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April 2021 update

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.

Website

  • Magic Book. The Magic Book is a database of contact details. The main idea is to add the hospitals and other places you visit (not just your own place of work). To create/edit contacts, there is no need to log in and the process is very quick and simple. See Magic Book
  • Mental Health Law Online CPD scheme: 12 points for £60. Obtain 12 CPD points online by answering monthly questionnaires. The scheme is an ideal way to obtain your necessary hours, or to evidence your continued competence. It also helps to support the continued development of this website, and your subscriptions (and re-subscriptions) are appreciated. For full details and to subscribe, see CPD scheme.
  • Cases. By the end of this month, Mental Health Law Online contained 2138 categorised cases


Cases

  • Case (Gaps in service). Re Sean Kay (PFD report sent to NHS Norfolk and Waveney CCG) [2021] MHLO 4 — The coroner's concern was that a gap in service provision meant Sean fell between services and did not receive appropriate care. He had been referred by his GP to mental health services. The Early Intervention in Psychosis Team (EIPT) assessed him as not meeting their criteria for first episode of psychosis but as being in the 'at risk mental state' (ARMS) cohort of patients, which meant that his level of risk was now too high for continued work with the Wellbeing Services. He also did not meet the criteria for the Community Mental Health Team, the Crisis Team, or the charity Mind. An Interface Team Meeting did not take place because of an administrative error so at the time of his suicide six days later he was waiting to hear whether and from whom he would receive support. In neighbouring Suffolk (and many other areas) ARMS patients would have met the EIPT criteria.
  • Case (Discharge to care home). Re Alan Massam (PFD report sent to SSHSC, Greater Manchester Health and Social Care Partnership and CQC) [2021] MHLO 3 — The coroner's concerns included: (1) there was no clear agreement or arrangement between agencies as to how effectively to share information in complex cases such as this; (2) there was no national guidance/protocol about what an acute trust should do if attempts to contact a home are unsuccessful or about the obligation to ensure the home can accept the patient back (the care home had not answered the phone but, owing to his needs, would not have accepted him if asked; no observations were made before discharge and no discharge notice was sent with him); (3) there was no defined escalation process in the care home to ensure that the risk presented by his refusal of medication and fluids was recognised and acted upon; (4) there was a national shortage of suitable beds within the adult care sector for complex cases so, after the care home served notice on the family, he remained in a home where staff felt they could no longer safely meet his care needs during the search for a replacement.
  • Case (Prostitution). A Local Authority v C [2021] EWCOP 26 — The Court of Protection, having noted that there was room for argument that there were now two contradictory COP judgments on s39 Sexual Offences Act 2003 (Care workers: causing or inciting sexual activity), granted permission to appeal under Civil Procedure Rules, rule 52.6(1)(b) (some other compelling reason for the appeal to be heard) because of the the tension between general policy considerations in relation to prostitution and the court's interpretation of s39.
  • Case (Prostitution). A Local Authority v C [2021] EWCOP 25 — C had capacity to engage in sexual relations and to decide whether to have contact with a prostitute, but lacked capacity in relation to conducting proceedings, residence, care and treatment, internet and social media, and financial affairs. The Court of Protection decided that a care plan to facilitate C's contact with a prostitute could be implemented without committing an offence under s39 Sexual Offences Act 2003 (Care workers: causing or inciting sexual activity).
  • Case (PFD report). Re Susan Adams (PFD report sent to St George's Hospital, Stafford) [2021] MHLO 2 — The matter of concern was: Susan needed regular psychiatric assistance from secondary mental health services but there were significant difficulties because, living in Staffordshire but 50 feet from the border with Warwickshire, her home address and GP practice were in different counties; she could access the crisis team in Staffordshire but long-term treatment was supposedly to be provided in Warwickshire. The coroner wondered what could be done to facilitate arrangements in these circumstances.
  • Case (PFD report). Re Mary Gwanyama (PFD report sent to Surrey and Borders Partnership) [2021] MHLO 1 — The matters of concern in this Preventing Future Deaths report included: (1) there was no policy to prevent a vulnerable patient being discharged into homelessness from the Abraham Cowley Unit (Mary had been discharged without a discharge planning meeting and with no housing plan beyond 7 days in a Travel Lodge); (2) there was no policy mandating when or if a patient should be subject to face-to-face review by a consultant psychiatrist after discharge (Mary was not subject to a medical review between discharge on 28/3/18 and suicide on 26/5/18); (3) no formal risk assessment was undertaken, and no risk assessment was recorded; (4) informal risk assessments arrived at an incorrect assessment of risk having ignored the impact of discharge with an inchoate housing plan; (5) in part because the imperative to discharge took precedence over discharge planning and assessment, Mary was discharged prematurely with severe depression before sufficient time had been taken to observe the effectiveness of her prescribed medication, in breach of the CPA; (6) Mary was discharged on ineffective medication, without any coherent care plan, without her care coordinator being involved, in breach of the CPA; (7) there was no policy governing how often a patient should be seen in the community to review the risk assessment and monitor medication compliance (Mary was placed out of area which made community treatment and support difficult, and was not seen by her care co-ordinator in the 35 days before she died).
  • Case (Discharge of party). AA v London Borough of Southwark [2021] EWCA Civ 512 — Following concerns that if P's mother, AA, were to receive certain information then P would suffer serious harm, the Court of Protection discharged AA as a party without notice, without disclosure of any evidence, without any opportunity to make representations, and without giving any reasons for the decision. The Court of Appeal allowed her appeal, reinstating her as a party, but directed that no further evidence or information be served on her for 28 days to allow the respondents time to decide what course to follow. For part of the hearing AA was represented by a special advocate in a closed session, the first time the Civil Division of the Court of Appeal had adopted that procedure.
  • Case (Appeal against murder conviction). R v Hunnisett [2021] EWCA Crim 265 — The appellant wanted a murder conviction and 18-year-tariff life sentence quashed, and substituted with manslaughter on the ground of diminished responsibility and s45A hybrid order (the appropriate prison sentence was not discussed), on the basis of fresh evidence (a prosecution psychiatrist had changed her mind) but the Court of Appeal refused to admit this evidence.
  • Case (Norwegian probate case). Rokkan v Rokkan [2021] EWHC 481 (Ch) — This Chancery case discussed MCA 2005 sch 2 para 8. The preliminary issues decided were: (1) Whether the Defendants are subject to any obligation, enforceable in England and Wales, to distribute the estate of the Deceased pursuant to the principles of the Norwegian law of deferred probate; (2) Whether, on the assumption that the Deceased lacked capacity to manage her property and affairs at the relevant time, the transfers from the Den Norske Bank in Bergen to the Lloyds Bank in England caused the specific legacy at clause 5 of the Deceased's will, executed on 11 September 2012, to fail.
  • Case (Compulsory caesarean). X NHS Foundation Trust v Ms A [2021] EWCOP 17 — The court decided that Ms A lacked capacity to conduct proceedings or to make decisions regarding birth (she wanted a vaginal birth), obstetric care and post-operative management, and that it was in her best interests to be transferred to another hospital for an elective caesarean section, or to receive an emergency caesarean section if necessary before then, using force if necessary.
  • Case (Compulsory admission for caesarean). East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18 — At an out-of-hours hearing the Court of Protection declared that GH, having gone into labour at home and suffered an obstructed labour, by reason of her acute agoraphobia and anxiety lacked capacity to decide whether to agree to be admitted to hospital for obstetric treatment and a possible emergency caesarean section, and that it was in her best interests to be conveyed from her home to hospital for treatment by ambulance, forcibly if necessary. In the end she gave birth to a healthy baby boy at home before the court decision could be implemented.
  • Case (Coronavirus vaccination). NHS Tameside and Glossop CCG v CR [2021] EWCOP 19 — CR lacked capacity in relation to the coronavirus vaccination and it was not possible to determine his wishes and feelings. The Court of Protection decided it was in his best interests to have the vaccination, based on the orthodox view of its benefits, and rejecting family members' objections. The relief sought by the CCG was granted, although physical intervention was not authorised.
  • Case (Section 37/41 or s45A). R v Lall [2021] EWCA Crim 404 — The Attorney General unsuccessfully sought leave to refer the s37/41 sentence to the Court of Appeal as being unduly lenient, arguing that the correct order should have been life imprisonment with a s45A direction.
  • Case (Travel, contact, internet). London Borough of Greenwich v EOA [2021] EWCOP 20 — Decisions were made on EOA's capacity to make decisions in relation to:(a) foreign travel; (b) contact with his family and others; (c) social media and internet usage.
  • Case (Best interests and care). Re AB: X Council v BB [2021] EWCOP 21 — "The issue that I have to decide is what is in AB's best interests regarding the care that she should receive because there is no dispute about where she should live or the contact that she should have with others. At the moment she is living in a care home (F House), having moved there in March 2020 when she was granted bail in the criminal proceedings. The arrangements for her accommodation have previously been found by me to amount to a deprivation of liberty and no party disputes this. At the last hearing I noted that the agreed aim was for AB to return home (9CC) and a recital on the Court order reflects this (D171). The detailed dispute that I need to determine about AB's care is which of two proposals designed to support her returning home should be pursued in her best interests."
  • Case (Parental consent for puberty blockers). AB v CD [2021] EWHC 741 (Fam) — The two issues in this case (an application by XY's mother that she and the father have the ability in law to consent on behalf of XY to the administration of hormone treatment to suppress puberty) were: (1) Do the parents retain the legal ability to consent to the treatment? (2) Does the administration of puberty blockers fall into a "special category" of medical treatment by which either: (a) an application must be made to the Court before they can be prescribed? (b) as a matter of good practice an application should be made to the Court?
  • Case (Contempt for forgery). P v Griffith [2020] EWCOP 46 — DG forged a court order, seeking to obtain the disclosure of P's confidential medical records (which the court had repeatedly declined to order). She was sentenced to 12 months' imprisonment.
  • Case (Death following suicide attempt). Re Lilia: A London Trust v CD [2021] EWCOP 23 — Lilia was in a vegetative state following an unsuccessful suicide attempt on a psychiatric ward. The Trust's clinical treating team argued that continuing treatment was futile and could be unethical. Lilia's mother and sister agreed for treatment to end, but her father argued that she would want to live and that it was too early to end her life given the remote possibility of neurological change that could place her in a minimally conscious state minus. The judge concluded that it was not in Lilia's best interests to administer life-sustaining medical treatment.
  • Case (Discharge from long s17 leave). DB v Betsi Cadwaladr University Health Board [2021] UKUT 53 (AAC) — (1) For it to remain "appropriate for [a patient] to be liable to be detained in a hospital for medical treatment" a significant component of his treatment must be in hospital. Liability to detention is not a fallback when other options (e.g. CTO, conditional discharge, MCA) are unsuitable or unavailable: if the statutory conditions for (liability to) detention are not met, the tribunal must direct discharge. (2) The patient in this case had been on s17 leave for 11 months without any contact with any hospital. The tribunal should have analysed the components of his treatment, as broadly defined in s145, then decided the extent to which they were being delivered in hospital, but had failed to do so. (3) The case was remitted to the MHRT for Wales.

Resources

  • MCA/DOLS coronavirus guidance. DHSC, 'The MCA and DOLS during the coronavirus pandemic' (updated 27/4/21) — This document contains information under the following headings: (1) Summary of key points; (2) Use of the MCA and DoLS due to COVID-19; (3) Best interest decisions; (4) Delivering life-saving treatment: application of the Ferreira judgement; (5) Depriving a person of their liberty; (6) Hospitals and care homes; (7) Any other setting; (8) Supervisory bodies (local authorities in England, and local health boards and local authorities in Wales); (9) Emergency coronavirus health powers. The changes from the 12/1/21 version can be found under the headings "Summary of key points" and "Supervisory bodies (local authorities in England, and local health boards and local authorities in Wales)".
  • Mental Capacity Report note. Alex Ruck Keene et al, 'Mental Capacity Report - End of term update' (39 Essex Chambers, 1/4/21) — There is no April 2021 Mental Capacity Report, but this "end of term update" briefly lists nine key developments in relation to: (1) three COP decisions; (2) e-filing of DOL cases; (3) OPG rapid register search service; (4) supported living and care home guidance; (5) CQC DNACPR [Do not attempt cardiopulmonary resuscitation] report; (6) parental consent to puberty blockers; (7) removal of Care Act "easements"; (8) Worcestershire s117 guidance case; (9) EU settlement scheme.
  • Legal aid means testing. Legal Aid Agency, 'Lord Chancellor’s guidance on determining financial eligibility for Controlled Work and Family Mediation' (January 2021) — This guidance covers, in relation to mental health work: (a) Legal Help; and (b) Legal Representation, for proceedings in the MHT or MHRT for Wales. Main headings: (1) Introduction; (2) How is financial eligibility determined? (3) Does the client qualify financially? (4) General Principles of Determination; (5) Determining Gross Income; (6) Determining disposable income; (7) Determining Disposable Capital; (8) Intentional deprivation of resources; (9) Eligibility of children; (10) Errors and new information; (11) Changes in circumstances; (12) Evidence of Means.
  • Mental Health Tribunal coronavirus Practice Direction. Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21) — This extends Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) with amendments to 18/9/21. The non-trivial amendments are: (1) A new heading "Disposal of proceedings on the papers" stating "5. The tribunal shall observe the requirements of rule 5A and rule 35 in cases where an application is made for determination on the papers." (maybe this relates to the misuse of that rule by the MHT in uncontested reference cases); (2) New wording in relation to "Pre-hearing examinations: practicability": "7. For the duration of this Pilot Practice Direction: (a) A face-to-face pre-hearing examination may only take place if the Chamber President, the Deputy Chamber President or an authorised salaried judge directs that a face-to-face pre-hearing examination is practicable; (b) A remote pre-hearing examination may take place if any judge or tribunal directs that a remote pre-hearing examination is practicable. 8. When deciding whether conducting a pre-hearing examination is practicable under paragraph 7, judicial office holders should consider the overriding objective, any health and safety risks, any technological constraints, and the resources available to the Mental Health jurisdiction, as well as any other matters that they consider to be relevant." (3) A new heading "Pre-hearing examinations: section 2 cases": "9. Rule 34 requires that a pre-hearing examination must be carried out in section 2 cases, if practicable, unless the tribunal is satisfied that the patient does not want such an examination. 10. In a section 2 case, the patient (or their representative on their behalf) should be asked to indicate to the tribunal whether they want a pre-hearing examination. If the patient wants a pre-hearing examination, a decision should be made as to its practicability in accordance with paragraphs 7 and 8." Superseded by: Mental Health Tribunal, 'Advice to representatives on the listing of Mental Health Tribunal hearings after 18 September 2021 and the return of PHEs' (Sarah Johnston, 9/9/21).

News

  • Books page updated. Please support MHLO by buying your books via the affiliate links on the Books page - either from Amazon or from Bookshop.org (a new website which supports independent bookshops). If you click on any link and buy any book (even a novel!) then Amazon or Bookshop.org will give me a percentage (6% and 10% respectively). Please let me know if any good books are missing.

Events

  • Event. Event:PELT: Depriving Children and Young People of their liberty lawfully (online, 22/9/21) — "Supreme Court Re D (Parents authorising DoL?) Where do new LPS fit in? DoLs start at 18. MCA 16. MHA no minimum age for detention. How to lawfully deprive a C or YP of their liberty requires great care. What is a DoL and where does PR fit? The course looks at the complex inter relationship between the MCA, MHA and Children Act. When should a child or young person be sectioned? What alternatives are there? Where does s.25 Children Act fit in?" Speaker: Peter Edwards. Cost: 125 plus VAT. See Peter Edwards Law Training website for further details and booking information.
  • Event. Event:PELT: Introduction to MCA and DOLS (online, 29/9/21) — "Intensive introduction to all those who need a basic understanding of the MCA and DOLS. Identifying the ‘decision maker’ as the person responsible for the outcome of that particular decision is the key to lawful decision making on behalf of those who lack capacity." Speaker: Peter Edwards. Cost: 125 plus VAT. See Peter Edwards Law Training website for further details and booking information.

Jobs

Social media

Nothing to report this month.


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