In this webinar Ben Troke covered the recent cases in relation to the Mental Capacity Act and Deprivation of Liberty Safeguards. In particular covert medication, Deprivation of Liberty (DoL) in hospitals, parents' rights, DoL in the community and the new CHC framework.
View further information and resources on our website - https://www.brownejacobson.com/health
3. ā¢ withdrawal of CANH ā Windsor CCG v SP
(20 April 2018)
ā¢ covert medication ā AB (20 December
2016)
ā¢ testing for poison - Skripal (22 March
2018)
ā¢ DoL in Hospital ā Alfie Evans (16 April
2018)
this session
4. ā¢ community DoL ā Dorset CCG v LB (28
March 2018)
ā¢ commissioning responsibilities ā new CHC
Framework October 2018.
ā¢ reform ā government response and MHA
review interim report
ā¢ criminal conviction ā MCA s44
this session
5. @BJhealthlaw
have your say
ā¢ Windsor CCG v SP (20 April 2018)
ā¢ cardiac arrest aged 50 in October 2014
ā¢ consensus in PVS since then
ā¢ consensus not in best interests to
continue CANH
ā¢ must decision be made by the court?
withdrawal of CANH
6. ā¢ Re M (2017) ā Jackson J held family and
clinicians can decide without Court
approval
ā¢ Briggs (2017) Court of Appeal ā agree,
clinicians acting reasonably with family
agreement are covered by MCA s5
ā¢ Re Y (2017) ā no authority for every CANH
case needing Court approval ā but
Supreme Court appeal judgment
pendingā¦
case law in flux
7. āthe CCG has taken the precaution of
applying to the Court but invite the court to
deal with the application on the papers and
without a hearingā
Williams J
8. ā¢ Judge happy to do so ā saving time and
expense, and notes consensus on capacity
and best interests
ā¢ endorses proposed plan for withdrawal of
CANH and palliative care
Williams J
9. ā¢ Re AB (20 December 2016)
ā¢ 2000 - AB HIV positive and agrees to
treatment
ā¢ 2008 ā she became delusional due to
psychoaffective disorder
ā¢ active deception required, and approved
as being in her best interests
ā¢ weighing up of past and present wishes
covert medication
10. ā¢ Salisbury spy poisoning
ā¢ father and daughter in hospital and
unconscious ā not possible to get consent
for taking blood for testing by OPCW
ā¢ considered on the basis of best interests ā
ā a āresponsible citizenāsā interest in
administration of justice; and
ā a small chance of information relevant to
treatment
Skripal case
11. @BJhealthlaw
have your say
ā¢ Alfie Evans
ā¢ habeus corpus application ā alleging
unlawfully deprived of liberty and in
breach of Alfieās Article 5 rights
DoL in Hospital
12. @BJhealthlaw
have your say
ā¢ 16 April 2018
ā¢ family argued Alfie has a right to self-
discharge, to be exercised by family,
being prevented unlawfully
ā¢ āunder continuous supervision and
control and not free to leaveāā¦
Court of Appeal judgment
13. @BJhealthlaw
have your say
āin Ferreira the Court of Appeal decided
that a person is not being deprived of their
liberty where they are receiving treatment
and are physically restricted by their
physical infirmities and the treatment they
are receivingā
Court of Appeal ā Ferreira
14. @BJhealthlaw
have your say
ārestrictions resulting from the
administration of treatment, because they
are āwell known consequences of a personās
condition, when such treatment is requiredā
do not amount to a deprivation of libertyā
- Arden LJ
Court of Appeal ā Ferreira
15. ā¢ Alfie was not DoL
ā¢ āEven if there was a DoL, it would
clearly be lawful. Indeed the whole
purpose of the substantive proceedings
and the previous decisions by the court
were to determine whether the provision
of the proposed medical treatment at
Alder Hey would or would not be lawful.
ā¦ā (para 63)
Court of Appeal ā Evans decision
16. āpreventing them from removing Alfie from
hospital does not breach their rights.
Indeed it would breach Alfieās right to have
decisions made as to what treatment he
should receive by application of the test of
his best interestsā (para 67)
āThe application for habeus corpus is wholly
misconceived [and is] dismissedā
http://myadultstillmychild.co.uk/
parentsā rights
17. ā¢ Dorset CCG v LB (28 March 2018)
ā¢ proposed as 4 cases to test if DoL:
ā if someone meets the āacid testā but
ā is in their own home (whether cared for
by paid carers or family), and
ā the restrictions are necessary and
proportionate, and if so
ā whether responsibility for such a DoL rests
with the CCG due to CHC funding
DoL in the community
18. ā¢ test cases did not proceed, and the
Official Solicitor sought a costs Order
against the CCG
ā¢ rejected by Baker J
ā¢ āthe law concerning deprivation of
liberty under the MCA is in a state of
some uncertaintyā
DoL in the community
19. ā¢ āunderstandable that the CCG sought
guidance on the impact of the āacid
testā on Ps living at homeā given the
large numbers
ā¢ the CCG had behaved reasonably in
withdrawing the application - once it had
seen the OS submissions, and the Law
Commission report
DoL in the community
20. In effect October 2018; Paras 320-322.
āWhere the individual who lacks capacity is
in receipt of NHS Continuing Healthcare in
their own home, including tenancy based
accommodation (e.g.supported living), and
is subject to restrictions that may
constitute a deprivation of liberty, the
deprivation of liberty cannot be authorised
using DoLS process, instead authorisation
must be obtained from the Court of
Protectionā
New CHC Framework ā March 2018
21. āIn these circumstances, because the CCG is
the primary funding authority, it is
responsible for applying to the Court of
Protection for this authorisation and should
seek their own legal advice for this reason.
The CCG is responsible for its own
associated legal costs, but is not responsible
for the legal costs of the individual
concerned. However, the CCG should ensure
that the individual has access to legal
advice in their own rightā
New CHC Framework ā March 2018
22. ā¢ Government response 14 March 2018
ā¢ accepts wholesale the Law Commission
Liberty Protection Safeguards scheme ā
save
ā no reform for children under 16
ā Mental Health Act interface to await
separate review
ā¢ āpressing urgencyā recognised but
ā¢ ālegislation to implement the model
when parliamentary time allowsā ā¦
when, and how well funded?
Law Commission proposals
25. @BJhealthlaw
have your say
get in touchā¦
Please get in touch if you have any questions
or wish to discuss the topics weāve covered
furtherā¦
ben.troke@brownejacobson.com | 0115976 6263