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- 17/06/19(1253): Case (MHT/Parole Board delay). LV v UK 50718/16  MHLO 32 (ECHR) — LV, a s47/49 patient, had argued that there had been a delay, in breach of Article 5(4), in securing her release, in particular because of the two-stage process involving both the Mental Health Tribunal and Parole Board. She accepted the government's offer of £2,500 in settlement of her claim.
- 15/06/19(2248): Case (Costs in s21A case). BP v London Borough of Harrow  EWCOP 20 — "The relevant circumstances of the adjournment of the January hearing are that the Respondent, the London Borough of Harrow, offered at the hearing a trial of BP returning home. ... For the Applicant, it is submitted that this is a case where it is appropriate to depart from the usual costs rule and to order the costs of the January hearing be paid by the Respondent because of the Respondent's consistent failure to offer a trial period at home before the start of and for the duration of the proceedings, and its decision to do so only after the January hearing had commenced. ... Overall, I can see the basis on which the Applicant considers an application for costs to be justified. However, this was a finely balanced case on the Applicant's own submissions in position statements, in particular that of 15 June 2018. I bear in mind the authorities on which the parties rely, in particular the Applicant's reliance on the comments of Hooper LJ in the Court of Appeal. I note the circumstances of Manchester City Council v. G, E and F  EWHC 3385 were quite different. On balance and considering the circumstances as a whole, I am not persuaded that it is appropriate to depart from the general rule on this occasion. I decide this based on the chronological position of the parties set out above and all the circumstances. The Respondent's conduct falls short, to what degree is immaterial, of the necessary test. This case does not represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in the Manchester case (paraphrased slightly)."
- 11/06/19(1300): Event. Court of Protection User Group Meeting - London, 15/10/19 —See Court of Protection User Group for information about the group. Contact Tolu Somade, Business Support Officer to HHJ Hilder (tolulope.somade@Justice.gov.uk) to confirm attendance at the meeting. Time: 2pm.
- 11/06/19(1251): COPUG minutes. Minutes of Court User Group Meeting (11/4/19) — (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.
- 11/06/19(1214): DOLS case law summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19) — This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019).
- 07/06/19(2121): Event. Edge Training: MHA and MCA Interaction - London, 14/10/19 —This course aims to enable health and social care staff to consider the impact of the Mental Capacity Act 2005 on their work and its relationship to the use and application of the Mental Health Act 1983. Speaker: Steven Richards. Cost: £150.00 plus VAT. See Edge website for further details and booking information
- 07/06/19(2118): Event. Edge Training: Understanding the Court of Protection - London, 30/9/19 —This one day course is designed to enable participants to feel equipped to attend the Court of Protection and to ensure they know what to expect: the best way to give evidence; the key Court of Protection roles; courtroom etiquette and terminology. The course will help delegates prepare to give evidence and deal with challenging questioning. A barrister in the field will give them tips on staying calm and composed under pressure and ensuring the evidence they give is fair, balanced and accurately represents application of the key components of the Mental Capacity Act to the Court of Protection judge. Speaker: Sophy Miles. Cost: £150.00 plus VAT. See Edge website for further details and booking information.
- 07/06/19(2117): Event. Edge Training: Liberty Protection Safeguards - London, 22/11/19 —This one-day course aims to provide a detailed analysis of the Liberty Protection Safeguards contained in the Mental Capacity (Amendment) Bill. The course considers the differences between DoLS and LPS and looks at what the new process will be and who will be affected. Speaker: Steven Richards. Cost: £150 plus VAT. See Edge website for further details and booking information.
- 07/06/19(2116): Event. Edge Training: Liberty Protection Safeguards - Manchester, 18/10/19 —This one-day course aims to provide a detailed analysis of the Liberty Protection Safeguards contained in the Mental Capacity (Amendment) Bill. The course considers the differences between DoLS and LPS and looks at what the new process will be and who will be affected. Speaker: Steven Richards. Cost: £150 plus VAT. See Edge website for further details and booking information.
- 07/06/19(2114): Event. Edge Training: Liberty Protection Safeguards - Manchester, 12/7/19 —This one-day course aims to provide a detailed analysis of the Liberty Protection Safeguards contained in the Mental Capacity (Amendment) Bill. The course considers the differences between DoLS and LPS and looks at what the new process will be and who will be affected. Speaker: Steven Richards. Cost: £140 plus VAT. See Edge website for further details and booking information.
- 07/06/19(2112): Event. Edge Training: Level 3 Safeguarding Adults - London, 8/7/19 —This one-day Level 3 Safeguarding Adults training course offers delegates the opportunity to explore the legal framework which underpins safeguarding adults work, and to explore the key challenges that may arise in practice. It will guide the delegates through the safeguarding adults process and focus on making safeguarding personal. It is for all staff who may be involved in safeguarding adult work, which could include social workers, community care officers, social care workers, social care managers, GP’s, practice nurses, heads of quality, chief nurses, designated nurses for safeguarding adults, occupational therapists, psychologists and psychiatrists. Speaker: Dawn Revell. Cost: £140.00 plus VAT. See Edge website for further details and booking information
- 07/06/19(2110): Event. Edge Training: BIA Legal Update (Annual Refresher) - London, 9/8/19 —This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: (a) Consider the latest DoLS news, research and guidance; (b) Examine the latest case law relevant to DoLS and the BIA role; (c) Reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Cost: £140.00 plus VAT. See Edge website for further details and booking information.
- 07/06/19(2107): Event. Edge Training: BIA Legal Update (Annual Refresher) - London, 1/7/19 —This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: (a) Consider the latest DoLS news, research and guidance; (b) Examine the latest case law relevant to DoLS and the BIA role; (c) Reflect on how the information covered affects BIA practice. Speaker: Steven Richards. Cost: £150.00 plus VAT. See Edge website for further details and booking information
- 07/06/19(2103): Event. Edge Training: Sexual relations, contraception, marriage and restricting contact - London, 17/6/19 —This one-day course is designed to enable participants to understand mental capacity in these sensitive areas. Participants will gain awareness of the relevant case law in relation to capacity and (where relevant) best interests decision making. Guidance will be offered on the steps to take where an individual lacks capacity to consent in these areas, to ensure that they are adequately safeguarded, and legal obligations are met. Speaker: Steven Richards. Cost: £140.00 plus VAT. See Edge website for further details and booking information.
- 01/06/19(2226): Event. MHLA: Foundation course - London, 28/8/19 —This course is aimed at new practitioners and those intending to attend the panel course in the near future. Attendance at the foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day panel course, which is a pre-requisite for application to the Law Society’s mental health panel. Speakers: Tam Gill and Neil Cronin. Price: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
- 01/06/19(2225): Event. MHLA: Panel course - London, 17/7/19 and 18/7/19 —The MHLA 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 to book online.
- 29/05/19(2136): Case (Withdrawal of CANH). A Clinical Commissioning Group v P  EWCOP 18 — "Having given anxious consideration to this very sad case, and with profound regret, for the reasons set out above I am satisfied this court should declare that P lacks capacity to make decisions regarding CANH. Further, in circumstances where I have concluded that P lacks capacity to decide for herself whether or not to continue to receive CANH, I am satisfied that it is in P's best interests to consent on her behalf to the withdrawal of that treatment, a step that I acknowledge will result in her death. ... In all the circumstances, I am satisfied that the sanctity of P's life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014."
- 20/05/19(1242): Case (Police use of force). Gilchrist v Greater Manchester Police  EWHC 1233 (QB) — "I recognise that this was a challenging situation for the police officers. They were faced with an individual who presented as very angry, covered in blood and with whom they were unable to communicate. Prior to Andrew Gilchrist's explanation, their assumption that Michael Gilchrist was an aggressor who, probably, had assaulted someone and needed to be detained, was reasonable. In those circumstances, their initial actions to attempt to bring him under control using CS gas and Taser were justified, reasonable and proportionate. However, once they were appraised of his vulnerability as an autistic man, and his behaviour suggested that he was defensive rather than aggressive, a more cautious approach should have been adopted. The further use of Taser, which had already proved to be ineffective, and following the use of CS gas, was inappropriate. The alternative course mandated by PS Morris, namely, using the force of the officers available to take Mr Gilchrist to the ground and restrain him without using weapons was a reasonable and proportionate response."
- 15/05/19(2147): Case (Capacity to consent to sex with husband). London Borough of Tower Hamlets v NB  EWCOP 17 — "There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..."
- 15/05/19(2138): Case (Capacity and ability to communicate). Patel v Arriva Midlands Ltd  EWHC 1216 (QB) — "Dr Fleminger's assessment was: 'Whether or not he can understand what information he is given and use and weigh this information in the balance to make decision, he is unable to communicate any decision he has made. Whether or not he regains capacity in the future depends on the outcome of his conversion disorder'. I am satisfied on the balance of probabilities that Dr Fleminger's capacity assessment was made on the basis of incorrect information gleaned from the Claimant's presentation and from what he was told by Chirag Patel of the Claimant's disabilities, namely that the Claimant was unable to communicate any decision he has made. ... In addition ... I do accept Dr Schady's opinion [that there is no conversion disorder]. Once again that leaves the Claimant with a presumption of capacity. ... To summarise: (i) The Claimant is presumed to have capacity. (ii) The court finds that the Claimant has been fundamentally dishonest in respect of his claim, and his litigation friend Chirag Patel has participated in this dishonesty. (iii) The entirety of the claim is dismissed, the court being satisfied that no substantial injustice would be caused in so doing. The court assesses damages for the 'honest part' of the claim at £5750."
- 15/05/19(2127): Case (Inquest and DOLS). R (Maguire) v HM's Senior Coroner for Blackpool and Fylde  EWHC 1232 (Admin) — "First, the claimant contends that the defendant erred in law by determining at the end of the evidence that article 2 no longer applied under Parkinson, thereby prejudging a matter that should have been left to the jury. Secondly, the Coroner erred in law by determining that the jury should not be directed to consider whether neglect should form part of their conclusion. ... That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the "paradigm example" of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under article 2. ... We agree that a person who lacks capacity to make certain decisions about his or her best interests - and who is therefore subject to DOLS under the 2005 Act - does not automatically fall to be treated in the same way as Lord Dyson's paradigm example. In our judgment, each case will turn on its facts. ... [The Coroner] properly directed himself as to the appropriate test to apply to the issue of neglect and having done so declined to leave the issue to the jury."
- 13/05/19(1246): Summary of LPS legislation passage through Parliament. Claire Tyler, 'The stormy passage of the Mental Capacity (Amendment) Bill' (The House Magazine, 2/5/19) — 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".
- 12/05/19(2328): Course date changed (from 16/5/19 to 17/6/19) — See PELT: Court of Protection Masterclass (new material) - Hoylake, 17/6/19.
- 12/05/19(2142): Medical leave application form. HMPPS, 'Medical Leave application for high profile restricted patients' (3/5/19) — This updated form is required when applying for permission to grant medical leave to a high profile patient.
- 12/05/19(2139): Leave application form. HMPPS, 'Leave Application for Restricted Patients' (3/5/19) — This updated form is for all leave except medical leave for high profile cases (for which there is a separate form).
- 10/05/19(2146): Case (Diminished responsibility medical evidence). R v Hussain  EWCA Crim 666 — "The single judge has referred the application for leave to appeal against conviction [for murder] and the extension of time application to the full court. The application for leave to appeal raises again the issue of what a trial judge should do when the sole issue to be determined at trial is the partial defence of diminished responsibility provided by section 2 of the Homicide Act 1957 (as amended) and there is unanimity amongst the psychiatric experts as to the mental health of the killer at the time of the killing."
- 10/05/19(2137): Case (HBSO, colonoscopy, deception). University Hospitals of Derby and Burton NHSFT v J  EWCOP 16 — "[Anne] is the subject of an application brought by the [Trust] for declarations that it is in Anne's best interests to undergo a hysterectomy and bilateral salpingo-oophorectomy and a colonoscopy, and that, in order to enable those to be undertaken, it is in her best interests for a transfer plan to be implemented which will involve her sedation and a level of deception to ensure her presence at hospital for the procedures to be undertaken. The application arises because it is said that Anne lacks capacity."
- 10/05/19(2131): Case (Suicide burden of proof at inquests). R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire  EWCA Civ 809 — "This appeal involves questions of importance concerning the law and practice of coroners' inquests where an issue is raised as to whether the deceased died by suicide. The questions can be formulated as follows: (1) Is the standard of proof to be applied the criminal standard (satisfied so as to be sure) or the civil standard (satisfied that it is more probable than not) in deciding whether the deceased deliberately took his own life intending to kill himself? (2) Does the answer depend on whether the determination is expressed by way of short-form conclusion or by way of narrative conclusion? Those are the questions falling for decision in this case; but to an extent they have also required some consideration of the position with regard to unlawful killing. ... I conclude that, in cases of suicide, the standard of proof to be applied throughout at inquests, and including both short-form conclusions and narrative conclusions, is the civil standard of proof."
- 10/05/19(2120): Case (Marriage, prenuptial agreement, information about extent of assets, etc). PBM v TGT  EWCOP 6 — "... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto."
- 10/05/19(2115): Case (Residence and care). Harrow CCG v IPJ  EWCOP 44 — "The Court is asked to determine where AJ should live and how he should be cared for. The applicant CCG has proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third party broker. JA's parents, who are the Second and Third Respondents, do not agree the proposals and seek the dismissal of the application.
- 09/05/19(1219): Case (Capacity to conduct proceedings). TB v KB  EWCOP 14 — "Law applicable to the court's determination of the question of whether P lacks capacity to conduct proceedings is well settled. ... Having regard to that analysis, I am clear that P does lack that capacity. This leaves the question of P's participation in these proceedings."