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September 2015 update

Case law

  • Upper Tribunal case. PJ v A Local Health Board [2015] UKUT 480 (AAC) — The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then the tribunal (whether by the statutory criteria or under its discretion) should discharge the CTO. (3) Guidance to tribunals was given under the following (paraphrased) headings: (a) whether implementation of the conditions will objectively amount to a deprivation of liberty; (b) whether the patient has capacity to consent; (c) if the patient has capacity, whether consent avoids a breach of Article 5; (d) if the patient lacks capacity, whether the objective deprivation of liberty can be authorised under the MCA; (e) if the patient lacks capacity, whether s64D can be relied upon to avoid an Article 5 breach; (f) how the conclusions on the above should help decide whether to adjourn, or discharge or uphold the CTO. (Caution: see Court of Appeal decision.)
  • Court of Protection DOL procedure case. Re NRA [2015] EWCOP 59, [2015] MHLO 66 — "I have ten cases before me seeking welfare orders under s. 16(2)(a) of the Mental Capacity Act 2005 (the MCA). The welfare orders are sought to authorise the deprivation of liberty that, it is common ground, is being, or will be, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. If it had been thought that the care packages did not result in a deprivation of liberty it is highly likely that the relevant public authorities would have relied on s. 5 of the MCA and no application to the Court of Protection would have been made. When the cases were transferred to me they were regarded as test cases on the directions that should be given for their determination and in particular on whether the subject of the proceedings (P) should be a party."§
  • Amputation - religious beliefs. Wye Valley NHS Trust v B [2015] EWCOP 60 — "The issue in this case is whether it is lawful for the doctors treating Mr B, a 73-year-old gentleman with a severely infected leg, to amputate his foot against his wishes in order to save his life. Without the operation, the inevitable outcome is that he will shortly die, quite possibly within a few days. If he has the operation, he may live for a few years. Mr B also has a long-standing mental illness that deprives him of the capacity to make the decision for himself. The operation can therefore only be lawfully performed if it is in his best interests. ... Having considered all of the evidence and the parties' submissions, I have reached the clear conclusion that an enforced amputation would not be in Mr B's best interests. Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his "fierce independence", and it is this that is now, as he sees it, under attack."
  • Deputyship case. DGP Law v DGHP [2015] EWCOP 58, [2015] MHLO 67 — "This is a reconsideration of a decision made on the papers on 16 February 2015 by District Judge Bellamy, who dismissed the respondents' objections to the applicant's application to be appointed as her mother's deputy for property and affairs."§

Journal

  • International Journal of Mental Health and Capacity Law: further call for papers (September 2015). The editors and publisher of this journal are making a supplemental call for papers. The planned publication date for the first edition is the end of December 2015/early January 2016. The deadline for further papers to be considered for the first edition is 30/10/15. For further details, see International Journal of Mental Health and Capacity Law

Book

  • New MCA book. Nick Brindle et al, A Clinician's Brief Guide to the Mental Capacity Act (2nd edn, RCPsych Publications 2015). See Books

Job advert

  • Job advert: Court of Protection lawyer - ODonnells Solicitors, Preston. For full details, see Jobs

Events

  • COPPA National Conference - Leeds, 24/9/15. The Court of Protection Practitioners Association National Conference 2015 will be held on Thursday 24/9/15 in Leeds. Speakers: James Munby, Sally Jones, Wayne Martin, Nicholas Paines, Alex Ruck Keene, Mark Neary, Alastair Pitblado, Aswini Weereratne. Price: £125 for COPPA members, £150 for non-COPPA members. See flyer for further details and booking information. See Events
  • Edge Training: Safeguarding and MCA - London, 9/10/15. Edge Training are running a course entitled "Safeguarding Adults and the Mental Capacity Act" on Friday 9/10/15 in London. This one day Course is designed to clarify and highlight the role of the Mental Capacity Act within adult safeguarding procedures. Speaker: Dawn Revell. Cost: £115 plus VAT. See flyer for further details and booking information. See Events
  • Edge Training: BIA Legal Update - London, 16/10/15. Edge Training are running a "BIA Legal Update" on Friday 16/10/15 in London. This course has been designed to meet the needs of DoLS Best Interests, and provides information on the key cases and news over the last six to twelve months. Speaker: Aasya Mughal. Cost: £115 plus VAT. See flyer for further details and booking information. See Events
  • Edge Training: DOLS Signatories - London, 23/10/15. Edge Training are running a "DOLS Signatory Course" on Friday 23/10/15 in London. This is a practical training day designed for DOLS supervisory body signatories. Speaker: Steven Richards. Cost: £115 plus VAT. See flyer for further details and booking information. See Events
  • Edge Training: Hoarding - London, 6/11/15. Edge Training are running a course entitled "Hoarding and the Law" on Friday 6/11/15 in London. This one-day interactive course for mental health and social care professionals reviews the different manifestations of hoarding and the possible origins of this behaviour, and then considers a range of possible responses under the law and where each one might be appropriate. Speaker: Simon Foster. Cost: £115 plus VAT. See flyer for further details and booking information. See Events
  • Edge Training: New MHA Code of Practice - London, 20/11/15. Edge Training are running a course on the "The New Mental Health Act Code of Practice 2015" on Friday 20/11/15 in London. This course is designed to give delegates the opportunity to grasp the most pertinent features of the Code in order to apply them successfully in their work and comply with the legal requirement to follow the Code. Speaker: Rob Brown. Cost: £115 plus VAT. See flyer for further details and booking information. See Events
  • Edge Training: Care Act - London, 4/12/15. Edge Training are running a course entitled "The Care Act 2014: Eight Months On" on Friday 4/12/15 in London. This practice-based legal update course is particularly suitable to those working with mental health clients but is aimed at all staff with social care responsibilities and their managers. Speaker: Simon Foster. Cost: £115 plus VAT. See flyer for further details and booking information. See Events
  • Edge Training: DOLS MH Assessors - London, 14/12/15. Edge Training are running a course entitled "Mental Health Assessors - Qualification and Refresher Course" on Monday 14/12/15 in London. This course will ensure MH Assessors are suitably qualified to cover the assessments they will have to undertake as part of their role and give them the confidence to complete the DoLS paper work. Speaker: Aasya Mughal. Cost: £180 plus VAT. See flyer for further details and booking information. See Events
  • PELT: COP Intro - Hoylake, 1/10/15. Peter Edwards Law are running a course entitled "Introduction to using Court of Protection including s21A appeals" on Thursday 1/10/15 in Hoylake, Merseyside. This course is suitable for those working with vulnerable people or safeguarding, who require an understanding of how and when to access the Court of Protection. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards law website for further details and booking information. See Events
  • PELT: Recent COP cases - Hoylake, 20/10/15. Peter Edwards Law are running a course entitled "Recent Court of Protection cases and updated procedures" on Tuesday 20/10/15 in Hoylake, Merseyside. This course will review dramatic developments in Court of Protection case law, especially since Cheshire West. It will explain the appropriate applications to make, whether under the Re X procedure or otherwise. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards law website for further details and booking information. See Events
  • PELT: Children and DOL - Hoylake, 28/10/15. Peter Edwards Law are running a course entitled "Depriving children and young people of their liberty" on Wednesday 28/10/15 in Hoylake, Merseyside. The course will look at the respective roles of the MCA, MHA and children’s legislation. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards law website for further details and booking information. See Events
  • PELT: Care Act - Hoylake, 4/11/15. Peter Edwards Law are running a course entitled "Introduction - Care Act for those working with MHA or MCA" on Wednesday 4/11/15 in Hoylake, Merseyside. This course will examine the way that the following dovetail with duties under the MHA and MCA (including deprivation of liberty): independent advocacy, safeguarding to protect vulnerable people, assessments under the Care Act 2014, the impact on children and young people in transition to adult services, the duty to involve carers, additional duties placed on AMHPs, and changes to s.117 MHA. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards law website for further details and booking information. See Events
  • PELT: MHA Code and case law - Hoylake, 11/11/15. Peter Edwards Law are running a course entitled "MHA - New Code and case law updates" on Wednesday 11/11/15 in Hoylake, Merseyside. In addition to developments in MHA case law over the previous 12 months, this course examines carefully the new Code to the Mental Health Act (England) which came into force on 1/4/15. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards law website for further details and booking information. See Events
  • PELT: DOL made simple - Hoylake, 8/12/15. Peter Edwards Law are running a course entitled "Deprivation of Liberty made simple - including MHA or MCA?" on Tuesday 8/12/15 in Hoylake, Merseyside. This course covers topics such as the definition of deprivation of liberty (the meanings of "continuous supervision and control" and "free to leave"), the impact of this definition on informal patients, and damages for unlawful deprivation of liberty. Speaker: Peter Edwards. CPD: 5 hours (solicitors), 5.25 hours (psychiatrists). Cost: £125 plus VAT. See Peter Edwards law website for further details. See Events
  • RadcliffesLeBrasseur: MH Law Conference - London, 8/10/15. RadcliffesLeBrasseur are holding their Annual Mental Health Law Conference on Thursday 8/10/15 in London. The conference will review recent developments in mental health law and some of the current issues in this changing field. Speakers: Andrew Parsons, Victoria Butler-Cole, Mat Kinton, Simon Cheverst, Michael Mylonas QC, Alexandra Johnstone and Antony Beschizza. Cost: £96 including VAT. See RadcliffesLeBrasseur website for further information and booking information. See Events
  • Switalskis MCA conference - York, 15/10/15. Switalskis Solicitors are running their 'Seventh Annual Review of the Mental Capacity Act 2005' on Thursday 15/10/15 in York. The conference will provide training addressing the impact of recent developments in the Court of Protectionis, and is aimed at advocates, IMCAs, and professionals working in community care, adult social care, health care, voluntary organisations or charities. Cost: £130 plus VAT. See booking form for details. See Events

Website and CPD

  • CPD scheme. Obtain 12 SRA-accredited CPD points for £60 (also compatible with the SRA's new CPD regime). Suitable for non-lawyers as well. See CPD scheme for details.

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