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February 2020 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 2011 categorised cases


Cases

  • Case (Dental treatment - delay). Cardiff and Vale University Health Board v P [2020] EWCOP 8 — "It might seem, from the above account, that some dental assessment was required quickly and now as long ago as November or early December 2019. Plainly, it was. But the application was only made by the Health Board on 20th February 2020. The proposed inspection and/or treatment is not to take place until early March. For anybody who has had toothache, even delay between now and then looks like an eternity. But this young man, it seems, has been suffering, and significantly so, for nearly five months. This is little short of an outrage. It is indefensible. ... An additional complication arose in November when P was taken to the local A&E by his parents with an obvious bruise to his forehead. They believed that his behaviour was so markedly changed that they feared he had some sort of concussion and may have fractured his skull. It is, to my mind, self-evident that there was an urgent medical emergency that should have been investigated within hours or days, but in fact there has, as yet, been no CT scan at all. ... It is, sadly, yet again, a situation in which there has been a fundamental failure to communicate effectively by those responsible for P's care. This message has now been the conclusion of so many reviews, including serious case reviews, that it has become almost trite. There is no point identifying lessons to be learned if they are not, in fact, learned."
  • Case (Abortion). Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215 — "The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes. ... [I]n my judgement, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy."
  • Case (Abortion). An NHS Foundation Trust v AB [2019] EWCOP 26 — "This is an application by the NHS Trust for an order in respect of a 24 year old woman AB who is 22 weeks pregnant and, who the Trust say lacks capacity and in whose best interests it is said to have a termination of pregnancy. ... I would like to record my unhappiness about the lateness of this application. AB is now estimated to be 22 weeks pregnant and therefore the cut-off date under the Abortion Act 1967 of 24 weeks is imminent. ... I am acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 rights. ... In my view the balance in terms of AB's best interests lies in her having the termination."
  • Case (Vulnerable witnesses). Re C (Female Genital Mutilation and Forced Marriage: Fact Finding) [2019] EWHC 3449 (Fam) — Paragraphs 14-18 deal with "Assessing the Evidence of Vulnerable Witnesses", including the following: "Despite my very considerable sympathy for witnesses with significant vulnerabilities such as the mother in this case, my clear view is that there is one standard of proof which applies without modification irrespective of the characteristics of witnesses, including vulnerable witnesses to whom Part 3A and PD3AA apply. I observe that many vulnerable witnesses are just as likely as anyone else either to tell the truth or to lie deliberately or misunderstand events. It would be unfair and discriminatory to discount a witness's evidence because of their inherent vulnerabilities (including mental and cognitive disabilities) and it would be equally wrong in principle not to apply a rigorous analysis to a witness's evidence merely because they suffer from mental, cognitive or emotional difficulties. To do otherwise would, in effect, attenuate the standard of proof when applied to witnesses of fact with such vulnerabilities. ... Having said that, I offer the following observations, none of them particularly novel, which might assist in assessing the evidence of vulnerable witnesses, particularly those with learning disabilities. First, it is simplistic to conclude that the evidence of such a witness is inherently unreliable. Second, it is probably unfair to expect the same degree of verbal fluency and articulacy which one might expect in a witness without those problems. Third, it is important not to evaluate the evidence of such a witness on the basis of intuition which may or may not be unconsciously biased. Finally, it is important to take into account and make appropriate allowances for that witness's disability or vulnerability, assisted by any expert or other evidence available."
  • Case (FMPOs and capacity). Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 — (1) The Family Court the court has jurisdiction to make a Forced Marriage Protection Order to protect an adult who does not lack mental capacity (and the statistics demonstrate that the courts regularly make FMPOs to protect capacitous adults). (2) An open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely.
  • Case (Appointeeship, independent appeals, litigation friends). RH v SSWP [2018] UKUT 48 (AAC) — AACR headnote: "Appointment to act - whether claimant with appointee precluded from bringing an appeal independently - whether First-tier Tribunal having power to appoint a litigation friend"
  • Case (DOL and common law). R (Jalloh) v SSHD [2020] UKSC 4 — "The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights. A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR."
  • Case (Reconsideration of Parole Board decision). Joseph, Application for Reconsideration by [2019] PBRA 43 — Unsuccessful application by prisoner with mental health background for reconsideration on basis of irrationality and procedural unfairness of Parole Board oral hearing panel's decision not to direct release on licence.
  • Case (ECHR and subordinate legislation). RR v SSWP [2019] UKSC 52 — (1) There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act 1998. (2) On the facts of this case, the public authority should disobey Regulation B13 of the Housing Benefit Regulations 2006 and retrospectively apply the Supreme Court's decision in R (Carmichael) v SSWP [2016] UKSC 58B that the "bedroom tax" was an unjustified discrimination on the ground of disability where there was a transparent medical need for an additional bedroom.
  • Case (Reviewing appointment of legal representative). SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC) — The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so.

Resources

  • Case law update. Jonathan Wilson, 'Mental health: update' (Legal Action, April 2016) — Jonathan Wilson looks at decisions on how tribunals should approach unlawfulness, conditional discharge and deprivation of liberty, representatives, withdrawal of tribunal applications, appropriate treatment, guardianship, assessment of risk, and social circumstances reports.
  • Case law update. Jonathan Wilson, 'Mental health: update' (Legal Action, February 2017) — Jonathan Wilson considers cases concerning the legal status of hospital managers’ hearing decisions, anonymity for mental health patients, the provision of reasons for recall to hospital, and the relevance of the European Convention on Human Rights to mental health tribunal decisions.

Events

  • Event. Event:MHLA: Restricted Cases (Leeds, 10/5/23) — Learning Objectives: (1) Restricted sections and provenance; (2) Duration of restricted sections; (3) Powers of MHT; (4) Managing a restricted case - key things to consider for the MH lawyer; (5) MAPPA. Cost: £150 (members); £195 (non-members). Cost: £150 (members); £195 (non-members). See MHLA website for further details and booking information.
  • Event. Event:MHLA: Foundation course (Manchester, 2020, new date TBC) — Postponed from 1/4/20 (new date TBC) owing to the coronavirus pandemic. "This course is aimed at new practitioners and those intending to attend the Panel course in the near future. Attendance at the Foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day Panel course, which is a pre-requisite for application to The Law Society’s mental health panel." Cost: £150 (members); £195 (non-members). See MHLA website for further details and booking information.
  • Event. Event:MHLA: Legal Aid Supervision (Birmingham, 2020, new date TBC) — Postponed from 24/4/20 (new date TBC) owing to the coronavirus pandemic. "This highly acclaimed course takes delegates through the Legal Aid Agency supervisor standards and procedures. Our expert trainers will provide guidance and advice on how to supervise effectively and in line with your contractual obligations. Whether you are an experienced supervisor looking to refresh and enhance your skills to inform effective supervision, or thinking about applying for supervisor status, this course will provide you with the opportunity to develop your skills and technique." Cost: £150 (members); £195 (non-members). See MHLA website for further details and booking information.
  • Event. Event:MHLA: Panel Course (online, 6-8 Jul 2020) — Postponed from 16-17 Apr 2020 (Leeds) and 27-28 Apr 2020 (London) owing to the coronavirus pandemic. The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s accreditation scheme (formerly called the ‘panel’). Cost: £300 (members); £390 (non-members); £270 (group discount). See MHLA website for further details and booking information.
  • Event. Event:MHLA: Introduction to the Court of Protection (London, 6/5/20) — "An intensive, interactive introduction to practice in the Court of Protection. 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." Cost: £150 (members); £195 (non-members). See MHLA website for further details and booking information.
  • Event. Event:MHLA: Advocacy, Risk and Cross-Examination Masterclass (London, 18/5/20) — "It is acknowledged that the key point of any case before the tribunal is often ‘risk’. This one-day course is designed to enhance advocacy and case preparation skills. The focus is on preparing for advocacy, with advice on cross-examination of the medical witnesses and taking evidence-in-chief from the client, along with formulation and delivery of effective submissions." Cost: £150 (members); £195 (non-members). See MHLA website for further details and booking information.
  • Event. Event:MHLA: Restricted Cases (London, 4/6/20) — Learning Objectives: (1) Restricted sections and provenance; (2) Duration of restricted sections; (3) Powers of MHT; (4) Managing a restricted case - key things to consider for the MH lawyer; (5) MAPPA. Cost: £150 (members); £195 (non-members). See MHLA website for further details and booking information.
  • Event. Event:PELT: Introduction to the Mental Health Act (online, 16/9/20) — This course will now be held online. "The basic course is for all those who need an understanding of the MHA and Code and how it works in practice. It is aimed at all those whose work involves working with those detained, or who may be detained, under the MHA." Trainer: Peter Edwards. Price: £125 plus VAT. See PELT website for further information and booking details. (Original dates 2/4/20 and 8/6/20.)
  • Event. Event:PELT: Accredited - Admission to the MHT Panel (online, 28/9/20 and 29/9/20) — This course will now be held online. "This course is designed for those who want to be accredited tribunal representatives. The course will also be of benefit for all those who want a more detailed understanding of tribunals. Day 2 will very useful for lawyers who are going through the reaccreditation." Trainer: Peter Edwards. Times: 9am to 4.30pm. Cost: £175 plus VAT per day (£210); £350 plus VAT (£420) for both days. See PELT website for further information and booking details. (Original dates 7-8 April 2020 and 15-16 June 2020.)
  • Event. Event:PELT: Introduction to MCA and Deprivation of Liberty Safeguards (online, 18/9/20) — This course will now be held online. "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. Realising that depriving a person of their liberty removes the legal protection given to decision makers unless the deprivation is ‘prescribed by law’ catches many people out." Trainer: Peter Edwards.Times: 10am to 3.30pm. Price: £125 plus VAT. See PELT website for further information and booking details. (Previous dates 30/4/20 and 5/6/20.)
  • Event. Event:PELT: Mental Health Act Masterclass - Legal Update (online, 14/10/20) — This course will now be held online. "This course will allow practitioners to reflect on and update their practice by ensuring they have an up to date understanding of the law. The contents of the course will be up to date and reflect any changes or significant developments which affect lawful practice. To include relationship between MHA and LPS." Trainer: Peter Edwards. Times: 10am to 3.30pm. Price: £125 plus VAT. See PELT website for further information and booking details. (Original date 4/6/20.)
  • Event. Event:PELT: Introduction to using Court of Protection including s21A Appeals (online, 2/12/20) — This course will now be held online. "The Court of Protection has a very wide ambit potential touching the lives of many vulnerable people. It is now the place where deprivation of liberty safeguards and procedures are authorised or challenged and where arguments about capacity or adult protection and best interests are resolved. It is essential that all those working with vulnerable people/safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court." Trainer: Peter Edwards. Times: 10am to 3.30pm. Price: £125 plus VAT. See PELT website for further information and booking details. (Original dates 9/6/20 then 27/10/20.)
  • Event. Event:PELT: Court of Protection/MCA Masterclass - Legal Update (online, 16/10/20) — This course will now be held online. "Reviews recent developments in Court of Protection cases. It will include the latest CoP cases on deprivation of liberty, capacity, health and welfare, legal aid and treatment and what practitioners can learn from these cases that will promote effective and lawful practice. The developing role of ALRs and how can they be utilised and what will be the implications for litigation friends and IMCAs." Trainer: Peter Edwards. Times: 10am to 3.30pm. Price: £125 plus VAT. See PELT website for further information and booking details. (Original date 2/7/20.)

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