Revision as of 14:22, 29 January 2019 by Jonathan (talk | contribs)

If you have anything which is not yet on the internet (e.g. court results or transcripts) then please send it in (see Help page). As well as reading the website, you can keep up to date by subscribing to the CPD scheme, email updates, email discussion list, and the various other options listed at the top of each page.

Recent updates on website

For details of any news item, click on the relevant link below.

  • 21/05/20
    : Case (Appeal against IPP). R v Stredwick [2020] EWCA Crim 650 — "In this appeal the appellant invites the court to quash the sentence of imprisonment for public protection imposed in 2008 and make an order pursuant to section 37 of the Mental Health Act 1983 ("the 1983 Act") for his admission or continued detention at Ty Gwyn Hall Hospital, Abergavenny. The appellant also invites the court to make an accompanying Restriction Order without limit of time under section 41 of the 1983 Act. The Crown does not oppose this appeal, nor the orders sought."
  • 21/05/20
    : Case (Section status and aftercare). Tees, Esk and Wear Valleys NHS Foundation Trust (19 012 290a) [2020] MHLO 21 (LGSCO) — "Summary: The Ombudsmen find there was fault by a Trust in giving a family incorrect information about a mental health patient’s status. When this came to light it caused the patient’s wife considerable stress which has not yet been fully addressed. The Ombudsmen also find that fault by a Council meant the patient’s wife suffered this stress for too long. The Ombudsmen has recommended small financial payments to act as an acknowledgement of the outstanding injustice."
  • 21/05/20
    : Case (Testamentary capacity). Clitheroe v Bond [2020] EWHC 1185 (Ch) — "This is a bitter family dispute between the Claimant brother and Defendant sister as to whether their mother, the deceased, had testamentary capacity to make each of her two wills and in addition or in the alternative whether either or both wills resulted from fraudulent calumny."
  • 18/05/20
    : Event. Bond Solon: DoLS Legal Update (online, 22/5/20) —This course is aimed at ensuring that those operating under the Mental Capacity Act Deprivation of Liberty Safeguards are able to do so lawfully. Delegates will explore the current legal framework, set within the context of public health measures introduced by the Government during the COVID-19 Pandemic. It will also satisfy the mandatory Legal Update/Refresher course that BIAs must undertake every 12 months. Price: £265 plus VAT. See website for further details and booking information.
  • 11/05/20
    : Resumption of three-member tribunals — Hearings taking place on or after 1/6/20 will be heard by a three-member panel (this was stated at the Mental Health Jurisdictional Stakeholders Meeting on 6/5/20). See Mental Health Tribunal and coronavirus.
  • 07/05/20
    : Case (Successful s45A appeal). R v Westwood [2020] EWCA Crim 598 — "In the circumstances of this case there was a sound reason for departing from the need to impose a sentence with a "penal element". In view of the low level of the appellant's "retained responsibility", the likelihood that for the rest of his life he will need psychiatric treatment and supervision that can most effectively be provided through orders under sections 37 and 41 of the Mental Health Act, and the likely advantages in this case of the regime for and on his release under such orders when compared to an order under section 45A, we consider that that is the right disposal here."
  • 06/05/20
    : Community hearings are now being listed. Mental Health Tribunal, 'Order and directions for listing of community hearings' (6/5/20) — These cases had been postponed on 26/3/20 but now will be listed for hearing because the tribunal "has now achieved a level of administrative support to be able to list cases for community patients". The order and directions set out the duties on patients' representatives and responsible authorities in relation to reports, consideration of paper hearings, agreed hearing dates, and remote hearing practicalities.
  • 06/05/20
    : CTO hearings being listed again. Conroys Solicitors, 'Listing of community hearings' (press release, 6/5/20) — It is understood that the order which postponed community hearings is no longer in force (the order stated that it was not feasible or practicable for a community patient to attempt to participate in a telephone or video hearing) and that the tribunal secretariat is working through the backlog.
  • 04/05/20
    : Coronavirus testing and capacity. Alex Ruck Keene et al, 'Rapid response guidance note: Testing for COVID-19 and mental capacity' (4/5/20) — "The Court of Protection team has been asked to advise on a number of occasions as to the legal position in relation to testing for COVID-19, especially as testing (a) starts to be more generally available; and (b) is increasingly been rolled out as mandatory in certain settings. What follows is a general discussion, as opposed to legal advice on the facts of individual cases, which the team can provide. It primarily relates to the position in England in relation to those aged 18 and above; specific advice should be sought in respect of Wales and those under 18."
  • 04/05/20
    : Information about Hive group. Court of Protection, 'Letter about Hive group' (Mr Justice Hayden, 4/5/20) — This letter sets out the aim and constitution of the Hive group, with particular focus on: (1) property and affairs; (2) welfare cases in the context of deprivation of liberty; (3) "community DOL" orders under COP DOL11; (4) transparency. The HIVE mailbox (hive@justice.gov.uk) can be used to raise coronavirus issues which do not relate to specific cases.
  • 28/04/20
    : Case (Access to records of deceased patient). Re AB [2020] EWHC 691 (Fam)The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative.
  • 26/04/20
    : Case (Residence and care capacity). London Borough of Tower Hamlets v A [2020] EWCOP 21(1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment").
  • 23/04/20
    : Case (Audio recording of neuropsychological testing). MacDonald v Burton [2020] EWHC 906 (QB)(1) The defendant was allowed to carry its neuropsychological examination of the claimant without being subjected to any kind of recording of that examination: a level playing field could not be achieved where the claimant had not recorded the examination and testing by his own expert but where the examination testing by the defendant's expert was so recorded. (2) The judge discussed the question of any privilege which may exist in any recordings that are made. (3) The judge hoped that the forthcoming British Psychological Association guidance would recognise the competing interests and would not merely state that psychological examinations and testing should never be recorded.
  • 19/04/20
    : Legislation. Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 — Rule 2 amends the MHT's rules: (1) new power in new rule 5A to dispose of proceedings without hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so. (2) section 2 hearings to start within 10 days rather than 7 days, with an explicit power to ignore this deadline if the tribunal considers it "not reasonably practicable". In force 10/4/20. These rules will expire on the same day as section 55(b) of the Coronavirus Act 2020 (public participation in proceedings conducted by video or audio). (3) A further change, relating to public/private hearings is inserted into the part of the HESC rules which do not apply to mental health cases.
  • 16/04/20
    : Support for adult social care providers. CQC, 'CQC sets out next steps to support adult social care during the COVID-19 pandemic' (15/4/20) — This document deals with (1) Personal Protective Equipment; (2) coronavirus testing procedures for staff; (3) statistics (from this week, death notifications collected from providers will include whether the person had suspected or confirmed COVID-19); (4) information gathering (data on coronavirus pressures from services providing care in people's own homes will now be collected).
  • 16/04/20
    : MHT guidance for patients. Mental Health Tribunal, 'Help for users' (15/4/20) — This guidance explains that hearings will be heard via telephone/video, by a tribunal judge alone ("because we have less support because of the coronavirus"), there will be no medical examination (because "people cannot meet together"), and community hearings will not take place ("because of the difficulties we have in organising hearings here everyone can participate" - unless the patient or representative explains "why your case must go ahead").
  • 15/04/20
    : Coronavirus advice for patients, carers and others. Mind, 'Coronavirus and your rights' (April 2020) — This web page contains links to further Mind resources on: (1) Coronavirus and social care rights; (2) Coronavirus and sectioning; and (3) Coronavirus and your mental health.
  • 14/04/20
    : Case (Direction for all-female panel). Re A [2020] MHLO 14 (FTT)In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut.
  • 14/04/20
    : Case (All-male and all-female panels). CB v SSWP [2020] UKUT 15 (AAC)(1) It was unlawful of the tribunal to hear the ESA appeal in the applicant's absence; the decision was set aside and the case remitted to a new panel. (2) The judgment contains obiter comments about the request for an all-female panel.
  • 12/04/20
    : Case (Change in status - s3 to guardianship). AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC)When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction.
  • 07/04/20
    : Hearing postponement for certain community patients. Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20) — (1) The hearings of certain community patients will be postponed, unless they have already been listed for paper review. (2) It applies to patients “over 18” (this is meant to mean 18 or over) presumably at the time of the application or reference. (3) The following will be postponed: (a) applications by CTO patients (s66(1)); (b) applications by conditionally-discharged (C/D) patients (s75(2)); (c) periodic mandatory references in the cases of CTO patients (s68(2) and s68(6)). (4) The following will not be postponed: (a) discretionary references for CTO patients (s67(1)); (b) discretionary references for C/D patients (s71(1)); (c) revocation references for CTO patients (s68(7)); (d) recall references for C/D patients (s75(1)). (5) The order purports to postpone periodic mandatory references for C/D patients (s71(2)) but these references are only made for a "restricted patient detained in a hospital". (6) The hearings will take place on the first convenient date after revocation of the Pilot Practice Direction, or earlier if the tribunal orders (the parties are to agree a new listing window after revocation and apply for a new date). (7) All parties are at liberty to apply to vary the order and directions in exceptional cases. (8) The reason given for the order is that (a) it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing"; (b) cases where the patient is deprived of his liberty are being prioritised for listing; (c) postponement is proportionate to the "extreme demands being placed on health, social care and justice services by the pandemic"; (d) the case will be relisted as soon as practicable "having regard to any temporary regulations or other priorities that may prevail during the coronavirus emergency".
  • 06/04/20
    : MHT video hearings. Mental Health Tribunal, 'Video Conference Hearings' (6/4/20) — From 13/4/20 all cases will be listed as video hearings using the Common Video Platform (CVP), instead of telephone hearings. Telephone hearings had taken longer and made communication more difficult, and it is hoped that video hearings will be an improvement.
  • 02/04/20
    : Care Act "easements". DHSC, 'Care Act easements: guidance for local authorities' (1/4/20) — "This guidance sets out how Local Authorities can use the new Care Act easements, created under the Coronavirus Act 2020, to ensure the best possible care for people in our society during this exceptional period." The first sentences of the changes (which are each followed by "however"-type sentences) are: (1) Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. (2) Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. (3) Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. (4) The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs.
  • 02/04/20
    : Parole Board guidance. Parole Board, 'Further guidance to members' (1/4/20) — (1) A panel can now make these decisions at MCA (Member Case Assessment): (a) to release or recommend transfer to open conditions in appropriate cases on the papers; (b) to refuse release or decline transfer to open conditions in appropriate cases on the papers; (c) to direct a case to an oral hearing. (2) Members have the option to expand the panel if they wish. (3) The guidance includes factors to consider when deciding whether an oral hearing is needed.
  • 02/04/20
    : Annual CQC report on MHA. CQC, 'Monitoring the Mental Health Act in 2018/19' (6/2/20) — The Foreword to the report states that the CQC found: "(1) Services must apply human rights principles and frameworks. Their impact on people should be continuously reviewed to make sure people are protected and respected. (2) People must be supported to give their views and offer their expertise when decisions are being made about their care. (3) People who are in long-term segregation can experience more restrictions than necessary. They also may experience delays in receiving independent reviews. This is particularly true for people with a learning disability and autistic people. (4) People do not always get the care and treatment they need. Some services struggle to offer appropriate options, both in the community and in hospital. (5) It is difficult for patients, families, professionals and carers to navigate the complex laws around mental health and mental capacity."
  • 02/04/20
    : Case (Inherent jurisdiction and DOL). Hertfordshire CC v K [2020] EWHC 139 (Fam) — "In this matter, the question before the court is whether it should grant a deprivation of liberty order (hereafter a DOL order) under the inherent jurisdiction of the High Court in respect of AK, born in 2003 and now aged 16."
  • 02/04/20
    : Case (Secure accommodation and inherent jurisdiction). A City Council v LS [2019] EWHC 1384 (Fam) — "Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is 'no'."
  • 02/04/20
    : Case (Withholding life-sustaining treatment from baby). Rotherham Metropolitan Borough Council v ZZ [2020] EWHC 185 (Fam) — "It is impossible not to feel that X's life is one of nothing but suffering. As is set out in the cases above, life itself is precious and there is a very strong presumption in favour of preserving life. But X's life is a truly tragic one and certainly reaches a threshold of intolerability. ... His life expectancy is probably no more than a year on the basis of the literature. ... For all these reasons I am clear that it is not in X's best interests that he should be resuscitated or that he should be given life sustaining treatment."
  • 02/04/20
    : Case (Carer's assessment failures). Greater Manchester Mental Health NHS Foundation Trust (18 018 548a) [2019] MHLO 66 (LGSCO) — LGSCO summary: "The Ombudsmen have upheld Mrs G’s complaint about the way her carer’s assessments were carried out. We have not found fault with the way the Trust, Council and CCG arranged Mr H’s accommodation under s117 of the Mental Health Act or how the Trust communicated with Mrs G and Mr H about this."
  • 02/04/20
    : Case ((1) Overlap between different decisions; (2) Sex). B v A Local Authority [2019] EWCA Civ 913 — (1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations.
  • 02/04/20
    : Coronavirus mental health law changes. Hannah Taylor, 'Coronavirus Act 2020 - Changes for Mental Health' (Bevan Brittan, 1/4/20) — This web page sets out the proposed changes to the MHA in table format. It then gives some information under the following headings: (1) What about potentially infectious persons in the mental health context? (2) Patients who refuse to self-isolate; (3) How should public authorities be preparing for the changes? (a) Communication; (b) Environmental preparation; (c) Informing staff; (d) Training and guidance; (e) Alternative arrangements; (f) Statutory forms.
  • 02/04/20
    : MHT telephone hearing guidance. Mental Health Tribunal, 'First-tier Tribunal (Mental Health) update' (2/4/20) — Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient's number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call.
  • 01/04/20
    : Case (Lawfulness and availability of treatment). PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot.
  • 01/04/20
    : MHT update including listing. Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20) — (1) All hearings have been postponed for certain community patients (CTO and conditional discharge), unless they have already been listed for paper review, until the revocation of the coronavirus pilot PD, or earlier if the tribunal directs. (The original summary here wrongly said "all community patients" - apologies.) (2) Section 2, conditional discharge recall, and CAMHS cases are the priority for listing; other cases were not being listed, but s3 and restricted cases should now begin to be listed. (3) Representatives are requested not to call the tribunal unless absolutely necessary, and to seek directions for late reports.
  • 01/04/20
    : Academic briefing note about assessment of mental capacity. Sophie Stammers and Lisa Bortolotti, 'Mitigating the risk of assumptions and biases in assessments of mental capacity' (University of Birmingham, 23/3/20) — "Mental health and social care professionals routinely assess the capacity of people to make decisions about their lives, in accordance with the Mental Capacity Act 2005 (MCA). The briefing note outlines how the functional approach to testing capacity in the MCA underdetermines decisions, describing the risks for stereotypes and assumptions to affect outcomes. It advocates for the need for specific training for professionals using the MCA to enable them to recognise the role of value judgements in capacity decisions, to mitigate the effects of stereotyping and assumptions, and to improve decision making."
  • 01/04/20
    : Coronavirus public health restrictions. Alex Ruck Keene, 'Public health restrictions and capacity' (Mental Capacity Law and Policy, 29/3/20) — "Two sets of regulations brought into force in the past week have radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society. This post looks at them through the prism of the law relating to those with impaired decision-making capacity; it also looks at through a similar prism at a part of the Coronavirus Act 2020 which is not (yet) in force, but is likely to come into force shortly,"
  • 01/04/20
    : Social distancing and mental capacity. Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 31/3/20) — "The Court of Protection team have been asked to advise on a number of occasions since 17 March 2020 as to the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19. Clearly the consequences of P going into the community, as she ordinarily would, are (a) that she is at risk of contracting COVID-19, (b) that she may infect others, if she has the virus, and (c) that she may be in breach of the new police powers which have come into effect."
  • 01/04/20
    : Detailed COP remote hearing protocol. Court of Protection, 'Remote access to the Court of Protection guidance' (Mr Justice Hayden, 31/3/20) — This 20-page document confirms that no COP 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. It includes a template case management order, and sets out sets out operational protocols governing remote hearings under the following headings: (1) General; (2) Legislative framework; (3) Judicial access to audio/visual conferencing platforms; (4) video/visual Conferencing: (a) Cloud Video Platform MoJ/HMCTS; (b) Skype for Business; (c) Microsoft Teams; (d) Zoom; (e) FaceTime; (f) Lifesize; (5) Audio/Telephone; (6) Security; (7) Transparency; (8) Transcription/recording of the hearing; (9) GDPR; (10) Attendance of P at the remote hearing; (11) Litigants in Person; (12) Witness Evidence; (13) Electronic Bundles; (14) Use of Interpreters and Intermediaries; (15) Orders and Service; (16) Legal aid funding.
  • 31/03/20
    : MHCS coronavirus guidance. Mental Health Casework Section, 'Q and A for healthcare professionals and MHCS staff' (30/3/20) — The questions are: (1) Will MHCS relax a requirement that supervisors should have face-to-face contact with patients living in the community, for conditional discharge reports? (2) What happens if a patient, who is detained in hospital, requires urgent treatment as a result of suspected COVID-19? (3) What happens if there is an urgent need to transfer a patient with suspected Covid-19 from one mental health hospital to another? (The document contains a new shorter transfer request template for use in this scenario.) (4) Is there still a requirement to submit Conditional Discharge Reports (CDRs) and Annual Statutory Reports (ASRs)? (5) How do I extend previously granted overnight leave at a community placement, to prevent the need for the patient to go back and forth between the hospital and community placement?
  • 30/03/20
    : MHCS coronavirus update. Mental Health Casework Section, 'MHCS Update: Covid-19' (Dear Colleague letter, 19/3/20) — This letter explains that MHCS staff are all working from home, their policies and procedures remain the same, and the ability to deliver casework is unchanged. If staffing levels decrease: the priorities will be recalls, prison transfers, upward transfers, tribunal statements and level/downward transfers and repatriations; there might be delays in leave decisions and discharges; and conditional discharge reports (CDRs) and applications for changes of discharge conditions (unless important because of risk) will be the lowest priority.
  • 30/03/20
    : E-cigarette policy guidance. Public Health England, 'Using electronic cigarettes in NHS mental health organisations' (4/3/20) — This document contains recommendations which were designed to provide a single reference point for NHS service providers to standardise smokefree policies on the use of e-cigarettes. This guidance states that e-cigarettes are not covered by smokefree legislation, that they are less harmful than smoking, and that 1 in 3 cigarettes smoked in England is by a person with a mental health condition. The headings are: (1) Summary; (2) Purpose of this advice; (3) Introduction; (4) The difference between smoking and vaping; (5) Current position of leading health organisations on e-cigarettes; (6) The evidence on quitting with e-cigarettes; (7) Recommendations for organisational policies; (8) Recommendations for care; (9) Next steps; (10) Other useful resources; (11) Case study.
  • 29/03/20
    : Guidance on learning disability and autism. NHS, 'Clinical guide for front line staff to support the management of patients with a learning disability, autism or both during the coronavirus pandemic - relevant to all clinical specialities' (ref 001559, v1, 24/3/20) — The Overview states: "People with a learning disability have higher rates of morbidity and mortality than the general population and die prematurely. At least 41% of them die from respiratory conditions. They have a higher prevalence of asthma and diabetes, and of being obese or underweight in people; all these factors make them more vulnerable to coronavirus. There is evidence that people with autism also have higher rates of health problems throughout childhood, adolescence, and adulthood, and that this may result in elevated risk of early mortality". The following key points are discussed: (1) Be aware of diagnostic overshadowing; (2) Pay attention to healthcare passports; (3) Listen to parents/carers; (4) Make reasonable adjustments; (5) Communication; (6) Understanding behavioural responses to illness/pain/discomfort; (7) Mental Capacity Act; (8) Ask for specialist support and advice if necessary; (9) Mental wellbeing and emotional distress.
  • 29/03/20
    : CQC coronavirus procedure for SOADs. Care Quality Commission, 'COVID-19: Interim Methodology for Second Opinions' (Dear Colleague letter, 20/3/20) — The summary stated in the letter is: "(1) We are asking mental health services to provide a summary of the patient’s current issues to CQC when submitting a second opinion request, which SOADs will use instead of visiting the hospital to examine care records. (2) Consultations with professionals, including with the responsible clinician, will be undertaken by telephone or video (Skype or Microsoft teams). (3) Following telephone consultations, we will ask services to support patients who agree to speak with SOADs to have access to telephones or technology to support a video call with the SOAD. (4) SOADs will not be asked to post original copies of certificates. We encourage services to accept electronic copies of certificates and act on that. The Government may lift the requirement for a paper copy, and we will issue further communications once this is confirmed."
  • 27/03/20
    : Guidance to psychiatrists about remote hearings. Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20) — (1) This guidance to psychiatrists includes the following: all evidence will be taken before a tribunal judge alone, using phone (BT MeetMe) 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.
  • 27/03/20
    : Proposed reduction on tribunal panel sizes (not MHT). Senior President of Tribunals, 'Proposal to amend Composition Statements' (18/2/20) — 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.
  • 27/03/20
    : Summary of Coronavirus Act 2000. Hill Dickinson LLP, 'Coronavirus Act - key facts' (26/3/20) — 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.
  • 25/03/20
    : Legislation. Coronavirus Act 2020 — This Act, among other things, amends the MHA 1983 in light of the coronavirus pandemic. The Act is in force on 25/3/20, although s10 and schedules 8-11 (amendments to the MHA and NI/Scottish equivalents) will commence on a date to be specified in regulations. The paragraphs of schedule relating to "Constitution and proceedings of the Mental Health Review Tribunal for Wales" came into force on 27/3/20.
  • 25/03/20
    : Guidance about LAA contract terms. LAPG, 'Guidance on what the Legal Aid Contract and LAA COVID-19 Guidance Allows' (25/3/20) — 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.
  • 25/03/20
    : LAA coronavirus guidance update — 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." See Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20)
  • 24/03/20
    : HIVE group and 2m separation at court. Court of Protection, 'Dear Colleagues letter' (Mr Justice Hayden, 23/3/20) — 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.
  • 23/03/20
    : Jury trials have been paused. Lord Chief Justice, 'Review of court arrangements due to COVID-19, message from the Lord Chief Justice' (23/3/20) — (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.
  • 23/03/20
    : Edge Training courses postponed owing to coronavirus pandemic — Edge Training have postponed their March to June courses owing to the coronavirus pandemic. Some courses may be converted to webinars (to be confirmed). See Events
  • 23/03/20
    : MHLA courses postponed owing to coronavirus pandemic — The Mental Health Lawyers Association have postponed their March and April courses owing to the coronavirus pandemic. See Events.
  • 22/03/20
    : Law Society coronavirus guidance. Law Society, 'Coronavirus (COVID-19) advice and updates' (19/3/20) — 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.
  • 22/03/20
    : Telephone and video hearing coronavirus guidance. HMCTS, 'HMCTS telephone and video hearings during coronavirus outbreak' (18/3/20) — 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
  • 22/03/20
    : MOJ coronavirus update. Ministry of Justice, 'COVID-19 Stakeholder Update' (22/3/20) — 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.
  • 21/03/20
    : Case (Interim declarations under s48 MCA 2005). DA v DJ [2017] EWHC 3904 (Fam)In this case Parker J followed the approach of HHJ Marshall QC in Re F [2009] EWHC B30 (Fam)M rather than the approach of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam)B in relation to the correct approach to the threshold test for making an interim order under MCA 2005 s48 (which requires that there is "reason to believe that P lacks capacity in relation to the matter"). There is no need for the the purpose and extent of the capacity assessment to be explained to the person concerned, and the evidence does not need to go so far as to rebut the presumption of capacity.
  • 21/03/20
    : Parole Board coronavirus guidance. Martin Jones, 'Guidance to members' (Parole Board, 20/3/20) — 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. See also: Parole Board, 'Further guidance to members' (1/4/20)
  • 20/03/20
    : MHT coronavirus telecon procedure. Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20) — The following procedure will apply to hearings from Monday 23/3/20: (1) section 2 and conditional discharge recall hearings will be prioritised; (2) no pre-hearing examinations will take place; (3) new cases will be listed as a telephone conference before a single judge; (4) the judge can seek advice by telephone from that day's allocated medical or lay member, then repeat that advice in the telecon and allow submissions; (5) it is suggested that an unrepresented patient be allowed to speak to the judge without others in the room; (6) it is suggested that the decision is not announced. (See the document for full details.)
  • 20/03/20
    : Coronavirus hospital discharge service requirements. HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20) — 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."
  • 20/03/20
    : Department of Health coronavirus ethical guidance. DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20) — 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".
  • 20/03/20
    : Coronavirus Family Court guidance. President of the Family Divison, 'COVID 19: National Guidance for the Family Court' (19/3/20) — 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".
  • 20/03/20
    : Coronavirus court guidance on remote hearings. Lord Chief Justice, 'Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts' (19/3/20) — 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.

Update archive