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Recent updates on website

For details of recent news items, please see the MHLO updates forum category.

  • 12/12/24
    (1434)
    : Case (Housing Benefit, litigation capacity). Tendring District Council v AB [2024] EWCA Civ 1248 — "At the hearing a number of separate issues were before the court namely: (i) the capacity of AB to litigate and the appointment of the Official Solicitor to act as his litigation friend; (ii) Tendring's application to discontinue against AB; (iii) Tendring's application for an order retrospectively regularising all steps taken in the appeal in respect of AB prior to the Official Solicitor's appointment; (iv) in the event that AB continued in the proceedings, an order for costs protection."
  • 12/12/24
    (1412)
    : Case (Housing Benefit). Tendring District Council v SSWP [2024] EWCA Civ 1509 — The council had overpaid Housing Benefit to AB, but were unable to recover it from his wife CD, because in the proceedings CD had only been appointee/representative for AB rather than a party in her own right.
  • 07/12/24
    (2151)
    : PDOC guidance. Royal College of Physicians, 'Prolonged disorders of consciousness following sudden onset brain injury: National clinical guidelines' (2020) — "These guidelines update the previous RCP’s Prolonged disorders of consciousness, National clinical guidelines (2013) particularly in relation to recent developments in assessment and management: and with respect to recent changes in the law governing procedures for the withdrawal of clinically assisted nutrition and hydration. They lay out for clinicians, service providers and commissioners what constitutes best practice within the existing legal framework, to enable them to fulfil their various responsibilities to the patient and their family."
  • 07/12/24
    (2129)
    : Case (Death). NHS North Central London ICB v Royal Hospital for Neuro-disability [2024] EWCOP 66 (T3) — (1) XR was in a permanent vegetative state, and the court decided that it was not in his best interests to continue to receive CANH as its benefits were significantly outweighed by its considerable day-to-day burdens. (2) The court was asked to provide guidance for cases where those charged with making a best interest decision considered it to be finely balanced due to the lack of information about a patient's likely wishes, feelings, beliefs and values. It declined to do so, preferring to await updated supplementary guidance to the 2020 RCP PDOC Guidelines which would address issues raised in recent cases. (3) The judge made comments and suggestions about the delay in making the court application, which had been contrary to XR's best interests.
  • 07/12/24
    (2053)
    : Case (Caesarean). Leicestershire Partnership NHS Trust v PQ [2024] EWCOP 73 (T3) — (1) This application was made when the baby had reached full term despite the applicants having known of the pregnancy (and the mental health and capacity issues) since week 20, so the Trust was criticised for not following the guidance in NHS Trust v FG [2014] EWCOP 30. (2) Induced labour was not an option here, which left spontaneous labour (which might, in the event of complications, result in an emergency caesarean) or an elective caesarean. PQ lacked capacity and an elective caesarean under general anaesthetic was in her best interests.
  • 07/12/24
    (2008)
    : Case (Anticipatory declarations under s16 - assessment of deaf people). Oldham Metropolitan Borough Council v KZ [2024] EWCOP 72 (T3) — (1) The court decided that it had power to make anticipatory declarations under MCA 2005 s16 (which in this case would render deprivation of liberty under s4A(4) lawful as being a decision of the court under s16(2)(a)). (2) The original psychiatric evidence was that KZ lacked capacity in all areas. A subsequent assessment by a psychologist with expertise in assessing deaf people found that, while he lacked capacity in relation to sex, finances, tenancy, social media and internet, and litigation, he did have capacity in relation to residence, care and support, and contact with his family (although that capacity fluctuated daily); and that he had extreme language deprivation rather than borderline learning disability. (3) The new evidence was accepted, and anticipatory declarations were made. (4) The judge provided guidance for assessment of a deaf individual fluent in BSL: it should be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL and ideally with a background in understanding deafness and engaging with the deaf community; otherwise, explanations would be required.
  • 06/12/24
    (2256)
    : Case (Appeal against NWC decision). Evboren v Nursing and Midwifery Council [2024] EWHC 2975 (Admin) — A nurse who had been erased from the register of nurses for sexually activity with patients while a nurse at Cygnet Hospital Ealing unsuccessfully appealed the NWC's Fitness to Practise Panel's decision.
  • 06/12/24
    (2218)
    : Case (Appeal against contempt committal). MacPherson v Sunderland City Council [2023] EWCA Civ 574 — The appellant had been sentenced to 28 days' imprisonment, suspended for 12 months, in relation to taking videos and making social media posts in breach of an injunction. Her appeal was unsuccessful.
  • 06/12/24
    (2210)
    : Case (Imprisonment for contempt). Sunderland City Council v MacPherson [2024] EWCOP 8 — A sentence of three months' imprisonment was imposed for posts on Facebook and X in breach of an injunction, with a previously suspended sentence of 28 days made immediate, to run concurrently. The defendant was in France so would have to return to England for any warrant of committal to be executed.
  • 06/12/24
    (2131)
    : Case (Residence, care and contact). Re DY (Capacity) [2024] EWCOP 4 — DY had capacity to make decisions about residence, care and contact with others. There were concerns that she might lose capacity in the future (including how she would respond to the birth of her baby and the stresses of living in a parent and baby unit) but it was not appropriate to make anticipatory or contingent declarations in circumstances of this case.
  • 06/12/24
    (2102)
    : Case (Discharge of transparency order). Re VS (deceased) [2024] EWCOP 6 — The transparency order was discharged, the two main factors being (a) public interest in the facts of the case, and (b) the subject of the proceedings had died.
  • 04/12/24
    (2234)
    : Mental capacity law newsletter. 39 Essex Chambers, 'Mental Capacity Report' (issue 146, December 2024) — "Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal grapples again with sexual capacity, and important reminders of best interests as good governance and operating in an imperfect world; (2) In the Property and Affairs Report: Simon Edwards retires, and deputyship updates; (3) In the Practice and Procedure Report: flight risk, and a coercive control dilemma regarding a lasting power of attorney; (4) In the Mental Health Matters Report: a Mental Health Bill update, detainability and the courts, and Right Care, Right Person under scrutiny; (5) In the Wider Context Report: Assisted dying / assisted suicide developments, capacity and surrogacy and two important Strasbourg cases; (6) In the Scotland Report: Kirsty Mcgrath retires, and a blank space for developments regarding legislative reform in Scotland."
  • 02/12/24
    (2223)
    : Case (Fitness to practise and covert medication). Ambreen Malik [2021] MHLO 8 (MPT) — The Medical Practitioners Tribunal decided that the doctor's fitness to practise was not impaired by reason of her misconduct: "The Tribunal was of the view that Dr Malik was acting in the best interests of Patient A and her motivation was solely to improve the health of Patient A so he could return to the community and avoid being admitted to the PICU. The Tribunal were agreed that at the time, Dr Malik genuinely believed that the only option she had to gain the best outcome for Patient A was for covert administration of ZD."
  • 02/12/24
    (2152)
    : Case (Unfair dismissal and whistleblowing). Dr A Malik v Cygnet Behavioural Health Ltd (reconsideration) [2021] MHLO 7 (ET) — The claimant sought reconsideration as the original decision contained no specific decision in relation to one of the argued detriments, part 1 of which was her suspension in relation to administration of covert medication, and part 2 of which was the inadequate appeal against dismissal. Part 1 was presented out of time but part 2 was presented in time. The tribunal rejected the respondent's argument that its Article 6 rights would be breached by a finding being made months after the trial, but went on to decide that the appeal was part of the dismissal so was excluded as a detriment and, an any event, was not motivated by the public interest disclosures.
  • 01/12/24
    (0832)
    : Case (Unfair dismissal and whistleblowing). Dr A Malik v CAS (Cygnet) Behavioural Health Ltd [2021] UKET 2403141/2018 — A consultant psychiatrist employed at Cygnet Fountains Hospital suffered whistle-blowing detriments because of public interest disclosures, and was dismissed unfairly and without notice in breach of her contract. (1) She had given evidence to a coroner about drugs being found in a patient's room after death (having been warned by the CEO not to "make your life complicated", and by the solicitor that it was "not relevant to the patient's death" and that she "must have mis-remembered the event") and other related public interest disclosures. Her suspension after those disclosures was a detriment, as was a later GMC referral about the covert medication of another patient (which had a "venomous and dishonest tone" involved "unpleasant and untrue" features). There had been other detriments, in relation to undermining her and making her life less tolerable on her return to work, but the complaints about those were out of time. (2) Her subsequent dismissal was not because of the disclosures (so it was not automatically unfair dismissal) or for gross misconduct (for which there was no evidence as she had followed company covert medication policy) but was unfair: the disclosures acted as a "backdrop" for senior managers disliking her and later seizing an opportunity to dismiss her; the tribunal could not find that Cygnet held a genuine belief in misconduct; their decision-making process was disreputable; the CEO's actions were "less than honest", and other senior staff had been dishonest and engaged in lying and back-covering; and there had been a "litany of bad faith". (3) As there had been no gross misconduct, she had been dismissed without notice in breach of contract.
  • 27/11/24
    (2204)
    : 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.
  • 23/11/24
    (1753)
    : 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.
  • 21/11/24
    (1435)
    : 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.
  • 19/11/24
    (2241)
    : DSA website archive — When Dave Sheppard retired he kindly gave permission for his website to be kept online. See DSA website for details.
  • 19/11/24
    (1127)
    : 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."
  • 08/11/24
    (1435)
    : 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.
  • 08/11/24
    (1426)
    : 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.
  • 03/11/24
    (2041)
    : 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.
  • 03/11/24
    (2010)
    : 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.

Monthly updates

The relevant month's updates, categorised and on one webpage:

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