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- 18/02/18 (5): Event. MHLA: Advocacy, Risk and Cross-examination - London, 6/3/18 — This one-day course is designed to enhance advocacy and case preparation skills. The focus is on preparing for advocacy, with advice on cross-examination of the medical witnesses and taking evidence-in-chief from the client, along with formulation and delivery of effective submissions. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
- 18/02/18 (4): Event. MHLA: Refresher and Re-accreditation course - London, 29/3/18 — This Refresher and Re-accreditation course is suitable for those seeking re-accreditation and will also be of interest to anyone wishing to further their knowledge of mental health law and practice. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
- 18/02/18 (3): Event. MHLA: Case law update - London, 18/4/18 — This is a one-day course which focuses on practical application of the law in the day-to-day work of mental health practitioners when representing clients. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
- 18/02/18 (2): Event. MHLA: Legal Aid and Peer Review - London, 23/4/18 — This course provides guidance on the Legal Aid provisions in mental health cases, including escape-fee cases and requirements for means testing. It will also broaden practitioners' knowledge of the peer review process and the peer review 'Improving your Quality' guidance. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
- 18/02/18 (1): Event. MHLA: Legal Aid supervision - London, 15/5/18 — This course is aimed at experienced supervisors looking to refresh their skills, or those considering applying for supervisor status, and will cover the Legal Aid Agency supervisor standards and procedures. Cost: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
- 16/02/18 (2): CANH withdrawal case. M v A Hospital  EWCOP 19 — "This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs , it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her."
- 16/02/18 (1): Appropriate adult case. Miller v DPP  EWHC 262 (Admin) — "This is an appeal by way of case stated from a pre-trial ruling of the Black Country Magistrates' Court sitting at Dudley on 13 October 2016 in respect of an information preferred against the Appellant for failing to provide a specimen of blood in breach of section 7 of the Road Traffic Act 1988, not to exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence of the drug drive procedure at Oldbury Police Station that led to the charge being made. ... On 24 June 2016, the Appellant was stopped by the police on suspicion of driving under the influence of drugs. When arrested and taken into custody, he behaved erratically and aggressively. It appears that he was known to the police as a person who had learning difficulties and autism. ... As Mr Scott submitted, the presence of an appropriate adult (whilst not being able to provide technical, legal or medical advice) would have provided the Appellant with the opportunity not only to have the question as to whether or not to provide a sample explained to him, but also to obtain an appreciation of the consequences of failing to do so. He points out that the offence of failing to provide a blood sample is predicated not only on the person's comprehension of the requirement to provide a sample, but also of the consequences of failing to do so in terms of criminal liability. The Appellant was clearly very exercised whilst being detained, and there is a very real possibility that the presence of an appropriate adult would have calmed him, and led him to behave differently and make different choices from those he in fact made. ... [H]aving found there to have been a breach of Code C in failing to inform and summon an appropriate adult to the police station, we do not consider that the magistrates did properly exercise their discretion under section 78 of PACE not to exclude the evidence of the drug drive procedure. Their reasoning was, unfortunately, fundamentally flawed; and, had they exercised their discretion properly, they would have been bound to have excluded the evidence of the drug drive procedure."
- 13/02/18 (1): Parole Board case. R (Gourlay) v Parole Board  EWCA Civ 1003 — "Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?"
- 12/02/18 (1): Event. PELT: Two-day admission to panel (accredited) - Hoylake, 17/5/18 and 18/5/18 — Course description: "This very intensive two-day course, approved by the Law Society, is designed to assist delegates prepare themselves for panel accreditation. The course also will flag up the difference between the English and Welsh systems. The course would also be of great benefit to anyone involved in the tribunal process who feel that they need a greater depth of knowledge. In addition, day 2 in particular would be of value to those seeking reaccreditation." Trainers: Peter Edwards and Dr Rob Brown. Venue: The Training Suite, Peter Edwards Law, Hoylake CH47 2AE. Price: £175+VAT (£210) per day; £350+VAT (£420) for both days. See PELT website for further details and booking information.
- 09/02/18 (5): Secondary legislation. Mental Health Act 1983 (Places of Safety) Regulations 2017 — These Regulations specify the circumstances in which a police station can be used as a place of safety for an adult for the purposes of s135 and s136 MHA 1983, and describe the safeguards to protect the person detained.
- 09/02/18 (4): Secondary legislation. Policing and Crime Act 2017 (Commencement No 4 and Saving Provisions) Regulations 2017 — Regulation 3 brought into force the following sections of the Policing and Crime Act 2017 on 11/12/17: (a) section 80 (extension of powers under sections 135 and 136 of the Mental Health Act 1983), in so far as not already in force; (b) section 81 (restrictions on places that may be used as places of safety), in so far as not already in force; (c) section 82 (periods of detention in places of safety etc); and (d)section 83 (protective searches: individuals removed etc under section 135 or 136 of the Mental Health Act 1983). By virtue of section 183(5)(e) of the Act, sections 80 and 81 came into force on the day on which the Act was passed, so far as is necessary for enabling the exercise of any power to make provision by subordinate legislation.
- 09/02/18 (3): Primary legislation. Policing and Crime Act 2017 — Chapter 4 (sections 80-83) of this Act amended MHA 1983 s135 (Warrant to search for and remove patients), s136 (Removal etc of mentally disordered persons without a warrant) and s138 (Retaking of patients escaping from custody), and added new s136A (Use of police stations as places of safety), s136B (Extension of detention) and s136C (Protective searches). In force 11/12/17. The text of the Act on MHLO has been updated accordingly (note that there are errors on the Legislation.gov.uk website: some of the old text has not been deleted).
- 09/02/18 (2): Extradition case. LMN v Government of Turkey  EWHC 210 (Admin) — "It would be unlawful for this country to extradite the appellant to Turkey if he would there face a real risk of being treated in a manner which breached his Article 3 right not to be "subjected to torture or to inhuman or degrading treatment or punishment": see R (Ullah) v Special Immigration Adjudicator . It is for the appellant to establish that there are substantial grounds for believing that, if extradited, he will face such a risk; and the ill-treatment must reach a minimum level of severity before Article 3 would be breached. Given that Turkey is a member of the Council of Europe and a signatory to the European Convention on the Prevention of Torture, the respondent is entitled to rely on the presumption that the Turkish authorities will protect prisoners against breaches of their Article 3 rights. Mr Josse has not invited this court to decide the appeal on the basis of findings about the Turkish prison system as a whole, and in any event there is no evidence which would enable the court to do so. ... There are in my judgment two key aspects of the evidence relating to the Article 3 issue: the expert evidence as to the appellant's mental health; and the expert evidence as to prison conditions in Turkey following the attempted coup. ... In those circumstances, I accept the expert evidence now available as establishing that the appellant is presently suffering from a recognised medical condition, namely severe depressive episode; that he also presents some features of PTSD; that he is currently prescribed antidepressant medication, and in receipt of regular psychological counselling; that there is a continuing need for coordinated care management; and that there is a high risk of suicide in the event of extradition. ... The further evidence now before the court shows, as I have indicated, a continuing need for medication and healthcare. The appellant has very plainly raised the issues of whether his healthcare needs would in fact be met, and whether the healthcare which is in principle available in Turkish prisons would in fact be available to the appellant in the context of the greatly-increased prison population. There is simply no evidence that such care will be available to him. ... In my judgment, taking into account the risk of suicide, a failure to meet the mental healthcare needs of the appellant would in the circumstances of this case attain the minimum standard of severity necessary to breach his Article 3 rights. ... It follows that his extradition would not be compatible with Article 3 or with section 87 of the 2003 Act."
- 09/02/18 (1): DOLS reform. Joint Committee on Human Rights, 'Reform of the DOLS inquiry' (call for evidence from 9/2/18 to 2/3/18). 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."
- 05/02/18 (1): DOL case. Re KT  EWCOP 1 — "These are four test cases that were stayed in accordance with my decision in Re JM  EWCOP 15,  MHLO 31. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements."
- 04/02/18 (2): Insanity case. Loake v CPS  EWHC 2855 (Admin) — "For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity."
- 04/02/18 (1): MHT stakeholder bulletin. Mental Health Tribunal, 'Stakeholder bulletin Mental Health Tribunal administration Autumn 2017' (November 2017) — This bulletin states that the MHT listing process is as follows: (a) hearings are only listed on dates within the listing window on which a full judicial panel is available; (b) if possible, a date offered by one (or preferably both) of the parties will be selected; (c) when an unsuitable date has been set, a form CMR1 should be filed as hearing dates will not be changed by telephone.
- 02/02/18 (1): Immigration case. R (VC) v SSHD  EWCA Civ 57 — "There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention."
- 01/02/18 (3): Hospital pocket money case. R (Mitocariu) v Central and North West London NHS Foundation Trust  EWHC 126 (Admin) — "These proceedings raise points of principle in respect of the powers of NHS Foundation Trusts pursuant to the National Health Service Act 2006 ("the 2006 Act") regarding financial assistance to patients whilst they are detained pursuant to hospital orders made under the Mental Health Act 1983 ("the 1983 Act"). In essence they raise a question about the powers or duties of NHS Foundation Trusts in circumstances where the patient receiving mental health care is or appears to be unable, for whatever reason, to fund occasional expenses. ... The reliance by the Claimants upon section 122 of the 1983 Act was misplaced as the power to make payments thereunder was abolished by section 41 of the 2012 Act in so far as patients in England were concerned. ... The essential issues that arise in these proceedings are as follows: (i) did the Defendant have power to make payments to the Claimants; (ii) what was the scope and nature of the power, if any, held by the Defendants to make payments; (iii) did the Defendant lawfully exercise the power; (iv) did the absence of a policy mean the Defendant acted unlawfully; (v) was the Defendant under a duty to make regular payments to the Claimants in the amounts claimed or any amounts. ... The power exists under the 2006 Act to make what have been described as "pocket money payments" to in-patients but that power only arises and can only be exercised for and in connection with functions identified under section 43 of the 2006 Act. The discretion of a foundation trust to make payments is limited to that which is commensurate with the therapeutic treatment being provided. There is no entitlement to payment neither is there a duty to make payment. The power that is held by the foundation trust is one which must take into account all the circumstances of the individual case including financial needs and the nature of the therapeutic treatment being provided."
- 01/02/18 (2): Children/DOL case. A-F (Children)  EWHC 138 (Fam) — "... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the ..→
- 01/02/18 (1): DOL case summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2016-18' (January 2018 edition, 30/1/18) — This two-page document summarises selected domestic and European caselaw on deprivation of liberty between 2016 and 2018 inclusive.
- 31/01/18 (2): Event. Edge Training: Deprivation of liberty in children and young people - London, 2/3/18 — This course aims to update staff working with children, young people and those in transition with the latest case law and developments in relation to deprivation of liberty. The course will consider these developments and the impact on practice. It examines the Supreme Court ruling on deprivation of liberty and considers practical issues in its application for children and young people. Price £140 plus VAT. See Edge website for further details and booking information.
- 31/01/18 (1): Event. Edge Training: DOLS MH Assessor Annual Refresher Course - London, 20/4/18 — This refresher course has been designed to meet the needs of DoLS Mental Health Assessors. It will cover key topics that cause uncertainty or dilemmas for MH Assessors and go over the main basic requirements of this challenging role. Common Mental Health Act and DoLS interface issues will also be addressed such as the law around the provision of mental health treatment under DoLS. There will be plenty of opportunity to ask questions from an expert in the field and ask about your own case scenarios. The day will be delivered by one of the authors of the highly popular Deprivation of Liberty Safeguards Handbook who has also trained thousands of doctors on the Mental Health Act, Mental Capacity Act and DoLS. Speaker: Aasya Mughal. Cost: £195 + VAT (£234). See Edge website for further details and booking information. (Note the date change: previously was 2/3/18.)
- 27/01/18 (3): Event. MHLA: Panel course - Leeds, 22/2/18 and 23/3/18 — The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and booking information.
- 27/01/18 (2): Event. MHLA: Panel course - London, 26/2/18 and 27/2/18 — The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and booking information.
- 27/01/18 (1): Upper Tribunal (reasons) case. M v An NHS Trust  MHLO 39 (UT) — "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made."
- 25/01/18 (1): Scottish capacity case. Application by Darlington Borough Council in respect of the Adult: AB  ScotSC 4 — "The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian."