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Drilldown: Resources
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|1 Crown Office Row, 'Alasdair Henderson secures award of damages for false imprisonment in a hospital setting' (30/1/19)
|Web page
MCA-related damages
This web page reports on a claim against Kings College Hospital in which the High Court held that there had been a failure to follow the DOLS requirements to undertake a full capacity assessment and, if appropriate, a best interests assessment, and that the hospital had intentionally kept the family in the dark about Christiana Esegbona's discharge to a nursing home until the last minute in order to prevent objection. The claim for false imprisonment and for negligent failures to provide adequate information to the nursing home (at which the patient died after pulling out her tracheostomy tube) was successful, and the court awarded aggravated damages because of the deliberate exclusion of the family from the discharge planning process.
|39 Essex Chambers, 'Mental Capacity Report' (issue 100, December 2019)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an important guest article from Inclusion London, and reflections fromTor and Alex on 100 issues; (2) In the Property and Affairs Report: a report of an interview with HHJ Hilder and deputyship refunds; (3) In the Practice and Procedure Report: the administration of appeals, and important judgments shedding light by analogy on factfinding, costs and vulnerable witnesses; (4) In the Wider Context Report: assisted dying, Article 2 obligations and informal patients, and reports of developments in Northern Ireland, Jersey and wider afield; (5) In the Scotland Report: an important judgment on guardianship and deprivation of liberty, a judicial review of conditions of excessive security and further observations on the operation of 'foreign' powers of attorney in England & Wales from the Scottish perspective."
|December 2019
|39 Essex Chambers, 'Mental Capacity Report' (issue 101, February 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a tribute to Mr E; fluctuating capacity; improperly resisting a deputy appointment; DoLS, BIAs and RPRs, and finding the right balance with constrained resources; (2) In the Property and Affairs Report: the OPG, investigations and costs; e-filing for professional deputies, and a guest article about the National Will Register; (3) In the Practice and Procedure Report: the Vice-President issues guidance on serious medical treatment; an important judgment on contingent declarations; the permission threshold; and disclosure to a non-party; (4) In the Wider Context Report: brain death and the courts; deprivation of liberty and young people; (5) In the Scotland Report: supplemental reports from the Independent Review of Learning Disability and Autism; the Scott review consults; and relevant cases and guidance."
|February 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 102, March 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: a cautionary tale about re-using material for DoLS assessment and capacity complexities in the context of medical treatment; (2) In the Property and Affairs Report: an important case on the limits of powers of professional deputies to act without recourse to the Court of Protection; (3) In the Practice and Procedure Report: medical treatment - delay, neglect and judicial despair, developments relating to vulnerable parties and witnesses, and Forced Marriage Protection Orders under the spotlight; (4) In the Wider Context Report: Mental Capacity Action Days, when not to presume upon a presumption, and a number of important reports from bodies such as the CQC; (5) In the Scotland Report: the DEC:IDES trial. We have also recently updated our capacity guide and our guide to the inherent jurisdiction."
|March 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 103, April 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the DHSC emergency guidance on MCA and DoLS, the Court of Protection on contact and COVID-19, treatment escalation and best interests, and capacity under the microscope in three complex cases; (2) In the Property and Affairs Report: the Golden Rule in (in)action and the OPG's 'rapid response' search facility for NHS and social care staff to access the register of deputies / attorneys; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19 and an important decision on the s.48 threshold; (4) In the Wider Context Report: COVID-19 and the MCA capacity resources, guidance on SEND, social care and the MHA 1983 post the Coronavirus Act 2020, dialysis at the intersection between the MHA and the MCA and an important report on the international protection of adults; (5) In the Scotland Report: the response of the legal community to AWI law and practice under COVID-19, and an update from the Mental Health Law Review."
|April 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 104, May 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Protection, COVID-19 and the rule of law; best interests and dying at home; and capacity and silos (again); (2) In the Property and Affairs Report: further guidance from the OPG in relation to COVID-19 and an unusual case about intestacy, minority and the Court of Protection; (3) In the Practice and Procedure Report: the Court of Protection adapting to COVID-19; remote hearings more generally; and injunctions and persons and unknown; (4) In the Wider Context Report: National Mental Capacity Forum news, and when can mental incapacity count as a 'status?'; (5) In the Scotland Report: further updates relating to the evolution of law and practice in response to COVID-19. We also note that 9 May 2020 was the 20th anniversary of the Adults with Incapacity (Scotland) Act 2000 receiving Royal Assent."
|May 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 105, June 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: the Court of Appeal presses the reset button in relation to capacity and sexual relations, and three difficult medical treatment decisions; (2) In the Property and Affairs Report: the impact of grief on testamentary capacity; (3) In the Practice and Procedure Report: a remote hearings update, and a pragmatic solution to questions of litigation capacity arising during the course of a case; (4) In the Wider Context Report: DoLS and the obligations of the state under Article 2 ECHR, the Parole Board and impaired capacity, and recent relevant case-law from the European Court of Human Rights; (5) In the Scotland Report: the interim report of the Scott Review critiqued."
|June 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 106, July 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: LPS delayed to April 2022; alcohol dependence and other capacity conundrums; stem cell donation and altruism, and when to come to court in medical treatment cases; (2) In the Property and Affairs Report: updated OPG guidance on making LPAs under light-touch lockdown and a face-off between potential professional deputies; (3) In the Practice and Procedure Report: a basic guide to the CoP; litigation capacity and litigation friends and observations about intermediaries and lay advocates; (4) In the Wider Context Report: capacity and the Mental Health Tribunal, a change of approach to s.117 aftercare and lessons learned from a close encounter with triage; (5) In the Scotland Report: the Scott Review summary of responses to its initial survey and a response from the Chair to the critique in our last issue."
|July 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 107, September 2020)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: updated MCA/DoLS guidance, the anorexia Catch-22, and two important cases on deprivation of liberty; (2) In the Property and Affairs Report: remote witnessing of wills, professional deputy remuneration and the OPG annual report; (3) In the Practice and Procedure Report: CoP statistics, short notes on relevant procedural points and the UN principles on access to justice for persons with disabilities; (4) In the Wider Context Report: the NICE quality standard on decision-making and capacity, litigation friends in different contexts, and a guest piece giving a perspective on living with a tracheostomy and a ventilator; (5) In the Scotland Report: the human rights blind spot in thinking about discharge from hospital in the context of COVID-19.
|September 2020
|39 Essex Chambers, 'Mental Capacity Report' (issue 99, November 2019)
Mental capacity law newsletter
"Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: two deprivation of liberty cases making clear what should (and should not) happen before the court; two important cases about reproductive rights and capacity, and capacity under stress in different contexts; (2) In the Property and Affairs Report: welcome clarity as to how to make foreign powers of representation effective; and capacity and the financial implications of marriage; (3) In the Practice and Procedure Report: two important judgments from the Vice-President highlighting different aspects of case management and confirmation as to the procedural rules governing inherent jurisdiction applications in relation to adults; (4) In the Wider Context Report: news from the National Mental Capacity Forum (and a survey they need completing); an important case about the intersection of capacity, the inherent jurisdiction and the Mental Health Act 1983 in the context of force-feeding; and when you can rely upon your own incapacity to your benefit; (5) In the Scotland Report: four important publications from the Mental Welfare Commission."
|November 2019
|A Platform for the Future - consultation
"In March 2010 an announcement was made that the Ministry of Justice would be bringing Her Majesty's Courts Service (HMCS) and the Tribunals Service together, creating a single unified organisation. This consultation paper sets out the rationale for the creation of a new agency and explains what we believe the benefits will be. In seeking the views of the public on these benefits it also sets out what will remain the same following the creation of the agency."
Ministry of Justice, 'A Platform for the Future', ref CP14/10, 30/11/10
|Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (April 2019 edition, 24/4/19)
DOLS case law summaries
This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019). A newer version is available: Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19).
|Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary 2017-19' (June 2019 edition, 10/6/19)
DOLS case law summaries
This two-page document summarises selected domestic and European caselaw on deprivation of liberty (not just those between 2017 and 2019). There is a newer version: Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary' (May 2020 edition, 21/5/20).
|Aasya Mughal and Steven Richards, 'Deprivation of Liberty Safeguards Case Law Summary' (May 2020 edition, 21/5/20)
DOLS case law summaries
This two-page document summarises selected domestic and European caselaw on deprivation of liberty.
|Adult Social Care consultation
"The overall aim of the project is to provide a clearer, modern and more cohesive framework for adult social care."
|Alex Ruck Keene (ed), Assessment of Mental Capacity (4th edn, Law Society 2015)
Mental capacity book
|Alex Ruck Keene and Rosie Scott, 'The COVID-19 pandemic, the Coronavirus Bill and the Mental Capacity Act 2005' (39 Essex Chambers, 25/3/20)
|Article • Coronavirus resource
Impact of coronavirus on operation of MCA
This article contains information under the following headings: (1) The Coronavirus Bill; (2) Non-Statutory Guidance; (3) Guidance from the Court of Protection; (4) Advance care planning; (5) Commentary.
|Alex Ruck Keene et al, 'Rapid response guidance note: Testing for COVID-19 and mental capacity' (4/5/20)
|Coronavirus resource
Coronavirus testing and capacity
"The Court of Protection team has been asked to advise on a number of occasions as to the legal position in relation to testing for COVID-19, especially as testing (a) starts to be more generally available; and (b) is increasingly been rolled out as mandatory in certain settings. What follows is a general discussion, as opposed to legal advice on the facts of individual cases, which the team can provide. It primarily relates to the position in England in relation to those aged 18 and above; specific advice should be sought in respect of Wales and those under 18."
|Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (2nd edn, LAG 2016)
Court of Protection book
|Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (2nd rev edn, LAG 2017)
Court of Protection book
Note that a 3rd edition has now been published.
|Alex Ruck Keene et al, Court of Protection Handbook: A User's Guide (3rd edn, LAG 2019)
Court of Protection book
|Alex Ruck Keene, 'COVID-19 and MCA - first guidance out' (Mental Capacity Law and Policy, 19/3/20)
|Article • Coronavirus resource
Article about coronavirus guidance mentioning MCA
This article contains brief comments on the following: (1) DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20); (2) HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20).
|Alex Ruck Keene, 'Foreign powers of attorney - an unfortunate judicial wrong turn' (Mental Capacity Law and Policy, 26/3/18)
|Web page
Commentary on protective measure case
This article states that the two litigants in person, in seeking recognition and enforcement of a Canadian "Continuing Power of Attorney for Property" as a protective measure (under Part 4 Schedule 3 MCA 2005), had led the judge astray, as the relevant question was whether (under Part 3) the Canadian power was valid according to Ontario law, assuming JMK had been habitually resident there at the point of granting the power. A application can be made under rule 23.6 Court of Protection Rules 2017 in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.
|Alex Ruck Keene, 'Going beyond the Mental Capacity Act in assessing capacity: recognising and overcoming biases and stereotypes' (The Mental Elf, 26/3/20)
|Blog post
Summary of capacity assessment briefing note
This blog post summarises Sophie Stammers and Lisa Bortolotti, 'Mitigating the risk of assumptions and biases in assessments of mental capacity' (University of Birmingham, 23/3/20).
|Alex Ruck Keene, 'Public health restrictions and capacity' (Mental Capacity Law and Policy, 29/3/20)
|Blog post • Coronavirus resource
Coronavirus public health restrictions
"Two sets of regulations brought into force in the past week have radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society. This post looks at them through the prism of the law relating to those with impaired decision-making capacity; it also looks at through a similar prism at a part of the Coronavirus Act 2020 which is not (yet) in force, but is likely to come into force shortly,"
|Amended General Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20)
|Coronavirus resource • Tribunal guidance
Tribunal coronavirus Practice Direction
This extends Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20), with some amendments, until 18/3/21.
|Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20)
|Coronavirus resource • Tribunal guidance
Mental Health Tribunal coronavirus Practice Direction
This extends Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20) until 18/3/21, with two amendments: (1) instead of "a judge alone shall make every decision unless the Chamber President [etc] considers it to be inappropriate in a particular case..." the new wording is "the provisions of the Composition Statement that apply to mental health cases shall be amended to include that a judge alone may make any decision (including decisions that dispose of proceedings) as directed by the Chamber President, Deputy Chamber President or an authorised salaried Judge in accordance with Amended Pilot Practice Direction: Panel Composition In The First-Tier Tribunal And The Upper Tribunal."; (2) instead of "it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place" the new wording is "it shall be deemed not practicable under rule 34 of the 2008 Rules for any pre-hearing examinations to take place, unless the Chamber President [etc] direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre hearing examination to take place, having regard to the overriding objective and any health and safety concerns. ...".
|Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20)
|Coronavirus resource • Tribunal guidance
Coronavirus tribunal composition (non-MH)
This Practice Direction states that it applies to all appeals and applications within the First-tier and Upper Tribunal, except in mental health cases; however, the appointment of single judges under Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20) is said to be made under this PD. It extends Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) until 18/3/21 with some amendments.
|Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17)
|Newspaper article
This article related to a "cluster" of sex alerts at residential homes owned by Hillgreen Care, a private company that specialised in the care of young adults with learning disabilities. It was said that confidential documents revealed that: (a) the deputy manager of one home was a convicted sex offender working in Britain illegally; (b) concerns were raised at other homes over "sexual grooming" of residents, and staff having sex while on duty; (c) care workers were initially told not to inform police of a suspected rape in November 2015 of a severely autistic 23-year-old man who lacked capacity to consent to sexual relations; and (d) potential DNA evidence linked to the incident was destroyed. The CQC said it was "actively pursuing what criminal action can be taken in relation to the failings" at the Enfield home, and had not made any of the concerns public because its desire to be "open and transparent" needed to be balanced alongside a risk of "compromising ongoing investigations".
|Andrew Norfolk, 'Sexual predator's victim was failed at every turn' (The Times, 27/7/17)
|Newspaper article
Criticisms of CQC and care home
(1) This article is critical of the CQC's response to sexual abuse in a care home: "It had the power to bring criminal charges against the company or the senior individuals responsible for its running. Instead, it chose a much quieter, less public course of action. The Enfield home no longer has any vulnerable adults in its care. It is one of four Hillgreen homes that have ceased to operate since November 2015 because the CQC identified, and publicised, lesser problems in their operation. In the case of the home where Tom was allegedly attacked, the commission's website carries the report of a 2016 inspection that was published in October last year. It rated the facilities as inadequate and unsafe, but not because a high-risk sex offender was allowed unsupervised access to the bedroom of a defenceless, highly vulnerable resident. Instead, the report criticised the home for failings that included storing mops and buckets in the garden and having overflowing bins, scuffed skirting boards, loose handles on kitchen drawers and a broken dishwasher. The report noted the recent promotion of a senior care worker to deputy manager but chose not to reveal that the vacancy was created by the exposure of her predecessor as a convicted sex offender. ... No one has told the residents of those homes, or their families, what happened at the Enfield home in November 2015. It is almost a year since anyone spoke to Tom's mother about the attack." (2) It is also critical of the care home management: "In written statements seen by The Times, three Hillgreen workers said that Ross Dady, the company's regional manager, and Roger Goddard, its director of care, initially told them they should not contact police or any external authorities. ... [Tom's mother's] shock and dismay increased, she said, when the manager told her that Tom had not yet been taken to hospital and that JL had not been arrested because '[Tom] may have consented to it'. There is some disagreement as to how swiftly, and by what means, the various safeguarding authorities became aware of the incident but by the time the police were involved Tom's underwear had already been put through the laundry." (3) After this article the CQC did prosecute: see CQC v Hillgreen Care Ltd [2018] MHLO 50.
|Andy McNicholl, 'Court quashes "unlawful" Care Act assessment of learning disabled man' (Community Care, 3/7/17)
|News article
Community care case summary
This article summarises R (JF) v London Borough of Merton [2017] EWHC 1519 (Admin).
|Anselm Eldergill, Mental Health Review Tribunals: Law and Procedure (Sweet and Maxwell, London 1997)
MHRT book
The full text of this book is available on Mental Health Law Online: Eldergill.
|Bar Council, 'Chair of the Bar sets out concerns to MoJ, HMCTS, the Legal Aid Agency, the senior judiciary, the Bar Standards Board and the Inns of Court' (18/3/20)
|Letter • Coronavirus resource
Bar Council coronavirus statement
The Bar Council is "calling for a suspension of all in-person hearings across all jurisdictions, save in very exceptional circumstances where a video link or phone hearing cannot accommodate the interests of justice" for an initial 30-day period.
|Bar Council, 'Coronavirus advice and updates' (March 2020, updated periodically)
|Web page • Coronavirus resource
Bar Council coronavirus guidance
This web page contains information and links under the hearings: (1) Bar Council guidance; (2) Bar Council statements; (3) Bar Council, LPMA and IBC advice bulletins; (4) HMCTS updates; (5) Legal Aid Agency updates; (6) General government guidance.
|March 2020
|BASW, 'Information and support for AMHPs, AMHP leads and Principal SWs on the role of AMHPs during the Covid-19 pandemic' (25/3/20)
|Document • Coronavirus resource
AMHP coronavirus guidance
The introduction to this 11-page document states: "This information has been prepared by BASW, with support from the Approved Mental Health Professional Leads Network and the Chief Social Workers office to provide up to date information on the AMHP role as the country responds to the Covid 19 pandemic." This is version 1. Check the BASW website for updates.
|BBC News, 'Peterborough roof jump woman wins appeal bid' (25/3/10)
|News article
News report on restriction order being quashed
The article ends as follows: Lord Justice Elias agreed, saying: "What was before the crown court did not substantiate sufficient risk to the public to justify a restriction order. We therefore quash that part of the sentence."
|Belfast Telegraph, 'Blind veteran tells judge he is 'living again' after going home' (19/3/19)
|Newspaper article
Man returns home after inherent jurisdiction case
The article states that Hayden J is overseeing developments at follow-up hearings in London, and that at a hearing the previous week the council's lawyers stated that Douglas Meyers had returned home. The High Court decision is: Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam).
|Ben Troke, 'A Practical Guide to the Law of Medical Treatment Decisions' (Law Brief Publishing
Medical treatment book
This book is aimed not only at lawyers, but also clinicians and anyone with an interest in how medical treatment decisions are made.
|Ben Troke, 'The death of DoLS - the "Liberty Protection Safeguards" are before Parliament now' (Browne Jacobson, 4/7/18)
|Web page
This article lists several initial observations about the detail of the Mental Capacity (Amendment) Bill, and in relation to its implementation notes: "On the timescales, we understand that it is anticipated that the Bill will be out of the Lords by the end of November 2018, and through the Commons early next year, with Royal Assent perhaps by April 2019. Allowing for implementation and training, we might expect it to come into force perhaps in late 2019, early 2020."
|Bernadette McSherry and Ian Freckelton (eds), Coercive Care: Rights, Law and Policy (Routledge 2013)
Academic book
|Bournewood Consultation: The approach to be taken in response to the judgement of the European Court of Human Rights in the 'Bournewood' case
"This document seeks views on the issues raised by, and consequent options for public policy arising from, the judgement of the European Court of Human Rights (ECtHR), published on 5th October 2004, in the case of H.L. v. the United Kingdom (the 'Bournewood' judgement - so called because H.L's care and treatment took place in Bournewood Hospital)."
|Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders - consultation
"The Ministry of Justice Structural Reform Plan published in July 2010 set out a commitment to introduce a 'rehabilitation revolution' and conduct a review of sentencing policy. This consultation sets out the resulting proposals which aim to break the destructive cycle of crime and protect the public, through more effectively punishing and rehabilitating offenders and reforming the sentencing framework."
The proposals in relation to managing offenders with mental health problems are as follows: 'We want to ensure that our valuable resources are targeted on the people who are committed to changing their lives and being rehabilitated. In some cases, the criminal justice system is not the best place for them. This is particularly the case for offenders with mental health problems. We propose to: (a) work with the Department of Health and the Home Office to pilot and roll out liaison and diversion services nationally by 2014 for mentally ill offenders; and (b) increase the treatment capacity for offenders who present a high risk of harm where this is linked to severe personality disorders.'
Another consultation page (more detailed content)
Ministry of Justice, 'Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders', 7/12/10
|Brenda Hale, Mental Health Law (5th edn, Sweet & Maxwell 2010)
Mental health law book
Covers mental health law and associated mental capacity law topics.
|Brenda Hale, Mental Health Law (6th edn, Sweet and Maxwell 2017)
Mental health law book
Covers mental health law and associated mental capacity law topics. See book review by Alex Ruck Keene, 1/5/17.
|British National Formulary (Pharmaceutical Press, 73rd edn 2017)
|British National Formulary (Pharmaceutical Press, 79th edn 2020)
Medication book
This edition is published on 20/3/20. The book is updated every March and September, so always check the Amazon page for the latest edition.
|Care Quality Commission, 'COVID-19: Interim Methodology for Second Opinions' (Dear Colleague letter, 20/3/20)
|Letter • Coronavirus resource
CQC coronavirus procedure for SOADs
The summary stated in the letter is: "(1) We are asking mental health services to provide a summary of the patient's current issues to CQC when submitting a second opinion request, which SOADs will use instead of visiting the hospital to examine care records. (2) Consultations with professionals, including with the responsible clinician, will be undertaken by telephone or video (Skype or Microsoft teams). (3) Following telephone consultations, we will ask services to support patients who agree to speak with SOADs to have access to telephones or technology to support a video call with the SOAD. (4) SOADs will not be asked to post original copies of certificates. We encourage services to accept electronic copies of certificates and act on that. The Government may lift the requirement for a paper copy, and we will issue further communications once this is confirmed."
|Cases involving people with mental health problems and/or learning disabilities as victims and witnesses
|Celia Kitzinger, 'Remote justice: a family perspective' (Transparency Project, 29/3/20)
|Blog post • Coronavirus resource
Critical lay view of remote COP hearing
This article is written from the perspective of the daughter of the patient in the video hearing in A Clinical Commissioning Group v AF [2020] EWCOP 16B.
|Changes to Mental Health Act 1983 Code of Practice
Extract from press release: "Our consultation 'Stronger Code: Better Care' is asking for your thoughts on a new draft Code which includes: (1) five new guiding principles; (2) significantly updated chapter on how to support children and young people, on the use of restraint and seclusion and the use of police powers and places of safety; (3) new chapters on care planning, equality and human rights, links to the Mental Capacity Act and Deprivation of Liberty Safeguards, and support for victims."
|Christine Hutchinson and Neil Hickman, Focus on Social Work Law: Mental Health (Palgrave 2016)
Mental health law book
|Christopher Johnston (ed), Medical Treatment: Decisions and the Law: the MCA in Action (2nd edn, Bloomsbury 2009)
MCA book - medical treatment
|Civil Bid Rounds for 2010 Contracts - consultation
Consultation closed on 23/1/09. "Through this consultation we are seeking views on our proposals for the bid criteria and award process for civil legal aid contracts that will be introduced from 2010. We are also consulting on key changes to the contract terms and to changes to the scope of legal aid funding."
|Claire Barcham, The Pocketbook Guide to Mental Health Act Assessments (2nd edn, OUP 2016)
MHA book
|Claire Tyler, 'The stormy passage of the Mental Capacity (Amendment) Bill' (The House Magazine, 2/5/19)
Summary of LPS legislation passage through Parliament
In this article Baroness Tyler summarises the history of this legislation, concluding that "much relies on what will be set out in the Code of Practice and in secondary legislation, which will be vital in determining how the new system will work, including the vexed issue of a definition of what does and doesn't constitute a deprivation of liberty" and that "without proper funding[,] staff resources and training it will fail in practice".
|Claire Wills-Goldingham et al, Court of Protection Made Clear (Bath 2016)
Court of Protection book
|Conroys Solicitors, 'Listing of community hearings' (press release, 6/5/20)
|Press release • Coronavirus resource
CTO hearings being listed again
It is understood that the order which postponed community hearings is no longer in force (the order stated that it was not feasible or practicable for a community patient to attempt to participate in a telephone or video hearing) and that the tribunal secretariat is working through the backlog.
|Consultation Document: Delivering Excellence: Achieving Recovery: A Professional Framework for the Mental Health Nursing Profession in Northern Ireland (2010-2015)
Consultation run by NI's Department of Health, Social Services and Public Safety.
|Consultation in relation to section 268 appeals against conditions of excessive security
"A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers."
|Consultation on a Separate Legal Jurisdiction for Wales
The Welsh Government are consulting on making things even more unnecessarily complicated, by creating an entirely separate legal jurisdiction for Wales.
|Consultation on Adults with incapacity (Scotland)
Scottish Law Commission, 'Discussion Paper on Adults with Incapacity' (discussion paper 156, 31/7/12). Extract from news release: 'The main questions raised by the Discussion Paper are: (1) Is Scots law as it currently stands adequate to meet the requirements of the European Convention in this area? and (2) If not, how should it be changed? In particular, there is a need to decide if there should be a new procedure for authorising deprivation of liberty in residential care for adults with incapacity. If there should, what should that process be? And, very importantly, what sorts of care and what type of facilities should be regarded as involving deprivation of liberty for those who live there?'
|Consultation on allocation options for funding for Local Healthwatch: PCT Deprivation of Liberty Safeguards
'Subject to the passage of the Health and Social Care Bill, the Department (DH) will allocate funding for local HealthWatch and, potentially, PCT Deprivation of Liberty Safeguards from October 2012. This new funding will be added to the current DH Learning Disabilities and Health Reform grant. This consultation is asking for your views on options for distributing the new funding for local HealthWatch and PCT Deprivation of Liberty Safeguards (DOLS).'
|Consultation on amendments to the Community Legal Service (Financial) Regulations 2000 (2009)
The plan is to increase income eligibility limits by 5%, and to introduce non-means-tested legal aid for COP proceedings for those deprived of their liberty, from April 2009. Closing date 17/2/09.
The response to the consultation is included in the explanatory memorandum to the following Regulations:
|Consultation on an Equality Impact Assessment for New Mental Capacity Legislation
"Following publication of the Bamford Review report, A Comprehensive Legislative Framework and consultation on the Department's proposal, A Legislative Framework for Mental Capacity and Mental Health Legislation, the Minister in September 2009 announced his intention of preparing a single Bill encompassing mental capacity and mental health provisions."
|Consultation on Appointments and Diversity
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.
Ministry of Justice, 'Clarke: Judiciary in need of modernisation and diversification' (press release, 21/11/11)
Ministry of Justice, 'Appointments and Diversity: A Public Consultation' (Consultation paper CP19/2011, 21/11/11)
|Consultation on Certification of Incapacity for Medical Treatment under Part 5 Section 47 Adults with Incapacity (Scotland) Act 2000
'This consultation seeks views on four issues on Adults with Incapacity (Scotland) Act 2000 Part 5 in relation to medical treatment. The issues are: widening the range of institutions which can offer training, whether dentists should be required to undertake training for this purpose; whether multiple section 47 medical treatment certificates should be required in some circumstances; and whether other medical practitioners not specified should be enabled to certify incapacity for medical treatment'
|Consultation on Fees in the High Court and Court of Appeal
'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.'
Katy Dowell, 'MoJ plans massive rise in court fees' (The Lawyer, 16/11/11)
|Consultation on low secure services and psychiatric intensive care
"A consultation document on low secure services and psychiatric intensive care is being issued today for a three month consultation by stakeholders. The purpose of this consultation is to invite the views of stakeholders on how new guidance will operate by explaining the rationale behind the strategic approach and raising questions which cover a broad range of issues."
|Consultation on Mental Capacity Act 2005: forms, supervision and fees
Responses published: 11 March 2009
A consultation on proposed changes to three areas of the work of the Office of the Public Guardian and the Court of Protection following the implementation of the Mental Capacity Act:
1. redesign of the Lasting Power of Attorney forms 2. restructuring of the Supervision of Deputies by the Public Guardian 3. alterations to the fee structure.
This consultation was the initial stage of a wider 12-18 month investigation into the implementation of the Mental Capacity Act.
See the following for details:
|Consultation on Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011
'Part 3 of the Mental Health (Wales) Measure 2010 is concerned with mental health assessments for former users of secondary mental health services. The Welsh Assembly Government is proposing to make Regulations under this part of the Measure which will set out certain eligibility criteria for such assessments. For example, the length of time a person will be eligible for such an assessment following their discharge from services. This consultation seeks your views on these draft regulations.'
|Consultation on Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011
'[This consultation] is concerned with the coordination of secondary mental health services, and care and treatment planning for secondary mental health service users. The Welsh Assembly Government is proposing to make Regulations connected to Part 2 of the Measure. This relates to the appointment of care coordinators and the making, reviewing and revising of care and treatment plans. This consultation seeks your views on these draft regulations.'
|Consultation on Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011
'Part 4 of the Mental Health (Wales) Measure 2010 expands the statutory independent mental health advocacy scheme established by the 1983 Act. Patients subject to certain "short term" sections of the 1983 Act, and those in hospital informally (i.e. not under compulsion) are able to access the service. The Welsh Assembly Government is proposing to make Regulations connected to the expanded independent mental health advocacy scheme. This will relate to the provision, appointment and approval of advocates. It will also say which people advocates can talk to in undertaking their role of supporting patients. This consultation seeks your views on these draft Regulations.'
|Consultation on Mental Health (Regional Provision) (Wales) Regulations 2012
'This consultation seeks your views on regulations which would enable Local Health Boards (LHBs) and local authorities in Wales to enter into regional working arrangements.'
|Consultation on OFT Mental Capacity Guidance
"Following the consultation on irresponsible lending the OFT identified a need to provide further clarity on the issue of mental capacity as it impacts on borrowing decisions."
Office of Fair Trading, 'OFT launches mental capacity guidance consultation', Press release 6/12/10
Office of Fair Trading, 'Mental capacity: Draft OFT guidance for creditors: A consultation', 6/12/10
OFT press release: OFT publishes mental capacity guidance (28/9/11)
|Consultation on our assessments of quality 2010-11
|Consultation on paper hearings for CTO reference cases
The Tribunal Procedure Committee is consulting on changes to the rules so that the Tribunal may (1) make a decision on a reference under s68 (duty of managers to refer cases to tribunal) without a hearing if the patient is a community patient and has consented to this; and (2) strike out a party's case without a hearing. The purpose is to save money. The rationale given for the first proposal is that community patients are often content with their position and do not want to attend the hearing or medical examination; that if the patient does not attend then full reports often mean there is little point having a hearing; and that hearings place an unnecessary burden on community patients, who are likely to be quite capable of making the necessary decisions and are entitled to IMHAs and Legal Aid. It is anticipated that all community patients would be posted a form inviting them to consent to their case being decided without a hearing. In relation to the second proposal, it is intended that the power would be used when it is obvious that the tribunal lacks jurisdiction. Consultation runs from 1/6/11 to 23/8/11.
Tribunal Procedure Committee consultation page
Tribunal Procedure Committee, 'Consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699)' (1/6/11)
Tribunal Procedure Committee, 'Response to consultation on proposed amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (1 June 2011 – 29 August 2011)' (February 2012)
|Consultation on police guidance for mental health
"The College of Policing has published new draft national guidance clarifying the police's role in dealing with incidents involving people in mental health crisis.
"The draft Authorised Professional Practice (APP) is now open for consultation and sets out guidance for police officers and staff when investigating an offence or assisting people with mental health problems, learning disabilities and difficulties and other vulnerabilities."
|Consultation on preventing suicide in England: a cross-government outcomes strategy to save lives
'This document sets out a proposal for a new suicide prevention strategy for England with the aims of reducing the suicide rate and improving support for those bereaved or affected by suicide. The draft strategy brings together knowledge about groups at higher risk of suicide, effective interventions and resources available. The closing date for consultation responses is 11 October 2011. Consultation responses will inform the final strategy, early in 2012.'
|Consultation on proposals for a Mental Health (Scotland) Bill (2013)
From Scottish Government website: "This consultation paper seeks views on proposals for a draft Mental Health Bill. This draft Bill brings forward changes to improve the operation of the 2003 Act - notably in relation to named persons, advance statements, medical matters and suspension of detention. In addition the draft Bill makes provision for a Victim Notification Scheme for victims of Mentally Disordered Offenders."
Scottish Government, 'A Consultation on draft proposals for a Mental Health (Scotland) Bill' (December 2013)†
|Consultation on proposed changes to listing procedure
The Tribunals Service are consulting stakeholders on new procedures and forms for the listing of cases.
Consultation details on "MHRT" website - 12/4/10
Mental Health Lawyers Association: Consultation - proposed changes to Tribunal listing procedure - 7/4/10 - Membership required
Summary of Consultation Responses - 30/7/10
|Consultation on proposed Mental Health (Wales) Measure
As part of its Stage 1 consideration, the National Assembly for Wales' Legislation Committee No. 3 is calling for evidence on the general principles of the proposed Mental Health (Wales) Measure.
|Consultation on revision of the Mental Health Act 1983 Code of Practice for Wales
"The new draft Code takes account of the changes to relevant legislation since the previous Code was written. In particular: (a) the requirements in the Mental Health (Wales) Measure 2010 with regards to care and treatment planning and the expanded provision of independent mental health advocacy; (b) the relationship between the Act, the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards.
Within the draft Code there is strengthened emphasis on: (a) the involvement of patients and, where appropriate, their families and carers in all aspects of assessment and treatment; (b) understanding the principles of the Mental Capacity Act 2005 and how these should apply to all care and treatment; (c) the involvement of Independent Mental Health Advocates; (d) the use of appropriate transport for patient subject to the Act to ensure their dignity and safety as far as is practicable.
There are 2 other matters of proposed guidance in the draft Code that are not in the existing code. (a) Firstly, it reiterates that the Act provides a limit of 72 hours for detention under section 136 and that assessments should only take place in a police station in exceptional circumstances. However in relation to the timing of assessments both at the police station and elsewhere, the draft Code proposes: (i) that they should be undertaken within 3 hours; (ii) that detention in a police station should not exceed a maximum of 12 hours. (b) Secondly, it proposes that a statutory care and treatment plan, if needed, will be started no longer than 72 hours after admission."
Welsh Government, 'Consultation on the Revision of the Mental Health Act 1983 Code of Practice for Wales' (document no WG26160, 4/9/15)†
Welsh Government, 'Draft Mental Health Act 1983 Code of Practice for Wales' (4/9/15)†
Law Society, 'Consultation on the Revision of the Mental Health Act 1983 Code of Practice for Wales: Law Society Response' (27/11/15)†
Welsh Government, 'Consultation - summary of responses: Revision of the Mental Health Act 1983 Code of Practice for Wales' (document WG26160, June 2016)†
For the revised Code of Practice, see Mental Health Act 1983 Code of Practice for Wales.
|Consultation on Scottish tribunal rule 58
The Scottish Government, 'Scottish Government Consultation: Amendment to Rule 58 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005: Rule 58: Power to Decide Case Without a Hearing' (March 2011)
The Scottish Government is consulting on plans to increase the availability of rule 58 which allows the Tribunal, if all parties agree in writing, to dispose of a case without an oral hearing. The three proposed options, all dispensing with the need for agreement and presumably with the intention of cutting costs, are: (1) any party wanting a hearing must show cause why a hearing is necessary, or (2) as option 1 except the patient has the automatic right to hearing if requested, or (3) as option 1 except the hearing will take place unless the patient positively elects not to have one. It is envisaged that the rule would be used 'where there is no real dispute between the parties'.
Consultation responses. On this page, published 15/6/11, can be found all the responses to this consultation
|Consultation on Service Framework for the Treatment of People with a Co-occurring Mental Health and Substance Misuse Problem
Welsh Government, 'Consultation Document: Service Framework for the Treatment of People with a Co-occurring Mental Health and Substance Misuse Problem 2015' (5/3/15)†
|Consultation on the CQC mental health strategy
"We are currently developing our strategic plan for our work on mental health over the next three to five years. We are keen to get a range of views to help us develop this plan.
"We would like to invite you to give your views as part our consultation on:
|Consultation on the draft code of practice to parts 2 and 3 of the Mental Health (Wales) Measure 2010
'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.'
|Consultation on the future of the Parole Board (2009)
"Since its creation in 1968, the role of the Parole Board has changed significantly, from an advisory body to a court-like decision-making body. It has evolved in light of legislative changes, court judgments and changing caseloads, but its functions, status and resources have not been systematically considered in light of these changes. This consultation paper represents an opportunity to address this, and consider whether any changes to its sponsorship and role would support the Parole Board in carrying out its functions more effectively and efficiently."
|Consultation on the joint Department of Health / NOMS Offender Personality Disorder Pathway Implementation Plan
'This consultation is seeking your views about a new pathway approach for the treatment and management of offenders with serious personality disorders.'
DH, 'Response to the offender personality disorder consultation' (gateway ref 16313, 21/10/11)
|Court Fees: Proposals for reform
From Government website: "Under the proposals contained in this consultation paper, those using the civil court system would, in future, be expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost. Fee remissions will continue to be provided for those who qualify, so that access to justice is not denied."
The proposals include introducing new, and amended, fees for the Court of Protection, and increased fees for judicial review.
Government website: 'Court fees: proposals for reform'†
MOJ consultation website: 'Court fees: proposals for reform'†
Ministry of Justice, 'Court Fees: Proposals for reform' (December 2013)† (main consultation document)
Regulatory Policy Committee, 'Impact assessment opinion: enhanced court fees' (20/1/14)† The summary of this report is: 'The Impact Assessment is not fit for purpose. The Department needs to make clear whether the proposal will result in the Court Service raising more funds than is necessary to cover their costs.'
|Court of Protection, 'Additional Guidance for Judges and Practitioners arising from Covid-19' (The Hon Mr Justice Hayden, 18/3/20)
|Court guidance • Coronavirus resource
Further COP coronavirus guidance
(1) This guidance contains the following key messages (paraphrased): (a) hearings of less than 2 hours will be by telephone, but longer hearings will proceed unless the judge decides otherwise; (b) all practitioners must consider the range of options, including Skype and telephone conferences; (c) if directions hearings cannot be dealt with by agreement then a remote hearing should be sought; (d) every sensible effort to alleviate the pressure on court staff should be made; (e) further use of Skype beyond the current limited circumstances is being considered. (2) The guidance answers various questions in relation to: (a) acceptance of electronic signatures; (b) notification of P; (c) interim appointment of professional deputies; (d) service by email; (e) scanned documents and electronic bundles; (f) capacity assessments undertaken via video. (3) A "Core Working Group (COVID-19)" including judges and representatives of the (legal) profession will be set up to look at ongoing interim solutions.
|Court of Protection, 'Court User Group Update' (HHJ Carolyn Hilder and Amrit Panesar, 21/5/20)
|Court guidance • Coronavirus resource
COP update
This letter to court users deals with the court's performance and activities during the coronavirus outbreak and some of the work being done to assist practitioners, under the headings: (1) Hearings; (2) Filing of form COP20s; (3) Electronic filing of P & A deputy applications; (4) Performance.
|Court of Protection, 'Dear Colleagues letter' (Mr Justice Hayden, 23/3/20)
|Court guidance • Coronavirus resource
HIVE group and 2m separation at court
The "HIVE" group has been established, the objective being "to continue to refine our approach to dealing with the Court's business and to seek to ensure that it runs as smoothly as possible". It consists of: The Vice President; The Senior Judge, HHJ Hilder; Sarah Castle, the Official Solicitor; Vikram Sachdeva QC; Lorraine Cavanagh QC; Alex Ruck Keene; Kate Edwards; Mary Macgregor, Office of Public Guardian; Joan Goulbourn, Senior Policy Advisor, Ministry of Justice. All those who attend court should keep 2m separation from others at all times.
|Court of Protection, 'Further Guidance for Judges and Practitioners in the Court of Protection arising from Covid-19' (Mr Justice Hayden, 24/3/20)
|Court guidance • Coronavirus resource
COP guidance on remote hearings and serious cases
(1) The guidance on remote hearings is now: "as from today no hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing." (emphasis in original) (2) Genuinely urgent and life/death cases will be identified and prioritised in the usual way, but if any difficulty arises the VP's clerk may be emailed.
|Court of Protection, 'Letter about Hive group' (Mr Justice Hayden, 4/5/20)
|Court guidance • Coronavirus resource
Information about Hive group
This letter sets out the aim and constitution of the Hive group, with particular focus on: (1) property and affairs; (2) welfare cases in the context of deprivation of liberty; (3) "community DOL" orders under COP DOL11; (4) transparency. The HIVE mailbox (email@example.com) can be used to raise coronavirus issues which do not relate to specific cases.
|Court of Protection, 'Remote access to the Court of Protection guidance' (Mr Justice Hayden, 31/3/20)
|Court guidance • Coronavirus resource
Detailed COP remote hearing protocol
This 20-page document confirms that no COP hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing. It includes a template case management order, and sets out sets out operational protocols governing remote hearings under the following headings: (1) General; (2) Legislative framework; (3) Judicial access to audio/visual conferencing platforms; (4) video/visual Conferencing: (a) Cloud Video Platform MoJ/HMCTS; (b) Skype for Business; (c) Microsoft Teams; (d) Zoom; (e) FaceTime; (f) Lifesize; (5) Audio/Telephone; (6) Security; (7) Transparency; (8) Transcription/recording of the hearing; (9) GDPR; (10) Attendance of P at the remote hearing; (11) Litigants in Person; (12) Witness Evidence; (13) Electronic Bundles; (14) Use of Interpreters and Intermediaries; (15) Orders and Service; (16) Legal aid funding.
|Court of Protection, 'Visits to P by Judges and Legal Advisors' (The Hon Mr Justice Hayden, 13/3/20)
|Court guidance • Coronavirus resource
COP coronavirus guidance
This guidance from the Vice President of the Court of Protection states that "visits should only be made to P where that is assessed as absolutely necessary", that "[a]lternative arrangements should always be considered first, such as telephone FaceTime and Skype conferencing", and that "[v]isits to care home are to be strongly discouraged" (emphasis in original). Judges should discuss any potential visits with the Regional Lead Judge, and keep informed of the advice on the judicial intranet which is reviewed daily.
|Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers
'A consultation on the proposal that an amendment be made to the Court of Protection Rules to provide for authorised officers to deal with specified types of applications. '
Ministry of Justice, 'Court Of Protection: Authorised Officers: A consultation on the delegation of some decisions in the Court of Protection to court officers' (consultation paper CP9/2011, June 2011)
|CQC, 'Avon & Wiltshire Mental Health Partnership fined £80,000 after patient is injured falling from hospital roof' (21/8/19)
|Case summary
Trust fined for failing to provide safe care and treatment
Extract from press release: "The risk of the low roof at Applewood Ward had been highlighted in previous annual risk assessments since 2011. The outcome was that the risk should be managed through staff observation. CQC believe this was an inappropriate and inadequate response to the risk posed to all service users by this low roof. In 2015 there were 28 direct references to the low roof in the garden of Applewood Ward between January and December at seven different Trust forums. The Trust was also aware that numerous other service users had been able to access the low roof prior to the service user's fall in January 2016. The trust was fined £80,000 for failing to provide safe care and treatment and putting patient at risk of avoidable harm. It was also ordered to pay the prosecution costs of £12,033.96 and a £170 victim surcharge."
|CQC, 'CQC finds improvements in use of the Mental Health Act but remains concerned about safety' (26/2/19)
|Press release
Press release about MHA report
Extract from press release: "In its Monitoring the Mental Health Act in 2017/18 report published today, CQC has concluded that there has been an overall improvement in some aspects of care in 2016 to 2018, compared with findings in 2014 to 2016. They found: (1) Some improvement in the quality of care planning and patient involvement. A higher proportion of care plans are detailed, comprehensive and developed in collaboration with patients and carers. However, there is still considerable room for further improvement. (2) The provision of information about legal rights to patients and relatives is still the most frequently raised issue from visits. In many cases, patients may struggle to understand information given to them on admission because they are most ill at this point. (3) The greatest concern from Mental Health Act monitoring visits is about the quality and safety of mental health wards; in particular acute wards for adults of working age."
|CQC, 'CQC has made changes to Mental Health Act complaints process' (11/5/20)
|CQC guidance • Coronavirus resource
Complaints procedure
The CQC are prioritising MHA complaints from or about currently-detained patients; other complaints "will be reviewed, but may be paused during the coronavirus outbreak".
|CQC, 'CQC sets out next steps to support adult social care during the COVID-19 pandemic' (15/4/20)
|Press release • Coronavirus resource
Support for adult social care providers
This document deals with (1) Personal Protective Equipment; (2) coronavirus testing procedures for staff; (3) statistics (from this week, death notifications collected from providers will include whether the person had suspected or confirmed COVID-19); (4) information gathering (data on coronavirus pressures from services providing care in people's own homes will now be collected).
|CQC, 'CQC to review the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism' (3/12/18)
|Web page
CQC to review restraint, seclusion and segregation
Extract from CQC website: "We will review and make recommendations about the use of restrictive interventions in settings that provide inpatient and residential care for people with mental health problems, a learning disability and/or autism. ... We will take forward this work and will report on its interim findings in May 2019, with a full report by March 2020. We have encountered the use of physical restraint, prolonged seclusion and segregation in wards for people of all ages with a learning disability and/or autism and in secure and rehabilitation mental health wards. The review will consider whether and how seclusion and segregation are used in registered social care services for people with a learning disability and/or autism. This will include residential services for young people with very complex needs - such as a severe learning disability and physical health needs - and secure children's homes. This aspect of the review will be undertaken in partnership with Ofsted."
|CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (13/11/18)
List of amendments
There is a newer version of the document: CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18). The CQC published the following text alongside a full list of corrections to their 2016/17 report: "We are currently amending this document after our analysts found that we had displayed some data gathered by Mental Health Act reviewers on their visits in an inaccurate way. We will publish the updated report in November 2018. An explanation for the amendments: (1) Up until 2015-16, we used 'Yes/No' to document whether providers could show evidence of patient involvement in care planning. (2) In 2015-16, we added an option for Mental Health Act reviewers to document this as 'Requires improvement'. This gave reviewers the option of documenting that the provider had shown some evidence of recording patient information, but it still required improvement. (3) When working on the 2016/17 report, our analysts found that reviewers had been inconsistent in how they had documented this information. Some reviewers had recorded patient involvement just as 'Yes' or 'No', while others had recorded as 'Yes', 'No', or 'Requires Improvement'. (4) In preparing the report, we sought to present the information in the 'Yes/No' style to show a trend from past results. However, in doing so we combined the responses of 'requires improvement' with the 'No' responses, which was inaccurate. As a result, we have amended the report."
|CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18)
List of amendments
This document contains the amendments which have been incorporated into CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19). "An explanation for the amendments: (1) Up until 2015/16, we used 'Yes/No' categories to document specific types of data gathered by Mental Health Act Reviewers on their visits. In 2015/16, we added an option for Reviewers to use a category of 'Requires improvement'. This gave Reviewers the option of documenting that the provider had shown some evidence of meeting requirements, but that it still required improvement. (2) When working on the 2016/17 report, our analysts found that Reviewers had been inconsistent in how they had documented this information. Some had recorded results with just 'Yes' or 'No', while others had recorded 'Yes', 'No', or 'Requires improvement'. (3) In preparing the report, we sought to present the information in the 'Yes/No' style to show a trend from past results. However, in doing so we combined the responses of 'Requires improvement' with the 'No' responses, which was inaccurate. As a result, we have amended the report."
|CQC, 'Monitoring the Mental Health Act in 2016/17' (amended version, 9/1/19)
Amended version of report
"This document has been amended after our analysts found that we had displayed some data gathered by Mental Health Act reviewers on their visits in an inaccurate way." See CQC, 'Monitoring the Mental Health Act in 2016/17 - amendment list' (31/12/18) for details.
|CQC, 'Monitoring the Mental Health Act in 2017/18' (26/2/19)
Annual CQC report on MHA
The two parts of this report contain the following headings. (1) Part 1: Key findings from our MHA activities: (1.1) National figures on the use of the Mental Health Act; (1.2) What are the key issues we have found in people's experience of the MHA? (1.21) How is information being provided to patients? (1.22) How are people being involved in care planning? (1.23) Are people accessing Independent Mental Health Advocacy? (1.24) How are services challenging restrictive practices? (1.25) Are physical health issues being identified on admission? (1.26) How is the Second Opinion Appointed Doctor service working for patients? (1.27) How are people being supported in discharge planning? (2) Part 2: CQC and the Mental Health Act: (2.1) Deaths in detention; (2.2) Complaints and contacts; (2.3) Absence without leave; (2.4) Children and young people admitted to adult mental health wards; (2.5) The First-Tier Tribunal (Mental Health).
|CQC, 'Monitoring the Mental Health Act in 2018/19' (6/2/20)
Annual CQC report on MHA
The Foreword to the report states that the CQC found: "(1) Services must apply human rights principles and frameworks. Their impact on people should be continuously reviewed to make sure people are protected and respected. (2) People must be supported to give their views and offer their expertise when decisions are being made about their care. (3) People who are in long-term segregation can experience more restrictions than necessary. They also may experience delays in receiving independent reviews. This is particularly true for people with a learning disability and autistic people. (4) People do not always get the care and treatment they need. Some services struggle to offer appropriate options, both in the community and in hospital. (5) It is difficult for patients, families, professionals and carers to navigate the complex laws around mental health and mental capacity."
|CQC, 'Relationships and sexuality in adult social care services' (21/9/19)
Relationships and sexuality guidance
Headings include: (6) Can a best interests assessment be made in relation to a person's consent to sex? (12) What if someone lacks capacity to consent to sexual relations? (13) How is someone's capacity to consent to sexual relations assessed?
|CQC, 'Routine inspections suspended in response to coronavirus outbreak' (16/3/20)
|Document • Coronavirus resource
CQC letter to providers about coronavirus
The CQC has written to all registered health and social care providers stating that inspections will stop from 16/3/20 (except in a very small number of cases when there is concern about harm), asking to be notified within 24 hours of any suspected or known case or outbreak of COVID-19, and stating: "We encourage everyone to act in the best interests of the health of the people they serve, with the top priority the protection of life. We encourage you to use your discretion and act in the best way you see fit." (emphasis in original)
|CQC, 'The state of health care and adult social care in England 2018/19' (14/10/19)
|State of Care report
State of Care report 2018/19
This document contains chapters on mental health care and the Deprivation of Liberty Safeguards. The headings in the summary chapter are: (1) The care given to people with a learning disability or autism is not acceptable; (2) Other types of care are under pressure; (3) More and better community care services are needed; (4) Care services and organisations must work more closely together; (5) More room and support need to be given for innovations in care.
|CQC, 'Thematic review of the use of restraint, prolonged seclusion and segregation for people with mental health problems, learning disabilities and/or autism: Terms of Reference' (26/11/18)
Restraint review's terms of reference
This document details how the CQC will conduct the review.
|CQC, 'Use of the Mental Health Act 1983 in general hospitals without a psychiatric unit' (April 2010)
|CQC guidance
Use of MHA in general hospitals
Apparently this guidance document has been "withdrawn".
|April 2010
|Crown Prosecution Service, 'Prosecution Guidance: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18)
|Web page
CPS guidance
Extract: "Headlines: (1) Police and prosecutors should cease charging the existing offences of common assault, battery, assaulting a police officer in the execution of their duty and other existing similar offences where the complainant is an emergency worker (in accordance with the definition in the Act). Prosecutors should charge under the provisions of the 2018 Act as at the commencement of the legislation where there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public interest. (2) Police should charge the offence at section 1 of the 2018 Act (where a guilty plea is anticipated and the offence is suitable for sentence in a magistrates' court) in preference to existing summary offences that apply to assaults against emergency workers."
|Daniel Moseley and Gary Gala (eds), Philosophy and Psychiatry: Problems, Intersections and New Perspectives (Routledge 2015)
Academic psychiatry book
|David Hewitt, 'Illegitimate concern' (2013) 157(25) SJ 9
|Journal article
Nearest relative of adult
This article argues that the unmarried father of an adult patient is a relative for the purposes of s26, whether or not he had parental responsibility. This seems wrong as the wording of s26 means that for its purposes an unmarried father is not a relative of an adult patient because it is not possible to have parental responsibility for an adult. It may be in future that the the courts are asked to adjudicate on whether or not the situation is compatible with the ECHR, in particular in relation to an unmarried father who used to have parental responsibility.
|David Hewitt, The Nearest Relative Handbook (2nd edn, Jessica Kingsley 2009)
Book all about nearest relatives
|Denzil Lush, Cretney and Lush on Lasting and Enduring Powers of Attorney (7th edn, Jordans 2013)
Powers of attorney book
|Department for Constitutional Affairs, Mental Capacity Act 2005: Code of Practice (2007)
MCA Code of Practice
|Department of Health, Code of Practice: Mental Health Act 1983 (2015)
MHA Code of Practice
|DHSC, 'Adult social care: our COVID-19 winter plan 2020 to 2021' (18/9/20)
|Coronavirus resource • Adult social care document
ASC winter plan
"Here we set out the key elements of national support available for the social care sector for winter 2020 to 2021, as well as the main actions to take for local authorities, NHS organisations, and social care providers, including in the voluntary and community sector."
|DHSC, 'Care Act easements: guidance for local authorities' (1/4/20)
|Guidance • Coronavirus resource
Care Act "easements"
"This guidance sets out how Local Authorities can use the new Care Act easements, created under the Coronavirus Act 2020, to ensure the best possible care for people in our society during this exceptional period." The first sentences of the changes (which are each followed by "however"-type sentences) are: (1) Local Authorities will not have to carry out detailed assessments of people's care and support needs in compliance with pre-amendment Care Act requirements. (2) Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. (3) Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. (4) The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs.
|DHSC, 'Coronavirus bill: what it will do' (18/3/20)
|Document • Coronavirus resource
Information about Coronavirus Bill
"The Department of Health and Social Care (DHSC) has identified that to effectively manage a coronavirus outbreak in the UK, we need to introduce new fast-tracked legislation. This will provide us with the legal measures to be able to implement our phased response. This paper sets out, subject to final approvals, the elements of the new legislation and why they are needed." It will involve changes to mental health law.
|DHSC, 'Equality Analysis: Liberty Protection Safeguards – Mental Capacity (Amendment) Bill' (17/12/18)
LPS equality analysis
Details from Gov.uk website: "This document looks at the positive, neutral and negative effects that this legislation could have on people with protected characteristics and other groups, such as carers. This is in line with the Secretary of State's Public Sector Equality Duty, and duties under the National Health Service Act 2006. The Mental Capacity (Amendment) Bill sets out the measures the government will take to replace the Deprivation of Liberty Safeguards (DoLS) scheme in the Mental Capacity Act 2005. This is a process that authorises deprivations of liberty for the care and treatment of those who lack capacity. The new system is called liberty protection safeguards. As changes are made to the bill, the government will consider the equality issues and this document will be updated when appropriate."
|DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20)
|Document • Coronavirus resource
Department of Health coronavirus ethical guidance
The introduction states: "Recognising increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making." There are eight values and principles: (1) respect; (2) reasonableness; (3) minimising harm; (4) inclusiveness; (5) accountability; (6) flexibility; (7) proportionality; (8) community. Under the "respect" heading it states that "those making decisions should ... where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person's best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf".
|DHSC, 'Update on policies for visiting arrangements in care homes' (22/7/20)
|Coronavirus resource
Coronavirus care home visiting guidance
"Directors of public health and care providers should follow this guidance to ensure policies for visiting arrangements and decisions are based on a dynamic risk assessment and minimise risk wherever possible." Superseded by DHSC, 'Update on policies for visiting arrangements in care homes' (updated 31/7/20).
|DHSC, 'Update on policies for visiting arrangements in care homes' (updated 21/9/20)
|Coronavirus resource
Coronavirus care home visiting guidance
"Directors of public health and care providers should follow this guidance to ensure policies for visiting arrangements and decisions are based on a dynamic risk assessment and minimise risk wherever possible." The only difference between this and the 31/7/20 version of the page is the addition of the following text to the top of the page: "For the latest care home visiting guidance please see the Adult social care: coronavirus (COVID-19) winter plan 2020 to 2021. This guidance will be updated shortly."
|DHSC, 'Update on policies for visiting arrangements in care homes' (updated 31/7/20)
|Coronavirus resource
Coronavirus care home visiting guidance
"Directors of public health and care providers should follow this guidance to ensure policies for visiting arrangements and decisions are based on a dynamic risk assessment and minimise risk wherever possible." Superseded by DHSC, 'Update on policies for visiting arrangements in care homes' (updated 21/9/20).
|Direct payments regulations consultation
"Direct payments are crucial to achieving the Government's aim to increase independence, choice and control, for service users and their carers, through allowing them the opportunity to arrange their own personalised care. The Health and Social Care Act 2008 extends the availability of direct payments to those people who lack the capacity to consent to their receipt. In addition, the government is also reviewing the current exclusions to receiving direct payments for those people who are subject to various provisions of mental health legislation in light of the modernisation of mental health law brought about by the Mental Health Act 2007. The Government is now consulting on regulations relating to these two changes."
|Disclosure of Information to Victims of Mentally Disordered Offenders
"Consultation on the possible introduction of a scheme for victims of mentally disordered offenders similar to the current criminal justice Victim Notification Scheme"
|Discussion paper on a proposed European Regulation on mutual recognition of protection measures in civil matters
'We are inviting views on a proposal for a European Regulation on mutual recognition of protection measures in civil matters. ... The Regulation aims to ensure that a protection measure (for example a non-molestation order) provided to a person in one Member State is recognised and maintained when that person travels or moves to another Member State. It is hoped that this Regulation will provide a quick and efficient mechanism which will avoid the person requiring protection having to go through time consuming court procedures in the Member State of recognition, or give evidence on the same matters a second time in order to get equivalent protection in that State.'
[Check start date.]
|DOLS regulations consultation
"These draft regulations confer power on the Care Quality Commission for the purpose of monitoring, and reporting on, the Mental Capacity Act 2005 Deprivation of Liberty Safeguards.
"The draft regulations also amend regulation 3 of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008. Regulation 3 currently sets out that one of the requirements for a person to be eligible to carry out a MCA DOLS assessment is that they must be insured in respect of any liabilities arising in connection with carrying out the assessment. We are proposing to amend this regulation so that assessors will be eligible if they have satisfied the supervisory body that they have adequate and appropriate insurance and / or indemnity arrangements in place."
|Edge Training, 'Liberty Protection Safeguards: Jargon Buster' (18/6/19)
LPS glossary
Edge's summary of this document is as follows: "The Edge LPS Jargon Buster provides a detailed explanation of terms used in LPS such as 'condition' (used in a number of different ways), reviews, determinations and the relevant person (did you know the same term can relate to three different roles?)"
|Environmental design principles for adult medium secure units consultation
"This draft document launches a consultation on revisions to previously published medium secure environmental guidance (Design Guide 1993). It is anticipated the document will annex the Best Practice Guidance and Specification for Adult Medium Secure Services, published by the Department of Health in 2007."
|Evening Gazette, 'Canvey: Cash damages for patient "an insult"' (4/12/00)
|Newspaper article
False imprisonment damages claim
The defendant's offer was rejected, so the case was to proceed to a jury trial.
|Evening Gazette, 'Canvey: Gary's Pyrrhic victory' (27/2/01)
|Newspaper article
False imprisonment damages claim
The claimant was awarded damages of £26,000, which was less than defendant's £30,000 offer.
|Form T132: In-patient: Statement of information about the patient
|Tribunal form
Proforma: statement of information
Information from responsible authority.
|Frances Patterson et al (eds), Judicial Review: Law and Practice (2nd edn, Jordans 2015)
Judicial review book
|Gareth Owen et al, 'Advance decision-making in mental health - suggestions for legal reform in England and Wales' (2019) 64 Intl JL & Psychiatry 162
|Journal article
Advance decision-making
Publisher's abstract: "This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based 'fusion' law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983."
|May 2019
|George Szmukler, Men in White Coats: Treatment Under Coercion (OUP 2018)
Mental health law book
This book proposes mental health law reform so is topical in light of the Wessely review of the Mental Health Act.
|Gordon Ashton and Caroline Bielanska, Elderly People and the Law (Jordans 2014)
Elder law book
|Hamish Arnott and Simon Creighton, Parole Board Hearings: Law and Practice (LAG 2014)
Parole Board book
Published in January 2014 but still (in 2017) the best book on the subject.
|Hannah Taylor, 'Coronavirus Act 2020 - Changes for Mental Health' (Bevan Brittan, 1/4/20)
|Web page • Coronavirus resource
Coronavirus mental health law changes
This web page sets out the proposed changes to the MHA in table format. It then gives some information under the following headings: (1) What about potentially infectious persons in the mental health context? (2) Patients who refuse to self-isolate; (3) How should public authorities be preparing for the changes? (a) Communication; (b) Environmental preparation; (c) Informing staff; (d) Training and guidance; (e) Alternative arrangements; (f) Statutory forms.
|Help shape the regulation of health and adult social care services (Consultation on new registration standards)
"The regulation of health and adult social care is changing. Take part in our public consultation to help us develop guidance on what care services must do to meet new legally enforceable registration standards. From April 2010 all regulated health and adult social care providers will be required by law to register with us. This is the first time all public and independent health and adult social care services in England will need to meet essential common standards of quality and safety. We would like your feedback on whether our guidance appropriately reflects the new registration standards and what should rightly be expected of a safe, quality care service."
|HHJ Carolyn Hilder, 'Court User Group meeting (28/4/20) cancellation notice' (Letter to stakeholders, 18/3/20)
|Letter • Coronavirus resource
COP User Group coronavirus update
The next CUG meeting has been postponed from 28/4/20 until 6/10/20, and any issues arising in the meantime should be addressed to the Senior Judge of the Court of Protection's Business Support Officer.
|Hill Dickinson LLP, 'Coronavirus Act - key facts' (26/3/20)
|Article • Coronavirus resource
Summary of Coronavirus Act 2000
This detailed summary of the Coronavirus Act 2020 contains the following headings: (1) Emergency registration of health and social care professionals; (2) Suspension of duties to undertake assessments of need/discharge of patients from hospital; (3) Deaths and inquests; (4) Indemnity for health service activity; (5) Powers in relation to potentially infectious persons; (6) Children; (7) Offences; (8) Impact on NHS employers; (9) Emergency volunteering leave; (10) Statutory sick pay; (11) Changes to the Mental Health Act 1983: (a) Applications for detention under section 2 and section 3; (b) Holding powers; (c) Treatment - administration of medicine to persons liable to detention in hospital; (d) Detention in place of safety; (e) Patients concerned with the criminal justice system.
|HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20)
|Document • Coronavirus resource
Coronavirus hospital discharge service requirements
The covering letter states: "We face an unprecedented challenge in the weeks and months ahead to provide health and social care services that meet the needs of people affected by coronavirus (COVID-19)." The document summary states: "This document sets out the Hospital Discharge Service Requirements for all NHS trusts, community interest companies and private care providers of acute, community beds and community health services and social care staff in England, who must adhere to this from Thursday 19th March 2020. It also sets out requirements around discharge for health and social care commissioners (including Clinical Commissioning Groups and local authorities). ... Implementing these Service Requirements is expected to free up to at least 15,000 beds by Friday 27th March, with discharge flows maintained after that." In Annex A (The Discharge to Assess Model) the MCA is mentioned: "Duties under the Mental Capacity Act 2005 still apply during this period. If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge."
|HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019)
Conditional discharge/DOL guidance
The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM [2018] UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.
|HMCTS and MOJ, 'Coronavirus (COVID-19): courts and tribunals planning and preparation' (published 13/3/20 and updated periodically)
|Court guidance
HMCTS and MOJ coronavirus guidance
Advice and guidance for court and tribunal users during the coronavirus outbreak. This Gov.uk page is updated regularly, contains its own information, and also contains links to many of the relevant documents.
|HMCTS et al, 'Mental Health Tribunal: An Easy Read Guide' (22/7/20)
|Tribunal guidance
Tribunal guidance for patients
"This document will help explain what you can expect if you attend a face-to-face Mental Health Tribunal hearing."
|HMCTS et al, 'Mental Health Virtual Tribunal: An Easy Read Guide' (22/7/20)
|Tribunal guidance • Coronavirus resource
Tribunal guidance for patients
"This document will help explain what you can expect if you attend a virtual Mental Health Tribunal hearing."
|HMCTS, 'Frequently asked questions about hearing arrangements during the coronavirus pandemic' (July-August 2020)
|Coronavirus resource • Tribunal guidance
FAQs about HESC hearings
There are FAQs about technology, hearings and mental health tribunals. (1) The technology questions are: (a) What is Kinly CVP? (b) How do I prepare for a Kinly CVP video hearing? (c) Can I test my connection beforehand? (d) I can't connect to Kinly CVP from my laptop/computer. What do I do? (e) What browser is best for Kinly CVP on my laptop or PC? (f) Can I use a smartphone? (2) The hearings questions are: (a) What if I want a friend to support me at the hearing? (b) What if my hearing requires interpreters or British Sign Language (BSL) interpreters? (3) The mental health questions are: (a) I would prefer to have a face to face hearing; can this be arranged? (b) I want to see the tribunal doctor before the hearing - can this be arranged? (c) I am a community patient and I cannot afford to join the hearing; (d) I need a full day's hearing; (e) I have had my case referred to the Tribunal but I don't want to contest it. What should I do? [Unrepresented patients referred to the tribunal "should contact the HMCTS ... and let them know that you are not contesting"!]; (f) Are the hearings private? (g) How will I be given the decision?
|HMCTS, 'HMCTS telephone and video hearings during coronavirus outbreak' (18/3/20)
|CQC guidance • Coronavirus resource
Telephone and video hearing coronavirus guidance
This guidance on telephone and video technology has information under the following headings: (1) The decision to use telephone and video hearings; (2) Using existing technology and making new technology available; (3) The rules on using video and audio technology in courts; (4) Proposed legislation
|HMCTS, 'How to join telephone and video hearings during coronavirus (COVID-19) outbreak' (8/4/20)
|Tribunal guidance • Coronavirus resource
Remote hearing guidance for users
"Use this guide if you've been asked to join a hearing by telephone or video using BT MeetMe, Skype for Business or Cloud Video Platform (CVP) during the coronavirus outbreak."
|HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18)
|Tribunal guidance
Requirements imposed on hospitals
This document states that "[a] hearing room is as essential to a psychiatric hospital as an operating theatre is to a surgical hospital" and that if hospitals do not adhere to the minimum requirements or obtain a written exemption then the tribunal "may consider holding its judicial hearings elsewhere". The main headings are (1) Minimum standards of safety and security, and (2) Minimum requirements for facilities and amenities.
|HMPPS and NHS, 'Prison transfers and remissions to and from mental health inpatient hospitals in relation to COVID-19' (28/4/20)
|Health guidance • Coronavirus resource
Coronavirus prison transfer guidance
The headings are: (1) Context and principles; (2) Protocol for the pathway; (2.1) Referral; (2.2) Assessment; (2.3) Requires transfer and detention under the Mental Health Act 1983 (MHA); (2.4) Remissions from mental health hospital to prison; (3) Contacts for national escalation (if required); (4) Useful resources and links.
|HMPPS, 'Leave Application for Restricted Patients' (3/5/19)
Leave application form
This updated form is for all leave except medical leave for high profile cases (for which there is a separate form).
|HMPPS, 'Medical Leave application for high profile restricted patients' (3/5/19)
Medical leave application form
This updated form is required when applying for permission to grant medical leave to a high profile patient.
|HMPPS, 'Mental Health Casework Section and NHS England - joint performance management framework and target timescales 2019/20' (1/8/19)
MHCS targets
This document presents target timescales for the Mental Health Casework Section to consider key decisions for restricted patients. The targets, measured in calendar days from receipt of application to decision issued, are: (1) prison transfer, 5 days; (2) remission to prison, 7 days; (3) hospital transfer - trial leave from high to medium secure, 28 days; (4) hospital transfer - downgrade in security, excluding high to medium, 28 days; (5) hospital transfer, level, 14 days; (6) hospital transfer, upgrade, 7 days; (7) community leave, escorted day, 28 days; (8) community leave, unescorted day, 35 days; (9) community leave, overnight, 35 days; (10) community leave, long-term escorted leave, 35 days; (11) conditional discharge, 28 days; (12) absolute discharge, 28 days; (13) recall, same day. Compassionate and medical leave have not been included in this set of targets; where cases are urgent, they remain at 24 hours.
|HMPPS, 'Mentally disordered offenders - the restricted patient system' (22/12/17)
Overview of restricted patient system
"This guidance provides stakeholders (including patients and their families, victims, Responsible Clinicians and other report writers and multi-disciplinary team members) with an overview of the restricted patient system in England and Wales and the role of the Secretary of State for Justice and the Mental Health Casework Section (MHCS) in Her Majesty's Prison and Probation Service (HMPPS)."
|Home Office, 'Preventing and tackling forced marriage' (consultation from 15/11/18 to 23/1/19)
Summary from Gov.uk website: "This consultation seeks views about whether it is necessary to introduce a new legal mandatory reporting duty relating to cases of forced marriage and, if it is, what such a reporting requirement would look like. It also seeks views on how the current guidance on forced marriage could be improved and strengthened. The consultation is open to everyone. We are particularly interested in hearing from victims and survivors of forced marriage, those with expertise in the area of forced marriage, and relevant professionals, including those working in social care, education, the police and healthcare."
|Home Office, 'Preventing and tackling forced marriage: a consultation' (15/11/18)
The introduction of this document begins: "This consultation seeks views about whether it is necessary to introduce a new legal mandatory reporting duty relating to cases of forced marriage and, if it is, what such a reporting requirement would look like. It also seeks views on how the current guidance on forced marriage could be improved and strengthened." The Background chapter begins: "A forced marriage is a marriage where one or both of the spouses does not consent to the marriage and is coerced into it, or where one or both of the spouses lacks the capacity to consent. Coercion may involve violence, threats, or different types of pressure (e.g. psychological, financial, or emotional). Forced marriage is a criminal offence in England and Wales under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014. The offence applies regardless of whether the marriage ceremony is legally binding or not."
|Independent Review of the Mental Health Act 1983 by Simon Wessely (2018)
Extract from website: "The review was set up to look at how the legislation in the Mental Health Act 1983 is used and how practice can improve. The purpose of the review is to understand the reasons for: (a) rising rates of detention under the Act; (b) the disproportionate number of people from black and minority ethnic groups detained under the Act; (c) processes that are out of step with a modern mental health care system. The review will seek the views of service users, carers, relevant professionals, and affected organisations in producing recommendations. It will produce a report with recommendations for change in autumn 2018."
|Independent Review of the Mental Health Act 1983, 'Modernising the Mental Health Act: Increasing choice, reducing compulsion' (final report, 6/12/18)
The report states that "[a] purpose and a set of principles should be included in the Act itself" and makes recommendations under the following headings: (1) Principle 1 - Choice and autonomy: (a) Making decisions about care and treatment; (b) Family and carer involvement; (c) Advocacy; (d) Complaints; (e) Deaths in detention. (2) Principle 2 - Least Restriction: (a) Tackling the rising rates of detention; (b) Criteria for detention; (c) A statutory Care and Treatment Plan; (d) Length of detention; (e) Challenging detention; (f) Deprivation of liberty: MCA or MHA?; (g) Community Treatment Orders; (h) Coercion and restrictive practices within inpatient settings. (3) Principle 3 - Therapeutic Benefit: (a) Care planning/aftercare; (b) Hospital visitors; (c) Inpatient social environments; (d) Inpatient physical environments. (4) Principle 4 - The Person as an Individual: (a) Person centred care; (b) Recognition of patient individuality at the tribunal; (c) The experiences of people from ethnic minority communities; (d) Children and young people; (e) People with learning disabilities, autism or both; (f) Policing; (g) Patients in the criminal justice system; (h) Immigration Detention; (i) Victims. (5) System wide enablers: (a) Data; (b) Digital enablers; (c) Quality Improvement (QI); (d) Staffing; (e) Improving staff morale.
|Interim guidance on assisted suicide
The purpose of this consultation is to seek a wide range of views on the Director of Public Prosecution's (DPP's) recently published interim guidance on assisted suicide.
See also: Assisted suicide
|James Goddard, 'Coronavirus: emergency legislation' (House of Lords Library, 18/3/20)
|Document • Coronavirus resource
Summary of legislation relating to coronavirus
This article describes the Health Protection (Coronavirus) Regulations 2020, the proposed Coronavirus Bill (which was introduced after the article's publication), and the Civil Contingencies Act 2004, and provides a list of further reading.
|Joint Committee on Human Rights, 'Reform of the DOLS inquiry' (call for evidence from 9/2/18 to 2/3/18)
Extract from website: "The Committee is issuing an open call for evidence from interested parties and would welcome written submissions by Friday 2 March on: (1) Whether the Law Commission's proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards; (2) Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency; (3) Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute. Submissions should be no more than 1500 words."
|Jonathan Butler, Mental Health Tribunals: Law, Practice and Procedure (2nd edn, Jordans 2013)
MHT book
|Jonathan Wilson, 'Mental health: update' (Legal Action, April 2016)
|Journal article
Case law update
Jonathan Wilson looks at decisions on how tribunals should approach unlawfulness, conditional discharge and deprivation of liberty, representatives, withdrawal of tribunal applications, appropriate treatment, guardianship, assessment of risk, and social circumstances reports.
|Jonathan Wilson, 'Mental health: update' (Legal Action, February 2017)
|Journal article
Case law update
Jonathan Wilson considers cases concerning the legal status of hospital managers' hearing decisions, anonymity for mental health patients, the provision of reasons for recall to hospital, and the relevance of the European Convention on Human Rights to mental health tribunal decisions.
|Jonathan Wilson, 'Mental health: update' (Legal Action, February 2018)
|Journal article
Case law update
Jonathan Wilson considers mental health case law relating to capacity, deprivation of liberty, discharge, after-care, and procedural matters.
|Jonathan Wilson, 'Mental health: update' (Legal Action, February 2019)
|Journal article
Case law update
Jonathan Wilson considers mental health case law from the past year relating to deprivation of liberty in the community, tribunal procedure, detention criteria, pocket money, after-care and other matters.
|Jonathan Wilson, 'Safeguards against What? A critical analysis of the Deprivation of Liberty Safeguards' (LLM dissertation, 28/8/13)
Critical analysis of DOLS
This dissertation considers the meaning of 'deprivation of liberty' in the context of the Deprivation of Liberty Safeguards (DoLS) which were implemented in April 2009 to bridge the 'Bournewood gap'. This was a gap in the law confirmed by the European Court of Human Rights (ECtHR) in October 2002, whereby people lacking capacity were accommodated in situations amounting to deprivation of liberty without sufficient legal safeguards. The dissertation will discuss a fundamental problem with the DoLS, namely that 'deprivation of liberty' is nowhere defined: it means what it means in Article 5(1) of the European Convention on Human Rights (ECHR), in other words, it means what the courts consider it to mean on a case-by-case basis.
|Judiciary of England and Wales, 'Civil justice in England and Wales: Protocol regarding remote hearings' (20/3/20)
|Court guidance • Coronavirus resource
Civil courts remote hearing protocol
"This Protocol seeks to provide basic guidance as to the conduct of remote hearings."
|Julian Hendy, 'Victims and the Mental Health Tribunal' (UK Administrative Justice Institute, 10/3/20)
Victims and tribunals
In this article Julian Hendy (founder of the Hundred Families charity) argues that the Mental Health Tribunal "could easily be more transparent and accountable to victims if only [it] had the will do to so". He argues for less secrecy and more transparency (making comparisons with the Court of Protection's transparency pilot and the Family Court's transparency review) and a greater role for victims in the tribunal's decision-making process (by analogy with the Parole Board's post-Warboys measures and its welcoming of victim personal statements).
|Kris Gledhill, Defending Mentally Disordered Persons (LAG 2012)
Criminal defence book
|LAA, 'Contingency Measure for Civil Escape Cases - Electronic Submission' (24/3/20)
|Legal Aid resource • Coronavirus resource
Civil escape case claims
As a temporary measure, the LAA are requiring that these be submitted electronically. The guidance document contains full details.
|LAPG, 'Guidance on what the Legal Aid Contract and LAA COVID-19 Guidance Allows' (25/3/20)
|Document • Coronavirus resource
Guidance about LAA contract terms
This detailed guidance contains information under the following headings: (1) Your office; (2) Progressing Current Cases; (3) Potential New Clients; (4) Providing "Remote" Advice and Digital Signatures; (5) Means Assessment for Remote Advice; (6) Supervision; (7) Supervisor Absence; (8) Key Workers; (9) Speak to the LAA.
|Larry Gostin et al (eds), Principles of Mental Health Law and Policy (Oxford 2010)
Academic mental health law book
|Larry Gostin, Mental Health Services: Law and Practice (Shaw & Sons, supplement issue no 18, June 2000)
Classic mental health law book
The full text of this book is available on Mental Health Law Online.
|Law Commission, 'Mental Capacity and Deprivation of Liberty' (consultation from 7/5/15 to 2/11/15)
"On 7 July 2015 we opened a consultation on the law of mental capacity and deprivation of liberty. The consultation is now closed. We expect to publish a final report with our recommendations and a draft Bill in 2016."
|Law Society, 'Coronavirus (COVID-19) advice and updates' (19/3/20)
|Web page • Coronavirus resource
Law Society coronavirus guidance
This guidance contains information under the headings: (1) Advice for employers; (2) Advice for firm owners, managing partners or senior leaders; (3) Advice for members visiting police stations, prisons or courts; (4) Advice for international firms; (5) Advice for conveyancers; (6) Advice for litigators; (7) Advice for legal aid firms.
|Law Society, 'Mental Health Accreditation: Application and re-accreditation application forms guidance notes and policies' (dated 5/12/18)
|Web page
This document contains updated guidance on the professional development requirements for panel membership. Dated: December 2018. Metadata: created 5/12/18. Downloaded 7/12/18. Filename: mental-health-accreditation-guidance-december-2018.pdf
|Law Society, 'Parliamentary briefing: Mental Capacity (Amendment) Bill: House of Commons second reading' (18/12/18)
Parliamentary briefing on Mental Capacity (Amendment) Bill
Extract from Law Society website: "The Law Society is concerned by provisions in the Mental Capacity (Amendment) Bill. While attempting to simplify the current arrangements under the Deprivation of Liberty Safeguards (DoLS), the Bill removes vital existing safeguards for cared-for people. The Bill should be amended to avoid the unlawful treatment of the vulnerable individuals who receive care and treatment under conditions of detention. Many changes have been made but there is still some way to go. There is a real risk that many of the flaws in the existing system will be duplicated and that the new system will replace one deficient system with another than removes existing safeguards for people. This briefing sets out our key positions on the Bill."
|Law Society, Deprivation of Liberty: Collected Guidance (Law Society, 2016)
Book containing deprivation of liberty guidance
|Legal Aid Agency, 'Civil news: fee rules change for mental health remote hearings' (16/7/20)
|Legal Aid resource • Coronavirus resource
Adjournment fee for remote hearing
(1) The LAA has amended the Standard Civil Contract 2018 to specify that the adjourned hearing fee may be claimed for remote hearings where the representative has incurred travel, advocacy or (if 15 minutes elapse since the scheduled or actual start time) provided that reasonable steps were taken to prevent those costs being necessary. (2) The new rule will be applied retrospectively.
|Legal Aid Agency, 'Coronavirus (COVID-19): contract management and assurance' (14/4/20)
|Legal Aid resource • Coronavirus resource
LAA contract guidance
This web page, which is a sub-page of Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20), contains information about working with contract management, reducing administrative activity for providers, office and supervisory arrangements, and quality mark accreditation. Under the heading "Designated Accredited Representatives in Mental Health cases" it states: "We understand the current situation may mean you are unable to meet the requirements of the contract regarding designated accreditation representatives, including where an individual is not able to meet the 14-hour requirement. You should document the reasons why, but we will not take any action in this situation. It will remain a requirement all advocates before the tribunal except self-employed counsel must be members of the Law Society's Mental Health Accreditation Scheme."
|Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20)
|Legal Aid resource • Coronavirus resource
LAA coronavirus guidance
This LAA web page is the main source of Legal Aid guidance, and contains links to various sub-pages.
|Legal Aid Agency, 'Coronavirus (COVID-19): remote working' (14/4/20)
|Legal Aid resource • Coronavirus resource
LAA remote working guidance
This web page, which is a sub-page of Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20), includes information on the MHT level 3 fee: "Most Mental Health Tribunal (MHT) hearings will now be heard remotely. We can confirm the MHT Level 3 Fee will be payable where representation is carried out at a remote hearing intended to dispose of a case and would have ordinarily taken place in person."
|Legal Aid Agency, 'Coronavirus (COVID-19): working with clients' (14/4/20)
|Legal Aid resource • Coronavirus resource
LAA coronavirus guidance
This web page, which is a sub-page of Legal Aid Agency, 'Coronavirus (COVID-19): Legal Aid Agency contingency response' (18/3/20), includes information relating to making Legal Aid applications, assessing financial eligibility where a client cannot attend, using digital signatures, client finances and contributions, approach to emergency certificates, and operation of the statutory charge. (1) In relation to assessing eligibility it states: "Where a client is staying at home, it may still be possible to collect evidence by email or post. Reasonable efforts to collect evidence should still be made and recorded, before assessing without evidence if that is not possible." (2) In relation to signatures the advice, since 24/3/20, has included: "In situations where it is not possible to get a client signature, digitally or otherwise, please make a note on the file explaining why, countersigned by a supervisor, and also make a note on the application/form when submitted to avoid delays or issues with processing. Please seek a signature at the earliest possible opportunity. ... [S]upervisor signatures may also be provided digitally to enable effective remote supervision, as long as they are clearly related to the relevant file notes."
|Legal Aid Agency, 'Keycard 54' (issued Apr 2018, updated Sep 2018)
Financial eligibility
This document is helpful when working out financial eligibility for civil Legal Aid. Superseded by: Legal Aid Agency, 'Keycard 55' (April 2019).
|September 2018
|Legal Aid Agency, 'Keycard 55' (April 2019)
|Legal Aid resource
Financial eligibility
This document is helpful when working out financial eligibility for civil Legal Aid.
|Legal Aid consultation: refocusing on priority cases (2009)
"This paper sets out proposals for reforming the legal aid rules to ensure that limited resources are focused on priority cases. The changes proposed include strengthening public interest considerations in deciding whether to grant civil legal aid; ceasing to provide funding for low priority civil and criminal matters, where issues can be resolved instead through complaints procedures or ombudsman schemes; restricting access to civil legal aid for those not resident in the UK; and notifying the other side when civil legal aid is applied for to discourage fraudulent applications."
CLS News: Important changes to the Funding Code - 1/4/10
Response to consultation - Feb 2010
Consultation documents on MoJ website
|Legal aid: funding reforms (2009)
Responses published 16/12/09.
Response re experts' fees published 3/3/10. See bottom of consultation page and:
|Lord Chief Justice, 'Coronavirus (COVID-19): Jury trials' (17/3/20)
|Court guidance • Coronavirus resource
Coronavirus jury trials guidance
(1) No new trial should start in the Crown Court unless it is expected to last for three days or fewer; (2) all cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned; (3) trials currently underway will generally proceed in the hope that they can be completed.
|Lord Chief Justice, 'Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts' (19/3/20)
|Court guidance • Coronavirus resource
Coronavirus court guidance on remote hearings
This message states: "The rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime we have phones, some video facilities and Skype." It contains some outline guidance in relation to social distancing, litigants in person, trials and hearings involving live evidence, prioritising work, possession proceedings, injunctions and committal hearings, civil appeals, and family matters.
|Lord Chief Justice, 'Review of court arrangements due to COVID-19, message from the Lord Chief Justice' (23/3/20)
|Court guidance • Coronavirus resource
Jury trials have been paused
(1) This message notes that jury trials cannot be conducted remotely and states that all jury trials will be paused for a short time to enable appropriate precautions to be put in place (this topic is only of peripheral interest to MHLO readers so please check the Judiciary website or elsewhere for further updates). (2) In relation to family and civil courts it confirms that hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.
|Lucy Series et al, 'Welfare cases in the Court of Protection: A statistical overview' (Cardiff University, 28/9/17)
The report is based on findings from (1) a study based on data gathered from CoP welfare case files held by the court; and (2) a study using the Freedom of Information Act 2000 to gather data from local authorities and NHS bodies about their involvement in CoP welfare litigation.
|Luke Clements et al, Community Care and the Law (6th edn, LAG 2017)
Community care book
See Review by Alex Ruck Keene and Caroline Miles, 'Community Care and the Law' (2018) 33 Disability & Society 317†.
|Luke Haynes and Mithran Samuel, 'Government issues deprivation of liberty definition in bid to provide clarity to practitioners' (Community Care, 11/1/19)
|Web page
Proposed statutory DOL definition
Subheading: "Ministers' amendment to DoLS replacement bill sets out when a person would not be deprived of liberty, but sparks concerns over compatibility with human rights law".
|Mark Hinchliffe and Zoe Blake, 'Letter to all Hospitals regarding our Minimum Requirements' (11/4/18)
|Tribunal guidance
Covering letter for minimum requirements guidance
This is a covering letter for HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18).
|Mark Neary, Get Steven Home (Lulu 2011)
Deprivation of liberty book
The story behind Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP).
|Martin Jones, 'Guidance to members' (Parole Board, 20/3/20)
|Tribunal guidance • Coronavirus resource
Parole Board coronavirus guidance
The guidance from the PB CEO's Twitter account is: (1) The Parole Board is considering changes to guidance, so that fewer cases are directed to oral hearing. (2) The views of the prisoner or representative will be sought but the decision on whether an oral hearing is needed lies with the panel chairman. (3) At oral hearings, panel members, legal representatives, witnesses and victims may be allowed to undertake video/telephone links from home to try to avoid delay to hearings. (4) If one panel member cannot attend owing to coronavirus then the hearing should proceed wherever possible. (5) More cases will be concluded by a single panel member. See also: Parole Board, 'Further guidance to members' (1/4/20)
|Martin Picton et al, 'The Crown Court Compendium' (Judicial College, December 2019)
|Sentencing guidelines
Crown Court trials and sentencing
"The main aim of this Compendium is to provide guidance on directing the jury in Crown Court trials and when sentencing, though it contains some practical suggestions in other areas, for example jury management, which it is hoped will be helpful." Both Part I (Jury and Trial Management and Summing Up) and Part II (Sentencing) have content relevant to mental health law.
|December 2019
|Matthew Graham and Jakki Cowley, A Practical Guide to the Mental Capacity Act 2005 (JKP 2015)
MCA book
|Matthew Stanbury, 'The making of hospital orders and the use of hybrid orders' (Garden Court North, 27/3/18)
|Web page
Summary of sentence guidance case
This article, written by counsel for one of the appellants, summarises the case of R v Edwards [2018] EWCA Crim 595.
|Medical examination of the patient - consultation
The Tribunal Procedure Committee propose to amend the rules as follows: (a) to make the medical examination discretionary (except in s2 cases, where there is to be no change); (b) to allow any member of the tribunal to view the medical records (rather than just the medical member); (c) to require either a medical examination or a finding that one is unnecessary or not practicable before a tribunal can proceed in the patient's absence.
|Mental Health Casework Section, 'MHCS Update: Covid-19' (Dear Colleague letter, 19/3/20)
|Letter • Coronavirus resource
MHCS coronavirus update
This letter explains that MHCS staff are all working from home, their policies and procedures remain the same, and the ability to deliver casework is unchanged. If staffing levels decrease: the priorities will be recalls, prison transfers, upward transfers, tribunal statements and level/downward transfers and repatriations; there might be delays in leave decisions and discharges; and conditional discharge reports (CDRs) and applications for changes of discharge conditions (unless important because of risk) will be the lowest priority.
|Mental Health Casework Section, 'Q and A for healthcare professionals and MHCS staff' (30/3/20)
|Document • Coronavirus resource
MHCS coronavirus guidance
The questions are: (1) Will MHCS relax a requirement that supervisors should have face-to-face contact with patients living in the community, for conditional discharge reports? (2) What happens if a patient, who is detained in hospital, requires urgent treatment as a result of suspected COVID-19? (3) What happens if there is an urgent need to transfer a patient with suspected Covid-19 from one mental health hospital to another? (The document contains a new shorter transfer request template for use in this scenario.) (4) Is there still a requirement to submit Conditional Discharge Reports (CDRs) and Annual Statutory Reports (ASRs)? (5) How do I extend previously granted overnight leave at a community placement, to prevent the need for the patient to go back and forth between the hospital and community placement?
|Mental Health Tribunal for Scotland, 'Covid-19 Outbreak - Important Update' (19/3/20)
|Tribunal guidance • Coronavirus resource
Scottish MHT's coronavirus guidance
The MHTS intends to hold all hearings by teleconference from Monday 23/3/20. The update details how this will work in practice, including assisting patients to participate in proceedings.
|Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20)
|Tribunal guidance • Coronavirus resource
Automatic disclosure of medical records
Owing to the fact that representatives cannot arrange for patients to sign consent forms, this direction requires the responsible authority: (1) to allow immediate access to the patient's medical and nursing notes upon receipt of the CNL1 form containing the representative's name; (2) to email without delay any notes specified by the representative; and (3) to highlight any information in the notes not to be disclosed to the patient (the representative must not disclose this information without further order of the tribunal).
|Mental Health Tribunal, 'Ensuring patients can access justice' (Sarah Johnston DCP, 22/5/20)
|Tribunal guidance • Coronavirus resource
MHT remote hearings
This article on the Judiciary website explains the adoption of remote hearing procedures by the MHT.
|Mental Health Tribunal, 'First-tier Tribunal (Mental Health) update' (2/4/20)
|Tribunal guidance • Coronavirus resource
MHT telephone hearing guidance
Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient's number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call.
|Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20)
|Tribunal guidance • Coronavirus resource
MHT update including listing
(1) All hearings have been postponed for certain community patients (CTO and conditional discharge), unless they have already been listed for paper review, until the revocation of the coronavirus pilot PD, or earlier if the tribunal directs. (The original summary here wrongly said "all community patients" - apologies.) (2) Section 2, conditional discharge recall, and CAMHS cases are the priority for listing; other cases were not being listed, but s3 and restricted cases should now begin to be listed. (3) Representatives are requested not to call the tribunal unless absolutely necessary, and to seek directions for late reports.
|Mental Health Tribunal, 'Guidance for the observation of tribunal hearings in the First-tier Tribunal Health Education and Social Care Chamber (mental health jurisdiction)' (10/1/19)
|Tribunal guidance
Observation guidance
This guidance supersedes Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09), the main difference being that it is no longer necessary for observation requests by solicitors, barrister, nurses, doctors, social workers etc to be made in advance to the Deputy Chamber President.
|Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09)
|Tribunal guidance
Observation guidance
This guidance has been superseded by Mental Health Tribunal, 'Guidance for the observation of tribunal hearings in the First-tier Tribunal Health Education and Social Care Chamber (mental health jurisdiction)' (10/1/19). It deals with the various categories of observers and the terms on which they may be permitted to attend tribunal hearings.
|Mental Health Tribunal, 'Help for users' (15/4/20)
|Tribunal guidance • Coronavirus resource
MHT guidance for patients
This guidance explains that hearings will be heard via telephone/video, by a tribunal judge alone ("because we have less support because of the coronavirus"), there will be no medical examination (because "people cannot meet together"), and community hearings will not take place ("because of the difficulties we have in organising hearings here everyone can participate" - unless the patient or representative explains "why your case must go ahead"). Superseded by Mental Health Tribunal, 'Help for Users' (updated, 28/7/20).
|Mental Health Tribunal, 'Help for Users' (updated, 28/7/20)
|Coronavirus resource • Tribunal guidance
MHT guidance for patients
This document was updated to reflect the situation as it was in July 2020. It mentions that "those cases that are listed for paper hearings under the usual procedures or cases where the patient has indicated through his or her solicitor that the detention is not contested ... are likely to be heard by a judge alone on the papers".
|Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20)
|Tribunal guidance • Coronavirus resource
MHT remote hearing CAMHS guidance
This document explains remote hearings in simple language.
|Mental Health Tribunal, 'Message from the Deputy Chamber President' (2/4/20)
|Tribunal guidance
MHT coronavirus update
This message includes the following information: (1) the tribunal is prioritising urgent hearings; (2) the administration should only be contacted if necessary; (3) the tribunal cannot currently make directions for reports.
|Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20)
|Tribunal guidance • Coronavirus resource
Guidance to psychiatrists about remote hearings
(1) This guidance to psychiatrists includes the following: all evidence will be taken before a tribunal judge alone, using phone (BT MeetMe) or video; the doctor giving evidence will released after giving evidence except in all but exceptional cases; the patient will not be given the decision orally. (2) To help the tribunal, clinical teams should: (a) submit s2 reports the day before the hearing (to avoid delays); (b) advise the tribunal judge if the patient will be unable to stay in the room or should give evidence first; (c) tell the tribunal judge whether the patient can remain as a voluntary patient (which is no longer possible in many areas); (d) emphasise any limitations of the evidence (for instance if the patient has recently been moved between "clean" and "dirty" coronavirus wards); (e) focus on the statutory criteria; (f) suggest delayed discharge for follow-up to be arranged; (g) give evidence from a private area. (3) The tribunal are encouraging wing members to return to clinical work, and are looking at formats for shorter reports.
|Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20)
|Tribunal guidance • Coronavirus resource
Hearing postponement for certain community patients
(1) The hearings of certain community patients will be postponed, unless they have already been listed for paper review. (2) It applies to patients "over 18" (this is meant to mean 18 or over) presumably at the time of the application or reference. (3) The following will be postponed: (a) applications by CTO patients (s66(1)); (b) applications by conditionally-discharged (C/D) patients (s75(2)); (c) periodic mandatory references in the cases of CTO patients (s68(2) and s68(6)). (4) The following will not be postponed: (a) discretionary references for CTO patients (s67(1)); (b) discretionary references for C/D patients (s71(1)); (c) revocation references for CTO patients (s68(7)); (d) recall references for C/D patients (s75(1)). (5) The order purports to postpone periodic mandatory references for C/D patients (s71(2)) but these references are only made for a "restricted patient detained in a hospital". (6) The hearings will take place on the first convenient date after revocation of the Pilot Practice Direction, or earlier if the tribunal orders (the parties are to agree a new listing window after revocation and apply for a new date). (7) All parties are at liberty to apply to vary the order and directions in exceptional cases. (8) The reason given for the order is that (a) it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing"; (b) cases where the patient is deprived of his liberty are being prioritised for listing; (c) postponement is proportionate to the "extreme demands being placed on health, social care and justice services by the pandemic"; (d) the case will be relisted as soon as practicable "having regard to any temporary regulations or other priorities that may prevail during the coronavirus emergency".
|Mental Health Tribunal, 'Order and directions for listing of community hearings' (6/5/20)
|Tribunal guidance • Coronavirus resource
Community hearings are now being listed
These cases had been postponed on 26/3/20 but now will be listed for hearing because the tribunal "has now achieved a level of administrative support to be able to list cases for community patients". The order and directions set out the duties on patients' representatives and responsible authorities in relation to reports, consideration of paper hearings, agreed hearing dates, and remote hearing practicalities.
|Mental Health Tribunal, 'Update on coronavirus situation' (18/3/20)
|Tribunal guidance • Coronavirus resource
MHT coronavirus guidance
The position set out in this guidance is that: (1) hearings will continue as planned; (2) hearings require all three panel members, but this may change as part of the contingency plan being prepared; (3) requests to give evidence via telephone should be sent to the mhtcorrespondence email address; (4) hearings are being arranged as telephone conferences when hospitals are in lock-down; (5) listing window extension requests should be submitted to mhtcasemanagementrequests, but extended windows may be part of the contingency plan; (6) the tribunal is pushing for greater provision for paper hearings; (7) pre-hearing medical examinations are continuing, subject to the circumstances of each case, but these could cease if all hearings become telephone reviews. Largely superseded by: Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20).
|Mental Health Tribunal, 'Video Conference Hearings' (6/4/20)
|Letter • Tribunal guidance • Coronavirus resource
MHT video hearings
From 13/4/20 all cases will be listed as video hearings using the Common Video Platform (CVP), instead of telephone hearings. Telephone hearings had taken longer and made communication more difficult, and it is hoped that video hearings will be an improvement.
|Mental Health Tribunal, 'Video Hearing Guidance for Participants in Mental Health Tribunals' (24/8/20)
|Coronavirus resource • Tribunal guidance
MHT video hearing guidance
This document contains the following headings: (1) To connect; (2) The hearing; (3) At the end of the hearing; (4) The written decision.
|Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20)
|Tribunal guidance • Coronavirus resource
MHT video hearing guidance
This document contains information under the following headings: (1) Before the hearing; (2) Listing hearings; (3) PHEs [see comments]; (4) Uncontested References where patients do not want to attend a hearing [see comments]; (5) Connecting to a video hearing; (6) The hearing; (7) At the end of the hearing; (8) The written decision.
|Michael Butler, A Practitioner's Guide to Mental Health Law (Wildy, Simmonds and Hill 2014)
Mental health law book
|Mind, 'Coronavirus and your rights' (April 2020)
|Web page • Coronavirus resource
Coronavirus advice for patients, carers and others
This web page contains links to further Mind resources on: (1) Coronavirus and social care rights; (2) Coronavirus and sectioning; and (3) Coronavirus and your mental health.
|April 2020
|Mind, 'Legal Newsletter' (March 2020)
Mind's legal newsletter
This newsletter contains news under the following headings: (1) Comprehensive mental health service for children still a long way off; (2) Making decisions for someone with fluctuating capacity; (3) National inquiry into the use of restraint in schools; (4) CQC monitoring the Mental Health Act in 2018/2019; (5) New guidance for the Court of Protection; (6) The meaning of "long-term" in the definition of disability; (7) Veganism - Equalities and Human Rights issues in mental health settings; (8) Deloitte highlight poor mental health which costs employers billions; (9) Can an incapacious patient still choose their solicitor? (10) New study about Community Treatment Orders
|Ministry of Justice, 'Circular 2018/01: Assaults on Emergency Workers (Offences) Act 2018' (13/11/18)
MOJ circular
Extract from document: "The purpose of this circular is to provide guidance on the Act's provisions. The circular is for guidance only and should not be regarded as providing legal advice. Guidance for prosecutors on the new offence of assault on an emergency worker contained in the Act will be made available on the CPS website. The CPS are responsible for advising police for the purposes of criminal proceedings. For other operational advice, police should seek advice from their own legal advisors."
|Ministry of Justice, 'COVID-19 Stakeholder Update' (22/3/20)
|Email • Coronavirus resource
MOJ coronavirus update
This email contains (among other things) clarification that the "key worker" category includes: advocates required to appear before a court or tribunal (remotely or in person); other legal practitioners required to support the administration of justice, including duty solicitors and lawyers and others who work on imminent or ongoing court or tribunal hearings; solicitors and barristers advising people living in institutions or deprived of their liberty.
|Ministry of Justice, 'Family Court Statistics Quarterly, England and Wales, April to June 2017' (28/9/17)
Statistics including COP and OPG
This quarterly statistical bulletin includes the following chapters: (10) Mental Capacity Act - Court of Protection; (11) Mental Capacity Act - Office of the Public Guardian. Extract from Gov.uk website: "This report presents the latest statistics on type and volume of cases that are received and processed through the family court system of England and Wales in the second quarter of 2017 (April to June). The material contained within this publication was formerly contained in Court Statistics Quarterly, a publication combining Civil, Family and Criminal court statistics."
|Ministry of Justice, 'FOIA response 181221028: DOL conditions' (23/1/19)
FOIA response
In response to a FOIA request the MOJ have stated that (paraphrased): (1) There are 2712 conditionally-discharged patients. (2) A database search for the keywords "escorted" and "accompanied" identified 39 cases where the patient has a condition not to go into the community unless escorted or accompanied by staff. (3) A database search for the keyword "permission" did not identify any cases where the patient has a condition not to leave without permission. (4) It cannot be known for certain that these conditions amount to confinement for Article 5 purposes until each case is examined in discussion with the RC. (5) No information can be provided about capacity to abide by the conditions as this information is not held (information about capacity held within RCs' reports is not considered to be sufficiently recent). (6) There may be more than these 39 cases because: (a) the wording of conditions varies considerably; and (b) it is likely that in some cases the care plan, rather than a condition, includes arrangements that amount to a deprivation of liberty (RCs and others have been asked to contact the MOJ for advice in such cases).
|Ministry of Justice, 'Reconsideration of Parole Board decisions: Creating a new and open system' (consultation from 28/4/18 to 28/7/18)
"This paper considers and seeks views on the proposed parameters for and operation of the proposed reconsideration process, with respect to: (1) which types of decisions should be reconsidered; (2) who should be able to apply for reconsideration of a decision; (3) on what basis a decision should be reconsidered; (4) how we can make the process transparent whilst also ensuring there are sufficient safeguards to protect panel members, victims and others."
|Ministry of Justice, 'Reconsideration of Parole Board decisions: creating a new and open system: Government response to the public consultation' (Cm 30, 4/2/19)
Parole Board consultation outcome
Details of outcome from Gov.uk website: "This consultation sought the public's view on a mechanism that would allow the Parole Board to reconsider its decisions in certain circumstances. The Government has concluded that there should be a mechanism to allow reconsideration of parole decisions. The process will provide an easier way to challenge decisions which appear to be seriously flawed. The Secretary of State will able to apply for reconsideration to the Parole Board, taking account of any representations from victims. It will no longer be necessary to resort to costly and time-consuming judicial review proceeding. Decisions on whether a case should be reconsidered will be taken by judicial members of the Parole Board. Reasons for their decisions will be provided to victims. We will make provision in the Parole Board Rules to implement these changes later this year. Between now and then, we will put into place the necessary guidance, training and resources need to operate this mechanism."
|Ministry of Justice, 'Revising the Mental Capacity Act 2005 Code of Practice: Call for evidence' (consultation from 24/1/19 to 7/3/19)
Extract: "Since the MCA came into force in 2007, the COP has been used extensively by a wide range of stakeholders. In light of changes in case law, and lessons learned through practical use of the COP over the past 11 years, revision of the COP is required in order to better reflect current needs. The Act itself is currently not under review, however the survey below provides an opportunity to comment on the practical guidance outlined in the COP. Comments received will inform decisions to revise, update and where relevant to provide further guidance in the COP."
|Ministry of Justice, 'Transforming our justice system' (consultation from 15/9/16 to 27/10/16)
The main proposal relevant to the MHT is an amendment (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the Senior President of Tribunals, and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system.
Consultation proposals
The following three principles and aims are taken from the first, overview chapter. (1) Proportionate: (a) More use of case officers for routine tasks, (b) More decisions made 'on the papers', (c) More virtual hearings, (d) More cases resolved out of court. (2) Accessible: (a) Putting probate applications online, (b) Managing divorce online, (c) Digitising applications for Lasting Powers of Attorney. (3) Just: (a) Provide a system that works for everyone, (b) Continue to ensure open justice. In relation to LPAs, it states: "Allowing people to make arrangements for a time in the future when they may not be able to make decisions by themselves is a helpful but often emotionally stressful process. Applications have been partially digitised since 2014, resulting in fewer application forms being returned because of errors. We will build on this by making the system fully digital to deliver a quicker service."
Chapters 2-5 relate to Criminal, Civil, Family, and Tribunals. The following are the aims in relation to tribunals: (a) Streamlining procedures and encouraging a balanced approach, (b) Digitising the Social Security and Child Support Tribunal, (c) Simplifying panel composition, (d) Reforming employment tribunals. In relation to panel composition it states: "Another factor in taking a balanced, tailored approach to tribunal cases is making sure the panels that make decisions in tribunals are designed to best suit the circumstances of the case. Most tribunals currently reflect historic arrangements that may be out of date and do not tailor the expertise of the panel according to the case. We propose to revise the current arrangements for setting panel composition to make sure that that appropriate expertise is focussed on those cases that need it. We would welcome views on how best to achieve this – more details are available later in Chapter 7.3."
Chapter 6 states that views are invited on three specific elements: (a) Assisted digital facilities, (b) Online conviction and statutory fixed fine, and (c) Panel composition in the tribunals.
The following are extracts from chapter 7.3: "As we streamline the tribunals system, we need to be more tailored and flexible in the way that non legal members are used. Panel composition will remain a matter for the Senior President of Tribunals (SPT), but we want to move away from a blanket approach of using non-legal members regardless of whether their specialist expertise and knowledge is relevant or required. Instead, they should only be part of the panel where their presence is relevant to the case. ... The terms of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 allow the SPT to set the composition of tribunal panels in the unified system via Practice Statements. ... Some change has already been introduced by way of revised Practice Statements, and has not been shown to have any negative effects on decisions. ... We therefore propose to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the SPT greater freedom to adopt a more proportionate and flexible approach to panel composition, by: (a) Providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT, and (b) Removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system. ... The use of multiple panel members in the unified tribunals currently costs the taxpayer around £21m per year in fees alone, with daily fees for each member ranging from £200 - £500, plus additional costs for travel and subsistence, training, appraisal and general administration. By using NLMs in a more tailored, flexible way, we can make sure that more people in the tribunals will benefit from their specialist expertise and knowledge, while delivering better value for the taxpayer."
The questions in chapter 7.3 in relation to the last element are: (a) "Question 7: Do you agree that the SPT should be able to determine panel composition based on the changing needs of people using the tribunal system? Please state your reasons." (b) "Question 8: In order to assist the SPT to make sure that appropriate expertise is provided following the proposed reform, which factors do you think should be considered to determine whether multiple specialists are needed to hear individual cases? Please state your reasons and specify the jurisdictions and/or types of case to which these factors refer."
Government response
In the consultation document it was proposed to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the Senior President of Tribunals (SPT) "greater freedom to adopt a more proportionate and flexible approach to panel composition", by (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT; and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system.
Following the consultation, the government will proceed with proposal (b) as the existing requirement is "an unnecessary restriction to the SPT to base decisions on what is the most appropriate and proportionate approach", but will not proceed with proposal (a) because of concerns arising from "the assumption that this will apply in all cases" (although it appears that this concession is not intended to make any difference in practice). To this end, the Order will be amended so that that "the SPT may provide that a panel should consist of one, two or three members, as required, in order to determine the matters before the tribunal justly and fairly". The consultation response envisages that the SPT will consult with both the tribunal judiciary and wider stakeholders before making any changes to panel composition.
|Ministry of Justice, 'Updated guidance on the Rehabilitation of Offenders Act 1974' (4/3/14)
Guidance on spent convictions etc
Is a restricted hospital order spent when the patient is conditionally discharged or when he is absolutely discharged? The Ministry of Justice does not have an official position on the matter, but refers to this guidance document which states that under the Rehabilitation of Offenders Act 1974 the rehabilitation period of a hospital order, with or without a restriction order, is the "period of the order" (email correspondence, 11/7/19).
|Ministry of Justice, Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice (2008)
MCA DOLS Code of Practice
|Minutes of Court User Group Meeting (15/10/19)
COPUG minutes
(1) Apologies; (2) Minutes and Action points; (3) Court Manager's Report; (4) Misplaced COP20As and COP20Bs; (5) Interim deputyship orders that specify the date on which the appointment will end; (6) Clerical mistakes or slip rules on court orders; (7) Service of final orders (Rule 6.2); (8) Anonymised deputyship orders; (9) Delayed issue of COPDOL 11 applications; (10) Delivery of bundles and position statements; (11) Problems in deputyship orders; (12) Service of orders on Local Authority applicant; (13) P&A deputyship orders - exclusion of authority to (a) enter into/terminate tenancies or (b) sell; (14) Required forms; (15) Photographs of court as visual aid for P; (16) E-mails received out of hours to vacate next day hearings; (17) Any other business.
|Minutes of Court User Group Meeting (30/4/19)
COPUG minutes
(1) Apologies; (2) Minutes and Action points; (3) Court Manager's Report; (4) Update on the Mental Capacity Amendment Bills; (5) Response to correspondence; (6) Update on ALR scheme; (7) Contacting the court by telephone; (8) Update on progress of e-bundling; (9) COP9 papers not served; (10) COP General visitors using insecure IT equipment when visiting lay deputies; (11) Dealing with urgent applications; (12) Applications for authorities outside the standard terms of deputyship; (13) Request for consideration of a streamlined property and affairs process; (14) Amendment of property and affairs order templates to include reference to support for making decisions when P has capacity; (15) Naming solicitors in judgments; (16) Any other business. Next meeting: 15/10/19 at 1400, at First Avenue House.
|Natalya O'Prey, 'Authority to use medical leave' (Dear Colleague letter from MHCS to all hospitals detaining restricted patients, 18/4/19)
General consent granted for medical leave
The Secretary of State for Justice has provided all responsible clinicians at any hospital with general consent to exercise their power to grant leave for medical treatment. This general consent does not apply to (a) patients who already have specifically-agreed terms for medical leave; or (b) "high profile" cases (i.e. those which merit attention from a senior manager at all stages). The precise terms are set out three annexes: (A) any restricted patient at high secure hospitals; (B) section 45A, 47/49, and 48/49 patients in other hospitals; (C) section 37/41 or equivalent in other hospitals.
|Nazreen Pearce and Sue Jackson, Urgent Applications in the Court of Protection (2nd edn, Jordans 2014)
Court of Protection book
|NCISH, 'Annual Report: England, NI, Scotland and Wales' (13/12/19)
Suicide and homicide report
"The 2019 annual report from the National Confidential Inquiry into Suicide and Safety in Mental Health (NCISH) provides findings relating to people who died by suicide in 2007-2017 across all UK countries. Additional findings are presented on the number of people convicted of homicide, and those under mental health care."
|New Horizons consultation
"Good mental health is fundamental to the well-being and prosperity of England. In the last decade, greater investment and reforms have transformed mental health care, but now we need to go further. We need to target the root causes of mental illness and support the local development of higher quality, more personalised services."
|NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2017-18' (2/10/18)
DOLS statistics
Extract from NHS Digital summary: "This official statistics report provides the findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2017 to 31 March 2018. ... The report looks at aspects of DoLS activity, including the profile of people for whom a DoLS application was received, applications completed and their outcome, and applications not completed. The data tables and interactive business intelligence tool published alongside the report present further analyses and breakdowns of the data, including breakdowns by local authority."
|NHS Digital, 'Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2018-19' (21/11/19)
DOLS statistics
"These official statistics provide findings from the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) data collection for the period 1 April 2018 to 31 March 2019."
|NHS, 'Clinical guide for front line staff to support the management of patients with a learning disability, autism or both during the coronavirus pandemic - relevant to all clinical specialities' (ref 001559, v1, 24/3/20)
|Document • Coronavirus resource
Guidance on learning disability and autism
The Overview states: "People with a learning disability have higher rates of morbidity and mortality than the general population and die prematurely. At least 41% of them die from respiratory conditions. They have a higher prevalence of asthma and diabetes, and of being obese or underweight in people; all these factors make them more vulnerable to coronavirus. There is evidence that people with autism also have higher rates of health problems throughout childhood, adolescence, and adulthood, and that this may result in elevated risk of early mortality". The following key points are discussed: (1) Be aware of diagnostic overshadowing; (2) Pay attention to healthcare passports; (3) Listen to parents/carers; (4) Make reasonable adjustments; (5) Communication; (6) Understanding behavioural responses to illness/pain/discomfort; (7) Mental Capacity Act; (8) Ask for specialist support and advice if necessary; (9) Mental wellbeing and emotional distress.
|NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20)
|Health guidance • Coronavirus resource
NHS guidance on MH law during coronavirus pandemic
"This guidance provides advice and support to commissioners (clinical commissioning groups [CCG] and specialised commissioning), providers (CCG commissioned and specialied commissioned), health care professionals, social workers, Approved Mental Health Professionals, local authorities, experts by experience, clinical experts, and independent chairs for Care and Education and Treatment Reviews, as well as regional NHS England and NHS Improvement colleagues, to help with the local planning already underway. The guidance will also be helpful for other individuals and partner organisations, involved in the pathways of care, for people with mental health needs, a learning disability and/or autism, including police, prisons and Immigration Removal Centres (IRCs)." The main headings are: (1) Introduction; (2) Key messages; (3) The Mental Health Act 1983 and the emergency Coronavirus Act; (4) Operational considerations for use of the MHA; (5) Guidance on using the Code of Practice during the COVID-19 pandemic period; (6) The Mental Capacity Act; (7) The Care Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (9) Escorting patients detained under the MHA, including those on Restriction Orders (Sections 41 and 49 MHA) to and from acute general hospitals; (10) Specific considerations for specialised commissioned services; (11) Specific considerations for learning disability and autism services; (12) Specific considerations for people with dementia; (13) Specific considerations for mental health, learning disability and autism and the Criminal Justice System; (14) Application of digital technology to Mental Health Act assessments; (15) Annexes: (Annex A) Resources that have been developed to support practice in mental health; (Annex B) Mental Health Casework Section; (Annex C) COVID-19 - Escorting patients detained under the Mental Health Act (MHA) including those on Restriction Orders (Sections 41 and 49) to and from acute general hospitals; (Annex D) Guidance on using the Code of Practice during the pandemic period: (a) Section 136 assessment; (b) Approved Mental Health Professionals (AMHPs) and responsibilities of Local Authorities; (c) The role of hospital managers' panel; (d) Mental Health Tribunal Hearings; (e) Medical Reviews of Seclusion; (f) Section 17 leave and visitors; (g) Access to Independent Mental Health Advocates (IMHAs); (h) Second Opinion Appointed Doctors service; (i) Electronic forms and electronic delivery; (Annex E) Checklist to support decision in line with the minimum standards and safeguards on the application of technology to the MHA assessments.
|Nick Brindle et al, A Clinician's Brief Guide to the Mental Capacity Act (2nd edn, RCPsych Publications 2015)
MCA book