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January 2015 update

Case law

  • Legal status of COP declarations. MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10 — (1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard. Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be 'defiance' of a 'declaration' nor can there be an 'enforcement' of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother's best interests. The course he took was not a 'second best' option but one entirely inimical to his mother's welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings." (3) Guidance: "Such guidance as I can give can only be limited: (i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section ..→§
  • LGO decision. Cambridgeshire County Council 13 016 935 [2015] MHLO 9 (LGO) — LGO's summary: "Complaint from a woman that the council moved her husband into a residential home against both his and her wishes. She says she was forced to accept this course of action and the council failed to properly consider her preference of care home. The Ombudsman upheld the complaint and found fault causing injustice. Recommendations: To remedy the injustice caused, we recommend the council (within three months of the date of our report): (1) apologise to the woman for the failures outlined in our report. This apology should accept responsibility for the faults, and acknowledge the impact these had on her. It should also include an assurance that the same faults will not happen again, and explain what steps have been taken to ensure this; (2) set a timetable for refresher training for social care staff on mental capacity assessments, best interests decisions, deprivation of liberty and the role of the Court of Protection and how to advise the public on their rights. This may involve the council reviewing the current status of residents who may be deprived of their liberty without proper authorisation; and (3) pay the woman £750 to recognise the distress caused by the failings identified and the time and trouble she has expended in making the complaint."§
  • Consent to medical treatment. Border v Lewisham and Greenwich NHS Trust [2015] EWCA Civ 8, [2015] MHLO 8 — "This is an appeal against an order ... which ... dismissed the claimant's claim for damages for clinical negligence. Permission to appeal was granted on a single ground, which relates to the issue of the claimant's consent to a particular medical procedure, namely the insertion of a cannula into her left arm for the purpose of intravenous access. ... A finding of absence of consent to the insertion of the cannula leads inexorably in this case to a finding of breach of duty in inserting it. The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it ... I would dispose of the appeal by (i) granting a declaration that Dr Prenter was in breach of his duty of care by inserting the cannula without the claimant's consent and (ii) remitting the matter to Judge Moloney to determine the outstanding issue of causation and, if liability is thereby established, to reach a final determination with regard to damages."§
  • Loss of capacity during retainer. Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18 — "This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement ('CFA'). The issue is whether the CFA terminated automatically by reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips J, sitting in the Queen's Bench Division with assessors, held in a clear and cogent judgment that the CFA was not frustrated ... At the conclusion of the hearing of the appeal we announced that the appeal would be dismissed for reasons to be given in writing at a later date. These are my reasons for dismissing it."
  • Loss of capacity during retainer. Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB) — "These costs appeals raise the question of whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor's retainer. The question is currently of particular importance for solicitors conducting personal injury claims pursuant to conditional fee agreements entered into before 1 April 2013, in respect of which success fees continue to recoverable from defendants ... If such an agreement is found to have terminated by reason of the supervening incapacity of the claimant ... it would not now be possible to replicate the effect of the original contractual arrangements between solicitor and client given that success fees are not generally recoverable in respect of agreement made on or after 1 April 2013 ... No matter how short the period of incapacity ... nor how quickly a deputy was appointed by the Court of Protection in respect of the claimant, the original CFA would be lost and could not, in real terms, be replaced. ... For the reasons set out below, I have reached the ... conclusion ... that the intervening incapacity of a party does not frustrate or otherwise terminate a solicitor's retainer. Whilst such incapacity does have the effect of removing the authority of the solicitor to act on behalf of the party lacking capacity for the duration of that incapacity, such authority can be restored when a deputy is appointed and provides instructions to the solicitors in that capacity, or otherwise if and when the claimant regains capacity. There is no reason, as a matter of authority or legal principle, why an inability to instruct solicitors in the intervening period (which may be quite short) should be taken to have the effect of immediately ending a solicitor's retainer."
  • Deprivation of liberty and damages. Essex County Council v RF [2015] EWCOP 1, [2015] MHLO 2 — (1) A final declaration was made that P lacked capacity to make decisions in relation to his residence and care arrangements, but retained capacity to make decisions in relation to contact with others. (2) In considering quantum for unlawful detention there is a difference between procedural breaches (which would have made no difference to P's living or care arrangements) and substantive breaches (where P would not have been detained if the authority had acted lawfully). (3) The judge approved the following compromise agreement: (a) a declaration that ECC unlawfully deprived P of his liberty for approximately 13 months; (b) £60,000 damages; (c) care home fees to be waived (around £23-25,000); (d) damages to be excluded from means testing for community care costs; (e) costs to be paid (may exceed £64,000). (4) The judge described the situation as follows: "It is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91 year old gentleman in the final years of his life was removed from his home of 50 years and detained in a locked dementia unit against his wishes. Had it not been for the alarm raised by his friend RF he may have been condemned to remain there for the remainder of his days. There can be no doubt that ECC's practice was substandard. They failed to recognise the weakness of their own case and the strength of the case against them. They appeared unprepared to countenance any view contrary to their own. They maintained their resolute opposition to P returning to his home until the last possible moment. In my judgment the conduct of ECC has been reprehensible. The very sad and disturbing consequences for P cannot be ignored." §
  • Unfitness to plead case. R v Wells [2015] EWCA Crim 2, [2015] MHLO 5 — "In each appeal and application before the court, the defendant has been found unfit to plead: that is to say, based on medical evidence, the court has found that one or more of the following criteria is satisfied namely that he or she does not have the ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror, to understand the evidence. ... Where a defendant's disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances."§
  • Law firm closed down. Jimoh Adun of Nieko Solicitors (SRA decision: closure) [2015] MHLO 4 (SRA) — The SRA decided to intervene because Jimoh Adun had abandoned his practice at Nieko Solicitors, and it was necessary to protect the interests of clients (former or potential) and any beneficiaries of any trust of which he is or was a trustee. The SRA was unable to gain access on 8/12/14 but gained access three days later with a court order.§
  • Best interests case. LB Hillingdon v PS [2015] MHLO 3 (COP) — Faced with an impasse about contact between PS and M, Hillingdon asked the court to determine what was in PS's best interests. Permission was required under MCA 2005 s50 and CS objected to the grant of permission. The factors in s50 required for permission were satisfied. Also, the court could give effect to the rules in accordance with the overriding objective (dealing with the case justly, including having regard to proportionality). The judge gave the following directions: (a) M to be served with a copy of the application and joined as a party; (b) CS to be joined as party; (c) permission to the attorneys to intervene; (d) final hearing listed and provision made for statements to be filed; (e) Court of Protection Visitor to visit PS to ascertain his wishes and feelings and to gather information relevant to the issue of contact in the same way Cafcass would report in a children's case; (f) costs reserved.§
  • Best interests case. The Mental Health Trust v DD [2014] EWCOP 44, [2014] MHLO 141 — "I do not propose to give a detailed judgment in this case today in light of the large measure of agreement. However, I want to make some comments about the proposed draft order. ... In preparation for this four day hearing, in which I was to be considering questions of long-term contraception or sterilisation of DD, I have read with care ..."§

Legislation

  • Proposed legislation. Mental Health Act 1983 (Amendment) Bill 2014-15 — Presenting this private members bill, Sir Paul Beresford stated: "I should like section 136 of the Mental Health Act 1983 to be amended as follows. First, the heading, 'Mentally disordered persons found in public places', should be changed to, 'Mentally disordered persons found by the police in the course of their duties. Secondly, the words 'in a place to which the public have access', should be changed to, 'in the course of carrying out his duties'." Did not get beyond First Reading.

Law Society

Legal Aid Agency

Care Quality Commission

Department of Health

  • Department of Health, 'News story: New Mental Health Act code of practice' (15/1/15). Main text from news story: "The code shows professionals how to carry out their roles and responsibilities under the Mental Health Act 1983, to ensure that all patients receive high quality and safe care. There have been significant changes in legislation, case law, policy and professional practice since the last code was published in 2008. The revised code aims to provide stronger protection for patients and clarify roles, rights and responsibilities. This includes: (a) involving the patient and, where appropriate, their families and carers in discussions about the patient’s care at every stage; (b) providing personalised care; (c) minimising the use of inappropriate blanket restrictions, restrictive interventions and the use of police cells as places of safety. The main changes to the code include: (a) 5 new guiding principles; (b) new chapters on care planning, human rights, equality and health inequalities; (c) consideration of when to use the Mental Health Act and when to use the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards and information to support victims; (d) new sections on physical health care, blanket restrictions, duties to support patients with dementia and immigration detainees; (e) significantly updated chapters on the appropriate use of restrictive interventions, particularly seclusion and long-term segregation, police powers and places of safety; (f) further guidance on how to support children and young people, those with a learning disability or autism. The new code will come into force on 1 April 2015, subject to Parliamentary approval." See Mental Health Act 1983 Code Of Practice for England
  • Department of Health, 'Stronger Code: Better Care: Government response to the Consultation on the Mental Health Act 1983: Code of Practice' (16/1/15). See Consultations#Department of Health

DOLS forms

  • ADASS, 'New DOLS forms' (January 2015). The new forms emailed by the DoLS Forms Project Group on 11/1/15 (without restricted editing and with an amended eligibility section in Form 4) are now available. See Deprivation of Liberty Safeguards Standard Forms

Other material

  • National Offender Management Service, 'Mental Health Treatment Requirement: Guidance on Supporting Integrated Delivery' (30/12/14). Introduction and detail from Government website: "This (non-statutory) guidance seeks to provide support to service commissioning and provider agencies so that appropriate mental health service provision and inter-agency partnerships enable Mental Health Treatment Requirements (MHTR) delivery locally. The guidance reflects the changes to responsibility for probation services in England and Wales from 2014 resulting from the Government’s Transforming Rehabilitation reforms and the Offender Rehabilitation Act 2014. Information on who to contact for further information is also included." See Miscellaneous external links
  • Houses of Parliament Parliamentary Office of Science and Technology, 'Parity of Esteem for Mental Health' (Postnote no.485, 7/1/15). Description from Parliament website: "Achieving parity of esteem between mental and physical health in care standards and public attitudes has been attempted for decades. This note outlines the history of these efforts, the various ways in which parity is defined and measured, the challenges of achieving this ideal and the strategies that may be employed to that end." See Miscellaneous external links

Events

  • Refresher and re-accreditation course. The Mental Health Lawyers Association are running a Refresher and Re-accreditation course on Monday 30/3/15 in London. This new course will be suitable for (a) those seeking to fulfil the requirement to obtain six mental health CPD points during each year of accreditation membership; (b) those seeking re-accreditation, by reviewing the legal and procedural developments of the last three years, and providing a forum for discussing these along with the re-accreditation process; and (c) anyone wishing to further their knowledge of mental health law and practice. See MHLA website for further information and booking details. See Events
  • Cross-examination course. The Mental Health Lawyers Association are running a course entitled "Cross-examination of medical witnesses" on Friday 20/3/15 in Leicester. This course covers: understanding mental disorder, nature and degree; psychiatric medications; consent to treatment provisions; understanding and addressing the ‘risks’ and challenging this evidence; instructing independent psychiatrists appropriately and using their evidence at tribunal. See the MHLA website for further information and booking details. See Events
  • Panel course. The Mental Health Lawyers Association will be running their two-day course for membership of the Law Society's Mental Health Accreditation Scheme (formerly the MHRT panel) on Monday 2/3/15 and Tuesday 3/3/15 in London and on Thursday 5/3/15 and Friday 6/3/15 in Leeds. New mental health lawyers are strongly encouraged also to attend the foundation course. Price: £300 (members); £390 (non-members); 10% discount for groups of three or more members. CPD: 12 SRA-accredited hours. See the MHLA website for further information and booking details in relation to both the London and Leeds courses. See Events
  • Foundation course. The Mental Health Lawyers Association are running a mental health law foundation course on Wednesday 25/2/15 in London and on Thursday 26/2/15 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 SRA-accredited hours. See MHLA website for further information and booking details in relation to both the London and Manchester courses. See Events
  • Events. The Mental Health Lawyers Association have announced their 2015 training programme: Foundation course (London 25 Feb, Manchester 26 Feb, London 18 May, Manchester 19 May, London 24 Aug, Manchester 25 Aug); Panel course (London 2-3 Mar, Leeds 5-6 Mar, London 1-2 Jun, Leeds 4-5 Jun, London 7-8 Sep, Leeds 10-11 Sep); Cross-examination of medical witnesses (Leicester, 20 Mar); Refresher and re-accreditation course (London 30 Mar, Manchester 9 Jul, London 16 Oct); Tribunal advocacy and Case law for tribunal preparation (Manchester 1 Apr, London 10 Apr); Introduction to the Court of Protection (London 7-8 May, Manchester 8-9 Oct); Legal Aid and Peer Review (London 3 Jul, Manchester 10 Jul). See MHLA website for description of all courses and online booking information. See Events

Website and CPD

  • CPD scheme. Obtain 12 accredited CPD points online for £60. See CPD scheme

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