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- 06/08/20(1346): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 106, July 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS delayed to April 2022; alcohol dependence and other capacity conundrums; stem cell donation and altruism, and when to come to court in medical treatment cases; (2) In the Property and Affairs Report: updated OPG guidance on making LPAs under light-touch lockdown and a face-off between potential professional deputies; (3) In the Practice and Procedure Report: a basic guide to the CoP; litigation capacity and litigation friends and observations about intermediaries and lay advocates; (4) In the Wider Context Report: capacity and the Mental Health Tribunal, a change of approach to s.117 aftercare and lessons learned from a close encounter with triage; (5) In the Scotland Report: the Scott Review summary of responses to its initial survey and a response from the Chair to the critique in our last issue."
- 06/08/20(1339): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 105, June 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal presses the reset button in relation to capacity and sexual relations, and three difficult medical treatment decisions; (2) In the Property and Affairs Report: the impact of grief on testamentary capacity; (3) In the Practice and Procedure Report: a remote hearings update, and a pragmatic solution to questions of litigation capacity arising during the course of a case; (4) In the Wider Context Report: DoLS and the obligations of the state under Article 2 ECHR, the Parole Board and impaired capacity, and recent relevant case-law from the European Court of Human Rights; (5) In the Scotland Report: the interim report of the Scott Review critiqued."
- 30/07/20(1503): Suicide and homicide report. NCISH, 'Annual Report: England, NI, Scotland and Wales' (13/12/19) — "The 2019 annual report from the National Confidential Inquiry into Suicide and Safety in Mental Health (NCISH) provides findings relating to people who died by suicide in 2007-2017 across all UK countries. Additional findings are presented on the number of people convicted of homicide, and those under mental health care."
- 30/07/20(1428): Case (Article 2 inquests and community patients). Re Lee  MHLO 73 (Coroner) — The coroner, following the Administrative Court decision that she had failed properly to address the Article 2 operational duty as set out in the Rabone case, in this decision sets out reasons for concluding that (a) the operational duty was not neither engaged nor breached.
- 30/07/20(1358): Case (Article 2 inquests and community patients). R (Lee) v HM Assistant Coroner for Sunderland  EWHC 3227 (Admin) — The coroner had decided that Article 2 was not engaged in this case, which involved the death of a community patient who was not subject to the MHA. (1) In relation to the operational duty, the coroner's decision had focussed almost exclusively on the question of responsibility rather than the "threefold factors of assumed responsibility, vulnerability and risk" set out in the Rabone case. The matter was remitted to the coroner for reconsideration. (2) The grounds which related to systemic failures were unarguable.
- 27/07/20(0612): Conclusion of s2 listing window consultation. Tribunal Procedure Committee, 'Responses to the consultation (on changes to the s2 listing window) and reply from the TPC' (23/6/20) — The TPC made the proposed changes (10 days instead of 7 for listing s2 hearings), plus an explicit power to ignore the deadline. The change was a temporary response to the coronavirus pandemic, and its effects will be monitored before a a final decision is made. There were 60 responses, including from two organisations (the Law Society and the MHT Members Association): 51 were in favour and 9 against.
- 26/07/20(0910): Welsh tribunal coronavirus PD. Practice Direction: MHRT for Wales: Coronavirus COVID-19 (30/3/20) — This practice direction sets out the procedure for a period of 6 months. (1) During the pandemic, preliminary medical examinations will not be "practicable" owing to health risk. (2) Hearings will be held by telephone or video, unless dispensed with entirely (when a hearing would be impractical or involve undesirable delay, sufficient evidence is available to decide without a hearing, and this would not be detrimental to the health of the patient). (3) Tribunals will continue ordinarily to comprise three members, unless this is impractical or would involve undesirable delay, in which case a legal member may sit alone or with one other member.
- 26/07/20(0847): Welsh tribunal report PD. Practice Direction: Statements and reports for MHRTs in Wales (October 2019) — This practice direction, which is based on and is similar to the English 2013 equivalent, sets out what is required of tribunal reports.
- 24/07/20(2104): Case (Conditional discharge and DOL). MC v Cygnet Behavioural Health Ltd  UKUT 230 (AAC) — (1) Although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by "the different hats approach" (the same judge sitting in the COP and the FTT) or "the ducks in a row approach" (adjournment or deferred conditional discharge). (2) This involves no Article 14 discrimination in favour of incapacitous restricted patients as, under SSJ guidance, the equivalent outcome can be reached for capacitous patients by using s17 leave. (3) The FTT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. (4) The UT discharged the patient subject to conditions of residence, supervision and compliance with "all aspects of the care package" (surprisingly, as the care package would amount to a deprivation of liberty), with permission to apply to the FTT for variation on a material change in circumstances (surprisingly, as the MHA sets out when an application may be made).
- 23/07/20(2107): Tribunal guidance for patients. HMCTS et al, 'Mental Health Tribunal: An Easy Read Guide' (22/7/20) — "This document will help explain what you can expect if you attend a face-to-face Mental Health Tribunal hearing."
- 23/07/20(2103): Tribunal guidance for patients. HMCTS et al, 'Mental Health Virtual Tribunal: An Easy Read Guide' (22/7/20) — "This document will help explain what you can expect if you attend a virtual Mental Health Tribunal hearing."
- 20/07/20(2228): Case (Insanity legislation and foreign criminals). SSHD v MZ  UKUT 225 (IAC) — A person sentenced to a hospital order following a finding under CPIA 1964 s5(1)(b) that he "is under a disability and that he did the act or made the omission charged against him" is not subject to s117C Nationality, Immigration and Asylum Act 2002 ("Article 8: additional considerations in cases involving foreign criminals") or paragraphs A398-399 (also concerning deportation of foreign criminals) of the Immigration Rules.
- 20/07/20(2222): Case (Restricted hospital order instead of life sentence). R v Cleland  EWCA Crim 906 — Life sentence with 7-year minimum term quashed and substituted with s37/41 restricted hospital order.
- 18/07/20(2009): Case (Sexual relations and contact with husband). Re SF  EWCOP 15 — (1) SF lacked capacity in relation to some areas (litigation, care, residence, finances, tenancy, contact with strangers and people who are unfamiliar) but did have capacity to consent to sexual relations and to decide on contact with her husband. The psychiatric evidence was that SF would only have episodic memory ("memory for the personally experienced events of a person’s life, with retention of the details of time and situation in which they were acquired") in relation to contact with strangers, but would have semantic memory ("knowledge which is retained irrespective of the circumstances in which it was acquired [deriving] from the 'feeling' around the memory rather than the 'facts' surrounding the memory") in relation to her husband. (2) The court authorised the deprivation of liberty which existed both when living at her home and (on an interim basis until authorised by the placement) when receiving respite care at a residential supported care provision.
- 16/07/20(2230): Adjournment fee for remote hearing. Legal Aid Agency, 'Civil news: fee rules change for mental health remote hearings' (16/7/20) — (1) The LAA has amended the Standard Civil Contract 2018 to specify that the adjourned hearing fee may be claimed for remote hearings where the representative has incurred travel, advocacy or (if 15 minutes elapse since the scheduled or actual start time) provided that reasonable steps were taken to prevent those costs being necessary. (2) The new rule will be applied retrospectively.
- 10/07/20(2310): Case (Capacity to make tribunal application). SM v Livewell Southwest CIC  UKUT 191 (AAC) — (1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including on when the hospital managers, IMHA, or the tribunal itself should request the making of a reference.
- 08/07/20(1417): Case (Habitual residence). Re QD (No.2)  EWCOP 14 — A legal deadlock had arisen: (a) the English court did not have primary jurisdiction, as QD was habitually resident in Spain; (b) the Spanish court would not exercise its jurisdiction unless QD were in Spain; (c) there was no obligation to return QD there. The coronavirus travel bans meant an "urgent" decision under MCA 2005 sch 3 that he be returned could not be made, so the decision was adjourned for 3-4 months.
- 08/07/20(1305): Case (Habitual residence). Re QD  EWCOP 56 — QD, who had dementia, was living in Spain with his second wife when adult children from his first marriage flew him to England by stealth. The children unsuccessfully argued that: (a) he was now habitually resident in England, so the MCA applied in the usual way; (b) removal was justified under the common law doctrine of necessity; (c) jurisdiction was established on grounds of urgency; (d) even if QD were habitually resident in Spain, orders could be made under the inherent jurisdiction. The judge therefore made a protective measures order under sch 3 MCA 2005 pending a determination by the national authorities in Spain on what should happen next.
- 07/07/20(1347): Case (Capacity - DOL). Sunderland City Council v AS  EWCOP 13 — (1) The court decided that a CTO patient lacked capacity in all relevant areas (litigation, residence, care and contact). When giving oral evidence the jointly-instructed psychologist changed her mind on: litigation capacity (initially she thought AS had litigation capacity while not having subject matter capacity), residence (she placed insufficient weight on 'structure and routine', which is an integral part of the information relevant to a decision on residence in supported as opposed to independent living), and fluctuating capacity. The judge noted with approval the approach in NICE guidance on "Decision-making and mental capacity" to people with executive dysfunction. (2) The court authorised the deprivation of liberty (there was a high level of supervision throughout the day and night, in the accommodation and community).
- 06/07/20(1414): Case (Recognition of foreign protective measure). Health Service Executive of Ireland v Moorgate  EWCOP 12 — (1) The necessary criteria were met for the recognition and enforcement of protective measures contained in an order made by the Southern Irish High Court which authorised the patient's transfer from a London hospital to a specialist hospital in Leeds. (2) An appendix entitled "Domestic regimes applicable to SM and those in her position" contains the following headings: (a) Application of the MHA; (b) Hospital admission under the MHA; (c) Treatment under the MHA; (d) Representation and support; (e) Challenging detention; (f) Removal of alien patients; (g) Mental Capacity Act 2005 (excluding the provisions of Schedule 3); (h) Inherent jurisdiction of the High Court; (i) Comparison of protections under MHA and under Schedule 3.
- 06/07/20(1320): Case (Treatment despite religious delusions). Sherwood Forest Hospitals NHS Foundation Trust v C  EWCOP 10 — (1) Having previously undergone two hysteroscopies, and initially consented to removal of her ovaries and fallopian tubes, C disengaged, expressed religious views (such as that only God could cure her cancer), and was assessed as lacking capacity. The judge decided that "she clearly lacked capacity and her rejection of the treatment, which is clinically so manifestly in her best interests, is predicated on a delusional belief structure which manifests itself in the language of religion". (2) The delay in this case, which was attributable to the treating clinicians not initially knowing C had paranoid schizophrenia, and their reluctance to contemplate coercion, should not have happened and likely stressed C and her family, but had not led to neglect of the cancer.
- 03/07/20(2216): Case (Deputies and litigation). Re ACC  EWCOP 9 — This case concerned whether, and in what circumstances, a property and affairs deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings. The applicant deputies from Irwin Mitchell wanted to know when a professional deputy may instruct a legal firm with which it is associated and recover the costs from P. The court gave detailed guidance, including a summary of conclusions in an appendix.
- 03/07/20(2200): MHT guidance for young people. RCPsych and Tribunals Judiciary, 'A Guide to Mental Health Tribunals for Young People' (11/2/16) — This document contains a simplified description of the tribunal process for civil sections.
- 03/07/20(2147): MHT remote hearing CAMHS guidance. Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20) — This document explains remote hearings in simple language.
- 03/07/20(1518): Case (Capacity and nutrition/hydration). QJ v A Local Authority  EWCOP 7 — QJ had capacity to decide about nutrition and hydration despite his reluctance to answer certain questions. He was in agreement with the care plan, which included (a) Fortisip; (b) weighing; (c) discharge to a care home; (d) no readmission to hospital if he refuses to accept food or water.
- 03/07/20(1448): Case (Medical treatment). Sherwood Forest Hospitals NHS Foundation Trust v H  EWCOP 6 — In the previous judgment the court had authorised surgical excision of a squamous cell carcinoma on Mrs H's left cheek. By the surgery date its further growth rendered it inoperable. Other treatments, including electro-chemo therapy and paliative radiotherapy under general anaesthetic were under consideration, with a view to putting together a care plan for Mrs H's needs for the remainder of her life. The court would review the care plan because (a) the history of the case required that it be monitored, and (b) Mrs H's daughter had requested this.
- 03/07/20(1425): Case (Medical treatment delay). Sherwood Forest Hospitals NHS Foundation Trust v H  EWCOP 5 — Noting that the delay in bringing the case to court "may mean that a life is lost that could well have been saved", the judge authorised surgical excision under general anaesthetic of a squamous cell carcinoma on Mrs H's left cheek.
- 03/07/20(1332): Case (Finely-balanced treatment decision). QJ v A Local Authority  EWCOP 3 — (1) This s21A appeal was adjourned for medical evidence in relation to whether QJ had capacity (a) to decide on whether to receive nutrition and hydration either orally or artificially; (b) to decide more generally on medical treatment; and (c) to decide on admission to hospital. (2) On the day of the hearing QJ had for the first time indicated a willingness to be put on a drip. Even if QJ were now found to have capacity, the case should still come back before the court because: (a) it may very well be a "finely balaced" decision (and so within Practice Guidance (Court of Protection: Serious Medical Treatment)  EWCOP 2); and, in any event, (b) where there is already an application in relation to the central issue the matter should only be concluded within court proceedings and not left to clinical decisions.
- 03/07/20(1022): Case (Serious medical treatment guidance). Practice Guidance (Court of Protection: Serious Medical Treatment)  EWCOP 2 — "This practice guidance sets out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the Court of Protection. The procedure is currently being reviewed within the revised MCA Code. That will, in due course, be subject to public consultation and Parliamentary scrutiny. This guidance is intended to operate until such time as it is superseded by the revised Code."
- 03/07/20(0958): Case (Court of Protection permission). Re D: A v B  EWCOP 1 — (1) The appropriate threshold for permission under MCA 2005 s50 is the same as that applicable in the field of judicial review: to gain permission the claimant or applicant has to demonstrate a good arguable case. (2) In the current case, the decision to be made was "whether a good arguable case has been shown that it is in [D's] best interests for there to be a full welfare investigation of the current contact arrangements" and the judge's conclusion was: "I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted."
- 01/07/20(1001): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 104, May 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Protection, COVID-19 and the rule of law; best interests and dying at home; and capacity and silos (again); (2) In the Property and Affairs Report: further guidance from the OPG in relation to COVID-19 and an unusual case about intestacy, minority and the Court of Protection; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19; remote hearings more generally; and injunctions and persons and unknown; (4) In the Wider Context Report: National Mental Capacity Forum news, and when can mental incapacity count as a ‘status?’; (5) In the Scotland Report: further updates relating to the evolution of law and practice in response to COVID-19. We also note that 9 May 2020 was the 20th anniversary of the Adults with Incapacity (Scotland) Act 2000 receiving Royal Assent."
- 01/07/20(0947): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 103, April 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the DHSC emergency guidance on MCA and DoLS, the Court of Protection on contact and COVID-19, treatment escalation and best interests, and capacity under the microscope in three complex cases; (2) In the Property and Affairs Report: the Golden Rule in (in)action and the OPG’s ‘rapid response’ search facility for NHS and social care staff to access the register of deputies / attorneys; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19 and an important decision on the s.48 threshold; (4) In the Wider Context Report: COVID-19 and the MCA capacity resources, guidance on SEND, social care and the MHA 1983 post the Coronavirus Act 2020, dialysis at the intersection between the MHA and the MCA and an important report on the international protection of adults; (5) In the Scotland Report: the response of the legal community to AWI law and practice under COVID-19, and an update from the Mental Health Law Review."
- 01/07/20(0942): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 102, March 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a cautionary tale about re-using material for DoLS assessment and capacity complexities in the context of medical treatment; (2) In the Property and Affairs Report: an important case on the limits of powers of professional deputies to act without recourse to the Court of Protection; (3) In the Practice and Procedure Report: medical treatment - delay, neglect and judicial despair, developments relating to vulnerable parties and witnesses, and Forced Marriage Protection Orders under the spotlight; (4) In the Wider Context Report: Mental Capacity Action Days, when not to presume upon a presumption, and a number of important reports from bodies such as the CQC; (5) In the Scotland Report: the DEC:IDES trial. We have also recently updated our capacity guide and our guide to the inherent jurisdiction."
- 01/07/20(0920): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 101, February 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a tribute to Mr E; fluctuating capacity; improperly resisting a deputy appointment; DoLS, BIAs and RPRs, and finding the right balance with constrained resources; (2) In the Property and Affairs Report: the OPG, investigations and costs; e-filing for professional deputies, and a guest article about the National Will Register; (3) In the Practice and Procedure Report: the Vice-President issues guidance on serious medical treatment; an important judgment on contingent declarations; the permission threshold; and disclosure to a non-party; (4) In the Wider Context Report: brain death and the courts; deprivation of liberty and young people; (5) In the Scotland Report: supplemental reports from the Independent Review of Learning Disability and Autism; the Scott review consults; and relevant cases and guidance."