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April 2015 update

Case law

  • Guardianship/DOLS case. NM v Kent County Council [2015] UKUT 125 (AAC), [2015] MHLO 34 — NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. He also said that a limitation inherent in the DOLS regime was that, while it could prevent NM from leaving, it could not deal with the possibility that he may abscond. (3) In some (other) cases guardianship may not be necessary for the purposes of s72(4)(b) as DOLS may provide sufficiently for the person’s welfare and the protection of others. (4) The First-tier Tribunal's reasons on the statutory criteria (the key being that NM would not remain at the home without guardianship) and the relationship with DOLS (concerning return following absconsion) were in substance adequate to explain and justify its decision.§
  • Deprivation of liberty case (own home). W City Council v Mrs L [2015] EWCOP 20, [2015] MHLO 35 — "This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer's disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues: (a) whether the care arrangements for the lady (Mrs L) constitute a deprivation of her liberty; (b) if so, then whether the State is responsible for such deprivation of liberty; and (c) if so, then whether such deprivation of liberty should be authorised by the court and what the arrangements for continuing authorisation should be."§
  • PI quantum case. DD v Dudley and Walsall NHS Trust [2014] MHLO 145 (PI) — The Claimant's partner committed suicide while being detained under s2 Mental Health Act. The Claimant and the deceased were not married but had been cohabiting for a number of years. The deceased was also the Claimant's full time carer as a result of the spinal fusion surgery the Claimant had undergone some years previously. The deceased had a history of mental illness which was depressive in nature. At the time of his death his mental health had deteriorated significantly. While detained under the Mental Health Act, the deceased was initially assessed as not having capacity nor insight into his illness; he was also becoming aggressive and a risk to himself and others. However, an assessment by the duty doctor the following night did not indicate that the deceased was a self-harm risk, nor were there any known acts/plans since admission. Later that evening the deceased killed himself. The Trust carried out a Serious Untoward Incident investigation which highlighted a number of failings in the care of the deceased. The Defendant made some admissions of liability in its Letter of Response. However, the Defendant put the Claimant to proof as to the nature of his relationship with the deceased and the level of care he required. The Claimant made a claim for dependency as the deceased had been his full time carer. A claim was also made under the Human Rights Act 1998 for a breach of Article 2, the Right to Life. It was acknowledged by the Claimant that there would be no monetary award under this Act (only an acknowledgement of the breach) as compensation was sought under the Fatal Accidents Act 1976. A Round Table Meeting was held in June 2014 and the Claimant accepted a settlement of £185,000. (Summary provided by claimant's solicitor.)§

Mental Health Tribunal

  • New tribunal forms: T110-Guardianship and HQ1-Guardianship. From 7/4/15 these forms should be used in guardianship cases. See Tribunal forms

Court of Protection

  • Judiciary website, 'Court of Protection Practice Directions come into force 6 April 2015' (2/4/15). Also: Sophy Miles, 'New Practice Directions out now!' (Court of Protection Handbook Blog, 8/4/15). See Court of Protection Practice Directions

Legal Aid Agency

  • Legal Aid Agency, 'Mental Health Common Errors' (v1, 6/2/15, published April 2015). This document contains the following headings: Claiming Errors; Tackling poor quality; Web links to documents. Details in relation to the following claiming errors are set out in the document: (1) Incorrect coding. (2) Failure to conduct a means assessment for the client in a non-MHT matter, where no advice has been given with regards the Tribunal process, or any advice given was not necessary. (3) Failure to evidence of client’s means in a non-MHT matters where the client is in detention and there is little/no evidence on file that the fee-earner has undertaken reasonable steps to check whether the ward manager, social workers, family members etc. can confirm the client’s financial position. (4) Opening a separate non-MHT matter start and claiming a separate non-MHT fee when it should have been rolled up' into a concurrent MHT fee. (5) Failure to understand matter start rules where the client is the Nearest Relative (NR), particularly with regard to non-MHT and MHT matter start rules. (6) Claiming a MHT fee for standalone non-MHT work such as a Hospital Managers Meeting/Review or S117 meeting. (7) Claiming the MHT Level 3 Fee where an effective MHT has not taken place, or the provider has not carried out any representation. (8) Claiming the MHT Level 2 Fee before an MHT application has been submitted, or where neither 30 minutes work has been done nor negotiations with a third party have been carried out. (9) [I]f the provider makes [an s2] application too late for it to be considered by the tribunal ... only the MHT level 1 fee should be claimed. (10) Failure to open a new NMS in circumstances where an informal patient is detained under Section. (11) Claiming a separate fee in relation to a renewal hearing [in the wrong circumstances]. (12) Claims for Remote Travel Payments. (13) Excessive travel cost claims: the Cost Assessment Guidance indicates a limit of 5 hours unless reasonable justification is evidenced on file. (14) Excessive disbursement claims: includes the claiming of Counsel fees (which should be paid out of the fees claimed except where prior authority has been granted to incur a higher rate) and multiple independent expert reports (where they are not justified by the case). (15) Consideration must be given to whether attendance at HMH, s117 or CPA meetings is necessary and/or appropriate. See Legal Aid#Guidance documents

Department of Health

  • Department of Health and Welsh Government, 'Mental health aftercare in England and Wales: Arrangements for resolving disputes over ordinary residence involving local authorities in England and Wales' (March 2015). These arrangements, made under s117(5), set out the process by which the Secretary of State for Heath and the Welsh Ministers will decide which of them will determine a dispute about where a person was ordinarily resident for the purposes of s117(3) if the dispute is between an LSSA in England and an LSSA in Wales. See After-care

Law Society

  • Alex Ruck Keene et al, 'Deprivation of liberty: a practical guide' (Law Society, 9/4/15). Law Society summary: "The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards. The safeguards aim to ensure that those who lack capacity and are residing in care home, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives. The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings. It uses case scenarios to explain the law following the landmark judgment of the Supreme Court in the case of Cheshire West (2014). The complete guidance is available below. You can also download individual chapters relating to specific care settings. Quick reference sheets also highlight relevant liberty restricting factors and key questions for practitioners relating to each individual setting." The guidance contains the following chapters: (1) introduction; (2) the law; (3) Cheshire West; (4) the hospital setting; (5) the psychiatric setting; (6) the care home setting; (7) supported living; (8) at home; (9) under 18s; (10) summaries of key cases; (11) further resources. See DOLS#Academic articles etc

Mind

Events

  • MHLA: Introduction to the Court of Protection course. The Mental Health Lawyers Association are running an "Introduction to the Court of Protection" course on Thursday 7/5/15 and Friday 8/5/15 in London. This course is primarily aimed at practitioners with little or no experience in conducting matters before the Court and those seeking a practical foundation to undertaking proceedings in the Court. The course will cover health and welfare matters, deprivation of liberty, funding and, to a lesser extent, issues relating to property and affairs. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website for further details and to book online.
  • MHLA: Foundation courses. The Mental Health Lawyers Association are running a mental health law Foundation Course on Monday 18/5/15 in London and on Tuesday 19/5/15 in Manchester. This course is aimed at new practitioners and those intending to attend the panel course in the near future. The foundation course takes an interactive approach. It covers the basics of mental health law, Legal Aid, and running a mental health file. Price: £150 (MHLA members); £195 (non-members). CPD: 6 hours. See MHLA website (London course and Manchester course) for further details and to book online.
  • MHLA: Panel courses. The Mental Health Lawyers Association are running their Panel Course (a) on Monday 1/6/15 and Tuesday 2/6/15 in London, and (b) on Thursday 4/6/15 and Friday 5/6/15 in Leeds. The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). CPD: 12 hours. See MHLA website (London course and Leeds course) for further details and to book online.
  • Edge Training: DoLS Signatory Course on 12/6/15. Edge Training are running a "DoLS Signatory Course" on Friday 12/6/15 in London. This will be a practical training day designed for DoLS supervisory body signatories. The course will, among other things, look at the new DoLS forms and consider what signatories should expect to see in relation to the evidence and rationale for decisions made. Price: £115 +VAT. Speaker: Steven Richards. See flyer for further details and booking information. See Events
  • Edge Training: BIA Legal Update on 26/6/15. Edge Training are running a BIA Legal Update (also open to MH Assessors) on Friday 26/6/15 in London. The course will provide information on the key cases and news over the last six to twelve months, and will focus on practical issues and case studies. Price: £115 +VAT. Speaker: Steven Richards. See flyer for further details and booking information. See Events
  • MHLA: Court of Protection Conference. The Mental Health Lawyers Association's second annual Court of Protection Conference will be held on Friday 3/7/15 in London. Keynote speaker: Sir James Munby, President of the Family Division and President of the Court of Protection. Price: £120 (MHLA members); £180 (non-members). CPD: 6 hours. See MHLA website for further details and to book online.
  • Event: conference in Cork. The Centre for Criminal Justice and Human Rights at the University College Cork, and the Irish Mental Health Lawyers Association, are holding a Mental Health Law Conference on Saturday 25/4/15 from 10am to 2pm in Cork. Speakers and chairs include: Ms Kathleen Lynch, TD, Minister of State for Primary Care, Mental Health and Disability; Judge John O’Connor, District Court; Judge Anselm Eldergill, Court of Protection, England; Ms Joan Doran, Solicitor, Chairperson of IMHLA; Dr Maria Morgan, Psychiatrist; Dr Ciaran Craven, Senior Counsel; Dr Darius Whelan, School of Law, UCC. Cost: €80 (NGOs €30, full-time students free). For further details and booking information see University College Cork website. See Events

Website and CPD

  • Mental Health Law Online was 9 years old on 19/4/15! To celebrate this anniversary there are several new website features, including a Facebook page and a menu of icons which you can use to share pages across social media. See Main Page
  • New Mental Health Law Online Facebook page. MHLO now has a Facebook page - click "Like" on that page to follow it and have MHLO news items appear on your timeline. It's a "page" rather than a "group" so is not designed to replace the email discussion list, but it is possible to share each item with friends and add comments.
  • MHLO Annual Review 2014. Each year an Annual Review is published, which contains all news items, arranged thematically, which were added to Mental Health Law Online during that year. You can support the website by purchasing the Annual Review in paperback or in Kindle format. Additionally, the full text is available online without charge. See the Annual Review page to obtain the 2011-2014 editions.
  • CPD scheme. Obtain 12 SRA-accredited CPD points for £60 (also compatible with the SRA's new CPD regime). Suitable for non-lawyers as well. See CPD scheme for details.

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