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November 2024 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 2391 categorised cases


Cases

  • Case (Non-recognition of Scottish Guardianship Order). Aberdeenshire Council v SF (No 2) [2024] EWCOP 10 — The Court of Protection exercised its discretion to refuse to recognise a Scottish Guardianship Order (which authorised SF's mother to consent to deprivation of liberty) because: (1) "(a) the case in which the measure was taken was not urgent, (b) the adult was not given an opportunity to be heard, and (c) that omission amounted to a breach of natural justice" (para 19(3) of sch 3 MCA 2005); (2) "the measure would be inconsistent with a mandatory provision of the law of England and Wales" (para 19(4)(b)), as the breaches of Article 5(1)(e) and Article 5(4) would be unlawful under s6 HRA 1998; and (3) "recognition of the measure would be manifestly contrary to public policy" (para 19(4)(a)), because of the breach of natural justice and the breaches of fundamental human rights under Article 5, 6 and 8.
  • Case (Inherent jurisdiction and MHA). Re SB [2024] EWHC 2964 (Fam) — SB, a 15-year-old, was subject to an interim care order, and a deprivation of liberty order made under the High Court's inherent jurisdiction. The local authority argued that the court should declare that SB was within the scope of the MHA and that therefore the inherent jurisdiction could not be used. Its submissions were based on parity of argument with the Case E ineligibility provisions in the MCA, the interpretation given to them in GJ, and the approach taken by the court in JS. The High Court decided that the approach taken in JS did not apply to the inherent jurisdiction: to make a declaration about MHA detention would be to exercise an impermissible supervisory review function; if such a declaration were made as a means of influencing the professionals' decisions then it would be an abuse of process; in any event, the outcome might leave SB without protection from either regime.
  • Case (Forfeiture rule and assisting suicide). Morris v Morris [2024] EWHC 2554 (Ch) — A husband who had unlawfully assisted his wife's suicide applied (successfully) under s2(2) Forfeiture Act 1982 for the effect of the forfeiture rule, which ordinarily would have disabled him from taking any beneficial interest under her will, to be modified. The wife's children and sister had also travelled abroad with her but had not committed acts capable of assisting suicide.
  • Case (Recognition of foreign protective measure). Health Service Executive of Ireland v SM [2024] EWCOP 60 (T3) — Recognition and enforcement by the Court of Protection was sought in relation to an order made under the Southern Irish High Court's inherent jurisdiction for SM's treatment at a specialist facility in the UK. Although under that inherent jurisdiction she had been found to lack capacity, and the judge agreed that the treatment was in SM's best interests, and continued to recognise and enforce the orders, he directed that a capacity assessment be filed to allow him to assess capacity under the MCA 2005.

Legislation

Resources

  • Voluntary euthanasia. Anselm Eldergill, 'A time to live, a time to die?' (27/11/24) — In relation to the Terminally Ill Adults (End of Life) Bill 2024, this briefing note argues that "much more careful thought is required before we open this Pandora's Box" and that a more sensible approach, prior to legalising state- and physician-assisted death, would involve a Royal Commission or Law Commission report, or similar, with extensive consultation and reflection, accompanied by a government commitment to place a Bill drafted by the Commission before Parliament on a free vote. Problems mentioned include: (1) there is a risk that changing perceptions of doctors and nurses will undermine trust in them; (2) the 'six-month rule' suggests a degree of prognostic reliability that does not accord with reality; involves a social class bias; means the legislation would not cater for most of the test cases that have come before the courts; and would prolong the suffering of some while allowing others to die for reasons unrelated to life expectancy and even though they are not physically suffering and their death is likely to be painless; (3) a "slippery slope" of extensions may begin; some campaigners see the Bill as a Trojan Horse; the breaking of the taboo would make it less likely that people would oppose dangerous or ill-thought-out extensions; soon it would be sought to extend it to persons with constant and unbearable physical or mental suffering as the result of an incurable condition that cannot be appeased; over time that is likely to be flexibly interpreted by doctors sympathetic to euthanasia or engaged in the new medical speciality of physician-assisted death; it would next be argued that the law is discriminatory (including under the CRPD) because it excludes those who legally lack capacity to decide to die, and because children are excluded; (4) in relation to those with mental health disorders, many people "will wonder whether these out-patients were offered adequate, intensive assisted living ... before being assisted to die"; (5) the Bill is silent on Legal Aid and therefore on whether the new law would in reality be available only to the well-to-do; (6) the High Court judge is not obliged to hear from the person in question (only from a doctor, with the risk that contradictory evidence is not obtained) and there is no right of appeal; (7) no provision is made for the person, or family members, to be supported by a social worker or solicitor, which would be important to allow the person to mitigate potential significant consequences for others and reconsider their decision in the light of those; (8) the drafting is ambiguous in relation to the role of private clinics, but it seems likely that they will provide an independent doctor service including substitute decisions when the original doctor is of the opinion that the conditions for assisted suicide are not met, and the profit element may distort decision-making; (9) there does not appear to be a means by which a doctor who provided a statement that the conditions are met can rescind it; (10) the Bill only applies to England & Wales and so would divide the UK; (11) there appears to be no clear, close scrutiny of assisted suicides after the event, which is required to comply with Article 2.
  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 145, November 2024) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: anticipatory declarations; systemic failure in considering PDOC patients, and the CQC and DoLS; (2) In the Property and Affairs Report: Senior Judge Hilder reversing reverse indemnities and considering the scope of deputies’ authority in the context of Personal Health Budgets; (3) In the Practice and Procedure Report: costs and delay and capacity in cross-border cases; (4) In the Mental Health Matters Report: the Mental Health Bill is introduced; (5) In the Wider Context Report: Strasbourg suggests that the Supreme Court was wrong in the Maguire case; (6) In the Scotland Report: Scottish Government’s law reform proceeds at breakneck speed, and a symposium for Adrian."

News

  • DSA website archive. When Dave Sheppard retired he kindly gave permission for his website to be kept online. See DSA website for details.

Events

  • Event. Event:Fuse: Children detained under the Mental Health Act 1983 (online, 4/12/24) — This free online seminar will present findings from research which examined materials provided by NHS mental health trusts to detained children regarding their rights to apply to the First-tier Tribunal to challenge their detention. Speakers: Ray Arthur, Carole Burrell, Siobhan McConnell. Time: 12.30pm to 1.30pm. See FUSE website for further details and booking information.
  • Event. Event:Edge Training: AMHP conference (London, 13/12/24) — This one-day conference will explore issues pertinent to AMHP practice. It can contribute towards the statutory requirement of 18 hours relevant training per year. Speakers: Simon Foster, Camilla Parker, Suyog Dhakras, Nick Perry, Kelly Alexander, Jill Hemmington, Louise Blakley. Cost: £195 plus VAT (in person); £150 plus VAT (online). See Edge website for further details and booking information.

Jobs

Social media

Nothing to report this month.


Other items

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