July 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 1985 categorised cases
- Chronology. See July 2019 chronology for this month's changes to the website in date order.
Cases
- Case (Oral tribunal decision). PAA v SSHD [2019] UKUT 13 (IAC) — The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above.
- Case (Immigration tribunal - fair hearing, litigation friends). AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 — In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached."
- Case (Reinstatement). JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC) — (1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties."
- Case (Immigration detention). R (ASK) v SSHD [2019] EWCA Civ 1239 — "These appeals raise important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the United Kingdom. In each case, the Appellant is a foreign national who satisfied the statutory criteria for detention pending removal, but who suffered from mental illness such that it is said that, for at least some of the period he was detained, he was not only unfit to be removed and/or detained in an immigration removal centre ("IRC"), but did not have mental capacity to challenge his detention and/or engage with the procedures to which he was subject as a detainee. As a result, it is submitted that, in detaining each Appellant, the Secretary of State acted unlawfully in one or more of the following ways. ..."
- Case (Death - wishes and feelings). Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21 — "I am being asked to take today an irreversible decision that will lead inevitably to death sooner rather than later and probably within minutes or seconds of the tube being removed. I am being asked to do so in the face of what I find are the wishes and feelings of TG. ... I have come to the clear decision that it is in the patient's best interests that intubation should continue. I recognise that this places a huge burden on the treating team. It is against their advice and their wishes and of course also those of Dr Newman but I remind myself constantly, this is her life and her wishes as I have found them to be and nobody else's. It may be that if the position were to remain the same in six months' time or no successful tracheostomy had been carried out that different considerations might apply but I am not looking at the future, I am looking at things as they are now and for those reasons I reach my decision and refuse the application."
- Case (Jehovah's Witness - blood transfusion). Manchester University NHS Foundation Trust v DE [2019] EWCOP 19 — "The only issue during the hearing was the degree to which DE's wishes and feelings would be overborne by a decision to allow a blood transfusion, in the light of her being a Jehovah's Witness; and therefore whether there was a disproportionate interference in DE's article 8 rights. However, the evidence even at the oral hearing was that although DE described herself as a Jehovah's Witness she was not someone for whom those beliefs were central to her personality or sense of identity. During the oral hearing I did not get any sense that she would feel deeply upset if an order was made in the form sought, or that she would feel a deep conflict with her religious beliefs. As such she was someone who was in a quite different decision from B in Jackson J's decision, where his religious beliefs were fundamental to B's sense of who he was. The other stark contrast with that case is that DE had been completely clear that she did not want to die. She is also significantly younger than was B."
- Case (Litigation friend). LJ v Mercouris [2019] EWHC 1746 (QB) — "The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs."
- Case (Summary of MH sentencing guidance - life sentence replaced with s37/41). R v Fisher [2019] EWCA Crim 1066 — Having summarised the Sentencing Council's Definitive Guideline for Manslaughter (in force 1/11/18) and the relevant available disposals under the MHA, the Court of Appeal revoked sentences of imprisonment and replaced the life sentence with a s37/41 restricted hospital order.
Resources
- Guidance on spent convictions etc. Ministry of Justice, 'Updated guidance on the Rehabilitation of Offenders Act 1974' (4/3/14) — Is a restricted hospital order spent when the patient is conditionally discharged or when he is absolutely discharged? The Ministry of Justice does not have an official position on the matter, but refers to this guidance document which states that under the Rehabilitation of Offenders Act 1974 the rehabilitation period of a hospital order, with or without a restriction order, is the "period of the order" (email correspondence, 11/7/19).
- Guideline for manslaughter sentencing. Sentencing Council, 'Manslaughter: Definitive guideline' (published 31/7/18, enforcement date 1/11/18) — This document has the following headings: (1) Applicability of guideline; (2) Unlawful act manslaughter; (3) Gross negligence manslaughter; (4) Manslaughter by reason of loss of control; (5) Manslaughter by reason of diminished responsibility.
News
- New policy for contacting nearest relative. On 14/6/19 the tribunal secretariat wrote to tribunal users as follows: "Following the feedback from some of our users. From Monday the 17 June the Tribunal will use the information provided on the Statement of Information about a patient objecting to their nearest relative being contacted in precedence to that provided on the application form. It is therefore vital that questions 14 and 15 on the form are fully completed. If we do receive forms which are unclear or the questions haven’t been answered then these will be returned to the mental health authority." See Form T132: In-patient: Statement of information about the patient.
Jobs
- Job advert. Burke Niazi, London - Court of Protection solicitor/paralegal (at least 12 months' experience). See Jobs
- Job advert. Burke Niazi, London - Court of Protection solicitor/paralegal (at least three years' experience). See Jobs
- Job advert. Noble Solicitors, Luton - mental health panel member. See Jobs
Social media
“CQC places two Priory Group hospitals in special measures” https://t.co/sOUUhYLBk9
— Mental Health Law (@MHLonline) July 30, 2019
Can alcoholism ever be grounds for 'diminished responsibility'? - a case from Irelandhttps://t.co/I0g63Y6IZE
— hundredfamilies (@hundredfamilies) July 26, 2019
What an inadequate sentence for something which was certainly not lashing out. It was attacking and kicking a mentally ill man with learning disabilities lying on the floor. Broken ribs and punctured lung. Is that not GBH? https://t.co/ORNNTGKtrO
— Liz (@jesslinworld) July 27, 2019
Job advert. Burke Niazi, London - Court of Protection solicitor/paralegal (at least 12 months' experience). See Jobs https://t.co/kcv3gAjcT7
— Mental Health Law (@MHLonline) July 26, 2019
Job advert. Burke Niazi, London - Court of Protection solicitor/paralegal (at least three years' experience). See Jobs https://t.co/bNZHY8hn67
— Mental Health Law (@MHLonline) July 26, 2019
Case (Oral tribunal decision). PAA v SSHD [2019] UKUT 13 (IAC) — The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision … https://t.co/g0Tt7odeWc
— Mental Health Law (@MHLonline) July 26, 2019
Case (Immigration tribunal - fair hearing, litigation friends). AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 — In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair… https://t.co/emR04XEk5k
— Mental Health Law (@MHLonline) July 26, 2019
39 Essex Chambers July Mental Capacity Report https://t.co/QUfZsN92OU
— Alex Ruck Keene (@Capacitylaw) July 25, 2019
"OMG will it never end?" - Really great summary on Rhydian of @LGOmbudsman report about a council leaning on independent reviewing officers for a complaint. https://t.co/4ce7kOlCSs
— Lucy Series (@TheSmallPlaces) July 25, 2019
Following the published judgments, not one of the various influential commentators who leaped to condemn the judge following first newspaper headlines has publicly acknowledged the harm done, both to NB and AU themselves, and to openness in the courts by irresponsible commentary
— Barbara Rich (@BarbaraRich_law) July 25, 2019
I have now written a blog on this case, and its discussion both of the law of capacity to consent to sexual relations, and of harm done to people involved in the case by comment and publicityhttps://t.co/Wm9gg8nhJr
also published by the Transparency Project @seethrujustice— Barbara Rich (@BarbaraRich_law) July 24, 2019
Deputyship and legal incapacitation: don’t (always) believe what you read https://t.co/CFE8ELxZ3u
— Alex Ruck Keene (@Capacitylaw) July 22, 2019
Failure to pass on risk information contributed to patient's suicide, says Coronerhttps://t.co/56Nb2eVNiy
— hundredfamilies (@hundredfamilies) July 21, 2019
Coroner finds TWO separate MH risk assessments failed to appreciate patients risk of suicide - who went on to kill himself.https://t.co/8xEFexSMZq
— hundredfamilies (@hundredfamilies) July 21, 2019
Another new COP judgment, of some practical significance for those on restricted sections (and their lawyers) and NHS Trusts trying to discharge them. https://t.co/Xb8wayKo7o
— simon burrows (@simonburrows23) July 19, 2019
Court of Protection: Birmingham City Council v SR [2019] EWCOP 28 (17 July 2019) https://t.co/m3HppP3cXT
— Mental Health Law (@MHLonline) July 19, 2019
Thank you
— Mental Health Law (@MHLonline) July 19, 2019
I guess it’s this one: https://t.co/u8Ucanum2d - could you possibly send me a copy of the CA decision?
— Mental Health Law (@MHLonline) July 18, 2019
Maybe the journalist was told the hospital order lasts for 28 days (as it ceases to have effect if the offender is not admitted to the named hospital within 28 days).
— Mental Health Law (@MHLonline) July 18, 2019
When #ClaudiasLaw comes into force on 31 July, we'll support and supervise guardians in England and Wales, enabling them to look after the affairs of those who go missing for more than 90 days ??@MoJGovUK | @missingpeople
Read the article online ???? https://t.co/omFsiNZki7 pic.twitter.com/lnKFySOZYc— OPG (@OPGGovUK) July 18, 2019
“Anorexia not just a psychiatric problem, scientists find” https://t.co/lgFRnhmgiH
— Mental Health Law (@MHLonline) July 18, 2019
“Woman who 'wants to die' must have chemotherapy, judge rules” https://t.co/Rylk2KJOKP
— Mental Health Law (@MHLonline) July 17, 2019
MoJ launches consultation on improving Victims Code (ends Sept 11)https://t.co/FOFlYDSnCN
— hundredfamilies (@hundredfamilies) July 17, 2019
Cuts to study of killings by mental health patients ‘put people at risk’https://t.co/4ta6qboYIp
— hundredfamilies (@hundredfamilies) July 17, 2019
New policy for contacting nearest relative — On 14/6/19 the tribunal secretariat wrote to tribunal users as follows: "Following the feedback from some of our users. From Monday the 17 June the Tribunal will use the information provided on the Statement o… https://t.co/ySTdomu2V4
— Mental Health Law (@MHLonline) July 17, 2019
Case (Reinstatement). JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC)
— (1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exer… https://t.co/x87rsS4nZJ— Mental Health Law (@MHLonline) July 17, 2019
Case (Immigration detention). R (ASK) v SSHD [2019] EWCA Civ 1239
— "These appeals raise important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the Unite… https://t.co/tdZ8vpVyPQ— Mental Health Law (@MHLonline) July 17, 2019
Court of Protection: London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27 (16 July 2019) https://t.co/jFxxcpU6F7
— Mental Health Law (@MHLonline) July 17, 2019
Further judgment on capacity in Court of Protection case about consent to sex - see paras 15-16 on the "very troubling feature" of harmful media coverage of interim hearing, discussed on Law in Action on 11 Junehttps://t.co/RnuxBimJJX (8 mins in) & herehttps://t.co/89sNfsRnLW https://t.co/r3qNNUH72P
— Barbara Rich (@BarbaraRich_law) July 16, 2019
New High Court COP judgment on sex and capacity: https://t.co/KDGvHur4kC
— Tor Butler-Cole (@TorButlerCole) July 16, 2019
A post on JS v SLaM https://t.co/tJxQ26bMNe @DrOliverLewis from @DoughtyStPublic acted for the appellant.
— Sophy Miles (@sophymiles1) July 15, 2019
The interim guidance for Independent Advocacy for practitioners is available to read at https://t.co/jUnmzZnTcp @socialworkscotland @RCPscychScot @theRCN
— Mental Health Law Scotland (@mhlawteam) July 12, 2019
Termination and best interests: the Court of Appeal’s reasons https://t.co/mfIRinBy7z
— Alex Ruck Keene (@Capacitylaw) July 11, 2019
Today, our annual report and accounts for 2018/19 were presented to Parliament.
To read the full report, visit https://t.co/wnhK8ouYrl ?????? https://t.co/VcMkF1Cowb pic.twitter.com/3uvL5aidnk— OPG (@OPGGovUK) July 11, 2019
Am retweeting this but it is massively underwhelming. Gets the decision in Re Y wrong and says it is only about vegetative state. No mention of the recent scandals - Whorlton Hall, St Andrews etc. Dodgy description of how to assess capacity using terms court has warned against. https://t.co/LXNjEmdC3l
— Tor Butler-Cole (@TorButlerCole) July 11, 2019
The National Mental Capacity Forum has published its third Annual Report https://t.co/muMTyswWID
— CoP Made Clear (@CoPhub) July 11, 2019
Guidance on spent convictions etc. Ministry of Justice, 'Updated guidance on the Rehabilitation of Offenders Act 1974' (4/3/14) — Is a restricted hospital order spent when the patient is conditionally discharged or when he is absolutely discharged? The M… https://t.co/4WiCIPl0mN
— Mental Health Law (@MHLonline) July 11, 2019
Job advert. Noble Solicitors, Luton - mental health panel member. See Jobs https://t.co/485hmCc8yc
— Mental Health Law (@MHLonline) July 11, 2019
Case (Death - wishes and feelings). Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21
— "I am being asked to take today an irreversible decision that will lead inevitably to death sooner rather than later and probab… https://t.co/52j0A4FPbX— Mental Health Law (@MHLonline) July 8, 2019
Case (Jehovah's Witness - blood transfusion). Manchester University NHS Foundation Trust v DE [2019] EWCOP 19
— "The only issue during the hearing was the degree to which DE's wishes and feelings would be overborne by a decision to allow a blood transf… https://t.co/755Lz8llVd— Mental Health Law (@MHLonline) July 8, 2019
Case (Litigation friend). Jamous v Mercouris [2019] EWHC 1746 (QB)
— "The essential questions are: (1) Does Mr Jamous lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs Jamous satisfies the conditions … https://t.co/RMbnmEDyjx— Mental Health Law (@MHLonline) July 6, 2019
Guideline for manslaughter sentencing. Sentencing Council, 'Manslaughter: Definitive guideline' (published 31/7/18, enforcement date 1/11/18)
— This document has the following headings: (1) Applicability of guideline; (2) Unlawful act manslaughter; (3)… https://t.co/w9az4hj2DY— Mental Health Law (@MHLonline) July 5, 2019
Case (Summary of MH sentencing guidance - life sentence replaced with s37/41). R v Fisher [2019] EWCA Crim 1066 — Having summarised the Sentencing Council's Definitive Guideline for Manslaughter (in force 1/11/18) and the relevant available disposals und… https://t.co/jj2WCj9WTX
— Mental Health Law (@MHLonline) July 5, 2019
Court of Protection: United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24 (04 July 2019) https://t.co/D3EaKyK1PP
— Mental Health Law (@MHLonline) July 4, 2019
Other items
- Jul 2019: Bashir v Bashir [2019] EWHC 1810 (Ch)B (18 July 2019)
- Jul 2019: Keiserie, R (On the Application Of) v Secretary of State for Justice [2019] EWHC 2252 (Admin)B (02 July 2019) - licence conditions
- Jul 2019: Guardian - CQC places two Priory Group hospitals in special measures Facilities in Blandford, Dorset, and Royston, Hertfordshire, rated inadequate by inspectors
- Jul 2019: Court of Protection: Birmingham City Council v SR [2019] EWCOP 28M (17 July 2019)
- Jul 2019: Guardian - Anorexia not just a psychiatric problem, scientists find
- Jul 2019: Independent - Woman who 'wants to die' must have chemotherapy, judge rules
- Jul 2019: Court of Protection: London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27B (16 July 2019)
- Jul 2019: Court of Protection: United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24B (04 July 2019)
=Has been added to MHLO
=Only appears in this list