September 2021 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 2173 categorised cases

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

Cases

Case (Inherent jurisdiction costs). T v L [2021] EWHC 2147 (Fam) — The first and second respondents sought an order that their costs, which exceeded £215,000, would be met in full by K (the vulnerable person who was the subject of the proceedings). The court made no order as to costs, the judge noting that "it is my view that no order for costs is likely to be the appropriate starting point in welfare-oriented proceedings under the inherent jurisdiction concerning a vulnerable adult".

Case (Replacement of deputy). Sunil Kambli v Public Guardian [2021] EWCOP 53 — The third panel deputy in this case sought discharge of his appointment on the same basis as the first two: a breakdown in relations with family members, particularly the father of MBR. Initially his request was refused but on reconsideration it was granted. It was not in MBR's best interests for the deputyship to continue: aspects of managing his financial affairs which should be straightforward would be drawn out and acrimonious, costs would be higher than necessary, and it would cause household stress (other considerations were the deputy's withdrawal of consent and the father's inappropriate behaviour). Rather than appoint a fourth panel deputy, two relatives were appointed despite the lack of experience and indemnity insurance: they were appointed jointly, for one accounting period initially, with £400,000 security, authority to sell property or withdraw from investments excluded, and a requirement to apply to court about any unresolved family dispute.

Case (Jehovah's Witness - validity of advance decision). Re PW [2021] EWCOP 52 — A blood transfusion would change 80-year-old PW's outlook from being at risk at any time of sudden death to the possibility of living for another 5-10 years, but 20 years previously she had signed a proforma advance directive. The advance directive met the MCA requirements for an advance decision refusing life-sustaining treatment and was applicable to the proposed treatment. However, the Trust (supported by the PW's children but not the Official Solicitor) established on the balance of probabilities that it was not valid because she had "done [something] clearly inconsistent with the advance decision remaining [her] fixed decision" (s25(2)(c) MCA 2005): she had created an LPA and requested the removal of a DNR notice, both without mentioning her advance decision, and (when lacking capacity) had expressed wishes and feelings inconsistent with the advance decision.

Case (Inherent jurisdiction and money). FS v RS and JS [2020] EWFC 63 — The 41-year-old applicant sought financial relief against his parents (who had reduced their financial support) pursuant to s27 Matrimonial Causes Act 1973, sch 1 Children Act 1989 and "that branch of the recently rediscovered inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are 'vulnerable'". His argument on the inherent jurisdiction failed: (a) his claim lay far outside its accepted parameters; (b) it cannot be used to compel an unwilling third party to provide money or services; (c) it is ousted by any relevant statutory scheme.

Case (Competence/capacity and puberty blockers). Bell v Tavistock And Portman NHS Foundation Trust [2021] EWCA Civ 1363 — The Court of Appeal decided that the High Court should not have: (a) made a declaration about the relevant information that a child under 16 would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers; or (b) given its guidance on likely Gillick competence to give consent and, in relation to children and young people, on court involvement. The Court concluded that "applications to the court may well be appropriate in specific difficult cases, but it was not appropriate to give guidance as to when such circumstances might arise".

Case (Inherent jurisdiction and unauthorised placements). Re T (A Child) [2021] UKSC 35 — Where a child or young person meets the s25 Children Act 1989 secure accommodation order criteria but the local authority proposes to place him in an unregulated placement (either because no regulated placement is available or because his needs would be better met elsewhere) the inherent jurisdiction of the High Court may authorise his deprivation of liberty at the unregulated placement. This is despite it being a criminal offence under s11 Care Standards Act 2000 to carry on or manage a children's home without being registered.

Case (Coronavirus vaccination). A CCG v AD [2021] EWCOP 47 — The court decided that it was it was in AD's best interests to be administered two doses of the Oxford coronavirus vaccine: the plan was for a sedative to be given, not only to sedate but also to prevent memory formation, and for a nurse swiftly to enter the room, inject him, then leave, while AD was distracted by his care team. Any booster vaccination, or any care plan involving force, would have to be considered at a future court hearing.

Case (Sex and contact). A local Authority v P and CCG [2021] EWCOP 48 — P had capacity in relation to sex, but lacked capacity in relation to litigation, residence, care and contact. The judge's letter to P included the following explanation: "Sex is a part of contact with other people but in law considered separately. Everyone was prepared to agree you could understand what decisions you and the person you have sex with have to take. However the decision about who is a person who you can trust enough to have sex with is a decision about contact and the evidence shows me that this is something you do not have understanding about."

Case (Litigation capacity). Aderounmu v Colvin [2021] EWHC 2293 (QB) — The claimant, in a negligence case against his GP, argued that the limitation period had not started to run since he had lacked capacity to conduct the litigation (alternatively that he did not obtain the requisite knowledge more than three years before issuing the claim, or that the limitation period should be disapplied by the court). The court held that the limitation period had expired but allowed the claim to proceed.

Case (Capacity to access the internet and social media). Re C [2020] EWCOP 73 — C lacked capacity to take decisions in relation to using the internet and social media: "I do not find that C can understand, retain and weigh the relevant information independently and, sadly, if the process could only really occur with the degree of supervision and prompting suggested then that would, in truth, be a fiction rather than a genuine exercise in autonomy. It would probably also be impractical in the care setting."

Case (DOL of under 16s in unlawful placements). Tameside MBC v AM [2021] EWHC 2472 (Fam) — The Care Planning, Placement and Case Review (England) Regulations 2010 make unlawful the placement of a looked-after child under the age of 16 in unregulated accommodation, but the High Court decided that its inherent jurisdiction can still authorise deprivation of liberty in that accommodation.

Case (Serious medical treatment). Cambridge University Hospitals NHS Foundation Trust v AH [2021] EWCOP 51 — AH was, in terms of the neurological impact and complications, "the most complex COVID patient in the world", and the central issue in the case was whether her ventilatory support should continue.

Legislation

Legislation. Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 — These regulations insert new regulation 27A (Prohibition on placing a child under 16 in other arrangements) into the Care Planning, Placement and Case Review (England) Regulations 2010.

Resources

COP newsletter. Hill Dickinson, 'Court of Protection' (June 2021) — The articles are: (1) Court of Protection Cases from April 2021 to June 2021; (2) Depriving 16/17 year olds of their liberty in hospital; (3) Hot off the press: Reporting Restriction Orders; (4) The involvement of the ECHR and UN in withdrawal of treatment cases; (5) P’s right to have sex with a sex worker; (6) Are you being pro-active enough when it comes to obstetric cases?; (7) Hybrid Courts; (8) Top tips on working between in house teams and external lawyers.

Mental Capacity Report note. 39 Essex Chambers, 'MCA update - all the capacity news that’s fit to print for July 2021' (23/7/21) — This note contains a summary of key developments in the Court of Protection and mental capacity law.

Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 115, September 2021) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: capacity, silos and pigeon-holes, medical treatment dilemmas, and the limits of support; (2) In the Property and Affairs Report: LPA modernisation and help with COP1 and COP1A forms; (3) In the Practice and Procedure Report: the Court of Protection is, in fact, a court, costs updates, and insights in the future of remote hearings; (4) In the Wider Context Report: a policy round-up, the inherent jurisdiction and children, advocacy in restricted settings, and the limits on the duty to secure life; (5) In the Scotland Report: Mental Welfare Commission reports on the use of the Mental Health Act during COVID-19 and advance statements, and thoughts about SIDMA."

Pre-hearing examinations. Mental Health Tribunal, 'Advice to representatives on the listing of Mental Health Tribunal hearings after 18 September 2021 and the return of PHEs' (Sarah Johnston, 9/9/21) — (1) The tribunal will begin to obey the rules again after 18/9/21 when Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21) expires: "PHE’s in section 2 cases will return unless the patient tells us that they do not want a PHE". (2) Section 2 and community cases (C/D and CTO) will be listed in the morning, with the PHE at 0900 in the CVP room; in other cases the PHE will before the hearing date via Microsoft Teams where practicable.

Children in unregulated settings. David Lock, 'Looked after children and secure accommodation after 9 September' (Local Government Lawyer, 3/9/21) — This article discusses the implications of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. It notes: "The effect of the 2021 Regulations is that from 9 September 2021 a placement by a local authority in an unregulated setting is not lawful for any looked after child who is under 16 years of age. That almost certainly applies to existing placements as well as new placements. ... On 30/7/21 the Supreme Court ruled in Re T (A Child) [2021] UKSC 35^M that the inherent jurisdiction could be used to declare that such placements, however undesirable, were lawful if they were the only practical option available to local authorities. However, it is hard to see how a placement can be declared lawful under article 5 if it is unlawful under UK domestic law." It later transpired that the inherent jurisdiction can authorise deprivation of liberty despite the placement being unlawful: see Tameside MBC v AM [2021] EWHC 2472 (Fam).

DOLS failures. Local Government Lawyer, 'Council claims Ombudsman request for it to process DoLS applications within set time constraints “not possible”' (3/9/21) — This article reports Kent County Council's Corporate Director of Adult Social Care and Health as saying: "[W]e believe that it is not possible for us to comply with the [Ombudsman's] recommendations to 'ensure all current and future requests for standard authorisations are completed within prescribed timescales' and 'to provide written evidence showing that we have monitored all requests for standard authorisations post-dating the final report and completed them within the legal timeframes described in the report'. The article also notes that the Ombudsman's recommendations would be formally debated at a council committee, and that Kent had agreed to apologise to the complainant and pay him £500 for his distress.

Ordinary residence and s117. DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 27/8/21) — This guidance was updated after the Court of Appeal gave permission to appeal the High Court's decision on s117 aftercare in R (Worcestershire County Council v SSHSC [2021] EWHC 682 (Admin). See DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (24/6/20) (the original guidance) for a summary. Superseded by: DHSC, 'Statutory guidance: DHSC's position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case' (updated 27/1/22).

Events

Event. Event:COPPA: National Conference (online, 7/10/21) — This Court of Protection Practitioners Association conference is subtitled "The Pandemic and P". Speakers: Tim Farmer (Virtual capacity assessments); Shane Booth (The impact of Covid-19 from a client perspective); Celia Kitzinger (Remote hearings & findings of the Open Justice Project); Sheralee Ellis (The impact of Covid-19 on Investments & focus on the market moving forwards); Eliza Sharron & Alexis Hearnden (In conversation: observations during Covid-19 and the future); HHJ Hilder & Keynote Speaker Mr Justice Hayden (Judicial address). Cost: free. See COPPA website for further details and booking information.

Event. Event:MHLA: Panel course (online, 11-13 October 2021) — 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 26/9/21. See MHLA website for further details and to book online.

Social media

Nothing to report this month.

Other items

Sep 2021: ML v The Special Needs and Disability Tribunal & Ors [2021] NIFam 15^B (05 May 2021)
Sep 2021: AK (Inherent Jurisdiction: Patient: Move to residential care: Contact) [2021] NIFam 9^{Not on Bailii!} (18 March 2021). Replaced by [2021] NIFam 39^B on 28/1/22?
Sep 2021: QR v Official Solicitor for Northern Ireland [2021] NIFam 6^B (03 March 2021)
Sep 2021: A Health and Social Care Trust v Mr O & Anor [2020] NIFam 23^B (09 November 2020)
Sep 2021: The Western Health and Social Care Trust for Judicial Review v Secretary of State for Health and London Borough of Enfield (Interested Party) [2018] NIQB 67^M (03 August 2018)
Sep 2021: Belfast Health And Social Care Trust v PTY & Anor [2017] NIFam 1^M (20 January 2017)
Sep 2021: NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9^M (14 October 2016)
Sep 2021: JMCA v The Belfast Health and Social Care Trust [2014] NICA 37^M (12 May 2014)

=Has been added to MHLO
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