Annual Review 2023

Mental Health Law Online is the internet resource on mental health law, and mental capacity law, for England & Wales. The Annual Review 2023 contains all news items, arranged thematically, which were added to the website during 2023. At some point I hope to arrange this page thematically and publish it as a paperback and Kindle booklet, as in previous years (see Annual Review).

Cases

Case name	Subject	Sentence	Summary
A County Council v A [2022] EWHC 3572 (Fam)	Deprivation of liberty - children	DOL of child	Owing to the national shortage of secure accommodation placements, the hospital board reluctantly agreed to continue to keep a 16-year-old girl on a mental health ward for a further week pending a further court hearing and further searches for accommodation. Although the ward was "thoroughly inappropriate", as most of the patients were adults, some with behaviours risky to the girl, it was safer than being put out into the community. It was unlikely that the court could have compelled the hospital board, given that the girl was not detainable under s3, it was "not in her best interests to be there", and that other people needed the hospital bed.
A Local Authority v A [2020] EWCOP 76	Medical treatment cases	Covert medication - closed proceedings	This application was to consider the administration to A of covert medication in relation to primary ovarian failure. (1) It was permissible and proportionate for A's mother not to be informed of the proceedings because she would seek to subvert the medical treatment. (2) The advantages (to achieve adulthood via puberty, the possibility of developing her own family, cognitive development and maturity, proportionate independence and personal autonomy, a hundred percent effectiveness, no associated risk, a normal life expectancy, no death by a serious fracture or cardiovascular disease by 30 to 40 years of age, and the fact that covert administration is the least restrictive approach pursuant to the MCA 2005) outweighed the disadvantages (it was against A's current wishes, if A discovered that she had been covertly medicated she might lose trust or confidence with the placement) and it was in A's best interests to receive the treatment.
A Local Authority v H [2023] EWCOP 4	Sex and marriage cases • Other capacity cases • Reporting restriction order cases	Paedophilia	"H prefers to be referred to by female pronouns. ... H has expressed a sexual interest in pre-pubescent children. ... In the opinion of a highly experienced psychiatrist, instructed in these proceedings, H presents a real risk of sexual harm to children, both in contact with them and online. ... The Court has been asked to consider H's capacity to take decisions in the following areas: (i) Residence; (ii) Care/support; (iii) Contact with others (both adults and children); (iv) Use of the internet and social media."
A NHS Trust v ST [2023] EWCOP 40	Medical treatment cases	Belief and capacity	"The issues for determination at this hearing are ST’s capacity (i) to litigate and (ii) to make her own decisions in relation to future medical treatment. The Trust’s intention is to move to a treatment plan of palliative care. ... In terms of the functional test of capacity, a person’s ability to understand, use and weigh information as part of the process of making a decision depends on him or her believing that the information provided for these purposes is reliable and true. That proposition is grounded in objective logic and supported by case law in the context of both the common law and the interpretation of MCA 2005. ...In this context, and in terms of a patient-centred approach, it is important in my judgment for the court to consider the extent to which the information provided to a person is capable of being established objectively as a “fact” or a “truth”. The less certain the fact or truth, the more careful the court must be when determining whether the presumption of capacity is rebutted."
Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331	Reporting restriction order cases	RROs in end-of-life proceedings	"These appeals concern the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order ("RRO") made long before in end-of-life proceedings in the High Court. ... The orders made in these cases provide for the indefinite continuation of injunctions against the world prohibiting publication of the names of a small number of clinicians in the Abbasi case and a wide range of health service staff in the Haastrup case. The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to "tell their story" outweigh such article 8 rights of clinicians and staff as may still be in play, long after the RROs were made in the respective end-of-life proceedings. The wider systemic concerns which affect the operation of the NHS laid before the court by representative bodies cannot justify the creation of a practice, not anchored to the specific circumstances of the case, of granting indefinite anonymity to those involved in end-of-life proceedings. Such a step is one that is controversial and intensely political and suitable for Parliament rather than the courts."
Aberdeenshire Council v SF [2023] EWCOP 28	Foreign protective measure cases	Habitual residence	A Scottish patient was transferred to an English psychiatric hospital in 2015, was fit for discharge in 2017, and was eventually discharged in 2022 to a placement in England because nothing could be found in Scotland. Aberdeenshire Council sought to have a Scottish Guardianship Order recognised and enforced in England. All parties agreed that she was habitually resident in Scotland; this judgment sets out the law and explains why the judge agreed.
AC v Cornwall Partnership NHS Foundation Trust [2023] MHLO 1 (UT)	Powers • Upper Tribunal decisions	Adjournment and recommendations	The tribunal panel refused the s3 patient's adjournment request (which was on the basis of a lack of aftercare planning) though it indicated that it would be revisited if aftercare information proved necessary to decide on discharge. It refused to make a statutory recommendation but made an extra-statutory recommendation about transferring hospital and appropriate accommodation. Permission to appeal having been refused by the FTT and UT, the patient now renewed her application for permission. (1) The patient argued that the adjournment refusal was procedurally unfair, but the UT decided that: (a) in high-level terms, case management rulings should only be interfered with when "plainly wrong"; and (b) specifically, the panel's decision was consistent with caselaw in the mental health jurisdiction. (2) The patient also argued that the type of recommendation made undermined the purpose of the statute, given that a statutory recommendation was possible, but the Upper Tribunal decided that the panel had concisely explained a rational basis for its decision and was entitled to take the view that it should not get involved in the onward supervision of the patient's care. (3) The UT set out the test to be applied for permission to appeal: "I must find that the proposed grounds of appeal are arguable, in the sense that there is a realistic prospect of success in showing that the First-tier Tribunal went wrong in law in some way." [The Court of Appeal has expressed this differently: "The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. ... The court can grant the application even if it is not so satisfied. ... For example ... public interest ... or ... the law requires clarifying."] (4) The UT noted the courts' approach to expert tribunals' decisions: (a) it is probable that such a tribunal got the law right, decisions should be respected unless it is quite clear the tribunal misdirected itself on the law, and courts should not rush to find misdirections just because of the tribunal's conclusions on the facts (the UT judge christened this "the Lady Hale principle"); and (b) judicial restraint should be exercised when reasons are being examined, and the court should not assume a misdirection too readily just because not every step in its reasoning is fully set out (christened "the Lord Hope principle").
An ICB v RN and TN [2022] EWCOP 41	Coronavirus vaccination cases	Coronavirus vaccination	RN had already contracted coronavirus and recovered, and his mother objected to administration of a coronavirus vaccination. The court decided that it would be in his best interests, primarily because of government guidance (which the doctors followed) and because the court should take the same approach to adults lacking capacity as to children, and partly because the "altruistic argument" that receiving the vaccine would help others "is a powerful factor that is likely to be a strong argument for the vaccine for people in a risk group such as RN".
An NHS Foundation Trust v Kwame [2023] EWHC 134 (Fam)	Medical treatment cases	Death	Kwame was found unresponsive at his home after what it seemed was an attempt to take his own life, and for the following 20 months remained on a ventilator on a Paediatric Intensive Care Unit. The court declared: "(i) It is not in Kwame's best interests to continue to receive mechanical ventilation; (ii) It is in Kwame's best interests that there be defined limits on the treatment provided to him after that withdrawal of mechanical ventilation with the effect that he will be allowed to die and it is not in his interests to receive further life sustaining treatment."
Baker v Hewston [2023] EWHC 1145 (Ch)	Testamentary capacity cases	Testamentary capacity test	This case is about the relationship between the common law test of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 and the Mental Capacity Act 2005.
Banks v Goodfellow (1870) LR 5 QB 549	Testamentary capacity cases	Testamentary capacity test	Common law testamentary capacity test.
Blackpool Borough Council v HT (A Minor) [2022] EWHC 1480 (Fam)	Deprivation of liberty - children	DOL of 17-year-old	"The background to this matter will be depressingly familiar to those who are involved with proceedings concerning the deprivation of a child's liberty. ... Applications for declarations authorising the deprivation of liberty of a child often come before this court in the context of a dispute (either apparent or real) between the applicant local authority and the relevant NHS Clinical Commissioning Group and NHS England as to whether the subject child should be provided by NHS England with a CAMHS Tier 4 inpatient bed, or be provided with a placement and services by the local authority pursuant to its under the Children Act 1989, with the deprivation of the child's liberty being authorised under the inherent jurisdiction of the High Court. That is the position that has presented itself in this case. It is important to note at the outset that this should not be the position in this case, or indeed other similar cases. The courts have repeatedly emphasised the need for the State agencies engaged in cases of this nature to work co-operatively to achieve the best outcome for the child or young person."
Brassington v Knights Professional Services Ltd [2023] EWHC 1568 (Ch)	Deputyship cases	Deputyship and employment dispute	The claimant solicitor had been a salaried partner at the defendant law firm. When she resigned, the firm for the first time sought payment of £211,632.76 so-called "work in progress" which had accumulated over six years, of which £166,468.97 was for time costs which had been disallowed by the SCCO in deputyship cases (it was the firm's practice never to write off these costs). The firm relied on badly drafted engagement letters to argue that she, rather than "P", was their client (stating in litigation that "Knights has no duty or obligation to the various patients whom Katie accepted responsibility for") and that she was personally liable to the firm for all unpaid fees. The court had no hesitation in deciding that that she had been contracting solely as deputy, and as agent, for "P", and had accepted no personal liability: summary judgment was given in her favour.
Briley v Leicester Partnership NHS Trust [2023] EWHC 1470 (SCCO)	Inquest cases	Pre-inquest costs	Legal Aid for an inquest ran alongside CFAs for civil litigation. Pre-inquest work would have been recoverable under Legal Aid but was instead claimed from the defendant at market rates when the litigation concluded successfully. The costs judge decided that this work was recoverable from the defendant.
Cannon v Bar Standards Board [2023] EWCA Civ 278	Litigation capacity cases	Litigation capacity in disciplinary proceedings	The appellant had been disbarred for professional misconduct. In the Court of Appeal she argued that she had lacked mental capacity to participate in the Bar Disciplinary Tribunal proceedings and to give instructions in relation to her appeal to the High Court, and she sought permission to adduce psychiatric and other evidence which had not been before the court below. Permission to appeal was refused on this and other grounds.
Care Quality Commission [2023] UKICO 193752	Miscellaneous cases	FOI request	ICO's summary: "The complainant has requested the Care Quality Commission (CQC) to disclose information relating to Mental Health Act complaints and an inspection of an NHS Trust’s Mental Health Services. The CQC refused to disclose the inspection information citing section 31(1)(g) by virtue of 31(2)(c) of FOIA (law enforcement), section 40, section 41 and section 44 of FOIA. For the complaints information the CQC refused to disclose on the basis of the same exemptions. The Commissioner’s decision is that the CQC is entitled to refuse to disclose the inspection information in accordance with section 31(1)(g), by virtue of 31(2)(c) of FOIA and for the complaints information the CQC is entitled to refuse the request on the basis of section 40(2). The CQC however breached section 10 of FOIA by failing to respond to the complainant’s request within 20 working days of receipt."
Clitheroe v Information Commissioner (2023) UKFTT 299 (GRC)	Miscellaneous cases	FOI request	This appeal under s57 Freedom of Information Act 2000 concerned requested information about a review project associated with the work of associate hospital managers conducted by Verita Consultancy for Lancashire and South Cumbria NHS Foundation Trust. The Trust originally applied s36 (prejudice to the effective conduct of public affairs) to one part of the request and refused to comply another part under s12 (cost exceeds appropriate limit) but subsequently withdrew its reliance on those exemptions. The Trust had complied with s1(1) but had communicated some information outside the 20-working-day requirement so had breached s10(1). There had been an error of law but no action was required.
Coventry City Council v MK [2023] EWHC 249 (Fam)	Sex and marriage cases	Forced marriage	"The application for a Forced Marriage Protection Order arose out of the discovery that there had been an arranged putative wedding between MK and a woman in Pakistan. [His parents] accept that this took place over Whatsapp. ... The issues falling to be determined at this hearing may conveniently be summarised as follows: (i) Is MK's marriage to A valid? (ii) In the event that MK's marriage to A is not valid, what is the appropriate remedy to recognise the invalidity? (iii) What should be the terms of any forced marriage protection order? (iv) Is it in MK's best interests to remain living in the placement? (v) Is it in MK's best interests to continue to receive care and support in accordance with the current care plan? (vi) Is any confinement consequent upon MK's care plan necessary and proportionate? (vii) Do any decisions need to be made in relation to MK's contact with A? (viii) What arrangements, in relation to MK's internet and social media use are in MK's best interests and if there are to be restrictions on his use what should be the extent of such and what should be the arrangements for reviewing them?"
D v S [2023] EWCOP 8	Other capacity cases • Sex and marriage cases	Divorce	"There are two applications before this Court. The first to be determined (in the Court of Protection) relates to a best interests decision in respect of D, who lacks capacity in a wide sphere of decision-taking in consequence of a severe acquired brain injury. The injury which occurred in 2006, resulted in significant physical and cognitive impairment. The second application (in the Family Court), which as will become clear below, is contingent upon the decision in the first, is an application for a decree nisi of divorce."
Derbyshire Healthcare NHS Foundation Trust v SSHSC [2023] EWHC 3182 (Admin)	Coronavirus cases	Renewal and remote assessments	Remote assessment insufficient for renewal of s3, guardianship or CTO (no decision in relation to initial discharge onto CTO).
Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB)	Miscellaneous cases	Possession claim	"Amongst other issues this case raises the effect of a period of time spent in residential care by a person with no mental capacity and whether it should deprive a member of the family who had resided with them at a property of their right to succeed to that property. The Claimant [council]'s case is simple. In October 2016 Mrs Dorothy Mailley, who was then resident in a care home with no prospect of return to her home, ceased to occupy No 19 as her only or principal residence. As such her tenancy ceased to be secure as the tenant condition was not satisfied. The Claimant served a notice to quit upon Mrs Dorothy Mailley at the care home and as a result her tenancy came to an end. Thereafter her daughter, the Defendant, who remained living at the property, was a trespasser, and the Claimant is entitled to possession."
Esper v NHS North West London ICB [2023] EWCOP 29	Contempt of court cases	Transparency in committal proceedings	This was an appeal from a COP district judge's decision in committal proceedings to (a) publish a judgment naming Dr Esper as a contemnor; and (b) permit the publication of Dr Esper's name, while restricting the identification of AB, and two other relatives of AB who are respondents in the Court of Protection proceedings.
FXJ v SSHD [2022] EWHC 1531 (QB)	Repatriation cases	Immigration	"The principal issue in this appeal is whether the Respondent owes a duty of care in tort to the Appellant in circumstances where a delay before withdrawing an appeal against a decision as to immigration status had exacerbated the Appellant's mental health condition thereby leading to his hospitalisation."
Guidance: 'Closed Hearings' and 'Closed Material' [2023] EWCOP 6	Other capacity cases	Closed hearing and closed material guidance	This guidance, given following Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44, relates to closed hearings (at which a party and, if represented, his representative is excluded by order of the court) and closed material (which the court has determined should not be seen by the party and/or his representative).
Kettering General Hospital NHS Foundation Trust v C [2023] EWHC 239 (Fam)	Inherent jurisdiction cases	Treatment of baby	The High Court granted anticipatory declarations under its inherent jurisdiction relating to an unborn child to secure the administration of anti-retroviral medication to the baby in the absence of the HIV-positive mother's consent. The judge noted that there was no jurisdiction in this case under the MCA: "The fact that C's views in relation to the proposed treatment may be entirely out of step with received medical opinion, does not challenge and certainly does not rebut, the presumption that she is capacitious to take the decision herself."
KU v Commissioner of the City of London Police [2023] EWHC 1853 (KB)	Miscellaneous cases	Section 136 detention and section 139 leave	The police entered the claimant's flat, asked him to enter the corridor, and in the corridor detained him under s136. The claimant sought damages for false imprisonment, arguing that the s136 power had been unlawfully exercised in his flat. The defendant argued that the High Court's s139 leave should be set aside (on the basis that a Master cannot grant leave, or because of procedural failings or impropriety), or that the claim should be struck out (for similar procedural reasons), or that summary judgment should be granted, or that the decision to grant leave was wrong on the merits. The defendant's arguments were unsuccessful.
Lancashire and South Cumbria NHS Foundation Trust v AH [2023] EWCOP 1	Best interests	Residence	"Due to the risk to AH's life because of her inconsistent engagement with services, I was asked initially to approve a care plan for AH that involved a period of assessment in Placement 1. That meant she would spend a period of a few months at the placement. She would be deprived of her liberty there because she was not free to leave and could only leave the placement for visits to her own flat with the permission of staff and was required to return in accordance with her care plan. I am in no doubt that AH is deprived of her liberty. She does not want to be at Placement 1. She wants to be in her own home. She is allowed to go there, but she is in effect on leave when she does, and she has to return to Placement 1 when required. She is not allowed permanently to leave Placement 1 and reside somewhere else. Whilst she is at Placement 1 she is under continuous supervision and control, i.e. necessary monitoring, and is not free to leave as and when she wishes."
Manchester University NHS Foundation Trust v JS [2023] EWCOP 12	Deprivation of liberty • Deprivation of liberty - children • Unlawful detention cases	DOLS ineligibility under Case E	Jane, a 17-year-old patient, had been detained under s2 on an acute medical ward following a paracetamol overdose. When the s2 expired her detention continued as before, purportedly under common law but in fact unlawfully, and an application was made to the court. The plan was to discharge Jane to her mother's in a few days once a care package was arranged. (1) The court decided that she lacked capacity in relation to residence, care and treatment and that, inappropriate as it was (the ward being mixed-sex, all-ages, non-psychiatric and non-CAMHS), it was in her best interests to remain for the time being, and it therefore authorised the plan in the interim. (2) The court subsequently considered "ineligibility" under Case E for MCA detention, which arises when a patient is within the scope of the MHA (essentially, when an MHA application could be made and the patient could be detained) and the patient objects to at least some of the mental health treatment. The team responsible for conducting gatekeeping assessments for Tier 4 in-patient units had decided she did not meet the MHA criteria, but when the matter goes to court it is for the judge to decide. The patient clearly objected. She met the MHA criteria: she needed to be nursed safely and medicated to address the effects of her mental disorder, and no alternative was yet available. The decision on using the MHA cannot be viewed in isolation from what is (or is not) available elsewhere at the time. The jurisdictional label (MHA, MCA, inherent jurisdiction, or common law) is irrelevant when the care plan and length of detention would be the same in practice. (3) To use the inherent jurisdiction would be inappropriate because there is no statutory gap to patch (Jane could and should have been treated under the MHA) and because to do so would provide an incentive to avoid using the MHA.
MB v South London and Maudsley NHS Foundation Trust [2023] UKUT 261 (AAC)	Powers • Upper Tribunal decisions	Reinstatement	The patient withdrew his tribunal application in order to give himself an opportunity to be tested further and to allow for plans for discharge to be developed further. The First-tier Tribunal subsequently refused to reinstate the application, mischaracterising the only "change in circumstances" as being the desire to pursue the application (and noting that there would be no detriment to the patient as he could now apply in the new eligibility period). The Upper Tribunal decided that reinstatement could only properly be understood in the context of the withdrawal reasons, that the FTT had unlawfully failed to consider whether the patient having been tested further in the intervening period was a change in circumstances that could justify reinstatement, and that in any event the reasons were inadequate for failing to address the central thrust of the application. The UT set aside and remade the decision, allowing the reinstatement.
ML v Priory Healthcare Limited [2023] UKUT 237 (AAC)	Reasons • Upper Tribunal decisions	Discharge to MCA detention	A s47/49 post-tariff lifer sought a notification that if he were a s37/41 patient he would be entitled to conditional discharge (with 24-hour support and medication being governed by the MCA) and a recommendation that he remain in hospital pending release. The MHT refused, believing that "the only environment where his medication regime can be enforced is in hospital". This refusal was based on errors of law: (1) the tribunal was under the misapprehension that there was no way for it to coordinate the MHA proceedings with an MCA authorisation, and it made its decision on the s72(1)(b) detention criteria without reference to the possibility that an alternative framework for managing the patient was available; (2) its reasons were inadequate as it had ignored the central argument that there was a less restrictive alternative to hospital detention.
NHS Surrey Heartlands ICB v JH [2023] EWCOP 2	Medical treatment cases	Advance decision and death	"This is an application brought by [the ICB], in respect of the respondent, JH [for] a declaration pursuant to section 26(4) [MCA 2005] that JH made an advance decision on 10 December 2017 which is valid and which applies to any invasive test or treatment (including life sustaining treatment). Further and for the avoidance of doubt, the draft declaration seeks a recording 'that a person does not, therefore, incur liability for the consequences of withholding such tests or treatment from JH'."
NK v RK [2023] EWCOP 37	Best interests	Capacity - contact - inherent jurisdiction	The family sought declarations: that R lacked capacity to make decisions about contact; that R was susceptible to undue influence, and measures needed to be put into place to protect her from this; that R lacked capacity to revoke LPAs. They sought orders: under the inherent jurisdiction in relation to supporting contact between her and her family (if R did have capacity about contact); and under either the MCA or the IJ that it was in R's best interests to implement a "supportive framework" around R to encourage her to repair and maintain her relationship with her immediate and wider family and friends.
Norfolk and Suffolk NHS Foundation Trust v HJ [2023] EWFC 92	Medical treatment cases	MCA treatment for MHA patient	HJ was detained under MHA 1983 s3 but treatment under restraint for her constipation could not be provided under MHA 1983 s63. The trust asked the court to authorise deprivation of liberty; the judge in email correspondence expressed doubts; subsequently the trust and Official Solicitor changed their minds and agreed that the treatment did not involve deprivation of liberty. The judge decided: (1) The following principles apply: (a) only in exceptional cases will something amount to a further deprivation of liberty of someone already lawfully deprived of liberty; (b) this is because the usual position is that Article 5(1)(e) is not in principle concerned with suitable treatment or conditions; (c) the test is whether there is an unacceptable element of arbitrariness in the actions taken by a state body. (2) Applying that approach, proper and lawful exercise of clinical judgment will, save in exceptional circumstances, lack arbitrariness and will not amount to deprivation of residual liberty; partly that is because the trust owe a common law duty of care to the patient to provide appropriate treatment (the patient cannot be deprived of liberty by actions that the trust are required to take). (3) The MCA 2005 s4 best interests process, MCA 2005 s6 restraint limitations, MHA framework and Mental Health Units (Use of Force) Act 2018 requirements are a sufficient procedural framework for Article 8 purposes and do not need to be supplemented by a court order.
North Bristol NHS Trust v R [2023] EWCOP 5	Medical treatment cases	Caesarean section	"This is an application by North Bristol NHS Trust (hereafter “the Trust”) for declarations that R lacks capacity to decide whether or not her unborn baby should be delivered pre-term by elective Caesarean section and that an elective Caesarean section at 34 weeks is in her best interests. ... This case is unusual in that R has not expressed an objection to giving birth by way of Caesarean section. However, the medical team caring for R are concerned that there is a risk that she may ultimately refuse the Caesarean in the same way as she has intermittently refused foetal monitoring, resulting in her physical and/or mental heath being compromised through damage to, or the death of her baby."
Parkcare Homes (No.2) Ltd and Priory Central Services Ltd [2023] MHLO 2 (HSE)	Miscellaneous cases	HSE prosecution	These two companies within the Priory Group pleaded guilty to offences under the Health and Safety at Work etc. Act 1974 after failing to manage risks to care staff and patients from violence and aggression at the Priory Hospital in Aberdare from 2014-2017, and were fined £363,000 and £40,000 respectively. Risk assessments and training were inadequate, PPE (including bite-resistant clothing and personal alarms) was not issued, there were no post-incident debrief sessions or investigations, and PCSL's failure to rectify deficiencies despite repeated warnings allowed injuries to staff to continue.
PC v Cornwall Partnership NHS Foundation Trust [2023] UKUT 64 (AAC)	Other Tribunal cases • Upper Tribunal decisions	Hearing in patient's absence	The tribunal panel refused an adjournment request and proceeded in the patient's absence. (1) The panel found, under rule 39(1)(a) and (b) respectively, that reasonable steps had been taken to notify the patient of the hearing and that it was in the interests of justice to proceed. However, it made no findings, under rule 39(2)(a)(i) and (ii) respectively, in relation to whether the patient had decided not to attend the hearing or was unable to attend for reasons of ill health, and it was not self-evident that either requirement was satisfied. Proceeding in the patient's absence was therefore an error of law. (2) The First-tier Tribunal judge refusing the appeal had used an out-of-date version of the rules (though this did not affect her reasoning) and had misunderstood the rules, confusing rule 39(1)(a) and rule 39(2)(a). (3) The Upper Tribunal concluded: "A tribunal must always operate within its rules of procedure and that is particularly important when liberty is at stake. This is why I have dealt not only with the tribunal’s reasoning but also with the reasoning in the refusal of permission."
R (C) v SSJ [2014] EWHC 167 (Admin)	Ministry of Justice cases	Leave for restricted patient	(1) The SSJ's refusal to grant permission for the s47/49 patient to receive unescorted community leave, after the tribunal's decision under s74 that he no longer met the MHA detention criteria, was not unlawful. (2) The hospital and staff should remain anonymous but not the patient.
R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20	Inquest cases	Article 2 and inquests	"Whether the death of a disabled woman who was deprived of her liberty engaged the state's obligation to protect life under Article 2 of the European Convention on Human Rights, therefore requiring an inquest jury to make findings regarding the circumstances by which the death occurred."
R (Maher) v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin)	Powers	Failure to provide reasons to victim	(1) The Mental Health Tribunal in its first decision, in which it had refused to provide the mother of a victim of manslaughter the reasons for the conditional discharge decision, or a gist of them, had unlawfully fettered its discretion by applying a blanket policy or practice. (2) Around a year later, after judicial review permission on the "blanket policy" ground had been granted, the Deputy Chamber President decided to make a further decision. The tribunal had power to make this decision under its case management powers, but the decision itself was unlawful: (a) instead of directing herself that departing from the open justice principle can only be justified in exceptional circumstances when strictly necessary to secure the proper administration of justice, the DCP jumped straight to the presumption of privacy contained in the tribunal's rules; as a consequence she did not engage with the purpose of the open justice principle which is to both assist in justice being done through transparency and also to enable the public to have confidence in the system; (b) her focus on the mother's motives, which should not have been given weight in the overall balance, clouded her consideration of other, more relevant issues; (c) she did not direct herself that the extent of the derogation from the principle of open justice should be no more than is strictly necessary to achieve the desired purpose, and did not consider providing the mother with a gist or summary of the reasons; (d) she did not explain why a redacted version of the conditional discharge decision could not meet the patient's privacy rights or why redacted reasons were "not possible"; (e) she did not adequately explain her reasons; (f) she did not engage sufficiently with the reasons that the mother had put forward. The court noted: "The direction of travel in the last 30 years or so has been towards openness and a more rigorous scrutiny of exceptions to the open justice principle and creative thinking about how conflicting rights can be reconciled." (3) The refusal to provide the gist of the reasons for the conditional discharge decision, when the Parole Board would have provided a gist of its reasons in similar circumstances, was unlawful discrimination under Article 14 in relation to the mother's Article 8 rights. (4) The tribunal's decision not to allow a Victim Personal Statement, and the inability of a victim to request a reconsideration, were not unlawful discrimination given the different functions of the PB and the MHT.
R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin)	Inquest cases	Article 2 inquest	The mother of a 16-year-old girl who had hanged herself while under the care of Specialist Child and Adolescent Mental Health Services challenged the coroner's decision that the Article 2 procedural investigative duty did not arise. The decision was quashed and remitted to the coroner for re-determination.
R (Percival) v Police and Crime Commissioner for Nottinghamshire [2022] EWHC 3544 (Admin)	Litigation capacity cases	Litigation capacity assessed by judge	This case concerned whether the claimant had capacity to conduct claims for judicial review. The judge made his decision by reference to the Equal Treatment Bench Book, from speaking to the claimant, and considering the conduct of proceedings so far, and concluded: "Whilst it has been emphasised that judges should be slow to form a view as to capacity without the benefit of any external expertise, I do not consider that anything is likely to be achieved, other than further significant delay, by seeking to contact the Official Solicitor to obtain updated medical evidence and in circumstances where, despite HHJ Gosnell's earlier invitation, the Official Solicitor has still not been actively engaged. Having today listened to Professor Percival and having considered the manner in which he has conducted the judicial review proceedings to date over a prolonged period of time, I am satisfied, on the balance of probabilities and applying the presumption of capacity, that Professor Percival does indeed have capacity to conduct these proceedings when applying the appropriate legal test as set out in sections 2 and 3 of the 2005 Act. In particular, I am satisfied that Professor Percival is able at least in these judicial review proceedings to understand, retain, use and weigh in the balance relevant information for making decisions in relation to these claims and to communicate those decisions both to the Court and to the defendants."
R (Worcestershire County Council) v SSHSC [2023] UKSC 31	After-care	Ordinary residence and s117	JG was detained under s3 in Worcestershire (Area 1), discharged to residential care in Swindon (Area 2), detained again under s3 in Swindon and discharged again. The Supreme Court held that: (1) a duty under section 117(2) to provide after-care services automatically ceases when the patient is detained again under s3 (or another provision specified in section 117(1)), and upon the second discharge a new duty is placed on the local authority of the area in which the patient was ordinarily resident immediately before the second detention; (2) there is no deeming or disregarding provision in the MHA (unlike the Care Act 2014 or Children Act 1989) so the words "is ordinarily resident" must be given their usual meaning, with the adaption where there is lack of capacity that the mental aspects of the Shah test (voluntary adoption and settled purpose) must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned; (3) on the facts, JG was ordinarily resident in Swindon immediately before the second detention, so Swindon was now responsible for after-care.
R v Byrne [2022] EWCA Crim 1630	Hybrid order cases	Appeal against hybrid order	The appellant unsuccessfully sought a s37/41 restricted hospital order instead of a s45A hybrid order and 16-year-tariff life sentence.
R v Crerand [2022] EWCA Crim 962	Life sentence cases	Life sentence replaced by hospital order	The Court of Appeal quashed a sentence of life imprisonment and substituted a s37/41 restricted hospital order, "taking into account the nature of his mental illness, its causal connection with the offence, its treatability and the clear evidence that his condition will be better managed on release under the Mental Health Act regime and the public better protected".
R v Inneh [2021] EWCA Crim 2004	Restriction order cases	Appeal against restriction order	The patient appealed against the restriction order aspect of the s37/41 hospital order, arguing that the judge had focussed too much on the background of the her behaviour up to and including the present offence and not enough on the progress which has been made over the lengthy period which had elapsed during her in-patient treatment. The Court of Appeal decided that the restriction order was necessary for public protection, particularly because there was evidence of sudden relapse not only from ceasing medication but also stress and pressure, and that when unwell the she had struggled to control her temper and had shown herself capable of causing serious injury to others.
R v Miller [2021] EWCA Crim 1955	Life sentence cases	Life sentence replaced by hospital order	(1) The Court of Appeal quashed a life sentence and substituted a restricted hospital order, believing that this would better protect the public. (2) It is misconceived to submit tribunal decisions as fresh evidence in criminal appeals.
Re D (A Child) [2019] UKSC 42	Deprivation of liberty - children	Parental responsibility and DOL	It is not within the scope of parental responsibility to consent to living arrangements for a 16- or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5.
Re EBY [2023] EWHC 2494 (Fam)	Deprivation of liberty - children • Inherent jurisdiction cases	DOL of 17-year-old under Art 5(1)(d)	The local authority sought an order under the High Court's inherent jurisdiction authorising the deprivation of liberty of a 17-year-old girl in accommodation provided under s20 Children Act 1989 with parental consent, arguing that this was a necessary and proportionate measure for the purposes of Article 5(1)(d) ("for the purpose of educational supervision") in her best interests to protect her from further serious harm as a result of her involvement in criminal gang activity. The court considered whether the inherent jurisdiction was available and whether it should be exercised, and granted the order sought, but only for a short period until a further hearing.
Re P (Appeal: Forced Marriage Protection Order: Jurisdiction) [2023] EWHC 195 (Fam)	Miscellaneous cases	FMPO	P had been forced into a religious marriage, under pressure from both families, and repeatedly raped. The Family Law Act 1996 allowed a Forced Marriage Protection Order to be made even though she was neither physically present in this jurisdiction nor a British citizen. The judge concluded: "I observe that this interpretation of the Act's wide and protective jurisdiction sends two clear messages which are of real importance. First, victims abroad who are forced into marriage with a British national or someone habitually resident here may be able to avail themselves of protective orders in this jurisdiction to counter such abusive behaviour and mitigate its harms. Second, British nationals or those who are resident here should be aware that they cannot force a person into marriage and escape legal sanction for their behaviour in the family court merely because their victim is neither habitually resident nor a British national."
Re RN (Deprivation of Liberty and Parental Consent) [2022] EWHC 2576 (Fam)	Deprivation of liberty - children	DOL of under 16s	The local authority sought declarations under the inherent jurisdiction authorising the deprivation of liberty of a 12-year-old girl in her father's home. The Supreme Court in Re D (A Child) [2019] UKSC 42 had decided that parental consent cannot authorise DOL of 16-17 year olds. The High Court in this case concluded: "It follows from all that I have said that the restrictive care arrangements in place for RN are a proper and lawful exercise of parental responsibility. This amounts to a valid consent, with the consequence that the second limb of the established three stage test for what amounts to a deprivation of liberty is not met. In such circumstances, this Court need not make any High Court declaration authorising them. They are rendered lawful by the parental consent."
Re Troy (A Child) [2022] EWHC 3426 (Fam)	Deprivation of liberty - children	DOL of child in general ward	A child had been detained in an acute children's ward at a general hospital after discharge from s2. This deprived the NHS of beds for children needing physical medical care and involved a risk of infection. The judge described the situation as "shocking" but noted that a hospital is at least subject to regulation by the CQC and it is not a criminal offence to place a child in a hospital (contrasted with an unregistered children's home). He concluded: "Given there has been no alternative place for Troy to live and that restrictions amounting to the deprivation of liberty have been needed to keep Troy safe whilst living at the hospital, I must give that permission. The court is unable to find alternative placements and so, if the deprivation of a child's liberty is authorised, judges are limited to trying to ensure that the child is kept safe and is well cared for, and to hope and encourage others to act to find suitable accommodation and care arrangements."
Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam)	Deprivation of liberty - children	Secure accommodation of children	"The primary purpose of this judgment is for the court, once again, to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children. ... Courts are regularly told that, on any given day, the number of those needing a secure placement exceeds the number of available places by 60 or 70."
SCC v FP [2022] EWCOP 30	Best interests	Contact with mother	"The challenging issue for the court to determine in this case is whether it is in the best interests of a vulnerable 36 year old woman, FP, who lacks capacity to make decisions about residence, care, and contact with others, to be deprived of direct contact with her mother, RT, with whom she wants to have contact, for a period of at least five months. RT’s behaviour forms the basis of the Local Authority’s application to prohibit contact with her daughter for a long interim period, and her behaviour as an unrepresented party made it very difficult to manage the hearing of the application before this court."
SF v Avon and Wiltshire Mental Health Partnership NHS Trust [2023] UKUT 205 (AAC)	Other Tribunal cases • Upper Tribunal decisions	Appropriate medical treatment	The First-tier Tribunal erred in law in deciding that "appropriate medical treatment" was available because its decision was based on two misunderstandings: (a) that interventions which had the purpose merely of containing risk of physical harm were capable of amounting to "medical treatment"; and (b) that medical treatment may be "appropriate" even where it is "not tailored to [the patient's] diagnosis", and where treatment that is "essential" is not available.
Smith v Cosworth Casting Processes Ltd [1997] EWCA Civ 1099	Miscellaneous cases	Permission to appeal guidance	"(1) The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word "realistic" makes it clear that a fanciful prospect or an unrealistic argument is not sufficient. (2) The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying."
Somerset NHS Foundation Trust v Amira [2023] EWCOP 25	Deprivation of liberty • Medical treatment cases	Anticipatory declarations	The trust sought anticipatory declarations concerning what would be lawful and in Amira's best interests were she to lose capacity during childbirth: under s15 MCA 2005 about treatment under the care plan, and under the inherent jurisdiction about associated restraint or deprivation of liberty. The day before the hearing the trust assessed that she now lacked capacity. The court agreed and declared the care plan to be in her best interests, but made the following obiter comments: (1) The Court of Protection does not have any power to make anticipatory declarations under s15(1)(c) in relation to someone who currently has capacity, and earlier cases were wrongly decided. (2) A s48 interim order (which would have been relevant if the decision on capacity had been different) cannot authorise deprivation of liberty, but it is ECHR-compliant for temporary deprivation of liberty in emergency cases to be authorised under the inherent jurisdiction. (3) In a litigious world trusts want "the gold standard of immunity" (orders under ss16(2)(a) and 4A(3) and (4), or even a s48 interim order with inherent jurisdiction deprivation of liberty), but these could be difficult to obtain quickly enough and equivalent immunity could be obtained using ss4B, 5 and 6, which is the route that Parliament intended.
SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC)	Powers • Upper Tribunal decisions	Adjournment for aftercare evidence	At a s3 tribunal the evidence was that the patient had been well enough for discharge for some time, if a suitable robust package of care and support could be provided, but that for bureaucratic and other reasons it had been difficult to discharge him from the PICU ward. That tribunal panel adjourned for further aftercare information but seven weeks later, in similar circumstances, despite some progress, the next panel refused to adjourn again. The patient appealed that refusal, and all three grounds of appeal were successful. (1) This was not a case where aftercare information would have been irrelevant to the decision (AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 distinguished); rather it was a case in which the tribunal should have adjourned owing to "uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends" (R (Ashworth) v MHRT; R (H) v Ashworth [2002] EWCA Civ 923 applied). (2) The common law requires that a party should not be disadvantaged by an absence of evidence which is under the control of another party (especially where the party who controls the evidence is a State agency with duties to provide the evidence in relation to an individual whom it is detaining) and his Article 5 rights can only be protected effectively if the tribunal has the information it needs; the decision not to adjourn was procedurally unfair because it deprived SS of the opportunity to mount an effective challenge to his detention. (3) The tribunal relied on the possibility of a further application in the near future, but the periodic right to apply might not be exercised and could not in any event remedy procedural unfairness in the existing proceedings; its decision amounted to an abdication of its role, and rather than avoiding delay it was kicking the can down the road for the next tribunal to deal with. In his concluding remarks the UT judge stated: "The only reasons not to adjourn for aftercare information would be either because it is not relevant because the patient had not reached the stage at which discharge was a realistic prospect, or because there was no realistic prospect of such aftercare information being produced." The case was remitted to the FTT with directions for further evidence.
St George's University Hospitals NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam)	Miscellaneous cases	Declaration of death	Following an out-of-hours COP decision which permitted brain stem testing, the Trust issued proceedings in the Family Division (opposed by family members) for a declaration under the inherent jurisdiction that the patient had died, along with consequential declarations that it was lawful for doctors to withdraw ventilatory support.
Sunderland City Council v FP [2020] EWCOP 75	Other capacity cases	Capacity and fact finding	(1) The judge decided to assess capacity before moving on to fact finding: "I feel uncomfortable in assessing credibility and making findings and possibly making significant criticism without determining whether or not FP lacks capacity. If the evidence provides that FP has capacity across the board, the role of the Court of the Protection is rendered nugatory. If the Court is satisfied, on the evidence, that FP lacks capacity, in whatever regard, it is then the responsibility of the Court to investigate and reach conclusions about the best interests of FP in respect of matters on which she is found not to have capacity to decide. Therefore, I will consider the issue of capacity before proceeding, if justified, to make findings in this matter." (2) FP lacked capacity in relation to her care and support needs, residence and contact. (3) The LPA, under which FP's mother was the donee, was revoked. (4) Decisions about contact were for the Responsible Clinician (FP was detained under s3) but the court declared in the interim that FP should not live with her mother.
Sunderland City Council v Macpherson [2023] EWCOP 3	Contempt of court cases	Contempt	"Sunderland City Council has applied for an order committing the Defendant Lioubov Macpherson to prison for contempt of court by breaching injunctive orders made by the court in Court of Protection proceedings on 30 June 2022. ...[T]he Defendant’s daughter, FP is the protected party in Court of Protection proceedings. She is a very vulnerable woman in her early 30’s who was diagnosed with cerebral palsy as a child, suffered meningitis in adulthood, and who now suffers from paranoid schizophrenia. She lacks capacity to make decisions for herself about where she should live, her care, and her contact with others. This judgment not only sets out the breaches of orders found to constitute contempt of court and the court’s sentencing of the Defendant, but also a determination that whilst reporting of the name of the Defendant will risk revealing the identity of the protected person, FP, there should be no prohibition on the reporting of the Defendant’s identity."
The Local Authority v A [2019] EWCOP 68	Medical treatment cases • Other LPA cases	Capacity	(1) A lacked capacity in relation to residence, care, contact, and medical treatment, and to execute an LPA. (2) The LPA was invalid for want of capacity. (3) The living will was similarly invalid as an ADRT, and invalid as an expression of her wishes and feelings as there was good reason to doubt its accuracy. (4) It was in A's best interests to: (a) receive treatment for epilepsy, primary ovarian failure and vitamin D deficiency; and (b) have care and support, and contact with her mother and grandparents, in accordance with the relevant plan and declarations.
TN v An NHS ICB [2022] EWCOP 53	Coronavirus cases	Coronavirus vaccination	TN appealed, to a High Court judge, a circuit judge's decision that it was in her 22-year-old son RN's best interests to be administered a coronavirus vaccination. (1) TN argued that parental rights continue at any age (including beyond 16 or 18) when the child lacks capacity to understand, and that this can only be overridden in the extreme and limited circumstances of failing to care for the child. The High Court judge described this as a paternalistic approach consigned to history and a subversion of adult autonomy: it was for the court to decide, not the mother. (2) TN was concerned about the effect of a vaccination on RN's heart, and had obtained a blood antibody test showing that RN likely had already been infected with coronavirus. The High Court judge decided that there was a greater risk from natural infection than from a vaccination, and that the circuit judge's decision on best interests was correct.
Trafford Borough Council v B [2022] EWHC 1406 (Fam)	Deprivation of liberty - children	DOL of child	"This matter concerns the application by the local authority for an order under the inherent jurisdiction for declarations authorising the deprivation of liberty ('DoL order') of a young person, X age 14, in circumstances where there was no suitable residential therapeutic placement to meet her needs."
Traylor v Kent and Medway NHS Social Care Partnership Trust [2022] EWHC 260 (QB)	Miscellaneous cases	Ex turpi causa	The patient stabbed his daughter several times during a psychotic episode. He sought damages from the Trust for negligence, and she for breaches of Articles 2 and 3 ECHR. (1) The court held that the patient had not established a breach of duty, and commented obiter on other aspects: (a) defences based on causation or voluntary acceptance of risk (as the patient had stopped his medication and lied about it) could not succeed because the relevant duty of care is a duty to prevent harm that would arise from the claimant's own deliberate act; (b) the illegality defence would not be available (the patient had been found not guilty by reason of insanity); (c) if the claim had otherwise succeeded it would be just and equitable to reduce the damages recoverable by three quarters for contributory fault. (2) The Osman duty arose in respect of the daughter but the Trust had taken reasonable steps to avert the risk.
Williams v Betsi Cadwaladr University Local Health Board [2022] EWHC 455 (QB)	Miscellaneous cases	Negligence claim	"The essence of the Claimant's claim can be summarised as follows. At about 9.30am on the morning of the 9th February 2014 Mrs Williams had telephoned the Defendant's Heddfan Psychiatric Unit based at Maelor Hospital in Wrexham. She reported a relapse in her husband's condition. She was put through by the Hospital's general switchboard to a senior nurse within the unit, Nurse Freestone. The 9th February 2014 was a Sunday and out of hours provision only was available. Nurse Freestone did not take any steps for immediate action or assessment. She did advise that if Mrs Williams was concerned her husband could come to the A and E Department at the same Hospital for psychiatric assessment and/or admission or that alternatively she could contact the out of hours GP. In addition she reminded Mrs Williams that if there was an imminent danger to the safety of Mr Williams or others she should phone the emergency services. Approximately 7 hours later Mr Williams took his own life. The Claimant says that Nurse Freestone dealt with that telephone call in breach of her duty of care to Mr Williams and/or that the Defendant's out of hours provision fell below the reasonable standard. Later that day the Claimant found her husband where he had hanged himself close to the family home. She claims that as such she qualifies as a secondary psychiatric victim of the alleged negligence."
X v A [2021] EWFC 118	Sex and marriage cases	Capacity to marry	"The issues the Court has to determine at this hearing are: (i) whether on the date of the parties' marriage, on 2 April 2019, the Respondent did not within the meaning of section 12(1)(c) or (d) of the Matrimonial Causes Act 1973 (a) validly consent to the marriage in consequence of "unsoundness of mind" or duress; or (b) "though capable of giving a valid consent, was suffering, (whether continuously or intermittently) at the time of the marriage from a mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage such that the marriage was voidable." (ii) whether on 21 May 2019 when the Respondent transferred a half-share in the former matrimonial home to the Applicant, she had the capacity to authorise that transfer (iii) whether under section 33 of the Family Law Act 1996 the Court has the power to or should make an order that the Applicant is entitled to occupy the former matrimonial home bearing in mind, inter alia, the Respondent's present lack of capacity, the latter having been determined by the Court in the preliminary issue judgment dated 18 March 2021 to which I have already referred. (iv) Whether the court should make an order on the Respondent's application for an Occupation Order excluding the Applicant."

Legislation

Legislation	Type	Subject	Summary
Care and Support (Disputes between Local Authorities) Regulations 2014	UK Statutory Instrument	Miscellaneous legislation	"These Regulations set out the procedures to be followed when disputes arise between local authorities regarding a person’s ordinary residence under Part 1 of the Care Act 2014, or about the application of sections 37 (continuity of care and support – notification and assessment) or 48 (provider failure – temporary duty on local authority) of that Act. By virtue of section 117(4)(a) of the Mental Health Act 1983, the procedures applying to disputes regarding a person’s ordinary residence under Part 1 of the Care Act 2014 also apply to disputes between local authorities about a person’s ordinary residence for the purposes of section 117 of the Mental Health Act."
Criminal Procedure Rules 2020	UK Statutory Instrument	Miscellaneous legislation	Rules about criminal court procedure.
Health and Safety at Work etc. Act 1974	UK Public General Act	Miscellaneous legislation	"An Act to make further provision for securing the health, safety and welfare of persons at work, for protecting others against risks to health or safety in connection with the activities of persons at work, for controlling the keeping and use and preventing the unlawful acquisition, possession and use of dangerous substances, and for controlling certain emissions into the atmosphere; to make further provision with respect to the employment medical advisory service; to amend the law relating to building regulations, and the Building (Scotland) Act 1959; and for connected purposes."
National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022	UK Statutory Instrument	Miscellaneous legislation	"These Regulations prescribe additional persons for whom an Integrated Care Board has responsibility to arrange for the provision of certain services under the National Health Service Act 2006. These Regulations also impose the duty to provide mental health after-care services on an ICB other than the ICB subject to the duty imposed by s117(2) of the Mental Health Act 1983 and also set out the circumstances in which that duty is imposed on NHS England."
Powers of Attorney Act 2023	UK Public General Act	Other useful legislation	"An Act to make provision about lasting powers of attorney; to make provision about proof of instruments creating powers of attorney; and for connected purposes." Section 2 (allowing chartered legal executives to certify copies of powers of attorney) comes into force on 18/11/23. The schedule (Part 1 being about LPA registration, and Part 2 containing minor and consequential amendments to the MCA 2005) will come into force on a future date yet to be decided.
Powers of Attorney Bill 2022	Other	Bill	"A Bill to make provision about lasting powers of attorney; to make provision about proof of instruments creating powers of attorney; and for connected purposes." See Powers of Attorney Act 2023.
Powers of Attorney Bill 2022	Other	Bill	"A Bill to make provision about lasting powers of attorney; to make provision about proof of instruments creating powers of attorney; and for connected purposes." See Powers of Attorney Act 2023.

Resources

Resource	Type	Sentence	Abstract
39 Essex Chambers, 'Mental Capacity Case Reports' (issue 1, April 2023)	Case reports	Mental capacity case reports	This series of law reports will cover cases which contain an authorative interpretation of the MCA or address a point of practice or procedure of wider significance. The cases in this issue are: (1) North Bristol NHS Trust v R [2023] EWCOP 5, [2023] 39ECMCR 1; (2) A Local Authority v PG & Ors [2023] EWCOP 9B, [2023] 39ECMCR 2.
39 Essex Chambers, 'Mental Capacity Case Reports' (issue 2, July 2023)	Case reports	Mental capacity case reports	The cases in this issue are: (1) EG v AP [2023] EWCOP 15B, [2023] 39ECMCR 3; (2) Re Public Guardian’s Severance Applications [2023] EWCOP 24B, [2023] 39ECMCR 4; (3) Baker v Hewston [2023] EWHC 1145 (Ch), [2023] 39ECMCR 5.
39 Essex Chambers, 'Mental Capacity Case Reports' (issue 3, October 2023)	Case reports	Mental capacity case reports	The cases in this issue are: (1) Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] 9ECMCR 6; (2) Re RK (Capacity; Contact; Inherent Jurisdiction) [2023] 39ECMCR 7; (3) Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] 39ECMCR 8.
39 Essex Chambers, 'Mental Capacity Report' (issue 128, December 2022)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Collection of sperm where a person is on the edge of brain death; public protection and deprivations of liberty; and many newly-reported ‘part 2’ judgments tell us what happened next. (2) In the Property and Affairs Report: Lasting Powers of Attorney bill is published; and deprivations of assets. (3) In the Practice and Procedure Report: Cross-border placements; and amendments to the Court of Protection Rules. (4) In the Wider Context Report: ‘A gloriously ordinary life’; Crowter in the Court of Appeal; consent to adoption and capacity; prolonged disorders of consciousness; and a Strasbourg update. (5) In the Scotland Report: A new checklist for cross-border placements; a decision to close day centres is reduced; and model laws for advance choices."
39 Essex Chambers, 'Mental Capacity Report' (issue 129, February 2023)	Newsletter	Mental capacity law newsletter	Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: is depriving a person of their phone depriving them of their liberty, a reminder that the court is the ultimate arbiter of best interests and an Ombudsman comes belatedly to the rescue; (2) In the Property and Affairs Report: a reminder of the new process for applying for deputyship and how the Powers of Attorney Bill would amend the MCA 2005; (3) In the Practice and Procedure Report: the Vice-President intervenes on s.49 reports and new contempt rules; (4) In the Wider Context Report: Parliamentary consideration of the draft Mental Health Bill, a toolkit for supporting decision-making, and confidentiality and common sense; (5) In the Scotland Report: the Supreme Court dismisses an appeal against assessment for services and an opposed application for guardianship.
39 Essex Chambers, 'Mental Capacity Report' (issue 130, March 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: fluctuating capacity and emotional dysregulation; (2) In the Property and Affairs Report: the Court of Protection divorce, refreshed deputy standards and relevant legislative developments; (3) In the Practice and Procedure Report: ‘closed hearings’ guidance and Forced Marriage Protection Orders; (4) In the Wider Context Report: covert medication guidance, an updated litigation capacity certificate, the malign influence of Andrew Wakefield, and changes afoot in Ireland; (5) In the Scotland Report: a Scottish perspective on the Powers of Attorney Bill and implementation of the Scott Report."
39 Essex Chambers, 'Mental Capacity Report' (issue 131, May 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS on the shelf; fluctuating capacity and the interface under the judicial spotlight; (2) In the Property and Affairs Report: the new surety bonds structure and an update on the Powers of Attorney Bill; (3) In the Practice and Procedure Report: reporting restrictions and the Court of Appeal, and costs in serious medical treatment cases; (4) In the Wider Context Report: DNACPR notices and disability, litigation capacity, the new SCIE MCA database, and Ireland commences the 2015 Act; (5) In the Scotland Report: problems of powers of attorney in different settings and a very difficult Article 5 choice."
39 Essex Chambers, 'Mental Capacity Report' (issue 132, June 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the JCHR has questions for the Government about the delay to the LPS; anorexia and capacity, and Caesarean sections and P-centricity; (2) In the Property and Affairs Report: Hegel and testamentary capacity, and cross-border management of personal injury settlements; (3) In the Practice and Procedure Report: a freeze on freezing injunctions, and ss.48 and 49 MCA under the spotlight; (4) In the Wider Context Report: Mental Health Act reform potential and pitfalls, an update to the Mental Health and Justice Capacity Guide, and food refusal in prison; (5) In the Scotland Report: Issues with powers of attorney – an unprecedented tangle, the Powers of Attorney Bill and Implementation of the Scott Report."
39 Essex Chambers, 'Mental Capacity Report' (issue 133, July 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an Anglo-Welsh LPS update and cases covering contingency planning, executive capacity, decision-specificity and restraining the detained patient; (2) In the Property and Affairs Report: Hayden J takes on common LPA problems, an MOJ toolkit and a rather startling assertion about the position of professional solicitor deputies; (3) In the Practice and Procedure Report: habitual residence under the spotlight, contempt and the Court of Appeal and the most recent Court of Protection statistics; (4) In the Wider Context Report: the LGSCO ombudsman and deprivation of liberty, Article 2 and DoLs, visiting in care homes, and a report from our new Irish correspondents; (5) In the Scotland Report: AWI masterclasses and the Scottish Government respondents to the Scott Report."
39 Essex Chambers, 'Mental Capacity Report' (issue 134, September 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the MHA/MCA interface revisited; belief, diagnosis and capacity, and questioning an independent spirit; (2) In the Property and Affairs Report: the SRA looks at law firms providing LPA / deputyship services, OPG guidance on completing LPA forms and a shedinar on the MCA and money; (3) In the Practice and Procedure Report: transparency in committal hearings and on death, and why belief is not the same as proof when it comes to capacity; (4) In the Wider Context Report: the wider MHA context within which many MCA matters arise, the limits of autonomy in medical settings; litigation capacity under the spotlight in both civil and family courts; and the second of our reports from Ireland as the new Act beds in; (5) In the Scotland Report: Articles 3 and 2 ECHR in play in the capacity context."
39 Essex Chambers, 'Mental Capacity Report' (issue 135A, October 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Brain stem death before the courts and conveyancing; (2) In the Property and Affairs Report: the Powers of Attorney Act 2023 gets Royal Assent, and how it will change the Mental Capacity Act 2005; (3) In the Practice and Procedure Report: revised guidance for Accredited Legal Representatives and anonymisation of clinicians in cases involving the MCA 2005; (4) In the Wider Context Report: a revised online ADRT service and a revised clinical guide for staff working with autistic people and those with a learning disability, and our Irish correspondents highlight two specific aspects of the Assisted Decision-Making (Capacity) Act 2015; (5) In the Scotland Report: attorneys as executors."
39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: reasonably adjusting to disability in the context of dialysis and identifying will and preferences across a spectrum of difficult medical cases; (2) In the Property and Affairs Report: the Law Commission’s further consultation on wills; (3) In the Practice and Procedure Report: two sets of ‘Ps’ and the costs of welfare appeals; (4) In the Wider Context Report: the CQC’s State of Care report, deprivation of liberty and those under 18, litigation capacity and access to court, and the inherent jurisdiction in Ireland; (5) In the Scotland Report: bureaucracy vs justice and a tribute to Adrian upon his retirement from one of his posts."
39 Essex Chambers, 'Mental Capacity Report' (issue 136, December 2023)	Newsletter	Mental capacity law newsletter	"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the least worst option as regards compulsory feeding, putting values properly into the mix and the need for a decision actually to be in contemplation before capacity is considered; (2) In the Property and Affairs Report: relief from forfeiture in a very sad case; (3) In the Practice and Procedure Report: counting the costs of delay, guidance on termination cases, and a consultation on increasing Court of Protection feeds; (4) In the Wider Context Report: forgetting to think and paying the price, the cost of getting it wrong as litigation friend, Wales potentially striking out alone on mental health reform, and a review of Arianna’s book on social care charging; (5) In the Scotland Report: reduction of a Will: incapacity and various vitiating factors, and an update on law reform progress."
39 Essex Chambers, 'When P is an offender' (webinar recording, 21/2/23)	Video	Capacity and offending	Following DY v A City Council [2022] EWCOP 51, this two-hour webinar deals with how the law approaches offenders and those at risk of offending who lack the relevant mental capacity. The recording is available on Youtube.
Alex Ruck Keene (ed), Assessment of Mental Capacity (5th edn, Law Society 2022)	Book	Mental capacity book	I don't have this edition but earlier editions were good.
Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/11/22)	Web page	Book update	Newer version: Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/2/23).
Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/2/23)	Web page	Book update	This web page contains quarterly updates to Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (4th edn, LAG 2022).
Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (4th edn, LAG 2022)	Book	Court of Protection book	Quarterly updates are available online.
Alice Roe, 'Children subject to deprivation of liberty orders' (Nuffield Family Justice Observatory, 15/9/23)	Report	Children and DOL	"Children subject to deprivation of liberty (DoL) orders are among the most vulnerable children in England and Wales and living with severe restrictions on their day-to-day freedoms. Over the last 12 months we have been working with the national DoL court to understand the number of children and their circumstances. This briefing paper summarises our key findings to date and outlines five principles of care."
Amy Holmes, 'Powers of Attorney Bill receives Royal Assent' (Office of the Public Guardian, 25/9/23)	Blog post	Powers of Attorney Act	This blog post describes the Powers of Attorney Act 2023 using corporate speak.
Andy Dolan, 'Priory hospital chain is charged by the healthcare watchdog over death of an NHS patient, 23, who absconded while in its care after being left unattended in courtyard' (Mail Online, 6/11/23)	News article	CQC prosecution	The CQC is prosecuting Priory Healthcare Limited under regulation 22(2)(a) and (b) Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 for failing to comply with regulation 12 (safe care and treatment) resulting in avoidable harm to the patient, Matthew Caseby, or exposing him to a significant risk of such harm occurring. Last year an inquest found that neglect contributed to his death, noting that he had been left unattended in a courtyard and so was able to climb a low (7'6") fence.
Anselm Eldergill, 'LPS weaknesses' (LinkedIn, 13/12/23)	Blog post	LPS criticism	The proposed LPS scheme is described as having the following fundamental weaknesses (paraphrased): (1) it "bakes in" the illegality of DOLS and "seems designed to permit citizens to be deprived of their liberty for months on end without any legal authorisation in place"; (2) it permits the COP to detain people who are detainable under the MHA; (3) the mental disorder condition is not ECHR compliant; (4) arguably, DOLS also does not incorporate the second Winterwerp condition; (5) it is no simpler or less bureaucratic, in reality the same six requirements remain, and the procedures are labyrinthine; (6) the legal liability provisions leave practitioners dangerously exposed. (The second Winterwerp condition is that the mental disorder must be of a kind or degree warranting compulsory confinement.)
Anselm Eldergill, 'LPS weaknesses' (LinkedIn, 13/12/23)	Blog post	LPS criticism	The proposed LPS scheme is described as having the following fundamental weaknesses (paraphrased): (1) it "bakes in" the illegality of DOLS and "seems designed to permit citizens to be deprived of their liberty for months on end without any legal authorisation in place"; (2) it permits the COP to detain people who are detainable under the MHA; (3) the mental disorder condition is not ECHR compliant; (4) arguably, DOLS also does not incorporate the second Winterwerp condition; (5) it is no simpler or less bureaucratic, in reality the same six requirements remain, and the procedures are labyrinthine; (6) the legal liability provisions leave practitioners dangerously exposed. (The second Winterwerp condition is that the mental disorder must be of a kind or degree warranting compulsory confinement.)
Anselm Eldergill, 'Mental Health Legislative Reform' (29/5/23)	Document	Criticism of LPS and MH Bill	(1) This document criticises the proposed LPS scheme, including that it is "not notably simpler or more practical" than the existing scheme, it "tries to legitimise [tens of thousands of unlawful detentions] by providing that such detentions are lawful without a proper legal authorisation", and contains drafting deficiencies. (2) It also criticises the Mental Health Bill, with 16 numbered points, including that: the Bill is too limited and does not provide the needed root-and-branch reform; "[t]he Wessely Reviewers somehow completely failed to see the elephant standing in front of them", this being that there are now far more detentions under the MCA than MHA; the Bill does not properly address the review's main aims, and fails to deal with or deals ineffectively with tribunal discretionary discharges, seclusion, restraint, hospital managers, spouses and partners, the complicated AWOL provisions, treatment in prison, short-term powers, guardianship, and MHA-MCA interface or fusion; it does not reintroduce an MHA Commission (the CQC "now has no legally qualified members and is totally unqualified to monitor and enforce legal standards"); and does not address the shortcomings in the Court of Protection or lessons learnt from MCA implementation. (3) The conclusion is: "The problems with the legislation and the Bill are, in my view, mainly due to over-reliance on academic input and insufficient experienced practitioner input. The same problem beset the long-drawn-out Mental Health Bill process between 1998 and 2007. That began with a similarly abortive report by Professor Genevra Richardson and her committee of academics and policy officers. Legislation should have a practical focus, which can be difficult for academics and policy advisors who have not spent much time practising in psychiatric hospitals. What is now needed is a small Commission of experienced MHA practitioners to review the work that has been done and to draft themselves a completely new Bill. Extensive consultation has already taken place which will save a great deal of time. Since LPS has been postponed to the next Parliament, it may make sense to put a new Mental Health Act back until then. The revised Bill/Mental Health Act can either replace LPS with more workable arrangements and a fused scheme or make the necessary amendments to LPS within a Mental Health Bill."
Care Quality Commission, 'How we support the rights and interests of people on community treatment orders (CTOs)' (August 2012)	CQC guidance	CTOs	"This booklet is for anyone on a community treatment order under the Mental Health Act 1983."
Care Quality Commission, 'Mental Health Act community treatments orders (CTO) - focused visits report' (1/11/22)	Report	CQC report	"Introduced as part of the Mental Health Act (MHA) in 2007, community treatment orders (CTOs) enable people detained under the MHA to be discharged into the community providing they meet certain conditions. This may include, for example, living in a certain place, attending appointments with mental health professionals, or not taking drugs and drinking alcohol. If they don’t comply, they may be recalled to hospital under the MHA. ... Between February 2019 and November 2021, Mental Health Act Reviewers from the London region explored how CTOs were being used in 9 boroughs across London." They spoke to patients, carers and relatives, care co-ordinators, RCs, AMHPs, managers of community services, MHA administrators, and IMHAs (but did not speak to legal representatives).
Colin Harnett, 'Changing discharge conditions - residence' (Dear Colleague letter from Head of Mental Health Casework Section, 17/12/15)	Guidance	Residence conditions	In response to a case in which the MOJ had not closely managed a patient's movements (it had not registered a change of address), the following policy will apply from 4/1/16: (1) All conditionally-discharged patients will have a condition giving an actual residence address, and RCs will not have a discretion to move patients without providing 14 days' notice; (2) If the tribunal does not specify an address the MOJ will add one; (3) Existing conditions will be re-examined on receipt of conditionally-discharged patient reports and conditions may be amended (to add an address or remove the RC's discretion to move the patient); (4) Discharges by the MOJ will also accord with this policy; (5) Dialogue with the MOJ before the 14-day point is encouraged.
Committee on the Rights of Persons with Disabilities, 'Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland' (3/10/17)	Report	CRPD	Various recommendations.
COP User Group, 'Meeting (General): Minutes and action points' (19/4/23)	Minutes	COPUG minutes	These are the minutes and action points arising from the meeting on 19/4/23, which were circulated on 11/10/23.
COP User Group, 'Minutes and action points' (18/1/23)	Minutes	COPUG minutes	These are the minutes and action points arising from the meeting on 18/1/23, which were circulated on 2/3/23.
COP User Group, 'Minutes' (12/10/16)	Minutes	COPUG minutes	Minutes of 12/10/16 meeting.
COP User Group, 'Minutes' (26/4/17)	Minutes	COPUG minutes	Minutes of 26/4/17 meeting.
Court of Protection, 'Letter about s49 reports' (Mr Justice Hayden, 16/12/22)	Court guidance	Section 49 reports	This letter from the Vice President discusses the ambit and scope of section 49 reports and when an independent expert report would be more suitable, and recirculates PD 14E with some paragraphs highlighted.
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23)	Tribunal guidance	Tribunal victims guidance	This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review.
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23)	Tribunal guidance	Tribunal victims guidance	This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review.
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23)	Tribunal guidance	Tribunal victims guidance	This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review.
Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23)	Tribunal guidance	Tribunal victims guidance	This detailed guidance has the following headings: (1) Background; (2) Open justice (3) Victims; (4) The role of victim liaison officers; (5) Preliminary matters; (6) Victims who wish to know the date of the next hearing; (7) Victims who wish to provide documents, written information or submissions to the tribunal; (8) Victims representations relating to possible discharge conditions; (9) Application from a victim to attend the hearing; (10) Disclosure of the victim’s evidence to the patient; (11) Sharing the tribunal’s conditions of discharge with the victim; (12) Sharing the tribunal’s decision or reasons for the decision with the victim; (13) Further review.
Courts and Tribunals Judiciary, 'The Administrative Court Judicial Review Guide 2023' (October 2023)	Court guidance	JR guide	"This is the eighth edition of the Judicial Review Guide, which has become a valuable resource for all who are involved in proceedings before the Administrative Court. It covers all the stages of a claim for judicial review. Good practice is identified and pitfalls foreshadowed. It is required reading for all those who conduct judicial review cases (whether or not they are lawyers)."
Department of Health, 'Report of the Expert Committee: Review of the Mental Health Act 1983' (November 1999)	Report	MHA reform	This is the report of the committee chaired by Genevra Richardson.
DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 5/10/23)	Statutory guidance	Ordinary residence and s117	Ordinary residence disputes which had been stayed pending R (Worcestershire County Council) v SSHSC [2023] UKSC 31 will now be progressed, with the DHSC working through previously stayed cases in the order in which they had been stayed.
DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 5/10/23)	Statutory guidance	Ordinary residence and s117	Ordinary residence disputes which had been stayed pending R (Worcestershire County Council) v SSHSC [2023] UKSC 31 will now be progressed, with the DHSC working through previously stayed cases in the order in which they had been stayed.
Emmett Maginn, 'Who pays? Significant changes to determining which CCG is responsible for funding s117 MHA 1983 aftercare after 1 April 2016' (Browne Jacobson, 11/5/16)	Blog post	Aftercare guidance	"The much criticised Who pays? Determining responsibility for payments to providers (2013) has been significantly revised with effect from 1 April 2016, as have the regulations underpinning the Guidance. Although further changes are in the pipeline, the changes which came into effect this April relate solely to how responsibility for a patient’s s117 Mental Health Act 1983 aftercare should be determined."
Form CNL1: Case Notification Letter (1) and Directions (2015)	Tribunal form	CNL1	The tribunal secretariat uses this form to notify parties that an application or reference has been received. The parties are directed to submit form HQ1 within two weeks, or sometimes two working days longer (e.g. CNL1 Thursday 11/5/23, HQ1 by 4.30pm Thursday 25/5/23). The responsible authority is directed to submit reports within three weeks (e.g. 4.30pm Thursday 1/6/23). The listing window for unrestricted cases (and restricted recall cases) lasts four weeks and begins four weeks after the CNL1 date (e.g. Thursday 8/6/23). The listing window for other restricted cases lasts three weeks and begins 11 weeks after the CNL1 date.
Form T113 (CMR1): Case management and pre-hearing (v05.23)	Tribunal form	T113 (CMR1)	The main change from the November 2022 version is the addition of the words "Do the other parties in the case agree to your request?" and "The direction should be sent to:".
Form T113: Case management request (November 2022)	Tribunal form	T113 (CMR1)	Use for interlocutory matters: (1) Postponements/date brought forward/time change; (2) HQ1 extension; (3) Listing window extension; (4) Prohibition of Disclosure of information: (5) Pre-hearing examination; (6) Permission to withdraw an application; (7) Reinstatement of application; (8) Extension of reports submission/reports directions; (9) Rule 11 request; (10) Telephone conference request; (11) Observer request; (12) Other. This is a simplified form, compared with the September 2020 version, with more tick boxes but only one other box which is for providing reasons. Newer version: Form T113 (CMR1): Case management and pre-hearing (v05.23).
Form T144: Victim's representations to the Tribunal (September 2023)	Tribunal form	T144	This form allows the victim to provide representations on: (1) the tribunal's decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim's attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests.
Form T144: Victim's representations to the Tribunal (September 2023)	Tribunal form	T144	This form allows the victim to provide representations on: (1) the tribunal's decision (whether the patient should, in the event of their discharge from detention, be subject to any conditions; if so, what particular conditions should be imposed; and, if the patient is already subject to a conditional discharge, whether the same or different conditions are now required); (2) non-disclosure of representations to the patient or his lawyer; (3) victim's attendance at the hearing. The main differences between this and the 2018 version is that extra guidance is now provided on how unlikely the tribunal will agree to non-disclosure and attendance requests.
HMCTS, 'Mental Health Tribunal contact details for professionals' (5/11/19)	Web page	Tribunal contact details	A fuller list is available at: Mental Health Tribunal, 'Email addresses for MHT' (20/8/21).
HMPPS, 'MAPPA Guidance' (dated March 2023, updated 13/9/23)	Guidance	MAPPA guidance	This guidance still states "Updated March 2023" on its front page, but the document was last updated on 13/9/23. There are minor changes to chapter 24: some paragraph numbering is corrected and a new paragraph is added. Newer version: HMPPS, 'MAPPA Guidance' (August 2024).
HMPPS, 'MAPPA Guidance' (March 2023)	Guidance	MAPPA guidance	"This Guidance on MAPPA has been issued by the Secretary of State for Justice under the CJA 2003 in order to help the relevant agencies in dealing with MAPPA offenders. These agencies are required to have regard to the Guidance (so they need to demonstrate and record their reasons if they depart from it)." This is the latest version on Gov.uk but chapter 24 was updated in September 2023: HMPPS, 'MAPPA Guidance' (dated March 2023, updated 13/9/23).
Jag Bahra, 'High Court victory for victims' rights and open justice' (Saunders Law, 13/1/23)	Press release	MHT and victims	This press release notes that: (1) prior to the decision in R (Maher) v First-tier Tribunal (Mental Health) [2023] EWHC 34 (Admin), the Mental Health Tribunal was "perhaps the only Court left that operates entirely in secrecy, such that its decisions are beyond any public scrutiny"; (2) the tribunal has indicated that it intends to update its Practice Guidance to make it clear that victims are in fact entitled to request reasons when a patient is discharged; and (3) the Government has also indicated in a consultation that it supports proposals to allow victims to provide a Victim Personal Statement when a patient is being considered for discharge, which would bring the Tribunal's practice closer into line with the Parole Board.
Jonathan Sumption, 'Judgment call: the case for leaving the ECHR' (Spectator, 30/9/23)	Journal article	ECHR	Lord Sumption takes issue not with the text of the European Convention of Human Rights, which was agreed upon by the member states, but with the European Court of Human Rights - in particular, its "living instrument" doctrine through which he says it has "emancipated itself from the text and allowed itself to wander freely over the whole realm of social policy" and made law in a manner which lacks democratic legitimacy. He cites examples relating to territorial jurisdiction, binding interim orders, Article 8, and qualified convention rights. He concludes that the convention should be replaced with a domestic code of basic rights which would look very like it, and that our own courts, with their long tradition of defending fundamental rights and holding governments to account, can be trusted to enforce human rights. (Avoid paying by using the Archive link.)
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022)	Journal article	Case law update	This article considers mental health case law from the past year relating to remote MHA assessments, after-care responsibility, discharge from long-term leave, deprivation of liberty during conditional discharge, removing all conditions of discharge, change in status before a tribunal hearing, and other matters.
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022)	Journal article	Case law update	This article considers mental health case law from the past year relating to remote MHA assessments, after-care responsibility, discharge from long-term leave, deprivation of liberty during conditional discharge, removing all conditions of discharge, change in status before a tribunal hearing, and other matters.
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2023)	Journal article	Case law update	This article considers mental health case law from the past year relating to open justice and provision of reasons to victims, change of status during tribunal proceedings, hearings in the absence of the patient, adjournment and recommendations, criminal appeals, and other matters.
Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2023)	Journal article	Case law update	This article considers mental health case law from the past year relating to open justice and provision of reasons to victims, change of status during tribunal proceedings, hearings in the absence of the patient, adjournment and recommendations, criminal appeals, and other matters.
Jonathan Wilson, Mental Health Law Online: Annual Review 2022 (published 2023)	Book	Annual Review	This booklet contains all news items, arranged thematically, which were added to the website during 2022. Price: paperback £5.99, Kindle £2.99.
Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10)	Report	COP Report	Extract from Foreword: "This report covers a period of twenty-seven months, from 1 October 2007, when the Mental Capacity Act 2005 came into force, until 31 December 2009, and I cannot pretend that it has been plain sailing." The report summarises several reported decisions.
Julian Hendy, 'Open Justice consultation - response from the Hundred Families charity' (22/8/23)	Consultation response	Open justice consultation response	"Our submission covers our understanding of open justice, some serious problems in the application of open justice where the offender is mentally disordered – particularly in diminished responsibility cases and at First Tier Tribunals (mental health). We say that despite clear guidance on the need for open justice in such cases there is a lack of sufficient openness or accountability in the Criminal Justice System for our families, or the wider public. We say without such transparency our families, and the wider public, cannot be assured the current system is impartial, competent, or just. There is urgent need for reform."
LAA, 'Civil news: mental health work change for tribunal appointments' (21/3/23)	Legal Aid resource	Rule 11(7)(a) remuneration	Firms will be able to claim a level 1 fee of £129 if a client refuses to engage following a rule 11(7)(a) appointment, if the appointment is made on or after 21/3/23 and the conditions in para 9.105(a) of the contract are met.
Landmark Chambers, 'Delayed Transfer of Care leads to £100k legal bill for an ICB' (24/11/22)	Blog post	Delayed transfer of care	(1) The patient sought judicial review of NHS bodies, arguing that he had been stuck on a (non-psychiatric) ward for over eight months because they had failed to agree on a discharge plan (constantly seeking further assessments, disagreeing on funding, and lack of engagement from the out-of-area section 117 providers). (2) The main issue settled when the parties agreed process leading to a discharge plan, with the divisional Court ordering the ICB to pay the patient's legal costs estimated at more than £100,000. (3) The Court of Appeal granted permission for the patient's argument that, in the case of delayed discharge patient in hospital, the regulation 21 duty to assess for NHS Continuing Healthcare (CHC) is triggered and therefore following the "Discharge to Assess" model is unlawful; however, the issue did not have to be decided in this case because the ICB backed down.
Law Society, 'Guide: Financial abuse' (13/6/23)	Practice Note	Financial abuse	"This guidance is aimed at all solicitors who advise clients who are or may be at risk of financial abuse, in particular those conducting private client work involving estate and financial planning, property transactions, execution of wills or lasting powers of attorney (LPAs). It may also be useful to other professionals working with adults at risk of financial abuse, and to carers, families and friends."
Law Society, 'Guide: Meeting the needs of vulnerable clients' (29/11/22)	Guide	Vulnerable clients	"This guide will help you identify and meet the needs of clients who may have difficulty using legal services, or who may be at risk of acting against their own best interests."
Law Society, 'Practice note: Accredited legal representatives in the Court of Protection' (4/9/23)	Practice Note	ALRs in COP	This practice note covers: "communicating with and taking instructions from your client; representing the subject of the proceedings (P) and ensuring P’s effective participation; your duties of confidentiality and disclosure; good practice in the Court of Protection; funding of P’s legal costs; applications under section 21A Mental Capacity Act 2005; other legal issues arising in the course of the case".
Law Society, 'Practice note: Accredited legal representatives in the Court of Protection' (5/12/19)	Practice Note	ALRs in COP	"This practice note includes detailed advice on: the role of an accredited legal representative; communicating with and taking instructions from your client; representing P and ensuring P’s effective participation; your duties of confidentiality and disclosure; good practice in the Court of Protection; funding of P’s legal costs; applications under s21A Mental Capacity Act 2005; other issues e.g. breach of the HRA 1998." Superseded by: Law Society, 'Practice note: Accredited legal representatives in the Court of Protection' (4/9/23).
Law Society, 'Working with clients who may lack mental capacity' (14/6/23)	Guide	Clients and capacity	"This guidance is aimed at solicitors, and will help you assess whether clients have mental capacity to instruct you, and whether you can accept and act on the client’s instructions. It explains the principles for assessing capacity, and the legal tests you can use in different circumstances, such as making a will, making a lifetime gift, and conducting civil proceedings. It also covers techniques for assessing capacity, and what to do if a client lacks capacity to give you instructions."
Legal Aid Agency, '2018 Standard Civil Contract: Category Specific Rules: Mental Health (section 9)' (20/3/23)	Legal Aid resource	Civil contract mental health section	The change from the version is the addition of paragraphs 9.105 to 9.109. These set out the requirements for claiming a fee for work done following a rule 11(7)(a) appointment for a client who does not provide instructions. The new text is reproduced here.
Legal Aid Agency, '2018 Standard Civil Contract: Category Specific Rules: Mental Health (section 9)' (20/3/23)	Legal Aid resource	Civil contract mental health section	The change from the version is the addition of paragraphs 9.105 to 9.109. These set out the requirements for claiming a fee for work done following a rule 11(7)(a) appointment for a client who does not provide instructions. The new text is reproduced here.
Legal Aid Agency, 'Award Criteria Invitation to Tender' (13/9/23)	Legal Aid resource	Award ITT	"ITT Responses will be assessed in the following stages: Stage 1 - SQ ITT assessment; Stage 2 - Award ITT assessment; Stage 3 - Contract award (subject to verification); Stage 4 - Verification."
Legal Aid Agency, 'Civil 2024 Contract Procurement Process' (13/9/23)	Legal Aid resource	Procurement process	Questions may be asked by 2359 on 26/9/23 and answers will be published in the week beginning 2/10/23. Tenders must be submitted by 1700 on 17/10/23. This guidance web page provides links to the following documents: Selection Questionaire ITT; Award ITT; Mental Health Category-Specific Information; Community Care Category-Specific Information; and category-specific information relating to the other areas of law.
Legal Aid Agency, 'Civil Finance Electronic Handbook' (v3.4, dated 1/8/23)	Legal Aid resource	Certificated work guidance	The changes since the previous version, as listed in Appendix 11, are: 1.6 Confirmation added that bills on revoked certificates must be submitted within six years; 3.5 Updated guidance on panel membership enhancement; 6.1 Added guidance on FAS webinar; 6.4 Additional guidance added into final hearing guidance, Added paper hearing guidance, Remove reference to hearing on same day, Added reference to early neutral evaluation hearings, Added guidance on Dispute Resolution Appointment; 6.5 Guidance on calculating remote hearings; 10.1 Updated guidance on admin costs; 10.5 Added reference to appointment and apportionment; 10.17 Updated to reflect new CAFCASS rate for ISW; 10.18 Added guidance where interpreter above codified rate; 10.32 Added new rates for accommodation; 16 Added reference to webinar, Clarified position with initial document request; 16.1 Confirmation that assessment following previous reject where no evidence of work; 21.1 Cross reference to submission of claim within six years; 21.2 Further guidance on client refunds. Document dated 1/8/23 but PDF created on 31/8/23.
Legal Aid Agency, 'Civil news: changes to civil legal aid forms' (3/7/23)	Legal Aid resource	New forms	New forms will come into force on 3/8/23 and will appear on the Gov.uk website on the same day. Previous versions will be accepted up to 3/9/23. The following forms will be changed: CW1, CW1&2 MH, CW2 (IMM), CW5, CIVAPP1, CIVAPP3, CIVAPP6, CIVMEANS3 and CIVMEANS7. Form CIVMEANS4 will be removed. The changes are a result of the Means Test Review (MTR).
Legal Aid Agency, 'Civil news: immigration and mental health work forms updated' (1/9/23)	Legal Aid resource	News story about Legal Aid forms	The LAA published three PDFs of Form CW1&2MH recently: (1) 3/8/13 to 13/8/23 inclusive (the original v18); (2) 14/8/23 to 31/8/21 inclusive (v19 but still saying v18 on the form); (3) 1/9/23 onwards (v19). In relation to using the previous forms the LAA say: "We would like you to download the current forms. But we are still accepting the versions published on 3 August. Providers should complete the case details and merits section, as appropriate, for under 18s before making payment submissions." The news story sets out the changes between the original v18 and v19.
Legal Aid Agency, 'Civil news: tender opens for 2024 standard civil contract' (13/9/23)	Legal Aid resource	Legal Aid tender process announced	The procurement process for supplying Legal Aid services under the 2024 Standard Civil Contract runs from 13/9/23 to 17/10/23. The contract will begin on 1/9/24 and will cover all categories of civil and family legal aid (including mental health and community care). This news story gives basic information and provides links to the relevant documents.
Legal Aid Agency, 'Community Care Category-Specific Information' (13/9/23)	Legal Aid resource	Community care category-specific information	This document contains the following headings: (1) Procurement Areas; (2) Lots; (3) Category-Specific Requirements; (4) Verification Requirements; (5) ITT questions and assessment.
Legal Aid Agency, 'Contract management: mental health guidance' (v4, 20/3/23)	Legal Aid resource	Contract management guidance	The reason given for this version is: "Amended to include Rule 11(7)(a) & 13(5)(a)(i) appointments & information on remote communication with clients". These sections are new: (4) Remote Hearings; (5) Remote Communication with Clients; (6) Rule 11(7)(a) and 13(5)(a)(i) Appointments. The full text of those sections is reproduced here. The remainder is unchanged.
Legal Aid Agency, 'Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts' (v6, October 2022)	Legal Aid resource	Costs guidance	Changes from v4 (February 2021) to v5 (April 2021): "Further amendments to extend the temporary changes regarding claims for payments on account." Changes from v5 to v6: "Replacing references to QC/Queen’s Counsel to KC/King’s Counsel." Newer version: Legal Aid Agency, 'Costs Assessment Guidance: for use with the 2018 Standard Civil Contracts' (v10, December 2023).
Legal Aid Agency, 'Escape Case Electronic Handbook' (v2.3, 1/8/23)	Legal Aid resource	Escape case guidance	Changes from previous version are listed in Appendix 12 as being: Added highlight boxes for regulations and guidance; 5.1 Simplified admin cost guidance; 5.5 Added reference to appointment as well as hearing; 5.15 Updated to reflect new CAFCASS rate for ISW; 5.16 Updated paragraph numbers on Guidance document, Added guidance on when the codified rate can be exceeded; 5.31 Removed reference to priority returns, Added new rates for accommodation; 7.8 Updated scenario 1 to reject to reflect current process; 8.1 Added table to confirm when we reject and assess; 8.2 Removed reference to attaching checklist to claim, Removed reference to FI and phone calls; 8.4 Update reference to claim fix rather than reject fix; 8.5 Removed section as now in s8.1
Legal Aid Agency, 'Form CW 1&2 MH' (amended v18, August 2023)	Legal Aid resource	Mental health Legal Aid form	This version was published on 14/8/23. The only differences from the original v18 are in the guidance notes on page 2. The footer still said "version 18". It was later re-issued as "version 19": for details, see Legal Aid Agency, 'Form CW 1&2 MH' (v19, August 2023).
Legal Aid Agency, 'Form CW 1&2 MH' (original v18, August 2023)	Legal Aid resource	Mental health Legal Aid form	For use from 3/8/23. LAA update notes: "Published new version of the CW1&2 MH form for phase 1 of the Means Test Review". This form was only online from 3/8/23 to 13/8/23 inclusive. Superseded by: Legal Aid Agency, 'Form CW 1&2 MH' (amended v18, August 2023).
Legal Aid Agency, 'Form CW 1&2 MH' (original v18, August 2023)	Legal Aid resource	Mental health Legal Aid form	For use from 3/8/23. LAA update notes: "Published new version of the CW1&2 MH form for phase 1 of the Means Test Review". This form was only online from 3/8/23 to 13/8/23 inclusive. Superseded by: Legal Aid Agency, 'Form CW 1&2 MH' (amended v18, August 2023).
Legal Aid Agency, 'Form CW 1&2 MH' (v19, August 2023)	Legal Aid resource	Mental health Legal Aid form	Version 19 (dated 14/8/23, published 1/9/23) is the same as amended version 18 (published 14/8/23) except for the footer which now states "Version 19". The only differences between version 19 and original version 18 (published 3/8/23) are amendments to the guidance notes on page 2. The LAA will accept original version 18 as long as the form is completed in accordance with the amended guidance (see Legal Aid Agency, 'Civil news: immigration and mental health work forms updated' (1/9/23)). Presumably they will also accept amended v18 as its contents are the same as v19. Note 1 now reads "As you have answered YES to questions 1 and 2 confirming that the client is a child who is applying for Controlled Legal Representation, no further assessment is required. Go directly to [Please complete the Case Details and Merits Criteria on page 6 and] the client declaration on page 11." Note 2 now reads: "As you have answered NO to questions 3, 4 and 5, confirming that the client is a child who is not to be aggregated with a maintaining adult and does not have a regular income or capital in excess of £2,500, no further assessment is required. Go directly to [Please complete the Case Details and Merits Criteria on page 6 and] the client declaration on page 11. Superseded by Legal Aid Agency, 'Form CW 1&2 MH' (v20, September 2024).
Legal Aid Agency, 'Keycard 59' (April 2023)	Legal Aid resource	Financial eligibility	This document is helpful when working out financial eligibility for civil Legal Aid. Superseded by Legal Aid Agency, 'Keycard 60' (April 2024).
Legal Aid Agency, 'Mental Health Category-Specific Information' (13/9/23)	Legal Aid resource	MH category-specific information	This document contains the following headings: (1) Procurement Areas; (2) Lots; (3) Category-Specific Requirements; (4) Verification Requirements; (5) ITT questions and assessment.
Legal Aid Agency, 'Procurement process for 2024 Standard Civil Contract from September 2024 - Frequently Asked Questions' (5/10/23)	Legal Aid resource	2014 Contract FAQs	"Questions that we consider to be of wider interest have been collated and answered centrally in writing to ensure that all potential Applicants have equal access to information. These questions and answers have been published in this FAQ document."
Legal Aid Agency, 'Selection Questionnaire Invitation to Tender' (13/9/23)	Legal Aid resource	SQ ITT	"Where an Applicant’s SQ Response is assessed as successful the LAA will proceed, as applicable, to assess the Award ITT Response(s) for each Category of Law, and where applicable, HLPAS ITT Response(s)."
Legal Aid Agency, 'Standard civil contract 2024' (13/9/23)	Legal Aid resource	Contract documentation	The 2024 civil contract consists of: Standard terms; Specification (General Provisions & Category Specific Rules); Schedule; Contract for Signature; Category Definitions 2024. This guidance page contains links to the following draft documents (among others): standard terms; specification (general provisions 1-6); category specific rules mental health (section 9); category specific rules community care (section 11); schedule; contract for signature; category definitions; supervisor self-declaration forms (mental health routes 1 and 2, community care, etc); guidance on completing supervisor declaration forms; provider data security guidance and requirements documents; indemnity proformas (separate forms for limited company, LLP, partnership).
Legal Aid Agency, 'Tribunal appointed representatives in mental health (rule 11(7) cases)' (8/6/17)	Legal Aid resource	Legal Aid and rule 11	This is guidance which has been provided to LAA auditors. In its summary section it states that: (1) No work on a client's case should be started before an application for legal aid has been made and properly signed. (2) The provider should in general always seek to visit the client to see if he has capacity and is willing to apply for legal aid himself (subject to bullets 6 and 7 below). (3) If the client lacks capacity then any person can make the application for legal aid on his behalf. That individual does not otherwise have to be involved in the case. (4) If the client lacks capacity or is unwilling/unable to sign the application form (and it is not appropriate for a third party to apply on his behalf) the provider can sign the application form in accordance with paragraph 9.40 of the contract specification. (5) In all Rule 11(7) cases, we expect to see the authority from the tribunal appointing the firm/individual on the file (usually an email). (6) If it is clear from the outset of the case that client lacks capacity or will be unwilling to sign the application form then the provider does not necessarily need to visit the client to see if he is unable/willing to apply. (7) In these circumstances, the provider should justify on file why he has not made any such attempts (e.g. the client clearly lacks capacity and/or has informed staff that he does not wish to see a solicitor).
Mental Health Casework Section, 'Guidance: Section 42 Discharge' (March 2022)	Guidance	Restricted patient discharge guidance	"This guidance sets out the SoS’s approach to applications for discharge under section 42(2) of the Mental Health Act 1983 (MHA)." Very detailed guidance is given on when conditional and absolute discharge will be granted. Headings: (1) Introduction; (2) Legal Provisions; (3) Types of Restricted Patients; (4) Specific Categories of Patients; (5) Applications for Discharge; (6) Types of Discharge; (7) Lifting the Restriction Order; (8) Patient Management; (9) Victim Involvement; (10) Multi Agency Public Protection arrangements (MAPPA); Annex A - Glossary of Terms; Annex B - Standard Conditions of Discharge.
Mental Health Tribunal, 'Email addresses for MHT' (20/8/21)	Document	Tribunal contact details	The document was last updated in 2021 but the tribunal secretariat confirmed that it is pretty much up to date in July 2023. Add "cjsm.net" for secure email, e.g. mhtapplications@justice.gov.uk becomes mhtapplications@justice.gov.uk.cjsm.net.
MHAC, 'Eighth biennial report 1997-99' (1999)	Report	MHA report	MHAC's 8th biennial report.
MHAC, 'Eleventh biennial report 2003-05: In place of fear' (2005)	Report	MHA report	MHAC's 11th biennial report.
MHAC, 'Fifth Biennial Report 1991-93' (1993)	Report	MHA report	MHAC's fifth biennial report.
MHAC, 'First Biennial Report 1983-85' (1985)	Report	MHA report	MHAC's first biennial report.
MHAC, 'Key findings about the use of the MHA: Taken from the Commission's Twelfth Biennial Report' (2007)	Report	MHA report	"This briefing note contains some of the key contents of the Mental Health Act Commission’s Twelfth Biennial Report, Risks, Rights, Recovery, which reviews the operation of the Mental Health Act 1983 between 2005 and 2007. It is not a full summary of all aspects of the Biennial Report, but seeks to describe the use of the Act and the experience of detention for people who may be less familiar with the legislation and its operation."
MHAC, 'Ninth biennial report 1999-2001' (2001)	Report	MHA report	MHAC's 9th biennial report.
MHAC, 'Seventh biennial report 1995-97' (1997)	Report	MHA report	MHAC's seventh biennial report.
MHAC, 'Sixth biennial report 1993-95' (1995)	Report	MHA report	MHAC's sixth biennial report.
MHAC, 'Tenth biennial report 2001-03: Placed amongst strangers' (2003)	Report	MHA report	MHAC's 10th biennial report.
MHAC, 'Thirteenth biennial report 2007-09: Coercion and consent' (2009)	Report	MHA report	MHAC's 13th biennial report.
MHAC, 'Twelfth biennial report 2005-07: Risk, rights, recovery' (2007)	Report	MHA report	MHAC's 12th biennial report.
Ministry of Justice, 'Discharge Application for Restricted Patients' (v2.1, 24/2/22)	Form	Form for requesting MOJ discharge	"Please use this form for all forms of discharge (absolute, conditional or lifting the s41 Restriction Order). This form is primarily designed for use by patients’ Responsible Clinicians but can be used by patients themselves or their representatives (Legal or Independent Mental Health Advocates). Please note, however, that the Responsible Clinician’s views on discharge will be sought prior to any decision being made by MHCS." Changes since the 2017 version to the suggested discharge conditions are shown as tracked changes on the MHLO page.
Ministry of Justice, 'Discharge Application for Restricted Patients' (v2.1, 24/2/22)	Form	Form for requesting MOJ discharge	"Please use this form for all forms of discharge (absolute, conditional or lifting the s41 Restriction Order). This form is primarily designed for use by patients’ Responsible Clinicians but can be used by patients themselves or their representatives (Legal or Independent Mental Health Advocates). Please note, however, that the Responsible Clinician’s views on discharge will be sought prior to any decision being made by MHCS." Changes since the 2017 version to the suggested discharge conditions are shown as tracked changes on the MHLO page.
Ministry of Justice, 'Open Justice: the way forward' (consultation from 11/5/23 to 7/9/23)	Consultation	Open justice consultation	"We want to hear from all interested parties, including the judiciary, legal professionals, the media, businesses, academics, law and technology experts and our court and tribunal users on how you think the government can uphold and strengthen open justice in the modern age."
Ministry of Justice, 'Open Justice: the way forward' (consultation from 11/5/23 to 7/9/23)	Consultation	Open justice consultation	"We want to hear from all interested parties, including the judiciary, legal professionals, the media, businesses, academics, law and technology experts and our court and tribunal users on how you think the government can uphold and strengthen open justice in the modern age."
National Preventive Mechanism, 'Monitoring places of detention: 13th Annual Report of the UK's NPM' (17/4/23)	Report	Detention report	"The National Preventive Mechanism (NPM) produces an annual report setting out its finding from the visits the bodies which make up the NPM have undertaken."
NHS England, '‘Who Pays’ amendment to the section on ‘persons detained under the Mental Health Act 1983’' (19/4/16)	Health guidance	Aftercare guidance	This document discusses 2016 amendments to the Who Pays? guidance.
NHS England, 'Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers' (v2, 30/6/22)	Health guidance	NHS commissioning	"This version of Who Pays? is being published because of changes introduced by the Health and Care Act 2022 and associated regulations ... Although the legislation which underpins Who Pays? is changing in some respects, the new arrangements effective from 1 July 2022 will in practice provide a very high level of continuity with the rules which have applied under the 2020 version of Who Pays?" The introduction notes changes in three key areas: (1) People for whom an ICB is to have core responsibility; (2) Responsibility for detention and aftercare under the Mental Health Act; (3) Transition to adult continuing care. Updates from the 2020 version are highlighted in yellow.
NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 21/9/16)	Guidance	Aftercare guidance	Annex A ("'Who Pays' amendment to the section on 'persons detained under the Mental Health Act 1983'") sets out replacements for paragraphs 33 and 34 of the August 2013 Who Pays? guidance.
NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 9/6/16)	Health guidance	Aftercare guidance	Superseded by NHS England, LGA and ADASS, 'Building the right support - Frequently Asked Questions (Finance)' (updated 21/9/16).
Office of the Public Guardian, 'Public Guardian practice note (SD15): OPG’s approach to surety bonds' (updated 23/6/23)	Guidance	Security bonds	"The practice note explains what OPG expects from a bond provider, so that its surety bonds are suitable for deputies." Update since previous version: "Change to the available bond providers."
Office of the Public Guardian, 'Simplified process for verifying the death of a donor, attorney, deputy or guardian' (blog, 13/1/23)	Blog post	OPG procedure	"We have simplified the process we follow after being notified that someone has died. We now verify deaths using the Life Event Verification system, so there is no longer a need for people to send in a death certificate unless we specifically ask for it."
Office of the Public Guardian, 'Surety bonds: Public Guardian practice note' (SD15 09.16, 20/9/16)	Guidance	Security bonds	"This practice note (SD15) explains what OPG expects from a bond provider, so that its surety bonds are suitable for deputies." PDF version published on Gov.uk on 17/4/23. Superseded by Office of the Public Guardian, 'Public Guardian practice note (SD15): OPG’s approach to surety bonds' (updated 23/6/23).
Office of the Public Guardian, 'Updating Public Guardian registers: Notification of death' (practice note SD16, January 2023)	Practice Note	Notification of death	"The Public Guardian is responsible for maintaining registers of lasting powers of attorney, enduring powers of attorney, orders appointing deputies, and orders appointing guardians. This practice note outlines the requirements for notifying the Office of the Public Guardian (OPG) of deaths affecting the registers."
Parole Board, 'Mental Capacity Assessments and Litigation Friends: Member Guidance' (v1.0, October 2021)	Guidance	Parole Board and capacity	"The Parole Board has published guidance for its members on factors to take into consideration when reviewing cases where mental capacity is a consideration."
Rebecca Thomas, 'Hospital of horrors: 1,643 ‘sexual safety incidents’ in a single 59-bed children’s unit' (Independent, 11/4/23)	Newspaper article	CAMHS hospital	"A single children’s mental health hospital with just 59 beds reported more than 1,600 'sexual safety incidents' in four years, shocking NHS figures reveal. Huntercombe Hospital in Maidenhead [Taplow Manor] was responsible for more than half of the sex-related investigations reported in the 209 children’s mental health units across the country. Despite warnings being sent to the health service at a rate of more than one a day since 2019 – a total of 1,643 sexual incident reports – no action was taken to stop vulnerable NHS patients being sent to the scandal-hit unit. ... Last year The Independent revealed that police were investigating the alleged rape of a child at Taplow Manor, involving two staff members. A young female patient also made a report to the police of an alleged rape by another patient in 2019. Last month it was revealed that a further sexual assault, at a unit in Stafford owned by Active Care Group, had been reported to the police in recent weeks. It comes after the Huntercombe Group closed its Watcombe Hall unit in Devon after a nurse was convicted of the grooming and sexual abuse of two patients. ... Active Care Group claimed that the high number of reports was a “sign of best practice”, indicating a safer culture."
Rebecca Thomas, 'NHS criticised for sending patients to children’s hospital despite 1,600 ‘sexual safety incidents’' (Independent, 18/4/23)	Newspaper article	CAMHS hospital	"[L]eading mental health charity Mind has criticised the NHS for continuing to use the hospital, despite evidence of 'catastrophic failings in physical and sexual safety' spanning several decades. ... Taplow Manor, which is run by Active Care Group after it merged with The Huntercombe Group, is set to be closed in May. ... Thames Valley Police have launched an investigation into an alleged rape of a patient involving two staff members at the unit. The private provider revealed shortly after it hopes to reopen the hospital as an adult unit within months. Although Taplow Manor is set to close the provider’s second children’s unit, Ivetsey Bank in Stafford is still open and NHS commissioners have admitted 16 children to the hospital since October, The Independent can reveal. Ivetsey Bank is also facing a police investigation into an alleged sexual assault of a patient in March."
T121: Information for restricted patients detained under the Mental Health Act 1983 (October 2022)	Tribunal guidance	Guidance for restricted patients	This document is sent by the tribunal to patients (via the lawyer if represented).
Tigrinya translation of Care Quality Commission, 'How we support the rights and interests of people on community treatment orders (CTOs)' (August 2012)	CQC guidance	CTOs	Translation of Care Quality Commission, 'How we support the rights and interests of people on community treatment orders (CTOs)' (August 2012). Translated in 2023 by Translation Empire Group for Livewell SouthWest.
TPC, 'Consultation on possible amendments to the HESC Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s68 MHA 1983' (consultation from 18/7/23 to 29/8/23)	Consultation	Paper reference hearings for hospital-based patients	(1) The tribunal wants its rule 35 power to determine reference cases on the papers (where an adult patient does not wish to attend or be represented) to be extended from community patients to hospital-based patients. The tribunal suggests that this would be better for patients: its proposal to the TPC talks of giving patients "the right to determine how they want their case to be considered" and "respect[ing] the autonomy of those in hospital", and the conclusion states that "[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community". However, resources and finances are major motivations: "it is an inefficient use of the Tribunal’s resources to have an oral hearing", given that "[a] judge can typically dispose of between 4 and 8 automatic references in a single day", especially if the Mental Health Bill 2022 is passed and references triple. (2) The TPC seem aware that the proposal could make matters worse: (a) they suggest "safeguarding measures" (noting that "it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny" and suggesting "a requirement that every second or third reference (depending on the statutory duration of each) must be considered at an oral hearing which would be able to hear the evidence of witnesses or call for additional information as required"); (b) they suggest that the rule change might be premature prior to the Bill's enactment ("it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now"); (c) they note that the Senior President of Tribunals would amend the relevant PD to ensure that, contrary to the tribunal's proposal, these decisions for hospital-based patients would be made by a full panel and not a judge alone.
TPC, 'Consultation on possible amendments to the HESC Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s68 MHA 1983' (consultation from 18/7/23 to 29/8/23)	Consultation	Paper reference hearings for hospital-based patients	(1) The tribunal wants its rule 35 power to determine reference cases on the papers (where an adult patient does not wish to attend or be represented) to be extended from community patients to hospital-based patients. The tribunal suggests that this would be better for patients: its proposal to the TPC talks of giving patients "the right to determine how they want their case to be considered" and "respect[ing] the autonomy of those in hospital", and the conclusion states that "[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community". However, resources and finances are major motivations: "it is an inefficient use of the Tribunal’s resources to have an oral hearing", given that "[a] judge can typically dispose of between 4 and 8 automatic references in a single day", especially if the Mental Health Bill 2022 is passed and references triple. (2) The TPC seem aware that the proposal could make matters worse: (a) they suggest "safeguarding measures" (noting that "it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny" and suggesting "a requirement that every second or third reference (depending on the statutory duration of each) must be considered at an oral hearing which would be able to hear the evidence of witnesses or call for additional information as required"); (b) they suggest that the rule change might be premature prior to the Bill's enactment ("it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now"); (c) they note that the Senior President of Tribunals would amend the relevant PD to ensure that, contrary to the tribunal's proposal, these decisions for hospital-based patients would be made by a full panel and not a judge alone.
Tribunal guidance T118: Victims of violent or sexual offences (April 2012)	Tribunal guidance	Victims guidance	"What to do if you're a victim (or family member of a victim) of a violent or sexual offence committed by a person detained under the Mental Health Act."
Tribunal guidance T122: Information for non-restricted patients detained under the Mental Health Act 1983 (27/9/22)	Tribunal guidance	Guidance for patients	The tribunal secretariat emails this to representatives (requesting that it be sent to the patient) and presumably sends it directly to unrepresented patients. Headings: The tribunal; Members of the tribunal; What the tribunal does; Recommendations the tribunal can make; How to apply to the tribunal; When to apply to the tribunal; When a hearing will take place; After you apply; Legal representation; Where the tribunal will be held; If you change your mind about having a tribunal; The tribunal hearing; Support at the hearing from someone other than a legal representative; The tribunal decision; Appeal against a tribunal decision; Further information.