Pre-Christmas update – professional and personal

You will, I’m sure, have seen the December Mental Capacity Report which came out last week: if not, you can find it here, and sign up for future issues here.   Since it went to press, there have been the following developments:

1. The AH case returned from the Court of Appeal, and Theis J reached the same conclusion as had Hayden J – in the face of the ‘irreconcilable positions’ of AH’s family and those giving evidence as to the medical position – about whether life-sustaining treatment was in AH’s best interests.

2. The Department of Health and Social Care formally confirmed on 16 December that the Liberty Protection Safeguards will not be being implemented in April 2022.  For more details, and for a video about what to do in consequence, see here.

3. The Court of Appeal reaffirmed in clear terms that a decision of a capacitous 16 or 17 year old to refuse life-sustaining medical treatment cannot be determinative before the courts.  And at paragraph 24,  in an observation that will no doubt be addressed further in the January 2022 Mental Capacity Report, they noted (without reaching a concluded view about):

the assertion made to Mrs Justice Arbuthnot, and repeated to us on behalf of F, that the doctors could have transfused overnight if the medical need arose.  Doctors undoubtedly have a power, and may have a duty, to act in an emergency to save life or prevent serious harm where a patient lacks capacity or cannot express a view, for example because of unconsciousness.   However, we very much doubt that such a power exists in respect of treatment that has been foreseen and refused by a capacitous patient.  It is doubtful whether such circumstances can properly be described as an emergency.

4. The DHSC updated its visiting guidance for care homes in England, and CQC published a statement about supporting visiting over the festive season.

5. The National Mental Capacity Forum has announced it is to hold a webinar on 10 January 2022, chaired by Baroness Ilora Finlay, addressing ‘Care and the Protection of Liberty in the Face of Omicron.’   The event is hosted by the Autonomy Project at the University of Essex.   Participation is free but spaces are limited; advance registration required – please click here to register.    For once, you’ll be spared me talking, but I have recorded a video about how to apply the MCA in COVID-19.

In personal news, I am going to be on sabbatical for 2022.  This is in part to work on an academic project, in part to work on textbooks (including new editions of the Court of Protection Handbook and the Law Society/BMA Assessment of Mental Capacity practical guide, the latter of which had been paused pending updating of the MCA Code, but with which we are now proceeding in light of the announcement of the delay to the implementation of the LPS, and also a new work on the Liberty Protection Safeguards with Tim Spencer-Lane), in part to work on a book project sufficiently outside the normal day job to need proper headspace, but in part because, like Bilbo Baggins, and I suspect many of you, I ‘feel thin, sort of stretched, like butter scraped over too much bread.’

In practical terms, this means that I will not be updating my website as often, although I have updated the capacity and best interests fundamentals videos, both of which you can find here.   I will no doubt find it impossible to resist commenting on some things, and I will also be updating about the outputs from the Mental Health and Justice project as it reaches its concluding months (there are important things in the pipeline!).

A further practical implication is that, whilst posts on my website will appear on Twitter, I am otherwise not going to be looking it.  Sadly, Twitter recently (and with a notable exception) has for me been tipping too far away from being a useful source of information towards points-scoring and/or howling into the void for it to be a good thing in my life.   The exception which has very nearly (but not quite) made me change my mind is the huge number of very kind comments that people have made following the announcement that I’m to be appointed an Honorary QC.    I am genuinely thrilled, and as the award is in large part (in effect) for services to mental capacity law, I am taking it also as a further recognition by the grown-ups that this area of the law both exists and matters (I am following here in the amazing footsteps of Nicola Mackintosh QC (Hon) and Angela Jackman QC (Hon)).   Rest assured, I’ll continue those services, but in a different way for a while.

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