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July 2018 update

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.

Caw law

  • Costs of intervention case. John Blavo v Law Society [2017] EWHC 561 (Ch) — "In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums."
  • CANH case. NHS Trust v Y [2018] UKSC 46 — "The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. ... In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases."
  • COP costs case. Re A (A Patient, now deceased) (No 3) [2018] EWCOP 16 — "I have before me an application [which] relates to certain costs orders against Mr Fitzgerald dated 22 and 24 March 2016 which I made in the Court of Protection, as President of the Court of Protection, in proceedings (95908524), to which Mr Fitzgerald was a party. Those proceedings related to Mr Fitzgerald's now deceased aunt A, a patient whose affairs were under the control of the Court of Protection until her death on 5 March 2018. Central to Mr Fitzgerald's application are the circumstances in which, in the course of those proceedings, SJ Lush, by an order dated 28 May 2013, had appointed her niece, C, to be A's deputy for property and affairs."
  • Capacity case. Re FX [2017] EWCOP 36 — "I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions."
  • Capacity case. Royal Borough of Greenwich v CDM [2018] EWCOP 15 — "In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests."
  • Negligence case. Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) — "The claim arises out of the death of the Deceased who was found dead at her home on the morning of the 30th of January 2012. For present purposes it is accepted that the Deceased took her own life. There are two pleaded causes of action: common law negligence and alleged breaches of convention rights under the Human Rights Act 1998. The Recorder, as I am, was concerned only with the negligence claim and then only with the issue as to the existence of a duty of care owed to the Deceased. Issues as to breach of any such duty or issues as to causation were not before the Recorder. The pleaded particulars of negligence amount to allegations that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the Deceased in a 999 call made by the Deceased's mother."
  • Assisted suicide case. R (Conway) v SSJ [2018] EWCA Civ 1431 — "This is an appeal from the order dated 5 October 2017 of the Divisional Court (Sales LJ, Whipple and Garnham JJ) dismissing the claim of the appellant, Mr Noel Conway, for a declaration under section 4 of the Human Rights Act 1998 in respect of section 2(1) of the Suicide Act 1961, which imposes a blanket ban on assisted suicide. Mr Conway contends that section 2(1) constitutes a disproportionate interference with his right to respect for his private life under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms."
  • Miscellaneous case. Re A (A Patient, now deceased) (No 4) [2018] EWCOP 17 — "On 24 July 2018, Mr Fitzgerald issued an application in the Family Division of the High Court of Justice, under number FD13P90056, seeking an order that, as President of the Family Division, I 'withdraw from public record Judgement EWCOP16 [2018] on the grounds that: (1) It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.' ... Mr Fitzgerald's latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order."
  • Appeal status information. On 3/7/18 the Supreme Court (Lady Hale, Lord Carnwath, Lord Lloyd-Jones) granted PJ permission to appeal and directed that the appeal did not need to be listed with MM. The appeal in PJ will be heard by the Supreme Court on 22/10/18. Court order and further information provided by PJ's solicitor, Natalie Roberts of GHP Legal Solicitors. See SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194
  • Appeal status information. The Supreme Court has granted PJ permission to appeal, but the case will not be heard with MM. Information provided by MM's solicitor, Donald Tiong of Bison Solicitors. See SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194

Legislation

DOLS reform

  • DOLS reform article. Alex Ruck Keene, 'Mental Capacity (Amendment) Bill published - headlines' (Mental Capacity Law and Policy, 4/7/18) — This article notes the following information about the Mental Capacity (Amendment) Bill 2017-19: "(1) The Bill is focused solely upon a (version of) the Liberty Protection Safeguards, so the Law Commission’s proposed amendments to ss.4/5 have gone, as have regulation-making powers in relation to supported decision-making; (2) There is no statutory definition of deprivation of liberty (or provision for advance consent); (3) There are provisions for emergency deprivation of liberty/deprivations pending authorisation under the LPS; (4) The scheme of the LPS is broadly replicated, albeit from age 18 upwards, and with a significant change in relation to care homes, where considerably more responsibility is going to be placed on the care home managers in terms of arranging assessments/carrying out consultation. The reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality; (5) The Law Commission’s proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone; (6) The LPS ‘line’ of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained."

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