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July 2013 update

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Cases

  • Section 139 case. TW v LB Enfield [2013] EWHC 1180 (QB), [2013] MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that s139(1) is incompatible with the ECHR had not been withdrawn, the judge would have similarly dismissed it. (4) On the facts, it was clear that it was 'not reasonably practicable' to have consulted the nearest relative (the patient had repeatedly sent dictated letters instructing Enfield's staff not to involve her family, and had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality): permission under s139 was therefore refused. [Caution: see Court of Appeal decision.]§
  • After-care case. R (Afework) v LB Camden [2013] EWHC 1637 (Admin), [2013] MHLO 51 — The judge held that as a matter of law s117(2) is only engaged vis-à-vis accommodation if: '(i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition"); (ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.' No obvious reason is given for the third requirement, which is probably wrongly decided (or, as the COP Newsletter puts it, 'will fall to be considered again in due course').§
  • Upper Tribunal case. GA v Betsi Cadwaladr University Local Health Board [2013] UKUT 280 (AAC), [2013] MHLO 50 — (1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.]§
  • Forced marriage. Sandwell MBC v RG [2013] EWHC 2373 (COP), [2013] MHLO 55 — "I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. ... Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled."§
  • COP costs appeal. Re Clarke [2013] EWCA Civ 811, [2013] MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters.§
  • Capacity case. Re SK [2013] MHLO 49 — "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.]§
  • LPA case. Re Goodwin [2013] MHLO 86 (LPA) — The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: "She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing 'Lasting Power of Attorney' in place during the donor's lifetime." On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary - LPA case.]§
  • LPA case. Re Griggs [2013] MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that "My Remaining attorney is to choose which replacement attorney is to act as my other attorney." Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian's application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary - LPA case.]§
  • LPA case. Re Baxter [2013] MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am becoming" were also inconsistent with section 11(7)(a) because the donor must lack capacity (or be reasonably believed to lack capacity). It is not sufficient that the donor may be "becoming" mentally incapable. The wording of section 11(7)(a) may be contrasted with paragraph 4(1) of Schedule 4 of the MCA, which imposes a duty to apply for registration on an attorney under an EPA when the donor "is or is becoming" mentally incapable. [OPG summary - LPA case.]§
  • LPA case. Re Spaas [2013] MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.]§

Court guidance

  • Transparency. Sir James Munby P, 'View from the President's Chambers (4): The process of reform: an update' (July 2013) and Draft Practice Guidance on the Publication of Judgments (12/7/13). See Court of Protection

Consultations

See also: Mental Health Tribunal

  • Consultation. Law Commission, 'Criminal Liability: Insanity and Automatism: A Discussion Paper' (23/7/13). See Law Commission
  • Consultations page. The following automated features have been added, in order to make the page easier to navigate: (1) open consultations are marked as such; (2) a list of open consultations appears at the bottom of the page. See Consultations

Newsletters

  • 39 Essex Street, 'Court of Protection Newsletter' (issue 35, July 2013). The cases mentioned in this issue are: Re SK [2013] MHLO 49 — R v Patel [2013] EWCA Crim 965Not on Bailii! — Loughlin v Singh [2013] EWHC 1641 (QB)M — Simon v Byford & Ors (Re Rose (Deceased)) [2013] EWHC 1490 (Ch)Not on Bailii! — R (Afework) v London Borough of Camden [2013] EWHC 1637 (Admin)M. There is also information under the following headings: (a) Update on House of Lords Select Committee on the Mental Capacity Act 2005; (b) Statistics upon the MCA 2005; (c) Law Society Practice Note on Financial Abuse. See 39 Essex Street COP Newsletter#July 2013
  • Newsletter. Peter Edwards Law, 'The Signpost' (Summer 2013). See Newsletters

Articles

  • BBC, 'Concern over 107-year-old Minnetta Webb's care row' (26/7/13). See DOLS
  • BBC, 'Luton council bus driver "forgot woman with dementia"' (14/5/13). Prosecution for neglect. See MCA 2005 s44
  • Jacqueline Elton, 'How to apply Deprivation of Liberty Safeguards' (Nursing Times, 17/5/13). See DOLS
  • Statistics. Andy McNicoll, 'Ethnicity has "no impact" on odds of being detained under Mental Health Act, study finds' (Community Care, 2/7/13). See Statistics#Ethnicity
  • Paul Milligan, 'NHS trust fined £500,000 after female care worker was stabbed to death by dangerous bipolar patient "who never should have been sent to care home"' (Daily Mail, 19/7/12). See Miscellaneous external links

Department of Health

  • Department of Health, 'Independent review of the arrangements made by SHAs for the approval of registered medical practitioners and approved clinicians under the Mental Health Act 1983' (5/2/13). See MHA 1983 s12
  • Department of Health, 'Winterbourne View Hospital: Department of Health review and response' (various documents). See Miscellaneous external links
  • Department of Health, 'Post-legislative assessment of the Mental Health Act 2007: Memorandum to the Health Committee of the House of Commons' (Cm 8408, 28/8/12). See Mental Health Act 2007 Overview
  • Department of Health, 'Deprivation of Liberty Safeguards (DOLS) Funding Factsheet for 2013-14' (25/9/12). See DOLS
  • Department of Health, 'Analysis of the Consultation on Allocation Options for the Funding for Independent Mental Health Advocate Services and the treatment of Armed Forces compensation in charging for social care' (31/10/12). See Miscellaneous external links

Mental Health Tribunal

  • Tribunal contact details. The contact list for the secretariat was updated on 3/6/13. See Mental Health Tribunal
  • Consultation (medical examination). The Tribunal Procedure Committee propose to amend the rules as follows: (a) to make the medical examination discretionary (except in s2 cases, where there is to be no change); (b) to allow any member of the tribunal to view the medical records (rather than just the medical member); (c) to require either a medical examination or a finding that one is unnecessary or not practicable before a tribunal can proceed in the patient's absence. The relevant documents are: (1) Tribunal Procedure Committee, 'Proposal to amend Rule 34 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (medical examination of the patient in mental health cases): Stakeholder Consultation' (June 2013); (2) Julie McCallen, 'Consultation on proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008' (letter, 18/6/13); (3) Tribunal Procedure Committee, 'Questionnaire' (June 2013). Consultation runs from 18/6/13 to 10/9/13. See Consultations#Mental Health Tribunal

Mental Capacity Act

  • 04/07/13 (19): House of Lords MCA commitee. The select committee is receiving oral evidence and has called for written evidence to be submitted by 2/9/13. (1) Parliament website, 'Lords scrutinises Mental Capacity Act 2005 and asks: Is it working?' (press release, 26/6/13); (2) Select Committee on the Mental Capacity Act 2005, 'Call for evidence' (26/6/13); (3) Committee home page] (with links to transcripts of oral evidence. See House of Lords Select Committee on the Mental Capacity Act 2005

OCTET

  • Kathryn Walsh, 'Community treatment orders fail to reduce psychiatric readmissions for people with psychosis' (14/5/13). This blog post summarises the outcome of the OCTET trial. See CTO

Other material

  • Official Solicitor. From 25/8/13 the offices of the Official Solicitor and Public Trustee will move to: Victory House, 30-34 Kingsway, London WC2B 6EX; DX 141423 Bloomsbury 7. See Official Solicitor
  • Police cells. HMIC, CQC, HIW and HMIP, 'A Criminal Use of Police Cells? The use of police custody as a place of safety for people with mental health needs' (20/6/13). See s136
  • CQC. CQC, 'Thematic review of mental health care announced' (27/6/13). See CQC
  • LPAs. Ministry of Justice, 'New online application service for Lasting Powers of Attorney (LPA)' (press release, 2/7/13). See LPA

Books

Website and CPD

  • CPD scheme. The CPD questionnaire for March 2013 has been uploaded. Subscribe to obtain 12 accredited CPD points online for £60. See CPD scheme
  • Asterisks. To help clear a backlog of updates, some news items will be added to the Updates page without being added anywhere else on the website, and (for now) will be marked with asterisks.

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