April 2020 chronology
This page is automatically generated: it will only be complete at the end of the month. All monthly updates are available here: Archive of monthly updates.
See April 2020 update for a thematic summary of these changes.
- 30/04/20(1019): Case (Case removed). Re B [2020] MHLO 18 (FTT) —
- 29/04/20(2101): Edge Training courses converted to webinars. The following courses have been converted to webinars, and in most cases the dates have been changed: Event:Edge Training: Hoarding and the Law (webinar, 1/5/20 and 4/5/20); Event:Edge Training: BIA Legal Update - Annual Refresher (webinar, 5/5/20 and 7/5/20); Event:Edge Training: AMHP Legal Update (webinar, 11/5/20); Event:Edge Training: MHA and MCA Interaction (webinar, 12/5/20 and 14/5/20); Event:Edge Training: Liberty Protection Safeguards (webinar, 6/5/20 and 20/5/20); Event:Edge Training: BIA Report Writing (webinar, 15/5/20 and 22/5/20); Event:Edge Training: BIA Legal Update Annual Refresher (webinar, 27/5/20 and 29/5/20).
- 28/04/20(2234): RAB AMHP course rescheduled. The RAB AMHP course, originally scheduled for 1-3 Jun 2020 in London, will now be held by Edge Training as a webinar for a reduced price on new dates. See Event:Edge Training: AMHP Refresher and Re-approval course (webinar, 21/5/20, 22/5/20 and 26/5/20).
- 28/04/20(1913): Case (Access to records of deceased patient). Re AB [2020] EWHC 691 (Fam) — The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative.
- 26/04/20(1953): Remote hearing guidance for users. HMCTS, 'How to join telephone and video hearings during coronavirus (COVID-19) outbreak' (8/4/20) —"Use this guide if you’ve been asked to join a hearing by telephone or video using BT MeetMe, Skype for Business or Cloud Video Platform (CVP) during the coronavirus outbreak."
- 26/04/20(0844): Case (Residence and care capacity). London Borough of Tower Hamlets v A [2020] EWCOP 21 — (1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment").
- 24/04/20(2024): Further coronavirus guidance. Senior President of Tribunals, 'Judges' and Members' Administrative Instruction No 4' (14/4/20) —This guidance refers to: (1) the Mental Health Tribunal, 'Help for users' (15/4/20) document; (2) the rule changes in Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 (paper hearings, s2 timeframes, and public/private hearings); (3) plans for further or intermittent lockdown, the relaxation of lockdown restrictions, and both the return of existing business and new business; (4) paper case files; (5) some other matters irrelevant to mental health.
- 24/04/20(2006): Public/private hearings and access to recordings. Pilot Practice Direction: Video/Audio Hearings in the First-Tier Tribunal and the Upper Tribunal (2/4/20) —(1) This PD, which applied to the FTT and UT, stated that (paraphrased): (a) where it is not practicable to broadcast a remote hearing in a court or tribunal building, the tribunal may direct that the hearing will take place in private; (b) where a media representative is able to access proceedings remotely then the hearing is a public hearing; (c) any such private hearing must be recorded if practicable, and the tribunal may consent to any person accessing that recording. (2) This PD had no impact on normal MHT hearings (which are private by default anyway). Also, following the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 amendments (which were inserted into the part of the rules which do not apply to mental health cases) there is no need to refer to this PD: see Senior President of Tribunals, 'Judges' and Members' Administrative Instruction No 4' (14/4/20).
- 24/04/20(1958): Former STJs treated as current. Pilot Practice Direction: The use of former Salaried Judges (26/3/20) —Former Salaried Tribunal Judges are to be interpreted as falling within the definition of salaried judges for the purposes of the coronavirus "Contingency Arrangements" pilot PD.
- 23/04/20(2128): Case (Audio recording of neuropsychological testing). MacDonald v Burton [2020] EWHC 906 (QB) — (1) The defendant was allowed to carry its neuropsychological examination of the claimant without being subjected to any kind of recording of that examination: a level playing field could not be achieved where the claimant had not recorded the examination and testing by his own expert but where the examination testing by the defendant's expert was so recorded. (2) The judge discussed the question of any privilege which may exist in any recordings that are made. (3) The judge hoped that the forthcoming British Psychological Association guidance would recognise the competing interests and would not merely state that psychological examinations and testing should never be recorded.
- 19/04/20(2314): Legislation. Coronavirus Act 2020 (Commencement No 1) (Wales) Regulations 2020 — This brings into force: (1) paragraphs 11, 12 and 13 of schedule 8, removing the need for three panel members and making other changes to MHRT for Wales procedure, on 27/3/20; (2) some of schedule 12, removing and modifying certain duties under the Social Services and Well-being (Wales) Act 2014, on 1/4/20.
- 19/04/20(2307): Welsh guidance hospital managers' discharge power. Welsh Government, 'Coronavirus: guidance for Local Health Boards and Independent Hospitals in Wales exercising Hospital Managers' discharge powers under the Mental Health Act 1983' (14/4/20) —"This guidance is provided to assist Local Health Boards (LHB's) and Independent Hospitals in Wales exercising Hospital Managers’ discharge powers under the Mental Health Act 1983 (the Act) during this exceptional period."
- 19/04/20(2244): Legislation. Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 — Rule 2 amends the MHT's rules: (1) new power in new rule 5A to dispose of proceedings without hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so. (2) section 2 hearings to start within 10 days rather than 7 days, with an explicit power to ignore this deadline if the tribunal considers it "not reasonably practicable". In force 10/4/20. These rules expired on the same day as section 55(b) of the Coronavirus Act 2020 (public participation in proceedings conducted by video or audio), which was 25/9/22. (3) A further change, relating to public/private hearings, is inserted into the part of the HESC rules which do not apply to mental health cases.
- 16/04/20(1647): Support for adult social care providers. CQC, 'CQC sets out next steps to support adult social care during the COVID-19 pandemic' (15/4/20) —This document deals with (1) Personal Protective Equipment; (2) coronavirus testing procedures for staff; (3) statistics (from this week, death notifications collected from providers will include whether the person had suspected or confirmed COVID-19); (4) information gathering (data on coronavirus pressures from services providing care in people's own homes will now be collected).
- 16/04/20(1639): MHT guidance for patients. Mental Health Tribunal, 'Help for users' (15/4/20) —This guidance explains that hearings will be heard via telephone/video, by a tribunal judge alone ("because we have less support because of the coronavirus"), there will be no medical examination (because "people cannot meet together"), and community hearings will not take place ("because of the difficulties we have in organising hearings here everyone can participate" - unless the patient or representative explains "why your case must go ahead"). Superseded by Mental Health Tribunal, 'Help for Users' (updated, 28/7/20).
- 15/04/20(2134): Coronavirus advice for patients, carers and others. Mind, 'Coronavirus and your rights' (April 2020) —This web page contains links to further Mind resources on: (1) Coronavirus and social care rights; (2) Coronavirus and sectioning; and (3) Coronavirus and your mental health.
- 14/04/20(1937): Case (Direction for all-female panel). Re A (same-sex panel) [2020] MHLO 14 (FTT) — In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut.
- 14/04/20(1440): Case (All-male and all-female panels). CB v SSWP [2020] UKUT 15 (AAC) — (1) It was unlawful of the tribunal to hear the ESA appeal in the applicant's absence; the decision was set aside and the case remitted to a new panel. (2) The judgment contains obiter comments about the request for an all-female panel.
- 14/04/20(1412): Event. Event:Thalamos: Digital MHA Forms - Using Thalamos during Covid-19 (Webinar, 21/4/20) —"By removing the need for paper MHA forms, the team believe Thalamos can support clinicians to maintain a degree of distancing through this period by completing forms digitally. This session is aimed specifically at AMHPs and MHA Administrators." Time: 1100-1200. Speaker: Arden Tomison. Cost: free. See Ticket Tailor website for further details and booking information.
- 12/04/20(2127): Case (Change in status - s3 to guardianship). AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC) — When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction.
- 07/04/20(2218): Hearing postponement for certain community patients. Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20) —(1) The hearings of certain community patients will be postponed, unless they have already been listed for paper review. (2) It applies to patients “over 18” (this is meant to mean 18 or over) presumably at the time of the application or reference. (3) The following will be postponed: (a) applications by CTO patients (s66(1)); (b) applications by conditionally-discharged (C/D) patients (s75(2)); (c) periodic mandatory references in the cases of CTO patients (s68(2) and s68(6)). (4) The following will not be postponed: (a) discretionary references for CTO patients (s67(1)); (b) discretionary references for C/D patients (s71(1)); (c) revocation references for CTO patients (s68(7)); (d) recall references for C/D patients (s75(1)). (5) The order purports to postpone periodic mandatory references for C/D patients (s71(2)) but these references are only made for a "restricted patient detained in a hospital". (6) The hearings will take place on the first convenient date after revocation of the Pilot Practice Direction, or earlier if the tribunal orders (the parties are to agree a new listing window after revocation and apply for a new date). (7) All parties are at liberty to apply to vary the order and directions in exceptional cases. (8) The reason given for the order is that (a) it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing"; (b) cases where the patient is deprived of his liberty are being prioritised for listing; (c) postponement is proportionate to the "extreme demands being placed on health, social care and justice services by the pandemic"; (d) the case will be relisted as soon as practicable "having regard to any temporary regulations or other priorities that may prevail during the coronavirus emergency".
- 07/04/20(2213): Automatic disclosure of medical records. Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20) —Owing to the fact that representatives cannot arrange for patients to sign consent forms, this direction requires the responsible authority: (1) to allow immediate access to the patient's medical and nursing notes upon receipt of the CNL1 form containing the representative's name; (2) to email without delay any notes specified by the representative; and (3) to highlight any information in the notes not to be disclosed to the patient (the representative must not disclose this information without further order of the tribunal). The relevant Practice Direction was not extended beyond 18/9/21. Superseded by: Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives' (27/9/21).
- 06/04/20(1303): MHT video hearings. Mental Health Tribunal, 'Video Conference Hearings' (6/4/20) —From 13/4/20 all cases will be listed as video hearings using the Cloud Video Platform (CVP), instead of telephone hearings. Telephone hearings had taken longer and made communication more difficult, and it is hoped that video hearings will be an improvement.
- 03/04/20(2044): MHT coronavirus update. Mental Health Tribunal, 'Message from the Deputy Chamber President' (2/4/20) —This message includes the following information: (1) the tribunal is prioritising urgent hearings; (2) the administration should only be contacted if necessary; (3) the tribunal cannot currently make directions for reports.
- 03/04/20(2022): Event. Event:Bond Solon: Acting lawfully and ethically under Coronavirus Act 2020 (webinar, 6/4/20) —This intensive short course focussing on the practical application of the Act was created in order to assist practitioners to make decisions lawfully and ethically and to feel more confident in their decision-making. Time: 1400 hrs. Cost: £45 plus VAT. See Bond Solon website for further details and booking information.
- 02/04/20(2035): Care Act "easements". DHSC, 'Care Act easements: guidance for local authorities' (1/4/20) —"This guidance sets out how Local Authorities can use the new Care Act easements, created under the Coronavirus Act 2020, to ensure the best possible care for people in our society during this exceptional period." The first sentences of the changes (which are each followed by "however"-type sentences) are: (1) Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. (2) Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. (3) Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. (4) The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs.
- 02/04/20(1948): Parole Board guidance. Parole Board, 'Further guidance to members' (1/4/20) —(1) A panel can now make these decisions at MCA (Member Case Assessment): (a) to release or recommend transfer to open conditions in appropriate cases on the papers; (b) to refuse release or decline transfer to open conditions in appropriate cases on the papers; (c) to direct a case to an oral hearing. (2) Members have the option to expand the panel if they wish. (3) The guidance includes factors to consider when deciding whether an oral hearing is needed.
- 02/04/20(1538): Annual CQC report on MHA. CQC, 'Monitoring the Mental Health Act in 2018/19' (6/2/20) —The Foreword to the report states that the CQC found: "(1) Services must apply human rights principles and frameworks. Their impact on people should be continuously reviewed to make sure people are protected and respected. (2) People must be supported to give their views and offer their expertise when decisions are being made about their care. (3) People who are in long-term segregation can experience more restrictions than necessary. They also may experience delays in receiving independent reviews. This is particularly true for people with a learning disability and autistic people. (4) People do not always get the care and treatment they need. Some services struggle to offer appropriate options, both in the community and in hospital. (5) It is difficult for patients, families, professionals and carers to navigate the complex laws around mental health and mental capacity."
- 02/04/20(1523): Case (Inherent jurisdiction and DOL). Hertfordshire CC v K [2020] EWHC 139 (Fam) — "In this matter, the question before the court is whether it should grant a deprivation of liberty order (hereafter a DOL order) under the inherent jurisdiction of the High Court in respect of AK, born in 2003 and now aged 16."
- 02/04/20(1504): Case (Secure accommodation and inherent jurisdiction). A City Council v LS [2019] EWHC 1384 (Fam) — "Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is 'no'."
- 02/04/20(1441): Case (Withholding life-sustaining treatment from baby). Rotherham Metropolitan Borough Council v ZZ [2020] EWHC 185 (Fam) — "It is impossible not to feel that X's life is one of nothing but suffering. As is set out in the cases above, life itself is precious and there is a very strong presumption in favour of preserving life. But X's life is a truly tragic one and certainly reaches a threshold of intolerability. ... His life expectancy is probably no more than a year on the basis of the literature. ... For all these reasons I am clear that it is not in X's best interests that he should be resuscitated or that he should be given life sustaining treatment."
- 02/04/20(1357): Case (Complaint not upheld by LGSCO). Bassetlaw CCG (19 006 727a) and Nottinghamshire Healthcare NHS Foundation Trust (19 006 727b) [2019] MHLO 67 (LGSCO) — LGSCO summary: "The Ombudsmen found no fault by the Council, Trust or CCG with regards to the care and support they provided to a woman with mental health problems. The Ombudsmen did find fault with a risk assessment the Trust completed. However, we are satisfied this did not have a significant impact on the care the Trust provided."
- 02/04/20(1342): Case (Carer's assessment failures). Greater Manchester Mental Health NHS Foundation Trust (18 018 548a) [2019] MHLO 66 (LGSCO) — LGSCO summary: "The Ombudsmen have upheld Mrs G’s complaint about the way her carer’s assessments were carried out. We have not found fault with the way the Trust, Council and CCG arranged Mr H’s accommodation under s117 of the Mental Health Act or how the Trust communicated with Mrs G and Mr H about this."
- 02/04/20(1316): Case (Overlap between different decisions, sex). B v A Local Authority [2019] EWCA Civ 913 — (1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations.
- 02/04/20(1249): Coronavirus mental health law changes. Hannah Taylor, 'Coronavirus Act 2020 - Changes for Mental Health' (Bevan Brittan, 1/4/20) —This web page sets out the proposed changes to the MHA in table format. It then gives some information under the following headings: (1) What about potentially infectious persons in the mental health context? (2) Patients who refuse to self-isolate; (3) How should public authorities be preparing for the changes? (a) Communication; (b) Environmental preparation; (c) Informing staff; (d) Training and guidance; (e) Alternative arrangements; (f) Statutory forms.
- 02/04/20(0708): MHT telephone hearing guidance. Mental Health Tribunal, 'First-tier Tribunal (Mental Health) update' (2/4/20) —Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient's number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call.
- 01/04/20(2105): Case (Lawfulness and availability of treatment). PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC) — The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot.
- 01/04/20(2043): MHT update including listing. Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20) —(1) All hearings have been postponed for certain community patients (CTO and conditional discharge), unless they have already been listed for paper review, until the revocation of the coronavirus pilot PD, or earlier if the tribunal directs. (The original summary here wrongly said "all community patients" - apologies.) (2) Section 2, conditional discharge recall, and CAMHS cases are the priority for listing; other cases were not being listed, but s3 and restricted cases should now begin to be listed. (3) Representatives are requested not to call the tribunal unless absolutely necessary, and to seek directions for late reports.
- 01/04/20(1938): LAA coronavirus guidance update. The 27/3/20 update to this guidance states (in relation to situations where a client's signature cannot be obtained): "For avoidance of doubt, supervisor signatures may also be provided digitally to enable effective remote supervision, as long as they are clearly related to the relevant file notes." See Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20)
- 01/04/20(1405): Summary of capacity assessment briefing note. Alex Ruck Keene, 'Going beyond the Mental Capacity Act in assessing capacity: recognising and overcoming biases and stereotypes' (The Mental Elf, 26/3/20) —This blog post summarises Sophie Stammers and Lisa Bortolotti, 'Mitigating the risk of assumptions and biases in assessments of mental capacity' (University of Birmingham, 23/3/20).
- 01/04/20(1401): Academic briefing note about assessment of mental capacity. Sophie Stammers and Lisa Bortolotti, 'Mitigating the risk of assumptions and biases in assessments of mental capacity' (University of Birmingham, 23/3/20) —"Mental health and social care professionals routinely assess the capacity of people to make decisions about their lives, in accordance with the Mental Capacity Act 2005 (MCA). The briefing note outlines how the functional approach to testing capacity in the MCA underdetermines decisions, describing the risks for stereotypes and assumptions to affect outcomes. It advocates for the need for specific training for professionals using the MCA to enable them to recognise the role of value judgements in capacity decisions, to mitigate the effects of stereotyping and assumptions, and to improve decision making."
- 01/04/20(1353): Coronavirus public health restrictions. Alex Ruck Keene, 'Public health restrictions and capacity' (Mental Capacity Law and Policy, 29/3/20) —This blog post discusses the public health powers within the Coronavirus Act 2020. The material relating to the initial coronavirus restrictions (which were substantially amended) has been moved to a separate article.
- 01/04/20(1347): Social distancing and mental capacity. Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 31/3/20) —"The Court of Protection team have been asked to advise on a number of occasions since 17 March 2020 as to the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19. Clearly the consequences of P going into the community, as she ordinarily would, are (a) that she is at risk of contracting COVID-19, (b) that she may infect others, if she has the virus, and (c) that she may be in breach of the new police powers which have come into effect." Superseded by Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 6/10/20).
- 01/04/20(1311): Detailed COP remote hearing protocol. Court of Protection, 'Remote access to the Court of Protection guidance' (Mr Justice Hayden, 31/3/20) —This 20-page document confirms that no COP hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing. It includes a template case management order, and sets out sets out operational protocols governing remote hearings under the following headings: (1) General; (2) Legislative framework; (3) Judicial access to audio/visual conferencing platforms; (4) video/visual Conferencing: (a) Cloud Video Platform MoJ/HMCTS; (b) Skype for Business; (c) Microsoft Teams; (d) Zoom; (e) FaceTime; (f) Lifesize; (5) Audio/Telephone; (6) Security; (7) Transparency; (8) Transcription/recording of the hearing; (9) GDPR; (10) Attendance of P at the remote hearing; (11) Litigants in Person; (12) Witness Evidence; (13) Electronic Bundles; (14) Use of Interpreters and Intermediaries; (15) Orders and Service; (16) Legal aid funding.
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