39 Essex Chambers Mental Capacity Report end of term update

A combination of the pressure of our other commitments and a lack of major reported cases from the Court of Protection means that we will not have a formal Report before the end of the year.  A bumper issue will appear mid/late-January, but in the interim a few key developments do merit notice.

Widely reported in the news was the substantial settlement made in respect of a woman whose advance decision to refuse medical treatment had not been honoured (because it had been lost) for 22 months.  We will address this further in the next Report, but two points are worth mentioning: (1) we understand that the claim was, in fact, not a human rights claim, but a claim for negligence and assault; and (2) it was the woman’s GP who alerted the woman’s family and argued alongside them that it should be honoured.

The Supreme Court has yet to decide upon permission in the Y case (see pp. 9ff here) as to whether CANH can be withdrawn without the sanction of the court where the patient’s family and treating clinicians.   That permission has not been granted, despite the case being certified for “leapfrog” and expedition sought, is perhaps surprising given that CANH is being administered to Mr Y which is (arguably) an ongoing assault upon him if it is not in his best interests.

The General Medical Council, British Medical Association and Royal College of Physicians have issued interim guidance in response to recent legal developments (including the withdrawal of PD9E as of 1 December) in relation to the way decisions concerning the withdrawal of CANH are made from patients in a PVS or MCS following sudden onset profound brain injury.

Two consultations (one out and one imminent) merit your attention over the holiday period:

  1. We expect publication on or around 20 December of the draft NICE Guidance on Decision making and mental capacity for consultation.
  2. The DH’s draft guidance on reducing the need for restraint and restrictive intervention for children and young people with learning disabilities, autistic spectrum disorder and mental health needs, the consultation closing on 24 January 2018.

The Independent Mental Health Act Review is gathering pace:

  1. A call for evidence has been made, with a closing date of 22 January, looking in particular for evidence that makes the case that a particular aspect of the Act is in need of reform, especially evidence that is unlikely to show up in a review of academic journals. This could be reports by advocacy organisations, local service evaluations and internal data analysis.
  2. A call for applicants for roles on the Service User and Carer Group, and expressions of interest from organisations wanting to run service user / carer focus groups for the Review. Full details can be found here, with a closing date of 5 January.
  3. The Review will shortly be announcing the launch of a survey specifically asking for input from service users and carers in its first investigatory phase.

Finally, two publications for you:

  1. We have updated our guide to Judicial Authorisation of Deprivation of Liberty, to take account of changes in both substance and procedure (in particular the renumbering of rules and forms post 1 December);
  2. A discussion paper prepared by Alex (not binding on his fellow authors!) on ‘valid consent’ in the context of deprivation of liberty, designed to promote consideration of whether there is a (non-discriminatory) way to re-insert the concept of coercion into the definition.

Normal report service will resume mid/late-January, and we wish you all happy holidays in the meantime.

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