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January 2019 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 1932 categorised cases


Cases

  • Case (False imprisonment and damages). R (Jollah) v SSHD [2018] EWCA Civ 1260 — "The context is one of immigration detention. The claimant, who is the respondent to this appeal (and who for present purposes I will call "IJ"), was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. Such curfew was imposed by those acting on behalf of the appellant Secretary of State purportedly pursuant to the provisions of paragraph 2 (5) of Schedule 3 to the Immigration Act 1971 (as it then stood). It has, however, been accepted in these proceedings that, in the light of subsequent Court of Appeal authority, there was no power to impose a curfew under those provisions. Consequently, the curfew was unlawfully imposed. The question arising is whether IJ is entitled to damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The trial judge, Lewis J, decided that he was. Having so decided, the judge at a subsequent hearing assessed the damages at £4,000: [2017] EWHC 330 (Admin)B; [2017] EWHC 2821 (Admin)B. The Secretary of State now appeals, with leave granted by the judge, against the decision that IJ was entitled to damages for false imprisonment. IJ cross-appeals, with leave granted by Singh LJ, against the amount of the award of damages. It is said on behalf of IJ that a much greater award should have been made."
  • Case (Inherent jurisdiction to authorise DOL of vulnerable adult). A Local Authority v BF [2018] EWCA Civ 2962 — An interim order made on 10/12/18 required BF to reside at a care home, over Christmas, and not at his own or his son's home, despite BF's having capacity to make decisions about his residence and wanting to return home. The order was expressed to last until a further hearing to take place no later than 31/1/19 (later fixed for 16/1/19) when the judge could hear full argument on what relief could be granted pursuant to the inherent jurisdiction. The local authority appealed on the basis that the order infringed Article 5. Permission to appeal was refused: (1) BF is a vulnerable adult (old, blind, infirm, in a squalid and dangerous home, with undue influence present in relationship with son) who needs protection despite not lacking capacity. (2) The test of "unsound mind" is different from the test of capacity, and there is prima facie evidence that he may be of unsound mind. (3) In an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing Article 5 (Winterwerp); even if BF is found not to be of unsound mind, his vulnerability is such that he could not be returned home without careful planning, which is a crucial component of the protection afforded by the inherent jurisdiction.
  • Case (Infanticide wrongly withdrawn from jury). R v Tunstill [2018] EWCA Crim 1696 — "This was a case where the child was killed soon after birth so that this case can be distinguished from the situation where mental ill health, usually post-partum psychosis, develops over a period of time. Nonetheless, there was evidence from Dr Bashir and Dr Khisty which showed that notwithstanding the existence of the appellant's pre-birth mental disorder, the effects of giving birth had led to a further condition, characterised by Dr Bashir as an acute stress reaction which was a causative factor in disturbing the balance of the appellant's mind. The issue of causation is a matter of fact for a jury after appropriate direction from a judge as to what can constitute a legally effective cause. For the reasons given, we consider that the effects of birth are not required by s.1(1) to be the sole cause of a disturbance of balance of the mind. In the circumstances, we are persuaded that the judge should not have withdrawn infanticide from the jury. There was evidence fit for the jury's consideration. It is not for this court to assess the likelihood of its success. Dr Barlow's evidence was to the contrary, but the issue for us is whether a jury should have had this alternative option to consider. We think it should have had that opportunity. In the circumstances, therefore, the conviction for murder is unsafe and the verdict is quashed. In our judgment, the interests of justice require a re-trial and we so order."
  • Case (Damages for unlawful immigration detention). R (Adegun) v SSHD [2019] EWHC 22 (Admin) — "There are two bases of challenge to Mr Adegun's detention which, in broad outline, are as follows. ... There is first an issue, which I shall call the "rule 34 issue", as to whether Mr Adegun declined a medical examination pursuant to rule 34 of the Detention Centre Rules when he was taken into detention. ... The second issue I shall call the "paragraph 55.10 issue". It arises because there is evidence, not disputed by the Secretary of State, that Mr Adegun was suffering from a mental health condition which was not recognised by the Home Office until some time after his admission into detention and was not treated with medication until 19 January 2016. ... I therefore propose to award nominal damages in respect of the early period of Mr Adegun's detention and substantial damages in respect of 40 days' detention."
  • Case (Meaning of "nature" in discharge criteria). LW v Cornwall Partnership NHS Foundation Trust [2018] UKUT 408 (AAC) — (1) Having considered the statutory framework of CTOs and the legislative purposes behind them the UT concluded, primarily on that basis, that in cases where there is a risk of a relapse which might necessitate recall, how soon that such a relapse is likely to occur is a relevant consideration. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be "soon", "in the near future" or within the permitted duration of a CTO. (2) Addressing the claimants' arguments on the analogy between detention and CTO cases, the judge stated that while there are some parallels between the s3 regime and CTOs they are not such that the same principles necessarily apply to both, and (to the extent necessary to reach a view on the detention cases) neither of the previous judgments cited in CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) provided an authoritative basis for the view that imminence of relapse is the only factor or need be in the near future.
  • Case (John Blavo personally ordered to repay Legal Aid claims). Lord Chancellor v Blavo and Co Solictors Ltd [2018] EWHC 3556 (QB) — The High Court gave judgment for the Lord Chancellor against John Blavo in the sum of £22,136,001.71 following the allegation that Blavo & Co made dishonest claims for payment on the legal aid fund for thousands of cases where it was not entitled to any fee.
  • Case (Intervention costs statutory demands). John Blavo v Law Society [2018] EWCA Civ 2250 — The Law Society successfully appealed against a decision to set aside two statutory demands (of £151,816.27 and £643,489.20) which had been served on John Blavo in relation to costs incurred in respect of the intervention into his practice.

Legislation

  • Legislation. Assaults on Emergency Workers (Offences) Act 2018 — This Act creates: (1) a new either-way offence of assault or battery committed against an emergency worker with a maximum sentence of 12 months, or a fine, or both; (2) a statutory aggravating factor for various offences when committed against an emergency worker. In force 13/11/18.

Resources

  • . Ministry of Justice, 'Revising the Mental Capacity Act 2005 Code of Practice: Call for evidence' (consultation from 24/1/19 to 7/3/19) — Extract: "Since the MCA came into force in 2007, the COP has been used extensively by a wide range of stakeholders. In light of changes in case law, and lessons learned through practical use of the COP over the past 11 years, revision of the COP is required in order to better reflect current needs. The Act itself is currently not under review, however the survey below provides an opportunity to comment on the practical guidance outlined in the COP. Comments received will inform decisions to revise, update and where relevant to provide further guidance in the COP."
  • FOIA response. Ministry of Justice, 'FOIA response 181221028: DOL conditions' (23/1/19) — In response to a FOIA request the MOJ have stated that (paraphrased): (1) There are 2712 conditionally-discharged patients. (2) A database search for the keywords "escorted" and "accompanied" identified 39 cases where the patient has a condition not to go into the community unless escorted or accompanied by staff. (3) A database search for the keyword "permission" did not identify any cases where the patient has a condition not to leave without permission. (4) It cannot be known for certain that these conditions amount to confinement for Article 5 purposes until each case is examined in discussion with the RC. (5) No information can be provided about capacity to abide by the conditions as this information is not held (information about capacity held within RCs' reports is not considered to be sufficiently recent). (6) There may be more than these 39 cases because: (a) the wording of conditions varies considerably; and (b) it is likely that in some cases the care plan, rather than a condition, includes arrangements that amount to a deprivation of liberty (RCs and others have been asked to contact the MOJ for advice in such cases).
  • Conditional discharge/DOL guidance. HM Prison and Probation Service, 'Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) — The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM [2018] UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.
  • CPS guidance. Crown Prosecution Service, 'Prosecution Guidance: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) — Extract: "Headlines: (1) Police and prosecutors should cease charging the existing offences of common assault, battery, assaulting a police officer in the execution of their duty and other existing similar offences where the complainant is an emergency worker (in accordance with the definition in the Act). Prosecutors should charge under the provisions of the 2018 Act as at the commencement of the legislation where there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public interest. (2) Police should charge the offence at section 1 of the 2018 Act (where a guilty plea is anticipated and the offence is suitable for sentence in a magistrates’ court) in preference to existing summary offences that apply to assaults against emergency workers."
  • MOJ circular. Ministry of Justice, 'Circular 2018/01: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18) — Extract from document: "The purpose of this circular is to provide guidance on the Act’s provisions. The circular is for guidance only and should not be regarded as providing legal advice. Guidance for prosecutors on the new offence of assault on an emergency worker contained in the Act will be made available on the CPS website. The CPS are responsible for advising police for the purposes of criminal proceedings. For other operational advice, police should seek advice from their own legal advisors."

Events

  • Event. Event:PELT: Advanced course for MHAAs (new course) - Hoylake, 13/2/19 — Being a MHAA is a demanding role where you are often expected to perform many and various tasks. This course assumes basic knowledge and experience and will examine the many demands of job and provide some effective and legal coping mechanisms including keeping the CQC happy. In addition to the MHA, the Code and the Regulations the course will analyse the relevance and implications of case law. It will also look at how the MCA and DoLs dovetail into the MHA. The course will enable a group of experienced MHAAs to get together and share both the demands of the job and some solutions. Speaker: Peter Edwards. Price: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • Event. Event:PELT: Introduction to MCA and DOLS - Hoylake, 10/4/19 — This is an 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. Not knowing what you don’t know promotes risky practice. Speaker: Peter Edwards. Price: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • Event. Event:PELT: Depriving Children and Young People of their liberty lawfully - Hoylake, 9/5/19 — "DoLs start at 18. MCA 16. MHA no minimum age for detention. How to lawfully deprive a child or young person of their liberty requires great care. What is a DoL and where does parental responsibility fit? The course will look 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 (secure accommodation) fit in?" Speaker: Peter Edwards. Price: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • Event. Event:PELT: Court of Protection Masterclass (new material) - Hoylake, 17/6/19 — This course 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. It will also cover the developing role of ALRs and how they can be utilised, and what the implications will be for litigation friends and IMCAs. Speaker: Peter Edwards. Price: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • Event. Event:PELT: Introduction to using Court of Protection - Hoylake, 5/6/19 — The Court of Protection has a very wide ambit, potentially 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. Speaker: Peter Edwards. Price: £125 plus VAT. See Peter Edwards Law website for further details and booking information.
  • Event. Event:Edge Training: BIA Report Writing - London, 26/4/19 — This course is targeted specifically at qualified Best Interests Assessors (BIAs) and aims to provide them with the knowledge and skills needed to ensure robust and legally defensible assessments under the Deprivation of Liberty Safeguarding (DoLS). Speaker: Piers McNeil. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: Understanding the Court of Protection - London, 15/3/19 — This one day course is designed to enable participants to feel equipped to attend the Court of Protection and to ensure they know what to expect: the best way to give evidence; the key court of protection roles; courtroom etiquette and terminology. The course will help delegates prepare to give evidence and deal with challenging questioning. A barrister in the field will give them tips on staying calm and composed under pressure and ensuring the evidence they give is fair, balanced and accurately represents application of the key components of the Mental Capacity Act to the Court of Protection judge. Speaker: Sophy Miles. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: DOLS Conference - London, 8/3/19 — Speakers: Mr Justice Baker (RPR Selection, Duties and Responsibilities), Sneha Khilay (Unconscious Bias and DoLS Assessments), Alex Ruck Keene (A DoLS Case Law Update), Steven Richards (The Future: Liberty Protection Safeguards - where are we now?), Mr E (The Bournewood judgment and the impact of the Liberty Protection Safeguards?). Chair: Aasya Mughal. Price: £145 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: Level 3 Safeguarding Adults, London 4/3/19 — This one-day Level 3 Safeguarding Adults training course offers delegates the opportunity to explore the legal framework, which underpins safeguarding adults work, and to explore the key challenges that may arise in practice. It will guide the delegates through the safeguarding adults process and focus on making safeguarding personal. Speaker: Dawn Revell. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: DOLS Authorised Signatories - London, 25/2/19 — This course aims to provide guidance on the role of signatories and to update designated signatories in relation to the latest case law around their specific role within the DOLS procedures. Please note: this course is not designed for BIAs but specifically the role of local authority managers acting as authorised signatories. Speaker: Steven Richards. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: Liberty Protection Safeguards - Sheffield, 1/2/19 — This one day course aims to provide a detailed analysis of the Liberty Protection Safeguards contained in the Mental Capacity (Amendment) Bill that is currently before Parliament. The course considers the differences between DoLS and LPS and looks at what the new process will be and who will be affected.Speaker: Steven Richards. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: BIA Legal Update (Annual Refresher) - London, 1/2/19 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: consider the latest DoLS news, research and guidance; examine the latest case law relevant to DoLS and the BIA role; reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: Liberty Protection Safeguards - London, 28/1/19 — This one day course aims to provide a detailed analysis of the Liberty Protection Safeguards contained in the Mental Capacity (Amendment) Bill that is currently before Parliament. The course considers the differences between DoLS and LPS and looks at what the new process will be and who will be affected.Speaker: Steven Richards. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: DOL, children and young people - London, 22/3/19 — This course aims to update staff working with children, young people and those in transition with the latest case law and developments in relation to deprivation of liberty. The course will consider these developments and the impact on practice. It examines the Supreme Court ruling on deprivation of liberty and considers practical issues in its application for children and young people. Price: £140 plus VAT. See Edge Training website for further details and booking information.
  • Event. Event:Edge Training: AMHP Legal Update - London, 18/3/19 — The main aim is to give AMHPs the opportunity to update their legal knowledge and skills regarding their work under the Mental Health Act 1983. This update has a focus on practice dilemmas arising from recent statutory changes as well as case law developments. Speaker: Rob Brown. Price: £140 plus VAT. See Edge Training website for further details and booking information.

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