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December 2016 chronology

Revision as of 20:24, 2 February 2017 by Jonathan (talk | contribs) (Created page with "See December 2016 update for a thematic summary of these changes. *30/12/16 (3): '''Ministry of Justice, 'The recall of conditionally discharged restricted patients' (4/2...")
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See December 2016 update for a thematic summary of these changes.

  • 30/12/16 (3): Ministry of Justice, 'The recall of conditionally discharged restricted patients' (4/2/09). See Recall#External links
  • 30/12/16 (2): Department of Health, 'Recall of mentally disordered patients subject to Home Office restrictions on discharge' (LAC(93)9, 14/4/93). See Recall#External links
  • 29/12/16 (1): Sex case (from 2014, but published on Bailii yesterday). R v GA [2014] EWCA Crim 299, [2014] MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent. In this particular case, expert evidence was led before the jury on the question of the complainant's capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is 'expert', relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. What is more, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time. Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury's finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations."§
  • 28/12/16 (5): Edge Training: MCA and Tenancy Agreements - London, 24/2/17 — No results
  • 28/12/16 (4): Edge Training: Hoarding and the Law - London, 8/5/17 — No results
  • 28/12/16 (3): Edge Training: DOL in children and young people - London, 15/5/17 — No results
  • 28/12/16 (2): Edge Training: DOLS Authorised Signatories - London, 26/5/17 — No results
  • 28/12/16 (1): Edge Training: Hoarding and the Law - London, 6/10/17 — No results
  • 19/12/16 (1): Ben Troke, 'Court of Protection and deprivation of liberty update - a "perfect storm" coming?' (Browne Jacobson website, 15/12/16). See Newsletters#Browne Jacobson
  • 15/12/16 (2): Healthy London Partnership, 'Mental health crisis care for Londoners: London's section 136 pathway and Health Based Place of Safety specification' (December 2016). See MHA 1983 s136#External links
  • 04/12/16 (1): Legal Aid forms page updated. This page has been updated, including with a link to the current Form CW1&2 (MH). See Legal Aid forms
  • 29/11/16 (2): Northern Irish DOL case (from 2014). JMCA v The Belfast Health and Social Care Trust [2014] NICA 37, [2014] MHLO 147 — "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in Cheshire West and Chester Council v P [2014] UKSC 19. It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced deprivation of liberty legislation into the Mental Capacity Act 2005 providing a mechanism for the lawful restriction on or deprivation of liberty of a person such as the appellant. It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction."§
  • 23/11/16 (1): CQC, 'Monitoring the Mental Health Act in 2015/16' (21/11/16). These are the key points from Part 1 ("The Mental Health Act in action") and Part 2 ("CQC and the Mental Health Act") respectively: (1) We have seen examples of good practice and innovative approaches to overcoming areas of concern highlighted in our previous reports. We have met thousands of staff who are compassionate and dedicated to providing the best support and treatment they possibly can for their patients. (b)Ÿ Staff had received training on the changes in the Code, or the revised policies and procedures to reflect its guidance, on less than half of wards we sampled. From 2016, we have taken these failings into account and use them to inform the ratings we issue to providers. (c)Ÿ Overall, the figures for care planning, patient involvement and discharge planning subject areas show unacceptable variation in meeting the Code’s expectations, similar to those recorded in the 2014/15 report. Some services need to address the quality of care in these areas for people detained under the MHA. (d) One in 10 records do not show evidence that patients have had their rights explained to them at the point of detention. This leads to patients not knowing what to expect, or understanding their rights under the MHA. (e) We were notified of 201 deaths of detained patients by natural causes, 46 deaths by unnatural causes and 19 yet to be determined verdicts. (2) In 2015/16: (a)Ÿ We carried out 1,349 visits, met with 4,282 patients and required 6,867 actions from providers. (b)Ÿ Our Second Opinion Appointed Doctor service carried out 14,601 visits to review patient treatment plans, and changed treatment plans in 27% of their visits. (c) We received 1,422 complaints and enquiries about the way the MHA was applied to patients. Issues identified included medication, care provided by doctors and nurses, leave arrangements and safeguarding concerns. See Care Quality Commission#CQC - Reports on MHA
  • 11/11/16 (5): Case citations. In a development which may enthuse some more than others, I have at last written an extension which: (1) overcomes a software limitation which previously meant that all citations contained round brackets (square brackets are used in citations if the year is needed to identify the case or article, which is true for all neutral citation numbers); and (2) checks BAILII each time a neutral citation number appears on MHLO and automatically adds a BAILII link if the judgment is available there (links appear in blue text: the automatic external links have dotted underlining, normal external links have solid underlining, and internal links to other MHLO pages are not underlined). You can see an example of the extension at work on the R (Lee-Hirons) v SSJ [2016] UKSC 46, [2016] MHLO 38 page. See Help page for further details.
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