Category

2012 cases

Case and summary Date added Categories
R (LV) v SSJ [2012] EWHC 3899 (Admin) — "This is a renewed application for permission to apply for judicial review challenging delay, it is said, on the part of the Secretary of State for Justice and the Parole Board in fixing a hearing of the Parole Board." 2019‑03‑23 16:07:39 2012 cases, Cases, Judgment available on MHLO, Judgment missing from Bailii, Prison law cases, Transcript


LBX v K, L and M [2012] EWHC 439 (Fam), [2012] MHLO 185 — "The central issue that I have to determine is whether it is in L’s best interests that he should remain in supported living accommodation or return home. He has been living in supported accommodation called the J placement, on a trial basis, since 24th August 2011. The LBX submit that L should remain in supported living accommodation; this is supported by the OS on behalf of L and by M. K contends that L should return to live with him as this accords with his wishes or his wishes are difficult to determine and all the stated benefits that are relied on to support the decision for L to live in supported living accommodation can be achieved by L living at home, with all the additional benefits that living within the family brings L." 2014‑11‑08 20:41:30 2012 cases, Missing from Bailii, No summary, Other capacity cases, Transcript


Re Davies [2012] MHLO 184 (LPA)The donor appointed four attorneys, A, B, C and D, to act jointly and severally, and imposed the following restriction: "The appointment of C and D shall not take effect unless I am mentally and/or physically incapable of managing my affairs and the appointment of C shall not take effect unless she has been in my employment within the period of one month preceding my loss of capacity to manage my affairs." This restriction was severed on the ground that the appointments of co-attorneys cannot be activated at different times. [OPG summary - LPA case.] 2014‑04‑29 20:59:05 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Oluku v CQC (2012) UKFTT 275, [2012] MHLO 183A carer at Dormers Wells Lodge secretly recorded ill-treatment, which led to the conviction of two staff (Sonika Limbu, 25, of Hayes, and Pashi Sahota, 57, of Southall) under MCA 2005 s44. The manager appealed against the CQC's cancellation of her registration as a manager, but the tribunal found that she was not fit to be registered as a manager. In relation to one allegation (although technically there was no breach as at the relevant time she was not yet registered), the tribunal noted: "the necessary paperwork was not present in the form of a Deprivation of Liberty for a number of service users, and in that respect the appellant did not have suitable arrangements in place to protect service users against the risk of such control or restraint being unlawful or otherwise excessive as required under regulation 11(2) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010/781, since proper assessment and recording was not being carried out." 2013‑12‑21 23:45:18 2012 cases, Brief summary, Miscellaneous, Transcript


Re AA [2012] EWHC 4378 (COP), [2012] MHLO 182 — Judgment of Mostyn J in 'Italian forced caesarian' case. [Summary required.] 2013‑12‑04 17:56:37 2012 cases, Best interests, No summary, Transcript


R (EH) v SSHD (2012) EWHC 2569, [2012] MHLO 181 — Immigration/mental health case. [Summary required; detailed external summary available.] 2013‑09‑07 20:31:27 2012 cases, Detailed summary, Repatriation cases, Transcript


An NHS Trust v L [2012] EWHC 4313 (Fam), [2012] MHLO 180 (COP) — "By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. ... I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust's application. ... Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L's death and not to prolong, in any meaningful way, his life. I repeat Dr Bell's powerful analysis - It would result in Mr L's death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit." [Summary required.] 2013‑08‑14 19:44:24 2012 cases, No summary, Other capacity cases, Transcript


Y County Council v ZZ [2012] EWHC B34 (COP), [2012] MHLO 179 (COP) — "This is an application made by Y County Council in the Court of Protection in relation to Mr ZZ, a man of young middle age. I am invited to make a number of declarations in relation to Mr ZZ. First, I am asked to find that he lacks litigation capacity on the issues in this case. Second, I am invited to declare that he lacks capacity to decide upon the restrictions relevant to supporting his residence and care. Finally, I am asked to declare that he is being deprived of his liberty, but that it is lawful as in his best interests pursuant to schedule A1 of the Mental Capacity Act 2005. Mr ZZ is represented by the Official Solicitor. He has been present throughout the hearing and has conducted himself with dignity throughout. Indeed, he gave unsworn, oral evidence before me in an entirely courteous and helpful way." [Summary required.] 2013‑06‑06 14:09:46 2012 cases, Deprivation of liberty, No summary, Transcript


R v Ahmed [2012] EWCA Crim 99, [2012] MHLO 178(1) The appellant sought a s37/41 restricted hospital order in place of an IPP sentence. (2) The Responsible Clinician argued for a s45A hybrid order, for reasons summarised by the court as follows: 'The appellant is an illegal immigrant. In order to be discharged from hospital he would have to undergo a period of controlled supervision. This would be in appropriate accommodation. Dr Swinton tells us that this is not an option open to an illegal immigrant like the appellant. Thus he cannot be discharged into the community because he cannot undertake the necessary conditioning which would satisfy the hospital that he was safe to be left in the community on his own. As a consequence he has to remain in hospital and he will take up a bed, apparently permanently. This is damaging to the wider public interest. If a section 45A order were made, then although the appellant would receive precisely the same treatment under a section 47 transfer as he currently does, a discharge can be effected by sending the appellant back to prison where the relevant supervision can be provided.' (3) The Court of Appeal admitted fresh evidence and, considering the appellant to be an ill man needing treatment rather than a criminal needing punishment, imposed a restricted hospital order. 2013‑03‑28 12:46:19 2012 cases, Brief summary, Sentence appeal cases, Transcript


R (Chatting) v Viridian Housing [2012] EWHC 3595 (Admin), [2012] MHLO 177 — "This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. ... On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting's best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg's claim and also sought a ruling on two further issues of interpretation of the compromise agreement." [Summary required; detailed external summary available.] 2013‑03‑28 12:07:30 2012 cases, Community care, No summary, Other capacity cases, Transcript


A County Council v E [2012] EWHC 4161 (COP), [2012] MHLO 176 — "This case involves the personal welfare of two young women, E and K. E is 26 years old and K is 24. Both have a diagnosis of Fragile X syndrome and associated learning disabilities, as confirmed by a consultant psychiatrist in a report of 7 August 2010. E is selectively mute. K also has a diagnosis of Attention Deficit Hyperactivity Disorder ('ADHD')." [Summary required.] 2013‑03‑28 08:09:28 2012 cases, Best interests, No summary, Transcript


HT v CK [2012] EWHC 4160 (COP), [2012] MHLO 175 — "This decision deals with residence, contact and financial arrangements for CK ('C' or 'Ms K'). In particular, the court must decide whether it is in her best interests to remain where she is living and the appropriate contact arrangements" [Summary required.] 2013‑03‑28 08:04:48 2012 cases, Best interests, No summary, Transcript


PB v RB [2012] EWHC 4159 (COP), [2012] MHLO 174 — "This decision deals with a fact-finding hearing held on 10-12 September 2012. ... The local authority sought to prove 13 alleged facts ... " [Summary required.] 2013‑03‑28 08:02:10 2012 cases, No summary, Other capacity cases, Transcript


Re RGS [2012] EWHC 4162 (COP), [2012] MHLO 173 — "RGS is the person concerned in these proceedings ('P'). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure." [Summary required.] 2013‑03‑28 07:54:58 2012 cases, No summary, Other capacity cases, Transcript


JP v South London and Maudsley NHS Foundation Trust [2012] UKUT 486 (AAC), [2012] MHLO 172 — "The grounds of appeal related to the Tribunal’s finding that he suffered from a mental disorder; the insufficiency of the Tribunal’s reasons for their decision that the appellant was to continue to be detained under section 2, and to his view that there had been a breach of his right to a fair hearing under Article 6 of the European Convention on Human Rights. He made seven specific submissions on this which I shall address hereafter. At the hearing the appellant also raised a breach of Article 9 of the Convention – his right to freedom of thought, and submitted that the Mental Health Act 1983 was flawed." [Summary required.] 2013‑03‑27 23:31:48 2012 cases, No summary, Transcript, Upper Tribunal decisions


MA v SSH [2012] UKUT 474 (AAC), [2012] MHLO 171The inability of a nearest relative of a patient detained under s2 (in contrast to s3) to apply to the tribunal following the RC's barring of his order for the patient's discharge did not breach Article 5, 6, 8 or 12. 2013‑03‑27 23:19:58 2012 cases, Brief summary, Transcript, Upper Tribunal decisions


R v Smith (Mark John) [2012] EWCA Crim 2566, [2012] MHLO 170 — "This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act." [Summary required; detailed external summary available.] 2013‑03‑26 23:36:24 2012 cases, Detailed summary, ICLR summary, Sentence appeal cases, Transcript


Durham County Council v Dunn [2012] EWCA Civ 1654, [2012] MHLO 169 — "On 17 December 2007, the claimant's solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s. The letter included a request for the disclosure of certain documents. Some documents were disclosed in redacted form. On 25 March 2011, the claimant issued these proceedings. This appeal is concerned with the ambit of the Council's duty of disclosure. ... In particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR)." [Summary required; detailed external summary available.] 2013‑03‑26 21:42:52 2012 cases, Miscellaneous, No summary, Transcript


WCC v AB [2012] MHLO 168 (COP) — Whether AB's aunt should be appointed as litigation friend. [Summary required; detailed external summary available.] 2013‑03‑26 21:08:16 2012 cases, No summary, Other capacity cases, Transcript


R v Nightingale [2012] EWCA Crim 2734, [2012] MHLO 167The appellant, having pleaded guilty to possession of (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm, had been sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. On appeal against sentence, as 'these offences were committed in exceptional circumstances by an exemplary soldier', this was reduced to 12 months, suspended for 12 months. 2013‑03‑26 19:02:57 2012 cases, Brief summary, Sentence appeal cases, Transcript


A Local Authority v AK [2012] EWHC B29 (COP), [2012] MHLO 166 — "This is an application by a Local Authority for the determination of an issue as to whether a severely brain damaged man ('AK') had the capacity to enter into a marriage in November 2010." [Summary required; detailed external summary available.] 2013‑03‑26 17:24:39 2012 cases, Capacity to consent to sexual relations, No summary, Transcript


DO v LBH [2012] EWHC 4044 (Admin), [2012] MHLO 165 — "I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings." [Summary required.] 2013‑03‑25 23:05:31 2012 cases, Missing from Bailii, No summary, Other capacity cases, Transcript


R (S) v Mental Health Tribunal [2012] MHLO 164 (UT) — S unsuccessfully challenged by judicial review (a) the decision of the FTT setting aside its own decision that she be discharged and (b) her continued detention by the hospital. [Summary required.] 2013‑02‑08 17:45:42 2012 cases, No summary, Transcript, Upper Tribunal decisions


AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163AC appealed against the tribunal's rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan's independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal's criticisms of Dr Kahtan's evidence on the link between the index offences and AC's mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the tribunal's statutory function is limited to considering discharge from the scope of the Act; (b) it is true that the tribunal should take into account the practical reality, as in a case where release into the community is impossible and prison is the only alternative (Abu-Rideh), but this reasoning does not apply to a case such as AC's because it is unknown whether the Parole Board will release or what conditions it might impose. 2013‑01‑23 23:41:23 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


R (Cornwall Council) v SSH [2012] EWHC 3739 (Admin), [2012] MHLO 162PH was a young man born with significant learning and physical disabilities. The Secretary of State decided that when he turned 18 he was ordinarily resident under the NAA 1948 in Cornwall, where his parents lived, despite his physical presence elsewhere. The court held that the Secretary of State had lawfully applied the test in Vale relevant to a person who is so severely handicapped as to be totally dependent upon a parent or guardian (termed 'test 1' in the guidance), which states that such a person is in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base. 2013‑01‑10 20:46:23 2012 cases, Brief summary, Community care, Transcript


R v Fletcher [2012] EWCA Crim 2777, [2012] MHLO 161IPP sentence quashed and a restricted hospital order substituted in its place: the judge had not properly been informed as to the appellant's mental state, because the original reports focussed on mental illness (which the appellant did not suffer from) rather than learning disability (which he did). 2013‑01‑07 16:47:26 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


Selwood v Durham CC [2012] EWCA Civ 979, [2012] MHLO 160 — "This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it is reasonably arguable that such a duty was owed in the circumstances of the case. The claimant had also pleaded that there had been a breach by the second and third defendants of her right under article 2 of the European Convention of Human Rights. The judge also struck out those claims and that issue is raised in this appeal." Appeal allowed and all issues sent for trial. [Detailed summary available.] 2012‑12‑23 01:29:27 2012 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


Re L; The NHS Trust v L [2012] EWHC 2741 (COP), [2012] MHLO 159The Trust sought a declaration that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared (to paraphrase) that: (1) L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, specifically, (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes. (2) L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores. (3) In L's best interests, the clinicians were permitted: (a) to provide nutrition and hydration and medical treatment where L complies; (b) to administer dextrose solution to L despite her objections where immediately necessary to save life; (c) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L's co-operation having been taken); (d) to provide palliative care in the terminal stage of L's illness. 2012‑12‑23 00:30:19 2012 cases, Best interests, Brief summary, Missing from Bailii, Transcript


A Local Health Board v J [2012] MHLO 158 (COP)(1) The court made the following declaration and orders as sought by the Health Board: (a) J lacked capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of ANH and other life-sustaining treatment; (b) J was in a permanent vegetative state and had no prospect of recovery; (c) there were no further investigations/treatment which should be undertaken; (d) it was in J's best interests for ANH to be withheld; (e) ANH might be withdrawn lawfully by the applicant, or responsible attending medical practitioners or nursing staff; and (f) it was in her best interests to receive such treatment and nursing care as was appropriate to ensure that she retained the greatest dignity until her life came to an end. (2) In relation to the second declaration, the court considered evidence that J had said 'die' several times, and concluded that this had been (misinterpreted) 'vocalisation' (a moan or groan often repeated, and often seen in PVS) rather than 'verbalisation' (which would be consistent with a minimally-conscious state). [Summary based on All ER (D) report of ex tempore judgment.] 2012‑12‑21 01:53:08 2012 cases, Best interests, Brief summary, No transcript


R v Channer [2012] EWCA Crim 1667, [2012] MHLO 157IPP sentence with minimum term of 23 months quashed and restricted hospital order substituted in its place. 2012‑12‑21 01:00:13 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


R v Searles [2012] EWCA Crim 2685, [2012] MHLO 156Custodial sentence of two years' detention in a young offender institution quashed and unrestricted hospital order substituted in its place. 2012‑12‑21 00:44:16 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


R v Searles [2012] EWCA Crim 1839, [2012] MHLO 155Criminal appeal adjourned for second medical report in relation to the making of a hospital order. 2012‑12‑21 00:40:54 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


RAR v GGC [2012] EWHC 2338 (QB), [2012] MHLO 154(1) In relation to limitation the court held as follows: 'I am satisfied that it would be fair and just to invoke the discretion afforded to the court by section 33 of the 1980 Act and permit this trial to proceed. I do so for the following reasons: (i) Having read the lengthy report of Dr Roychowdhury, it is clear that as a result of the abuse perpetrated upon her, the mental health of the claimant has been adversely affected. It has fluctuated over the years, at its worst, it has entailed compulsory hospitalisation. I find that the mental health of the claimant played a real part in the delay which has occurred in the bringing of the civil claim. I accept that the nature of the matters to be explored in this case are of themselves a deterrent for a person in the position of the claimant in bringing such a claim. (ii) In 1977/1978 the defendant had cause to consider allegations of sexual assault upon the claimant by reason of the criminal proceedings. That he did so, and that his memory remains to this day, is evidenced by the detailed witness statement which the defendant has filed in these proceedings. (iii) This case depends upon the evidence of two people, the claimant and the defendant. Although the claimant will find it distressing to give evidence, the detail contained in her witness statement demonstrates that she is able to remember and articulate her memories, however unpleasant. There is nothing in the witness statement of the defendant which demonstrates any difficulty on his part remembering the detail of relevant periods. The evidence of both parties remains sufficiently cogent to enable a fair trial to take place. (2) The other issues considered were: (ii) What was the nature and extent of the alleged assaults perpetrated by the defendant upon the claimant? (iii) What is the nature and extent of any resultant personal injury and loss? (iv) What is the appropriate level of damages? 2012‑12‑21 00:28:59 2012 cases, Brief summary, Miscellaneous, Transcript


R (D) v SSHD [2012] EWHC 2501 (Admin), [2012] MHLO 153Immigration case with mental health background. (1) D was entitled to damages for unlawful detention for breach of paragraph 55.10 of the Enforcement Instructions and s149 Equality Act 2010, or alternatively for breach of the Hardial Singh principles. (2) Nominal damages for the period during which, had regard been paid to the relevant matters, he would still have been detained. (3) Breaches of Article 3 and 8. 2012‑12‑21 00:15:59 2012 cases, Brief summary, Repatriation cases, Transcript


Southend-on-Sea BC v Armour [2012] EWHC 3361 (QB), [2012] MHLO 152The recorder's decision to refuse to grant a possession order (on the basis that by the time of the delayed hearing possession was no longer appropriate because there had been full compliance with the terms of the tenancy for the 12 months prior to the hearing) was upheld on appeal. 2012‑12‑20 23:49:50 2012 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript


Southend-on-Sea BC v AR (2012) EW Misc 25 (CC), [2012] MHLO 151The claimant local authority sought possession of an introductory tenancy on the basis of the defendant's antisocial behaviour. (1) The procedure was followed properly so there was no defence to the claim under the Housing Act 1996. (2) The original decision to seek possession was a necessary and proportionate interference with the defendant's Article 8 rights: in particular, the diagnosis of Aspergers and depression (which led to lack of litigation capacity and appointment of a litigation friend) did not explain the defendant's conduct and was properly considered by the claimant. (3) However, there had been full compliance with the terms of the tenancy for the 12 months prior to the delayed final hearing, so possession was no longer proportionate. (4) No order for costs (despite the claimant seeking costs). 2012‑12‑20 23:42:45 2012 cases, Brief summary, Miscellaneous, Transcript


NHS Trust v K [2012] EWHC 2922 (COP), [2012] MHLO 150The Trust proposed to carry out surgery on K which could potentially cure her of cancer but which itself (given her co-morbidities including her 20-stone weight) raised a considerable risk of death. (1) K lacked capacity due to her chronic mental illness, and in particular her delusional belief that she did not have cancer, to make informed decisions about major medical treatment. (2) Orders were made that certain specified treatment would be lawful, subject to powers of veto given to specified people. 2012‑12‑20 23:33:31 2012 cases, Best interests, Brief summary, Transcript


R (O) v SSHD [2012] EWHC 2899 (Admin), [2012] MHLO 149 — Another immigration case with mental health background. [Summary required.] 2012‑12‑20 23:26:25 2012 cases, Missing from Bailii, No summary, Repatriation cases, Transcript


AG's reference (no 3 of 1998) [1999] EWCA Crim 835 — "The Court of Appeal is asked to give its opinion on the following point of law: What has to be proved when an inquiry is embarked upon under the Trial of Lunatics Act 1883, to determine whether the Defendant 'did the act or made the omission charged'?" [Summary required.] 2012‑12‑20 22:47:18 2012 cases, No summary, Transcript, Unfitness and insanity cases


R (BA) v LB Hillingdon [2012] EWHC 3050 (Admin), [2012] MHLO 148 — "This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 against both defendants and/or section 21 of the National Assistance Act 1948 against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990." [Summary required.] 2012‑12‑20 21:57:39 2012 cases, After-care, Missing from Bailii, No summary, Transcript


Avon and Wiltshire MH Partnership NHS Trust and Wiltshire Council 09 005 439 [2012] MHLO 147 (LGO) — "Citing section 117 of the Mental Health Act, which makes provision for patients who have been compulsorily detained under the Act to receive free aftercare, Miss M complained it was wrong for Mrs M to have funded her own care during the five years she spent as a resident of the care home. The Ombudsmen did not uphold any of Miss M’s complaints. Although they found there was no doubt Mrs M had had a severe and enduring mental illness over many years, they could not conclude that her period of residence in a care home, in the last years of her life, was linked to aftercare arising from compulsory detention in hospital some 15 years earlier. Because Mrs M’s general deterioration could not be definitely attributed to her mental health problems, the Ombudsmen could not therefore conclude that the care home’s fees should have been met from public funds. They also found that, despite some procedural failings, Mrs M did not fail to receive the medical or social care services that she needed from the trust or the council." [Summary required.] 2012‑12‑20 21:47:19 2012 cases, LGO decisions, No summary, Transcript


R (Tracey) v Cambridge University Hospital NHS Foundation [2012] EWHC 3670 (Admin), [2012] MHLO 146 — "This is a claim for judicial review and a claim pursuant to section 7 Human Rights Act 1998 in respect of: (i) the failure by the first defendant to treat the claimant's late wife, Janet Tracey lawfully; (ii) the failure by the first defendant to treat Janet Tracey in a manner that respected her rights under Articles 2, 3 and 8 ECHR, and in a manner that respected the claimant's rights under Article 8 ECHR; and (iii) the failure by the first defendant to have in place and to operate lawfully an appropriate policy on the use of Do Not Attempt Cardio-Pulmonary Resuscitation orders; (iv) the failure by the second defendant effectively to promulgate any clear policy or guidance on the use of DNACPRs, which is accessible to patients and their families, and which properly informs them of their rights and legitimate expectations in respect of the use of DNACPRs by hospitals such as that operated by the first defendant." [Summary required.] 2012‑12‑20 21:28:44 2012 cases, Miscellaneous, No summary, Transcript


Re Ian Brady [2012] MHLO 145 (FTT)The tribunal's decision is as follows: "The hearing in public of the application by Mr Ian Brady has been re-listed for Monday 17/6/13. The arrangements for the hearing will be the same as those made for the hearing which had to be adjourned last July namely that the Tribunal will hear the case at Ashworth Hospital and it will be relayed to the Civil Justice Centre Manchester for members of the public and press to watch the proceedings. The precise details of those arrangements will be published as soon as possible." 2012‑12‑20 02:04:25 2012 cases, Detailed summary, First-tier Tribunal decisions, Publicity, Transcript


Re CP; WBC v CP [2012] EWHC 1944 (COP), [2012] MHLO 144LPM, the brother of CP (called C in the 'blue room' judgment) sought a costs order against the local authority. (1) The court should follow the general rule in welfare cases (that there be no order as to costs: rule 157) where it is appropriate, and it is only local authorities who have broken the law, or who are guilty of misconduct (that falls within rule 159) that have reason to fear a costs order (G v E). (2) The questions to be addressed are (a) is the departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the Applicant as a public body?; and (b) if so, what order should be made? (Neary). (3) The judge concluded that (a) the local authority's actions were tainted with illegality, (b) the local authority's decision making was impoverished and disorganised, (c) the local authority was responsible for the delay in referring CP's circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictions, and (d) the local authority could have arrived at the position concluded by the court many months earlier. (4) The local authority was ordered to pay LPM's costs to be assessed if not agreed. 2012‑12‑20 01:49:08 2012 cases, Brief summary, COP costs cases, Transcript


SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC), [2012] MHLO 143The appellant was subject to a CTO. When he attended for his depot injection, he said that he did not consent to it but nonetheless he submitted to receive it without resistance. He argued that his lack of consent meant that the 'appropriate medical treatment is available for him' test was not met, but the tribunal did not discharge. The UT held that the issue of consent is outside the jurisdiction of the tribunal: (a) the tribunal can only consider the statutory criteria (consent does not arise until the decision to treat has been made, whereas appropriateness and availability are issues that arise prior to that decision); (b) it is the courts which provide judicial oversight of treatment under the Act. 2012‑12‑20 01:24:24 2012 cases, Brief summary, Transcript, Upper Tribunal decisions


Re KH (A child); An NHS Trust v Mr and Mrs H [2012] EWHC B18 (Fam), [2012] MHLO 142 — "This is an application by an NHS Trust for declarations in relation to the best interests of a boy known in the proceedings as KH. The Trust seeks approval of a medical treatment plan which comes before the court because there are some matters that are not agreed and because the treatment plan involves the withholding of life-sustaining treatment in the event of a serious deterioration in KH's condition." [Summary required.] 2012‑12‑20 00:15:32 2012 cases, Best interests, No summary, Transcript


R v Jenkin [2012] EWCA Crim 2557, [2012] MHLO 141Having pleaded guilty to GBH with intent (for gouging his girlfriend's eyes out), the appellant was sentenced to life imprisonment with a six-year minimum term, combined with a hospital direction and limitation direction under s45A MHA 1983. He appealed against sentence, arguing for a restricted hospital order or alternatively an IPP sentence. (1) A hospital order means that 'release is dependent on the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition': this would be inadequate as, irrespective of his delusional disorder, the appellant posed a significant risk of serious harm to the public. (2) A life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave (R v Kehoe): both those limbs were met in this case. (3) The s45A hybrid order was appropriate as the criteria were met and the disorder was treatable, but when treatment is no longer necessary the risk to the public required that he be released from hospital to prison and for the Parole Board to make the release decision. 2012‑12‑20 00:00:12 2012 cases, Brief summary, Hybrid order cases, Missing from Bailii, Transcript


G v DPP [2012] EWHC 3174 (Admin), [2012] MHLO 140At the Youth Court it had been argued that the case should be stayed since it would be an abuse of the court's process to proceed to an adjudication when the appellant was unfit to plead, to participate in his trial and to instruct his defence. Having heard medical evidence from both sides, the District Judge declined to stay the proceedings, arranged for the appointment of an intermediary and accepted the intermediary's advice as to the way in which the appellant should be assisted during the course of the hearing; he found the charge proved. This was an appeal by way of case stated in relation to the appellant's conviction at the Youth Court. (1) The High Court set out the rules for appeals and commented that the way in which the appeal had been prepared is was lamentable. (2) The District Judge had correctly followed the guidance (from DPP v P) for proceedings in the Youth Court in which capacity is relevant. (3) The defence expert confused the propriety of a prosecution with the ability to understand the nature of proceedings and communicate instructions and the District Judge was entitled to disagree with her. 2012‑12‑19 23:22:42 2012 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Transcript


LN v Surrey NHS Primary Care Trust [2011] UKUT 76 (AAC) — "This is an interlocutory appeal against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber), whereby the First-tier Tribunal declined to exclude evidence. ... the issue for the First-tier Tribunal is not whether evidence is admissible, i.e., whether it can be admitted, but is whether it should be admitted. Relevance is a key consideration. Irrelevant evidence should not be admitted. However, relevance is not the only consideration. The First-tier Tribunal is also entitled to consider the weight of evidence when deciding whether to admit it. ... It is wholly inconsistent for the primary care trust to say that it is confining its case to ten specific incidents and for it then to adduce evidence of complaints or other allegations relating to other incidents in order to show that those ten specific incidents are not isolated. ... In my judgment, the First-tier Tribunal erred in not considering whether any specific evidence should be excluded or redacted at the beginning of the hearing or whether there needed to be a clearer ruling as to the potential relevance of the evidence. It erred in law because it failed to rule that there was an inconsistency in the way the Respondent presented its case and it failed to require the Respondent to give the Appellant adequate notice of the inference it wished the First-tier Tribunal to draw from evidence of uninvestigated complaints and allegations that was not being admitted to prove the contents of the complaints and allegations." [Not an MHT case. Summary required.] 2012‑12‑19 21:48:22 2012 cases, No summary, Transcript, Upper Tribunal decisions


AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. 2012‑12‑19 21:29:38 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


An NHS Trust v DJ [2012] EWHC 3524 (COP), [2012] MHLO 138 — "As a result of his illness, DJ does not have the capacity to make decisions about his medical treatment. The trust has brought the proceedings because there is longstanding disagreement between the family and the doctors about what treatment should be given. This requires the court to make an assessment of DJ's best interests within the framework of the Mental Capacity Act 2005. If that assessment supports the view taken by the doctors, a declaration may be granted endorsing the lawfulness of their approach." [Summary required.] 2012‑12‑19 21:16:48 2012 cases, Best interests, No summary, Transcript


J Council v GU [2012] EWHC 3531 (COP), [2012] MHLO 137 — "Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts." [Detailed summary available.] 2012‑12‑19 19:08:41 2012 cases, Detailed summary, Other capacity cases, Transcript


Dordevic v Croatia 41526/10 [2012] ECHR 1640, [2012] MHLO 136 — Harassment led to breaches of Article 3 and 8. [Detailed summary available via external link.] 2012‑12‑19 18:57:56 2012 cases, ECHR, Miscellaneous, No summary, Transcript


AG's reference (no 60 of 2012) sub nom R v Edwards [2012] EWCA Crim 2746, [2012] MHLO 135 — "This is a case which presented to the judge an intractable but by no means unknown sentencing problem. ... The intractable difficulty presented by this defendant and by, sadly, a number of others is this: he has a variety of personality disorders, but the doctors all report that there is no medical treatment available." [Summary required.] 2012‑12‑19 18:49:07 2012 cases, Missing from Bailii, No summary, Sentence appeal cases, Transcript


R v Ligaya Nursing [2012] EWCA Crim 2521, [2012] MHLO 134 — "This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005." [Detailed summary available.] 2012‑12‑19 18:31:23 2012 cases, Criminal law capacity cases, Detailed summary, ICLR summary, Transcript


RM v Scottish Ministers [2012] UKSC 58, [2012] MHLO 133 — "This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions "shall come into force" on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. ... These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security." [Detailed summary available.] 2012‑12‑19 18:23:04 2012 cases, Detailed summary, ICLR summary, Miscellaneous, Scottish cases, Transcript


JO (qualified person - hospital order - effect) Slovakia [2012] UKUT 237 (IAC), [2012] MHLO 132The respondent had been charged with attempted murder, found not guilty by reason of insanity, and made subject to a restricted hospital order. The Secretary of State made a deportation order under the Immigration (European Economic Area) Regulations 2006. Under those regulations, (a) a 'qualified person' (jobseeker or worker) is entitled to reside in the UK while he remains a qualified person, (b) after five years of such residence he is entitled to reside in the UK permanently, (c) a worker or self-employed person's periods of inactivity due to illness or accident are treated as if they were periods of activity. (1) The term 'illness' should not be given a narrow or restricted meaning, either in terms of the type of illness (to exclude mental illness) or the period of incapacity (to exclude long-term illnesses). (2) Although a prison sentence does not count towards the qualifying period for permanent residence, time spent subject to a hospital order does: 'The distinction is that a prison sentence follows the choice of an individual to act in a criminal manner, whereas a Hospital Order results from a finding that the individual suffers from a mental disorder and is not therefore criminally responsible for their otherwise culpable behaviour.' [This distinction is fallacious, as it is mental state at sentencing that is relevant and most hospital orders follow a criminal conviction.] (3) The Secretary of State's challenges in relation to the respondent's 'integration' and work history were rejected as (respectively) integration was not relevant because the respondent fell within the regulations, and the FTT were entitled to reach the view it did as to work history. 2012‑12‑19 00:07:58 2012 cases, Brief summary, Repatriation cases, Transcript


Calvert v Clydesdale Bank Plc [2012] EWCA Civ 962, [2012] MHLO 131There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor's lack of capacity. 2012‑12‑18 23:30:21 2012 cases, Brief summary, Other capacity cases, Transcript


Re Johnston [2012] MHLO 130 (EPA)The donor appointed two attorneys to act jointly and severally. The donor included the following restriction: "The property at [address] shall not be disposed of without the agreement of A, B and C, as children of [the donor] in addition to the attorneys." On the attorneys' application the restriction was severed as being ineffective as part of an EPA. [OPG summary - EPA case.] 2012‑12‑18 22:17:46 2012 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript


Re Edmonds [2012] MHLO 129 (LPA)The donor appointed a sole attorney and then two replacements, the latter to act jointly for some decisions and jointly and severally for others. She then directed as follows: "I would like my replacement attorneys to act jointly as much as possible and always where any transaction is valued at more than £5,000." On the application of the Public Guardian the words "as much as possible and always" were severed on the ground that they were uncertain and incompatible with the appointment type. [OPG summary - LPA case.] 2012‑12‑18 20:38:28 2012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript


X v Finland 34806/04 [2012] ECHR 1371, [2012] MHLO 128 — "The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication." [Detailed summary available via external link.] 2012‑12‑18 20:25:10 2012 cases, Detailed summary, ECHR, Other capacity cases, Transcript


R v Tudor [2012] EWCA Crim 1507, [2012] MHLO 127Following receipt of a psychiatric report which did not recommend a hospital order, the trial judge was entitled to impose an IPP sentence without adjourning for a second psychiatrist's report. 2012‑12‑17 01:15:24 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


R (Lamari) v SSHD [2012] EWHC 1630 (Admin), [2012] MHLO 126 — Immigration case with mental health background. [Summary required.] 2012‑12‑17 01:04:37 2012 cases, No summary, Repatriation cases, Transcript


C v SSHD [2012] EWHC 1543 (Admin), [2012] MHLO 125 — Immigration case with mental health background: "In essence, the claimant's case is that the length of the detention, the unlikely prospect of removal, the deterioration in the mental health of the claimant together with independent evidence of torture, were all factors which would lead to a conclusion that the claimant's detention was unlawful, even taking account of an absconding risk which, when properly examined, was not of the highest." [Summary required.] 2012‑12‑17 00:58:07 2012 cases, No summary, Repatriation cases, Transcript


R (LE (Jamaica)) v SSHD [2012] EWCA Civ 597, [2012] MHLO 124 — Deportation case with mental health background. [Summary required.] 2012‑12‑17 00:54:10 2012 cases, No summary, Repatriation cases, Transcript


Buck v Norfolk and Waveney MH NHS Foundation Trust [2012] MHLO 123 (CC)The defendant Trust granted unescorted leave to a detained patient who then ran in front of a bus. The claimant bus driver suffered PTSD and sued the Trust. The court held that a custody authority responsible for the negligent release of a patient did not owe a duty to a victim unless that victim had been identifiable: the Trust therefore owed no duty of care to the driver. 2012‑12‑17 00:47:55 2012 cases, Brief summary, Miscellaneous, Transcript


R (Okil) v LB Southwark [2012] EWHC 1202 (Admin), [2012] MHLO 122 — Community care case with immigration and mental health background. [Summary required.] 2012‑12‑17 00:36:11 2012 cases, Community care, No summary, Transcript


Lalli v Spirita Housing Ltd [2012] EWCA Civ 497, [2012] MHLO 121 — Disability discrimination case. [Summary required.] 2012‑12‑17 00:31:08 2012 cases, Disability discrimination, No summary, Transcript


Lacki v Poland [2012] EWHC 1747 (Admin), [2012] MHLO 120 — Extradition and mental health. [Summary required.] 2012‑12‑17 00:23:01 2012 cases, Missing from Bailii, No summary, Repatriation cases, Transcript


R v B [2012] EWCA Crim 1799, [2012] MHLO 119The trial judge found the appellant unfit to plead. The appellant had admitted the act charged during an interview under caution, and the judge refused to exclude that evidence. On the basis of that evidence, the jury found that the appellant had done the act charged. (1) Given that the appellant's mental state was the same during interview as when found unfit to plead, the Court of Appeal found it impossible to understand how the interview could have been admitted: the finding that he had done the act was therefore set aside. (2) The Court of Appeal would have ordered a retrial but has no power to do; the court noted that it was 'high time that Parliament remedied this most unfortunate error in the law'. 2012‑12‑17 00:16:25 2012 cases, Brief summary, Transcript, Unfitness and insanity cases


R (C) v SSHD [2012] EWHC 801 (Admin), [2012] MHLO 118 — Mental health and immigration. [Summary required.] 2012‑12‑16 22:32:41 2012 cases, Missing from Bailii, No summary, Repatriation cases, Transcript


R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232, [2012] MHLO 117The chronology in this s117 responsibility dispute was as follows: (a) SF lived at a college hall of residence in Sunderland, (b) she had voluntary admissions to various hospitals, (c) she was voluntarily admitted to a South Tyneside hospital, (d) the college terminated her placement and her licence to remain at the hall of residence, (e) she was detained under s2 then s3 at the South Tyneside hospital. (1) It was common ground that (a) the relevant s117 authority is the relevant LSSA for the area in which a patient is resident when he is detained (Hall), (b) during a period of detention the patient is not 'resident' for s117 purposes in the place of detention (JM); and (c) SF remained resident in Sunderland during the hospital admissions, at least until the Sunderland placement was terminated: therefore the question was where she was resident after that. (2) The High Court judge had decided she remained resident in Sunderland: (a) the South Tyneside placement was 'not compulsory, but it was closely analogous to a compulsory admission' so was to be disregarded, as if it were a place of detention; (b) she was not in hospital 'as part of the regular order of her life for the time being' (applying the test in Shah); (c) the loss of her Sunderland accommodation was not voluntary (as in JM) so did not affect her area of residence. (3) The Court of Appeal overturned that decision: (a) a voluntary period in the same hospital as subsequent detention is not to be treated the same as the period of detention; (b) the judge had wrongly followed the approach in Shah (which related to ordinary residence in a very different statutory context); the approach in Mohamed was more helpful (this included that 'so long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence'); (c) decisively, voluntary and third-party termination of accommodation have the same effect: when the Sunderland accommodation ceased to be available SF was either resident in South Tyneside or not resident anywhere (and the case of 'no residence' is a last resort for extreme and clear circumstances). (4) The court raised two scenarios which it did not need to rule upon: (a) the last place a patient was eating and sleeping might not be his place if residence in some cases: for example if he were in prison, or temporarily away from an established home as a matter of choice (though a hospital stay of more than five years might not be considered temporary); (b) if a patient has a family home which is available upon discharge that might be his residence even if, because of action taken by the family, its location changes during the period of detention. 2012‑11‑24 20:50:37 2012 cases, After-care, Detailed summary, Transcript


Court Martial in the case of Sergeant Nightingale [2012] MHLO 116(1) The accused pleaded guilty of possessing (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm. (2) In mitigation he relied, inter alia, on evidence from a neuropsychologist and a clinicial psychologist to the effect that a brain injury had caused memory problems and confabulation. (3) He was sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. 2012‑11‑19 02:16:59 2012 cases, Brief summary, Other criminal law cases, Transcript


Dunhill v Burgin [2012] EWHC 3163 (QB), [2012] MHLO 115The 'compromise rule' in the Civil Procedure Rules provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court. (1) The rule applies to a claim settled at the door of the court where at the time of the settlement the claimant was not known to lack capacity. (2) The claimant was a protected party ('a party, or an intended party, who lacks capacity to conduct the proceedings') and the Court of Appeal had decided that she lacked capacity to settle her claim. (3) The compromise in this case was invalid; the judgment based on it must be set aside, and the substantive claim should proceed to a trial on the merits. (4) The judge granted a certificate under s12 Administration of Justice Act 1969 to enable an application to be made to the Supreme Court for permission to bring a 'leapfrog' appeal from this decision. [Detailed summary available.] 2012‑11‑17 23:38:26 2012 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript


R (L) v West London MH NHS Trust [2012] EWHC 3200 (Admin), [2012] MHLO 114The claimant began proceedings to challenge the decision to transfer him from a medium secure unit to Broadmoor high secure hospital. (1) The claimant no longer wished to challenge the transfer decision, but the claims were of general importance and merited review, and were not merely academic, so the judge proceeded to hear the case and set out his reasons at extraordinary length. (2) The potential adverse consequences of a transfer to high security are: (a) the potential for delaying the ultimate date of discharge from detention; and (b) the potential for more restrictive detention conditions. (3) The nature of the decision making process as to whether a patient should be transferred from medium to high security is such as to engage a common law duty of fairness. (4) Subject to the need to protect persons from the risk of harm or some other substantial reason, that duty of fairness requires: (a) the patient and his advisers to be informed of any intention to refer him to high security; (b) the gist of the reasons for referral and any relevant reports to be provided; (c) the gist to be sufficiently detailed to enable meaningful and focussed representations, and reasons to be given if reports are withheld; (d) requests for additional information to be considered; (e) all such information to be communicated in time for the patient to make representations before the earliest possible of (i) the admissions panel meeting, (ii) the high security hospital accepting, (iii) the medium secure hospital deciding to transfer, or (iv) the decision being implemented; (f) all such information to be communicated immediately upon transfer at the latest; (g) reasons for the various decisions to be communicated, and to be sufficiently detailed to enable the patient to decide whether a worthwhile challenge can be made (see para 557-8). (5) In this case, in various ways, the requirements of the common law duty of fairness were not complied with and a declaration to that effect was made. (6) In relation to the Article 6 claim: (a) the transfer decision is not a 'determination' of his 'civil rights', so Article 6 does not apply; (b) but, if it did apply, and if there were a good arguable Article 8 claim, then the judicial review court would be required to exercise a fact-finding function; (c) it was inappropriate in this case for the judge to decide whether (if Article 6 applies and judicial review is inadequate) an independent panel (at least in a case turning on a disputed issue of fact) should decide on transfer; (d) similarly, it was inappropriate to decide whether (if Article 6 applies, judicial review is inadequate, and no hospital is empowered to contract out its function to a panel) the lack of provision for an independent panel makes the MHA incompatible with Article 6. 2012‑11‑15 00:25:40 2012 cases, Brief summary, Miscellaneous, Transcript


Re AS; SH v LC [2012] MHLO 113 (COP)AS's niece objected to a panel solicitor's application to be appointed deputy with specific authority to sell a property. (1) Generally speaking the order of preference for the appointment of a deputy is: (a) P's spouse or partner; (b) any other relative who takes a personal interest in P’s affairs; (c) a close friend; (c) a professional adviser, such as the family's solicitor or accountant; (d) a local authority's Social Services Department; and finally (e) a panel deputy, as deputy of last resort. (2) The court prefers to appoint a family member or close friend because of: (a) familiarity with P’s affairs, wishes and communication methods; (b) likely greater ability to consult with P and encourage participation; (c) reasons of economy; (d) the concept of deputyship of last resort. (3) The appointment of a family member will generally be a less restrictive alternative, though the question remains as to whether this will achieve the desired objective as effectively as the appointment of a panel deputy. (4) The court would not appoint a family member in cases involving, for example: (a) financial or other abuse; (b) conflict of interests; (c) an unsatisfactory track record in managing financial affairs; and (d) ongoing friction between various family members. (5) On the facts, the niece was appointed as there was no need for a deputy of last resort. (6) The general rule as to costs (that AS pay) was followed. 2012‑11‑12 23:12:51 2012 cases, Brief summary, Other capacity cases, Transcript


A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, if unaccompanied by contemporary medical evidence asserting capacity, might be seriously open to challenge. (3) The same observations applied to X's capacity to revoke or create lasting or enduring powers of attorney. (4) X lacked capacity to manage his own affairs: although a snapshot of X's condition at certain times would reveal an ability to manage his affairs, the general concept of managing affairs is an ongoing act and relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. (5) X also lacked capacity to litigate: this required separate consideration because the time frame involved is different to managing affairs on the one hand, or making a will or granting power of attorney on the other. The basis for this assessment was stated in Masterman-Lister: 'whether the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings'. (6) No finding was sought in relation to capacity to decide on contact, and the judge thought 'the idea that this distinguished elderly gentleman’s life should be circumscribed by contact provisions as though he was a child in a separated family' to be deeply unattractive. (7) There should be (a) a greater emphasis on judicial continuity in the COP, and (b) a pre-hearing review in any case estimated to last three days or more. 2012‑11‑12 22:59:02 2012 cases, Brief summary, LPA cases - all, LPA cases - capacity to make an LPA, Missing from Bailii, Other capacity cases, Transcript


Stoke City Council v Maddocks [2012] EWHC B31 (COP), [2012] MHLO 111(1) One of JM's children, WM, had breached court orders by, amongst other things, (a) arranging for JM to be taken from the care home to hear judgment delivered, and separately to see a solicitor, (b) discussing the possibility of moving back home with him, (c) harassing her father and employees of the local authority and care home. (2) WM was sentenced to five months' imprisonment for contempt because (a) there had been a considerable number of breaches of court orders, and (b) she had no intention, unless restrained by a severe measure by the court, of obeying the orders herself. 2012‑11‑11 06:37:42 2012 cases, Brief summary, Other capacity cases, Transcript


Re CA (A Baby); Coventry City Council v C [2012] EWHC 2190 (Fam), [2012] MHLO 110The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge seriously doubted the social worker's assessment that she had such capacity. (3) There was no informed consent because (a) the mother was never told that continued refusal of consent would result in the child staying in hospital with her for another day or two, and (b) she was told that removal was only a temporary arrangement when it was highly unlikely to be anything of the sort. (4) In relation to fairness, the local authority had settled an HRA damages claim, accepting that (a) s20 consent should not have been sought on the day it was, and (b) removal was not a proportionate response to the risks that then existed. (5) The court made the care order and (adoption) placement order which the local authority had sought, as the case for that was overwhelming. 2012‑11‑08 23:43:57 2012 cases, Detailed summary, Other capacity cases, Transcript


Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109(1) Michael Clarke's application that the court postpone a decision on costs (and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian) was refused. (2) The costs of the other family members and the deputy would be charged from Ann Clarke's estate. (3) In the light of the one-sided publicity that Michael Clarke gives to the affairs of the family, the three judgments were placed into the public domain. 2012‑10‑29 23:21:55 2012 cases, Brief summary, Other capacity cases, Transcript


Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108Michael Clarke objected to the deputy selling of his elderly mother's (Ann Clarke's) house to pay for future care as he considered it to be his. (1) No party asked for an oral hearing and the judge was satisfied that there was nothing to be gained by that. (2) Thre was a balance to be struck between the consequences of (a) retaining the property and leaving Ann Clarke on a low income, or (b) selling the property and maintaining a higher standard of living for Ann Clarke until the funds are exhausted, with her having no familiar home and, if she lived long enough, no money either. (3) Mrs Clarke's Blackpool property shall not be sold or charged during her lifetime without an order of this Court. (4) The deputyship was therefore discharged. (5) Publication of the judgments was authorised as, given Michael Clarke's comprehensive and long-standing breaches of his mother's entitlement to privacy, the court's reasons should be made known. 2012‑10‑29 23:20:52 2012 cases, Brief summary, Other capacity cases, Transcript


Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107Following an accident, Ann Clarke suffered brain injuries and was awarded damages of £775,000. This money was used to pay for care and buy a home in Blackpool which was worth £200-250,000. The deputy proposed to sell the house to pay for care when the remainder of the money ran out, but Michael Clarke (son and carer) applied to court to prevent this. (1) Ann Clarke had the mental capacity to make a will (in particular, one leaving the house to the applicant and nothing to his siblings). (2) Whether or not Ann Clarke had mental capacity to manage her state pension and benefits it was lawful and in her best interests for these to be paid to her carer(s) to be applied for her benefit. (3) Ann Clarke did not have the mental capacity to decide whether or not her Blackpool property should be sold. 2012‑10‑29 23:14:53 2012 cases, Brief summary, Other capacity cases, Transcript


R (Hossacks) v Legal Services Commission [2012] EWCA Civ 1203, [2012] MHLO 106This appeal followed an unsuccessful judicial review of the LSC's rejection of the appellant's tender in relation to community care law in 2010. (1) The issues were set out by the court as follows: (a) Were any of the Appellant's applications acceptable without clarification or amendment? (b) Leaving aside the evidence of the Commission's communications with other applicants, should the Commission have sought clarification or suggested amendment of any of the applications, and if so should the Commission have accepted the resulting application(s)? (c) Do the Commission's communications with other applicants show that by rejecting the Appellant's applications, it acted in breach of its duty to treat all applicants equally? (2) The appeal had no real prospects of success and therefore permission was refused. (3) The LSC were awarded its costs: (a) the appellant's impecuniosity and the fact that her activity both as a solicitor and as a proposed foster parent may be or indeed are in the public interest does not justify depriving the Commission of the normal order; (b) the Appellant was clearly warned of the costs risks of pursuing her application for permission to appeal and her application for disclosure, which was liable to be very expensive indeed; and (c) the court directed a rolled up hearing for her benefit, so that her claim could be determined as soon as possible, as she sought. 2012‑10‑27 20:33:00 2012 cases, Brief summary, Miscellaneous, Transcript


R v Petrolini [2012] EWCA Crim 2055, [2012] MHLO 105The appellant had unsuccessfully argued diminished responsibility at trial, but subsequently it became apparent that he had indeed been in the prodromal stage of schizophrenia at the time of the offence. The Court of Appeal (1) granted an extension of time of 16 years and 16 months, (2) quashed the conviction for murder and substituted for it a verdict of manslaughter by reason of diminished responsibility, and (3) made a restricted hospital order in place of the 16-year-tariff life sentence. The hospital order was made for admission to Broadmoor, but the intention was that the patient would remain in Carstairs hospital in Scotland. 2012‑10‑27 20:24:11 2012 cases, Brief summary, Life sentence cases, Missing from Bailii, Transcript


C v R [2012] EWCA Crim 2034, [2012] MHLO 104The appellant appealed against his convictions for sexual offences on the basis that there had been no sexual relationship with the complainant (his step-daughter) before she was 16 years of age, and that thereafter the sexual relationship had been consensual. There was a substantial body of evidence which showed apparent consent to sexual activity after the complainant was 16 years old. But once the jury were satisfied that sexual activity had occurred when the complainant was a child, and that it impacted on and reflected the appellant's dominance and control over the complainant, it was open to them to conclude that the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting. 2012‑10‑27 17:48:40 2012 cases, Brief summary, Criminal law capacity cases, Transcript


CYC v PC and NC [2012] MHLO 103 (COP)(1) PC lacked capacity to litigate and lacked capacity to decide whether to resume married life with NC (upon the expiry of a 13-year sentence for his sexual offences against previous wives). (2) The resumption of married life with NC was lawful as being in her best interests. 2012‑10‑24 20:51:12 2012 cases, Brief summary, Capacity to consent to sexual relations, Transcript


RP v UK 38245/08 [2012] ECHR 1796, [2012] MHLO 102The appointment of the Official Solicitor (who decided, against RP's wishes, not to oppose the making of a care order and a placement order) did not breach RP's Article 6 or Article 8 rights. 2012‑10‑13 21:43:31 2012 cases, Brief summary, ECHR, Other capacity cases, Transcript


LGO decision: Kent County Council 10 012 742 [2012] MHLO 102A — "In her report concerning services for a young woman with learning disabilities, the Ombudsman says: 'The Council’s failure to complete an assessment before the young woman was 18 caused her the injustice of losing services she was assessed as needing. The support plan that was eventually produced did not include services to meet these needs.' In addition, the Council’s poor communication led to uncertainty, confusion and frustration for the young woman and her family, and she was denied a direct payment and the choice to arrange her own respite care." 2012‑09‑30 22:18:59 2012 cases, Detailed summary, LGO decisions, No transcript


LGO decision: Kent County Council 11 001 504 [2012] MHLO 101 — "In her report concerning the elderly woman's residential care payment, the Ombudsman says: 'The Council’s internal guidance said that staff could only use the Council's own homes, or places it had 'pre-purchased', or community hospitals. The requirement to offer service users a genuine choice of placement when they are assessed as needing residential care is enshrined in law. The guidance did not adhere to these principles.'" 2012‑09‑30 22:13:45 2012 cases, Detailed summary, LGO decisions, No transcript


Re T (Children) [2012] UKSC 36, [2012] MHLO 100A local authority should not be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded; the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. (This case related to care proceedings.) 2012‑09‑30 21:57:38 2012 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


NHS Trust v Baby X [2012] EWHC 2188 (Fam), [2012] MHLO 99 — "The question in this case is whether a baby known as X should be removed from a ventilator and made the subject only of palliative care. As the evidence is that he will almost certainly die within minutes, or at best hours, of such removal, it will be readily apparent that this case is both tragic and difficult. Given the nature of the question, I have thought it right to deliver this judgment in open court but nothing of course may be reported which might reasonably lead to the identification of X or his parents. An issue has arisen over the reporting restrictions order in this case; I intend to deal with this matter quite separately to this judgment." [Detailed summary available.] 2012‑09‑30 21:38:07 2012 cases, Best interests, Detailed summary, Transcript


Re SK [2012] EWHC 1990 (COP), [2012] MHLO 98 — "This is an application by the parties to certain Queen's Bench personal injury proceedings who seek in effect to be joined in these Court of Protection proceedings. The subject of both sets of proceedings is SK, a mentally incapacitated adult aged 55. The issue which arises one way or another in both sets of proceedings is as to his care, accommodation and rehabilitation. The two applicants for joinder to these proceedings are (a) CK, aged 52, brother of SK and (b) GA Group PLC, a bus company whose bus struck SK in November 2008, causing him severe lasting brain and physical injuries. That company is the defendant in the Queen's Bench proceedings." [Summary required.] 2012‑09‑30 21:26:27 2012 cases, No summary, Other capacity cases, Transcript


Re Gunn [2012] MHLO 97 (LPA)The donor made LPAs for property and financial affairs and for health and welfare. The donor's signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney's application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary - LPA case.] 2012‑09‑30 19:26:33 2012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript


Re Burdock [2012] MHLO 96 (LPA)The donor made an LPA for property and financial affairs and included the following guidance: "(1) If the house is sold I intend to pay off Z's student loan completely. (2) I also intend to give my three daughters, or their issue, as follows: X £30,000, Y £30,000, Z £50,000. (3) The remainder to be used for my care and needs." On the application of the Public Guardian the provision was severed as it gave the attorneys greater gift making powers than are permitted under section 12 of the MCA 2005. [OPG summary - LPA case.] 2012‑09‑30 19:24:19 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Krajicek [2012] MHLO 95 (LPA)The donor made two LPAs appointing two attorneys, A and B, and two replacement attorneys, C and D, and directed them to act jointly for some decisions and jointly and severally for other decisions. She provided that "If either of the original attorneys is unable to act then C should step in. D is to step in if the second attorney is unable to act." On the application of the Public Guardian the provision was severed because it appeared to provide for the replacement attorney to act jointly with the survivor of the original attorneys, which was incompatible with the appointment of the attorneys to act jointly for some decisions. [OPG summary - LPA case.] 2012‑09‑30 19:22:02 2012 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript


Re Dowden [2012] MHLO 94 (LPA)The donor made two LPAs in which she appointed a professional attorney and a lay attorney to act jointly and severally. She directed that the professional attorney should be paid fees "in keeping with the charging rate in force at the time the work is undertaken". She then directed that the lay attorney should be paid a reasonable hourly fee and stated that any sum paid "must be with the approval of my Solicitor/Attorney" and "will be at such rate as he feels is appropriate". On the application of the Public Guardian the provision relating to the lay attorney's fees being approved and set by the professional attorney was severed as being incompatible with a joint and several appointment. The judge added that, to have achieved the desired objective, the donor should have appointed the attorneys to act jointly for some decisions (in this case on agreeing an appropriate level of remuneration for the lay attorney) and jointly and severally for other decisions. [OPG summary - LPA case.] 2012‑09‑30 19:19:53 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Sheppard [2012] MHLO 93 (LPA)The donor of a health and welfare LPA included the following guidance: "My attorneys are to maintain the health and welfare needs of X." On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary - LPA case.] 2012‑09‑30 19:16:15 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Kerron [2012] MHLO 92 (LPA)The donor made an LPA for health and welfare, and imposed the following restriction: "If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys." On the application of the Public Guardian the words "jointly" and "myself and" were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary - LPA case.] 2012‑09‑30 19:13:16 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Darlison [2012] MHLO 91 (LPA)The donor made an LPA for property and financial affairs. In the guidance section she stated: "Oversee X's financial welfare. X is [my] daughter." On the application of the Public Guardian the guidance was severed on the ground that the donor of an LPA cannot authorise the attorneys to act in relation to the financial affairs of another person. [OPG summary - LPA case.] 2012‑09‑30 19:11:44 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript


Re Norris [2012] MHLO 90 (LPA)The donor made LPAs for property and financial affairs and for health and welfare and included the following guidance in both LPAs: "At all times to make decisions in the best interests of [my wife] during her lifetime." On the application of the Public Guardian the provision was severed as being potentially inconsistent with the requirement in section 1(5) of the MCA that any act done or decision made must be done or made in the donor's best interests. [OPG summary - LPA case.] 2012‑09‑30 19:09:43 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript


Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under MCA 2005 s21A. (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty. 2012‑09‑27 22:31:54 2012 cases, Brief summary, Deprivation of liberty, Other capacity cases, Transcript


CNWL NHS Foundation Trust v HJ-H [2012] UKUT 210 (AAC), [2012] MHLO 88The tribunal granted discharge from a CTO, deferred for 3 months, expressing the hope that in the meantime the RC would consider reducing the level of the patient's medication. The Trust appealed. (1) The challenge to the decision to discharge was essentially an attempt to re-argue the tribunal’s assessment of the evidence, and was therefore unsuccessful. In deciding on whether there is an error of law, the UT must respect the FTT's assessment of the evidence and fact-finding role (provided this was carried out rationally and explained): (a) the UT's statutory jurisdiction is limited to points of law; (b) the expert composition of the FTT means its fact-finding is worthy of such respect. (2) The challenge to the deferral also failed, as there was no evidence that the tribunal had misdirected itself by granting the deferral with the intention that that the patient's medication could be reduced in order to make her ready for discharge on a future date. (3) If the FTT's reasons for the deferral had not been set out adequately (ironically, the judge said the reasoning was 'not pellucid') then its decision would still not have been set aside; if anyone had cause to complain about the deferral it was the patient rather than the Trust. (4) If a CTO patient's condition deteriorates after a deferred discharge decision: (a) before the discharge date, he can be recalled under the CTO which still remains in force, and/or have his medication changed; (b) after the discharge date, he can be detained under s2 or s3, if there is information which was not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. 2012‑09‑24 21:16:59 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


R (RW) v SSJ [2012] EWHC 2082 (Admin), [2012] MHLO 87The responsible clinician and tribunal were of the view in March 2011 that the patient required continued treatment in detention in hospital, and the tribunal recommended transfer from Broadmoor to a medium secure unit; in June the RC sought permission for trial leave to a MSU, with return to prison being the planned consequence if it were unsuccessful; trial leave in September was unsuccessful and, that month, the Secretary of State remitted the patient to prison on the RC's advice. (1) There had been new information since the tribunal which put a different complexion on the case, namely the unsuccessful trial leave, so the Secretary of State was entitled to take at face value the RC's new opinion that the patient did not require treatment in hospital for mental disorder. (2) It was not necessary for the Secretary of State to consider that lack of treatment in prison might breach Article 3 or require almost immediate re-transfer to hospital; the correct approach was to consider the remission request when made, and consider transfer to hospital later if necessary. (3) Permission to amend the grounds to challenge the alleged ongoing failure to transfer under s47 was refused, but the judge directed that if a fresh application were made within six weeks that the permission application be referred to him. 2012‑09‑01 00:21:12 2012 cases, Brief summary, Ministry of Justice, Missing from Bailii, Transcript


R v Fletcher [2012] EWCA Crim 1550, [2012] MHLO 86 — Permission granted to appeal, on fresh evidence, against IPP and argue that restricted hospital order should have been imposed. [Summary required.] 2012‑08‑31 23:03:22 2012 cases, Missing from Bailii, No summary, Sentence appeal cases, Transcript


XY v Clinical Director of St Patricks University Hospital (2012) IEHC 224, [2012] MHLO 85 — Consideration of meaning of 'examination' within the meaning of the Southern Irish Mental Health Act 2001. [Summary required.] 2012‑08‑31 22:42:14 2012 cases, No summary, Southern Irish cases, Transcript


Turner v Government of the USA [2012] EWHC 2426 (Admin), [2012] MHLO 84The appellant was unable to demonstrate that the evidence that was before the High Court was 'decisive' such that if it had been before the District Judge he would have concluded that she had demonstrated that her mental condition was such that it would be oppressive to extradite her to the USA. 2012‑08‑31 22:16:15 2012 cases, Brief summary, Repatriation cases, Transcript


Davis v West Sussex County Council [2012] EWHC 2152 (QB), [2012] MHLO 83At a safeguarding vulnerable adults case conference the local authority determined that certain allegations of abuse at a care home were substantiated or inconclusive, made recommendations, and decided to refer three members of staff to their professional bodies. The claimants sought judicial review of the decisions (and of a subsequent Default Notice, although this was not pursued). (1) The local authority's procedure was unfair, in breach of the rules of natural justice, its own guidance (based on government guidance), and legitimate expectations - a precis cannot do justice to how disgraceful the procedure was. (2) Two defences, arguing that no public law rights arose, failed: (a) there was no respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner; (b) there was a sufficient public flavour to make the process of investigation and decision a public function distinct from the contractual relationship. (3) The defendant's arguments that no remedy should follow failed: in particular, because the decisions were unfair, inconsistent with or unsupported by the findings of external bodies, and had a serious continuing impact on the claimants and their residents and staff, and because the defendant showed an inability to recognise, even in hindsight, some basic requirements of fairness. 2012‑08‑31 21:56:51 2012 cases, Brief summary, Community care, Transcript


Re MW; LB Hammersmith and Fulham v MW [2012] MHLO 82 (COP)(1) MW lacked capacity to make decisions in relation to contact with his childhood friend JC. (2) It was not in MW's best interests for JC to visit MW's home, so an order was granted restraining JC from doing so; this was endorsed with a penal notice because of previous breaches of an injunction. (3) The local authority and Official Solicitor's requested that MW, who lacked litigation capacity, should not attend the hearing because this would be stressful and not conducive to the maintenance of his good mental health: the court acceded to this application. (4) Sensitive evidence was withheld from JC, at the request of the local authority and Official Solicitor, but the court came to its final decision based on the open evidence. 2012‑08‑29 21:27:52 2012 cases, Best interests, Brief summary, Transcript


MP v West London Mental Health NHS Trust [2012] UKUT 231 (AAC), [2012] MHLO 81In the final days of his determinate prison sentence, MP was transferred to Broadmoor under s47 in order to prolong his detention. The tribunal recommended transfer to an MSU, which proved impossible; when it reconvened it granted discharge, delayed for 10 weeks for appropriate after care arrangements to be made. A salaried tribunal judge accepted the trust's argument that there had been inadequate reasons for discharge: she reviewed and set aside the decision, and refused the patient's application for her decision to be set aside. As these were excluded (unappealable) decisions, the patient sought judicial review. (1) The review decision, although made without receiving representations from the patient, was not made unfairly. (2) Taking account of the two relevant principles - that (a) the review power should only be exercised in clear cases, and (b) the Upper Tribunal should seldom interfere with review decisions when judicial review proceedings are brought, because the review assessment involves a substantial element of judgment or discretion - the STJ was entirely justified in her decision on the inadequacy of reasons. (3) There may well be adversarial aspects in the mental health jurisdiction, but ultimately, given the wider public interest at stake, it is an inquisitorial jurisdiction. (4) The delayed discharge decision itself may have been made in error of law (adjournment being the correct option), a consideration which would have been relevant in relation to permission had the grounds been arguable. 2012‑08‑21 00:43:55 2012 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions


XCC v AA [2012] EWHC 2183 (COP), [2012] MHLO 80An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: 'in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.' 2012‑08‑19 22:33:36 2012 cases, Capacity to consent to sexual relations, Detailed summary, Transcript


Munjaz v UK 2913/06 [2012] ECHR 1704, [2012] MHLO 79The applicant, C. Munjaz, is a British national who was born in 1947. Suffering from mental health problems, he has spent a number of periods in prison and hospital. The case concerned Mr Munjaz’s complaint about his placement in seclusion in Ashworth Special hospital (a high security hospital) where he was transferred in March 1994 as a result of his increasingly psychotic, aggressive and violent behaviour. Relying in particular on Article 8 (right to respect for private and family life), he alleged that Ashworth’s in-hospital policy on seclusion, which had not complied with the Code of Practice under the Mental Health Act, had adversely affected his right to personal development and to establish and develop relationships with the outside world. Further relying on Article 5 (right to liberty and security), he also claimed that his seclusion had amounted to a further deprivation of his liberty lacking any basis in law and without possibility of bringing an external appeal. No violation of Article 5. No violation of Article 8. [Summary from court press release.] 2012‑08‑19 22:02:39 2012 cases, Brief summary, ECHR, Transcript


Re BS; SC v BS [2012] MHLO 78 (COP)The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed. 2012‑08‑17 15:17:27 2012 cases, Brief summary, Other capacity cases, Transcript


R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin), [2012] MHLO 77(1) Voluntary euthanasia is not a possible defence to murder. (2) The DPP is not under a legal duty to provide further clarification of his policy. (3) Section 2 Suicide Act 1961, in obstructing the claimants from exercising a right in their circumstances to receive assistance to commit suicide, is not incompatible with Article 8. (4) The GMC and the SRA are not under a legal duty to clarify their positions. (5) It was unnecessary in this case to decide whether or not the mandatory life sentence for murder, in a case of genuine voluntary euthanasia, is incompatible with the Convention. 2012‑08‑17 14:33:38 2012 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript


Re Ian Brady [2012] MHLO 76 (FTT)The tribunal hearing was adjourned from 9/7/12, to a date to be fixed, because of the patient's (physical) medical condition. 2012‑08‑17 14:13:00 2012 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript


Re Ian Brady [2012] MHLO 75 (FTT)The media's request for one or more representatives to be present in the tribunal room at Ashworth was refused. 2012‑08‑17 14:05:31 2012 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript


Re Harcourt [2012] MHLO 74 (LPA) — "This application relates to an investigation by the Office of the Public Guardian into the management of Mrs Harcourt’s property and financial affairs by her daughter under a Lasting Power of Attorney. It considers the powers of the OPG and the Court of Protection when an attorney impedes an investigation and the circumstances in which the court may revoke an LPA." 2012‑08‑16 22:13:15 2012 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript


Re Newman [2012] MHLO 73 (EPA)The donor made an EPA in which, amongst other defects, he failed to select either of the following alternatives: "with general authority to act on my behalf" or "with authority to do the following on my behalf". The court confirmed that this failure did not invalidate the EPA, because it was an immaterial difference from the prescribed form within paragraph 2(4) of Schedule 4 of the MCA. [OPG summary - EPA case.] 2012‑08‑16 22:02:19 2012 cases, Brief summary, EPA cases - all, EPA cases - immaterial differences from the prescribed form, Transcript


Re Stapleton [2012] MHLO 72 (EPA)(1) The court directed the Public Guardian to cancel the registration of the EPA, because the attorney's financial abuse made him unsuitable. (2) A panel deputy was appointed instead. (3) D was ordered to pay his own costs (a departure from the general rule in property and affairs cases that P pays) because of D's conduct before and during proceedings. 2012‑08‑16 21:57:10 2012 cases, Brief summary, EPA cases - all, EPA cases - suitability of attorney, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP)The Court of Protection approved a consent order under which the London Borough of Hillingdon is to pay £35,000 damages to Stephen Neary. 2012‑07‑26 19:48:49 2012 cases, Best interests, Brief summary, Deprivation of liberty, No transcript


EC v Birmingham and Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC), [2012] MHLO 70(1) Appeals against tribunals' refusals to hear arguments in relation to extra-statutory recommendations were dismissed as (a) there is no legal right to advance these arguments (this is a sufficient reason for not making an extra-statutory recommendation which can be implied if not stated), (b) refusal to consider a extra-statutory recommendation is neutral rather than disadvantageous to the patient, and (c) a flawed extra-statutory should have no effect because of its legal status. (2) The judge made further comments about (a) potential guidance to hospital managers about UT procedure, (b) secondary challenges by the appellants, and (c) tribunal procedure generally in relation to extra-statutory recommendations. 2012‑07‑24 17:23:07 2012 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions


HSE Ireland v SF (A Minor) [2012] EWHC 1640 (Fam), [2012] MHLO 69 — "This application is made by the Health Service Executive of Ireland ('the HSE'), the statutory authority with responsibility for children taken into public care in the Irish Republic, for an urgent order under Article 20 of the Council Regulation (EC) 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No.1347/2000 (commonly known as 'Brussels II Revised') in respect of a 17-year-old girl whom I shall refer to as SF. At the conclusion of the hearing on 4th May 2012, I made the order sought by the HSE. This judgment sets out the reasons for my decision." [Summary required.] 2012‑06‑23 17:45:37 2012 cases, Deprivation of liberty, No summary, Transcript


Re DS; A Local Authority v DS [2012] EWHC 1442 (Fam), [2012] MHLO 68In this case the President of the Family Division gave guidance on LSC prior authority for expert evidence in the Family Division, and suggested wording for court orders. 2012‑06‑23 14:37:14 2012 cases, Brief summary, Other capacity cases, Transcript


Re HA [2012] EWHC 1068 (COP), [2012] MHLO 67 — "This case comes before me for directions today. The person whose best interests have to be considered by the court is a HA. The Official Solicitor now acts for her as her litigation friend and in that capacity has continued an application under s.21A of the Mental Capacity Act 2005 (the Act) that was instigated before his appointment." [Summary required.] 2012‑06‑23 14:28:12 2012 cases, Deprivation of liberty, Missing from Bailii, No summary, Transcript


Sedge v Prime [2012] MHLO 66 (QB) — "This is an application for an interim payment of £300,000 to enable the Claimant to move from the 'Little Oyster' residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely." [Summary required.] 2012‑06‑23 14:16:30 2012 cases, No summary, Other capacity cases, Transcript


Re O'Brien [2012] MHLO 65 (LPA)The donor of a property and financial affairs LPA included the following guidance: "My handicapped son should be adequately provided for." On the application of the Public Guardian this provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012‑06‑23 13:33:10 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Strange [2012] MHLO 64 (LPA)The donor of a property and financial affairs LPA included the following guidance: "I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so." The Public Guardian asked the court to consider whether the guidance needed to be severed as potentially contravening section 12 of the MCA 2005. In the application the Public Guardian referred to the case of Bloom (above), noting that a wife had no common law duty to maintain her husband and that the husband's common law duty would be abolished when section 198 of the Equality Act 2010 came into force, but noting also that various other legislation (see below) imposed a duty on a wife to maintain her husband. The court did not sever the guidance and explained the position in the following terms: "In the context of clauses in an LPA in which the donor makes provision for the maintenance of his or her spouse, there should be no distinction between male and female spouses and, in principle, such clauses should be treated as valid on the basis of the specific maintenance obligations imposed by statutes such as National Assistance Act 1948, section 24(1)(b) and Social Security Administration Act 1992, section 105(3), and the absence of any distinction between husband and wife in other legislation, such as the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975." [OPG summary - LPA case.] 2012‑06‑23 13:31:09 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Smith [2012] MHLO 63 (LPA)The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney's signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney's name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary - LPA case.] 2012‑06‑23 13:28:13 2012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript


Re McGreen [2012] MHLO 62 (LPA)The donor appointed A as attorney and B as replacement attorney and then provided as follows on the A2 continuation sheet: "If my Replacement Attorney is no longer a partner in the firm of XYZ Solicitors, I appoint in his place a suitably qualified partner of that firm or firm which has succeeded that firm and carries on its practice, to be my Replacement Attorney." (Only A and B had signed Part Cs.) The Public Guardian applied for severance of the provision on the ground that it was not possible to appoint a replacement attorney to take over from a replacement attorney (see Re Baldwin, below, under the heading "Replacement for replacement attorney".) The court severed the provision for that reason and also for the following reason: "Section 19(2) of the Mental Capacity Act 2005 states that, in respect of the appointment of deputies, 'the court may appoint an individual by appointing the holder for the time being of a specified office or position'. However, there is no comparable provision in the Act that permits the donor of an LPA to appoint an office holder to be his or her attorney. Section 10(1) states that the donee of an LPA must be an individual who has reached 18 or, if the power relates only to the donor's property and affairs, either such an individual or a trust corporation." [OPG summary - LPA case.] 2012‑06‑23 13:24:27 2012 cases, Brief summary, LPA cases - all, LPA cases - appointment of office holder as attorney, No transcript


Re Llewelyn [2012] MHLO 61 (LPA)The donor appointed attorneys including her husband to act jointly in some matters and jointly and severally in other matters. She stated that decisions were to be made jointly and severally apart from a list of specified decisions which were to be made jointly, but added a proviso to the effect that, provided her husband was able to act as one of her attorneys, all decisions could be made jointly and severally. On the application of the Public Guardian the proviso was severed as being incompatible with an appointment to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2012‑06‑23 13:22:37 2012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript


Re Phillips [2012] MHLO 60 (LPA)The donor appointed three attorneys, A, B and C. She did not name any persons to be notified, and so there were two certificate providers. The Public Guardian refused to register on the ground that one certificate provider, X, was a member of the family of A. He was the unmarried partner of A but did not live at the same address. In his Part B certificate X said: "I am the partner of A and have known the donor for 3 years." The attorney applied to court for a direction to register and the Public Guardian was joined as respondent. The court decided that X was to be treated as a member of the family of A, and so the instrument could not be registered. The judge said: "In my judgment, anyone who describes himself in this context as the attorney's partner is courting trouble and automatically disqualifies himself from being a person who can give an LPA certificate. This applies regardless of whether he describes himself as the attorney's partner intentionally or inadvertently, whether they live at the same address or at separate locations, whether the relationship is intimate or platonic, and whether the statement is true or false." Although it was unnecessary to the decision, the judge added that, even if X were not to be treated as a family member, he was not independent of the attorney, as required by the prescribed LPA form. [OPG summary - LPA case.] 2012‑06‑23 13:14:36 2012 cases, Brief summary, LPA cases - all, LPA cases - eligibility of certificate provider, Transcript


Parascineti v Romania 32060/05 [2012] MHLO 59 (ECHR)The conditions in an overcrowded psychiatric ward with very poor standards of hygiene led to inhuman and degrading treatment in violation of Article 3. 2012‑06‑23 11:47:20 2012 cases, Brief summary, ECHR, Miscellaneous, Transcript


GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58The claimant applied for a writ of habeas corpus, challenging the AMHP's decision not to consult the nearest relative (under s11) before making a s3 application. The AMHP's evidence was that, having tried to telephone the NR on five or six occasions, he dispensed with consultation because nursing staff were anxious about the patient's presentation and needed him on s3 to move him to a psychiatric intensive care unit. (1) The question which arises on an application of this sort is whether the AMHP's decision was plainly wrong, or whether it was within the range of appropriate decisions available. (2) In the circumstances his decision was unlawful, in particular because: (a) the notes showed that the claimant had essentially been stable (and, in the event, had not been transferred to the PICU for over two weeks after the s3 began); and (b) the s3 assessment finished about 4.30pm and the s2 was due to expire at midnight, so to drive about 30 minutes to the NR's house would not have taken a disproportionate amount of time. (3) The judge added that: (a) the position would have been different if admission to the PICU would only be possible if the patient were on s3, and if there had been a spiralling and acute deterioration of condition coupled with evidence of significant risk to nursing staff, and (b) s11 provides constitutional protection for those that are faced with detention under the Mental Health Act and there is a heavy duty on those who carry out these tasks to ensure that those statutory provisions are complied with. 2012‑06‑21 22:26:23 2012 cases, Brief summary, Consulting NR, Missing from Bailii, Transcript


R (KM) v Cambridgeshire CC [2012] UKSC 23, [2012] MHLO 57 — "In the proceedings, brought by way of judicial review, the appellant challenges a determination made by Cambridgeshire County Council and communicated, at the latest, by a letter dated 3 June 2010 to pay him (in round numbers and as an annual sum) £85k in discharge of its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He contends that the determination was unlawful either because it was not adequately supported by reasons or because it was irrational. He asks that the determination be quashed and either that Cambridgeshire should conduct a re-determination of it or that the court should itself substitute for it a determination that the annual sum payable to him be £120k." [Summary required.] 2012‑06‑21 21:45:14 2012 cases, Community care, No summary, Transcript


EM v SC [2012] EWHC 1518 (COP), [2012] MHLO 56 — "This is an application made by the Official Solicitor on behalf of the Applicant EM, for the discharge of the latest of a series of standard authorisations made on 16 January 2012 pursuant to the Mental Capacity Act 2005. The effect of the standard authorisation is to deprive EM of his liberty and oblige him to live at a nursing home, RH, rather than at the home which he had shared with his wife and son for many years." [Summary required.] 2012‑06‑21 21:25:21 2012 cases, Deprivation of liberty, Missing from Bailii, No summary, Transcript


Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP), [2012] MHLO 55 — "E is a 32-year-old woman who suffers from extremely severe anorexia nervosa, and other chronic health conditions. On 18 May 2012, an urgent application was made to the Court of Protection by her local authority, which was concerned that her position should be investigated and protected. E's death was imminent. She was refusing to eat, and was taking only a small amount of water. She was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort. ... I found that E lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes with all that this entails." [Summary required.] 2012‑06‑21 21:00:14 2012 cases, Best interests, No summary, Transcript


X Primary Care Trust v XB [2012] EWHC 1390 (Fam), [2012] MHLO 54 — "This matter concerns an application by the XPCT for declarations under s.26(4) of the Mental Capacity Act 2005 as to the validity of an advance decision made by XB on 2nd November 2011 that he wished, amongst other things, to have his ventilation removed in certain defined circumstances." [Summary required.] 2012‑06‑21 20:56:06 2012 cases, Advance decision cases, No summary, Transcript


DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), [2012] MHLO 53(1) The tribunal cannot grant a deferred conditional discharge until (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge. (2) A deferred conditional discharge is not a device for gathering information on whether a conditional discharge would be possible or what conditions might be appropriate. (3) On the facts (where the tribunal had decided that 'with the exception of the availability of suitable after-care for the Patient, none of the criteria for his detention in hospital for treatment are met' but had not drafted conditions) the decision to adjourn was correct. 2012‑05‑20 21:25:54 2012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


Re G [2012] EWCA Civ 431, [2012] MHLO 52 — The local authority issued proceedings under the court's inherent jurisdiction in relation to a 30-year-old with Downs Syndrome history who was in the exclusive care of her mother. This decision relates to an unsuccessful appeal against case management orders. [Summary required.] 2012‑05‑05 22:07:35 2012 cases, Missing from Bailii, No summary, Other capacity cases, Transcript


DD v Durham County Council [2012] EWHC 1053 (QB), [2012] MHLO 51The claimant was gate sectioned at Durham prison and detained under s2, then s3, in a Middlesborough hospital. He had complaints of false imprisonment and breaches of Article 3 and 8 relating to matters such as his being kept in seclusion, the lighting in his room, the number of people supervising his activities and a general lack of privacy. (1) He needed leave under s139 to bring civil proceedings against Durham County Council and Middlesborough City Council. This was refused: there was no realistic prospect of establishing illegality against the AMHPs who made the recommendations for s2 and s3 as AMHPs are (a) not required to choose or investigate the quality of the place of detention, (b) not required to research medical views earlier than those in the statutory recommendations, (c) not responsible for the medical or other regimes to which a detained person is subjected. (2) The AMHP who applied for s3 detention was employed by Middlesborough, so Durham claimed that Middlesborough would be vicariously liable. This was incorrect: Durham would have been liable for any wrongdoing, because vicarious liability arises not as a result of employment law but through the statutory relationship in s13. 2012‑05‑05 21:47:43 2012 cases, Brief summary, Miscellaneous, Transcript


R v Parkins [2012] EWCA Crim 856, [2012] MHLO 50The sentencing judge had not been wrong to impose a restriction order contrary to the medical recommendations. 2012‑05‑05 13:44:51 2012 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


Verlander v Rahman [2012] EWHC 1026 (QB), [2012] MHLO 49Personal injury quantum judgment including the following issues: (1) whether and to what extent the claimant's disabilities were due to frontal lobe brain damage (and are now incapable of significant improvement) or due depression or psychological factors (which may well improve over time); (2) whether the claimant had capacity to manage her properties and affairs. 2012‑05‑05 13:28:22 2012 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript


Re D; An NHS Trust v D [2012] EWHC 885 (COP), [2012] MHLO 47(1) P was in a permanent vegetative state so continued medical treatment is of no benefit to him because it is futile. (2) His letter refusing life-sustaining treatment did not comply with the MCA requirements for an advance decision so could not have been relied upon; however, had the evidence on PVS not been clear cut, the judge would have given P's previous wishes and feelings great weight. 2012‑05‑05 13:11:22 2012 cases, Advance decision cases, Best interests, Brief summary, Transcript


Re D (Official Solicitor's costs); An NHS Trust v D [2012] EWHC 886 (COP), [2012] MHLO 48(1) In medical cases in the Court of Protection, an order that the health authority pays half the Official Solicitor's costs is the starting point, from which the court can depart if there is reason to do so (thus the practice under the inherent jurisdiction continues). (2) On the facts, this was the order made. 2012‑05‑05 13:11:21 2012 cases, Brief summary, COP costs cases, Transcript


MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and that he was in dire need of appropriate psychiatric treatment - the conditions which the applicant was required to endure were an affront to human dignity and reached the threshold of degrading treatment for the purposes of Article 3. (3) There was no breach of Article 13 as an appropriate remedy was available in domestic law, notwithstanding the fact that he had been unsuccessful. (4) Compensation of €3,000 was awarded. 2012‑05‑05 12:07:15 2012 cases, Brief summary, ECHR, Miscellaneous, Transcript


Re Drew [2012] MHLO 45 (LPA)The donor of a property and financial affairs LPA included the following guidance:" If my father is still alive then my trustees should continue with my contributions to his care (my records make clear from which account) and assume my role in financial responsibility for him." [The reference to "trustees" should have been to "attorneys".] The court severed the provision on the ground that it contravened section 12 of the MCA 2005. The order recited that the case of Bloom was distinguishable because in the present case the donor had no common law duty to make provision for her father's maintenance. [OPG summary - LPA case.] 2012‑04‑28 20:55:01 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Bloom [2012] MHLO 44 (LPA)The donor of a property and financial affairs LPA included the following direction: "I direct my attorneys to use such of my capital and income as they shall at their discretion deem necessary to make provision for my wife's maintenance and benefit." The Public Guardian asked the court to sever either the entire direction or just the words "and benefit". The court severed only the words "and benefit" on the ground that they contravened section 12 of the MCA 2005. The order recited that the donor had a common law duty to make provision for his wife's maintenance. [OPG summary - LPA case.] 2012‑04‑28 20:52:51 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Batchelor [2012] MHLO 43 (LPA)The donor of a property and financial affairs LPA included the following provision: "I would ask my attorneys to have regard to any separate guidance note which I may make from time to time and place with this Lasting Power of Attorney." On the application of the Public Guardian the provision was severed on the ground that it contravened the requirements of regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, which do not permit additions to be made to an LPA. [OPG summary - LPA case.] 2012‑04‑28 20:50:38 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript


R v B [2012] EWCA Crim 770, [2012] MHLO 42The appellant, an autistic young man who was prosecuted for voyeurism for looking into a swimming pool cubicle, was found by the judge to be unfit to be tried and by the jury to have committed the act charged against him. Voyeurism consists of, for the purpose of obtaining sexual gratification, observing another person doing a private act, knowing that the other person does not consent to being observed for sexual gratification (s67 Sexual Offences Act 2003). (1) Contrary to the judge's direction, the 'act' includes 'for the purpose of obtaining sexual gratification' (only the knowledge was part of the state of mind); hence, the jury's determination was unsafe and the appeal would be allowed. (2) The question of whether the jury should have had expert evidence on whether the appellant had committed the act was (although treated with some doubt) left open for argument in a future case. (3) A Sexual Offences Prevention Order could only be made 'for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant'; (obiter) there was no proper basis for making this order. (4) Because of a gap in the legislation, there was no power to order a retrial, even if the court had wanted to: s16(4) Criminal Appeal Act 1968 requires the court, when allowing such an appeal, to quash the finding and direct that a verdict of acquittal be recorded. 2012‑04‑28 20:38:04 2012 cases, Brief summary, Transcript, Unfitness and insanity cases


R (HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin), [2012] MHLO 41(1) The claimant's immigration detention (firstly 1/5/10-5/7/10, then 5/11/10-15/12/10) had been unlawful; (2) the time it took to transfer him to hospital (i.e. 1/5/10-5/7/10) was manifestly unreasonable and unlawful; (3) the policy introduced on 26/8/10 in relation to detention of people with mental illness was unlawful in breach of the defendant's duties under s71 Race Relations Act 1976 and s49A Disability Discrimination Act 1995. (4) The circumstances of the claimant's detention breached Article 3 during both periods. 2012‑04‑28 18:33:48 2012 cases, Brief summary, Repatriation cases, Transcript


R v Ahmed [2012] EWCA Crim 708, [2012] MHLO 40The appellant was found unfit to plead, spent 35 years subject to s37/41, pleaded guilty to diminished responsibility manslaughter, was given an IPP sentence with a 63-month tariff, and was transferred back to hospital under s47/49. (1) The appropriate minimum term was 39 months. (2) The appeal was adjourned to obtain medical evidence and for future consideration of whether a hospital order ought to have been imposed. 2012‑04‑28 18:22:13 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


R (Sutton) v Calderdale Council [2012] EWHC 637 (Admin), [2012] MHLO 39Costs judgment in mental health/community care judicial review: no order for costs. 2012‑04‑28 18:02:06 2012 cases, Brief summary, Miscellaneous, Transcript


MM (Zimbabwe) v SSHD [2012] EWCA Civ 279, [2012] MHLO 38 — Immigration case. "In my view, the Upper Tribunal was diverted, by reason of the arguments advanced, from an important aspect of the case, namely, whether it was disproportionate to deport the appellant on the grounds of his previous convictions in the light of the evidence of the prognosis and the relationship between his mental illness and his offending. The judge never seems to have reached any clear conclusion based on an assessment of the risk of re-offending despite continued medication and support from his family here. If the correct view is that there is no realistic risk of further offending and the prognosis is excellent then it is difficult to see how it could be proportionate to deport this appellant. He has been in this country for 12 years and he has nothing to go back to save his grandmother and great-aunt, if they are still alive." [Summary required.] 2012‑04‑28 17:54:37 2012 cases, No summary, Repatriation cases, Transcript


Republic of South Africa v Dewani [2012] EWHC 842 (Admin), [2012] MHLO 37 — "The appellant appeals against the decision of the Chief Magistrate, Senior District Judge Riddle, dismissing all the grounds on which those acting for him sought to oppose his extradition to South Africa to face the charge of murdering his wife and other related charges. Although we were provided with 80 authorities, the issues are specific to the appellant's mental state and the prison conditions in South Africa which would be applicable to him if extradited." [Summary required.] 2012‑04‑28 17:49:07 2012 cases, No summary, Repatriation cases, Transcript


L v Clinical Director of St Patrick's University Hospital (2012) IEHC 15, [2012] MHLO 36Unsuccessful claim for unlawful detention by 'voluntary patient' who was not allowed to leave hospital ward. 2012‑04‑28 17:43:42 2012 cases, Brief summary, Southern Irish cases, Transcript


Re JC; D v JC [2012] MHLO 35 (COP)JC's daughter D, who had been conceived following a post-marital rape of JC’s ex-wife and adopted by other parents very shortly after her birth, and who had never met or had any contact with JC, sought a statutory will giving her an equal share JC's £3.5m estate alongside his other children (A, B and C). (1) The criterion now for making statutory wills on behalf of adults who lack testamentary capacity is what is in their best interests rather than substituted judgment; however, best interests contains a strong element of substituted judgment. (2) The value of the 'balance sheet' approach is of doubtful effectiveness in statutory will applications, and in this case it was a struggle to identify benefits or disbenefits, but usually there is at least one factor of 'magnetic importance'. (3) In this case, the idea of being remembered with affection for having done the 'right thing' was of no assistance: 'JC has an appalling track record. He has spent his entire lifetime doing precisely "the wrong thing" in his relationships with others, and his malevolence is such that he would rejoice at being remembered by them with disaffection.' (4) A substituted judgment approach would lead to JC dying intestate, but it was in his best interests to make a will in order to appoint independent professional executors who are familiar with the background and can provide continuity in the administration of his estate before and after his death. (5) JC had poor relationships with his other children, but none at all with D: this factor was of 'magnetic importance' so the statutory will would be in favour of A, B and C only. (6) A, B and C would be allowed to decide the devolution of their shares of the estate if any of them predeceased JC, as it was unlikely that they would want their shares to go to each other. (7) The normal rule on costs (that in property and affairs cases the costs be paid by P) was not departed from. 2012‑04‑28 16:56:13 2012 cases, Brief summary, Statutory will cases, Transcript


R v Levey [2012] EWCA Crim 657, [2012] MHLO 34Tariff in life sentence for murder reduced from 24 years to 22 years, partly because the sentencing judge made insufficient allowance for the borderline personality disorder which played a significant part in the killing. 2012‑04‑28 15:47:35 2012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33(1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court. 2012‑04‑13 07:40:18 2012 cases, Brief summary, No transcript, Other capacity cases


DL v A Local Authority [2012] EWCA Civ 253, [2012] MHLO 32The local authority brought proceedings under the High Court’s inherent jurisdiction to protect his parents from DL; these proceedings could not have been brought under the MCA 2005 as the parents did not lack capacity under that Act; DL argued that the MCA, by establishing a comprehensive scheme for adults, had displaced the inherent jurisdiction. (1) The inherent jurisdiction of the High Court in relation to vulnerable adults survives the implementation of the MCA 2005, which only relates to adults who lack capacity as defined in the Act. (2) The absence of any express provision in relation to the inherent jurisdiction implies that it continues to be available, as 'the great safety net', where the Act does not apply; in any event, there is a strong policy justification, the protection of vulnerable adults, for this conclusion. (3) The jurisdiction is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (a) under constraint; or (b) subject to coercion or undue influence; or (c) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. 2012‑03‑28 21:52:47 2012 cases, Brief summary, ICLR summary, Other capacity cases, Transcript


X v MHRT for NI [2012] NIQB 1, [2012] MHLO 31In previous judicial review proceedings, X had established that in NI where there is a mandatory duty to discharge it cannot lawfully be deferred. He now sought to bring a negligence and false imprisonment claim against the Tribunal and the Trust for his detention during a six-week deferral period. To sue the Tribunal he required leave of the High Court (under Article 133 Mental Health (Northern Ireland) Order 1986, the equivalent of s139): the test is whether on the materials immediately available to the court the complaint deserves fuller investigation. Leave was refused because there had been a difficult question of statutory construction and no bad faith or lack of reasonable care. 2012‑03‑24 15:50:12 2012 cases, Brief summary, Northern Irish cases, Transcript


Reynolds v UK 2694/08 [2012] ECHR 437, [2012] MHLO 30(1) A voluntary in-patient killed himself by breaking and jumping out of a sixth-floor window: the court held that there was an arguable claim that an operational duty under Article 2 arose to take reasonable steps to protect him from a real and immediate risk of suicide and that that duty was not fulfilled. (2) There were no domestic civil proceedings available to his mother to establish any liability and compensation due as regards the non-pecuniary damage suffered by her on her son’s death, and therefore there was a violation of Article 13 in conjunction with Article 2. In particular: (a) neither the inquest nor the internal inquiry were an effective remedy; (b) the HRA claim under Article 2 was struck out by the county court because of domestic case law at that time which required gross negligence; (c) the mother had no prospect of obtaining adequate compensation for non-pecuniary damage under the Fatal Accidents Act 1976 (she was not a dependent) or the Law Reform (Miscellaneous Provisions) Act 1934 (death was instantaneous); (d) the lack of adequate compensation would itself reduce access to the civil remedy, as the legal aid 'cost/benefit analysis' would not be met and legal fees were unaffordable. (3) It was not necessary to examine the same complaint under Article 2 alone. (4) €7000 compensation was awarded. 2012‑03‑24 15:14:48 2012 cases, Brief summary, Inquests, Miscellaneous, Transcript


DD v Lithuania 13469/06 [2012] ECHR 254, [2012] MHLO 29 — Breach of Article 5(4) and Article 6(1) in relation to involuntary admission to a psychiatric institution. 2012‑03‑24 14:22:45 2012 cases, Detailed summary, ECHR, ECHR deprivation of liberty cases, Transcript


Seaton v Seddon [2012] EWHC 735 (Ch), [2012] MHLO 28Chancery case partly involving, in relation to the fourth claimant, consideration of the effect of mental incapacity on statutory limitation periods. (1) If a claimant is under one disability (minority) when the cause of action accrued, and subsequently under a second overlapping disability (mental incapacity), the limitation period does not run until he is no longer under the second disability. (2) The question of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced (in this case: whether he was 'of unsound mind [meaning that he] by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing or administering his property and affairs' rather than the new test of whether he 'lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings'. (3) On the facts, the fourth claimant was not 'of unsound mind'; hence he would not meet the new test either. 2012‑03‑24 14:10:16 2012 cases, Brief summary, Other capacity cases, Transcript


Wirral MBC v Salisbury Independent Living Ltd [2012] EWCA Civ 84, [2012] MHLO 27In Housing Benefit cases, a landlord cannot exercise an independent right of appeal to the First Tier Tribunal against a decision of the Local Authority other than in the cases for which specific provision is made by the subordinate legislation. 2012‑03‑24 13:29:37 2012 cases, Brief summary, Miscellaneous, Transcript


R (Broadway Care Centre Ltd) v Caerphilly County Borough Council [2012] EWHC 37 (Admin), [2012] MHLO 26The Claimant unsuccessfully sought permission to challenge the decision of the Defendant local authority to terminate its contract to provide care for elderly dementia sufferers. 2012‑03‑24 13:23:51 2012 cases, Brief summary, Miscellaneous, Transcript


ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. (1) The police actions constituted assault, battery and false imprisonment. There was no need for the police to be aware of the Mental Capacity Act 2005 for the defence in ss5-6 to be made out, but on the facts it was not. When the MCA applies, the common law defence of necessity has no application, but had it applied it would have failed. (2) There was a breach of the DDA 1995 duty to make reasonable adjustments to the normal practice, policy or procedure, and the defence of justification failed. (3) The inhuman or degrading treatment breached Article 3. (4) Even treating purpose and intention as relevant, there was a breach of Article 5. (5) The intereference with ZH's private life under Article 8 was not in accordance with the law or proportionate. (6) Quantum: PTSD £10,000; exacerbation of epilepsy £12,500; DDA £5,000; trespass to the person (loss of liberty £500, pain and distress from assault £250); total £28,250; no aggravated or exemplary damages; no additional HRA damages. 2012‑03‑23 22:00:49 2012 cases, Brief summary, Other capacity cases, Transcript


Re Taylor [2012] MHLO 24 (EPA)(1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally'. [OPG summaries - EPA cases.] 2012‑03‑22 21:04:40 2012 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


R (W) v Dr Larkin [2012] EWHC 556 (Admin), [2012] MHLO 23A warrant for the claimant's transfer to prison was issued on the RC's advice in the context of Broadmoor's DSPD unit being about to close on 29/3/12. (1) It is not unlawful for an RC to tick both the 'no longer requires treatment in hospital for mental disorder' and the 'no effective treatment for his disorder can be given in the hospital to which he has been removed' boxes on the s50 proforma. (2) There was no evidence that the views expressed on the form were not those of the RC or that he had subordinated his clinical judgment to expediency or national strategies. (3) No relief would have been granted even had there been unlawfulness: the claimant had to leave Broadmoor, no MSU would then take him, so he had to return to prison in any event. 2012‑03‑20 22:07:58 2012 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript


Austin v UK 39692/09 [2012] ECHR 459, [2012] MHLO 22 — Kettling did not breach Article 5. [Summary required.] 2012‑03‑19 22:51:40 2012 cases, Deprivation of liberty, ECHR, No summary, Transcript


Re H [2012] MHLO 21 (LPA)The donor used the 2007 version of the LPA prescribed form and failed to tick the box to confirm that she had read (or had read to her) the prescribed information on pages 2, 3 and 4. On the attorney's application the court was unable to find on balance of probability that the donor had read (or had read to her) the prescribed information. This was a failure of execution and the court had no discretion to uphold it. [OPG summary - LPA case.] 2012‑03‑19 22:36:29 2012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript


Re Forrest [2012] MHLO 20 (LPA)The donor included the following guidance: "I hereby express the wish that my Attorneys will continue to pay my contribution to the school fees of my granddaughters, A and B, as per my previous pattern of contributions." On the application of the Public Guardian the guidance was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012‑03‑19 22:31:08 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Ian Brady [2012] MHLO 19 (FTT)(1) Ian Brady's Mental Health Tribunal hearing will be held on 9/7/12 with a time estimate of 8 days; (2) the hearing at Ashworth will be broadcast at the Civil Justice Centre Manchester where the public and media can observe; (3) in relation to the hearing itself, the public will not be allowed to attend, and the position of the media will be the subject of further directions. 2012‑03‑12 23:08:05 2012 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript


R v Dowds [2012] EWCA Crim 281, [2012] MHLO 18The appellant argued that voluntary acute intoxication (voluntary and uncomplicated by any alcoholism or dependence) is capable of giving rise to the partial defence of diminished responsibility on an indictment for murder under the amended Homicide Act 1957 because it is a 'recognised medical condition'. Held: (1) the presence of a 'recognised medical condition' is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility; (2) voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility. 2012‑03‑05 22:07:10 2012 cases, Brief summary, Diminished responsibility cases, Transcript


JB v MHTS [2012] MHLO 17 (ScotSC)The MHTS declared under section 257 Mental Health (Care and Treatment) (Scotland) Act 2003 that JB was no longer to be the named person on the basis that it was inappropriate for her to continue as such. The decision was made by a Convenor (legal member) sitting alone, but should have been made by a full panel: the tribunal was faced with an important substantive decision; there was no emergency; even if there had been extant proceedings, this was not a 'preliminary' or 'interim' decision within the rules. The tribunal was therefore improperly constituted, and the appeal was allowed. 2012‑03‑05 21:08:54 2012 cases, Brief summary, Scottish cases, Transcript


R v Lucas [2012] EWCA Crim 182, [2012] MHLO 16The renewed application for extension of time (the delay being caused by the appellant pondering negative legal advice before deciding to appeal anyway) in which to apply for leave to appeal against restriction order was refused, as there was ample material to justify the restriction order. 2012‑03‑05 20:47:40 2012 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


Re Lane [2012] MHLO 15 (LPA)The donor made an LPA on 3 May 2011 using the 2007 prescribed form. The transitional provisions of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment Regulations) 2009, which introduced new prescribed forms, provide that an instrument executed by the donor before 1 April 2011 on the 2007 prescribed form is capable of being a valid lasting power of attorney. The Public Guardian made an application to the court for the severance of an invalid restriction, and drew the court's attention to the date of execution, submitting that the 'old' forms were not materially different from the 'new' forms. The court accepted that the 'old' forms differed from the 'new' forms in an immaterial respect and were accordingly within paragraph 3(1) of Schedule 1 of the MCA, which provides that an instrument which differs in an immaterial respect in form or mode of expression from the prescribed form is to be treated by the Public Guardian as sufficient in point of form and expression. [OPG summary - LPA case.] 2012‑03‑05 19:04:11 2012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript


Crawford v Suffolk MH Partnership NHS Trust [2012] EWCA Civ 138, [2012] MHLO 14The employees had been dismissed for gross misconduct for restraining a patient on a chair which was tied to a table; they disputed the allegation that they tied the patient to the chair with a sheet. (1) The Employment Tribunal had been entitled to conclude that there had been two procedural errors (in failing to obtain the witness's first statement, and in carrying out a practical experiment on the chair without notification to the appellants) and that they were errors that a reasonable employer would not have made; although the ET went too far in saying no reasonable employer could have preferred the witness's evidence over the employees', this did not invalidate the finding of unfair dismissal. (2) The case was remitted to the ET to consider the Polkey point (reduction in compensation based on chance of dismissal following fair procedure) but the 25% reduction for contributory fault (failure to report the incident) was upheld. (3) (Obiter) The court expressed scepticism about the need for suspension during the disciplinary process, and stated that, as the conduct did not deserve the epithet 'criminal', the police should never have been involved: while the hospital must act transparently it also owes duties to long-serving staff. 2012‑03‑05 11:26:17 2012 cases, Brief summary, Miscellaneous, Transcript


Coombs v Dorset NHS PCT [2012] EWHC 521 (QB), [2012] MHLO 13Whether the claimant, who had sustained a serious head injury while a detained patient, should be permitted to fund his future care. (1) The defendant argued that (a) a detained patient could not choose to pay for his treatment, particularly because the RC chose where and how he was treated; (b) allowing payment would create a contract, contrary to the purpose of the MHA to take care and treatment out of patients’ hands; (c) there was no significant difference compared with prisoners, whose expenses are met by the government under s51 Prison Act 1952; (d) while the statute did not prohibit payment, it would be contrary to public policy to allow a patient to use his own funds. (2) The claimant argued that (a) there was no reason why a detained patient should not be able to pay if he wishes; (b) while the patient could not choose where or how he was treated, he should be able to top-up payments if he preferred a placement for which the funding authority were unwilling to pay; (c) denying the right to pay would breach Article 5. (3) Held: (a) the relationship between care providers and a detained patient was different to that with ordinary patients, as the RC has the right to decide on appropriate placement and treatment, but if the patient could pay for a particular appropriate placement or treatment there was nothing to prevent this; (b) prisoners and detained patients should not be regarded in the same way: with patients there was no punitive element; patients are not detained for finite periods; the purpose and effect of s51 Prison Act 1952 had no application to patients; (c) Article 5 relates to lawfulness of detention, not conditions of detention (which concerned Article 3); (d) public policy considerations amounted to mere repetition of other arguments; (e) a detained patient is not prevented from paying for his own care or treatment. The defendant was granted permission to appeal. [Based on Lawtel summary.] 2012‑03‑05 08:57:00 2012 cases, Brief summary, Miscellaneous, No transcript


Long v Rodman [2012] EWHC 347 (Ch), [2012] MHLO 12The general guardian (under an order made by a court in Nevada) sought to be appointed deputy in place of the existing deputy. Variation or discharge under s16(7) must be done in accordance with P's best interests; in this case a change of deputy would not be in P's best interests. 2012‑03‑01 23:01:30 2012 cases, Brief summary, Other capacity cases, Transcript


R (NM) v LB Islington [2012] EWHC 414 (Admin), [2012] MHLO 11A prisoner whose release was about to be considered by the Parole Board sought judicial review of the local authority's decision not to conduct a s47 NHSCCA 1990 needs assessment with a view to provision of accommodation and support services if he were released from prison. (1) The connection between the Parole Board's consideration of NM's particular case and his release was too 'conditional and speculative' to fall within s47, or within the pragmatic 'about to be in need' or 'may reasonably be considered to be liable' tests from the B case. (2) In other cases of discharge from hospital or prison it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority. (3) Consideration of whether the Convention on the Rights of Persons with Disabilities can be relied upon. 2012‑03‑01 22:49:59 2012 cases, Community care, Detailed summary, ICLR summary, Transcript


R v Chiles [2012] EWCA Crim 196, [2012] MHLO 10The judge should not have should not have taken into account her concerns about the future of the NHS (she had said, 'I cannot be confident in the current fluctuating state of the NHS that the security that the public needs to be protected from you will be ensured unless there is an another government department which has input into the issue of your release and that is what I will achieve by the section 41 order') but there was ample material to justify the conclusion that a restriction order was necessary for the protection of the public from serious harm. 2012‑03‑01 22:27:40 2012 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


R v Stead [2012] EWCA Crim 92, [2012] MHLO 9The appellant, who had been sentenced to ten years' detention in a young offender institution together with an indefinite Sexual Offences Prevention Order, successfully argued for the imposition of a hybrid order under MHA 1983 s45A. 2012‑02‑09 23:55:27 2012 cases, Brief summary, Hybrid order cases, Missing from Bailii, Transcript


R (Moussaoui) v SSHD [2012] EWHC 126 (Admin), [2012] MHLO 8 — Immigration case with a mental health element. [Summary required.] 2012‑02‑09 23:32:33 2012 cases, No summary, Repatriation cases, Transcript


Re L; K v LBX [2012] EWCA Civ 79, [2012] MHLO 7Article 8 does not require that maintenance of existing family life arrangements be a 'starting point' in best interests decisions. 2012‑02‑08 13:05:04 2012 cases, Best interests, Brief summary, Transcript


Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] MHLO 6(1) The operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA. (2) There was a 'real and immediate' risk to the patient's life of which the Trust knew or ought to have known and which it failed to take reasonable steps to avoid, so the obligation was breached. (3) The patient's parents were 'victims' within the meaning of Article 34 of the Convention. (4) They had not lost their victim status by settling a negligence claim, as (although it had in substance acknowledged its breach) the Trust had not made adequate redress. (5) The one-year limitation period in s7(5) HRA 1998 was extended becuase the extension was short, the Trust suffered no prejudice, the claimants acted reasonably in delaying, and there was a good claim. (6) The Court of Appeal's assessment of damages was upheld, and £5000 was awarded to each parent. 2012‑02‑08 12:33:14 2012 cases, Brief summary, ICLR summary, Inquests, Transcript


Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC), [2012] MHLO 5The UT judge reviewed his previous decision because he had overlooked a legislative provision which could have had a material effect on the decision: in this case MCA 2005 s7, which provides that 'If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.' (1) Although the purported tenancy agreement between P and her father was void because the lack of capacity was known, under s7 P was still 'liable to make payments in respect of the dwelling which she occupies as her home' so she was entitled to benefits under the Housing Benefits Regulations 2006. (2) Even if 'services' in s7 is not wide enough to cover the provision of accommodation, the common law rules as to necessaries survive and the provision of accommodation is an obvious necessary. 2012‑02‑04 17:11:36 2012 cases, Brief summary, Other capacity cases, Transcript


Re JDS; KGS v JDS [2012] EWHC 302 (COP), [2012] MHLO 4 — "This is an application for a gift to be made to the parents of a young man who has been awarded damages for clinical negligence. The purpose of the gift is to reduce the amount of Inheritance Tax that they may have to pay on his death." [Summary to follow.] 2012‑01‑27 20:10:27 2012 cases, Best interests, No summary, Transcript


Re H; A Local Authority v H [2012] EWHC 49 (COP), [2012] MHLO 3 — "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.] 2012‑01‑27 20:03:41 2012 cases, Capacity to consent to sexual relations, No summary, Other capacity cases, Transcript


R v Clinton [2012] EWCA Crim 2, [2012] MHLO 2In the new 'loss of control' partial defence to murder, which replaces the provocation defence, when determining whether a loss of self-control had a 'qualifying trigger' (as set out in s55(3) and (4) Coroners and Justice Act 2009) 'the fact that a thing done or said constituted sexual infidelity is to be disregarded' (s55(6)(c)). The Court of Appeal held that where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it. 2012‑01‑17 22:15:23 2012 cases, Brief summary, Other criminal law cases, Transcript


Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1(1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded. 2012‑01‑17 22:03:51 2012 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Other capacity cases, Transcript


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