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September 2020 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 2071 categorised cases


Cases

  • Case (Public hearing and capacity). AR v West London NHS Trust [2020] UKUT 273 (AAC) — (1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points.
  • Case (Remote pre-hearing examinations are practicable). Re C [2020] MHLO 48 (FTT) — (1) A salaried tribunal judge initially refused to allow a pre-hearing examination (PHE) because the coronavirus Pilot Practice Direction states: "During the Covid-19 pandemic it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place, due to the health risk such examinations present." (2) Having treated the rule 46 application for permission to appeal as a rule 6 challenge, a different salaried tribunal judge decided that: (a) the practice direction is subordinate to the rules and overriding objective; (b) in video-enabled hearings with a full panel a PHE is practicable by that means; (c) hearings and PHEs should be conducted remotely as, even if the hospital would allow access, the tribunal will not put its members at risk of contracting or spreading coronavirus; (d) in this case, the PHE would take place by video link on the morning of the hearing. [First-tier Tribunal decisions are not binding.]

Resources

  • Coronavirus care home visiting guidance. DHSC, 'Update on policies for visiting arrangements in care homes' (updated 21/9/20) — "Directors of public health and care providers should follow this guidance to ensure policies for visiting arrangements and decisions are based on a dynamic risk assessment and minimise risk wherever possible." The only difference between this and the 31/7/20 version of the page is the addition of the following text to the top of the page: "For the latest care home visiting guidance please see the Adult social care: coronavirus (COVID-19) winter plan 2020 to 2021. This guidance will be updated shortly."
  • FAQs about HESC hearings. Courts and Tribunals Judiciary, 'Frequently asked questions about hearing arrangements during the coronavirus pandemic - July 2020' (published August 2020) — There are FAQs about technology, hearings and mental health tribunals. (1) The technology questions are: (a) What is Kinly CVP? (b) How do I prepare for a Kinly CVP video hearing? (c) Can I test my connection beforehand? (d) I can’t connect to Kinly CVP from my laptop/computer. What do I do? (e) What browser is best for Kinly CVP on my laptop or PC? (f) Can I use a smartphone? (2) The hearings questions are: (a) What if I want a friend to support me at the hearing? (b) What if my hearing requires interpreters or British Sign Language (BSL) interpreters? (3) The mental health questions are: (a) I would prefer to have a face to face hearing; can this be arranged? (b) I want to see the tribunal doctor before the hearing - can this be arranged? (c) I am a community patient and I cannot afford to join the hearing; (d) I need a full day’s hearing; (e) I have had my case referred to the Tribunal but I don’t want to contest it. What should I do? [Unrepresented patients referred to the tribunal "should contact the HMCTS ... and let them know that you are not contesting"!]; (f) Are the hearings private? (g) How will I be given the decision?
  • MHT guidance for patients. Mental Health Tribunal, 'Help for Users' (updated, 28/7/20) — This document was updated to reflect the situation as it was in July 2020. It mentions that "those cases that are listed for paper hearings under the usual procedures or cases where the patient has indicated through his or her solicitor that the detention is not contested ... are likely to be heard by a judge alone on the papers".
  • Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 107, September 2020) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated MCA/DoLS guidance, the anorexia Catch-22, and two important cases on deprivation of liberty; (2) In the Property and Affairs Report: remote witnessing of wills, professional deputy remuneration and the OPG annual report; (3) In the Practice and Procedure Report: CoP statistics, short notes on relevant procedural points and the UN principles on access to justice for persons with disabilities; (4) In the Wider Context Report: the NICE quality standard on decision-making and capacity, litigation friends in different contexts, and a guest piece giving a perspective on living with a tracheostomy and a ventilator; (5) In the Scotland Report: the human rights blind spot in thinking about discharge from hospital in the context of COVID-19.

News

Events

  • Event. Event:MHLA: Panel course (online, 12-14 Oct 2020) — 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.

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