Mental Capacity Report: End of Term Report

Mental Capacity Report: End of Term Report


CategoryNews Author Victoria Butler-Cole QC, Simon Edwards, Neil Allen, Katharine Scott, Alexander Ruck Keene, Annabel Lee, Nicola Kohn, Katherine Barnes Date

Our commitments have been such recently that we do not have a full set of Reports for December, but instead an end of term Report with key developments.

In case-law terms:

  1. The Supreme Court has handed down decisions in MM and PJ, of key importance in relation to conditional discharge and CTOs respectively.  The Supreme Court refused permission to Mr Conway to challenge the decision of the Court of Appeal that the ban on assisted suicide under s.2(1) Suicide Act 1961 is compatible with the ECHR.  And we still await the decision of the Supreme Court in Re D to clarify what parents can (and cannot do) in relation to their 16/17 year old children;
  2. The decision of the Court of Appeal in Kurtz v R has placed yet another hurdle in the way of the effective prosecution of the offences of ill-treatment or wilful neglect under s.44 MCA, this time where the offence has allegedly been committed by the holder of a power of attorney.
  3. The decision of Foskett J in EXB v FDZ highlights a question that we suspect may well have been rumbling upon undetermined for some time – namely when it can be in the best interests of a person receiving compensation not to be told of the sum awarded them.
  4. The decision of HHJ Buckingham in SR v A Local Authority reinforces yet again how thin the legal ice is where public authorities take steps to restrict contact without seeking the authority of the court.   
  5. Further afield, the recently translated decision of the German Federal Constitutional Court in 2 BvR 309/15 includes interesting discussion of the distinction between restriction upon and deprivation of liberty, and also upon the status of General Comments of the Committee of the Rights of Persons with Disabilities.

Outside the courts:

  1. The Mental Capacity (Amendment) Bill has survived a so-called wrecking amendment advanced by Labour at its second reading in the House of Commons on 18 December.  The House of Commons library briefing paper contains a useful summary both of the Bill and of its progress prior to that stage, and the current version of the Bill can be found here.
  2. The independent Review of the Mental Health Act has reported; amongst its recommendations are both a hefty injection of MCA-style thinking into the MHA 1983 and a new approach to the interface between the MHA and the MCA.
  3. The British Medical Association and Royal College of Physicians have produced guidance (endorsed by the General Medical Council) on decisions in relation to clinically assisted nutrition and hydration for adults lacking capacity to consent.

Those who are after some light holiday reading might care at least to skim the article co-written by Alex on ten years’ worth of capacity disputes before the Court of Protection (which also includes a history both of capacity and an outline of the role of the Court which might be helpful for those seeking to get an overview).

We will return with a full (and we anticipate full to bursting) Report in February, which will include the summaries of the cases set out above (although they are already accessible by clicking on the relevant hyperlinks).

In the meantime, happy holidays, and if you need a fix of mental capacity resources, there is always our website.


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