June 2022 chronology
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.
See June 2022 update for a thematic summary of these changes.
- 30/06/22(2125): MHA showing proposed amendments. Alex Ruck Keene, 'Mental Health Act 1983 as if amended by the draft Mental Health Bill' (30/6/22) —This document uses Microsoft Word tracked changes to show the amendments proposed by the Mental Health Bill 2022 to the Mental Health Act 1983, except for the transitional provisions in paras 19-23 of Schedule 1 in relation to autism and learning disability.
- 29/06/22(1915): Case (Re X procedure and 16/17 year olds). Bolton Council v KL [2022] EWCOP 24 — This detailed judgment addresses a COP9 application made by Bolton Council prior to the hearing for reconsideration of the decision to take the application out of the streamlined (Re X) procedure. It concluded: "KL's age at the time of the application, his being subject to a care order at the time of the application, his absence of family contact and the imminence of transition to adult services were all reasons which clearly led to the conclusion that he should be independently represented, by joinder as a party and appointment of a litigation friend for him." The judge then explained the court's approach: "(a) the court is unlikely to consider that the streamlined procedure is appropriate for authorisation of deprivation of liberty in the living arrangements of 16/17 year olds; (b) the court is unlikely to be critical of an applicant for bringing an application for authorisation of deprivation of liberty in the living arrangements of a 16/17 year old either by COP1 application to the appropriate hub court, or by streamlined application to the central registry at First Avenue House. It follows from (a) that the procedure adopted post-issue is likely to be substantially the same. If/when an in-person attended hearing is required, consideration will be given to transfer to a local hearing centre."
- 28/06/22(2106): Case (Coronavirus vaccination). A Clinical Commissioning Group v FZ [2022] EWCOP 21 — (1) The CCG's plan was for someone to befriend FZ over a number of visits, then for a vaccinator to attend and inject her swiftly before she was able to understand what was happening. No physical intervention and restraint was proposed and the court "would not entertain such an application were it to be made." (2) The court took the usual orthodox view as its starting point, by analogy with the High Court's approach to children: it is "very difficult to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the Court as being in the child's best interests absent a credible development in medical science or peer reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child". (3) However, wider best interests considerations include how the vaccination would be administered. In this case, FZ would resist, and the plan would likely fail, at least on the first attempt, and result in trauma for her and her family: overall, it was not in her best interests.
- 27/06/22(2239): MH Bill memorandum to scrutiny committee. DHSC and MOJ, 'Mental Health Bill: Memorandum from the DHSC and MOJ to the Delegated Powers and Regulatory Reform Committee' (27/6/22) —"This memorandum identifies the provisions of the draft Bill that confer powers to make delegated legislation. It explains why the power has been taken and explains the nature of, the reason for, and the procedure selected."
- 27/06/22(2235): MH Bill impact assessment. DHSC, 'Mental Health Act Draft Bill: Impact Assessment' (27/6/22) —Impact assessment for Mental Health Bill 2022.
- 27/06/22(2230): Explanatory notes. DHSC and MOJ, 'Draft Mental Health Bill: Explanatory Notes' (27/6/22) —"These Explanatory Notes have been prepared by the Department of Health and Social Care and by the Ministry of Justice in order to assist the reader of the draft Bill. ... These Explanatory Notes explain what each part of the draft Bill will mean in practice; provide background information on the development of policy; and provide additional information on how the draft Bill will affect existing legislation in this area."
- 27/06/22(2218): Legislation. Mental Health Bill 2022 — This Draft Bill proposes amendments to the MHA 1983 following SSHSC, LC and SSJ, 'Reforming the Mental Health Act: Government response to consultation' (CP 501, July 2021).
- 27/06/22(1513): Financial eligibility. Legal Aid Agency, 'Keycard 58' (April 2022) —This document is helpful when working out financial eligibility for civil Legal Aid. Superseded by Legal Aid Agency, 'Keycard 59' (April 2023).
- 25/06/22(2157): Case (Residence). A NHS Foundation Trust v G [2021] EWCOP 69 — G, now 27 years old, had been in a children's hospital since the age of 13. The court decided that it would be in her best interests to be discharged to a care home instead of to her family. The CCG were unprepared to pay the cost of a move home at that point so in reality there were only two options (the care home or the hospital).
- 25/06/22(2133): Case (Injunctions). A NHS Foundation Trust v G [2022] EWCOP 25 — G, now 27 years old, had been in a children's hospital since the age of 13. A previous judgment had decided that she should be transferred to a care home prior to any return home, but her father had sabotaged that placement. The Trust sought injunctive relief against G's father, mother and grandmother, in order to put in place clear boundaries to manage their behaviour. The family argued unsuccessfully that the s16(5) MCA 2005 power to make further "necessary or expedient" orders applied only in the context of the appointment of deputies, that s47(1) MCA 2005 (and therefore s37(1) Supreme Court Act 1981) is not apt to cover restricting behaviours in the context of either a hospital or care home, and that little or no weight should be afforded to the hearsay evidence of anonymous nurses about the father's behaviour. The court granted the relief sought.
- 22/06/22(0951): Longer listing window for s2 cases. Tribunal Procedure Committee, 'Possible amendments to the Tribunal Procedure (FTT) (HESC) Rules 2008' (consultation about s2 listing, from 21/6/22 to 16/8/22) —The tribunal always had 7 days to list s2 cases but during the coronavirus pandemic this was extended temporarily to 10 days. The consultation question is: "Do you agree that the proposed change to rule 37 of the HESC Rules, to permit section 2 MHA cases to be listed within 10 days of the date on which the MHT receives the application notice, should be made permanent? If not, why not?" See response: Tribunal Procedure Committee, 'Reply from the Tribunal Procedure Committee' (following consultation on changes to section 2 listing, 19/10/22).
- 21/06/22(1033): Consultation extension. DHSC, 'Consultation extension: Public consultation on the LPS extended until Thursday 14th July' (email, 21/6/22) —The deadlines for DHSC, 'Changes to the MCA Code of Practice and implementation of the LPS' (consultation from 17/3/22 to 14/7/22) and its Welsh equivalent have been extended from 7/7/22 to 14/7/22.
- 21/06/22(1020): Consultation deadlines extended. The deadlines for the following consultations have been extended from 7/7/22 to 14/7/22: (1) DHSC, 'Changes to the MCA Code of Practice and implementation of the LPS' (consultation from 17/3/22 to 14/7/22); (2) DHSC, 'Changes to the law and guidance about making your own decisions (easy read)' (consultation from 17/3/22 to 14/7/22); and (3) Welsh Government, 'Liberty protection safeguards' (consultation from 17/3/22 to 14/7/22).
- 21/06/22(0958): Event. Event:Court of Protection User Group: General meeting (online, 19/10/22) —This meeting will be held at 2pm via Microsoft Teams. Email Natalie.Cheesewright@Justice.gov.uk if you wish to attend. Items for inclusion in the agenda should be sent by 4pm on 5/10/22.
- 21/06/22(0946): COPUG minutes. COP User Group, 'Minutes of Court User Group Meeting' (20/4/22) —Topics include: Operations/Delivery Manager’s Report (Challenges and Recovery; Improvements; E-application and upfront notification pilot update; Document Upload Centre); Update from the Mental Capacity Policy Team; Hourglass - Safer Ageing goes 24/7; Costs on account; Proposal for workshop re streamlined applications; Open Justice Court of Protection Project (Listings; Transparency orders); SFE members (why so few so few finance and property cases are reported).
- 21/06/22(0942): AMCP consultation. Social Work England, 'Consultation on new education and training approval standards for approved mental capacity professionals' (consultation from 9/5/22 to 1/8/22) —"These standards that we are consulting on, like the standards that apply to qualifying social work education and training, set out our expectations for what courses need to do to be sure that those who qualify from them can practise as safe and effective AMCPs."
- 21/06/22(0939): AMHP consultation. Social Work England, 'Consultation on new education and training approval standards for approved mental health professionals' (consultation from 9/5/22 to 1/8/22) —"The standards that we are consulting on, like the standards that apply to qualifying social work education and training, set out our expectations for what courses need to do to be sure that those who qualify from them can practise as safe and effective AMHPs."
- 21/06/22(0927): Automatic disclosure of medical records. Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives and to Medical Members of the Tribunal' (17/11/21) —The changes from the earlier version are: (1) this is "[t]o limit contact and reduce risk during the Covid pandemic" rather than applying "[w]here there are restrictions on the ability of legal representatives to visit patients without undue delay and risk to themselves and others in the ongoing coronavirus pandemic"; (2) There is an extra paragraph: "The RA shall send the clinical notes to the eJudiciary email address of the Medical Member of the Tribunal no later than 3 days before the Tribunal."
- 20/06/22(0957): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 122, May 2022) —"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Fact-finding in relation to coercive and controlling behaviour; habitual residence; and how recent should evidence be for the deprivation of liberty of a child? (2) In the Property and Affairs Report: The Governments to the ‘Moderninsing Lasting Powers of Attorney’ consultation. (3) In the Practice and Procedure Report: Balancing privacy and open justice; costs of proceedings; and compliance with practice directions. (4) In the Wider Context Report: Mental Health Act reform; COVID-19 in care homes; and MARSIPAN is replaced. (5) In the Scotland Report: The World Congress; the Scott Review; and more on the PKM Litigation and Guardians’ remuneration."
- 20/06/22(0953): Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 121, April 2022) —"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Draft MCA and LPS Code published; capacity to terminate a pregnancy; the (limited) role of the Inherent Jurisdiction; and is an application needed in all vaccine disputes? (2) In the Property and Affairs Report: the Court of Appeal weighs in on testamentary capacity, and the evidence used to prove it; and an invitation to the pilot for digital submission of property and affairs cases; (3) In the Practice and Procedure Report: reporting restrictions; the role of COP in MHA discharge planning; costs; and notable conferences on capacity; (4) In the Wider Context Report: the impact of s.49 reports on mental health professionals; Article 2 and 3 damages claim; the M’Naghten test considered; and is having a deputy an Article 14 ‘status’? (5) In the Scotland Report: Guardians’ remuneration; open justice or anonymisation; and still time to contribute to the Scott Review or sign up to the World Congress on Adult Capacity in Edinburgh."
- 20/06/22(0929): Case (Unlawful detention). K v Clinical Director of Drogheda Department of Psychiatry [2022] IEHC 248 — The patient was discharged by the tribunal but almost immediately re-detained, initially under short-term holding power (under the Southern Irish MHA), when she tried to leave. Her detention was unlawful for two reasons: (a) she did not fall within the definition of a "voluntary patient" (this was because she was not being treated; her desire to leave was irrelevant); (b) the statutory forms had been incorrectly completed (and the "lamentable state of affairs" was not cured by a subsequent affidavit). The judge directed her release but asked her solicitor to advise her to consider remaining in hospital voluntarily.
- 20/06/22(0915): MHA reform. Katherine Garratt and Judy Laing, 'Reforming the Mental Health Act' (House of Commons Library research briefing CBP-9132, 6/6/22) —"The Government’s white paper on Reforming the Mental Health Act, published on 13 January 2021, contains wide-ranging proposals to reform the Mental Health Act 1983 (as amended in 2007) in England and Wales. This briefing outlines the background to the reforms, some of the main proposals in the white paper and initial reactions. It also outlines the Government’s response to a consultation on the white paper proposals."
- 20/06/22(0903): LPS implementation. DHSC, 'Liberty Protection Safeguards Newsletter' (14/6/22) —The email contains FAQs about DHSC, 'Changes to the MCA Code of Practice and implementation of the LPS' (consultation from 17/3/22 to 7/7/22), together with information under the headings: Draft templates covering the LPS process; LPS Steering Group meeting minutes; LPS policy team at DHSC.
- 18/06/22(1514): Observing Welsh tribunals. MHRT for Wales, 'Guidance for the observation of tribunal hearings' (Carolyn Kirby, 27/1/15) —This guidance is the same as English 2009 guidance except for some minor amendments. It is still in force (confirmed during May 2022) and does not include the changes made in the English 2019 guidance (the main changes there related to the need for observation requests).
- 18/06/22(1507): Event. Event:Court of Protection User Group: Property and affairs meeting (online, 6/7/22) —This meeting will be held remotely via MS Teams. Time: 2pm. Please email Natalie.Cheesewright@Justice.gov.uk if you wish to attend. Items for inclusion on the agenda should be sent by 4pm on 22/6/22.
- 10/06/22(1403): FFP v4.1 of Form H5 available. Version 4.1 of this Free Forms Project form fixes a minor bug, now allowing for section expiry dates to be in the future. See Form H5: Section 20 - renewal of authority for detention.
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