COVID-19 & RIDDOR for care providers

Edward Sainsbury and Peter James consider when and when not to report in relation to COVID-19 and RIDDOR. Read more
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  NEWS

Jun 25, 2020

County council in legal action against Health Secretary over ‘ordinary residence’ determination

Worcestershire County Council has started legal action against the Secretary of State for Health and Social Care in a dispute over which council should provide after-care services under the Mental Health Act 1983 to someone who has been detained on two occasions.
Jun 24, 2020

Councils told not to prioritise preparations for Liberty Protection Safeguards

The Government has told local authorities and other agencies not to give priority to the introduction of the Liberty Protection Safeguards (LPS) due to pressures from dealing with the consequences of the COVID-19 pandemic.
Jun 22, 2020

Just 4% of Directors of Adult Social Services confident they will have budget to meet statutory duties: research

Only 4% of Directors of Adult Social Services are fully confident that their budget will be sufficient to meet their statutory duties this year, down from 35% in 2019/20, the annual budget survey by ADASS has found.
Jun 17, 2020

Pandemic has led to human rights abuses of young people with autism or learning disabilities who have been detained: MPs

The coronavirus crisis has resulted in human rights abuses of young people who are autistic or have learning disabilities and have been detained, the Joint Committee on Human Rights has claimed.
Jun 15, 2020

Government amends MCA/DOLS guidance during COVID-19 to include section on right to appeal if those subject to emergency health powers and lacking capacity

The Department for Health and Social Care has added a new section to The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic: additional guidance on the right to appeal if someone is subject to emergency health powers and lacks the relevant mental capacity.
Jun 15, 2020

Council agrees to pay out £60k after Ombudsman report into failure to support autistic woman

A council has agreed to pay a woman with autism, severe anxiety disorder and associated mental health disorders £60,000 after it failed to provide her with support for more than five years.
Jun 08, 2020

High Court judge issues mandatory order requiring council to provide urgent night-time support for disabled brothers

A local authority acted unlawfully after it failed to provide night-time care and support to two adult brothers with severe physical and learning disabilities pending a full needs reassessment, a High Court judge has ruled.
Jun 04, 2020

Claimant calls off judicial review action after council offers concessions on use of Care Act 'easements'

Concessions by Derbyshire County Council have enabled it to avoid a threatened judicial review over use of the Care Act ‘easements’ introduced by the Coronavirus Act 2020.
Jun 04, 2020

Government facing legal action over policies on care homes during COVID-19 crisis

A daughter whose father died of suspected COVID-19 in a care home is to launch a legal action “to hold the government to account”.
Jun 02, 2020

Only two councils left using Care Act ‘easements’

Just two local authorities – Solihull Council and Derbyshire County Council – are continuing to use the Care Act ‘easements’ brought in during the coronavirus pandemic, according to the latest information from the Care Quality Commission.

  FEATURES AND ANALYSIS

June 19, 2020

Requests for care pending assessment

A recent judgment is extremely significant for local authorities considering requests to provide care pending assessments or reassessments of needs, writes Arianna Kelly.
June 12, 2020

Capacity and silos (again)

The Court of Protection team at 39 Essex Chambers consider a recent case that shows the difficulty in reconciling the decision and time-specific structure the MCA requires when assessing capacity with the approach outlined by the Court of Appeal.
June 11, 2020

The Court of Appeal, decision-making capacity and sex

An important ruling from the Court of Appeal raises the question: have we been getting it all wrong? Alex Ruck Keene analyses the judgment.
May 15, 2020

An introduction to the Court of Protection

Alex Ruck Keene explains the fundamentals of the Court of Protection, covering its distinctive features, function and when it should be involved in a dispute.
May 14, 2020

Deprivation of Liberty - getting it right

Alex Ruck Keene considers the fundamentals of deprivation of liberty and "how to get deprivation of liberty right".
May 11, 2020

Time to go home

A recent clarificatory ruling in the Court of Protection has provided a helpful précis of the law on derogation from the European Convention on Human Rights, says Alison Harvey.
May 07, 2020

Article 8 breaches and local authority statutory duties

A recent case provides an important discussion of the positive duties of the state under Article 8 ECHR – and specifically, the issue of when an Article 8 breach may arise in the absence of any failure of a local authority to carry out its statutory duties, writes Arianna Kelly.
May 07, 2020

Capacity and executive (dys)function

In a recent case a consultant forensic and clinical psychologist revised their initial view that a man on a Community Treatment Order had litigation capacity while lacking subject matter capacity. The Court of Protection team 39 Essex Chambers analyses the case.

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  MORE NEWS

Jun 25, 2020

County council in legal action against Health Secretary over ‘ordinary residence’ determination

Worcestershire County Council has started legal action against the Secretary of State for Health and Social Care in a dispute over which council should provide after-care services under the Mental Health Act 1983 to someone who has been detained on two occasions.
Jun 24, 2020

Councils told not to prioritise preparations for Liberty Protection Safeguards

The Government has told local authorities and other agencies not to give priority to the introduction of the Liberty Protection Safeguards (LPS) due to pressures from dealing with the consequences of the COVID-19 pandemic.
Jun 22, 2020

Just 4% of Directors of Adult Social Services confident they will have budget to meet statutory duties: research

Only 4% of Directors of Adult Social Services are fully confident that their budget will be sufficient to meet their statutory duties this year, down from 35% in 2019/20, the annual budget survey by ADASS has found.
Jun 17, 2020

Pandemic has led to human rights abuses of young people with autism or learning disabilities who have been detained: MPs

The coronavirus crisis has resulted in human rights abuses of young people who are autistic or have learning disabilities and have been detained, the Joint Committee on Human Rights has claimed.
Jun 15, 2020

Government amends MCA/DOLS guidance during COVID-19 to include section on right to appeal if those subject to emergency health powers and lacking capacity

The Department for Health and Social Care has added a new section to The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic: additional guidance on the right to appeal if someone is subject to emergency health powers and lacks the relevant mental capacity.
Jun 15, 2020

Council agrees to pay out £60k after Ombudsman report into failure to support autistic woman

A council has agreed to pay a woman with autism, severe anxiety disorder and associated mental health disorders £60,000 after it failed to provide her with support for more than five years.
Jun 08, 2020

High Court judge issues mandatory order requiring council to provide urgent night-time support for disabled brothers

A local authority acted unlawfully after it failed to provide night-time care and support to two adult brothers with severe physical and learning disabilities pending a full needs reassessment, a High Court judge has ruled.
Jun 04, 2020

Claimant calls off judicial review action after council offers concessions on use of Care Act 'easements'

Concessions by Derbyshire County Council have enabled it to avoid a threatened judicial review over use of the Care Act ‘easements’ introduced by the Coronavirus Act 2020.
Jun 04, 2020

Government facing legal action over policies on care homes during COVID-19 crisis

A daughter whose father died of suspected COVID-19 in a care home is to launch a legal action “to hold the government to account”.
Jun 02, 2020

Only two councils left using Care Act ‘easements’

Just two local authorities – Solihull Council and Derbyshire County Council – are continuing to use the Care Act ‘easements’ brought in during the coronavirus pandemic, according to the latest information from the Care Quality Commission.
May 26, 2020

Birmingham City Council latest to stop using Care Act ‘easements’

Birmingham City Council has become the latest local authority to stop using the Care Act ‘easements’ introduced by the Coronavirus Act 2020.
May 22, 2020

Older People's Commissioner calls for investigation into Welsh Government’s policy on testing in care homes

The Older People's Commissioner for Wales has suggested that older people’s rights may not have been protected during the COVID-19 pandemic and has called for an investigation into the Welsh Government’s handling of the crisis in care homes and other health and social care settings.
May 21, 2020

Campaigners in legal threat over "failure to collect data on deaths of those with learning disabilities and autism during COVID-19"

Disability campaigners have sent a letter before action to five public bodies over what they say has been a failure to mandate the collection and publication of data on the deaths of people with learning disabilities and autism during the coronavirus pandemic.
May 19, 2020

City council stops using Care Act ‘easements’

Sunderland City Council is no longer using the Care Act ‘easements’ introduced by the Coronavirus Act 2020, it has emerged.
May 15, 2020

Safeguards over deprivations of liberty are “indispensable” to frail and vulnerable, says senior judge, amid “striking and troubling” drop in number of s.21A applications

The view that careful adherence to proper legal process and appropriate authorisation of deprivations of liberty may now, at times, be required to give way to other pressing welfare priorities is “entirely misconceived”, the Vice President of the Court of Protection has warned.
May 06, 2020

Judge rules terminally ill woman could leave care home to live with family despite COVID-19 restrictions

A Court of Protection judge has ruled that a dying woman should be removed from a care home where Covid-19 could have been present to spend her final days with her family, despite pandemic restrictions.
May 04, 2020

Court of Protection has power to grant injunctive relief, judge rules

The Court of Protection has the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders, a judge has concluded.
May 04, 2020

County council threatened with legal challenge over decision to use Care Act ‘easements’

Derbyshire County Council is facing a potential legal challenge over its decision to use the Care Act easements under the Coronavirus Act 2020.
Apr 30, 2020

Eight councils have used Care Act ‘easements’ so far, says Department of Health & Social Care

Eight local authorities have so far notified the Department of Health & Social Care (DHSC) of their use of the Care Act ‘easements’ introduced by the Coronavirus Act 2020, it has been confirmed.
Apr 30, 2020

Woman with Down's Syndrome in claim against council over charges for care, saying she would be unable to pay for supported independent living

A 24-year-old woman who has Down’s Syndrome and learning difficulties is to challenge new charges for care imposed by Norfolk County Council.
Apr 14, 2020

Government changes how outdoor exercise guidance applies to people with specific health needs

The Government has changed its leaving home guidance to permit people with specific health needs to exercise outside more than once a day and to travel to do so where necessary, following the threat of a judicial review challenge.
Apr 08, 2020

Disabled man stuck in bedroom on eighth-floor flat for 20 months loses judicial review challenge

A man in his early sixties with a complex medical history and disabilities who spent almost 20 months without being able to leave his bedroom in an eighth-floor council flat has failed in a judicial review claim against a council for compensation and declaratory relief.
Apr 08, 2020

Court of Protection Bar Association issues guidance on remote hearings

The Court of Protection Bar Association has produced guidance on effective remote hearings.
Apr 03, 2020

High Court judge quashes refusal by council of disabled facilities grant

Councils cannot treat disabled facilities grant (DFG) applications from council tenants differently to those from others, the High Court has ruled.
Apr 01, 2020

NICE amends Covid-19 critical care guideline after judicial review threat

The National Institute for Health and Care Excellence (‘NICE’) has changed the COVID-19 guideline for clinical care after being threatened with a judicial review challenge.

  MORE FEATURES

May 04, 2020

DNACPR orders during coronavirus

Victoria Mortimer examines issues around care planning and the use of DNACPR orders in the current crisis.
May 01, 2020

Capacity under the microscope

The Court of Protection team at 39 Essex Chambers detail an important case concerning a woman with dementia and mild learning difficulty and her capacity to consent to sexual relations as well as contact with her husband in distinction from having contact with others.
April 24, 2020

The Mental Capacity Act and DoLS

Eleanor Sibley sets out key points from government guidance on the approach to the MCA and the Deprivation of Liberty Safeguards during the COVID-19 pandemic.
April 24, 2020

The Coronavirus Act 2020 – Adult social care and assessing needs

Stephen Knafler QC considers the Coronavirus Act 2020 and its far-reaching implications for adult social care.
April 22, 2020

Holding onto principles – the MCA 2005 and Covid-19

Neil Allen, Alex Ruck Keene and Rachel Sullivan discuss some legal dilemmas that have arisen in mental health law as a result of the COVID-19 crisis.
April 20, 2020

Health and Social Care Law and COVID-19

David Lock QC, Stephen Knafler QC and Leon Glenister discuss the effects of the coronavirus crisis on adult social care and explore the problems that arise in medical decision making when demand for respiratory services exceeds NHS capacity.
April 16, 2020

Care Act 2014 Easements in the Coronavirus Act 2020

Section 15 and Schedule 12 of the Coronavirus Act 2020 sets out significant amendments to a local authority's duties under the Care Act 2014. In this free-to-view, on-demand webinar, Cornerstone Barristers discuss the implications of the Coronavirus Act 2020 for local authorities.
April 14, 2020

Articles 3 and 8 in the time of coronavirus

Arianna Kelly looks at a new case with significant implications for local authorities using the Care Act ‘easements’.
April 08, 2020

Liberty, equality, the Court of Protection, and the coronavirus

Alison Harvey reports on an urgent Court of Protection hearing on whether it was in the best interests for an 84-year-old man to return home, given the total lockdown of his care home as a result of the coronavirus outbreak.
April 07, 2020

Care Act “easements” – meeting needs for care and support

Amid the current public health crisis, the Coronavirus Act 2020 has relaxed Care Act requirements for local authorities to assess or meet social care needs. Eleanor Sibley looks at these "easements".
April 01, 2020

Covid-19, social distancing and mental capacity

Victoria Butler-Cole QC, Sian Davies and Alex Ruck-Keene discuss the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19.
March 27, 2020

Coronavirus Act 2020 and social care

The Coronavirus Act 2020 means that disabled and vulnerable adults may be left with no entitlement or access to care, writes Jonathan Auburn.
March 27, 2020

Coronavirus emergency: local authority charges for care and support

Christine Cooper looks at the issues for local authorities around charging for care during the coronavirus outbreak.
March 27, 2020

Skype in the Court of Protection: The courts in the time of coronavirus

Nageena Khalique QC and Sophia Roper explain what it was like to take part in a trial concerning withdrawal of life sustaining treatment that was heard by Mr Justice Mostyn with five parties and at least 20 participants over Skype for Business.
March 19, 2020

COVID-19: suspension of Care Act obligations

The new Coronavirus Bill 2020 effectively suspends most local authority social care obligations. Jonathan Auburn reports.
March 19, 2020

Covid-19: Court of Protection guidance on visiting P and hearings

The Court of Protection has issued two important pieces of guidance in the last two days, writes Jonathan Auburn.
March 06, 2020

Property and Affairs Deputies: limits on authority, and managing conflicts of interest

The Court of Protection has handed down an important judgment, which every property and affairs deputy - including public authority deputies - should consider, writes Lee Parkhill.
February 28, 2020

Refusing food, (in)capacity and coming to court

A Court of Protection judge has made important observations about the need to distinguish between a reluctance to answer questions and an inability to do so, writes the CoP team at 39 Essex Chambers.
February 26, 2020

Home is where the hoard is

Chris Grose and Sharon McLoughlin provide some top tips for housing providers dealing with hoarding issues.
February 21, 2020

Finding the right balance with constrained resources

A recent decision is a useful reminder of the distinction between public law decisions and best interests decisions (the Court of Protection having jurisdiction over the former but not the latter) and the way in which, in practice, public law decisions may limit significantly the best interests decisions that can sensibly be made, writes the CoP team at 39 Essex Chambers.