View source for November 2011 update

==Caselaw==
===Case summaries===
*{{pagesummary|R (Modaresi) v SSH (2011) EWCA Civ 1359}}
*{{pagesummary|Cheshire West and Chester Council v P (2011) EWCA Civ 1333}}
*{{pagesummary|Cheshire West and Chester Council v P (2011) EWCA Civ 1257}}
*{{pagesummary|Hadzic and Suljic v Bosnia Herzegovina 39446/06 (2011) ECHR 911}}
*{{pagesummary|R v Shah (2011) EWCA Crim 2333}}
*{{pagesummary|Re RB (Adult); A London Borough v RB (Adult) (No 4) (2011) EWHC 3017 (Fam)}}
*{{pagesummary|R v Goucher (2011) EWCA Crim 2473}}
*{{pagesummary|R v Heaney (2011) EWCA Crim 2682}}
*{{pagesummary|De Louville De Toucy v Bonhams 1793 Ltd (2011) EWHC 3809 (Ch)}}
*{{pagesummary|R (BA) v SSHD (2011) EWHC 2748 (Admin)}}
*{{pagesummary|R v Lavender (2011) EWCA Crim 2420}}
*{{pagesummary|R (Smith) v LB Camden (2011) EWCA Civ 1207}}
*{{pagesummary|R v Clark (2011) EWCA Crim 2516}}
*{{pagesummary|Hossack v Legal Services Commission (2011) EWHC 2700 (Admin)}}

===Case summaries - OPG===
*{{pagesummary|Re Clare (2011) COP 8/9/11}}
*{{pagesummary|Re Dhir (2011) COP 15/11/11}}
*{{pagesummary|Re Hamilton (2011) COP 25/10/11}}
*{{pagesummary|Re Stewart (2011) COP 9/11/11}}
*{{pagesummary|Re McGregor (2011) COP 16/11/11}}
*{{pagesummary|Re Hurren (2011) COP 28/9/11}}
*{{pagesummary|Re Steiner (2011) COP 17/10/11}}
*{{pagesummary|Re Wormsley (2011) COP 24/10/11}}
*{{pagesummary|Re Clarke (2011) COP 19/9/11}}

===Case transcripts===
*{{pagesummary|Re DC (Judicial Review) (2011) CSOH 193}}
*{{pagesummary|AB v MHTS (2011) ScotSC B694/11}}
*{{pagesummary|Re P; A Local Authority v PB (2011) EWHC 2675 (COP)}}
*{{pagesummary|Re FL; HN v FL and Hampshire CC (2011) EWHC 2894 (COP)}}
*{{pagesummary|Re HM; SM v HM (2011) COP 11875043 4/11/11}}
*{{pagesummary|LB Tower Hamlets v BB (2011) EWHC 2853 (Fam)}}

==Legislation==
===Legislation added===
*{{pagesummary|Court of Protection (Amendment) Rules 2011}}
*{{pagesummary|Tribunal Procedure (Amendment) Rules 2011}}
*{{pagesummary|Mental Capacity Act 2005 (Appropriate Body) (England) Amendment Regulations 2011}}
*{{pagesummary|Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011}}
*{{pagesummary|Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011}}
*{{pagesummary|Family Procedure (Modification of Enactments) Order 2011/1045}}
*{{pagesummary|Legal Services Act 2007 (Consequential Amendments) Order 2009}}
*{{pagesummary|Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010}}
*{{pagesummary|Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010}}
*{{pagesummary|Postal Services Act 2011}}

===Legislation debates===
*Second reading of Mental Health (Discrimination) Bill, Hansard HL Deb, 25 November 2011, col 1283. {{pagesummary|Mental Health (Discrimination) Bill 2010}}
*Second Reading of LAPSO Bill, Hansard HL Deb, 21 November 2011, col 820. See [[Legal Aid, Sentencing and Punishment of Offenders Bill 2011]]
*Hansard HL Deb, 26 October 2011, col 831. This is the transcript of a debate in the House of Lords on a motion to annul the Community Legal Service (Funding) (Amendment No.2) Order 2011 (the order which reduces civil fee rates by 10%); following the debate the motion was withdrawn. See [[Legal Aid News]]
*Mind, 'Health and Social Care Bill: Amendment 236B' (November 2011). Mind's proposal: 'Our amendment would still allow for the wording "Primary Care Trusts" to be replaced with "clinical commissioning groups" in the Mental Health Act, and for consequential amendments resulting from the abolition of PCTs. However, our amendment would: (1) Retain the joint duty on CCGs and social services authorities, (2) ensure that CCGs continue to arrange for provision of services under s117 in co-operation with relevant voluntary agencies, (3) ensure that the arrangement of services by CCGs under s117 are not limited to services arranged under section 3 or section 3A of the NHS Act (by deleting proposed subsection (2E)), (4) ensure that the duty on CCGs will not be regarded as a duty under section 3 NHS Act. This means it remains a freestanding duty under section 117 MHA, and the possibility of charging for aftercare is removed (by deleting proposed subsection (2F)).' See [[Mind (Charity)]]

==Mental Capacity Act==
===Court of Protection===
*Three Court of Protection Practice Directions were amended on 25/11/11: (1) Practice Direction 10AA (Deprivation of liberty applications) has been amended to reflect fact that the Court of Protection has moved. The DOLS Application Branch's new contact details are: Court of Protection, Royal Courts of Justice, Thomas More Building, Strand, London WC2A 2LL, DX 44450 Strand, tel 0300 456 4600. The PD also contains a new internet address for the relevant court forms. (2) Practice Direction 14B (Depositions) has similarly been updated to reflect the new address. (3) Practice Direction 19A (Costs in the Court of Protection) has been amended to replace 'Supreme Court Costs Office' with 'Senior Court Costs Office'. See [[Court of Protection Practice Directions]]
*Link added to Guardian newspaper's list of Court of Protection articles. Selected articles: Amelia Hill, 'Court of protection should be open to public scrutiny, says leading judge' (Guardian, 6/11/11); Amelia Hill, 'The court of protection: defender of the vulnerable or shadowy and unjust?' (Guardian, 6/11/11); Martin Terrell, 'Court of protection must balance needs of vulnerable with rights of family' (Guardian, 7/11/11). See [[Court of Protection]]

===Office of the Public Guardian===
*Hansard HL, 18 October 2011, col WS14. Since the implementation of the MCA 2005, the Office of the Public Guardian carried out insolvency checks on potential LPA donees; to save money, this practice has ceased. See [[Lasting Power of Attorney]]

===DOLS===
*BBC Radio 4: The Report: Deprivation of Liberty Safeguards. This programme, broadcast at 2000hrs on Thursday 24/11/11, discusses whether the DOLS are adequate, whether they are understood by care workers, and why they are so unevenly applied across the country. See [[DOLS#Other links]]
*John Leighton, 'Deprivation of liberty safeguards guide for care homes' (Community Care, 7/11/11) and Mithran Samuel, 'Helping care home managers navigate the deprivation of liberty process' (Community Care, 10/11/11). See [[DOLS#Other links]]
*Mental Health Alliance, 'The Deprivation of Liberty Safeguards' (pre-publication draft of chapter of forthcoming report, 25/11/11). The key issues are stated to be: '(1) The DoLS scheme is not fit for purpose in its present form – implementation has been extremely uneven, with the result that the protections the scheme is supposed to afford to vulnerable people are effectively unavailable in large parts of the country; (2) Its review and appeals processes do not comply with the requirements of ECHR Article 5(4), largely negating its intended purpose; (3) The scheme is incredibly bureaucratic and wasteful of scarce professional resources, and the burdensome paperwork itself discourages use; (4) Nevertheless, where agencies have managed, with a great deal of effort, to make it work reasonably well, DoLS does perform a valuable protective function and has achieved at least some of the objectives set out for it, demonstrating that there is a need for a measure of this kind.'
*Jaspreet Phull, 'The Deprivation of Liberty Safeguards: observations and limitations' (2011) 51 Med Sci Law 187 (subscription only). Abstract: 'The recently introduced Deprivation of Liberty Safeguards (DoLS), which came into force in April 2009, was created to protect the liberty of people lacking capacity admitted to care homes and hospitals in England and Wales. This paper discusses observations and some limitations of the DoLS for protecting the liberty of residents within institutional settings. The regulation, safeguards and recent relevant case law are examined critically. The author suggests that their effectiveness may be limited by the under-recognition of cases, ambiguity and limited safeguards within the statute. The paper concludes that the DoLS legislation has been a positive step towards protecting the liberty of those lacking capacity but that limitations present could undermine the purpose of the legislation.' See [[DOLS]]
*Ruth Cairns et al, 'Mired in confusion: making sense of the Deprivation of Liberty Safeguards' (2011) 51 Med Sci Law 228 (subscription only). Extract from abstract: '''Participants and setting'' Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London. ''Results'' Lawyers attributed key importance to a patient's ‘freedom to leave’ and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty. ''Conclusions'' Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.' See [[DOLS]]
*Links to articles added. (1) Tim Ross, 'Dementia doctors may face jail for using chemical cosh' (Daily Telegraph, 2/11/11). (2) Pulse, 'Minister warns GPs could require PCT permission to prescribe antipsychotics - or face jail' (3/11/11). Health Minister Paul Burstow claims that 'Antipsychotic drugs prescribed against the evidence, without clear clinical justification, amount to a deprivation of liberty'. (3) Mithran Samuel, 'Burstow bid to use Dols to curb antipsychotics use "draconian"' (Community Care, 10/10/11). See [[DOLS#'Chemical cosh']]

==Ministry of Justice==
*Ministry of Justice, 'Appointments and Diversity: A Public Consultation' (Consultation paper CP19/2011, 21/11/11). Of relevance to mental health law are the following proposals: (1) Amending s63 Constitutional Reform Act 2005, which currently requires judicial appointment to be 'solely on merit', to allow the Equality Act 2010's protected characteristics (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, gender and sexual orientation) to be taken into account: where a 'selection assessment on a range of criteria rates them as equally capable of doing the job' then the presumption will be that protected characteristics will tip the balance in favour of those possessing them. (2) To provide more opportunity for appointments based on diversity, changing the tenure of fee-paid appointments so that they no longer last until retirement, but instead for a maximum of three five-year terms save in exceptional cases where there is a clear business need. Consultation runs from 21/11/11 to 13/2/12. See [[Consultations]]
*Ministry of Justice consultation: Fees in the High Court and Court of Appeal (15/11/11 to 7/2/12). 'A consultation proposing changes to fees in the High Court and Court of Appeal Division. It is aimed at users of the High Court and Court of Appeal Civil Division, the legal profession, the judiciary, the advice sector and all with an interest in this area in England and Wales. The aim of these proposals is to charge users of these two jurisdictions more proportionally for the resource their cases consume, while protecting access to justice for the most vulnerable. This will reduce the taxpayer subsidy of the courts service.' (introductory text)

==Department of Health==
*Dept of Health, 'Cross-border transfers of patients under the Mental Health Act' (gateway ref 14651, 2/9/10). Guidance and forms in relation to the transfer of patients to Scotland, Northern Ireland, the Channel Islands and the Isle of Man. See [[New cross-border arrangements for leave and transfer]]

==Statistics==
*NHS Information Centre, 'Mental Health Bulletin - Fifth report from Mental Health Minimum Dataset (MHMDS) annual returns, 2011' (29/11/11). See [[Statistics]]
*NHSIC, 'Guardianship under the Mental Health Act 1983 - England 2011' (8/9/11). Key facts: (1) The number of new Guardianship cases fell by 22 per cent between 2009/10 and 2010/11 from 435 to 339 cases, which is the largest reduction in new cases since 2001/02, the first year analysed in this report; (2) For the fifth consecutive year there was a decrease in the number of continuing Guardianship cases open at the end of the year; (3) There are large regional variations in the rates of Guardianship usage; (4) Variations in the rate of Guardianship usage are also noticeable across different types of authorities; (5) These variations in Guardianship usage are also very apparent at Local Authority level. See [[Statistics]]
*NHS Information Centre, 'Inpatients formally detained in hospitals under the Mental Health Act 1983 and patients subject to supervised community treatment, Annual figures, England 2010/11' (11/10/11). Extract from summary: 'The latest figures for 2010/11 suggest that the number of people subject to restrictions under the Mental Health Act continues to rise. Whilst the number of formal admissions for treatment and new Community Treatment Orders (CTOs) has decreased since the previous reporting period, the overall number of people remaining in detention or subject to a CTO is higher than before. The number of uses of Place of Safety Orders has also increased. The figures also show major changes in the number of formal detentions, uses of Place of Safety Orders and CTOs.'

==Newsletters==
*Mind, 'Legal E-newsletter' (issue 10, November 2011). The edition contains the following articles and case reports: (1) Section 117 of the Mental Health Act 1983 and the Health and Social Care Bill 2011; (2) Reasonable adjustments – how the law is developing; (3) Enhanced Criminal Record Checks (ECRC): Disclosure of Mental Health History; (4) Accommodation provided by social services under s21 of the National Assistance Act 1948; (5) Legal representation in mental health cases (feature by Richard Charlton, MHLA chairman); (6) AH v West London MH NHS Trust (2011) UKUT 74 (AAC) (public hearing); (7) DN v Northumberland Tyne and Wear NHS Foundation Trust (2011) UKUT 327 (AAC) (MHA/MCA interface); (8) CX v A Local Authority (2011) EWHC 1918 (Admin) (NR consultation); (9) Jackson v Liverpool City Council (2011) EWCA Civ 1068 (employer references); (10) Rabone v Pennine Care NHS Trust (2010) EWCA Civ 698 (Article 2: recently heard by the Supreme Court). See [[Mind (Charity)]]
*39 Essex Street, 'Court of Protection Newsletter' (issue 15, November 2011). The case mentioned in this special issue is Cheshire West and Chester Council v P (2011) EWCA Civ 1257. See [[39 Essex Street COP Newsletter]]
*39 Essex Street, 'Court of Protection Newsletter' (issue 14, October-November 2011). The cases referred to are: Re S; D v R (the deputy of S) [2010] EWHC 3748 (COP), Sharma v Hunters [2011] EWHC 2546 (COP), Re GM; FP v GM and A Health Board [2011] EWHC 2778 (COP), LG v DK [2011] EWHC 2453 (COP), A Local Authority v DL [2010] EWHC 2675 (Fam), R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB), DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC). Also mentioned is the Law Commission report on kidnapping, which includes a discussion of Re HM; PM v KH [2010] EWHC 870 (Fam). See [[39 Essex Street COP Newsletter]]

==Legal Aid==
*LSC, 'New prior authority form to instruct civil legal aid experts' (CLS News, 9/11/11). New form APP8A introduced, together with guidance document. See [[Legal Aid News]]

==Wales==
*Consultation on the draft code of practice to parts 2 and 3 of the Mental Health (Wales) Measure 2010 (18/10/11 to 16/01/12). 'This consultation seeks views on a draft Code of Practice for care and treatment planning. It also covers reassessment for secondary mental health services under the Mental Health (Wales) Measure 2010. Part 2 of the Measure is concerned with: (1) the appointment of care coordinators as part of the process of planning and coordinating care; and (2) care and treatment plans for people receiving secondary mental health services. Part 3 of the Measure is concerned with: (1) former users of secondary mental health services; and (2) providing a right for them to refer themselves back to secondary services for assessment directly. The draft code sets out guiding principles and practice guidance for the operation of the Measure.' See [[Consultations#National Assembly for Wales]]
*Text of Welsh update email added. 'On Tuesday 8 November 2011 the Minister for Health and Social Services laid before the National Assembly for Wales the Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011 along with an accompanying Explanatory Memorandum.  These Regulations are being introduced under Part 2 of the Mental Health (Wales) Measure 2010.' (extract). See [[Mental Health (Wales) Measure 2010]]
*Welsh legislation consultation. 'On 7 November 2011 the Welsh Government began a formal consultation on the draft Mental Health (Primary Care Referrals and Eligibility to Conduct Primary Mental Health Assessments) (Wales) Regulations 2012. These Regulations propose arrangements which will enable GPs to refer individuals to local primary mental health support services (including individuals who are not registered with them).  The Regulations also set out eligibility requirements for those who may undertake primary mental health assessments. The consultation period begins on 7 November 2011 and all responses must be submitted to the Welsh Government's Mental Health Legislation Team no later than 27 January 2012.' (Text of circular email 8/11/11.) See [[Mental Health (Wales) Measure 2010]]

==Other==
*Link added - 'National Archives: CQC website'. Some documents are not available on the current CQC website, but many of these can be located in these archives
*RCPsych, 'Being sectioned (in England and Wales)' (November 2011). See [[Royal College of Psychiatrists]]                            
*Martin Beckford, 'Man kept in hospital for three months over infection fears' (Telegraph, 24/10/11). See [[Public Health (Control of Disease) Act 1984]]
*Leicester Mercury, 'Woman who abused patients has jail term cut' (5/11/11). See [[MCA 2005 s44]]
*Kirsten Sjvoll, 'Case Preview: Rabone & Anor v Pennine Care NHS Trust' (UKSC Blog, 10/11/11). See [[Rabone v Pennine Care NHS Trust (2010) EWCA Civ 698]]
*UKPA, 'Brain-damage woman ruling challenge' (26/10/11). Applicant seeks leave to appeal to Court of Appeal. See [[Re M; W v M (2011) EWHC 2443 (COP)]]
*Philip Hoult, 'Local authority wins appeal in landmark ruling on deprivations of liberty' (Local Government Lawyer, 10/11/11); O'Donnells Solicitors, 'Article 5 – The Court of Appeal Has Another Go!' (10/11/11). See [[Cheshire West and Chester Council v P (2011) EWCA Civ 1257]]

==Website==
*Thanks to the following: Ben Troke of Browne Jacobson Solicitors for adding a summary of [[Cheshire West and Chester Council v P (2011) EWCA Civ 1257]]; James Batey of the Court of Protection for providing transcripts of [[Re FL; HN v FL and Hampshire CC (2011) EWHC 2894 (COP)]] and [[Re HM; SM v HM (2011) COP 11875043 4/11/11]]

*The following pages have been created or tidied up: [[Court of Protection]], [[Court of Protection Rules 2007]], [[Court of Protection Practice Directions]], [[Court of Protection forms]]

*The text of the Mental Health Act 1983 on this website has been updated: (1) the [[Postal Services Act 2011]] amends [[s134]], with effect from 1/10/11; (2) the [[Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010]] amends [[s24]], [[s34]], [[s119]] and [[s145]], wef 1/10/10; (3) the [[Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010/976]] amends [[s82]], [[s82A]], [[s86]] and [[s139]], wef 12/4/10. See [[Mental Health Act 1983]]

*On 30/11/11, Mental Health Law Online contained [[Mental health case law|1096 categorised cases]]

*See [[November 2011 chronology]] for this month's changes to the website in date order

==Twitter==
{{monthly|twitter|2011|11}}

[[Category:Updates]]