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April 2013 update

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Conference

  • Conference. Northumbria University are hosting 'The Seventh North East Mental Health Law Conference 2013' on Friday 12/7/13 from 9.00am to 4.30pm. The sessions this year are: 'A Critical Survey of recent developments in Mental Health Law' (Roger Pezzani); 'The Wind from the East: legal challenges from Europe and beyond' (Mat Kinton); 'Non-Medical Approved Clinicians: The Good, The Bad and The Conditionally Discharged’ (Dr Bruce Gillmer and Prof John Taylor); 'A Spotlight on the Legal Framework for the Mental Health Care of Children and Young People' (Camilla Parker); 'Mind Your Ps and Qs' (Neil Allen); 'The Newer Legalism - Clinical Power and the Limits of Rights-based Approaches' (Prof Phil Fennell). Price: £240 (£190 for two or more from same company, or for any booking before 31/5/13). CPD: 6 hours. See brochure for further details and the booking form. See Events

Case law

  • Upper Tribunal decision (postponement). RC v NHS Islington [2013] UKUT 167 (AAC), [2013] MHLO 34 — "This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. ... The grounds of appeal argue that the ... policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted. ... The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences. Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal. Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been the case. However, since any practical benefit of this appeal has now been overtaken by events, I ... simply declare the tribunal’s refusal of a postponement to have been in error of law."§
  • Upper Tribunal case. MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32 — The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition; risk is as relevant to treatment as any other feature of the disorder.§

Mental Health Tribunal

  • Neil Skelton, 'Note to All Mental Health Tribunal Stakeholders: Mental Health Tribunal: process changes' (HMCTS, 15/4/13). In relation to applications or referrals submitted on or after 13/5/13, MHT cases will no longer be listed by negotiation in England. There is no change for section 2 cases. When a case is registered by the tribunal secretariat, new form HQ1 will be sent to parties, who will have 14 days (in practice, usually via the representative and MHA Administrator) to provide availability during the following listing windows: (a) for unrestricted cases, 5-8 weeks from the the secretariat's receipt of the application or referral; (b) for restricted cases, 12-14 weeks. The secretariat aims to select a date and notify the parties within 21 days of receipt of the application or referral. See also: HMCTS, ' Mental Health Tribunal: Process Changes: Frequently asked Questions' (15/4/13); Form HQ1 (April 2013 version). See Mental Health Tribunal

CQC

  • CQC DOLS report. (1) CQC, 'Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12' (28/3/13); (2) CQC, 'Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12: Summary' (28/3/13); (3) CQC, 'CQC finds Mental Capacity Act not well understood across all sectors and calls for more work by providers and commissioners to improve' (press release, 28/3/13) See CQC#CQC - DOLS
  • Commentary on CQC DOLS report. (1) Lucy Series, 'No longer early days' (The Small Places Blog, 7/4/13); (2) Chris Doidge and Rob Cave, 'Majority of "deprivation of liberty" cases unreported, says report' (BBC, 7/4/13); (3) BBC, '5 Live Investigates' (MP3 file, 7/4/13). See CQC#CQC - DOLS

Newsletter

  • Newsletter. 39 Essex Street, 'Court of Protection Newsletter' (issue 32, April 2013). The cases mentioned in this issue are: Aintree University Hospitals NHS Foundation Trust v David James [2013] EWCA Civ 65, [2013] MHLO 17 — Re RGS [2012] EWHC 4162 (COP), [2012] MHLO 173 — PS v LP (unreported, 6 February 2013) — HT v CK [2012] EWHC 4160 (COP), [2012] MHLO 175 — PB v RB [2012] EWHC 4159 (COP), [2012] MHLO 174 — R (A) v Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin)B — Webb Resolutions Ltd v JT Ltd [2013] EWHC 509 (TCC) — Re M, N v O & P (unreported, 28 January 2013). There is also information under the following headings: (a) Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: No more treatment without consent; (b) Parliamentary Scrutiny; (c) OCTET Study; (d) Avoiding Invalid LPAs; (e) Reducing LPA waiting times; (f) Court of Protection Practitioners' Association; (g) Medical Mediation Foundation; (h) Plans to move the Court of Protection. See 39 Essex Street COP Newsletter#April 2013

Legal Aid

  • Legal Aid news. To coincide with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the abolition of the Legal Services Commission, both of which take effect on 1 April, the Legal Aid Agency has announced that neither the fixed fees system nor the matter start system is 'fit for purpose'. A spokesman stated that (a) the mental health fixed fee system has reached a level of complexity of which Heath Robinson would have been proud, so from today future payments will be based on a reasonable hourly rate for work reasonably incurred; and (b) the matter start system is unnecessary because of the abolition of fixed fees (in any event, ECHR obligations mean the total number of cases is determined by the number of patients detained by the state), so from henceforth individual firms may carry out as many cases as reputation and market forces permit. The Federation Of Outpatient Lawyers issued the following initial statement: 'This common sense approach seems too good to be true.' [April Fool!] See Legal Aid

Other

  • Banking. (1) Law Society, 'Managing a bank account for another person to become easier thanks to new framework' (3/4/13); (2) Law Society and others, 'Guidance for people wanting to manage a bank account for someone else' (3/4/13); (3) Law Society and others, 'A framework for authorising people wanting to operate a bank account for someone else' (3/4/13). See Law Society

Website and CPD

  • CPD scheme. The questionnaire for February-March 2013 is now available. Obtain 12 accredited CPD points online for £60 by subscribing today. See CPD scheme
  • Donations. Mental Health Law Online is free to use and maintained on a voluntary basis. If you or your organisation find this website useful, please consider making a donation to contribute to its upkeep. See Donations

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