June 2020 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 2049 categorised cases
- Chronology. See June 2020 chronology for this month's changes to the website in date order.
Cases
- Case (Non-application of forfeiture rule). Re W [2020] UKUT 155 (AAC) — The forfeiture rule ("the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing") can be modified under the Forfeiture Act 1982 in the interests of justice but not following a conviction for murder. The Secretary of State initially argued that W had been convicted of murder. The Crown Court had found that, in relation to his wife's killing, W was unfit to plead but had done the act. The Upper Tribunal equated this with a finding of not guilty by reason of insanity, which for forfeiture rule purposes amounts to an acquittal, so there was no conviction and the forfeiture rule did not apply.
- Case (Protected party - litigation friend). Hinduja v Hinduja [2020] EWHC 1533 (Ch) — (1) Medical evidence on capacity to conduct proceedings is not required under the CPR, and in this case to require it would not be necessary or in accordance with the overriding objective. The court decided that SP was a protected party. (2) The defendants argued that the proposed litigation friend failed both limbs of the relevant test (ability fairly and competently to conduct proceedings and having no adverse interest). Having considered the tests (including noting that "[w]hether the existence of a financial interest on the part of the litigation friend should debar [her] from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend conducting the proceedings fairly and competently on the protected party's behalf") the court made the appointment sought.
- Case (Inquest determination and findings quashed). Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin) — The applicant, who had been the deceased's Relevant Person's Representative under a DOLS authorisation successfully argued for the inquest's determination and findings to be quashed.
- Case (Change from s3 to s37 during tribunal proceedings). GM v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 152 (AAC) — The First-tier Tribunal had been right to strike out proceedings arising from a s3 reference when the patient was subsequently made subject to a s37 hospital order. It would be contrary to statutory policy if the tribunal were to retain jurisdiction under an application or reference that was made before the date of the hospital order.
- Case (Foreign representative powers). Re GED [2019] EWCOP 52 — "[T]hree broad issues have been identified: (1) Is a foreign power of attorney capable of constituting a ‘protective measure’? (2) Is there a capacity threshold to the Court’s jurisdiction? (3) Where there is a valid and operable foreign power of attorney in place, is the jurisdiction of the Court of Protection under section 16 of the Mental Capacity Act 2005 limited?"
- Case (Disclosure of documents). Re Z [2019] EWCOP 55 — "This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making of the [court's] order."
- Case (Parole Board representation for those lacking capacity). R (EG) v Parole Board [2020] EWHC 1457 (Admin) — (1) The Parole Board Rules 2019 introduced a power to appoint a representative "where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner's best interests for the prisoner to be represented". In the absence of anything similar to the accreditation system operating in the MHT (and the LAA's pragmatic approach to the regulation preventing providers from making an application for Legal Aid) a solicitor cannot "assume the dual role of legal representative and litigation friend" and so this appointment power cannot be exercised. (2) The 2019 rules, although silent on the matter, allow for the appointment of a litigation friend because: (a) "other representative" in the expression "solicitor, barrister or other representative" includes litigation friend; and, if that is wrong, (b) as with the 2016 rules, it is allowed when necessary under the general power to make directions. (3) In the absence of an accreditation scheme or other litigation friend, the prisoner needed the Official Solicitor to act if his parole review was to progress; (obiter) the OS has the statutory power to act in Parole Board proceedings. (4) The judge limited her decision to issues concerning EG individually, and criticised counsel for EG and the EHRC for continuing the trend in public law litigation of grounds of challenge evolving during proceedings in a way which lacked procedural rigour (in this case, by raising wider issues including the identification and assessment of non-capacitous prisoners and the Public Sector Equality Duty).
- Case (Capacity in family case). CS v FB [2020] EWHC 1474 (Fam) — The judge in this international children law case made an interim declaration that the mother lacked capacity to litigate, to enable the Official Solicitor to be appointed as litigation friend and, with the benefit of legal aid, to investigate for final determination the mother's capacity to conduct these proceedings.
- Case (Inquest and DOLS). R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738 — "The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with section 5(2) of the Coroners and Justice Act 2009. ... Jackie was subject to a standard authorisation granted by Blackpool Council pursuant to the Deprivation of Liberty Safeguards set out in Schedule A1 to the Mental Capacity Act 2005. ... Jackie's circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family. She was not there for medical treatment. If she needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care."
- Case (Capacity and sexual relations). A Local Authority v JB [2020] EWCA Civ 735 — "The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations."
Resources
- DOLS case law summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary' (May 2020 edition, 21/5/20) — This two-page document summarises selected domestic and European caselaw on deprivation of liberty. There is a newer version: Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards - case law summary' (October 2020 edition, 22/10/20).
- DOLS statistics. NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2018-19' (21/11/19) — "These official statistics provide findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2018 to 31 March 2019."
- Coronavirus prison transfer guidance. HMPPS and NHS, 'Prison transfers and remissions to and from mental health inpatient hospitals in relation to COVID-19' (28/4/20) — The headings are: (1) Context and principles; (2) Protocol for the pathway; (2.1) Referral; (2.2) Assessment; (2.3) Requires transfer and detention under the Mental Health Act 1983 (MHA); (2.4) Remissions from mental health hospital to prison; (3) Contacts for national escalation (if required); (4) Useful resources and links.
- NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20) — "This guidance provides advice and support to commissioners (clinical commissioning groups [CCG] and specialised commissioning), providers (CCG commissioned and specialised commissioned), health care professionals, social workers, Approved Mental Health Professionals, local authorities, experts by experience, clinical experts, and independent chairs for Care and Education and Treatment Reviews, as well as regional NHS England and NHS Improvement colleagues, to help with the local planning already underway. The guidance will also be helpful for other individuals and partner organisations, involved in the pathways of care, for people with mental health needs, a learning disability and/or autism, including police, prisons and Immigration Removal Centres (IRCs)." The main headings are: (1) Introduction; (2) Key messages; (3) The Mental Health Act 1983 and the emergency Coronavirus Act; (4) Operational considerations for use of the MHA; (5) Guidance on using the Code of Practice during the COVID-19 pandemic period; (6) The Mental Capacity Act; (7) The Care Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (9) Escorting patients detained under the MHA, including those on Restriction Orders (Sections 41 and 49 MHA) to and from acute general hospitals; (10) Specific considerations for specialised commissioned services; (11) Specific considerations for learning disability and autism services; (12) Specific considerations for people with dementia; (13) Specific considerations for mental health, learning disability and autism and the Criminal Justice System; (14) Application of digital technology to Mental Health Act assessments; (15) Annexes: (Annex A) Resources that have been developed to support practice in mental health; (Annex B) Mental Health Casework Section; (Annex C) COVID-19 - Escorting patients detained under the Mental Health Act (MHA) including those on Restriction Orders (Sections 41 and 49) to and from acute general hospitals; (Annex D) Guidance on using the Code of Practice during the pandemic period: (a) Section 136 assessment; (b) Approved Mental Health Professionals (AMHPs) and responsibilities of Local Authorities; (c) The role of hospital managers’ panel; (d) Mental Health Tribunal Hearings; (e) Medical Reviews of Seclusion; (f) Section 17 leave and visitors; (g) Access to Independent Mental Health Advocates (IMHAs); (h) Second Opinion Appointed Doctors service; (i) Electronic forms and electronic delivery; (Annex E) Checklist to support decision in line with the minimum standards and safeguards on the application of technology to the MHA assessments. Superseded by: NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v3, 30/11/20).
Jobs
- Job advert. Abbotstone Law, London - Mental Capacity Consultant Solicitors. See Jobs
- Job advert. Abbotstone Law, London - Mental Health Consultant Solicitors. See Jobs
Social media
The Mental Health Act in Scotland is currently under review, and the Commission has just published its response to the Independent Review of Scottish Mental Health Law consultation.
Read more here:https://t.co/kkKmYdYZOS pic.twitter.com/6caDdF4sQy— Mental Welfare Scot (@MentalWelfare) May 29, 2020
Coroner criticises poor information sharing between two trusts (MH & Acute) as contributory to patient's deathhttps://t.co/2YStl9UiRr
— hundredfamilies (@hundredfamilies) June 7, 2020
Mental Health Trust admits negligence causing serious harm and pays £500,000 + legal costs
(Rare for negligence and liability to be admitted in MH)https://t.co/0WUH8qJzL7— hundredfamilies (@hundredfamilies) June 7, 2020
“Hancock overhauls approach to ordinary residence for Mental Health Act aftercare” https://t.co/Yp3WHywsjb
— Mental Health Law (@MHLonline) June 30, 2020
DOLS case law summaries. Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary' (May 2020 edition, 21/5/20) — This two-page document summarises selected domestic and European caselaw on deprivation of liberty. https://t.co/tlGHPMLPHO
— Mental Health Law (@MHLonline) June 27, 2020
Worcestershire Council is challenging this https://t.co/I1GvVd7tJO
— WelshGirlAbroad (@WGAbroad) June 27, 2020
For those interested in MHA s117 responsibilities, seems like the gov disagrees with gov’s own statutory guidance ... But please don’t let disputes affect the person. And as for the responsible s117 CCG and Who Pays?, don’t get me started...! https://t.co/nlppYDtWPq
— Neil Allen (@NeilAllen39) June 24, 2020
#DigitalMHA debate: How do we better include underserved groups in the discussion and the process of digitising mental health? This includes service users, carers and professionals.
Watch the public debate: https://t.co/JZOqktztQI pic.twitter.com/vGg8y3yRer— Thalamos (@Thalamos_) June 26, 2020
The sentencing remarks of Mrs Justice McGowan in R v Jonty Bravery can now be found online https://t.co/RO4J1d2lo9
— Judicial Office (@JudiciaryUK) June 26, 2020
Cecily White discusses R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2020] in her UK Inquest Law Blog. Read the full article here: https://t.co/lo79azj2Ab pic.twitter.com/rHg0lCjBa8
— Serjeants' Inn (@serjeantsinn) June 23, 2020
Elizabeth Fox discusses mental capacity to consent to sexual relations in the recent Court of Appeal case of Re JB (Capacity: Sexual Relations) [2020]. Read her full UK Medical Decision Blog here: https://t.co/iSRF1G8XYs pic.twitter.com/DPqix9lORk
— Serjeants' Inn (@serjeantsinn) June 25, 2020
Court of Protection: AA Local Authority v RS (Capacity) [2020] EWCOP 29 (22 June 2020) https://t.co/fVAo118QUr
— Mental Health Law (@MHLonline) June 26, 2020
Case (Non-application of forfeiture rule). Re W [2020] UKUT 155 (AAC) — The forfeiture rule ("the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the ki… https://t.co/nJzKQj6oFI
— Mental Health Law (@MHLonline) June 25, 2020
Case (Protected party - litigation friend). Hinduja v Hinduja [2020] EWHC 1533 (Ch) — (1) Medical evidence on capacity to conduct proceedings is not required under the CPR, and in this case to require it would not be necessary or in accordance with the … https://t.co/6If5ixyfAD
— Mental Health Law (@MHLonline) June 25, 2020
Case (Inquest determination and findings quashed). Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin) — The applicant, who had been the deceased's Relevant Person's Representative under a DOLS authorisation successfully argued for the inqu… https://t.co/m4KaD5hmWP
— Mental Health Law (@MHLonline) June 25, 2020
Case (Change from s3 to s37 during tribunal proceedings). GM v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 152 (AAC) — The First-tier Tribunal had been right to strike out proceedings arising from a s3 reference when the patient was su… https://t.co/sae8P6mtlA
— Mental Health Law (@MHLonline) June 25, 2020
Job advert. Abbotstone Law, London - Mental Capacity Consultant Solicitors. See Jobs https://t.co/HVSlfX7Y88
— Mental Health Law (@MHLonline) June 25, 2020
Job advert. Abbotstone Law, London - Mental Health Consultant Solicitors. See Jobs https://t.co/G1Sgjvh98L
— Mental Health Law (@MHLonline) June 25, 2020
Court of Protection: University Hospital Coventry and Warwickshire NHS Trust v K & Anor [2020] EWCOP 31 (22 June 2020) https://t.co/Wb2Fccf6pL
— Mental Health Law (@MHLonline) June 25, 2020
Contract changes come into force on 26 June allowing #legalaid crime providers to claim advocacy assistance fees for @Parole_Board’s intensive paper reviews.https://t.co/8jdsN96qml#lawfirms#legal pic.twitter.com/hevJS2CTd5
— Legal Aid Agency (@LegalAidAgency) June 24, 2020
The @PoliceChiefs strategy (2020) on policing and mental health —https://t.co/xGIMBDCbXH pic.twitter.com/c2kIbz3Ll7
— Michael Brown (@MentalHealthCop) June 24, 2020
Litigation capacity and litigation friends – news from the civil courts https://t.co/VwI4f5H2Nh
— Alex Ruck Keene (@Capacitylaw) June 24, 2020
High Court quashes inquest findings by Chinyere Inyama, West London Coroner, in 2016. New inquest ordered. Neither the applicant nor the coroner appeared or was represented. https://t.co/S8k1SQ94t2
— Joshua Rozenberg (@JoshuaRozenberg) June 23, 2020
“Government tells sector ‘not to prioritise’ Liberty Protection Safeguards preparations” https://t.co/po5rUp0JZg
— Mental Health Law (@MHLonline) June 24, 2020
Sorry - it looked like the right year but I should have logged in to check before replying! All published state documents should be publicly archived.
— Mental Health Law (@MHLonline) June 23, 2020
Is this it? https://t.co/k2elAagg9f
— Mental Health Law (@MHLonline) June 23, 2020
DOLS statistics. NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2018-19' (21/11/19) — "These official statistics provide findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collec… https://t.co/Kmw4EK1UJn
— Mental Health Law (@MHLonline) June 20, 2020
Case (Foreign representative powers). Re GED [2019] EWCOP 52 — "[T]hree broad issues have been identified: (1) Is a foreign power of attorney capable of constituting a ‘protective measure’? (2) Is there a capacity threshold to the Court’s jurisdiction? … https://t.co/d7MSmXY8A9
— Mental Health Law (@MHLonline) June 20, 2020
Case (Disclosure of documents). Re Z [2019] EWCOP 55 — "This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making… https://t.co/6mm1qjqsuQ
— Mental Health Law (@MHLonline) June 20, 2020
39 Essex Chambers June Mental Capacity Report https://t.co/kXjgShkTFk
— Alex Ruck Keene (@Capacitylaw) June 18, 2020
39 Essex Chambers June Mental Capacity Report – the 20 minute walkthrough! https://t.co/wd85b4sHYh
— Alex Ruck Keene (@Capacitylaw) June 18, 2020
Case (Parole Board representation for those lacking capacity). R (EG) v Parole Board [2020] EWHC 1457 (Admin) — (1) The Parole Board Rules 2019 introduced a power to appoint a representative "where the prisoner lacks the capacity to appoint a representa… https://t.co/IDBbnVhV5X
— Mental Health Law (@MHLonline) June 17, 2020
ICYMI: Council pays out £60,000 to woman caused ‘avoidable distress’ from failure to meet needs for five years https://t.co/iT90mVvgc7
— Community Care (@CommunityCare) June 17, 2020
Case (Capacity in family case). CS v FB [2020] EWHC 1474 (Fam) — The judge in this international children law case made an interim declaration that the mother lacked capacity to litigate, to enable the Official Solicitor to be appointed as litigation fr… https://t.co/YIStVC3EsA
— Mental Health Law (@MHLonline) June 11, 2020
Case (Inquest and DOLS). R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738 — "The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the co… https://t.co/7f3zKzG68t
— Mental Health Law (@MHLonline) June 11, 2020
Case (Capacity and sexual relations). A Local Authority v JB [2020] EWCA Civ 735 — "The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the othe… https://t.co/3r54RS58Cl
— Mental Health Law (@MHLonline) June 11, 2020
Key new bit is point (2)
— Tor Butler-Cole (@TorButlerCole) June 11, 2020
This is the full judgment: https://t.co/eqwWzlZl0q
— Tor Butler-Cole (@TorButlerCole) June 11, 2020
(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
— Tor Butler-Cole (@TorButlerCole) June 11, 2020
(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
— Tor Butler-Cole (@TorButlerCole) June 11, 2020
(2) the fact that the other person must have the capacity to consent to the sexual activity & must in fact consent before and throughout the sexual activity;
(3) the fact that P can say yes or no to having sexual relations & is able to decide whether to give or withhold consent;— Tor Butler-Cole (@TorButlerCole) June 11, 2020
New Court of Appeal decision on capacity to consent to sex. 5 pieces of relevant information:
(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;— Tor Butler-Cole (@TorButlerCole) June 11, 2020
Capacity, DOLS and Covid-19- Updated Guidance (via Passle) by @sophymiles1 https://t.co/WPUqlr1XzY #coronavirus #mentalcapacity #deprivationofliberty
— Sophy Miles (@sophymiles1) June 11, 2020
You can now read my article reviewing the Liberty Protection Safeguards, 'On detaining 300,000 people', in pre-print here https://t.co/DEDJ0Fq0Q1 (Hopefully the final version will soon be up on IJMHCL!)
— Lucy Series (@TheSmallPlaces) June 9, 2020
The Civil Justice Council report on the impact of COVID-19 on civil court users has been published. Read more here: https://t.co/bf2CDmTHOr
and find out more about the CJC here: https://t.co/91bjXjjEZV#CJCcovid— Judicial Office (@JudiciaryUK) June 5, 2020
Coronavirus prison transfer guidance. HMPPS and NHS, 'Prison transfers and remissions to and from mental health inpatient hospitals in relation to COVID-19' (28/4/20) — The headings are: (1) Context and principles; (2) Protocol for the pathway; (2.1) Re… https://t.co/Np58zyMguO
— Mental Health Law (@MHLonline) June 4, 2020
NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20) — "This guida… https://t.co/kCGIkK52g8
— Mental Health Law (@MHLonline) June 4, 2020
'How the Parole Board has adapted during a global pandemic'. Our work during Covid-19 features on the front page of the latest edition of Probation Quarterly.https://t.co/uX5kBQYNA7
— The Parole Board (@Parole_Board) June 3, 2020
Court of Protection: Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26 (01 June 2020) https://t.co/vyJDDCDZsX
— Mental Health Law (@MHLonline) June 3, 2020
Read our interim report @MHLRScot https://t.co/Wj3R6FyOoS
— John Scott QC (@johndscott) June 1, 2020
Other items
- Jun 2020: Lucy Series - Making sense of Cheshire West
- Jun 2020: Guidance: Ordinary residence 7: 2020
- Jun 2020: Care and support statutory guidance
- Jun 2020: Court of Protection: AA Local Authority v RS (Capacity) [2020] EWCOP 29B (22 June 2020
- Jun 2020: Court of Protection: University Hospital Coventry and Warwickshire NHS Trust v K & Anor [2020] EWCOP 31B (22 June 2020)
- Jun 2020: Community Care - Government tells sector ‘not to prioritise’ Liberty Protection Safeguards preparations
- Jun 2020: Court of Protection: Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26B (01 June 2020)
=Has been added to MHLO
=Only appears in this list