May 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 2153 categorised cases

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

Cases

• Case (Fitness to plead in confiscation proceedings). Ihenacho v London Borough of Croydon [2021] EWCA Crim 798 — The appellant had dishonestly made welfare benefits claims, was deemed to have benefitted in the sum of £590,316.08, and a confiscation order equalling her realisable assets of £283,214.90 was made. She argued that fresh psychiatric evidence showed she had been unfit to plead at the time of the confiscation hearing so the matter should be reconsidered, and without the s10 Proceeds of Crime Act 2002 assumptions (assumptions to be made in case of criminal lifestyle). The Court of Appeal admitted the fresh evidence but held that it had not been shown on the balance of probabilities that she was not fit to plead at the relevant time.

• Case (Non-treatment of anorexia). A Midlands NHS Trust v RD [2021] EWCOP 35 — The Trust had decided not to treat RD's anorexia compulsorily under the MHA (even though that might, in the short term, prevent her death) and applied to the Court of Protection for legal protection. The court decided she lacked the relevant capacity and that further compulsory treatment was not in her best interests ("I am removing any threat of compulsion or compulsory admission to hospital under the Mental Health Act from RD"). The declarations were made under the inherent jurisdiction (as well as the MCA) since questions involving the MHA involve public law matters, in particular that doctors have to take into account the safety of the public.

• Case (Coronavirus vaccination). SS v London Borough of Richmond upon Thames [2021] EWCOP 31 — (1) SS lacked capacity, owing to dementia, to decide whether to take a coronavirus vaccination, but consistently and volubly opposed it. (2) If she had capacity she should most likely would have refused: previously she had always attended to her medical welfare but resisted vaccinations. (3) It would not be in her best interests to persuade her by lying that her dead father had requested she take the vaccination. (4) It would not be in her best interests to administer it by force (sedation and restraint), as best interests requires evaluating welfare in a sense broader than merely epidemiological: SS would look to the carers to help, and they would not be able to intervene, which likely would dismantle the tentative trust that had been established over the months.

• Case (Agoraphobia and pregnancy). A NHS Foundation Trust v An Expectant Mother [2021] EWCOP 33 — The expectant mother's severe agoraphobia meant she might not be able to travel to hospital even if that became medically necessary. The court decided that: (1) she lacked capacity to make decisions about the location of the delivery of her baby; (2) it was in her best interests to be taken to hospital for a planned delivery, using force and involving deprivation of liberty if necessary; (3) she had capacity to choose between induced labour and Caesarean section, and between local and general anaesthetic.

• Case (Immigration, capacity and marriage). Navaraththinam v Entry Clearance Officer Colombo [2021] UKAITUR HU135462019 — The appellant challenged the judge's rejection of his appeal against entry clearance refusal. The Upper Tribunal held that: (1) the judge's comments on the sponsor's capacity were consistent with the presumption of capacity (despite misgivings); (2) in any event, the judge came to her conclusions on the genuineness and subsistence of the appellant's marriage (which began with a foreign ceremony in which the sponsor had given her communication via emojis and continued without any romantic relationship) without factoring into that what she had concluded or failed to conclude about capacity.

• Case (Anorexia). A Mental Health Trust v ER [2021] EWCOP 32 — (1) The parties agreed that ER lacked capacity to make decisions about her anorexia or the litigation, and the judge, having explored her doubts in detail, ultimately came to the same view. (2) It was not in ER's best interests to be forced to accept treatment or inpatient admission, given her renal failure and extreme dislike of eating disorder units and psychiatric hospitals. (3) More support in the community, in particular moving to a supported living placement where she could have dialysis and more support and company, would be in her best interests, and the local authority and CCG were joined as parties and directed to give evidence of proposals for extra support.

• Case (Removing all conditions of discharge). DA v Central and North West London NHS Foundation Trust [2021] UKUT 101 (AAC) — Judicial summary: "On an application under s.75 by a conditionally discharged restricted patient who has to date been subject to conditions there is nothing intrinsically irrational in removing the conditions while maintaining the liability to recall: R (SH) v MHRT [2007] EWHC 884 (Admin)^M and R (SC) v MHRT [2005] EWHC 17 (Admin)^M applied. Nor was there anything irrational in the particular circumstances of this case where the First-tier Tribunal retained liability to recall as a safety net and (though the point was not fully argued) dispensed with the conditions with a view to the patient strengthening his case before a subsequent tribunal. However, the First-tier Tribunal’s reasons failed to meet the legal standard of adequacy, lacking findings as to the likelihood of the appellant becoming unwell and failing to explain why a less restrictive option supported by evidence in some detail from the treating professionals was rejected."

• Case (Removal of family member from home). A Local Authority v TA [2021] EWCOP 22 — GA was an 87-year-old woman who lacked capacity to make decisions about her residence, health, or care needs owing to severe and deteriorating dementia. Living with her was her son TA (a controlling presence), daughter XA (visiting to assist TA), and son HA (believed to have schizophrenia). The court ordered TA and XA to leave the home, so that GA could receive social and medical care at home and have contact with other members of the family, and authorised GA's deprivation of liberty there. The court also prevented TA from returning within 100 yds, ordered him not to use GA's Motability car and not to publish information on the internet, limited his correspondence with the local authority and Official Solicitor, and made a civil restraint order for a period of two years. Committal proceedings brought by the local authority were to be considered at a future hearing.

• Case (Section 117 accommodation). R (ZK) v Norfolk County Council [2021] EWHC 1249 (Admin) — The claimant unsuccessfully argued that to return her to her flat (a sheltered accommodation one-bedroom flat) would be in breach of the defendant's s117 duties.

• Case (Residence/care capacity). Y CCG v KG [2021] EWCOP 30 — In these s21A proceedings, the Court of Protection decided that KG, who had been clinically fit for discharge from hospital for two years but was extremely resistant to leaving hospital, lacked capacity in relation to future residence and care.

• Case (Litigation capacity and litigation friend). Greetham v Greetham [2021] EWHC 998 (QB) — The court considered whether the defendant lacked capacity to conduct litigation, and was therefore a protected party; and if so whether his brother's application to be appointed as litigation friend satisfied the conditions of Civil Procedure Rules, rule 21.4(3) as applied by rule 21.6(5).

• Case (Testamentary capacity and delusions). Clitheroe v Bond [2021] EWHC 1102 (Ch) — (1) It was not in the interests of justice to allow the question whether testamentary capacity should be determined using the MCA test rather than the Banks v Goodfellow test to be raised on appeal (though the judge would have concluded that the Banks test continues to apply). (2) In relation to delusions (part of the Banks test): "In order to establish whether a delusion exists, the relevant false belief must be irrational and fixed in nature. It not an essential part of the test that it is demonstrated that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature can be demonstrated in another way, for example by showing that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware and would not have forgotten."

• Case (Protected party and Part 36). Wormald v Ahmed [2021] EWHC 973 (QB) — After suffering a cardiac episode in September 2020, the claimant in this road traffic PI claim (through his litigation friend) accepted a Part 36 offer made in 2014, and died later the same day. The defendants sought to withdraw the offer when informed of the death. The court considered the following questions: (a) where a protected party accepts a Part 36 offer is the other party subsequently able to withdraw that offer before approval of the settlement? and (b) when the court is asked to approve a settlement, on what grounds (if any) can a Part 36 offer be withdrawn and approval of a settlement be refused? On the facts (including the disparity in the parties' knowledge about the changed prognosis) it seemed unjust for the defendant to be bound by the Part 36 offer, but a final determination would be made after the claimant had had the opportunity to provide further information.

• Case (Unlawful immigration detention). AO v Home Office [2021] EWHC 1043 (QB) — Some arguments in this immigration case involved the claimant's mental health.

• Case (Subject-matter and litigation capacity). An NHS Trust v P [2021] EWCOP 27 — P's psychiatrist initially stated that P lacked subject matter capacity (whether to take HIV medication) yet had litigation capacity. (1) The judge: (a) disagreed with the proposition that if a person lacks capacity to conduct proceedings as a litigant in person she might, nevertheless, have capacity to instruct lawyers to represent her and that the latter capacity might constitute capacity to conduct the litigation in question; (b) thought it virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter (it would be as rare as a white leopard). (2) On the facts, P lacked both subject matter capacity and litigation capacity.

Resources

• Sex offenders. Jacqueline Beard, 'Registration and Management of Sex Offenders' (House of Commons Library briefing paper no 5267, 3/2/21) — This document contains information under the following headings: (1) Legislative background; (2) Notification requirements: the "sex offenders register"; (3) Notification Orders; (4) Sexual Harm Prevention Orders; (5) Sexual Risk Orders; (6) SHPO/SROs: Foreign travel restrictions.

• Use of force consultation. DHSC, 'Mental Health Units (Use of Force) Act 2018: statutory guidance for NHS organisations in England and police forces in England and Wales' (consultation from 25/5/21 to 17/8/21) — "We want your views on the statutory guidance to prevent the inappropriate use of force and ensure transparency and accountability about the use of force in mental health units."

• Puberty blockers. Rachel Cooke, 'Tavistock trust whistleblower David Bell: ‘I believed I was doing the right thing’' (Guardian, 2/5/21) — This article is based on an interview with Dr David Bell, who was given permission by the Court of Appeal to intervene in the appeal from Bell v Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin). The heading refers to his view of writing a report in 2018 critical of the Tavistock Centre's approach to children and its "at once Kafkaesque and cack-handed" response.

• Vulnerability support hubs. Jamie Grierson, 'Mental health tests in the presence of counter-terror units ‘unethical’, says charity' (Guardian, 19/5/21) — This article contains criticisms of counterterrorism vulernability support hubs (partnership services between NHS forensic mental health teams and police forces) based on a report by charity MEDACT.

• COPUG minutes. Minutes of Court User Group Meeting (14/4/21) — These are the minutes of Event:Court of Protection User Group: Meeting (online, 14/4/21), including the appendices and list of action points. The next meetings are: (1) Court User Group for property and affairs matters only, 24 June 2021 at 2pm; (2) General Court User Group, 13 October 2021 at 2pm.

• Result of public MHRT hearing. The Times, 'Broadmoor man fails in freedom plea' (7/3/75) — This article is a follow-up to Stewart Tendler, '‘Public before press’ move backfires at Broadmoor tribunal' (The Times, 5/3/75), stating that the patient was not discharged by the tribunal.

• Press report of public MHRT hearing. Stewart Tendler, '‘Public before press’ move backfires at Broadmoor tribunal' (The Times, 5/3/75) — This newspaper article summarises what was believed to be the first public MHRT hearing, in 1975, of a convicted arsonist and sex offender whose solicitor argued was not suffering from psychopathic disorder and should be discharged from Broadmoor.

• Publishing and reporting UT decisions. Upper Tribunal, 'Consultation paper on access to decisions and reporting in UTAAC' (consultation from 10/5/21 to 1/8/21) — This consultation sets out the difference between Upper Tribunal (Administrative Appeals Chamber) decisions which are unpublished, published (which have a UKUT neutral citation number) and reported (which in addition have an AACR citation); and the rules and customs for precedent within the UT (AAC). There are two questionnaires (one for social security, and one for everybody else) asking about how you access UT (AAC) decisions and your views on the Administrative Appeal Chamber Reports.

• Tribunal guidance for doctors. RCPsych and Tribunals Judiciary, 'Guidance for Detaining Authorities and Tribunal Panels about medical evidence for First Tier Tribunal - mental health' (June 2015) — This document contains information under the following headings: (1) Background; (2) Grades of trainee; (3) Guidance on Medical Report writing; (4) Experience required to give oral evidence at a tribunal hearing; (5) Observations of tribunal hearings; (6) Arranging Observations; (7) References. Superseded by: RCPsych and Tribunals Judiciary, 'Guidance for Detaining Authorities and Tribunal Panels about medical evidence for First Tier Tribunal - mental health' (April 2019).

• MHA reform consultation response. Law Society, 'White paper on reforming the Mental Health Act - Law Society response' (22/4/21) — The website's summary page mentions resources, treatment to facilitate early discharge, arbitrary distinctions between classes of patients (based on capacity and involvement in the criminal justice system), earlier automatic tribunal references for people with impaired mental capacity, and community-based alternatives for those with learning disability/autism rather than continued detention outside the MHA.

• Ordinary residence and s117. DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 21/4/21) — The Secretary of State has lodged an application for leave to appeal the R (Worcestershire County Council v SSHSC [2021] EWHC 682 (Admin) decision, and will continue not to decide disputes on matters which raise similar issues until the courts have made their final decision. His position is set out in the summary of the earlier DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20). Superseded by DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 27/8/21).

• Book update. Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/5/21) — This web page contains quarterly updates to Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (3rd edn, LAG 2019). The paragraphs amended since the previous update are: 3.40, 4.97-4.100, 10.17, 11.7, 12.12, 12.40, 17.20, 21.39, 22.78, 23.2, 26.9 and 27.6. Newer version: Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/11/21).

News

• Supreme Court grant PTA in JB case. On 13/4/21 Lords Hodge and Hamblin and Lady Arden granted permission to appeal against the Court of Appeal decision in A Local Authority v JB [2020] EWCA Civ 735 (capacity and sex). Supreme Court reference: UKSC 2020/0133.

Events

• Event. Event:Court of Protection User Group: General meeting (online, 27/10/21) — This meeting, unlike the earlier Event:Court of Protection User Group: Property and affairs meeting (online, 24/6/21), is for COP matters generally. Please email Natalie.Cheesewright@Justice.gov.uk if you wish to attend. On 4/8/21 it was posponed from 13/10/21 to 27/10/21 at 2pm. See updated agenda. See COP User Group, 'Minutes of Court User Group Meeting' (27/10/21).

• Event. Event:Court of Protection User Group: Property and affairs meeting (online, 24/6/21) — This Court User Group meeting is for P&A matters only and will take place via Microsft 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 10/6/21. Minutes of previous meeting.

• Event. Event:University of Manchester: Dementia Carer Rights (online, 11/6/21) — "Do you help someone in your family living with dementia? Do you know what your legal rights are? Join us to find out." Speaker: Neil Allen. Cost: free. See Eventbrite website for further details and booking information.

• Event. Event:MHLA: Refresher and Re-accreditation course (online, 23/7/21) — This course will be suitable for those seeking re-accreditation, by: (a) reviewing the legal and procedural developments of the last three years; (b) providing a forum for discussing these along with the re-accreditation process; (c) fulfilling the requirement to obtain six mental health CPD points for re-accreditation. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Refresher and reaccreditation (online, 16/7/21) — This course will be suitable for those seeking re-accreditation, by: (a) reviewing the legal and procedural developments of the last three years; (b) providing a forum for discussing these along with the re-accreditation process; (c) fulfilling the requirement to obtain six mental health CPD points for re-accreditation. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Panel course (online, 28-30 June 2021) — The MHLA is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. The course will take place via Zoom on three consecutive afternoons, from 1300 until 1700 each day. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). Booking closes at 1700 on 30/9/20. See MHLA website for further details and to book online.

• Event. Event:MHLA: Foundation course (online, 18/6/21) — "This course is aimed at new practitioners and those intending to attend the Panel course in the near future. Attendance at the Foundation course is strongly recommended in order to achieve a sound understanding of the basic principles of mental health law, practice and procedure and in order to achieve the most from the two-day Panel course, which is a pre-requisite for application to The Law Society’s mental health panel." Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Refresher and Re-accreditation course (online, 4/6/21) — This course will be suitable for those seeking re-accreditation, by: (a) reviewing the legal and procedural developments of the last three years; (b) providing a forum for discussing these along with the re-accreditation process; (c) fulfilling the requirement to obtain six mental health CPD points for re-accreditation. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Hospital Manager's Hearings (online, 28/5/21) — Aimed at new caseworkers doing Hospital Managers’ hearings. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Peer Review (online, 21/5/21) — This course will broaden practitioners' knowledge of the peer review process and the peer review 'Improving your Quality' guidance. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Restricted cases (online, 11/6/21) — Learning Objectives: (1) Restricted sections and provenance; (2) Duration of restricted sections; (3) Powers of MHT; (4) Managing a restricted case - key things to consider for the MH lawyer; (5) MAPPA. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:MHLA: Restricted cases (online, 14/5/21) — Learning Objectives: (1) Restricted sections and provenance; (2) Duration of restricted sections; (3) Powers of MHT; (4) Managing a restricted case - key things to consider for the MH lawyer; (5) MAPPA. Cost: £120 (members); £160 (non-members). See MHLA website for further details and booking information.

• Event. Event:PELT: Masterclass - MCA, DOLS, COP and new LPS (online, 25/1/22) — "The course will examine in detail recent important developments in MCA/DoLs and the Court of Protection. This will be updated as developments occur." Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information. Postponed from 17/11/21 to 25/1/22.

• Event. Event:PELT: Introduction to COP, including s21A appeals (online, 10/11/21) — "The Court of Protection addresses issues not only of finances but also where deprivation of liberty safeguards and procedures are authorised or challenged, disputed capacity issues are resolved, and where arguments about adult protection and best interests are determined. It is essential that all those working with vulnerable people / safeguarding have an understanding of how to access and use the Court. In certain circumstances there is a legal obligation on authorities to apply to the Court. The course will include updates relating to appeals against Liberty Protection Safeguards if implementation is imminent." Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.

• Event. Event:PELT: Sex, marriage and relationships (online, 16/6/21) — "Most of us have the right to make unwise decisions. However, in the murky and untidy world of incapacity, life is not like that. The MCA is clear, if you lack capacity to engage in sexual relations, that is it, you cannot do it. Even if you have been married to that person for 60 years. The Court of Protection has been grappling with this thorny subject for many years. There are also many related aspects." Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.

Jobs

• Job advert. Mind, London - Lawyer (deadline 1/6/21). See Jobs

• Job advert. Morgan Cullen and Ball, Birmingham - Mental health panel members (deadline 30/6/21). See Jobs

Social media

Nothing to report this month.

Other items

• May 2021: Commission on Race report
• May 2021: MEDACT report on Vulnerability Support Hubs
• May 2021: Mental health tests in the presence of counter-terror units ‘unethical’, says charity - Guardian
• May 2021: Detainees under compulsory confinement orders in prison psychiatric wings: the Court reviews progress since its W.D. v. Belgium1 pilot judgment ECHR
• May 2021: Possible changes to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 - GOV.UK
• May 2021: Mental Health History Timeline
• May 2021: A And B (Minors: placement, faith) [2021] EWHC 455 (Admin)^B (01 March 2021) - mental capacity mentioned
• May 2021: Southern Irish case S v Minister for Justice [2020] IEHC 632^M
• May 2021: Mail - Violent inmates are MORE likely to reoffend after going through 'rehabilitation' programmes, reveals shock study kept secret by ministers for three years
• May 2021: Chief Social Workers’ annual report: 2020 to 2021
• May 2021: MCLAP - Best interests, wishes and feelings and the Court of Protection 2015-2020 – new article
• May 2021: Parfitt v UK and also Parfitt v Guy's and St Thomas' Children's NHS Foundation Trust & Anor [2021] EWCA Civ 362^B (19 March 2021)
• May 2021: New Victim's COP from April 2021
• May 2021: Children's Rights and End of Life Decision-Making: In the Matter of JJ - Irish Judicial Studies Journal
• May 2021: Oct 2020 Welsh MHRT PD
• May 2021: SCR 'David' - Tate attack
• May 2021: Parfitt ECHR inadmissible
• May 2021: Legal aid stuff updated The following documents have been updated: Cost Assessment Guidance 2018, Cost Assessment Guidance 2018 (tracked changes), Cost Assessment Guidance 2013, and Cost Assessment Guidance 2013 (tracked changes
• May 2021: Community Care - Government appeals ruling overturning new approach to ordinary residence for aftercare Ministers' view, which goes against Care Act statutory guidance, is that responsibility for aftercare does not change when a person is detained multiple times from different areas, however this was rejected by the High Court
• May 2021: Woman ’caused significant stress’ by ‘unreasonable and avoidable delay’ in son’s return home - Community Care
• May 2021: Tavistock trust whistleblower David Bell: ‘I believed I was doing the right thing’ - Guardian

=Has been added to MHLO
=Only appears in this list