Mental capacity and mental health

Our leading lawyers routinely represent and advise commissioners, service providers and health and social care professionals on individuals’ capacity to consent to care, treatment and accommodation, care planning as well as advance decisions and lasting powers of attorney (LPA).

The scope of this advice includes the withholding or withdrawal of life-sustaining treatment, disputes in relation to care and treatment where a patient lacks capacity, sedation and/or restraint to enable treatment or transfer, and applications to secure the best interests of children when parents may be refusing treatment.

In addition to the Court of Protection our lawyers regularly make applications in the inherent jurisdiction of the High Court and in the Family Court.

We also provide advice on procedures and training for staff on the principles of the MCA, patients’ rights, advance decisions, capacitated and “competent” refusals by young people and children, as well as the use of LPA documents, and decision making by those with parental responsibility. 

We advised NHS England on its guidance for mental health homicides, the Serious Incident Framework and on the disclosure and handling confidential patient and victim data in relation to homicide reports.  Our lawyers have a well-established reputation in this field having worked with the Department of Health on the original Mental Health Code of Practice under HSG (94) 27. 

Our team have been involved over the years in a great many mental health inquiries and investigations into the running and care of patients at NHS and private investigations including homicides and alleged sexual abuse.

We also act on behalf of NHS trusts in the coroner’s court, including representing in Article 2 inquests where mental health patients have died whilst in the care of the state.  We provide a comprehensive inquest service delivered by our own in-house advocacy team, ensuring that you have clarity of advice and consistency in support throughout the entirety of the process.

We provide a wide range of support to clients, including training on DoLS and the transition to the Liberty Protection Safeguards (LPS), a range of fixed-fee services for COPDOL11 applications, advice and representation in s.21A challenges to authorisations and placements under DoLS, as well as in relation to COP1 applications. We also offer support for witnesses (including the preparation of witness evidence and s.49 reports), training on the MCA, DoLS, LPS, court process, and the role of the Court of Protection and presenting evidence on commissioning, care and treatment decisions, and taking account of patients’ best interests.

We regularly represent service providers and commissioners in Judicial Review and Court of Protection proceedings where there is a dispute about packages of care, placements, the services available and decisions in relation to the services that will be commissioned and made available.  We regularly advise on client duties in relation to the rights under the Care Act, the MHA and section 117 after-care provisions, as well as the NHS commissioning framework to include duties to fund under CHC and joint packages of care.

Our experts have an unrivalled expertise in advising on the MHA as well as other sources of mental health law, including the Human Rights Act (HRA), MCA and DoLS. We regularly advise on a wide range of queries relating to the admission, detention and discharge criteria and provide ad hoc advice (available 24/7 through our dedicated helpline) on concerns on the legitimacy of a patients’ detention.

We also provide training for staff on the more complex issues that can arise where patients are moved off/on community treatment orders (CTOs) and transferred between teams, as well as in relation to the imposition of lawful conditions when patients are placed on CTOs or are conditionally discharged.

Whilst the majority of our work is done keeping clients safe from legal challenge, many of our cases on admission, treatment and discharge are not only contained in Jones’ Mental Health Act Manual but have also been adopted into the current Code of Practice.  We have an unrivalled track record in defending Judicial Review challenges to MHA policy and patient-centred decisions

We regularly advise MHA administrators, responsible clinicians and detaining authorities as well as commissioners in relation to reviews of detention and potential patient discharges.

We are the only law firm to have represented detaining authorities in public mental health tribunals and advised Broadmoor Hospital in the first reported mental health tribunal hearing held in public. Our advice led to the Tribunal guidance that video-link evidence from secure hospital premises to a public viewing room will generally be acceptable. We have also acted in a number of other high profile matters, securing the continued detention of patients and successfully handled the media.

We are experts in the MHA, the Code, the Reference Guide as well as the MCA and associated guidance.  We have an unparalleled track record in policy advice and advising on treatment decision making. Our expertise includes not only advice on how to comply with the Code of Practice but also how to safely depart from it.  Our advice to clients on seclusion and long terms seclusion now forms part of the Mental Health Act Code of Practice.

We regularly advise on policy development in relation to restraint (and deprivation of liberty) of patients outside the MHA, including powers under s. 5 of the MCA 2005, and common law powers

We regularly advise trusts on the handling of detained patients’ money, property and financial affairs. This includes liaising with the Office of the Public Guardian (OPG) and Deputies as well as advising on concerns about money held by family members. In relation to physical possessions and housing, we advise mental health providers on their response to complaints and claims in respect of handling patient property, such as policies to only allow a patient to have a set volume of possessions in the hospital, for reasons of space and security as well as dealing with “illicit” and “illegal” possessions.

We frequently advise on the physical health treatment for detained patients, including the use of the MCA, in addition to s.63 of the MHA, in order to ensure appropriate authorisations for detention or deprivation of liberty, as well as any sedation and or restraint that might be required to secure the patient’s best interests where appropriate.

We regularly advise hospitals, community teams and commissioners on the use on deprivation of liberty combination with s.17 MHA leave, community treatment orders (CTOs) and conditional discharges.