November 2021 update

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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 2193 categorised cases

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

Cases

Case (Capacity and sexual relations). A Local Authority v JB [2021] UKSC 52 — The joint expert described JB's number one priority as "to get" a woman as a sexual partner, with the sole goal being physical and sexual contact with a woman and any woman, and that JB lacked understanding of concepts of consent by the other person and so posed a risk of sexual offending to women. The Supreme Court (dismissing the Official Solicitor's appeal) decided that in assessing JB's capacity "the matter" was his "engaging in" (rather than consenting to) sexual relations, and that information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. The Supreme Court reiterated that capacity assessments should first ask whether the person is "unable to make a decision for himself in relation to the matter" (which involves formulating "the matter" and consequently identifying "the information relevant to the decision" which includes information about the reasonably foreseeable consequences to the patient and others) and secondly ask whether that inability is "because of" an impairment of, or a disturbance in the functioning of, the mind or brain. In relation to sexual relations "the matter" will ordinarily be formulated in a non-specific way: in this case JB's wishes were non-specific, but in another case "the matter" might be person-specific (e.g. sex between a long-standing couple where one person had a relevant impairment, or between two mutually-attracted people both with relevant impairments). The question of JB's capacity was remitted to the original judge for reconsideration.

Case (Capacity in various areas). Re ZK (No 2) [2021] EWCOP 61 — (1) In relation to residence, the judge noted: "ZK is having to learn that he can choose, as well as how to choose. If and when he develops that 'skill', he will almost certainly have capacity to make the decision." (2) The jointly-instructed expert had concluded that ZK had capacity to make decisions about contact with members of his family, but not others; the judge disagreed and, having decided that it would be unnecessary and disproportionate to direct further questions or to list a further hearing, declared that ZK lacked capacity in relation to contact with anyone. (3) The family asked for the residence decision to be revisited, but the judge decided that in the context of this litigation, its prolonged nature (it had begun over four years ago in relation to forced marriage concerns and continued in the COP), and the cost it must have had on all those concerned, it was not appropriate, necessary or proportionate to prolong matters further.

Case (Residence). Re ZK (No 1) [2021] EWCOP 12 — ZK was a 37-year-old man with Landau-Kleffner Syndrome who was belatedly learning how to be autonomous, in particular through BSL. It would accord with his clear wishes, and be in his best interests, to remain at his current placement (rather than return to his family) and to move to a second placement when it was ready.

Case (DOL during conditional discharge). Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam) — This decision demonstrates the Heath Robinson nature of today's mental health law. (1) The Supreme Court decision in MM meant that the patient could no longer remain conditionally discharged because he was being deprived of his liberty within the meaning of Article 5, so he was made subject to a "technical recall" and remained in the community on s17 leave under the same conditions. (2) The MHT then conditionally discharged him again, having correctly applied other domestic case law, because he was receiving no treatment in hospital so could not remain on s17 leave. (3) The SSJ would recall him to hospital if DOL in the community could not be authorised. (4) The court held that this outcome would violate the patient's Article 5(1) rights because being in hospital, even as an out-patient, was counter-therapeutic. (5) In order to avoid this violation, s72 should be read and given effect under s3 Human Rights Act 1998 so that "suffering from mental disorder ... which makes it appropriate for him to be liable to be detained in a hospital for medical treatment" includes liability to be "detained for treatment", even where that treatment is being provided in the community, so long as it could lawfully be provided in hospital. (6) Obiter, the inherent jurisdiction does not extend to depriving a person with capacity of his liberty, so could not have been used in this case.

Case (Contingent declaration - caesarean). North Middlesex University Hospital NHS Trust v SR [2021] EWCOP 58 — SR had capacity to make decisions about her care in pregnancy and at birth, and wanted a caesarean section. The judge did not determine whether a threshold test for contingent declarations was necessary but suggested (obiter) that the appropriate threshold would be "a real risk" that the person may lose capacity. There was such a risk, and it was in SR's best interests for a planned caesarean to take place, using force if necessary.

Case (Dignity and CANH). North West London CCG v GU [2021] EWCOP 59 — The judge considered various international texts, instruments and documents in relation to human dignity and, having decided that continued clinically-assisted nutrition and hydration was not in GU's best interests, was critical of the hospital for not arranging his death years sooner. Attention was drawn to Royal College of Physicians and British Medical Association, 'Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent' (12/12/18) and the further guidance in Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2.

Case (Relevance of DOL Practice Guidance). Re CK: Derby CC v BA [2021] EWHC 2931 (Fam) — "[W]hilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law."

Case (Inherent jurisdiction and money). Siddiqui v Siddiqui [2021] EWCA Civ 1572 — This ECHR-based appeal against the High Court's refusal to grant an adult man financial relief against his parents (including under the inherent jurisdiction) was unsuccessful.

Case (Deputyship and direct payments). Calderdale MBC v AB [2021] EWCOP 56 — The judge agreed with the local authority's uncontested position that the authority granted by the standard property and affairs deputyship order did not make the deputy an 'authorised person' for the purposes of s32(4)(a) Care Act 2014 ('Adults without capacity to request direct payments').

Case (Habitual residence and inherent jurisdiction). AB v XS [2021] EWCOP 57 — The judge set out the three issues in the case as: (a) whether XS is habitually resident in England and therefore the Court of Protection retains jurisdiction; (b) whether the High Court can make an order for XS to return to the UK under the inherent jurisdiction; and (c) whether it is in XS's best interests to be brought back to the UK. It was decided that XS was habitually resident in Lebanon, so there was no power under the MCA to make a return order; that to make such order under the inherent jurisdiction would inappropriately cut across the statutory scheme for no principled reason; and that in any event it was in XS's best interests to remain in Lebanon.

Resources

Mental health Legal Aid form. Legal Aid Agency, 'Form CW 1&2 MH' (v16, 24/11/21) — The amendment is that the Privacy Notice now states: "It may sometimes be necessary to transfer personal information overseas. When this is needed, information may be transferred to: the European Economic Area (EEA) and other countries including the USA. Safeguards will be put in place to help protect the personal data transferred. Such transfers will be kept to the minimum required to provide our service." (the extra words are in italics). This form is optional until 11/3/22 and mandatory after that. Superseded by Legal Aid Agency, 'Form CW 1&2 MH' (v17, dated June 2022, published 13/7/22).

Claim under Occupiers' Liability Act 1957. RadcliffesLeBrasseur, 'Psychiatric Patients and Windows' (briefing no 16, August 1999) — This briefing mentions a settled case (Walters v Chichester Health Authority, 26 April 1999) in which the patient obtained £253,536 damages for personal injury after climbing out of an open first-floor window in the hospital corridor which should have been shut.

Prostitution. David Lock, 'Court of Appeal decides care workers will act unlawfully if they arrange a sex worker for a disabled person: But were the wrong questions asked?' (Landmark Chambers, 25/10/21) — This article argues that s39 Sexual Offences Act 2003 is drafted so widely as to criminalise any care worker who supports someone with a mental disorder to have consensual, non-exploitative sex in any circumstance; that this blanket ban might well be found by the European Court of Human Rights to contravene Article 8 combined with Article 14; and that, like in the assisted dying cases, the Crown Prosecution Service (a public authority with a legal duty to act in accordance with Convention rights) should have been asked to develop a policy to explain which care workers would and would not be likely to be prosecuted under s39 where care workers facilitated consensual sexual activity with those with mental disorders who (a) had capacity for sex and (b) took the decision that they would like to exercise that capacity.

Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 117, November 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Sexual Offences Act, care workers, and paying for sex; and obligations that cannot be avoided in the context of decisions about serious medical treatment; (2) In the Property and Affairs Report: an important consultation on a scheme to enable access to funds held by financial institutions; and guidance about disclosure of medical records to attorneys and deputies; (3) In the Practice and Procedure Report: a new training video on communication and participation, the use of the inherent jurisdiction overseas, and a systemic approach to unblocking entrenched relationships; (4) In the Wider Context Report: the CQC’s State of Care report, vaccination and children, and a new research report on accessible legal information; (5) In the Scotland Report: an important reversal of course by the OPG for Scotland in relation to remuneration of professional guardians."

CANH medical guidance. Royal College of Physicians and British Medical Association, 'Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent' (12/12/18) — "All decisions about CANH for a patient who lacks capacity must be made in line with the Mental Capacity Act 2005. This protects patients by ensuring that decisions are made about treatment and care that are right for each individual, in the widest sense. It also protects doctors by providing protection from liability in relation to the decisions they make, but only when the correct decision-making process has been followed. It is important to remember that it is not just the decision reached which determines liability, but also the process through which those decisions were made." (extract from BMA website)

Video hearing. Serjeants' Inn, 'Emma Sutton appears in a successful application concerning mental health patients' rights to have their cases heard via video conferencing in Wales as opposed to via telephone' (27/5/21) — This relates to the first video hearing in Wales, in May 2021, and a subsequent trial of various video platforms.

Book update. Alex Ruck Keene et al, 'Court of Protection Handbook: Handbook updates' (updated 1/11/21) — 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 which have changed or been added since the 1/5/21 version are: Coronavirus/COVID-19, 3.114, 3.127-3.138, 3.175, 3.205, 3.326, 3.241, 4.55, 7.6, 7.56, 7.93, 9.48, 10.17, 13.68, 13.111, 17.8, 17.9, 19.1, 19.55, 19.57, 21.1, 22.21, 22.30, 22.78, 22.61, 26.2, 26.9, 27.7, Appendix B.

News

Judicial summary added to reinstatement case. The decision in JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC) has now been reported in the Administrative Appeals Chamber Reports.