours; (ii) that detention in a police station should not exceed a maximum of 12 hours. (b) Secondly, it proposes that a statutory care and treatment plan, if needed, will be started no longer than 72 hours after admission."

Consultation page

Welsh Government, 'Consultation on the Revision of the Mental Health Act 1983 Code of Practice for Wales' (document no WG26160, 4/9/15)

Welsh Government, 'Draft Mental Health Act 1983 Code of Practice for Wales' (4/9/15)

Law Society, 'Consultation on the Revision of the Mental Health Act 1983 Code of Practice for Wales: Law Society Response' (27/11/15)

Welsh Government, 'Consultation - summary of responses: Revision of the Mental Health Act 1983 Code of Practice for Wales' (document WG26160, June 2016)

For the revised Code of Practice, see Mental Health Act 1983 Code of Practice for Wales.

Consultation on Scottish tribunal rule 58 Consultation The Scottish Government, 'Scottish Government Consultation: Amendment to Rule 58 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005: Rule 58: Power to Decide Case Without a Hearing' (March 2011)

The Scottish Government is consulting on plans to increase the availability of rule 58 which allows the Tribunal, if all parties agree in writing, to dispose of a case without an oral hearing. The three proposed options, all dispensing with the need for agreement and presumably with the intention of cutting costs, are: (1) any party wanting a hearing must show cause why a hearing is necessary, or (2) as option 1 except the patient has the automatic right to hearing if requested, or (3) as option 1 except the hearing will take place unless the patient positively elects not to have one. It is envisaged that the rule would be used 'where there is no real dispute between the parties'.

Consultation responses. On this page, published 15/6/11, can be found all the responses to this consultation

Consultation on Service Framework for the Treatment of People with a Co-occurring Mental Health and Substance Misuse Problem Consultation Consultation page

Welsh Government, 'Consultation Document: Service Framework for the Treatment of People with a Co-occurring Mental Health and Substance Misuse Problem 2015' (5/3/15)

Consultation on the CQC mental health strategy Consultation "We are currently developing our strategic plan for our work on mental health over the next three to five years. We are keen to get a range of views to help us develop this plan.

"We would like to invite you to give your views as part our consultation on:

  • Where does the Care Quality Commission need to focus its efforts in the next three to five years to really make a difference in mental health?
  • How should we involve people who use services and their families and carers in developing, implementing and monitoring the strategy?"

Consultation page

Consultation on the draft code of practice to parts 2 and 3 of the Mental Health (Wales) Measure 2010 Consultation 'This consultation seeks views on a draft Code of Practice for care and treatment planning. It also covers reassessment for secondary mental health services under the Mental Health (Wales) Measure 2010. Part 2 of the Measure is concerned with: (1) the appointment of care coordinators as part of the process of planning and coordinating care; and (2) care and treatment plans for people receiving secondary mental health services. Part 3 of the Measure is concerned with: (1) former users of secondary mental health services; and (2) providing a right for them to refer themselves back to secondary services for assessment directly. The draft code sets out guiding principles and practice guidance for the operation of the Measure.'

Consultation page

Consultation documents

Consultation on the future of the Parole Board (2009) Consultation "Since its creation in 1968, the role of the Parole Board has changed significantly, from an advisory body to a court-like decision-making body. It has evolved in light of legislative changes, court judgments and changing caseloads, but its functions, status and resources have not been systematically considered in light of these changes. This consultation paper represents an opportunity to address this, and consider whether any changes to its sponsorship and role would support the Parole Board in carrying out its functions more effectively and efficiently."

Consultation documents on MoJ website

Consultation on the joint Department of Health / NOMS Offender Personality Disorder Pathway Implementation Plan Consultation 'This consultation is seeking your views about a new pathway approach for the treatment and management of offenders with serious personality disorders.'

Consultation page

DH, 'Response to the offender personality disorder consultation' (gateway ref 16313, 21/10/11)

Court Fees: Proposals for reform Consultation From Government website: "Under the proposals contained in this consultation paper, those using the civil court system would, in future, be expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost. Fee remissions will continue to be provided for those who qualify, so that access to justice is not denied."

The proposals include introducing new, and amended, fees for the Court of Protection, and increased fees for judicial review.

Government website: 'Court fees: proposals for reform'

MOJ consultation website: 'Court fees: proposals for reform'

Ministry of Justice, 'Court Fees: Proposals for reform' (December 2013)† (main consultation document)

Regulatory Policy Committee, 'Impact assessment opinion: enhanced court fees' (20/1/14)† The summary of this report is: 'The Impact Assessment is not fit for purpose. The Department needs to make clear whether the proposal will result in the Court Service raising more funds than is necessary to cover their costs.'

Court of Protection, 'Dear Colleagues letter' (Mr Justice Hayden, 23/3/20) Court guidance Coronavirus resource HIVE group and 2m separation at court The "HIVE" group has been established, the objective being "to continue to refine our approach to dealing with the Court’s business and to seek to ensure that it runs as smoothly as possible". It consists of: The Vice President; The Senior Judge, HHJ Hilder; Sarah Castle, the Official Solicitor; Vikram Sachdeva QC; Lorraine Cavanagh QC; Alex Ruck Keene; Kate Edwards; Mary Macgregor, Office of Public Guardian; Joan Goulbourn, Senior Policy Advisor, Ministry of Justice. All those who attend court should keep 2m separation from others at all times. 2020-03-23
Court of Protection, 'Further Guidance for Judges and Practitioners in the Court of Protection arising from Covid-19' (Mr Justice Hayden, 24/3/20) Court guidance Coronavirus resource COP guidance on remote hearings and serious cases (1) The guidance on remote hearings is now: "as from today no hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing." (emphasis in original) (2) Genuinely urgent and life/death cases will be identified and prioritised in the usual way, but if any difficulty arises the VP's clerk may be emailed. 2020-03-24
Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers Consultation 'A consultation on the proposal that an amendment be made to the Court of Protection Rules to provide for authorised officers to deal with specified types of applications. '

Ministry of Justice, 'Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers' (consultation paper CP9/2011, June 2011)

CQC, 'Avon & Wiltshire Mental Health Partnership fined £80,000 after patient is injured falling from hospital roof' (21/8/19) Case summary Trust fined for failing to provide safe care and treatment Extract from press release: "The risk of the low roof at Applewood Ward had been highlighted in previous annual risk assessments since 2011. The outcome was that the risk should be managed through staff observation. CQC believe this was an inappropriate and inadequate response to the risk posed to all service users by this low roof. In 2015 there were 28 direct references to the low roof in the garden of Applewood Ward between January and December at seven different Trust forums. The Trust was also aware that numerous other service users had been able to access the low roof prior to the service user’s fall in January 2016. The trust was fined £80,000 for failing to provide safe care and treatment and putting patient at risk of avoidable harm. It was also ordered to pay the prosecution costs of £12,033.96 and a £170 victim surcharge." 2019-08-21
CQC, 'CQC finds improvements in use of the Mental Health Act but remains concerned about safety' (26/2/19) Press release Press release about MHA report Extract from press release: "In its Monitoring the Mental Health Act in 2017/18 report published today, CQC has concluded that there has been an overall improvement in some aspects of care in 2016 to 2018, compared with findings in 2014 to 2016. They found: (1) Some improvement in the quality of care planning and patient involvement. A higher proportion of care plans are detailed, comprehensive and developed in collaboration with patients and carers. However, there is still considerable room for further improvement. (2) The provision of information about legal rights to patients and relatives is still the most frequently raised issue from visits. In many cases, patients may struggle to understand information given to them on admission because they are most ill at this point. (3) The greatest concern from Mental Health Act monitoring visits is about the quality and safety of mental health wards; in particular acute wards for adults of working age." 2019-02-26
CQC, 'CQC to review the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism' (3/12/18) Web page CQC to review restraint, seclusion and segregation Extract from CQC website: "We will review and make recommendations about the use of restrictive interventions in settings that provide inpatient and residential care for people with mental health problems, a learning disability and/or autism. ... We will take forward this work and will report on its interim findings in May 2019, with a full report by March 2020. We have encountered the use of physical restraint, prolonged seclusion and segregation in wards for people of all ages with a learning disability and/or autism and in secure and rehabilitation mental health wards. The review will consider whether and how seclusion and segregation are used in registered social care services for people with a learning disability and/or autism. This will include residential services for young people with very complex needs - such as a severe learning disability and physical health needs - and secure children’s homes. This aspect of the review will be undertaken in partnership with Ofsted." 2018-12-03
CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (13/11/18) Document List of amendments There is a newer version of the document: CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18). The CQC published the following text alongside a full list of corrections to their 2016/17 report: "We are currently amending this document after our analysts found that we had displayed some data gathered by Mental Health Act reviewers on their visits in an inaccurate way. We will publish the updated report in November 2018. An explanation for the amendments: (1) Up until 2015-16, we used ‘Yes/No’ to document whether providers could show evidence of patient involvement in care planning. (2) In 2015-16, we added an option for Mental Health Act reviewers to document this as ‘Requires improvement’. This gave reviewers the option of documenting that the provider had shown some evidence of recording patient information, but it still required improvement. (3) When working on the 2016/17 report, our analysts found that reviewers had been inconsistent in how they had documented this information. Some reviewers had recorded patient involvement just as ‘Yes’ or ‘No’, while others had recorded as ‘Yes’, ‘No’, or ‘Requires Improvement’. (4) In preparing the report, we sought to present the information in the ‘Yes/No’ style to show a trend from past results. However, in doing so we combined the responses of ‘requires improvement’ with the ‘No’ responses, which was inaccurate. As a result, we have amended the report." 2018-11-13
CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18) Document List of amendments This document contains the amendments which have been incorporated into CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19). "An explanation for the amendments: (1) Up until 2015/16, we used ‘Yes/No’ categories to document specific types of data gathered by Mental Health Act Reviewers on their visits. In 2015/16, we added an option for Reviewers to use a category of ‘Requires improvement’. This gave Reviewers the option of documenting that the provider had shown some evidence of meeting requirements, but that it still required improvement. (2) When working on the 2016/17 report, our analysts found that Reviewers had been inconsistent in how they had documented this information. Some had recorded results with just ‘Yes’ or ‘No’, while others had recorded ‘Yes’, ‘No’, or ‘Requires improvement’. (3) In preparing the report, we sought to present the information in the ‘Yes/No’ style to show a trend from past results. However, in doing so we combined the responses of ‘Requires improvement’ with the ‘No’ responses, which was inaccurate. As a result, we have amended the report." 2018-12-31
CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19) Report Amended version of report "This document has been amended after our analysts found that we had displayed some data gathered by Mental Health Act reviewers on their visits in an inaccurate way." See CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18) for details. 2019-01-09
CQC, 'Monitoring the Mental Health Act in 2017/18' (26/2/19) Report Annual CQC report on MHA The two parts of this report contain the following headings. (1) Part 1: Key findings from our MHA activities: (1.1) National figures on the use of the Mental Health Act; (1.2) What are the key issues we have found in people's experience of the MHA? (1.21) How is information being provided to patients? (1.22) How are people being involved in care planning? (1.23) Are people accessing Independent Mental Health Advocacy? (1.24) How are services challenging restrictive practices? (1.25) Are physical health issues being identified on admission? (1.26) How is the Second Opinion Appointed Doctor service working for patients? (1.27) How are people being supported in discharge planning? (2) Part 2: CQC and the Mental Health Act: (2.1) Deaths in detention; (2.2) Complaints and contacts; (2.3) Absence without leave; (2.4) Children and young people admitted to adult mental health wards; (2.5) The First-Tier Tribunal (Mental Health). 2019-02-26
CQC, 'Relationships and sexuality in adult social care services' (21/9/19) Document Relationships and sexuality guidance Headings include: (6) Can a best interests assessment be made in relation to a person’s consent to sex? (12) What if someone lacks capacity to consent to sexual relations? (13) How is someone’s capacity to consent to sexual relations assessed? 2019-02-21
CQC, 'Routine inspections suspended in response to coronavirus outbreak' (16/3/20) Document Coronavirus resource CQC letter to providers about coronavirus The CQC has written to all registered health and social care providers stating that inspections will stop from 16/3/20 (except in a very small number of cases when there is concern about harm), asking to be notified within 24 hours of any suspected or known case or outbreak of COVID-19, and stating: "We encourage everyone to act in the best interests of the health of the people they serve, with the top priority the protection of life. We encourage you to use your discretion and act in the best way you see fit." (emphasis in original) 2020-03-16
CQC, 'The state of health care and adult social care in England 2018/19' (14/10/19) State of Care report State of Care report 2018/19 This document contains chapters on mental health care and the Deprivation of Liberty Safeguards. The headings in the summary chapter are: (1) The care given to people with a learning disability or autism is not acceptable; (2) Other types of care are under pressure; (3) More and better community care services are needed; (4) Care services and organisations must work more closely together; (5) More room and support need to be given for innovations in care. 2019-10-14
CQC, 'Thematic review of the use of restraint, prolonged seclusion and segregation for people with mental health problems, learning disabilities and/or autism: Terms of Reference' (26/11/18) Document Restraint review's terms of reference This document details how the CQC will conduct the review. 2018-11-26
CQC, 'Use of the Mental Health Act 1983 in general hospitals without a psychiatric unit' (April 2010) CQC guidance Use of MHA in general hospitals Apparently this guidance document has been "withdrawn". April 2010
Crown Prosecution Service, 'Prosecution Guidance: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) Web page CPS guidance Extract: "Headlines: (1) Police and prosecutors should cease charging the existing offences of common assault, battery, assaulting a police officer in the execution of their duty and other existing similar offences where the complainant is an emergency worker (in accordance with the definition in the Act). Prosecutors should charge under the provisions of the 2018 Act as at the commencement of the legislation where there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public interest. (2) Police should charge the offence at section 1 of the 2018 Act (where a guilty plea is anticipated and the offence is suitable for sentence in a magistrates’ court) in preference to existing summary offences that apply to assaults against emergency workers." 2018-11-13
Daniel Moseley and Gary Gala (eds), Philosophy and Psychiatry: Problems, Intersections and New Perspectives (Routledge 2015) Book Academic psychiatry book 2015
David Hewitt, 'Illegitimate concern' (2013) 157(25) SJ 9 Journal article Nearest relative of adult This article argues that the unmarried father of an adult patient is a relative for the purposes of s26, whether or not he had parental responsibility. This seems wrong as the wording of s26 means that for its purposes an unmarried father is not a relative of an adult patient because it is not possible to have parental responsibility for an adult. It may be in future that the the courts are asked to adjudicate on whether or not the situation is compatible with the ECHR, in particular in relation to an unmarried father who used to have parental responsibility. 2013
David Hewitt, The Nearest Relative Handbook (2nd edn, Jessica Kingsley 2009) Book Book all about nearest relatives 2009
Denzil Lush, Cretney and Lush on Lasting and Enduring Powers of Attorney (7th edn, Jordans 2013) Book Powers of attorney book 2013
Department for Constitutional Affairs, Mental Capacity Act 2005: Code of Practice (2007) Book MCA Code of Practice 2007
Department of Health, Code of Practice: Mental Health Act 1983 (2015) Book MHA Code of Practice 2015
DHSC, 'Coronavirus bill: what it will do' (18/3/20) Document Coronavirus resource Information about Coronavirus Bill "The Department of Health and Social Care (DHSC) has identified that to effectively manage a coronavirus outbreak in the UK, we need to introduce new fast-tracked legislation. This will provide us with the legal measures to be able to implement our phased response. This paper sets out, subject to final approvals, the elements of the new legislation and why they are needed." It will involve changes to mental health law. 2020-03-17
DHSC, 'Equality Analysis: Liberty Protection Safeguards – Mental Capacity (Amendment) Bill' (17/12/18) Document LPS equality analysis Details from Gov.uk website: "This document looks at the positive, neutral and negative effects that this legislation could have on people with protected characteristics and other groups, such as carers. This is in line with the Secretary of State’s Public Sector Equality Duty, and duties under the National Health Service Act 2006. The Mental Capacity (Amendment) Bill sets out the measures the government will take to replace the Deprivation of Liberty Safeguards (DoLS) scheme in the Mental Capacity Act 2005. This is a process that authorises deprivations of liberty for the care and treatment of those who lack capacity. The new system is called liberty protection safeguards. As changes are made to the bill, the government will consider the equality issues and this document will be updated when appropriate." 2018-12-17
DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20) Document Coronavirus resource Department of Health coronavirus ethical guidance The introduction states: "Recognising increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making." There are eight values and principles: (1) respect; (2) reasonableness; (3) minimising harm; (4) inclusiveness; (5) accountability; (6) flexibility; (7) proportionality; (8) community. Under the "respect" heading it states that "those making decisions should ... where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person’s best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf". 2020-03-19
Direct payments regulations consultation Consultation "Direct payments are crucial to achieving the Government's aim to increase independence, choice and control, for service users and their carers, through allowing them the opportunity to arrange their own personalised care. The Health and Social Care Act 2008 extends the availability of direct payments to those people who lack the capacity to consent to their receipt. In addition, the government is also reviewing the current exclusions to receiving direct payments for those people who are subject to various provisions of mental health legislation in light of the modernisation of mental health law brought about by the Mental Health Act 2007. The Government is now consulting on regulations relating to these two changes." 2008-08-19
Disclosure of Information to Victims of Mentally Disordered Offenders Consultation "Consultation on the possible introduction of a scheme for victims of mentally disordered offenders similar to the current criminal justice Victim Notification Scheme"

Consultation page

Discussion paper on a proposed European Regulation on mutual recognition of protection measures in civil matters Consultation 'We are inviting views on a proposal for a European Regulation on mutual recognition of protection measures in civil matters. ... The Regulation aims to ensure that a protection measure (for example a non-molestation order) provided to a person in one Member State is recognised and maintained when that person travels or moves to another Member State. It is hoped that this Regulation will provide a quick and efficient mechanism which will avoid the person requiring protection having to go through time consuming court procedures in the Member State of recognition, or give evidence on the same matters a second time in order to get equivalent protection in that State.'

MoJ discussion paper

The proposed measure

[Check start date.]

DOLS regulations consultation Consultation "These draft regulations confer power on the Care Quality Commission for the purpose of monitoring, and reporting on, the Mental Capacity Act 2005 Deprivation of Liberty Safeguards.

"The draft regulations also amend regulation 3 of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008. Regulation 3 currently sets out that one of the requirements for a person to be eligible to carry out a MCA DOLS assessment is that they must be insured in respect of any liabilities arising in connection with carrying out the assessment. We are proposing to amend this regulation so that assessors will be eligible if they have satisfied the supervisory body that they have adequate and appropriate insurance and / or indemnity arrangements in place."

Edge Training, 'Liberty Protection Safeguards: Jargon Buster' (18/6/19) Document LPS glossary Edge's summary of this document is as follows: "The Edge LPS Jargon Buster provides a detailed explanation of terms used in LPS such as ‘condition’ (used in a number of different ways), reviews, determinations and the relevant person (did you know the same term can relate to three different roles?)" 2019-06-18
Environmental design principles for adult medium secure units consultation Consultation "This draft document launches a consultation on revisions to previously published medium secure environmental guidance (Design Guide 1993). It is anticipated the document will annex the Best Practice Guidance and Specification for Adult Medium Secure Services, published by the Department of Health in 2007." 2009-04-17
Evening Gazette, 'Canvey: Cash damages for patient “an insult”' (4/12/00) Newspaper article False imprisonment damages claim The defendant's offer was rejected, so the case was to proceed to a jury trial. 2000-12-04
Evening Gazette, 'Canvey: Gary's Pyrrhic victory' (27/2/01) Newspaper article False imprisonment damages claim The claimant was awarded damages of £26,000, which was less than defendant's £30,000 offer. 2001-02-27
Form T132: In-patient: Statement of information about the patient Tribunal form Proforma: statement of information Information from responsible authority. 2019-06-18
Frances Patterson et al (eds), Judicial Review: Law and Practice (2nd edn, Jordans 2015) Book Judicial review book 2015
Gareth Owen et al, 'Advance decision-making in mental health - suggestions for legal reform in England and Wales' (2019) 64 Intl JL & Psychiatry 162 Journal article Advance decision-making 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." May 2019
George Szmukler, Men in White Coats: Treatment Under Coercion (OUP 2018) Book Mental health law book This book proposes mental health law reform so is topical in light of the Wessely review of the Mental Health Act. 2018
Gordon Ashton and Caroline Bielanska, Elderly People and the Law (Jordans 2014) Book Elder law book 2014
Hamish Arnott and Simon Creighton, Parole Board Hearings: Law and Practice (LAG 2014) Book Parole Board book Published in January 2014 but still (in 2017) the best book on the subject. 2014
Help shape the regulation of health and adult social care services (Consultation on new registration standards) Consultation "The regulation of health and adult social care is changing. Take part in our public consultation to help us develop guidance on what care services must do to meet new legally enforceable registration standards. From April 2010 all regulated health and adult social care providers will be required by law to register with us. This is the first time all public and independent health and adult social care services in England will need to meet essential common standards of quality and safety. We would like your feedback on whether our guidance appropriately reflects the new registration standards and what should rightly be expected of a safe, quality care service."

Consultation documents

HHJ Carolyn Hilder, 'Court User Group meeting (28/4/20) cancellation notice' (Letter to stakeholders, 18/3/20) Letter Coronavirus resource COP User Group coronavirus update The next CUG meeting has been postponed from 28/4/20 until 6/10/20, and any issues arising in the meantime should be addressed to the Senior Judge of the Court of Protection's Business Support Officer. 2020-03-18
Hill Dickinson LLP, 'Coronavirus Act - key facts' (26/3/20) Article Coronavirus resource Summary of Coronavirus Act 2000 This detailed summary of the Coronavirus Act 2020 contains the following headings: (1) Emergency registration of health and social care professionals; (2) Suspension of duties to undertake assessments of need/discharge of patients from hospital; (3) Deaths and inquests; (4) Indemnity for health service activity; (5) Powers in relation to potentially infectious persons; (6) Children; (7) Offences; (8) Impact on NHS employers; (9) Emergency volunteering leave; (10) Statutory sick pay; (11) Changes to the Mental Health Act 1983: (a) Applications for detention under section 2 and section 3; (b) Holding powers; (c) Treatment - administration of medicine to persons liable to detention in hospital; (d) Detention in place of safety; (e) Patients concerned with the criminal justice system. 2020-03-26
HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20) Document Coronavirus resource Coronavirus hospital discharge service requirements The covering letter states: "We face an unprecedented challenge in the weeks and months ahead to provide health and social care services that meet the needs of people affected by coronavirus (COVID-19)." The document summary states: "This document sets out the Hospital Discharge Service Requirements for all NHS trusts, community interest companies and private care providers of acute, community beds and community health services and social care staff in England, who must adhere to this from Thursday 19th March 2020. It also sets out requirements around discharge for health and social care commissioners (including Clinical Commissioning Groups and local authorities). ... Implementing these Service Requirements is expected to free up to at least 15,000 beds by Friday 27th March, with discharge flows maintained after that." In Annex A (The Discharge to Assess Model) the MCA is mentioned: "Duties under the Mental Capacity Act 2005 still apply during this period. If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge." 2020-03-19
HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) Document Conditional discharge/DOL guidance The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM [2018] UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible. 2019-01-08
HMCTS and MOJ, 'Coronavirus (COVID-19): courts and tribunals planning and preparation' (published 13/3/20 and updated periodically) Court guidance HMCTS and MOJ coronavirus guidance Advice and guidance for court and tribunal users during the coronavirus outbreak. This Gov.uk page is updated regularly, contains its own information, and also contains links to many of the relevant documents. 2020-03-13
HMCTS, 'HMCTS telephone and video hearings during coronavirus outbreak' (18/3/20) CQC guidance Coronavirus resource Telephone and video hearing coronavirus guidance This guidance on telephone and video technology has information under the following headings: (1) The decision to use telephone and video hearings; (2) Using existing technology and making new technology available; (3) The rules on using video and audio technology in courts; (4) Proposed legislation 2020-03-18
HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18) Tribunal guidance Requirements imposed on hospitals This document states that "[a] hearing room is as essential to a psychiatric hospital as an operating theatre is to a surgical hospital" and that if hospitals do not adhere to the minimum requirements or obtain a written exemption then the tribunal "may consider holding its judicial hearings elsewhere". The main headings are (1) Minimum standards of safety and security, and (2) Minimum requirements for facilities and amenities. 2018-04-11
HMPPS, 'Leave Application for Restricted Patients' (3/5/19) Form Leave application form This updated form is for all leave except medical leave for high profile cases (for which there is a separate form). 2019-05-03
HMPPS, 'Medical Leave application for high profile restricted patients' (3/5/19) Form Medical leave application form This updated form is required when applying for permission to grant medical leave to a high profile patient. 2019-05-03
HMPPS, 'Mental Health Casework Section and NHS England - joint performance management framework and target timescales 2019/20' (1/8/19) Document MHCS targets This document presents target timescales for the Mental Health Casework Section to consider key decisions for restricted patients. The targets, measured in calendar days from receipt of application to decision issued, are: (1) prison transfer, 5 days; (2) remission to prison, 7 days; (3) hospital transfer - trial leave from high to medium secure, 28 days; (4) hospital transfer - downgrade in security, excluding high to medium, 28 days; (5) hospital transfer, level, 14 days; (6) hospital transfer, upgrade, 7 days; (7) community leave, escorted day, 28 days; (8) community leave, unescorted day, 35 days; (9) community leave, overnight, 35 days; (10) community leave, long-term escorted leave, 35 days; (11) conditional discharge, 28 days; (12) absolute discharge, 28 days; (13) recall, same day. Compassionate and medical leave have not been included in this set of targets; where cases are urgent, they remain at 24 hours. 2019-08-01
Home Office, 'Preventing and tackling forced marriage' (consultation from 15/11/18 to 23/1/19) Consultation Summary from Gov.uk website: "This consultation seeks views about whether it is necessary to introduce a new legal mandatory reporting duty relating to cases of forced marriage and, if it is, what such a reporting requirement would look like. It also seeks views on how the current guidance on forced marriage could be improved and strengthened. The consultation is open to everyone. We are particularly interested in hearing from victims and survivors of forced marriage, those with expertise in the area of forced marriage, and relevant professionals, including those working in social care, education, the police and healthcare." 2018-11-15
Home Office, 'Preventing and tackling forced marriage: a consultation' (15/11/18) Report The introduction of this document begins: "This consultation seeks views about whether it is necessary to introduce a new legal mandatory reporting duty relating to cases of forced marriage and, if it is, what such a reporting requirement would look like. It also seeks views on how the current guidance on forced marriage could be improved and strengthened." The Background chapter begins: "A forced marriage is a marriage where one or both of the spouses does not consent to the marriage and is coerced into it, or where one or both of the spouses lacks the capacity to consent. Coercion may involve violence, threats, or different types of pressure (e.g. psychological, financial, or emotional). Forced marriage is a criminal offence in England and Wales under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014. The offence applies regardless of whether the marriage ceremony is legally binding or not." 2018-11-15
Independent Review of the Mental Health Act 1983 by Simon Wessely (2018) Consultation Extract from website: "The review was set up to look at how the legislation in the Mental Health Act 1983 is used and how practice can improve. The purpose of the review is to understand the reasons for: (a) rising rates of detention under the Act; (b) the disproportionate number of people from black and minority ethnic groups detained under the Act; (c) processes that are out of step with a modern mental health care system. The review will seek the views of service users, carers, relevant professionals, and affected organisations in producing recommendations. It will produce a report with recommendations for change in autumn 2018." 2017-10-04
Independent Review of the Mental Health Act 1983, 'Modernising the Mental Health Act: Increasing choice, reducing compulsion' (final report, 6/12/18) Report The report states that "[a] purpose and a set of principles should be included in the Act itself" and makes recommendations under the following headings: (1) Principle 1 - Choice and autonomy: (a) Making decisions about care and treatment; (b) Family and carer involvement; (c) Advocacy; (d) Complaints; (e) Deaths in detention. (2) Principle 2 - Least Restriction: (a) Tackling the rising rates of detention; (b) Criteria for detention; (c) A statutory Care and Treatment Plan; (d) Length of detention; (e) Challenging detention; (f) Deprivation of liberty: MCA or MHA?; (g) Community Treatment Orders; (h) Coercion and restrictive practices within inpatient settings. (3) Principle 3 - Therapeutic Benefit: (a) Care planning/aftercare; (b) Hospital visitors; (c) Inpatient social environments; (d) Inpatient physical environments. (4) Principle 4 - The Person as an Individual: (a) Person centred care; (b) Recognition of patient individuality at the tribunal; (c) The experiences of people from ethnic minority communities; (d) Children and young people; (e) People with learning disabilities, autism or both; (f) Policing; (g) Patients in the criminal justice system; (h) Immigration Detention; (i) Victims. (5) System wide enablers: (a) Data; (b) Digital enablers; (c) Quality Improvement (QI); (d) Staffing; (e) Improving staff morale. 2018-12-06
Interim guidance on assisted suicide Consultation The purpose of this consultation is to seek a wide range of views on the Director of Public Prosecution’s (DPP’s) recently published interim guidance on assisted suicide.

CPS consultation page


See also: Assisted suicide

James Goddard, 'Coronavirus: emergency legislation' (House of Lords Library, 18/3/20) Document Coronavirus resource Summary of legislation relating to coronavirus This article describes the Health Protection (Coronavirus) Regulations 2020, the proposed Coronavirus Bill (which was introduced after the article's publication), and the Civil Contingencies Act 2004, and provides a list of further reading. 2020-03-18
Joint Committee on Human Rights, 'Reform of the DOLS inquiry' (call for evidence from 9/2/18 to 2/3/18) Consultation Extract from website: "The Committee is issuing an open call for evidence from interested parties and would welcome written submissions by Friday 2 March on: (1) Whether the Law Commission's proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards; (2) Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency; (3) Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute. Submissions should be no more than 1500 words." 2018-02-09
Jonathan Butler, Mental Health Tribunals: Law, Practice and Procedure (2nd edn, Jordans 2013) Book MHT book 2013
Jonathan Wilson, 'Mental health: update' (Legal Action, April 2016) Journal article Case law update Jonathan Wilson looks at decisions on how tribunals should approach unlawfulness, conditional discharge and deprivation of liberty, representatives, withdrawal of tribunal applications, appropriate treatment, guardianship, assessment of risk, and social circumstances reports. 2016-04-01
Jonathan Wilson, 'Mental health: update' (Legal Action, February 2017) Journal article Case law update Jonathan Wilson considers cases concerning the legal status of hospital managers’ hearing decisions, anonymity for mental health patients, the provision of reasons for recall to hospital, and the relevance of the European Convention on Human Rights to mental health tribunal decisions. 2017-02-01
Jonathan Wilson, 'Mental health: update' (Legal Action, February 2018) Journal article Case law update Jonathan Wilson considers mental health case law relating to capacity, deprivation of liberty, discharge, after-care, and procedural matters. 2018-02-01
Jonathan Wilson, 'Mental health: update' (Legal Action, February 2019) Journal article Case law update Jonathan Wilson considers mental health case law from the past year relating to deprivation of liberty in the community, tribunal procedure, detention criteria, pocket money, after-care and other matters. 2019-02-01
Jonathan Wilson, 'Safeguards against What? A critical analysis of the Deprivation of Liberty Safeguards' (LLM dissertation, 28/8/13) Document Critical analysis of DOLS This dissertation considers the meaning of ‘deprivation of liberty’ in the context of the Deprivation of Liberty Safeguards (DoLS) which were implemented in April 2009 to bridge the ‘Bournewood gap’. This was a gap in the law confirmed by the European Court of Human Rights (ECtHR) in October 2002, whereby people lacking capacity were accommodated in situations amounting to deprivation of liberty without sufficient legal safeguards. The dissertation will discuss a fundamental problem with the DoLS, namely that ‘deprivation of liberty’ is nowhere defined: it means what it means in Article 5(1) of the European Convention on Human Rights (ECHR), in other words, it means what the courts consider it to mean on a case-by-case basis. 2013-08-28
Judiciary of England and Wales, 'Additional Guidance for Judges and Practitioners arising from Covid-19' (The Hon Mr Justice Hayden, 18/3/20) Court guidance Coronavirus resource Further COP coronavirus guidance (1) This guidance contains the following key messages (paraphrased): (a) hearings of less than 2 hours will be by telephone, but longer hearings will proceed unless the judge decides otherwise; (b) all practitioners must consider the range of options, including Skype and telephone conferences; (c) if directions hearings cannot be dealt with by agreement then a remote hearing should be sought; (d) every sensible effort to alleviate the pressure on court staff should be made; (e) further use of Skype beyond the current limited circumstances is being considered. (2) The guidance answers various questions in relation to: (a) acceptance of electronic signatures; (b) notification of P; (c) interim appointment of professional deputies; (d) service by email; (e) scanned documents and electronic bundles; (f) capacity assessments undertaken via video. (3) A "Core Working Group (COVID-19)" including judges and representatives of the (legal) profession will be set up to look at ongoing interim solutions. 2020-03-18
Judiciary of England and Wales, 'Civil justice in England and Wales: Protocol regarding remote hearings' (20/3/20) Court guidance Coronavirus resource Civil courts remote hearing protocol "This Protocol seeks to provide basic guidance as to the conduct of remote hearings." 2020-03-20
Judiciary of England and Wales, 'Visits to P by Judges and Legal Advisors' (The Hon Mr Justice Hayden, 13/3/20) Court guidance Coronavirus resource COP coronavirus guidance This guidance from the Vice President of the Court of Protection states that "visits should only be made to P where that is assessed as absolutely necessary", that "[a]lternative arrangements should always be considered first, such as telephone FaceTime and Skype conferencing", and that "[v]isits to care home are to be strongly discouraged" (emphasis in original). Judges should discuss any potential visits with the Regional Lead Judge, and keep informed of the advice on the judicial intranet which is reviewed daily. 2020-03-13
Julian Hendy, 'Victims and the Mental Health Tribunal' (UK Administrative Justice Institute, 10/3/20) Article Victims and tribunals In this article Julian Hendy (founder of the Hundred Families charity) argues that the Mental Health Tribunal "could easily be more transparent and accountable to victims if only [it] had the will do to so". He argues for less secrecy and more transparency (making comparisons with the Court of Protection's transparency pilot and the Family Court's transparency review) and a greater role for victims in the tribunal's decision-making process (by analogy with the Parole Board's post-Warboys measures and its welcoming of victim personal statements). 2020-03-10
Kris Gledhill, Defending Mentally Disordered Persons (LAG 2012) Book Criminal defence book 2012
LAA, 'Contingency Measure for Civil Escape Cases - Electronic Submission' (24/3/20) Legal Aid resource Coronavirus resource Civil escape case claims As a temporary measure, the LAA are requiring that these be submitted electronically. The guidance document contains full details. 2020-03-24
LAPG, 'Guidance on what the Legal Aid Contract and LAA COVID-19 Guidance Allows' (25/3/20) Document Coronavirus resource Guidance about LAA contract terms This detailed guidance contains information under the following headings: (1) Your office; (2) Progressing Current Cases; (3) Potential New Clients; (4) Providing “Remote” Advice and Digital Signatures; (5) Means Assessment for Remote Advice; (6) Supervision; (7) Supervisor Absence; (8) Key Workers; (9) Speak to the LAA. 2020-03-25
Larry Gostin et al (eds), Principles of Mental Health Law and Policy (Oxford 2010) Book Academic mental health law book 2010
Law Commission, 'Mental Capacity and Deprivation of Liberty' (consultation from 7/5/15 to 2/11/15) Consultation "On 7 July 2015 we opened a consultation on the law of mental capacity and deprivation of liberty. The consultation is now closed. We expect to publish a final report with our recommendations and a draft Bill in 2016." 2015-07-07
Law Society, 'Coronavirus (COVID-19) advice and updates' (19/3/20) Web page Coronavirus resource Law Society coronavirus guidance This guidance contains information under the headings: (1) Advice for employers; (2) Advice for firm owners, managing partners or senior leaders; (3) Advice for members visiting police stations, prisons or courts; (4) Advice for international firms; (5) Advice for conveyancers; (6) Advice for litigators; (7) Advice for legal aid firms. 2020-03-19
Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 5/12/18) Web page This document contains updated guidance on the professional development requirements for panel membership. Dated: December 2018. Metadata: created 5/12/18. Downloaded 7/12/18. Filename: mental-health-accreditation-guidance-december-2018.pdf 2018-12-05
Law Society, 'Parliamentary briefing: Mental Capacity (Amendment) Bill: House of Commons second reading' (18/12/18) Document Parliamentary briefing on Mental Capacity (Amendment) Bill Extract from Law Society website: "The Law Society is concerned by provisions in the Mental Capacity (Amendment) Bill. While attempting to simplify the current arrangements under the Deprivation of Liberty Safeguards (DoLS), the Bill removes vital existing safeguards for cared-for people. The Bill should be amended to avoid the unlawful treatment of the vulnerable individuals who receive care and treatment under conditions of detention. Many changes have been made but there is still some way to go. There is a real risk that many of the flaws in the existing system will be duplicated and that the new system will replace one deficient system with another than removes existing safeguards for people. This briefing sets out our key positions on the Bill." 2018-12-18
Law Society, Deprivation of Liberty: Collected Guidance (Law Society, 2016) Book Book containing deprivation of liberty guidance 2016
Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20) Legal Aid resource Coronavirus resource LAA coronavirus guidance This guidance, which will be continuously updated, has information under the following headings: (1) Our contingency plans; (2) Coronavirus health advice; (3) Financial support; (4) Our proportionate approach to contract management; (5) Reducing administrative activity for providers; (6) Office requirements; (7) Applications other than in person; (8) Assessing financial eligibility where a client cannot attend; (9) Duty solicitor absence; (10) Crime Telephone advice; (11) Stay up to date. The 24/3/20 version states: "In situations where it is not possible to get a client signature, digitally or otherwise, please make a note on the file explaining why, countersigned by a supervisor, and also make a note on the application/form when submitted to avoid delays or issues with processing. Please seek a signature at the earliest possible opportunity." 2020-03-18
Legal Aid Agency, 'Keycard 54' (issued Apr 2018, updated Sep 2018) Document Financial eligibility This document is helpful when working out financial eligibility for civil Legal Aid. Superseded by: Legal Aid Agency, 'Keycard 55' (April 2019). September 2018
Legal Aid Agency, 'Keycard 55' (April 2019) Legal Aid resource Financial eligibility This document is helpful when working out financial eligibility for civil Legal Aid. 2019-04-08
Legal Aid consultation: refocusing on priority cases (2009) Consultation "This paper sets out proposals for reforming the legal aid rules to ensure that limited resources are focused on priority cases. The changes proposed include strengthening public interest considerations in deciding whether to grant civil legal aid; ceasing to provide funding for low priority civil and criminal matters, where issues can be resolved instead through complaints procedures or ombudsman schemes; restricting access to civil legal aid for those not resident in the UK; and notifying the other side when civil legal aid is applied for to discourage fraudulent applications."

CLS News: Important changes to the Funding Code - 1/4/10

Response to consultation - Feb 2010

Consultation documents on MoJ website

Consultation summary on LSC website

Legal aid: funding reforms (2009) Consultation

Responses published 16/12/09.

Response re experts' fees published 3/3/10. See bottom of consultation page and:

Lord Chief Justice, 'Coronavirus (COVID-19): Jury trials' (17/3/20) Court guidance Coronavirus resource Coronavirus jury trials guidance (1) No new trial should start in the Crown Court unless it is expected to last for three days or fewer; (2) all cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned; (3) trials currently underway will generally proceed in the hope that they can be completed. 2020-03-17
Lord Chief Justice, 'Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts' (19/3/20) Court guidance Coronavirus resource Coronavirus court guidance on remote hearings This message states: "The rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime we have phones, some video facilities and Skype." It contains some outline guidance in relation to social distancing, litigants in person, trials and hearings involving live evidence, prioritising work, possession proceedings, injunctions and committal hearings, civil appeals, and family matters. 2020-03-19
Lord Chief Justice, 'Review of court arrangements due to COVID-19, message from the Lord Chief Justice' (23/3/20) Court guidance Coronavirus resource Jury trials have been paused (1) This message notes that jury trials cannot be conducted remotely and states that all jury trials will be paused for a short time to enable appropriate precautions to be put in place (this topic is only of peripheral interest to MHLO readers so please check the Judiciary website or elsewhere for further updates). (2) In relation to family and civil courts it confirms that hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety. 2020-03-23
Lucy Series et al, 'Welfare cases in the Court of Protection: A statistical overview' (Cardiff University, 28/9/17) Report Statistics The report is based on findings from (1) a study based on data gathered from CoP welfare case files held by the court; and (2) a study using the Freedom of Information Act 2000 to gather data from local authorities and NHS bodies about their involvement in CoP welfare litigation. 2017-09-27
Luke Clements et al, Community Care and the Law (6th edn, LAG 2017) Book Community care book See Review by Alex Ruck Keene and Caroline Miles, ‘Community Care and the Law’ (2018) 33 Disability & Society 317†. 2017
Luke Haynes and Mithran Samuel, 'Government issues deprivation of liberty definition in bid to provide clarity to practitioners' (Community Care, 11/1/19) Web page Proposed statutory DOL definition Subheading: "Ministers’ amendment to DoLS replacement bill sets out when a person would not be deprived of liberty, but sparks concerns over compatibility with human rights law". 2019-01-11
Mark Hinchliffe and Zoe Blake, 'Letter to all Hospitals regarding our Minimum Requirements' (11/4/18) Tribunal guidance Covering letter for minimum requirements guidance This is a covering letter for HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18). 2018-04-11
Mark Neary, Get Steven Home (Lulu 2011) Book Deprivation of liberty book The story behind Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP). 2011
Martin Jones, 'Guidance to members' (Parole Board, 20/3/20) Tribunal guidance Coronavirus resource Parole Board coronavirus guidance The guidance from the PB CEO's Twitter account is: (1) The Parole Board is considering changes to guidance, so that fewer cases are directed to oral hearing. (2) The views of the prisoner or representative will be sought but the decision on whether an oral hearing is needed lies with the panel chairman. (3) At oral hearings, panel members, legal representatives, witnesses and victims may be allowed to undertake video/telephone links from home to try to avoid delay to hearings. (4) If one panel member cannot attend owing to coronavirus then the hearing should proceed wherever possible. (5) More cases will be concluded by a single panel member. 2020-03-20
Martin Picton et al, 'The Crown Court Compendium' (Judicial College, December 2019) Sentencing guidelines Crown Court trials and sentencing "The main aim of this Compendium is to provide guidance on directing the jury in Crown Court trials and when sentencing, though it contains some practical suggestions in other areas, for example jury management, which it is hoped will be helpful." Both Part I (Jury and Trial Management and Summing Up) and Part II (Sentencing) have content relevant to mental health law. December 2019
Matthew Graham and Jakki Cowley, A Practical Guide to the Mental Capacity Act 2005 (JKP 2015) Book MCA book 2015
Matthew Stanbury, 'The making of hospital orders and the use of hybrid orders' (Garden Court North, 27/3/18) Web page Summary of sentence guidance case This article, written by counsel for one of the appellants, summarises the case of R v Edwards [2018] EWCA Crim 595. 2018-03-27
Medical examination of the patient - consultation Consultation The Tribunal Procedure Committee propose to amend the rules as follows: (a) to make the medical examination discretionary (except in s2 cases, where there is to be no change); (b) to allow any member of the tribunal to view the medical records (rather than just the medical member); (c) to require either a medical examination or a finding that one is unnecessary or not practicable before a tribunal can proceed in the patient's absence.



  • Tribunal Procedure (Amendment) Rules 2014/514 — Extract from Explanatory Note: "Rules 17 to 20 amend rules 32, 34, 37 and 39 of the HESC Rules. The amendments relate to the examination by the Tribunal of patients and their medical records and to the circumstances in which the Tribunal may proceed with the hearing of the appeal in the absence of the patient." In force 6/4/14.§
Mental Health Tribunal for Scotland, 'Covid-19 Outbreak - Important Update' (19/3/20) Tribunal guidance Coronavirus resource Scottish MHT's coronavirus guidance The MHTS intends to hold all hearings by teleconference from Monday 23/3/20. The update details how this will work in practice, including assisting patients to participate in proceedings. 2020-03-19
Mental Health Tribunal, 'Guidance for the observation of tribunal hearings in the First-tier Tribunal Health Education and Social Care Chamber (mental health jurisdiction)' (10/1/19) Tribunal guidance Observation guidance This guidance supersedes Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09), the main difference being that it is no longer necessary for observation requests by solicitors, barrister, nurses, doctors, social workers etc to be made in advance to the Deputy Chamber President. 2019-01-10
Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09) Tribunal guidance Observation guidance This guidance has been superseded by Mental Health Tribunal, 'Guidance for the observation of tribunal hearings in the First-tier Tribunal Health Education and Social Care Chamber (mental health jurisdiction)' (10/1/19). It deals with the various categories of observers and the terms on which they may be permitted to attend tribunal hearings. 2009-11-05
Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20) Tribunal guidance Coronavirus resource Guidance to psychiatrists about remote hearings (1) This guidance to psychiatrists includes the following: all evidence will be taken before a tribunal judge alone, using BT MeetMe (phone or video); the doctor giving evidence will released after giving evidence except in all but exceptional cases; the patient will not be given the decision orally. (2) To help the tribunal, clinical teams should: (a) submit s2 reports the day before the hearing (to avoid delays); (b) advise the tribunal judge if the patient will be unable to stay in the room or should give evidence first; (c) tell the tribunal judge whether the patient can remain as a voluntary patient (which is no longer possible in many areas); (d) emphasise any limitations of the evidence (for instance if the patient has recently been moved between "clean" and "dirty" coronavirus wards); (e) focus on the statutory criteria; (f) suggest delayed discharge for follow-up to be arranged; (g) give evidence from a private area. (3) The tribunal are encouraging wing members to return to clinical work, and are looking at formats for shorter reports. 2020-03-26
Mental Health Tribunal, 'Update on coronavirus situation' (18/3/20) Tribunal guidance Coronavirus resource MHT coronavirus guidance The position set out in this guidance is that: (1) hearings will continue as planned; (2) hearings require all three panel members, but this may change as part of the contingency plan being prepared; (3) requests to give evidence via telephone should be sent to the mhtcorrespondence email address; (4) hearings are being arranged as telephone conferences when hospitals are in lock-down; (5) listing window extension requests should be submitted to mhtcasemanagementrequests, but extended windows may be part of the contingency plan; (6) the tribunal is pushing for greater provision for paper hearings; (7) pre-hearing medical examinations are continuing, subject to the circumstances of each case, but these could cease if all hearings become telephone reviews. Largely superseded by: Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20). 2020-03-18
Michael Butler, A Practitioner's Guide to Mental Health Law (Wildy, Simmonds and Hill 2014) Book Mental health law book 2014
Mind, 'Legal Newsletter' (March 2020) Newsletter Mind's legal newsletter This newsletter contains news under the following headings: (1) Comprehensive mental health service for children still a long way off; (2) Making decisions for someone with fluctuating capacity; (3) National inquiry into the use of restraint in schools; (4) CQC monitoring the Mental Health Act in 2018/2019; (5) New guidance for the Court of Protection; (6) The meaning of "long-term" in the definition of disability; (7) Veganism - Equalities and Human Rights issues in mental health settings; (8) Deloitte highlight poor mental health which costs employers billions; (9) Can an incapacious patient still choose their solicitor? (10) New study about Community Treatment Orders 2020-03-11
Ministry of Justice, 'Circular 2018/01: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) Document MOJ circular Extract from document: "The purpose of this circular is to provide guidance on the Act’s provisions. The circular is for guidance only and should not be regarded as providing legal advice. Guidance for prosecutors on the new offence of assault on an emergency worker contained in the Act will be made available on the CPS website. The CPS are responsible for advising police for the purposes of criminal proceedings. For other operational advice, police should seek advice from their own legal advisors." 2018-11-13
Ministry of Justice, 'COVID-19 Stakeholder Update' (22/3/20) Email Coronavirus resource MOJ coronavirus update This email contains (among other things) clarification that the "key worker" category includes: advocates required to appear before a court or tribunal (remotely or in person); other legal practitioners required to support the administration of justice, including duty solicitors and lawyers and others who work on imminent or ongoing court or tribunal hearings; solicitors and barristers advising people living in institutions or deprived of their liberty. 2020-03-22
Ministry of Justice, 'Family Court Statistics Quarterly, England and Wales, April to June 2017' (28/9/17) Report Statistics including COP and OPG This quarterly statistical bulletin includes the following chapters: (10) Mental Capacity Act - Court of Protection; (11) Mental Capacity Act - Office of the Public Guardian. Extract from Gov.uk website: "This report presents the latest statistics on type and volume of cases that are received and processed through the family court system of England and Wales in the second quarter of 2017 (April to June). The material contained within this publication was formerly contained in Court Statistics Quarterly, a publication combining Civil, Family and Criminal court statistics." 2017-09-28
Ministry of Justice, 'FOIA response 181221028: DOL conditions' (23/1/19) Document FOIA response In response to a FOIA request the MOJ have stated that (paraphrased): (1) There are 2712 conditionally-discharged patients. (2) A database search for the keywords "escorted" and "accompanied" identified 39 cases where the patient has a condition not to go into the community unless escorted or accompanied by staff. (3) A database search for the keyword "permission" did not identify any cases where the patient has a condition not to leave without permission. (4) It cannot be known for certain that these conditions amount to confinement for Article 5 purposes until each case is examined in discussion with the RC. (5) No information can be provided about capacity to abide by the conditions as this information is not held (information about capacity held within RCs' reports is not considered to be sufficiently recent). (6) There may be more than these 39 cases because: (a) the wording of conditions varies considerably; and (b) it is likely that in some cases the care plan, rather than a condition, includes arrangements that amount to a deprivation of liberty (RCs and others have been asked to contact the MOJ for advice in such cases). 2019-01-23
Ministry of Justice, 'Reconsideration of Parole Board decisions: Creating a new and open system' (consultation from 28/4/18 to 28/7/18) Consultation "This paper considers and seeks views on the proposed parameters for and operation of the proposed reconsideration process, with respect to: (1) which types of decisions should be reconsidered; (2) who should be able to apply for reconsideration of a decision; (3) on what basis a decision should be reconsidered; (4) how we can make the process transparent whilst also ensuring there are sufficient safeguards to protect panel members, victims and others." 2018-04-28
Ministry of Justice, 'Reconsideration of Parole Board decisions: creating a new and open system: Government response to the public consultation' (Cm 30, 4/2/19) Document Parole Board consultation outcome Details of outcome from Gov.uk website: "This consultation sought the public’s view on a mechanism that would allow the Parole Board to reconsider its decisions in certain circumstances. The Government has concluded that there should be a mechanism to allow reconsideration of parole decisions. The process will provide an easier way to challenge decisions which appear to be seriously flawed. The Secretary of State will able to apply for reconsideration to the Parole Board, taking account of any representations from victims. It will no longer be necessary to resort to costly and time-consuming judicial review proceeding. Decisions on whether a case should be reconsidered will be taken by judicial members of the Parole Board. Reasons for their decisions will be provided to victims. We will make provision in the Parole Board Rules to implement these changes later this year. Between now and then, we will put into place the necessary guidance, training and resources need to operate this mechanism." 2019-02-04
Ministry of Justice, 'Revising the Mental Capacity Act 2005 Code of Practice: Call for evidence' (consultation from 24/1/19 to 7/3/19) Consultation Extract: "Since the MCA came into force in 2007, the COP has been used extensively by a wide range of stakeholders. In light of changes in case law, and lessons learned through practical use of the COP over the past 11 years, revision of the COP is required in order to better reflect current needs. The Act itself is currently not under review, however the survey below provides an opportunity to comment on the practical guidance outlined in the COP. Comments received will inform decisions to revise, update and where relevant to provide further guidance in the COP." 2019-01-24
Ministry of Justice, 'Transforming our justice system' (consultation from 15/9/16 to 27/10/16) Consultation The main proposal relevant to the MHT is an amendment (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the Senior President of Tribunals, and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system.

Consultation proposals

The following three principles and aims are taken from the first, overview chapter. (1) Proportionate: (a) More use of case officers for routine tasks, (b) More decisions made 'on the papers', (c) More virtual hearings, (d) More cases resolved out of court. (2) Accessible: (a) Putting probate applications online, (b) Managing divorce online, (c) Digitising applications for Lasting Powers of Attorney. (3) Just: (a) Provide a system that works for everyone, (b) Continue to ensure open justice. In relation to LPAs, it states: "Allowing people to make arrangements for a time in the future when they may not be able to make decisions by themselves is a helpful but often emotionally stressful process. Applications have been partially digitised since 2014, resulting in fewer application forms being returned because of errors. We will build on this by making the system fully digital to deliver a quicker service."

Chapters 2-5 relate to Criminal, Civil, Family, and Tribunals. The following are the aims in relation to tribunals: (a) Streamlining procedures and encouraging a balanced approach, (b) Digitising the Social Security and Child Support Tribunal, (c) Simplifying panel composition, (d) Reforming employment tribunals. In relation to panel composition it states: "Another factor in taking a balanced, tailored approach to tribunal cases is making sure the panels that make decisions in tribunals are designed to best suit the circumstances of the case. Most tribunals currently reflect historic arrangements that may be out of date and do not tailor the expertise of the panel according to the case. We propose to revise the current arrangements for setting panel composition to make sure that that appropriate expertise is focussed on those cases that need it. We would welcome views on how best to achieve this – more details are available later in Chapter 7.3."

Chapter 6 states that views are invited on three specific elements: (a) Assisted digital facilities, (b) Online conviction and statutory fixed fine, and (c) Panel composition in the tribunals.

The following are extracts from chapter 7.3: "As we streamline the tribunals system, we need to be more tailored and flexible in the way that non legal members are used. Panel composition will remain a matter for the Senior President of Tribunals (SPT), but we want to move away from a blanket approach of using non-legal members regardless of whether their specialist expertise and knowledge is relevant or required. Instead, they should only be part of the panel where their presence is relevant to the case. ... The terms of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 allow the SPT to set the composition of tribunal panels in the unified system via Practice Statements. ... Some change has already been introduced by way of revised Practice Statements, and has not been shown to have any negative effects on decisions. ... We therefore propose to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the SPT greater freedom to adopt a more proportionate and flexible approach to panel composition, by: (a) Providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT, and (b) Removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system. ... The use of multiple panel members in the unified tribunals currently costs the taxpayer around £21m per year in fees alone, with daily fees for each member ranging from £200 - £500, plus additional costs for travel and subsistence, training, appraisal and general administration. By using NLMs in a more tailored, flexible way, we can make sure that more people in the tribunals will benefit from their specialist expertise and knowledge, while delivering better value for the taxpayer."

The questions in chapter 7.3 in relation to the last element are: (a) "Question 7: Do you agree that the SPT should be able to determine panel composition based on the changing needs of people using the tribunal system? Please state your reasons." (b) "Question 8: In order to assist the SPT to make sure that appropriate expertise is provided following the proposed reform, which factors do you think should be considered to determine whether multiple specialists are needed to hear individual cases? Please state your reasons and specify the jurisdictions and/or types of case to which these factors refer."

Government response

In the consultation document it was proposed to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the Senior President of Tribunals (SPT) "greater freedom to adopt a more proportionate and flexible approach to panel composition", by (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT; and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system.

Following the consultation, the government will proceed with proposal (b) as the existing requirement is "an unnecessary restriction to the SPT to base decisions on what is the most appropriate and proportionate approach", but will not proceed with proposal (a) because of concerns arising from "the assumption that this will apply in all cases" (although it appears that this concession is not intended to make any difference in practice). To this end, the Order will be amended so that that "the SPT may provide that a panel should consist of one, two or three members, as required, in order to determine the matters before the tribunal justly and fairly". The consultation response envisages that the SPT will consult with both the tribunal judiciary and wider stakeholders before making any changes to panel composition.


Ministry of Justice, 'Updated guidance on the Rehabilitation of Offenders Act 1974' (4/3/14) Document Guidance on spent convictions etc Is a restricted hospital order spent when the patient is conditionally discharged or when he is absolutely discharged? The Ministry of Justice does not have an official position on the matter, but refers to this guidance document which states that under the Rehabilitation of Offenders Act 1974 the rehabilitation period of a hospital order, with or without a restriction order, is the "period of the order" (email correspondence, 11/7/19). 2014-03-04
Ministry of Justice, Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice (2008) Book MCA DOLS Code of Practice 2008
Minutes of Court User Group Meeting (15/10/19) Minutes COPUG minutes (1) Apologies; (2) Minutes and Action points; (3) Court Manager’s Report; (4) Misplaced COP20As and COP20Bs; (5) Interim deputyship orders that specify the date on which the appointment will end; (6) Clerical mistakes or slip rules on court orders; (7) Service of final orders (Rule 6.2); (8) Anonymised deputyship orders; (9) Delayed issue of COPDOL 11 applications; (10) Delivery of bundles and position statements; (11) Problems in deputyship orders; (12) Service of orders on Local Authority applicant; (13) P&A deputyship orders - exclusion of authority to (a) enter into/terminate tenancies or (b) sell; (14) Required forms; (15) Photographs of court as visual aid for P; (16) E-mails received out of hours to vacate next day hearings; (17) Any other business. 2019-10-15
Minutes of Court User Group Meeting (30/4/19) Minutes COPUG minutes (1) Apologies; (2) Minutes and Action points; (3) Court Manager's Report; (4) Update on the Mental Capacity Amendment Bills; (5) Response to correspondence; (6) Update on ALR scheme; (7) Contacting the court by telephone; (8) Update on progress of e-bundling; (9) COP9 papers not served; (10) COP General visitors using insecure IT equipment when visiting lay deputies; (11) Dealing with urgent applications; (12) Applications for authorities outside the standard terms of deputyship; (13) Request for consideration of a streamlined property and affairs process; (14) Amendment of property and affairs order templates to include reference to support for making decisions when P has capacity; (15) Naming solicitors in judgments; (16) Any other business. Next meeting: 15/10/19 at 1400, at First Avenue House. 2019-04-30
Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19) Letter General consent granted for medical leave 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. 2019-04-18
Nazreen Pearce and Sue Jackson, Urgent Applications in the Court of Protection (2nd edn, Jordans 2014) Book Court of Protection book 2014
New Horizons consultation Consultation "Good mental health is fundamental to the well-being and prosperity of England. In the last decade, greater investment and reforms have transformed mental health care, but now we need to go further. We need to target the root causes of mental illness and support the local development of higher quality, more personalised services." 2009-07-23
NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2017-18' (2/10/18) Statistics DOLS statistics Extract from NHS Digital summary: "This official statistics report provides the findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2017 to 31 March 2018. ... The report looks at aspects of DoLS activity, including the profile of people for whom a DoLS application was received, applications completed and their outcome, and applications not completed. The data tables and interactive business intelligence tool published alongside the report present further analyses and breakdowns of the data, including breakdowns by local authority." 2018-10-02
Nick Brindle et al, A Clinician's Brief Guide to the Mental Capacity Act (2nd edn, RCPsych Publications 2015) Book MCA book 2015
No voice unheard, no right ignored - a consultation for people with learning disabilities, autism and mental health conditions Consultation Extract from consultation page (paragraphs replaced with numbering): "(1) The consultation ‘No voice unheard, no right ignored’ explores options on issues such as how people can: (a) be supported to live independently, as part of a community; (b) be assured that their views will be listened to; (c) challenge decisions about them and about their care; (d) exercise control over the support they receive with a Personal Health Budget; (e) expect that different health and local services will organise themselves around their needs; (f) know that professionals are looking out for their physical health needs as well as their mental health needs. (2) The document also seeks to explores views on a number of issues relating to the Mental Health Act which were raised during the recent consultation on the revised Mental Health Act Code of Practice. (3) Since ‘Transforming Care: A National Response to Winterbourne View Hospital’ was published there have been some improvements but the system has not gone far enough fast enough to respond to the needs and wishes of people who need services, and their families." 2015-03-06
Office of the Public Guardian: Amendments to secondary legislation - consultation Consultation "This consultation paper represents the next step in the review process of the Mental Capacity Act 2005 and addresses areas of legislation and policy that in practice have not worked as well as intended. The proposed changes will help the Act meet its aims and objectives. The OPG intends to implement them on the 1 April 2010 and is now seeking views." 2009-12-17
Office of the Public Guardian: Call for evidence: Not for profit delivery of deputyship services Consultation The paper cites the 'Big Society' concept. The introduction states that 'Not for profit delivery of deputyship services has three purposes: (1) to understand the reasons behind the low take up amongst not-for-profit organisations of deputyship work; (2) to benchmark the costs of providing deputyship services within the sector; (3) to test interest in such organisations providing personal welfare deputyships in the future.' The appendix shows that the hope is to get the same service for approximately half the price of sa solicitor deputy.

Office of the Public Guardian, 'Call for evidence: Not for profit delivery of deputyship services' (4/8/11)

Catherine Baksi, 'OPG calls for more use of non-lawyers to avoid "costly legal solutions"' (9/8/11)

Official Solicitor, 'Coronavirus update - property and affairs team' (19/3/20) Letter Coronavirus resource Official Solicitor coronavirus guidance The Official Solicitor and Public Trustee Office is operating but, because all staff are working remotely and do not have access to anything sent by post, it is requested that all documents are sent electronically. In order to avoid administrative delay, attachments should be sent as clearly-labelled separate files rather than single large files. 2020-03-19
Parliament website, 'Coronavirus Bill 2019-21' Bill Coronavirus resource Progress of Coronavirus Bill in Parliament This web page contains the links to the full text of the Bill as introduced on 19/3/20, explanatory notes, and other documents. 2020-03-19
Paul Bowen, Blackstone's Guide to the Mental Health Act 2007 (OUP 2007) Book MHA book 2007
Paul Bracchi, 'How DID they let this legal aid lawyer con us all out of £22m?' (Daily Mail, 11/1/19) Newspaper article Summary of Blavo case The following quotation is from this detailed article: "In another ludicrous example, investigators found that the mental health facility in question had closed (in 2008) and burnt down (in 2010), so was not operational at the time the tribunal supposedly took place. The officials who checked this nonsense must have wondered if the person who put it on paper was a solicitor or a comedian." 2019-01-11
Peter Bartlett and Ralph Sandland, Mental Health Law: Policy and Practice (4th edn, OUP 2013) Book Mental health and capacity book 2014
Peter Bartlett, Blackstone's Guide to the Mental Capacity Act 2005 (2nd edn, Oxford 2008) Book MCA book 2008
Phil Fennell, Mental Health: Law and Practice (Jordans, 2011) Book Mental health law book 2011
Phil Fennell, Penny Letts and Jonathan Wilson, Mental Health Tribunals: Law, Policy and Practice (Law Society, 2013) Book MHT book See the foreword from the book, and a review from the Law Society Gazette. 2013
Phillip Sycamore, Mark Hinchliffe and Joan Rutherford, 'Representations to the Tribunals Procedure Committee from the Chamber President, Deputy Chamber President and Chief Medical Member (HESC)' (undated, probably late 2017) Document This document, together with Tribunal Procedure Committee, 'Extracts from the Minutes of the Tribunal Procedure Committee' (4/10/17 to 7/3/18), were obtained under the Freedom of Information Act by the charity Rethink Mental Illness. They relate to the proposal to abolish pre-hearing examinations and have paper reviews in certain cases. They provide information on the rationale behind the proposals which was omitted from the final version of the consultation document - mainly saving money and promoting flexibility in panel composition (judge-only hearings, including for all s2 cases, and judge-only paper reviews, including for many reference cases). 2017
Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) Tribunal guidance Coronavirus resource Tribunal coronavirus Practice Direction During the pilot period, initially six months: (1) decisions should usually be made without a hearing where the rules permit [MHT: rule 35 limits this to Part 5 and strike-out decisions, and certain CTO referrals]; (2) in jurisdictions where a hearing is required unless the parties consent to a determination on the papers [MHT: certain CTO referral cases] Chamber Presidents may allow a paper "triage" scheme in which provisional decisions are provided in cases in which a successful outcome for the applicant/appellant is likely; (3) all hearings should be held remotely where it is reasonably practicable and in accordance with the overriding objective [MHT: rule 1 states that hearings may be "conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication"]; (4) where permitted, hearings will proceed in the absence of parties who have not made an adjournment/postponement application [MHT: a requirement of rule 39 is that the patient has decided not to attend or is unable to attend for reasons of ill health]; (5) tribunals will take into account the impact of the pandemic when considering applications for extension of time for compliance with directions or the postponement of hearings. [Notes in square brackets are not part of the PD itself.] 2020-03-19
Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20) Tribunal guidance Coronavirus resource Mental Health Tribunal coronavirus Practice Direction For the pilot period, initially six months: (1) every decision, including those that dispose of proceedings, will be made by a judge alone, unless the CP, DCP or authorised salaried judge appoints two or three people; (2) the tribunal will suggest that CTO reference hearings are dealt with on the papers under rule 35; (3) it will not be "practicable" under rule 34 for any pre-hearing medical examinations to take place during the pandemic (no mention is made of video or telephone conferencing); (4) panels of one of two may seek the advice of one or more non-legal members to assist in decision-making, provided the advice is recoded and disclosed to the parties. 2020-03-19
Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) Tribunal guidance Coronavirus resource Coronavirus tribunal composition (non-MH) This PD applies to all appeals and applications within the First-tier and Upper Tribunal, except in mental health cases. For the duration of the pilot period, initially six months: (1) a salaried tribunal judge may decide, having regard to urgency among other matters, may depart from the usual rules on panel composition; (2) in such cases, the tribunal may seek the advice of one or more non-legal members to assist with its decision-making, provided the advice is recorded and disclosed to the parties. 2020-03-19
Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16) Practice Statement Delegation of tribunal functions Supersedes Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 [2015] MHLO 36. 2016-07-07
President of the Family Divison, 'COVID 19: National Guidance for the Family Court' (19/3/20) Court guidance Coronavirus resource Coronavirus Family Court guidance This guidance for all levels of the Family Court and in the High Court Family Division provides detailed guidance on remote hearings and states that "whilst the default position should be that, for the time being, all Family Court hearings should be undertaken remotely either via email, telephone, video or Skype, etc, where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place". 2020-03-19
Proposals for reform of civil litigation funding and costs in England and Wales Consultation "This consultation seeks views on implementing a package of Lord Justice Jackson's proposals for reforming conditional fee agreements and other aspects of civil litigation funding and costs."

Consultation page

Press release: Clarke unveils plans for radical reform of justice - 15/11/10

Consultation document

Proposals for the Reform of Legal Aid in England and Wales (2010) Consultation "This consultation seeks views on proposals for reform of legal aid in England and Wales. The proposals represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for those cases in which legal advice or representation is justified. This consultation is aimed at providers of publicly funded legal services and others with an interest in the justice system."

In relation to mental health law the proposals are to (1) retain legal aid for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeal as to the Court of Protection on deprivation of liberty issues; (2) retain legal aid for judicial review challenges; (3) remove legal aid for tort or other general damages claims unless the claims are of a very serious nature (paras 4.92 to 4.94). The summary for the scope of mental health law is that 'We propose to retain the current provision of Legal Help and Controlled Legal Representation' (Annex F). All civil hourly rates and fixed fees are to be reduced by 10% (para 7.6 to 7.7) and there are also proposals for reducing experts' fees (see chapter 8). There are less generous rules on financial eligibility and contributions, but these proposals will not affect those cases, such as Tribunal work, which are not subject to means testing (para 5.4).

Consultation page

Press release: Clarke unveils plans for radical reform of justice - 15/11/10

Consultation document

Ministry of Justice, 'Reform of Legal Aid in England and Wales: the Government Response' (Cm 8072, June 2011). Other related documents are also available. Some points particularly relevant to mental health law are: (1) There will be a 10% cut in all civil fees, including mental health law (para 34). (2) Advice and representation under the MHA 1983 or MCA 2005 will remain in scope (para 86). However claims involving tort or other general damages claims will be excluded except where these meet the criteria for 'claims against public authorities' or 'claims arising out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault' (para 87). The 'claims against public authorities' criteria allow legal advice and representation for claims (typically claims for damages) against public authorities concerning 'abuse of position or power' or 'significant breach of human rights' (no longer for 'serious wrong-doing') (para 10ff). (3) Legal aid will remain available for judicial review and habeas corpus (subject to immaterial exceptions) (para 88ff).

See also: Legal Aid, Sentencing and Punishment of Offenders Bill 2011

Proposals on changes to the Office of the Public Guardian fees Consultation 'A consultation on the Office of the Public Guardian (OPG) fees 2011/2012 which aims to ensure that the OPG fee policy remains fair, equitable and proportionate to the services being provided whilst at the same time reflecting the current economic climate. The proposed changes will help ensure that the fee structure remains fair and equitable whilst fully covering OPG costs. We are now seeking your views.' (MOJ website).

The proposals are listed on the OPG website as:

  • Raising the LPA Application to Register fee from £120 to £130;
  • Implementing a new 'Resubmission Fee' of £65 each time an LPA is resubmitted to the OPG within 3 months of it being returned to the Applicant as invalid;
  • Discontinuing the production of LPA office copies by the OPG, except in extreme and limited circumstances, and for a £50 fee;
  • Removing the Application to Search the Registers fee;
  • Replacing Type 1, 2A and 2 supervision fees with a flat fee of £320 and introducing an administration fee of £35 for those in type 3 requiring the de minimis level of supervision;
  • Raising the maximum threshold of capital for those cases qualifying for Type 3 supervision from £16,000 to £21,000 over a period of 4 years;
  • Introducing a new Fee Remissions policy of 50% for those who have a gross income of up to £12,000;
  • Allowing the Public Guardian to vary the levels of fees payable in the future, examples of which could be:
  • Implementing a new discounted fee for any LPA applications that are submitted together;
  • Removing or discounting the LPA registration fee for Armed Service Personnel
  • Renaming a number of OPG fees in order to make it clearer what they cover.

MOJ consultation page

OPG news item

Ministry of Justice, 'Office of the Public Guardian - fees 2011/2012: Consultation paper' (CP 16/10, 28/2/11)

Public Guardian (Fees, etc.) (Amendment) Regulations 2011

See also: MCA Update emails

Quality Assurance Scheme for Advocates - consultation Consultation This discussion paper sets out the LSC's proposed future minimum quality requirements for purchasing criminal advocacy services. The focus is on crime but the intention is for quality assurance schemes to apply to all areas of law. 2010-05-10
Review of NHS complaints system Consultation Dept of Health, 'Review of NHS complaints system' (press release, 15/3/13). The review will be encouraged to make recommendations about: (a) any aspect of the NHS complaints arrangements and other means by which patients make concerns known; (b) the way that organisations receive and act on concerns and complaints; (c) how Boards and managers carry out their functions; (d) the process by which individual organisations are held to account for the way that they handle concerns and complaints. Contact details are provided for anyone wishing to submit evidence. Review begins 15/3/13 and is due to report by 30/7/13.

Rosa Silverman, 'NHS complaints system review launched' (Telegraph, 15/3/13)

Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983 in England and Wales: A Survey Consultation "The government is reviewing the operation of Sections 135 and 136 of the Mental Health Act 1983 in England and Wales to make sure that the legislative framework offers the right support for people at the right time. These parts of the legislation give the police powers to temporarily remove people who appear to be suffering from a mental disorder and who need urgent care to a ‘place of safety’, so that a mental health assessment can be carried out and appropriate arrangements made for their care. A place of safety in the majority of cases is a hospital, but sometimes police stations are used. However, there have been questions over whether a police station is an appropriate place to detain people suffering a mental health crisis, especially young people, and whether the maximum length of detention under Sections 135 and 136 (72 hours) is too long. This review will examine the evidence to determine whether or not changes to the primary legislation would improve outcomes for people experiencing a mental health crisis."

Consultation page

Department of Health and Home Office, 'Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983: Review Report and Recommendations' (December 2014)

The consultation page also contains an executive summary, an easy read version, a summary of responses and a literature review.

Richard Harper, Medical Treatment and the Law: Issues of Consent (2nd edn, Jordans 2014) Book Medical treatment book 2014
Richard Jones and Eve Piffaretti, Mental Capacity Act Manual (8th edn, Sweet and Maxwell 2018) Book MCA book 2018
Richard Jones, 'Response to MHA Review (1): Removing the distinction between s2 and s3' (8/12/18) Article Article This article discusses the fact that the MHA Review does not recommend merging s2 and s3. 2018-12-08
Richard Jones, 'Response to MHA Review (2): Managers' hearings' (10/12/18) Article Article This article considers the MHA Review's recommendations in relation to hospital managers' hearings. 2018-12-10
Richard Jones, 'Response to MHA Review (3): Jurisdiction of the First-tier Tribunal' (28/12/18) Article Article This article considers the MHA Review's recommendations in relation to the Mental Health Tribunal. 2018-12-28
Richard Jones, 'Response to MHA Review (4): Bureaucratic burdens' (14/1/19) Article Article This article argues that the MHA Review's recommendations would lead to an unnecessary increase in bureaucracy. 2019-01-14
Richard Jones, 'Response to MHA Review (5): MHA or MCA?' (29/1/19) Article Article This article argues against the MHA Review's recommendation that patients who lack capacity to consent to admission or treatment for mental disorder, but who are clearly not objecting, should only be detained under the MCA. 2019-01-29
Richard Jones, Mental Capacity Act Manual (7th edn, Sweet and Maxwell 2016) Book MCA book 2016
Richard Jones, Mental Health Act Manual (19th edn, Sweet and Maxwell 2016) Book MHA book 2016
Richard Jones, Mental Health Act Manual (20th edn, Sweet and Maxwell 2017) Book MHA book 2017
Richard Jones, Mental Health Act Manual (21st edn, Sweet and Maxwell 2018) Book MHA book 2018
Richard Jones, Mental Health Act Manual (22nd edn, Sweet and Maxwell 2019) Book MHA book The paperback is available from Amazon. The publishers also sell an eBook version (paperback, eBook or both). This is the book everybody needs to have. 2019
Richard Murphy and Philip Wales, Mental Health Law in Nursing (Learning Matters, 2013) Book Nursing book 2013
Robert Brown, The Approved Mental Health Professional's Guide to Mental Health Law (4th edn, Sage 2016) Book Mental health law book 2016
Ruth Atkinson-Wilks, 'Case Summary: RW v Chelsea and Westminster Hospital NHS Foundation Trust (2018) EWCA Civ 1067' (Bevan Brittan, 10/9/18) Case summary Case summary This document contains a well-structured summary of the judgment in PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067. 2018-09-10
Safeguarding adults: a consultation on the review of the ‘No Secrets’ guidance Consultation "The Department of Health, the Home Office and the Ministry of Justice have launched the national consultation on the review of the No Secrets guidance. Minister for Care Services; Phil Hope MP said: 'This consultation paper is about learning. It is about how we as a society learn to empower people - both the public and the professionals - to identify risk and manage risk. It is about how we empower people to say no to abusive situations and criminal behaviour. It is about locating safeguarding in the wider agenda of choice and control. It is about recognising safeguarding as everyone's business. It is about identifying the tools we need for better safeguarding.'

"The consultation is for everyone - it has questions for social workers, and housing officers, for police officers and for lawyers. It has questions for members of the public and for service users."

Summary of responses published 17/7/09. Government response to follow

See Care Act 2014 for consultation response.

Safety and Security Directions - High Secure Psychiatric Services consultation Consultation "The aim of this consultation is to gather views on the proposed revision of The High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2009 and associated guidance, by inviting the views of key stakeholders"

Consultation page

Sarah Johnston, Sophy Miles and Claire Royston, Mental Health Tribunal Handbook (LAG 2015) Book MHA book 2015
Scottish Government, 'Mental Health Law in Scotland: A Guide to Named Persons' (15/1/19) Document Scottish guidance "A named person is someone who can look after your interests if you are cared for or treated under mental health legislation. This guide provides information to help you understand your rights." 2019-01-15
Senior President of Tribunals, 'Guidance for tribunal judges and members - COVID-19 measures' (23/3/20) Tribunal guidance Coronavirus resource Tribunal coronavirus hygiene guidance This guidance covers matters such as 2m separation and hand washing. 2020-03-23
Senior President of Tribunals, 'Proposal to amend Composition Statements' (18/2/20) Consultation Proposed reduction on tribunal panel sizes (not MHT) This consultation relates to the General Regulatory Chamber, the Social Entitlement Chamber, the Property Chamber and the Health, Education and Social Care Chamber (SEND, Primary Health Lists and Care Standards cases only - not MHT). Consultation closes 14/4/20. 2020-02-18
Sentencing Council, 'Manslaughter: Definitive guideline' (published 31/7/18, enforcement date 1/11/18) Document Guideline for manslaughter sentencing This document has the following headings: (1) Applicability of guideline; (2) Unlawful act manslaughter; (3) Gross negligence manslaughter; (4) Manslaughter by reason of loss of control; (5) Manslaughter by reason of diminished responsibility. 2018-07-31
Sentencing Council, 'Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders: Consultation' (9/4/19) Document Mental health sentencing consultation 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. " 2019-04-09
Sentencing Council, 'Sentencing offenders with mental health conditions or disorders consultation' (consultation from 9/4/19 to 9/7/19) Consultation "The Sentencing Council is issuing a new consultation on its proposed guideline on sentencing offenders with mental health conditions or disorders." 2019-04-09
Sentencing Council, 'Sentencing Offenders with Mental Health Conditions or Disorders' (draft guidance, 9/4/19) Sentencing guidelines Draft sentencing guidelines These are the draft guidelines in relation to Sentencing Council, 'Sentencing offenders with mental health conditions or disorders consultation' (consultation from 9/4/19 to 9/7/19). 2019-04-09
Simon Burrows, 'Amendments to the Mental Health Act 1983 proposed in the Coronavirus Bill 2020 as originally submitted to Parliament' (Law in the Time of Corona Blog, 23/3/20) Article Description of MHA changes in Coronavirus Bill This article contains information under the following headings: (1) Introduction; (2) The Coronavirus Bill - its purpose; (3) The process of detention: sections 2, 3, 4 and 5 MHA; (4) Patients involved in the criminal justice process; (5) Administration of medication without consent; (6) Police powers: places of safety; (7) Transitional Provisions; (8) Deprivation of liberty under the Mental Capacity Act?; (9) Concluding remarks. 2020-03-23
Sophy Miles, 'High Court to scrutinise restrictions on areas where P has capacity' (Doughty Street Chambers, 6/11/18) Web page This article summarises the case of Manchester City Council Legal Services v LC [2018] EWHC 2849 (Fam). 2018-11-06
Specialist Support Services consultation Consultation The LSC is consulting on their proposal to discontinue funding for the Specialist Support Service, as a result of conceding a judicial review of their decision to do so.

The specialist support service for mental health is run by Scott Moncrieff Solicitors, and is available from Monday to Friday, 10am to 4pm, on 0844 800 3364.

Following the consultation process the LSC has decided to discontinue the Specialist Support Service. Contracts will end on 6/7/12.

Consultation page

Legal Aid Handbook Blog, 'LSC concede judicial review; specialist support reprieved' (1/3/12)

Legal Aid Handbook Blog, 'Weekly round up' (1/4/12)

SRA, 'Ethics guidance: Disclosure of client's confidential information' (5/2/16) Document This guidance deals with Outcome 4.1 of the SRA Code of Conduct 2011, which is that "you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents", to which there are no exceptions (in contrast with the previous SRA Code). The status of this guidance is described as follows: "This advice does not form part of the SRA Handbook and is not mandatory, but the SRA may have regard to it when exercising its regulatory functions. This guidance is intended to highlight that where you disclose client information, your justification for doing so will be taken into consideration for conduct purposes. In some limited circumstances, the justification is likely to result in us deciding to take no regulatory action as a result." Circumstances in which disclosure may be justified for conduct purposes are described under the following headings: (1) Where a client has indicated their intention to commit suicide or serious self harm; (2) Preventing harm to children or vulnerable adults; (3) Preventing the commission of a criminal offence. 2016-02-05
Steven Richards and Aasya Mughal, Deprivation of Liberty Safeguards (DoLS) Handbook (Books Wise Publications 2015) Book DOLS book 2015
Steven Richards and Aasya Mughal, Working with the Mental Capacity Act 2005 (2nd edition, Matrix Training 2009) Book MCA book 2009
Steven Richards and Aasya Mughal, Working with the Mental Capacity Act 2005 (3rd edition, Matrix Training 2018) Book MCA book Updated for 2018 (the introduction is dated April 2018). 2018
Steven Richards and Aasya Mughal, Working with the Mental Health Act (3rd edition, Matrix Training 2010) Book MHA book 2010
Swine flu and temporary MHA amendments Consultation Pandemic influenza and the Mental Health Act 1983: consultation on proposed changes to the Mental Health Act 1983 and its associated secondary legislation.

"You are invited to comment on proposals for temporary amendments to the Mental Health Act 1983 which may be required in the event of the severe staff shortages that may be expected during an influenza pandemic. You are invited to say whether you think these proposals are likely to be helpful. Please let us know if there are any significant issues which you think we should have included, or if we have included anything unnecessary."

Consultation page

Law Society response - 14/10/09

Dept of Health, 'Pandemic Influenza and the Mental Health Act 1983: Response to Consultation on Proposed Changes to the Mental Health Act 1983 and its Associated Secondary Legislation' (29/7/11). The Government have concluded that all of the proposed temporary amendments (and further amendments to s5) would be an appropriate part of a package of contingency measures. The proposals requiring legislative changes are: (1) Allowing just one medical recommendation on an application by an AMHP for someone to be detained under sections 2 or 3 of the 1983 Act. (2) To facilitate C1 above, preparing special forms A2A and A6A for use by a doctor making a single medical recommendation. (3) Changing the number of doctors involved in decisions to transfer people from prison to hospital under Part 3 of the 1983 Act. (4) Suspending the obligation to obtain SOAD opinions on medication. (5). Suspending time limits on conveying people and admitting them to hospital under Part 3. (6). Suspending time limits on warrants for transferring people from prison to hospital. (7) Giving courts discretion to renew remands under the 1983 Act beyond the normal 12 week maximum. (8) Allowing SHAs the flexibility to approve former RMOs and former approved clinicians to be temporary approved clinicians. (9) Allowing SHAs the flexibility to approve current section 12 doctors who have not previously acted as RMOs to be temporary approved clinicians (10) Allowing local social services authorities the flexibility to approve former ASWs and former AMHPs to be temporary AMHPs. (11) Seeking a three-month transitional period for SOAD second opinions. (12) If there should be a large number of staff deaths, keeping the contingency measures for temporarily approved AMHPs and approved clinicians in place until fully trained replacements can be approved. (13) Extending the periods of emergency detention permitted under section 5(2) (emergency detention of a hospital in-patient by a doctor or approved clinician) from up to 72 hours to up to 120 hours. (14) Extending the periods of emergency detention permitted under section 5(4) (emergency detention of a hospital in-patient by a nurse with special expertise in mental health or learning disability) from up to 6 hours to up to 12 hours. (15) Allowing any approved clinician or registered medical practitioner to detain a hospital in-patient under section 5(2) rather than just the one in charge of the case. (16) To facilitate C15 above, preparing special form H1A for use by an approved clinician or doctor who is not in charge of the case.

The ICD-10 Classification of Mental and Behavioural Disorders (World Health Organisation 1992) Book Psychiatry book 1992
The Role of IMHAs in Hearings - consultation Consultation Consultation on draft Guidance Note on the role of IMHAs (in their capacity as IMHAs, rather than as representatives) at Tribunal hearings. Consideration is given to (1) attendance at the hearing; (2) seating arrangements; (3) relationship with the legal representative; (4) role in relation to any procedural issues; (5) giving of evidence; (6) asking questions and addressing the panel; (7) right of access to the Tribunal's decision.

Consultation document

Mental Health Lawyers Association, 'MHLA response to the consultation by the Tribunals Service (Mental Health) on the role of IMHAs on MHT hearings', 11/12/10

Tony Harrop-Griffiths et al, Dementia and the Law (Jordans 2014) Book Elder law book 2014
Tony Maden and Tim Spencer-Lane, Essential Mental Health Law: A Guide to the New Mental Health Act (Hammersmith Press, 2010) Book MHA book 2010
Tony Zigmond and Nick Brindle, A Clinician's Brief Guide to the Mental Health Act (4rd edn, RCPsych Publications 2016) Book MHA book 2016
TPC, 'Responses to the consultation on possible changes to the Tribunal Procedure (FTT) (HESC) Rules 2008 regarding pre-hearing examinations and decisions without a hearing in the case of references by the hospital or Department of Health' (23/10/18) Report One interesting response, of many, is this from an MHT judge: "If cases are decided on papers alone, I can see little point in having those cases referred to the Tribunal. I have done a number of paper hearings and they are unsatisfactory." The TPC noted the following points and in consequence rejected the proposed rule changes: (1) The PHE provides for greater participation in the process by the patient. (2) The PHE reduces stress and anxiety at the hearing for the patient who will not need to be asked distressing questions. (3) The PHE allows the patient to talk about their situation privately to a person not involved in their detention. (4) The PHE allows for information missing from reports to be picked up. (5) The PHE is a lesser cost to the public purse than independent psychiatric reports. (6) The High Court has confirmed that there is no reason why the MM cannot carry out a PHE, provided the findings are disclosed at the outset of the hearing as they are currently. (7) Having a second medical opinion to assist the panel reduces the possibility of the wrong decision being made, thus reducing the risk to both the patient and the general public. (8) The system in England is not comparable to the Scottish system which operates in a fundamentally different way. (9) In Wales PHEs are carried out in every case and there are no current plans to alter that. (10) The outcome of MHTs cannot be measured by the numbers discharged but by whether the patient and their representative are satisfied that the case has been properly scrutinised with all relevant evidence before it. (11) Those who have their cases referred to the MHT are the most vulnerable members of society, often lacking the mental capacity to make an application to the MHT. (12) Disposals without a hearing would mean that the MHT panel would have evidence from only one party. (13) The MHT panel would not have adequate information to decide whether an oral hearing is appropriate. (14) There are a significant number of examples of MHTs reaching a decision on referred cases based on evidence that came out at the hearing and not contained in the reports. 2018-10-23
Transforming Legal Aid: Delivering a more credible and efficient system - consultation Consultation This consultation sets out the Government's proposals for further reform of the legal aid system in England and Wales.

One proposal is a residence test. Under the proposed residence test, civil Legal Aid would only be available to those who are lawfully resident (in the UK, Crown Dependencies or British Overseas Territories) at the time the application for civil Legal Aid was made, and also had been so resident for a continuous period of at least 12 months at any point in the past. There will be some exceptions to the residence test. One exception is for 'detention cases', in specified areas including mental health (see para 125 of Annex B to the government response).

Consultation page

Ministry of Justice, 'Transforming legal aid: delivering a more credible and efficient system' (consultation paper CP14/2013, 9/4/13)

Ministry of Justice, 'Transforming Legal Aid: Next Steps' (5/9/13)

Annex B to response

Tribunal Procedure Committee, 'Consultation on possible amendments to the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 on the timescale for listing Section 2 hearings' (from 11/2/20 to 7/4/20) Consultation Tribunal rules consultation The TPC seeks answers to the following questions: (1) Do you agree that the requirement should be that the First-tier Tribunal lists all section 2 hearings within 10 days from receipt of the application notice rather than 7 days? (2) Do you have any other comments on this proposal? 2020-02-11

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