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1. Mental Health Law Online

06/12/18 (1): Wessely review final report. 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.05/12/18 (3): New edition of book. Richard Jones and Eve Piffaretti, Mental Capacity Act Manual (8th edn, Sweet and Maxwell 2018)05/12/18 (2): Event. Edge Training: BIA Legal Update (Annual Refresher) - London, 14/12/18 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: (1) Consider the latest DoLS news, research and guidance; (2) Examine the latest case law relevant to DoLS and the BIA role; (3) Reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Price: £140+VAT. See Edge Training website for further details and booking information05/12/18 (1): Appeal status information (CXF s117 case). This case was heard by the Court of Appeal (Bean, Leggatt, Haddon-Cave LJJ) on 5/12/18. See R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin), [2017] MHLO 30 29/11/18 (2): Contact case. SR v A Local Authority [2018] EWCOP 36 — "At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary."29/11/18 (1): DOL case (child). Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 — "The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction."29/11/18 (1): 39 Essex Chambers Mental Capacity Report. 39 Essex Chambers have kindly agreed for their newsletter to be reproduced here: when there are related MHLO pages, these are shown below the relevant item. See 39 Essex Chambers, 'Mental Capacity Report' (Issue 90, November 2018)

2. Twitter

06/12/18: @CQCpressoffice: "We strongly support the review’s calls for more rights, better treatment and greater patient involvement in care p… @DHSCgovuk: #MentalHealth: Independent Review of Mental Health Act has published final report @CommunityCare: The Independent Review of the Mental Health Act 1983, published by @DHSCgovuk , has set out recommendations for gov… @WesselyS: The Mental Health Act needs modernising. Here are our proposals for this My thanks to the extraordinary group of… @MentalHealthCop: I’d recommend @CareQualityComm also consider policing here: there is a national MoU on ensuring the police are not… @CQCpressoffice: .@CareQualityComm to review use of restraint, prolonged seclusion and segregation for people with mental health pro… @MentalWelfare: Today we've released our 2017-18 annual report. It includes a rundown of all the work the Commission carried out, i… @Capacitylaw: Independent Review of the Mental Health Act to report on 6 December: watch this space (and also @simonburrows23: A case that is shocking for its everyday-business-as-usual-ness when imposing restrictions on married people’s cont… @INQUEST_ORG: Amy was a much loved 14 year old with complex needs. She died whilst an NHS funded patient in a children’s unit at…

3. Other websites

Bailii: COP cases

06/06/18: SR v A Local Authority & Anor [2018] EWCOP 36 (06 June 2018) Read more

Mental Capacity Law & Policy

06/12/18: Mental Health Review report published – headlines The independent Review of the Mental Health Act conducted by Sir Simon Wessely has today, 6 December, published its report, entitled Modernising the Mental Health … Read More › Read more04/12/18: Deprivation of liberty, restraint, and the CRPD: the view from the German Federal Constitutional Court In what is about to be a big week for the Mental Health Act 1983, with the publication of the independent review of the Act, … Read More ›Read more02/12/18: Taking capacity seriously: ten years of capacity disputes before the Court of Protection One of the first fruits of the Wellcome-funded Mental Health and Justice project has just been published in the International Journal of Law and Psychiatry. … Read More › Read more29/11/18: Current version of Mental Capacity (Amendment) Bill and Third Reading The Bill as amended at Report stage is here, and the last stage before it goes to the Commons, Third Reading, has been announced for … Read More › Read more28/11/18: Iron logic, coercion and odd outcomes: the Supreme Court decision in MM In Secretary of State for Justice v MM [2018] UKSC 60, the Supreme Court (Lord Hughes dissenting) has upheld the ruling of the Court of … Read More › Read more

The Masked AMHP

29/11/18: The Approved Mental Health Professional Workforce Briefing 📷 Read more

Mental Health Cop

02/12/18: Managing Hidden Risk Gaps I came across the story of Daniel Stip online which bears some deconstruction, complex as it is involving three offending incidents spread across two police force areas, but also involving his detention under the Mental Health Act 1983 in a third police force area. Initially, based on the opening lines of the first coverage I […] Read more01/12/18: A Collision of Coincidences Do you remember where you were on 23rd December 2016? Were you one of the other nine people with me, somewhere around 9pm at a house in the West Midlands, present at or dealing with a healthcare incident that had been reported to 999? Chances are you weren’t – this probably means you don’t have […] Read more

4. Liberty protection safeguards

The Mental Capacity (Amendment) Bill was introduced to the House of Lords on Tuesday 3 July and seeks to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLs).

DoLs is an assessment currently carried out on people who do not have the mental capacity to make their own decisions about their care, for example because they are living with dementia. It was criticised by a 2017 Law Commission review for being too complex and bureaucratic.

The government has now developed a new system, known as ‘Liberty Protection Safeguards’, which will become law through the bill.

The reforms seek to:

  • introduce a simpler process that involves families more and gives swifter access to assessments

  • be less burdensome on people, carers, families and local authorities

  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process

  • consider restrictions of people’s liberties as part of their overall care package

  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

The reforms will also save local authorities an estimated £200 million or more a year.

DoLs and the new system are both intended as a safeguard to ensure people are only deprived of their liberty when it is in their best interest, for example, to keep them safe.

An example of a deprivation of liberty would be the use of locks or key pads which stop a person from going out or into different areas of the building.

Minister for Care Caroline Dinenage said:

Treating people with respect and dignity, no matter their disability or condition, is the touchstone of a civilised society. I want to ensure that the system works for everyone and ensures that individuals’ fundamental rights are protected while reassuring families their loved ones are getting good care.

We know local authorities are under pressure which is why these reforms are so important: to reduce the burden on councils so they can focus their resources where they are needed on the frontline.

Law Commissioner Nicholas Paines QC said:

In our report we were clear that the Deprivation of Liberty Safeguards needed to be replaced as a matter of pressing urgency.

This new legislation, based broadly on our recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society.


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