June 2021 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 2157 categorised cases

Chronology. See June 2021 chronology for this month's changes to the website in date order.

Cases

Case (Caesarean - severe criticism of Trust). University Hospitals Dorset NHS Foundation Trust v Miss K [2021] EWCOP 40 — (1) The application should have been made significantly earlier than the day before the proposed caesarean, and judicial criticism of delay felt like "a waste of breath" as it had been made so often. The Official Solicitor had been instructed the same day, and was unable to form a view on best interests, rendering her role effectively a "tick box exercise". (2) The Official Solicitor was "appalled" at the evidence of the consultant obstetrician, who decided that Miss K had capacity on 10/6/21 when she chose a caesarean on the basis that by giving birth sooner she could hold and keep safe her baby earlier, when in fact it had been decided on 20/5/21 that the local authority would take the baby so that when she woke up there would be no baby. (3) The court decided that a planned caesarean, Miss K having been taken from PICU to obstetric unit by force if necessary, was her best interests. In the event no force was necessary.

Case (DOLS scrutiny). Re YC [2021] EWCOP 34 — "This appeal raises an important question about how supervisory bodies should evidence their scrutiny of requests for authorisation of deprivation of liberty. ... There appears to be broad agreement that the following procedure is both workable and appropriate: (a) Firstly, the person granting the authorisation should carefully check that all details on Form 5 accurately reflect the other DOLS forms and relate to the particular P; (b) The Form 5 should be checked for accuracy by another member of the DOLS authorisation team of the supervisory body; (c) Form 5 should be provided to the RPR [Relevant Person's Representative] with a covering letter requesting that the RPR carefully checks that the forms, and all the information in them accurately relates to the relevant person; (d) An express requirement for the RPR to confirm accuracy to the supervisory body would be disproportionate but the RPR could do so."

Resources

Solicitors' ethics guidance. SRA, 'Guidance: Confidentiality of client information' (25/11/19) — Paragraph 6.3 of the SRA Code of Conduct states: "You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents." There are no exceptions. Instead of rectifying this deficiency in the rules, the SRA published this guidance (on 5/2/16, updated 25/11/19). Before setting out some scenarios, it states: “[I]n the situations described although there will be a breach of your duty, from a disciplinary point of view, the justification will be taken into account and is likely to mitigate against regulatory action by the SRA.” The scenarios are set out under the headings following headings: (a) Where a client has indicated their intention to commit suicide or serious self harm; (b) Preventing harm to children or vulnerable adults; (c) Preventing the commission of a criminal offence.

Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 114, June 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: substance over form in DoLS authorisations, complex questions of coercion in medical treatment, and the limits of fluctuating capacity in the context of sex; (2) In the Property and Affairs Report: a brisk dismissal of an attempt to appeal a judgment of Senior Judge Hilder about charging by a deputy, and easy read guides to making LPAs; (3) In the Practice and Procedure Report: an important rapid consultation on hearings and the judicial view of remote hearings; (4) In the Wider Context Report: the CPR responds to vulnerability, strengthening the right to independent living, capacity in the rear view mirror and the ECHR and the CRPD at loggerheads; (5) In the Scotland Report: the Mental Welfare Commission on hospital discharges, change at Scottish Government (but how much) and welfare guardianships and deprivation of liberty."

Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 113, May 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a judgment looking beyond the diagnosis, paying for sex and the Court of Protection, navigating autism and indoctrination and relevant updates about visiting guidance in relation to care homes; (2) In the Property and Affairs Report: a staunch judicial defence of Banks v Goodfellow, Child Trust Funds and capacity, and updates from the OPG; (3) In the Practice and Procedure Report: discharging a party without notice, the white leopard of litigation capacity and CoP statistics; (4) In the Wider Context Report: DNACPR [Do not attempt cardiopulmonary resuscitation] decisions during COVID-19, litigation capacity in the civil context, and the interaction between capacity and the MHA 1983 in two different contexts; (5) In the Scotland Report: the new Mental Welfare Commission practice guidance on capacity, rights, and sexual relationships. Our Scottish team has been too busy making law in different countries to write more this month, but will bring updates next month about legislative developments on the cards as the new Scottish administration finds its feet."

Family and COP consultation. Courts and Tribunals Judiciary, 'Launch of two-week rapid consultation on remote, hybrid and in-person hearings in the family justice system' (consultation from 10/6/21 to 27/6/21) — Consultation by Nuffield Family Justice Observatory (NFJO) at the request of the President of the Family Division: "This third survey will focus specifically on recovery; identifying good practice from remote and hybrid hearings and providing an evidence base to assist with the decisions regarding future ways of working, as we return to court."

News

Contributors page updated. The contributors page has been updated (and now uses a database to simplify keeping it up to date). If you have anything previously unpublished, especially a court or tribunal decision, then please send it in. You can remain anonymous if you prefer! See Contributors.

New database search forms. Search forms have been added on the following pages: (1) Mental health case law; (2) Legislation; (3) Resources; (4) 39 Essex Chambers Mental Capacity Law Newsletter. Please try them out and let me know how you find them.

Events

Event. Event:MHLA: Legal Aid supervision (online, 6/8/21) — This course covers the supervisor standards and procedures, and provides guidance and advice on how to supervise effectively and in line with contractual obligations. Cost: £120 (MHLA members); £160 (non-members). See MHLA website for further details and booking information.

Event. Event:MHLA: Legal Aid supervision (online, 2/7/21) — This course covers the supervisor standards and procedures, and provides guidance and advice on how to supervise effectively and in line with contractual obligations. Cost: £120 (MHLA members); £160 (non-members). See MHLA website for further details and booking information.