March 2022 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 2209 categorised cases
- Chronology. See March 2022 chronology for this month's changes to the website in date order.
Cases
- Case (Private hearing). A Midlands NHS Trust v RD [2021] EWCOP 36 — This case (about non-treatment of anorexia) should be held in private, in particular because RD's wish that intensely personal matters be not discussed in public.
- Case (M'Naghten Rules and choice). R v Keal [2022] EWCA Crim 341 — (1) In order to establish the defence of insanity within the M'Naghten Rules on the ground of not knowing the act was "wrong", the defendant must establish both that (a) he did not know that his act was unlawful (i.e. contrary to law) and (b) he did not know that his act was "morally" wrong (also expressed as wrong "by the standards of ordinary people"). "Wrong" means both against the law and wrong by the standards of ordinary reasonable people. (2) Under the M'Naghten Rules, the defence of insanity is not available to a defendant who, although he knew what he was doing was wrong, believed that he had no choice but to commit the act in question. (3) The current law on insanity cannot be interpreted as involving an element of "choice", as significant changes to an aspect of our criminal law that has remained undisturbed for so long, laden with policy choices as they would be, are more properly for Parliament. (4) The judge's direction of law in the present case was appropriate and the convictions are safe.
- Case (Abortion). S v Birmingham Women's And Children's NHS Trust [2022] EWCOP 10 — (1) The medical bodies' assertion that there had been "unanimous agreement" that S lacked capacity or that abortion was not in her best interests was a distortion of reality, as they had excluded S's objections from their decision making. Their failure to refer the matter to court, which was in contravention of Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2, meant that: (a) S, while a s3 patient and at the cost of incurring personal debt, had to bring proceedings herself; (b) there was extreme time pressure, the last day for a lawful abortion being the day after the hearing; and (c) the hearing inappropriately had to be held remotely and without the opportunity for public observation. (2) The relevant information in this particular case was: (a) what the termination procedures involve for S ("what it is"); (b) the effect of the termination procedure/the finality of the event ("what it does"); (c) the risks to S's physical and mental health in undergoing the termination procedure ("what it risks"); (d) the possibility of safeguarding measures in the event of a live birth. (3) S had capacity to decide whether to have an abortion.
- Case (Litigation capacity, bulimia). Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 — (1) The court-appointed expert had wrongly treated Mostyn J's decision in An NHS Trust v P [2021] EWCOP 27 (that it is virtually impossible and would be completely illogical to say that someone has litigation capacity despite lacking subject matter capacity in medical treatment cases) as meaning the two tests were synonymous, and had wrongly confused the likely unwise instructions with lack of capacity to instruct a legal adviser: Q had capacity to litigate. (2) The judge also disagreed with the expert on capacity in relation to potassium treatment for hypokalaemia (a consequence of bulimia) and found it difficult to resist the conclusion that the independent expert's instinctive professional desire to save Q's life had allowed the "tail of welfare to wag the dog of capacity" (for example, the expert's opinion was that Q attributed little value to her own life and saw little of value in her future, but this did not necessarily mean that her ability to weigh life and death medical decisions in the balance was impaired; instead, it might represent a finely calibrated utilitarian calculation). Q had capacity despite her decisions being unwise and most likely to hasten her death. (3) For essentially the same reasons, she had had capacity when she made an advance decision to refuse treatment.
Resources
- Social care detention. Lucy Series, Deprivation of Liberty in the Shadows of the Institution (Bristol University Press, 2022) — "A socio-legal analysis of social care detention in the post-carceral era." Free Kindle/ePUB/PDF versions are available.
- Summary of consultation. Alex Ruck Keene, 'MCA Code/LPS implementation consultation - rapid reaction overview and walkthrough' (MCLAP blog, 17/3/22) — This is a detailed summary of the MCA Code and LPS consultation, together with a 19-minute video walkthrough.
- MCA Code of Practice and LPS. DHSC, 'Changes to the law and guidance about making your own decisions (easy read)' (consultation from 17/3/22 to 14/7/22) — "The government is making changes to the rules about making your own decisions. We are updating the Mental Capacity Act Code of Practice and considering a new system of safeguards - the Liberty Protection Safeguards." Deadline extended from 7/7/22 to 14/7/22.
- LPS implementation in Wales. Welsh Government, 'Liberty protection safeguards' (consultation from 17/3/22 to 14/7/22) — Welsh consultation. Deadline extended from 7/7/22 to 14/7/22.
- MCA Code of Practice and LPS consultation. DHSC, 'Changes to the MCA Code of Practice and implementation of the LPS' (consultation from 17/3/22 to 14/7/22) — "This consultation seeks views on proposed changes to the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards." Deadline extended from 7/7/22 to 14/7/22.
- LPS implementation. DHSC, 'Liberty Protection Safeguards Newsletter - Consultation Announcement' (17/3/22) — The DHSC and MOJ will consult on proposed changes to the MCA Code of Practice (and on other new documents) for 16 weeks from 17/3/22 to 7/7/22.
- Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 120, March 2022) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Capacity to refuse treatment while on a CTO and deprivations of liberty for children; (2) In the Property and Affairs Report: testamentary capacity; (3) In the Practice and Procedure Report: naming P, public or private hearings, judicial visits and litigation capacity; (4) In the Wider Context Report: voting rights and disability, sufficiency of care and Article 8, and Article 2 inquests; (5) In the Scotland Report: Guardians’ remuneration and the Scottish Mental Health Law."
- Certificated work guidance. Legal Aid Agency, 'Civil Finance Electronic Handbook' (v3.2.1, 22/2/22) — This is the certificated work equivalent of Legal Aid Agency, 'Escape Case Electronic Handbook' (v2.1, 22/2/22). Newer version: Legal Aid Agency, 'Civil Finance Electronic Handbook' (v3.4, dated 1/8/23).
- Escape case guidance. Legal Aid Agency, 'Escape Case Electronic Handbook' (v2.1, 22/2/22) — The changes from v2, as set out in Appendix 12, are: "8.2: Removed reference to priority returns and hard rejects" and "10.2: Reworded paragraph to make clear that providers charge is only applicable in family help lower". Newer version: Legal Aid Agency, 'Escape Case Electronic Handbook' (v2.3, 1/8/23).
- Contract extension. Legal Aid Agency, 'Headline intentions for civil contracting' (March 2022) — The LAA's current intention is that the Standard Civil Contract 2018, already extended until 31/8/22, will be extended again until 31/8/23 (immigration will be extended for a shorter period).
- LPS implementation. DHSC, 'Liberty Protection Safeguards Newsletter - March 2022' (10/3/22) — A joint consultation published by DHSC and MOJ on the draft MCA Code of Practice will take place soon, and will run for 16 weeks (rather than 12) to take account of May's local government elections. At the same time six sets of draft regulations and various other documents will be published.
Events
- Event. Event:Court of Protection User Group Meeting (online, 20/4/22) — This meeting will be "held remotely via MS Teams (in person upon request)". 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 1/4/22. See COP User Group, 'Minutes of Court User Group Meeting' (20/4/22).
Jobs
- Job advert. Mackintosh Law, London - Court of Protection (Welfare) Solicitor (deadline 28/3/22). See Jobs
Social media
Nothing to report this month.
Other items
- Mar 2022: https://www.gov.uk/government/news/civil-news-updates-to-electronic-handbooks-to-help-with-claims
- Mar 2022: https://www.hempsons.co.uk/news-articles/the-devon-decision-and-remote-examination-where-do-go-from-here/ and their earlier guidance. Recommend all physical. Discharge and reassess s2, 3, 4, 7. Recommend old s2 to new s3 (or s2 but keep to original 28 days). F2F s3 ok even if s2 was remote. No need for SOAD to examine at all. CTO: remote should be OK but need good reason; invalid s3->CTO invalid (would need new s3). Renewals: likely court would say examine=personally examine; could redo renewal if CTO not expired. Seclusion: guidance was good reason for remote before Devon; direct clinical review from now on. MDT reviews: ok but caveat. Inform all even if discharged. CTO renewals: likely main area of video exams; lobby for retrospective law change?; ok to wait a week to see? Claims: potentially nominal; need good records etc.
- Mar 2022: https://www.mentalcapacitylawandpolicy.org.uk/personal-examination-and-the-mha-faqs-following-the-devon-judgment/
- Mar 2022: https://www.irishtimes.com/news/health/psychiatrists-oppose-potentially-catastrophic-planned-changes-to-involuntary-detention-1.4825841
- Mar 2022: Pennine Care NHS Foundation Trust v Mrs T & Ors (Rev1) [2022] EWHC 515 (Fam)M (11 February 2022)
- Mar 2022: https://www.communitycare.co.uk/2022/03/22/guide-to-the-draft-mca-code-of-practice/
- Mar 2022: https://www.irwinmitchell.com/news-and-insights/newsandmedia/2022/march/settlement-for-lancashire-man-with-autism-unlawfully-detained-in-care-home-for-more-than-seven-years
- Mar 2022: Denis Campbell, 'Inquiry investigates deaths of 1,500 NHS mental health patients in Essex' (Guardian, 28/3/22)
- Mar 2022: https://courts.ie/acc/alfresco/3528f603-61b1-4f74-bfdf-e927d26e5647/2022_IECA_71_(Unapproved).pdf/pdf
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