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November 2023 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 2342 categorised cases


Cases

  • Case (Reinstatement). MB v South London and Maudsley NHS Foundation Trust [2023] UKUT 261 (AAC) — The patient withdrew his tribunal application in order to give himself an opportunity to be tested further and to allow for plans for discharge to be developed further. The First-tier Tribunal subsequently refused to reinstate the application, mischaracterising the only "change in circumstances" as being the desire to pursue the application (and noting that there would be no detriment to the patient as he could now apply in the new eligibility period). The Upper Tribunal decided that reinstatement could only properly be understood in the context of the withdrawal reasons, that the FTT had unlawfully failed to consider whether the patient having been tested further in the intervening period was a change in circumstances that could justify reinstatement, and that in any event the reasons were inadequate for failing to address the central thrust of the application. The UT set aside and remade the decision, allowing the reinstatement.
  • Case (Adjournment for aftercare evidence). SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC) — At a s3 tribunal the evidence was that the patient had been well enough for discharge for some time, if a suitable robust package of care and support could be provided, but that for bureaucratic and other reasons it had been difficult to discharge him from the PICU ward. That tribunal panel adjourned for further aftercare information but seven weeks later, in similar circumstances, despite some progress, the next panel refused to adjourn again. The patient appealed that refusal, and all three grounds of appeal were successful. (1) This was not a case where aftercare information would have been irrelevant to the decision (AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 distinguished); rather it was a case in which the tribunal should have adjourned owing to "uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends" (R (Ashworth) v MHRT; R (H) v Ashworth [2002] EWCA Civ 923 applied). (2) The common law requires that a party should not be disadvantaged by an absence of evidence which is under the control of another party (especially where the party who controls the evidence is a State agency with duties to provide the evidence in relation to an individual whom it is detaining) and his Article 5 rights can only be protected effectively if the tribunal has the information it needs; the decision not to adjourn was procedurally unfair because it deprived SS of the opportunity to mount an effective challenge to his detention. (3) The tribunal relied on the possibility of a further application in the near future, but the periodic right to apply might not be exercised and could not in any event remedy procedural unfairness in the existing proceedings; its decision amounted to an abdication of its role, and rather than avoiding delay it was kicking the can down the road for the next tribunal to deal with. In his concluding remarks the UT judge stated: "The only reasons not to adjourn for aftercare information would be either because it is not relevant because the patient had not reached the stage at which discharge was a realistic prospect, or because there was no realistic prospect of such aftercare information being produced." The case was remitted to the FTT with directions for further evidence.

Resources

  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: reasonably adjusting to disability in the context of dialysis and identifying will and preferences across a spectrum of difficult medical cases; (2) In the Property and Affairs Report: the Law Commission’s further consultation on wills; (3) In the Practice and Procedure Report: two sets of ‘Ps’ and the costs of welfare appeals; (4) In the Wider Context Report: the CQC’s State of Care report, deprivation of liberty and those under 18, litigation capacity and access to court, and the inherent jurisdiction in Ireland; (5) In the Scotland Report: bureaucracy vs justice and a tribute to Adrian upon his retirement from one of his posts."

Social media

Nothing to report this month.


Other items

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

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