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Recent updates on website

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  • 24/01/25
    (1137)
    : Event. PELT: Introduction to the MHA, Code and Tribunals (online, 9 April 2025) — The basic course is for all those who need an understanding of the MHA and Code and how it works in practice. It is aimed at all those whose work involves working with those detained, or who may be detained, under the MHA. Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • 24/01/25
    (1133)
    : Event. PELT: Introduction to MCA and DOL (online, 30 April 2025) — Intensive introduction to all those who need a basic understanding of the MCA and DOLS. Identifying the ‘decision maker’ as the person responsible for the outcome of that particular decision is the key to lawful decision making on behalf of those who lack capacity. Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • 24/01/25
    (1126)
    : Event. PELT: Introduction to COP, including s21A appeals (online, 7 May 2025) — The Court of Protection has a very wide ambit potential touching the lives of many vulnerable people. DOLS and procedures are authorised or challenged and where arguments about capacity or adult protection and best interests are resolved. It is essential for those working with vulnerable people/safeguarding. Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • 24/01/25
    (1124)
    : Event. PELT: MHA Masterclass (online, 21 May 2025) — This course will allow practitioners to reflect and update their practice by ensuring they have an up-to-date understanding of the law. The contents of the course will be up to date and reflect any changes or significant developments which affect lawful practice. To include relationship between MHA and DOLS. Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • 24/01/25
    (1122)
    : Event. PELT: Court of Protection and MCA Masterclass (online, 4 June 2025) — Reviews recent developments in Court of Protection cases. It will include the latest COP cases on deprivation of liberty, capacity, health and welfare, legal aid and treatment and what practitioners can learn from these cases that will promote effective and lawful MCA practice. Speaker: Peter Edwards. Cost: £125 plus VAT. See PELT website for further details and booking information.
  • 23/01/25
    (1150)
    : Case (Apparent bias). R (Cygnet Health Care Ltd) v CQC [2025] EWHC 1 (Admin) — A patient who had been a patient at Cygnet hospitals, and had made serious complaints about his treatment there, was subsequently appointed as a CQC inspector. His inspection of Cygnet Hospital Ealing led to a criminal prosecution in relation to a patient's death, and Cygnet's application to have those proceedings stayed as an abuse of process was refused. Cygnet then challenged seven inspection reports and four enforcement decisions in relation to other hospitals, which the High Court declared had been affected by apparent bias. However, with one exception (where the CQC's decision not to withdraw the report was quashed) the court refused to grant further relief as it was highly likely that the outcome would have not been substantially different. The costs schedule exceeded £550,000 and the CQC was ordered to pay 90% of Cygnet's reasonable costs with £125,000 paid on account.
  • 21/01/25
    (2329)
    : Case (Mistake of fact - availability of treatment). JB v Elysium Healthcare [2025] UKUT 9 (AAC) — Audio recordings made by the patient immediately after the tribunal showed that the RC had lied about intending to resume psychological therapy. On the basis of those recordings, the UT set aside its original refusal to grant permission to appeal, and now decided that the tribunal had been labouring under a mistake of fact amounting to an error of law. It was not clear what the decision would otherwise have been (the tribunal referred to other treatment but attached particular importance to psychology) so the error was not immaterial. The case was remitted for re-hearing by a new tribunal. The UT noted, from previous authority, that: (1) appropriate medical treatment cannot be said to be "available" to a patient if the detaining authority is unwilling to provide it; (2) to establish a mistake of fact amounting to an error of law: (a) the mistake must be on an existing fact (including mistake as to the availability of evidence on a particular matter); (b) the fact must be uncontentious; (c) the party asserting the error of law must not be responsible for the mistake; and (d) the mistake must have played a material part in the tribunal’s reasoning.
  • 15/01/25
    (2237)
    : Case (Appeal against committal order - Court of Appeal's powers). MacPherson v Sunderland City Council [2024] EWCA Civ 1579 — There was reason to believe (under MCA 2005 s48) that the appellant lacked capacity in relation to this appeal against a committal order. The Court of Appeal has all the powers of a lower court (whether that be the Court of Protection or otherwise) in relation to an appeal so it can make an interim declaration and refer any issue for determination by that lower court. The questions of the appellant's current capacity, and her capacity when sentenced, were referred to a Tier 3 COP judge for determination, after which the Court of Appeal will hear the case again. The stay of the sentence of imprisonment was continued, the bench warrant was discharged, and the appeal was adjourned, but the injunctions remained in force.
  • 15/01/25
    (2038)
    : Case (Non-disclosure of victim's statement except to patient's lawyers). AM v Greater Manchester Mental Health NHS Foundation Trust [2024] UKUT 438 (AAC) — (1) An interim non-disclosure order was made under rule 5 allowing disclosure of the victim's statement only to AM's lawyers. That order was continued under rule 14(2), but the tribunal failed properly to consider either limb of that rule (involving likelihood of serious harm and the interests of justice respectively). This procedural irregularity was capable of making a material difference to the outcome or the fairness of the proceedings (by restricting the ability of AM’s representatives to cross-examine and obtain evidence about an proposed exclusion zone variation) so was an error of law. (2) In relation to materiality, the UT judge stated that there are three "possibilities" in relation to procedural and other irregularities: "(a) the irregularity made a difference; (b) it did not make a difference; and (c) it could have made a difference." His full position can be stated more clearly as follows: the irregularity is material if (and only if) it could have made a difference, whether not or not it did. (3) The UT judge gave guidance on rule 14(2)(a). "This largely involves issues of fact: who might be harmed, what harm might befall them and whether it was serious. It also involved an estimate of the likelihood of that happening. ... Both seriousness and likelihood require not only consideration but separate consideration for each person and each kind of potential harm. ... Different disclosure may be appropriate to different people. Some parts of the information may be irrelevant and so can be discarded on that count. Some parts may be disclosed to some but not to others. Disclosure to any individual may be full or partial. It may be verbatim or may consist of the gist of what the victim has said." (4) As the procedural irregularity justified a rehearing, the substantive challenge to the decision not to amend the exclusion zone was not considered, but the UT noted that the tribunal was entitled to take into account as a relevant consideration the effect of the zone on AM's ability to take up an offer of work.
  • 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 consecutively. 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.

Monthly updates

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

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