Cases are coming out left, right and centre at the moment, and with other commitments, it is not possible to write about them in the detail that I would like. However, pending the next Mental Capacity Law Newsletter which my fellow editors and I will be producing for your delectation in a couple of weeks’ time, herewith a heads-up on some of the most important.
In Re CD  EWCOP 74, Mostyn J reiterated his conclusions in An NHS Trust v A  EWCOP 71 that it is quite possible for s.17 leave to be given to a general hospital for purposes of providing treatment in circumstances amounting to a deprivation of liberty without recourse being needed to the inherent jurisdiction – i.e. that, save where the treatment itself is serious medical treatment which requires the sanction of the court, it is possible for DOLS to be used to authorise the deprivation of liberty of the individual concerned. Mostyn J reiterated (quite correctly in my view) that the decision of A Local Health Board v AB  EWCOP 31 was wrong. Mostyn J also emphasised how important meeting CD had been to him in the determination of the case, noting, in particular, the difference between the impression given on the papers and the impression gained of her in real life. Aficionados of the debates between the judiciary as to Cheshire West will want to read paragraph 38 for Mostyn J’s most recent views.
In Winspear v City Hospitals Sunderland NHS Foundation Trust  EWHC 3250 (QB), Blake J made clear that the principles governing DNACPR decisions set out in Tracey apply just as much in respect of those who lack the material decision-making capacity, and emphasised the importance under s.4(7) MCA 2005 of involvement of those properly involved in the individual’s welfare. It is important to note that the decision only talks about the previous iteration of the Joint Statement on DNACPR notices; whether the judgment suggests that changes may be needed to the current Guidance is a matter which may need to be thought about further.
In In the Petition of Milton Keynes Council  CSOH 156, the Outer House of the Court of Session had cause to consider the question of the proper approach to the determination of ordinary residence in the case of an adult lacking the material decision-making capacity. It is very clear from the judgment, upholding the Scottish Government guidance, that there are now very divergent approaches in England and Wales on the one hand and that in Scotland on the other to this issue. In particular, it is vitally important for English practitioners to understand that the Scottish administrative (and, assuming this decision does not go further, judicial) authorities will look for evidence of a person with formal legal authority (e.g. attorney or deputy) having taken the decision that the individual should move before there will be an acceptance that their ordinary residence will have changed.
Finally, in Hadzimejlic & Ors v Bosnia and Herzegovina  ECHR 975, the Strasbourg court has again emphasised the importance of evidence of the necessity of continued detention in social care facilities on the basis of the exception provided for in Article 5(1)(e) ECHR.