ICLR summary

These are cases for which the ICLR have kindly agreed that their WLR (D) case report be reproduced on the relevant MHLO page.

Case and summary Date added Categories
R (Jollah) v SSHD [2018] EWCA Civ 1260 — "The context is one of immigration detention. The claimant, who is the respondent to this appeal (and who for present purposes I will call "IJ"), was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. Such curfew was imposed by those acting on behalf of the appellant Secretary of State purportedly pursuant to the provisions of paragraph 2 (5) of Schedule 3 to the Immigration Act 1971 (as it then stood). It has, however, been accepted in these proceedings that, in the light of subsequent Court of Appeal authority, there was no power to impose a curfew under those provisions. Consequently, the curfew was unlawfully imposed. The question arising is whether IJ is entitled to damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The trial judge, Lewis J, decided that he was. Having so decided, the judge at a subsequent hearing assessed the damages at £4,000: [2017] EWHC 330 (Admin); [2017] EWHC 2821 (Admin). The Secretary of State now appeals, with leave granted by the judge, against the decision that IJ was entitled to damages for false imprisonment. IJ cross-appeals, with leave granted by Singh LJ, against the amount of the award of damages. It is said on behalf of IJ that a much greater award should have been made." 2019‑01‑29 14:44:09 2018 cases, Cases, ICLR summary, Unlawful detention cases

R v Tunstill [2018] EWCA Crim 1696 — "This was a case where the child was killed soon after birth so that this case can be distinguished from the situation where mental ill health, usually post-partum psychosis, develops over a period of time. Nonetheless, there was evidence from Dr Bashir and Dr Khisty which showed that notwithstanding the existence of the appellant's pre-birth mental disorder, the effects of giving birth had led to a further condition, characterised by Dr Bashir as an acute stress reaction which was a causative factor in disturbing the balance of the appellant's mind. The issue of causation is a matter of fact for a jury after appropriate direction from a judge as to what can constitute a legally effective cause. For the reasons given, we consider that the effects of birth are not required by s.1(1) to be the sole cause of a disturbance of balance of the mind. In the circumstances, we are persuaded that the judge should not have withdrawn infanticide from the jury. There was evidence fit for the jury's consideration. It is not for this court to assess the likelihood of its success. Dr Barlow's evidence was to the contrary, but the issue for us is whether a jury should have had this alternative option to consider. We think it should have had that opportunity. In the circumstances, therefore, the conviction for murder is unsafe and the verdict is quashed. In our judgment, the interests of justice require a re-trial and we so order." 2019‑01‑21 14:51:33 2018 cases, Cases, ICLR summary, Other criminal law cases

John Blavo v Law Society [2018] EWCA Civ 2250The Law Society successfully appealed against a decision to set aside two statutory demands (of £151,816.27 and £643,489.20) which had been served on John Blavo in relation to costs incurred in respect of the intervention into his practice. 2019‑01‑01 17:01:07 2018 cases, Brief summary, Cases, ICLR summary, Miscellaneous, Transcript

R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852The patient's mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, the Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117. (1) The patient did not "cease to be detained" or "leave hospital" within the meaning of s117(1) when on leave and so was not a person to whom s117 applied, and also the services provided did not constitute "after-care services" within the meaning of s117(6). (2) In other cases, such as a patient living in the community on a either a full-time or part-time trial basis, the s117 duty could arise. (3) (Obiter) It was difficult to see how s117 could have covered the mother's costs as there was no evidence that she was authorised to provide services on behalf of any CCG or LA. (4) The MHA Code of Practice is analogous to delegated legislation (which can only be used as an aid to interpretation if it formed part of Parliament's background knowledge when legislating) and so cannot be used to construe s117(1) which is part of the original text. (5) The court was critical of and provided guidance in relation to the quality of pleadings in statutory interpretation cases. (6) Even if the evidence provided by Mind's QC in written submissions had been relevant, it would not excuse the flagrant breach of the court's order not to stray into the giving of evidence. The matters which are admissible are so limited in statutory interpretation cases that it may be that there is nothing useful an intervenor can contribute. 2018‑12‑20 14:51:52 2018 cases, After-care, Brief summary, Cases, ICLR summary, Transcript

Re AB (Inherent Jurisdiction: Deprivation of Liberty) [2018] EWHC 3103 (Fam)AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty. The High Court extended the inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty (firstly, it was clear that there was no legislative provision governing this situation in that the Mental Health Act provided no remedy; secondly, it was in the interests of justice; and, thirdly, there were sound and strong public policy justifications). The court order: authorised the deprivation of liberty for 12 months; required the applicant to apply to court if the restrictions increase, and no less than one month before the expiry of the authorisation; and provided for a review on the papers unless a party requests or the court requires an oral hearing. 2018‑12‑19 01:55:42 2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Inherent jurisdiction cases, Transcript

R v Kurtz [2018] EWCA Crim 2743 — "The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1)(b) of the Mental Capacity Act 2005 ('MCA 2005) of which the Appellant was convicted. This provision has not previously been considered by the Court of Appeal. ... The essential question at the heart of this appeal is whether, on a prosecution for the offence contrary to s 44(2) read with s 44(1)(b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as 'the lack of capacity requirement'. ... The submission by Ms Wade QC on behalf of the Appellant was that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1)(b) of the MCA 2005 even if she had wilfully neglected her mother. ... Despite our comments in [19] above as to the evidence which suggests that, at a minimum, the Appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge's failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed." 2018‑12‑10 22:06:13 2018 cases, Cases, EPA cases - all, EPA cases - other, ICLR summary, No summary, Transcript

SSJ v MM [2018] UKSC 60The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient. 2018‑11‑28 13:49:47 2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Powers, Transcript

Public Guardian v DA [2018] EWCOP 26 — "This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment." 2018‑10‑15 20:03:20 2018 cases, 39 Essex Chambers summary, ICLR summary, LPA cases - all, LPA cases - other, Transcript

R v Taj [2018] EWCA Crim 1743 — (1) Appeal against conviction: "The defence sought to rely on self-defence as codified in s76 Criminal Justice and Immigration Act 2008 noting, in particular, s76(4)(b) which makes it clear that the defence is available even if the defendant is mistaken as to the circumstances as he genuinely believed them to be whether or not the mistake was a reasonable one for him to have made. Although s76(5) provides that a defendant is not entitled to rely upon any mistaken belief attributable to intoxication that was voluntarily induced, it was argued that as there was no suggestion that Taj had alcohol or drugs present in his system at the time, he was not 'intoxicated' and so was not deprived of the defence. It was also submitted that R v McGee, R v Harris, R v Coley [2013] EWCA Crim 223 supported the proposition that to be in a state of 'voluntarily intoxication' there had to be alcohol or drugs active in the system at the time of the offence. ... In our view, the words "attributable to intoxication" in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia. This is consistent with common law principles. We repeat that this conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse. In the circumstances, we agree with Judge Dodgson, that the phrase "attributable to intoxication" is not confined to cases in which alcohol or drugs are still present in a defendant's system. It is unnecessary for us to consider whether this analysis affects the decision in Harris: it is sufficient to underline that the potential significance of voluntary intoxication in the two cases differs." The appeal against conviction was dismissed. (2) The application for leave to appeal against sentence was refused. 2018‑08‑08 20:56:57 2018 cases, ICLR summary, Other criminal law cases, Sentence appeal cases, Transcript

NHS Trust v Y [2018] UKSC 46 — "The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. ... In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases." 2018‑07‑31 21:46:38 2018 cases, ICLR summary, Medical treatment cases, Transcript

John Blavo v Law Society [2017] EWHC 561 (Ch) — "In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums." 2018‑07‑11 12:23:54 2017 cases, Cases, ICLR summary, Miscellaneous, No summary, SRA decisions, Transcript

John Blavo v Law Society [2017] EWHC 561 (Ch) — "In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums." 2018‑07‑11 12:23:54 2017 cases, Cases, ICLR summary, Miscellaneous, No summary, SRA decisions, Transcript

R (Conway) v SSJ [2018] EWCA Civ 1431 — "This is an appeal from the order dated 5 October 2017 of the Divisional Court (Sales LJ, Whipple and Garnham JJ) dismissing the claim of the appellant, Mr Noel Conway, for a declaration under section 4 of the Human Rights Act 1998 in respect of section 2(1) of the Suicide Act 1961, which imposes a blanket ban on assisted suicide. Mr Conway contends that section 2(1) constitutes a disproportionate interference with his right to respect for his private life under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms." 2018‑07‑02 21:28:43 2018 cases, ICLR summary, Miscellaneous, Transcript

WB v W District Council [2018] EWCA Civ 928 — "This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996. ... The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need..." 2018‑04‑27 20:10:34 2018 cases, ICLR summary, Other capacity cases, Transcript

R v Thompson [2018] EWCA Crim 639 — "These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983." 2018‑04‑09 23:01:37 2018 cases, ICLR summary, Sentence appeal cases, Transcript

Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong." 2018‑03‑28 22:58:54 2017 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

ET v JP [2018] EWHC 685 (Ch) — "This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958. ... The way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act." 2018‑03‑28 21:47:31 2018 cases, ICLR summary, Other capacity cases, Transcript

R v Edwards [2018] EWCA Crim 595These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s.37/41 and s.45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle. 2018‑03‑28 09:21:34 2018 cases, Brief summary, ICLR summary, Sentence appeal cases, Transcript

M v A Hospital [2017] EWCOP 19 — "This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs [2017] EWCA Civ 1169, it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her." 2018‑02‑16 23:28:05 2017 cases, ICLR summary, Medical treatment cases, Transcript

R (Gourlay) v Parole Board [2017] EWCA Civ 1003 — "Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?" 2018‑02‑13 01:41:11 2017 cases, ICLR summary, Prison law cases, Transcript

Re KT [2018] EWCOP 1 — "These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15, [2016] MHLO 31. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements." 2018‑02‑05 23:03:08 2018 cases, Deprivation of liberty, ICLR summary, Transcript

Loake v CPS [2017] EWHC 2855 (Admin) — "For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity." 2018‑02‑04 16:28:33 2017 cases, ICLR summary, Transcript, Unfitness and insanity cases

R (VC) v SSHD [2018] EWCA Civ 57 — "There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention." 2018‑02‑02 23:41:30 2018 cases, ICLR summary, Repatriation cases, Transcript

R (Mitocariu) v Central and North West London NHS Foundation Trust [2018] EWHC 126 (Admin)Two hospital order patients contended that if for any reason they were not in receipt of benefits then the trust should provide regular payments to ensure their dignity was maintained whilst in care. (1) The trust did have a power, arising from s43 NHS Act 2006 (which identified the functions of foundation trusts), and either s46 or s47 (which provided sufficiently general powers), to make payments to patients. Any contract with NHS England purporting to restrict the statutory power would be ultra vires. Similarly, any payment outside the s43 purposes (namely, the provision of services to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health) would be ultra vires. (2) The amount, timing and frequency of payments was a matter for the discretion of the Defendant, taking into account all relevant factors, including the specific therapeutic requirements of the patient. (3) A standardised approach of making regular payments irrespective of and unrelated to the therapeutic needs of the patient, as sought by the Claimants, would be outside the powers granted to a foundation trust. (4) On the facts, the Defendant had lawfully exercised its power: the financial circumstances of the patients were regularly considered and addressed appropriately (e.g. paying for a winter coat and travel costs). (5) The absence of a policy did not mean that the Defendant had acted unlawfully. 2018‑02‑02 00:33:06 2018 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

NHS Trust v Y [2017] EWHC 2866 (QB), [2017] MHLO 37 — "This is a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient's family are agreed that it is not in the patient's best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn." 2017‑11‑26 01:18:30 2017 cases, ICLR summary, Medical treatment cases, Transcript

Tinsley v Manchester City Council [2017] EWCA Civ 1704, [2017] MHLO 36 — "The question in this appeal is whether a person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released from detention but still requires "after-care services" is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor." 2017‑11‑08 21:55:03 2017 cases, After-care, ICLR summary, Transcript

SSHD v KE (Nigeria) [2017] EWCA Civ 1382, [2017] MHLO 29 — "This is an appeal [which] gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is 'a foreign criminal who has been sentenced to a period of imprisonment of at least four years' for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights to deport him." 2017‑09‑20 21:35:34 2017 cases, ICLR summary, Repatriation cases, Transcript

Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436, [2017] MHLO 23 — "[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention." 2017‑07‑02 23:01:01 2017 cases, ICLR summary, Transcript, Upper Tribunal decisions

McCann v State Hospitals Board for Scotland [2017] UKSC 31, [2017] MHLO 22 — "This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. ... Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. ... [T]he prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. ... [B]ut for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCann’s article 8 right to respect for his private life. ... The article 14 challenge ... fails." 2017‑06‑15 11:45:10 2017 cases, ICLR summary, No summary, Scottish cases, Transcript

R v Joyce and Kay [2017] EWCA Crim 647, [2017] MHLO 20 — "These two appeals have been heard together because each involves a consideration of the judgments in R v Stewart [2009] EWCA Crim 593, [2009] 2 Cr App R 30 and AG's ref (no 34 of 2014) sub nom R v Jenkin [2014] EWCA Crim 1394, [2014] MHLO 56, [2014] 2 Cr App R (S) 84. Both appellants suffered from schizophrenia and killed whilst under the influence of alcohol and or drugs." 2017‑05‑25 23:27:47 2017 cases, Diminished responsibility cases, ICLR summary, Sentence appeal cases, Transcript

Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 18 — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?" 2017‑05‑10 12:41:50 2017 cases, ICLR summary, No summary, Repatriation cases, Transcript

SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16(1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of Article 5 deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme. 2017‑05‑07 23:52:25 2017 cases, Brief summary, Deprivation of liberty, ICLR summary, Powers, Transcript

R (Liverpool City Council) v SSH [2017] EWHC 986 (Admin), [2017] MHLO 15 — "By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine." 2017‑05‑06 23:09:09 2017 cases, Deprivation of liberty, ICLR summary, Transcript

R (YZ) v Oxleas NHS Foundation Trust [2017] EWCA Civ 203, [2017] MHLO 14 — "This case involves a challenge by way of judicial review to the decision made by a psychiatrist at the Oxleas NHS Foundation Trust (Oxleas), the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital (operated by the second respondent to whom I shall refer to as Broadmoor) and the decision of Broadmoor to accept him. ... He challenged the decision made to transfer him to Broadmoor on the basis that it was unlawful and in breach of his rights under the European Convention on Human Rights. He contended that he should have been transferred to a Medium Secure Unit. 2017‑04‑29 22:17:07 2017 cases, ICLR summary, Miscellaneous, Transcript

N v ACCG [2017] UKSC 22, [2017] MHLO 11 — "So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'." 2017‑04‑27 22:59:08 2017 cases, Best interests, Brief summary, ICLR summary, Transcript

R v Holloway [2016] EWCA Crim 2175, [2016] MHLO 57 — "The applicant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. ... Subsequently, the judge decided to appoint counsel, a Mr David Malone, to assist the court and the applicant with legal issues. ... Ms Tayo asserts that the judge should have refused to allow the applicant to represent himself. She conceded, as she must, that he had been deemed fit to plead and stand trial and in principle had a right to defend himself but she maintained that the judge was obliged to force legal representation on him because of the nature and extent of his mental illness. ... Our conclusion on ground 1 can be stated shortly. This applicant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. ... It is clear that a defendant who is fit to stand trial cannot dismiss his legal representatives, insist on representing himself and then come to this court claiming he should not have been allowed to represent himself. ... The circumstances in which an advocate is appointed are very restricted. A memorandum dated 19 December 2001 agreed between the then Attorney General and Lord Chief Justice states in clear terms that an amicus will not be appointed for the purposes of cross‑examination in criminal trials and they will not be appointed 'simply because a defendant in criminal proceedings refuses representation'. Her Majesty's Attorney may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. Mr Little invited us to note that in such a situation, it is not the court who appoints the advocate but the Attorney and the advocate does not act on behalf of an accused in cross‑examining witnesses or presenting arguments before a jury. ... It is now accepted that a court has an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. In this case, however, an intermediary was not necessary. HHJ Lyons, with the best of intentions, purported to appoint an amicus 'to assist the court' who in truth was appointed to act as a defence advocate and adviser. We see considerable force in Mr Little's submissions that, save where statute provides, there is no power to appoint an advocate in these circumstances to perform such a role. Further, there is no need for any such power. The court now has ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation has been refused. Accordingly, we can find no basis for the appointment of Mr Malone, as helpful as he undoubtedly was to the court and to the applicant. Through no ..→ 2017‑02‑08 21:06:39 2016 cases, ICLR summary, No summary, Transcript, Unfitness and insanity cases

AP v Tameside MBC [2017] EWHC 65 (QB), [2017] MHLO 4 — "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant." 2017‑02‑02 19:55:25 2017 cases, Deprivation of liberty, ICLR summary, No summary, Transcript, Unlawful detention cases

R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a ..→ 2017‑01‑26 15:20:11 2017 cases, Deprivation of liberty, ICLR summary, Inquests, No summary, Transcript

R v GA [2014] EWCA Crim 299, [2014] MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent. In this particular case, expert evidence was led before the jury on the question of the complainant's capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is 'expert', relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. What is more, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time. Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury's finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations." 2016‑12‑29 21:08:41 2014 cases, Capacity to consent to sexual relations, Criminal law capacity cases, ICLR summary, No summary, Transcript

Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB), [2016] MHLO 56 — "On 25th August 2010 Ms Henderson ('the Claimant') stabbed her mother to death. She was suffering from paranoid schizophrenia at the time, and her condition had recently worsened. It is common ground between the parties that this tragic event would not have happened but for the Defendant's breaches of duty in failing to respond in an appropriate way to the Claimant's mental collapse. The Claimant has now brought proceedings in the tort of negligence claiming general damages under various heads, special damages and future losses, and liability has been admitted. The Defendant's position is that all of the claims should be defeated on illegality or public policy grounds, and that binding authority of the Court of Appeal and House of Lords compels that outcome. ... In my view, there are three main questions for me to consider within the agenda circumscribed by the preliminary issue: (1) the correct interpretation of the sentencing remarks of Foskett J [in the Claimant's case], and the extent to which it is permissible, if at all, to go behind them; (2) whether there is binding authority of the Court of Appeal and House of Lords precluding some or all of these claims; and (3) if not, whether the law as accurately enunciated (there remains a dispute between the parties as to what it is) permits, or obviates, the maintenance of some or all of these claims. I frame the questions in this manner because it is the Defendant's submission that I am bound by the decision of the Court of Appeal in Clunis v Camden and Islington HA [1998] QB 978 and that of the House of Lords in Gray v Thames Trains Ltd [2009] 1 AC 1339. If I were to uphold the Defendant's submission on stare decisis, the parties are agreed that I need not express a view on question (3) above on the hypothetical basis that I might be overruled. If, on the other hand, question (3) does properly arise for decision, the parties are agreed that the case should be listed for further argument on this point. ...I ... refuse to issue a certificate under section 12 of the Administration of Justice Act 1969. I also refuse permission to appeal to the Court of Appeal for the reason indicated under paragraphs 99 and 104 above." 2016‑12‑27 21:07:36 2016 cases, ICLR summary, Miscellaneous, Transcript

SSJ v Staffordshire County Council and SRK [2016] EWCA Civ 1317, [2016] MHLO 55 — "The issue in this case is whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights, it is necessary for a welfare order to be made by the Court of Protection pursuant to the Mental Capacity Act 2005 in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention." 2016‑12‑27 20:47:27 2016 cases, Deprivation of liberty, ICLR summary, No summary, Transcript

OH v Craven [2016] EWHC 3146 (QB), [2016] MHLO 52 — "This brings me back to the focus of my concern. The firm of solicitors who have acted in the successful litigation will have established a relationship of trust and confidence with the claimant or the litigation friend. At the successful conclusion of the litigation the person in whom trust is reposed then suggests a further transaction out of which its associate will derive a personal benefit. The adviser suggests that a private trust is the preferable arrangement, and that its associated trust corporation should be appointed trustee and should charge for acting, although there are many other trust corporations who could fulfil the role. So the client is retained for the long term. The solicitors before me suggested that this arrangement was not about an integrated business model (whereby the litigation solicitors secure for their associate the future income stream of management fees, the size of which will be under its control, together with any transactional fees) but was an arrangement for the convenience of clients who wanted a "one stop shop" in personal injury litigation. But this is a shop that stocks only one product. The principled approach to this situation is in my judgment as follows. The law irrebuttably presumes that a solicitor has influence over his client: Etridge [2001] UKHL 44 at [18]. Vesting a large sum of money to which the settlor has recently become absolutely entitled in the settlor's solicitor upon a bare trust for the settlor (but subject to charging and other powers vested in the solicitor) cannot readily be accounted for by ordinary motives. It is a transaction that calls for an explanation (in a way that making a family solicitor the trustee of a family trust or making a partner in the will draftsman's firm the prospective executor simply do not). It gives rise to a rebuttable evidential presumption that the solicitor's influence has been undue. The burden lies on the solicitor to adduce evidence rebutting this presumption. Typically, that evidence will demonstrate that the settlor had independent advice such that the constitution of the bare trust was a spontaneous act undertaken in circumstances which enabled the settlor to weigh matters up and to exercise his or her own free will. How might that be done? In my judgment where the litigation firm proposes the establishment of a "personal injury trust" in relation to a settlement of £1 million or more where its in-house trust corporation is to be a trustee then (drawing on the established practice in applications under the Variation of Trust Act 1958 and in trust compromises) a separate partner in the firm should instruct Chancery Counsel of not less than 5 years' standing to advise the claimant or the litigation friend in writing as to the advantages and disadvantages of the proposed private trust (both as to its strategic advantages and as to its exact provisions, including the advantage of trusts other than bare trusts) and as to the trusteeship arrangements: ..→ 2016‑12‑09 21:19:13 2016 cases, ICLR summary, No summary, Other capacity cases, Transcript

Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, [2016] MHLO 51 — "In the circumstances of the present case, where a party was facing the likelihood of a prison sentence for contempt, but where that party, whom the court accepts had genuine and sincere objections to the welfare determination that had been made, had issued an application for permission to appeal that welfare determination, it was simply premature for the judge to press on with the committal application. The absence of an application for a stay of the order, where it is almost certain that a stay would have been granted pending receipt of the transcript of Baker J's judgment [the welfare determination], should not have been taken as justification for proceeding with the committal application. ... I end with a reminder to contemnors and their representatives of the availability of public funding. ... Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. ...The effect of [a Court of Appeal decision] is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings. Because this is criminal public funding, it can be ordered by the court. ... In the same way, criminal public funding is available in this court." 2016‑12‑06 21:17:17 2016 cases, Contempt of court cases, ICLR summary, No summary, Transcript

R (Lee-Hirons) v SSJ [2016] UKSC 46, [2016] MHLO 38 — "A man is convicted of an offence. Satisfied that he is suffering from mental disorder, the court makes an order for his detention in hospital. Satisfied that it is necessary for the protection of the public, the court also makes a restriction order, which removes from the hospital the power to discharge him. In due course a tribunal directs his discharge from hospital on conditions. Afterwards, however, the Secretary of State for Justice (“the Minister”) exercises his power to recall the man to hospital, where he is subject to renewed detention. This appeal is about the explanation for the recall which the law requires the Minister to provide to the man both at the time of his recall and soon afterwards." 2016‑10‑07 21:15:28 2016 cases, ICLR summary, Ministry of Justice, Transcript

Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam), [2016] MHLO 37 — "FD is an 18 year old young woman. In July 2016 a local authority issued proceedings seeking an injunction under the inherent jurisdiction of the High Court to prevent AD (her father) and GH (a male friend) from having contact with FD and from going to her home. So far as concerns the application for an injunction against GH, the local authority also seeks a power of arrest. The issue before the court is whether a power of arrest may be attached to an injunction granted by the High Court under its inherent jurisdiction in the case of a vulnerable adult who has capacity. ... It is clear that under its inherent jurisdiction the High Court has a wide and largely unfettered discretion to grant injunctive relief to protect vulnerable adults. That discretionary power is at least as wide as its powers in wardship. In Re G the Court of Appeal was in no doubt that under its inherent jurisdiction in wardship the High Court has no power to attach a power of arrest to an injunction. I am in no doubt that the position is exactly the same so far as concerns the inherent jurisdiction to protect vulnerable adults. ... [I]t appears that FD will again be unrepresented at the next hearing, on 17th October, at which the court will determine whether she is a vulnerable person in respect of whom the court should exercise its inherent protective jurisdiction. FD does not accept that she is a vulnerable adult. Neither does she support the local authority's application for injunctions against AD and GH. If she is not, in fact, a vulnerable adult then the orders sought by the local authority would, if made, be in breach of FD's Article 8 right to respect for her private and family life. I make that point simply to highlight the importance and significance for FD of the decisions the court is being invited to make. At the hearing on 17th October FD will be a litigant in person defending an application by a local authority represented by leading counsel. There will be no equality of arms. However hard the court tries to ensure that there is a level playing field, the reality is that FD will be significantly disadvantaged. I can do no more than to invite the Legal Aid Agency to reconsider its decision as a matter of urgency." 2016‑10‑01 23:03:14 2016 cases, ICLR summary, Inherent jurisdiction cases, Transcript

Staffordshire County Council v SRK [2016] EWCOP 27, [2016] MHLO 36 — "This case concerns an individual SRK who was severely injured in a road traffic accident. The effects of those injuries are that (a) he lacks capacity to make decisions on the regime of care, treatment and support that he should receive (SRK's care regime), and (b) applying the approach in Cheshire West (see Surrey County Council v P and others; Cheshire West and Chester Council v P and another [2014] UKSC 19, [2014] AC 896), SRK's care regime creates, on an objective assessment, a deprivation of liberty. SRK was awarded substantial damages that were paid to his property and affairs deputy (the third Respondent IMTC). He lives at a property that has been bought and adapted for him. His regime of care and support there is provided by private sector providers. The damages funded that purchase and adaptation and fund that regime of care. The issue is whether this situation on the ground is a deprivation of liberty that has to be authorised by the Court of Protection (the COP) by it making a welfare order. The test that the COP would apply in making such an order is whether SRK's care regime is the least restrictive available option to best promote his best interests. The same test applies to the decision makers on the ground. It is common ground that at present SRK's care regime satisfies that test." 2016‑09‑25 21:18:42 2016 cases, Deprivation of liberty, ICLR summary, Transcript

Re JM [2016] EWCOP 15, [2016] MHLO 31 — "These five cases are examples of cases in which the procedure to be adopted by the Court of Protection (COP) was left open in my judgment in Re NRA [2015] EWCOP 59, [2015] MHLO 66. That judgment contains the references to the decision of the Supreme Court in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16 and of the President and the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44, which are the essential background to NRA. In short, the five cases were chosen as cases in which it was thought that there was no family member or friend who could be appointed as a Rule 3A representative. That is no longer the position in VE and my reference to the test cases in this judgment are to the remaining four." 2016‑08‑31 20:40:27 2016 cases, Deprivation of liberty, ICLR summary, No summary, Transcript

PJV v Assistant Director Adult Social Care Newcastle City Council [2015] EWCOP 87, [2015] MHLO 138 — "The appeal before me ... relates to the part, if any, that the Court of Protection must play in the finalisation of an award of compensation under the relevant scheme that the Second Respondent (CICA) has decided and the applicant has agreed is to be held on trust." 2016‑08‑29 20:39:18 2015 cases, ICLR summary, No summary, Other capacity cases, Transcript

R v Orr [2016] EWCA Crim 889, [2016] MHLO 21 — "The appeal concerns the definition of 'fitness to plead' and the process engaged by the trial judge in the instant trial which proceeded after he found the defendant 'unfit to be cross examined'. ... Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly found that the appellant had been fit to participate in his trial up to the point of cross examination and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the 'Pritchard' refined criteria. In these circumstances, the procedure to be adopted was clearly set out by section Criminal Procedure (Insanity) Act 1964, 4A. We agree with the submission that this is a statutory mandatory requirement which cannot be avoided by the court's general discretion to order proceedings otherwise, however beneficial to the defendant they may appear. It follows that, in this case, the jury should not have been allowed to return a verdict, other than a verdict of acquittal if they were not satisfied on the evidence already given in the trial that the appellant did the act charged against him. The appeal against conviction must be allowed." 2016‑07‑09 21:55:06 2016 cases, ICLR summary, No summary, Transcript, Unfitness and insanity cases

South Staffordshire and Shropshire Healthcare NHSFT v Hospital Managers of St George's Hospital [2016] EWHC 1196 (Admin), [2016] MHLO 17 — "This is an application for judicial review of a decision by an independent panel on 12 April 2016 to discharge the Interested Party, AU, from detention under the Mental Health Act 1983. It is brought by South Staffordshire and Shropshire Healthcare NHS Foundation Trust and Dr Whitworth (previously AU's responsible clinician). ... To put the case in general terms the claimants are concerned about the Panel's decision to discharge AU in the light of the views of the clinical team and also a decision of the First Tier Tribunal ... which decided on 10 March 2016 not to discharge him from detention. ... The judicial review raises an important point of principle as to the capacity of a body to seek judicial review of a decision which it could have made itself. In broad terms the Trust appointed the Panel and under the 1983 Act it exercised delegated powers. Because AU raised this point in his grounds, Warby J joined Dr Whitworth as a second claimant to the action on 4 May 2016 on the basis that, if the Trust could not seek judicial review, she could. If the Trust and Dr Whitworth can seek judicial review, the grounds they advance against the Panel's decision are, first, that it failed to treat the Tribunal's decision as a relevant consideration and, secondly, that the Panel's decision is irrational in light of the evidence available and the reasons it has given." 2016‑05‑22 22:45:03 2016 cases, Hospital managers hearings, ICLR summary, No summary, Re-sectioning after hearing, Transcript

R (O) v SSHD [2016] UKSC 19, [2016] MHLO 12 — "The appellant, O, is a woman of Nigerian nationality, aged 38. In November 2003, with her son, then aged three, she illegally entered the UK. In July 2008 she pleaded guilty to offences of cruelty towards her son, who had returned to live in Nigeria, and the court sentenced her to 12 months' imprisonment and recommended that she be deported. On 8 August 2008 her sentence came to an end, whereupon the respondent, the Home Secretary, detained her - at first pending the making of a deportation order and then, following the making of such an order, pending her deportation pursuant to it. O's detention, which was at the Immigration Removal Centre at Yarl's Wood in Bedfordshire, continued until 6 July 2011 when, pursuant to a grant of bail on 1 July 2011, she was released. It follows that O was detained at Yarl's Wood for almost three years. The court knows nothing about her circumstances after 6 July 2011 but infers that she has not, or not yet, been deported. ... In the present proceedings, which - chronologically - encompass her fourth claim for judicial review, O challenges the lawfulness of the later period of her detention, namely from 22 July 2010, and in particular from say 4 March 2011, until 6 July 2011. The object of the present proceedings has never been to secure her release, which had already occurred at the time of their issue. The object has been to secure a declaration that the detention was unlawful and, perhaps in particular, an award of substantial damages for false imprisonment. ... O has the misfortune to have suffered for many years from serious mental ill-health. So the appeal requires this court to consider the Home Secretary's policy relating to the detention of the mentally ill pending deportation; and perhaps also to identify the criterion by which the court should determine a complaint that she has failed to implement some aspect of her policy relating to it. Furthermore the Home Secretary is obliged to conduct monthly reviews of whether a person's detention pending deportation should continue. There were, as the Court of Appeal held, defects in the Home Secretary's conduct of the monthly reviews of O's detention between March and July 2011. ... [W]ere O's claim for judicial review permitted to proceed, the result in all likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and an award to her of damages in the sum of £1. ... I would dismiss the appeal." 2016‑04‑28 13:48:52 2016 cases, ICLR summary, Repatriation cases, Transcript

Re Z (Recognition of Foreign Order) [2016] EWHC 784 (Fam), [2016] MHLO 11 — "This judgment considers the exercise of the court's powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union. On 4 March 2016, I made an interim order in respect of a girl, Z, who lives in the Republic of Ireland, declaring that orders made by the High Court of Ireland on 2 March 2016 should stand as orders of this court, thereby permitting emergency admission for treatment in a hospital in this country. At a hearing on is notice on 23rd March, I made a further interim order to that effect. This judgment set out the reasons for those orders." 2016‑04‑08 20:38:22 2016 cases, Deprivation of liberty, ICLR summary, Transcript

Public Law Project v Lord Chancellor [2015] EWCA Civ 1193, [2015] MHLO 136The proposed Legal Aid residence test was lawful (the High Court had been wrong to decide it to be ultra vires and unjustifiably discriminatory). The proposed test is described as follows in the judgment: "To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days). There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it." 2016‑02‑21 22:49:03 2015 cases, ICLR summary, Miscellaneous, Transcript

R (VC) v SSHD [2016] EWHC 273 (Admin), [2016] MHLO 7 — Repatriation case with mental health background. "There are two strands to the contentions made by the Claimant in this claim, as argued before me: (1) a challenge to the lawfulness of his detention on the basis that it was in breach of (a) the Defendant's policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant's detention; (b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant's removal within a reasonable timescale; and (c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time. (2) a challenge to the treatment of the Claimant in detention on the basis that it was: (a) in violation of Article 3 ECHR; (b) contrary to the Mental Capacity Act 2005; (c) discriminatory, contrary to the Equality Act 2010; and (d) procedurally unfair." 2016‑02‑17 21:59:28 2016 cases, ICLR summary, Repatriation cases, Transcript

Birmingham City Council v D [2016] EWCOP 8, [2016] MHLO 5(1) A parent cannot consent to the confinement (i.e. the objective element of Article 5 deprivation of liberty) of a child who has attained the age of 16. (2) The confinement was imputable to the state despite the accommodation being provided under s20 Children Act 1989, as the local authority had taken a central role; in any event, even if D's confinement were a purely private affair the state would have a positive obligation under Article 5(1) to protect him. (3) The judge did not resile from his previous judgment that D's parents could consent to his confinement in hospital when he was under 16. 2016‑01‑31 23:02:21 2016 cases, Brief summary, Deprivation of liberty, ICLR summary, Transcript

R (C) v SSJ [2016] UKSC 2, [2016] MHLO 2(1) There is no presumption of anonymity in proceedings which are about the compulsory powers of detention, care and treatment under the 1983 Act: in each case the judge must decide whether or not anonymity is necessary in the interests of the patient. (2) On the facts, an anonymity order was necessary in the interests of this particular patient. Extracts from judgment: "The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 (“the 1983 Act”). The second issue is whether there should be an anonymity order on the facts of this particular case. ... The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the hospital, those treating him and the other patients there, at risk. The public’s right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure. ... I conclude that an anonymity order is necessary in the interests of this particular patient. His regime before he left hospital, involving escorted leave in the community, demonstrated the need for anonymity and the case is even stronger now (as foreseen in R (M) v Parole Board). Without it there is a very real risk that the progress he has made during his long years of treatment in hospital will be put in jeopardy and his re-integration in the community, which was an important purpose of his transfer to hospital, will not succeed. I would therefore allow this appeal and maintain the anonymity order in place." 2016‑01‑27 23:45:15 2016 cases, Anonymisation cases, Brief summary, ICLR summary, Transcript

Health Service Executive of Ireland v PA [2015] EWCOP 38, [2015] MHLO 107 — "I turn to the specific orders in these three cases. In each case, I conclude that the individual – PA, PB and PC – is an adult within the meaning of paragraph 4 of the Schedule. I conclude that each is habitually resident in the Republic of Ireland. Having considered the orders of the Irish Court, and the provisions in each order that amount to "protective measures" within the meaning of Schedule 3, (including, in each case, the provision that each individual shall be placed and detained at St Andrew's and the various ancillary orders to facilitate and support the placement and detention), I conclude that there are no grounds for refusing to recognise the measures under paragraph 19(3) or (4). I conclude in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); that in each case the individual – PA, PB and PC – satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; that the orders of the Irish Court demonstrate that each will be afforded a regular right of review of his or her detention so as to comply with the ongoing requirements of Article 5(4); that as a result recognising and enforcing the orders will not contravene the ECHR; that the measures in each case are not inconsistent with any other mandatory provision of the law of England and Wales; and that the measures cannot be said to be manifestly contrary to public policy. I shall therefore make the orders declaring that the protective measures in the said orders shall be recognised in England and Wales and enforced in this jurisdiction." 2015‑12‑18 23:03:04 2015 cases, ICLR summary, Other capacity cases, Transcript

Winspear v City Hospitals Sunderland NHSFT [2015] EWHC 3250 (QB), [2015] MHLO 104(1) The core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity. If it is both practicable and appropriate to consult before doing so then, in the absence of some other compelling reason against consultation, it would be procedurally flawed to proceed without consultation. It would not meet the requirements of MCA 2005 s4(7); it would accordingly not be in accordance with the law. It would be an interference with Article 8(1) that is not justified under Article 8(2). (2) The claimant (patient's mother) sought damages both personally and as personal representative. The judge was not persuaded that she has any personal claim for damages, and decided that a declaration reflecting the procedural breach of Article 8 was sufficient. 2015‑11‑29 22:00:53 2015 cases, ICLR summary, Other capacity cases, Transcript

R v Brown (formerly Latham) [2015] EWCA Crim 1328, [2015] MHLO 100 — "The central ground of appeal is that the appellant's conviction is unsafe because the ruling of the judge – viz. that the appellant's conferences at court with his lawyers were to take place in the presence of two nurses from Rampton Hospital – breached his right at common law to consult privately with his lawyers and under Article 6(3)(c) European Convention on Human Rights to "defend himself through legal assistance of his own choosing" (with the concomitant right to private discussions with his lawyers). ... In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step." 2015‑11‑14 21:31:37 2015 cases, ICLR summary, MHLR summary, Other criminal law cases, Transcript

R (LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin), [2015] MHLO 76 — "Maria died while in intensive care at King's College Hospital in London ... Plainly an inquest will be held; that is not in dispute. However, by a written decision ... the Defendant Senior Coroner rejected the argument that Maria was "in state detention" at the time of her death, within the meaning of ss. 7(2)(a) and 48(1) and (2) of the Coroners and Justice Act 2009 and therefore the inquest must be held with a jury. By way of judicial review, the Claimant challenges that conclusion and contends that in the circumstances the Coroner was bound to call a jury. The sole issue for the Court is whether the Claimant's challenge is well-founded." 2015‑10‑30 22:49:39 2015 cases, ICLR summary, Inquests, Transcript

Re AB (A child: deprivation of liberty) [2015] EWHC 3125 (Fam), [2015] MHLO 74 — "There is a large measure of agreement between the parties on the relevant factual matrix and the legal principles applicable to the issues I am asked to determine, namely: (1) Whether AB is deprived of his liberty at X. (2) If so, are the parents and/or the local authority entitled to consent to the same? (3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction? (4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases." 2015‑10‑30 22:39:14 2015 cases, Deprivation of liberty, ICLR summary, Transcript

R (Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin), [2015] MHLO 72 — "This application for judicial review concerns the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2... What this case boiled down to was a consideration of how Article 2 applies to the suicide of mental health patients and an assessment of the (in)adequacy of the Guidance in reflecting the law. I have come to the conclusion that in one material respect the Guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression of what the law is. ... [I]n the absence of a clear recognition that there is a category of case where the investigative duty arises quite irrespective of the existence of arguable breach by the State the Guidance is materially misleading and inaccurate." 2015‑10‑28 23:27:05 2015 cases, ICLR summary, Inquests, No summary, Transcript

Rochdale MBC v KW [2015] EWCA Civ 1054, [2015] MHLO 71(1) The judge (in his second decision) had misinterpreted the consent order (on appeal from his first decision) when he said that the Court of Appeal had not decided that KW was being deprived of her liberty. Therefore, this second appeal would be allowed. (2) The judge was also wrong to say that the Court of Appeal had taken "a procedurally impermissible route" so that its decision was "ultra vires". An order of any court is binding until it is set aside or varied: it is futile and inappropriate for a judge to seek to undermine a binding order by complaining that it was ultra vires or wrong for any other reason. In any event, the consent order was made by a procedurally permissible route: the appeal court has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. If the appeal court is satisfied that (i) the parties' consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. (3) The Court of Appeal stated that the judge's disagreement with the Cheshire West decision was in danger of distorting his approach to these cases and, in light of the two successful appeals, the review should be conducted by a different judge. 2015‑10‑23 22:29:42 2015 cases, Deprivation of liberty, ICLR summary, Transcript

Commissioner of the Police of the Metropolis v Ahsan [2015] EWHC 2354 (Admin), [2015] MHLO 62The Commissioner of Police of the Metropolis applied for an order to impose notification requirements for a period of 15 years on Syed Talha Ahsan under the Counter-Terrorism Act 2008. The notification order would require him for that period to attend police stations to provide, and update, information about his living arrangements and to provide details about his travel plans, for which permission can be refused; breach of the requirements is punishable with imprisonment of up to 5 years. (1) Ahsan had been convicted in the United States of providing material assistance for the Taliban, while they were harbouring Osama bin Laden, through his involvement in a US-hosted website, but he argued that this did not constitute an act which "would have constituted an offence… if it had been done in any part of the United Kingdom…" because it was in fact done within the United Kingdom. The judge decided that (a) Parliament must have intended that the notification requirements should apply to terrorist conduct committed here which results in a conviction in a foreign court, even if it could have been prosecuted here but was not; (b) by inadvertence Parliament had failed to give effect to that purpose; (c) taking a purposive approach, even assuming that all elements of Mr Ahsan's offending occurred here, the offences he was convicted of in the US were corresponding foreign offences. (2) Ashan argued that the Commissioner had failed to take into account relevant considerations and therefore the exercise of discretion to make the application was unlawful. The judge decided that: (a) since there is a discretion, its exercise should be open to public law challenge; (b) only in exceptional circumstances would this be successful, because of the strong legislative steer that, where there has been a corresponding foreign conviction and the requisite sentence has been imposed, an application should be made; (c) the public law challenge should, to avoid wasting time and money, be heard within the 2008 Act proceedings rather than by separate judicial review proceedings; (d) failure to consider the sentencing remarks, his mental health, and the fact that Ahsan had not been prosecuted here, did not render the decision unlawful. (3) The notification requirements did not meet the minimum level of severity required for a successful Article 3 claim. (4) The interference with Ahsan's private and family life was not necessary and proportionate under Article 8: (a) this was an exceptional case where there was no significant future risk; (b) the medical evidence was that that the notification requirements were likely to have a severe adverse impact on Ahsan's mental health, and despite this likelihood the requirements would continue for 15 years with no review mechanism. (5) The application was therefore dismissed. 2015‑08‑23 22:33:37 2015 cases, ICLR summary, Miscellaneous, Transcript

R (Cornwall Council v SSH [2015] UKSC 46, [2015] MHLO 61 — "PH has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. Since the age of four he has received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. Since then he has lived in two care homes in the Somerset area. There is no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue is: which authority should be responsible? This depends, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident". There are three possible contenders: Wiltshire, as the authority for the area where he was living with his family when he first went into care, and which remained responsible for him under the 1948 Act; Cornwall, where his family have lived since 1991; or South Gloucestershire, where he lived with his foster parents from the age of four until his move to Somerset. ... Although none of the other authorities has argued that Wiltshire should be responsible, the court indicated at the beginning of the hearing that this possibility should not be excluded from consideration. ... In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday. On this analysis it follows that PH's placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and ..→ 2015‑08‑07 23:06:04 2015 cases, Community care, Detailed summary, ICLR summary, MHLR summary, Transcript

Re MN (An Adult) [2015] EWCA Civ 411, [2015] MHLO 41 — "The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself." 2015‑05‑24 21:01:44 2015 cases, Best interests, ICLR summary, Transcript

R v Vowles; R (Vowles) v SSJ [2015] EWCA Crim 45, [2015] EWCA Civ 56, [2015] MHLO 16 — "There are before the court: (1) Sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under MHA 1983 s37 as amended with a restriction under s41 of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s47. (2) Sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody." In relation to the criminal aspect: in cases where medical evidence suggests mental disorder, the offending is partly or wholly attributable to that disorder, treatment is available and a hospital order may be appropriate, the court should consider (and, if appropriate, make) a s45A order before considering making a hospital order. 2015‑02‑12 23:21:36 2015 cases, Deprivation of liberty, ICLR summary, MHLR summary, Prison law cases, Sentence appeal cases, Transcript

R (Kent CC) v SSH [2015] EWCA Civ 81, [2015] MHLO 13 — "This case concerns the question of which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the National Assistance Act 1948. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere." 2015‑02‑12 23:03:10 2015 cases, Community care, ICLR summary, Transcript

Re AJ (DOLS) [2015] EWCOP 5, [2015] MHLO 11 — "This case raises a number of issues about the provisions of the Mental Capacity Act 2005, and in particular the amendments that were introduced into that Act by the Mental Health Act 2007 concerning the procedures to be followed in cases of deprivation of liberty. The provisions under consideration include the selection and appointment of relevant person's representatives under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty." 2015‑02‑12 22:48:15 2015 cases, Deprivation of liberty, ICLR summary, Transcript

MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10 — (1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard. Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be 'defiance' of a 'declaration' nor can there be an 'enforcement' of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother's best interests. The course he took was not a 'second best' option but one entirely inimical to his mother's welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings." (3) Guidance: "Such guidance as I can give can only be limited: (i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section ..→ 2015‑01‑31 20:37:41 2015 cases, Brief summary, ICLR summary, Other capacity cases, Transcript

Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB), [2014] MHLO 142 — "These costs appeals raise the question of whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor's retainer. The question is currently of particular importance for solicitors conducting personal injury claims pursuant to conditional fee agreements entered into before 1 April 2013, in respect of which success fees continue to recoverable from defendants ... If such an agreement is found to have terminated by reason of the supervening incapacity of the claimant ... it would not now be possible to replicate the effect of the original contractual arrangements between solicitor and client given that success fees are not generally recoverable in respect of agreement made on or after 1 April 2013 ... No matter how short the period of incapacity ... nor how quickly a deputy was appointed by the Court of Protection in respect of the claimant, the original CFA would be lost and could not, in real terms, be replaced. ... For the reasons set out below, I have reached the ... conclusion ... that the intervening incapacity of a party does not frustrate or otherwise terminate a solicitor's retainer. Whilst such incapacity does have the effect of removing the authority of the solicitor to act on behalf of the party lacking capacity for the duration of that incapacity, such authority can be restored when a deputy is appointed and provides instructions to the solicitors in that capacity, or otherwise if and when the claimant regains capacity. There is no reason, as a matter of authority or legal principle, why an inability to instruct solicitors in the intervening period (which may be quite short) should be taken to have the effect of immediately ending a solicitor's retainer." 2015‑01‑31 19:55:16 2014 cases, ICLR summary, Other capacity cases, Transcript

R v Wells [2015] EWCA Crim 2, [2015] MHLO 5 — "In each appeal and application before the court, the defendant has been found unfit to plead: that is to say, based on medical evidence, the court has found that one or more of the following criteria is satisfied namely that he or she does not have the ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror, to understand the evidence. ... Where a defendant's disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances." 2015‑01‑30 09:41:02 2015 cases, ICLR summary, MHLR summary, Transcript, Unfitness and insanity cases

Hysaj v SSHD [2014] EWCA Civ 1633, [2014] MHLO 135In each of these three cases, which were heard together, the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time. The mental health case involved a nearest relative who had been awarded costs after displacement proceedings and who (nearly six years out of time) wished to appeal against the sum ordered by the judge. The Court of Appeal, having held that the guidance in the Mitchell and Denton cases applied to applications for extensions of time for filing a notice of appeal, dealt with some questions of general importance (public law cases, shortage of funds, litigants in person, the merits). In the mental health case, the extension of time was refused. 2014‑12‑31 16:04:25 2014 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWHC 77 (QB), [2014] MHLO 133 — "This is an appeal from the decision ... to grant summary judgment to the Claimant in a claim against the Estate of the late Mr Mohammed Shafi for outstanding care home fees. It raises interesting and important issues about the relationship between section 7 of the Mental Capacity Act 2005 and the provisions of Part III of the National Assistance Act 1948, Part III of the National Health Service and Community Care Act 1990, and related statutes, regulations and guidance that concern the obligations or powers of a local authority to provide residential accommodation and care services for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. ... The total amount claimed is £62,199.94. The key issue is who, if anyone, is legally liable for payment of fees to the Claimant? There are only two candidates; the Estate of the late Mr Shafi (represented by his wife), and Brent." 2014‑12‑31 15:38:07 2014 cases, Community care, ICLR summary, Other capacity cases, Transcript

NHS Trust v FG [2014] EWCOP 30, [2014] MHLO 118 — "I have been invited by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment. There is concern that in a number of recent cases there has not been a full appreciation or understanding of: (a) the planning to be undertaken in such cases; (b) the procedures to be followed; (c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and (d) the evidence required to support an application to the court." 2014‑12‑30 21:33:15 2014 cases, ICLR summary, Other capacity cases, Transcript

R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712, [2014] MHLO 103The patient had been placed under a hospital order when he was resident in Wiltshire. He was conditionally discharged with a condition to reside in Hertfordshire. He had no wish to return to Wiltshire, but the Court of Appeal decided that the residence condition meant his place of residence was not voluntary, and decided that he was still 'resident' in Wiltshire. 2014‑11‑03 00:18:45 2014 cases, After-care, Brief summary, ICLR summary, Transcript

K v Hospital Managers of the Kingswood Centre [2014] EWCA Civ 1332, [2014] MHLO 102A nearest relative sent an order for discharge to the hospital's fax machine. She had not used one of the three prescribed methods of service (delivery to an authorised officer; pre-paid post; or, with the managers' agreement, internal mail) so the 72-hour period began to run when the part-time MHA Administrator considered it on her return to work four days later. 2014‑11‑02 23:55:06 2014 cases, ICLR summary, Other NR cases, Transcript

Re X (Deprivation of Liberty) (No 2) [2014] EWCOP 37, [2014] MHLO 98 — "I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16). For ease of reference I set out those questions again: '(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?' These questions require consideration of a number of issues which I take in order, formulating each of these issues in the form of a question. ..." 2014‑10‑16 21:29:14 2014 cases, Deprivation of liberty, ICLR summary, Transcript

R v Ali [2014] EWCA Crim 1658, [2014] MHLO 87Confiscation order case with mental health background. One of the three principal issues was: "Whether the judge erred in not adjourning the appellant's case before proceeding with the confiscation hearing in order to seek further medical evidence about his re-admission to hospital and in refusing to stay the proceedings as an abuse of process in the light of the appellant's circumstances and mental health." 2014‑08‑08 21:19:12 2014 cases, ICLR summary, Other criminal law cases, Transcript

Re X (Deprivation of Liberty) [2014] EWCOP 25, [2014] MHLO 86 — "The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved. ... This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the [rules] Committee. A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions ... not dealt with in this judgment." 2014‑08‑07 14:02:46 2014 cases, Deprivation of liberty, ICLR summary

R (Whapples) v Birmingham CCG [2014] EWHC 2647 (Admin), [2014] MHLO 57 — "The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant has an obligation under section 3 of the National Health Service Act 2006 to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS. ... The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits." 2014‑08‑01 09:56:56 2014 cases, Community care, ICLR summary, Transcript

R (M) v Kingston Crown Court [2014] EWHC 2702 (Admin), [2014] MHLO 50M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it. 2014‑07‑22 22:34:02 2014 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript

R (L) v West London MH NHS Trust [2014] EWCA Civ 47, [2014] MHLO 49(1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his representative, and that the patient be afforded an opportunity to make written submissions to the panel." 2014‑07‑22 20:57:13 2014 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

R (O) v SSHD [2014] EWCA Civ 990, [2014] MHLO 47 — "This issue on this appeal is whether the Secretary of State for the Home Department ("the Secretary of State") could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. ... Accordingly, I would dismiss this appeal. The new diagnosis of Dr Agnew-Davies proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if O was released into the community and these were not put in place to the satisfaction of the court until 6 July 2011 when she was in fact released on bail." 2014‑07‑17 21:52:44 2014 cases, ICLR summary, Repatriation cases, Transcript

R (Public Law Project) v SSJ [2014] EWHC 2365 (Admin), [2014] MHLO 46The proposed legal aid 'residence test' was unlawful: (1) the statutory instrument containing it was ultra vires and unlawful, as LASPO did not permit such a criterion to be introduced by secondary legislation; (2) residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO. 2014‑07‑17 21:36:37 2014 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript

TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life." 2014‑05‑10 14:13:56 2014 cases, Brief summary, ICLR summary, Nearest relative, Transcript

R (Lee-Hirons) v SSJ [2014] EWCA Civ 553, [2014] MHLO 23(1) A restricted patient who had been recalled argued that the Secretary of State was under a duty to provide written (not merely oral) reasons for recall, that the oral reasons given were inadequate and were not the Secretary of State’s true reasons, and that therefore the recall and consequent detention was unlawful. (2) The Court of Appeal held that: (a) Article 5(1) does not require the reasons for detention to be given immediately upon detention; (b) a fortiori, it does not require reasons to be given in writing; (c) Article 5(2) requires those reasons to be adequately and promptly given to him following detention; (d) on the facts, there had been a breach of the Secretary of State’s policy to provide reasons "as soon as possible and in any event within 72 hours" (HSG(93)20) and a breach of Article 5(2); (e) these breaches did not render unlawful what was originally a lawful recall. (3) The Court noted, in relation to the practice of the Secretary of State in relation to recall, that "It is now his practice to include in the warrant a brief reason for recall, and a reminder is given to the person executing the warrant to explain the reason at the time of execution." 2014‑05‑02 01:34:09 2014 cases, ICLR summary, Ministry of Justice, Transcript

R (Cornwall Council) v SSH [2014] EWCA Civ 12, [2014] MHLO 17(1) In deciding the ordinary residence of an adult lacking capacity the Secretary of State had erred in applying 'test 1' from the Vale case (that a person who is so severely handicapped as to be totally dependent upon a parent or guardian in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base). (2) Instead, the words 'ordinary residence' should, unless the context indicates otherwise, be given their ordinary and natural meaning. (3) There is much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A (namely where he is integrated into a social and family environment). (3) On the facts, the person was ordinarily resident in South Gloucestershire (where he lived) rather than Cornwall (where his parents lived). 2014‑03‑24 20:38:20 2014 cases, Brief summary, Community care, ICLR summary, Transcript

RC v CC [2014] EWHC 131 (COP), [2014] MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment." 2014‑03‑04 14:59:13 2014 cases, ICLR summary, Other capacity cases, Transcript

IM v LM [2014] EWCA Civ 37, [2014] MHLO 1 — "On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".] 2014‑01‑31 15:18:06 2014 cases, Capacity to consent to sexual relations, ICLR summary, Transcript

R (MM) v SSWP [2013] EWCA Civ 1565, [2013] MHLO 132(1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed. 2013‑12‑30 15:15:33 2013 cases, Brief summary, ICLR summary, Transcript, Welfare benefits cases

R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD [2013] EWCA Civ 1561, [2013] MHLO 113 — Unsuccessful appeal in hunger strike deportation case. [Summary required.] 2013‑12‑16 13:01:50 2013 cases, ICLR summary, Repatriation cases, Transcript

R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] MHLO 98 — "This claim for judicial review arises out of the suicide of Mrs Jane Antoniou... At the time she was a patient detained ... under section 3 of the Mental Health Act 1983... For the reasons given above, we have concluded that, given all the circumstances of this case, in particular the fact that there was a properly constituted and conducted Inquest, there was no obligation under Article 2 of the ECHR to have, in addition, a separate independent investigation into the death of JA, either from the outset or from any time thereafter. We have also concluded that, taken as a whole, the investigation process into the death of JA was independent, effective and prompt. Lastly, we have concluded that there was no unlawful discrimination against JA or the claimant by any of the defendants in the way that JA's death was investigated." [Summary required.] 2013‑11‑19 22:30:38 2013 cases, ICLR summary, Inquests, Transcript

R v Turbill [2013] EWCA Crim 1422, [2013] MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions." [Summary required; detailed external summary available.] 2013‑08‑08 19:27:17 2013 cases, Criminal law capacity cases, ICLR summary, Transcript

R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961, [2013] MHLO 65 — Assisted suicide. [Summary required; detailed external summary available.] 2013‑08‑08 01:58:17 2013 cases, ICLR summary, Other criminal law cases, Transcript

R (Modaresi) v SSH [2013] UKSC 53, [2013] MHLO 63The Secretary of State's refusal to refer case under s67 was lawful. 2013‑08‑08 01:41:34 2013 cases, ICLR summary, MHLR summary, Other Tribunal cases, Transcript

PC v City of York Council [2013] EWCA Civ 478, [2013] MHLO 61 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband." [Summary required; detailed external summary available.] 2013‑08‑08 01:34:18 2013 cases, Capacity to consent to sexual relations, Detailed summary, ICLR summary, Transcript

R (Faulkner) v SSJ [2013] UKSC 23, [2013] MHLO 60 — Quantum of compensation for delayed Parole Board hearing. [Summary required; detailed external summary available.] 2013‑08‑08 01:27:23 2013 cases, Detailed summary, ICLR summary, Prison law cases, Transcript

R v AJR [2013] EWCA Crim 591, [2013] MHLO 37The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989. 2013‑05‑04 12:42:08 2013 cases, Brief summary, ICLR summary, Sentence appeal cases, Transcript

Coombs v North Dorset NHS PCT [2013] EWCA Civ 471, [2013] MHLO 35 — "Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? ... In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private accommodation or other top-up care facilities available within the applicable Guidance. Of course, it will not be possible to provide for care or treatment which is in conflict with the recommendations of the responsible clinician. Nor may it always or perhaps even often be possible within the NHS system to purchase additional care or treatment facilities without running into the principle of free provision and the limitations upon the exceptions to that principle. However, the cases cited above show that responsible clinicians may recommend treatment or care which the NHS is not under a duty to provide, because it goes beyond its statutory duty. There seems to me no reason in statute or public policy why there should be an absolute bar on the provision of facilities, recommended by or consistent with the recommendations of the responsible clinician, which may be available at a price, within or without the NHS system. Ms Richards submits, as she did below, that private payment may create difficulties of a practical nature, as where private funding previously available breaks down. However, as the judge said, such difficulties of funding may always raise their head, and do not create public policy bars of their own. It seems likely that the same answer is applicable whether the detained patient has a claim against a tortfeasor or whether it is simply a matter of a personal choice to pay. Similarly, it seems also quite possible that even detained patients under Part III have to be assimilated for these, as for other purposes, with detained patients under Part II. However, it is not necessary in this case to determine those matters. It is sufficient to say, in the case of this claimant, who is a detained patient within Part II of the MHA 1983 and has a claim against admitted tortfeasors, that the answer to the issue posed, namely whether there is anything in public policy or otherwise which prevents him paying for his own care or treatment, is No." ..→ 2013‑05‑03 19:07:31 2013 cases, ICLR summary, Miscellaneous, Transcript

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

R (Children's Rights Alliance for England) v SSJ [2013] EWCA Civ 34, [2013] MHLO 16 — "This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ([2012] EWHC Admin 8), by which he dismissed the appellant's application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom." [Summary required; detailed external summary available.] 2013‑03‑26 22:11:58 2013 cases, ICLR summary, Miscellaneous, Transcript

B v R [2013] EWCA Crim 3, [2013] MHLO 7 — "This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant." [Summary required; detailed external summary available.] 2013‑03‑25 22:45:56 2013 cases, Detailed summary, ICLR summary, Other criminal law 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

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

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

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

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

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

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

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

R (Modaresi) v SSH [2011] EWCA Civ 1359The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles. 2011‑11‑25 13:34:30 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript

Cheshire West and Chester Council v P [2011] EWCA Civ 1257P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.] 2011‑11‑09 21:34:46 2011 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript

Re M; W v M [2011] EWHC 2443 (COP)M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or withdraw ANH from a person in VS or MCS must be referred to the court; (b) no such application should be made unless the necessary assessments for MCS have been carried out; (c) non-means-tested Legal Aid should be available for family members in such applications; (d) consistent with privacy, it is imperative that the press should be free to report such cases. (5) A radical review of M's care plan will be the subject of further submissions; in the meantime, the do-not-resusitate order was continued and other treatment left to clinical discretion. 2011‑09‑28 17:12:24 2011 cases, Best interests, Brief summary, ICLR summary, Transcript

SL v Westminster City Council [2011] EWCA Civ 954On the true meaning of section 21(1)(a) of the National Assistance Act 1948, as amended, an asylum seeker suffering from depression and mental health difficulties who had been granted indefinite leave to remain was entitled to residential accommodation if the local authority had provided a programme of assistance and support to him through a care co-ordinator, since such provision of assistance would be otiose without the additional provision of housing. [Summary from WLR (D).] 2011‑08‑13 15:32:17 2011 cases, Community care, Detailed summary, ICLR summary, Transcript

Eba v Advocate General for Scotland [2011] UKSC 29 — Scope of judicial review of Upper Tribunal in Scotland. 2011‑07‑20 21:06:31 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript

R (Cart) v Upper Tribunal [2011] UKSC 28Judicial review of an UT decision which is unappealable (here, the UT's refusal of permission to appeal to itself) is available where the second-tier appeal criteria apply (whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it). 2011‑06‑22 19:47:44 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript

C v D [2011] EWCA Civ 646(1) A settlement offer which is time-limited is not capable of being a Part 36 offer; (2) in the context of the intention to comply with Part 36, the statement that the offer be 'open for 21 days' did not mean that it was a time-limited offer (rather, it was indicating that it could be withdrawn after 21 days); (3) on the facts, the Part 36 offer had not expired and was capable of acceptance. 2011‑05‑28 12:00:44 2011 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

Pitt v Holt [2011] EWCA Civ 197As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal 'effect', so the disposition would not be set aside. 2011‑03‑18 19:51:43 2011 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript

R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77The appellant sought: 'A declaration that "is resident" in s117(3) Mental Health Act 1983 has the same (or substantially the same) meaning as "is ordinarily resident" under s24 National Assistance Act 1948, so that a person placed by a local authority under s21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 NAA and s117(3) MHA.' The court refused to grant the declaration as: (1) Parliament must have deliberately chosen a different formula for s117; (2) s117 was intended to be a free-standing provision, not dependent on the 1948 Act; (3) there was no legitimate way to interpret 'resident' as excluding a placement under s21. The court noted that the decision is in line with recent government guidance, and that the Law Commission's current project provides a much better forum for considering and remedying any defects in the present law. 2011‑02‑17 22:33:28 2011 cases, After-care, Brief summary, ICLR summary, Transcript

TW v A City Council [2011] EWCA Civ 17The Court of Appeal issued a reminder of the following: (a) that the bundle of authorities should be agreed; (b) that it should be filed at least seven days before the hearing; (c) that it should not contain more than ten authorities unless the scale of the appeal warrants more extensive citation; (d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. BAILII judgments (with neutral citation numbers) should only be used if no other recognised reports were available and the case really needs to be cited; and (e) that the passages in the authorities which were relevant and on which counsel sought to rely must be marked. 2011‑01‑24 20:35:26 2011 cases, Brief summary, ICLR summary, Miscellaneous, No transcript

Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327 — This Practice Direction sets out the JR jurisdiction of the Upper Tribunal. 2011‑01‑22 22:36:17 ICLR summary, Tribunal legislation, Tribunal resources

TTM v LB Hackney [2011] EWCA Civ 4(1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were. 2011‑01‑14 12:03:45 2011 cases, Consulting NR, Detailed summary, ICLR summary, Miscellaneous, Transcript, Unlawful detention cases

C v D [2010] EWHC 2940 (Ch)(1) A settlement offer which is time-limited (in this case it was open for acceptance for 21 days) is not capable of being a Part 36 offer; (2) on the facts, the offer had expired after 21 days and was not capable of acceptance. [Caution: partly overturned on appeal.] 2010‑11‑18 18:56:45 2010 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript

R (Cart) v Upper Tribunal [2010] EWCA Civ 859Judicial review of Upper Tribunal decisions is restricted to cases of outright excess of jurisdiction or fundamental denials of procedural justice. [Caution.] 2010‑07‑29 21:37:44 2010 cases, Brief summary, ICLR summary, Other Tribunal cases, Transcript

R (Smith) v Secretary of State for Defence [2010] UKSC 29 — The ECHR does not apply to soldiers serving abroad. 2010‑07‑09 20:36:58 2010 cases, Detailed summary, ICLR summary, Inquests, Transcript

R (Noone) v HMP Drake Hall [2010] UKSC 30In calculating release dates, the provisions of the Criminal Justice Act 1991 apply to sentences of under 12 months provided that these are not imposed concurrently or consecutively with sentences of 12 months or over, and the CJA 2003 apply to sentences of under 12 months that are imposed concurrently or consecutively with sentences of 12 months or over. 2010‑07‑09 20:19:44 2010 cases, Detailed summary, ICLR summary, Prison law cases, Transcript

Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698Health trusts do not have the Article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a "real and immediate" risk of death. [Caution.] 2010‑07‑08 22:17:17 2010 cases, Detailed summary, ICLR summary, Inquests, Transcript

SSHD v AP [2010] UKSC 24 — Control order/deprivation of liberty case. [Summary required.] 2010‑06‑18 23:23:09 2010 cases, Deprivation of liberty, ICLR summary, Transcript

R v Kluxen [2010] EWCA Crim 1081(1) Where the UK Borders Act 2007 requires (subject to exceptions, including certain detained psychiatric patients) the Secretary of State to make a deportation order in respect of a foreign criminal who has received a custodial sentence in relation to a single offence of at least 12 months, it is not appropriate for the court to recommend deportation. (2) Where because of the sentence imposed the UK Borders Act 2007 does not apply, deportation orders are appropriate only in exceptional cases. (3) As the Act applied, the recommendations for deportation were quashed. 2010‑05‑22 10:27:47 2010 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript

R (MJ (Angola)) v SSHD [2010] EWCA Civ 557(1) The MHA regime and the Immigration Act 1971 run in parallel in relation to a person who is both an immigrant and mentally ill, so the SSHD was entitled to decide to deport MJ notwithstanding that he was still subject to s37/41. (2) There is no express statutory limitation on the SSJ's power to discharge under the MHA; it can be used in order to facilitate deportation; the protection for the patient is that the power must be exercised rationally and without breaching his Convention rights. (3) For a settled migrant who has lawfully spent all or most of his childhood in the host country, especially where he committed the relevant offences as a juvenile, very serious reasons are required to justify expulsion; the AIT had not appreciated that very serious reasons were needed so the appeal was granted. 2010‑05‑22 08:57:19 2010 cases, Detailed summary, ICLR summary, Repatriation cases, Transcript

Link Lending Ltd v Bustard sub nom Link Lending Ltd v Hussein [2010] EWCA Civ 424(1) The defendant to these possession proceedings was "a person in actual occupation" for the purpose of entitlement to an overriding interest within the meaning of the Land Registration Act 2002 despite her involuntary residence in hospital under s3 MHA, as there was a sufficient degree of continuity and permanence of occupation and a persistent intention to return home when possible. (2) There is no single test but relevant factors from case law are: the degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it, and the nature of the property and personal circumstances of the person. 2010‑05‑01 23:20:03 2010 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript

Pitt v Holt [2010] EWHC 45 (Ch)The principle in Hastings-Bass, originally applied only to trustees, applies equally to receivers under the MHA 1983. Therefore Mrs Pitt, who as a receiver had put her husband's money into a settlement without considering the inheritance tax position, could have the settlement set aside as an ineffective transaction. (The principle in Hastings-Bass has been summarised as: "Where trustees act under a discretion given to them by the terms of the trust, in circumstances in which they are free to decide whether or not to exercise that discretion, but the effect of the exercise is different from that which they intended, the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account.") [Caution.] 2010‑04‑12 00:04:33 2010 cases, Brief summary, ICLR summary, Other capacity cases, Transcript

Independent News and Media Ltd v A [2010] EWCA Civ 343The judge's decision (that designated representatives of the media could attend the hearing in the Court of Protection and thereafter apply to the judge for authorisation to publish information disclosed in the proceedings) was upheld, but his approach (that article 10 was not engaged when the media's application was made but rather when the court decided that there was "good reason" under Rule 93(1)(a)) was not. 2010‑03‑31 22:01:28 2010 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript

Key v Key [2010] EWHC 408 (Ch)Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval. 2010‑03‑06 16:26:15 2010 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript

R (Degainis) v SSJ [2010] EWHC 137 (Admin)In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of Article 5(4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 HRA 1998 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness of the original offence is not. 2010‑02‑05 20:51:38 2010 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript, Tribunal delay

R (D and M) v SSWP [2010] EWCA Civ 18(1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date. [Caution.] 2010‑01‑27 19:00:36 2010 cases, Detailed summary, ICLR summary, Transcript, Welfare benefits cases

R (Miller) v Independent Assessor [2009] EWCA Civ 609The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder). 2009‑12‑09 23:35:49 2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript

Independent News and Media Ltd v A [2009] EWHC 2858 (Fam)The media sought, not that the CoP hearing be public, but that they be authorised to attend the hearing and be subject to reporting restrictions. CoP proceedings are excluded from the general 'open justice principle' so the media's Article 10 rights are not automatically engaged, and the court must rather adopt a two-stage approach: (1) Whether a 'good reason' (a gatekeeping test from the Rules, the standard for which is not high) for making the order can be established; (2) If there is a 'good reason', a balancing test must be applied to P's Article 8 rights and the media's Article 10 rights. On the facts: (1) There was a 'good reason' as (a) the issues were already in the public domain, (b) the court's powers can preserve privacy, and (c) it is the public interest to understand how the court operates; (2) The media would be allowed to attend, as the concerns for privacy and publicity could both be met by permitting some reporting but requiring the media to demonstrate what should be allowed. [See appeal judgment.] 2009‑11‑12 23:46:03 2009 cases, Brief summary, ICLR summary, Other capacity cases, Transcript

EBR Attridge Law LLP v Coleman (2009) UKEAT 0071/09The Disability Discrimination Act 1995 should be interpreted so as to prohibit discrimination against employees who, although not themselves disabled, were treated less favourably or harassed on the ground of their association with a person who was disabled. 2009‑11‑09 21:28:38 2009 cases, Detailed summary, Disability discrimination, ICLR summary, Transcript

R (E) v Governing Body of JFS (No 2) [2009] UKSC 1If the LSC decide fund a successful litigant, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party; the LSC's decision not to continue funding without a protective costs order against the appellent was unlawful and public funding was therefore to continue. 2009‑10‑24 09:35:01 2009 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript

R v Ghulam [2009] EWCA Crim 2285Under CPIA 1964 s4 the court must not make a determination that the defendant is unfit to plead without medical evidence from two medical practitioners; however, where the medical evidence of unfitness to plead is only available from one medical practitioner, the judge is not bound to adjourn the trial but can make a determination that the defendant is fit to plead. 2009‑10‑24 08:54:16 2009 cases, Detailed summary, ICLR summary, Transcript, Unfitness and insanity cases

Stockton On Tees Borough Council v Aylott (2009) UKEAT 0401/08/1103The decision in Malcolm on the correct comparator in disability-related discrimination cases also applies to employment cases. 2009‑10‑08 20:31:32 2009 cases, Brief summary, Disability discrimination, ICLR summary, Transcript

SCA Packaging Ltd v Boyle [2009] UKHL 37Under the Disability Discrimination Act 1995 an impairment which is treated or corrected is counted (in law) as causing disability if it (in fact) would be likely to cause disability if untreated or uncorrected: "likely" here does not mean "probable" but means "could well happen". The employee was therefore disabled and the employer was under a duty to make reasonable adjustments. 2009‑10‑08 20:16:59 2009 cases, Brief summary, Disability discrimination, ICLR summary, Transcript

R (Purdy) v DPP [2009] UKHL 45(1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy. 2009‑08‑01 18:38:02 2009 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript

R v C [2009] UKHL 42For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder. 2009‑08‑01 17:39:15 2009 cases, Brief summary, Capacity to consent to sexual relations, Criminal law capacity cases, ICLR summary, Transcript

R (TF and Thompson) v SSHD [2009] EWCA Civ 792(1) The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review of the necessity of the requirements, and the case is stronger in the case of young offenders. (2) The scheme where it related to foreign travel did not breach article 4 ("right of exit") of EC Council Directive 2004/38. 2009‑07‑29 22:25:46 2009 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript

R v Khan [2009] EWCA Crim 1569(1) The judge had been right to refuse to withdraw the charge of murder from the jury at the close of the evidence: to do otherwise he would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, the diminished responsibility defence. (2) Although the medical evidence in favour of diminished responsibility was unchallenged, there was ample factual evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the defence was made out. 2009‑07‑29 22:03:41 2009 cases, Brief summary, Diminished responsibility cases, ICLR summary, Transcript

R v G; R v J [2009] UKHL 13Detailed explanation of elements of, and defences to, s57 and s58 Terrorism Act 2000. It was not a "reasonable excuse" for G to possess terrorist material to wind up prison guards; he was responsible for his actions (applying M'Naghten's Case) and his schizophrenia could not make reasonable what was unreasonable. 2009‑07‑29 21:26:02 2009 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript

R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795The right or freedom to smoke does not engage Article 8(1); Article 14 could not therefore be relied upon either. In any event, the SSH's smoke-free regulations and the Trust's smoke-free policy would be justified under Article 8(2), and the different treatment under the regulations for mental health units compared with prisons, care homes and hospices would be justified under Article 14. 2009‑07‑26 14:07:15 2009 cases, Brief summary, ICLR summary, Miscellaneous, Smoking, Transcript

R (P) v SSJ [2009] EWCA Civ 701The refusal of the SSJ to hold an inquiry into P's detention in YOI Feltham was lawful: (1) Article 2 is only engaged where there is a "real and immediate" risk to life; the risk from P's self harming, while real, was not immediate. (2) There was no arguable breach of Article 3 in the delay in transfer to hospital. Had there been an arguable Article 3 breach: in general, an inquiry would not have been mandatory; in this particular case, it would not have been necessary as the relevant facts were known. 2009‑07‑09 21:47:53 2009 cases, Brief summary, ICLR summary, Inquests, Transcript

R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623An inquest into the death of a patient who was detained in a hospital under s3 had to satisfy the enhanced requirements of Article 2 2009‑07‑05 17:10:55 2009 cases, Detailed summary, ICLR summary, Inquests, Transcript

Gray v Thames Trains Ltd [2009] UKHL 33The principle of ex turpi causa prevented the claimant from recovering for damage which was the consequence of his committing the offence of manslaughter. 2009‑06‑21 22:24:07 2009 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript

R (James) v SSJ [2009] UKHL 22(1) Following the introduction of IPP sentences, the Secretary of State was in breach of his public law duty to make reasonable provision to enable IPP prisoners (if necessary by completing treatment courses) to demonstrate to the Parole Board their safety for release. The appropriate remedy was declaratory relief condemning the Secretary of State's failures and indicating that he is obliged to do more. The systemic failure has ended (following amendments including making the IPP sentence generally available only when the notional minimum term is at least 2 years) so no further relief is appropriate. (2) In relation to post-tariff detention, the systemic failure did not: (a) make the detention unlawful (detention remains lawful under statute until Parole Board release); (b) breach Article 5(1) (causal link with objective of detention remained until Parole Board decision); or (c) breach Article 5(4) (which is concerned with procedure not substance) although cases with prior findings or concessions of Art 5(4) breaches were remitted to Admin court for assessment of damages. 2009‑05‑06 22:02:20 2009 cases, Brief summary, ICLR summary, Prison law cases, Transcript

R v Wood (No 2) [2009] EWCA Crim 651The fact that a defendant was convicted of manslaughter on the grounds of diminished responsibility did not preclude a sentence of imprisonment for life. In assessing the seriousness of such an offence with a view to fixing a minimum term, the court could take into account the guidance in Sch 21 of the Criminal Justice Act 2003, subject to the specific element of reduced culpability consequent on diminished responsibility. [ICLR] 2009‑04‑05 10:35:31 2009 cases, Detailed summary, Diminished responsibility cases, ICLR summary, Transcript

R v Wood (No 1) [2008] EWCA Crim 1305In addressing a plea of diminished responsibility in the context of alcohol dependency syndrome, the jury must consider whether it had been established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness, and, if that were established, whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. [ICLR] 2009‑04‑05 10:35:22 2008 cases, Detailed summary, Diminished responsibility cases, ICLR summary, Transcript

R (Wright) v SSH [2009] UKHL 3Section 82(4)(b) of the Care Standards Act 2000, which provides for the provisional inclusion in the POVA list of a care worker (thus depriving him of employment) immediately after concerns are raised but before any judicial hearing, is incompatible with Articles 6 and 8. 2009‑02‑22 15:20:54 2009 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

R (Purdy) v DPP [2009] EWCA Civ 92The absence of a crime-specific policy relating to assisted suicide (identifying the facts and circumstances where it will not be in the public interest to prosecute) does not make the operation and effect of section 2(1) of the Suicide Act 1961 Act unlawful nor mean that it is not in accordance with law for the purposes of Article 8(2). [Overturned on appeal.] 2009‑02‑22 12:53:00 2009 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript

Re P [2009] EWHC 163 (Ch)The Court of Protection is not bound by the substituted judgment approach from the previous legislation, including the Mental Health Acts 1959 and 1983, but must apply the Mental Capacity Act 2005 best interests approach (the general philosophy of which is discussed) 2009‑02‑11 01:13:49 2009 cases, Detailed summary, ICLR summary, Statutory will cases, Transcript

R (B) v DPP [2009] EWHC 106 (Admin)The decision to discontinue a prosecution for wounding with intent and witness intimidation, on the basis that the victim's mental illness meant he could not be placed before the jury as a credible witness, was irrational on the facts; s49A Disability Discrimination Act 1995 added nothing to the ordinary position under public law principles; there had been a breach the positive obligation under Article 3 (which includes the duty to provide a legal system for bringing to justice those who commit serious acts of violence against others) and £8000 was awarded in compensation. 2009‑02‑02 22:06:04 2009 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript

Austin v Commissioner of Police of the Metropolis [2009] UKHL 5(1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical injuries and property damage therefore did not engage Article 5; if Article 5 had been engaged then the deprivation of liberty could not have been justified under Article 5(1)(a) to (e) for each individual in the crowd. 2009‑01‑29 23:21:14 2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript

R (Black) v SSJ [2009] UKHL 1The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court. 2009‑01‑28 22:33:40 2009 cases, Detailed summary, ICLR summary, Prison law cases, Transcript

Adorian v Commissioner of Police of the Metropolis [2009] EWCA Civ 18Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court. 2009‑01‑28 22:00:30 2009 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript

Gray v Thames Trains Ltd [2008] EWCA Civ 713The principle of ex turpa causa did not prevent the claimant from recovering damages after the commission of manslaughter. [Overturned on appeal.] 2008‑12‑28 20:31:09 2008 cases, Brief summary, ICLR summary, Miscellaneous, Transcript

R (Brooke) v Parole Board [2008] EWCA Civ 29The Parole Board did not have the independence from the executive that was required for its judicial role in determining whether convicted prisoners should be released on licence. 2008‑09‑21 17:24:07 2008 cases, Detailed summary, ICLR summary, Prison law cases, Transcript

R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin)HUMAN RIGHTS — Right to respect for private and family life — Smoking ban — Claimants detainees at high security psychiatric hospital — Regulation providing mental health units temporary exemption from smoking ban — Whether regulation to be read as providing mental health units with permanent exemption — Whether interference with claimants’ Convention rights — Human Rights Act 1998, s 3(1), Sch 1, Pt 1, arts 8, 14 — Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765), reg 10(3). A provision which had the effect of prohibiting smoking in a high security psychiatric hospital was not incompatible with the human rights of detained mental patients and was not unlawful. 2008‑09‑13 07:48:22 2008 cases, Detailed summary, ICLR summary, Miscellaneous, Smoking, Transcript

R (AL) v SSHD [2005] EWCA Civ 2The Secretary of State's powers to continue the recall of a patient who had originally been detained following an acquittal of murder on grounds of insanity and pursuant to s 5(1)(a) of the 1964 Act, but was recalled pursuant to s 42(3) of the 1983 Act, differed from such powers as were granted under s 37 of the 1983 Act. 2006‑04‑13 22:03:15 2005 cases, Detailed summary, ICLR summary, Other classification cases, Transcript

R (B) v Ashworth Hospital Authority [2005] UKHL 20A patient detained for treatment under the Mental Health Act 1983 could be treated compulsorily under s 63 of that Act for any disorder from which he suffered, and not only for the particular form of disorder from which he was classified as suffering under the application or order which authorised his detention. 2006‑04‑12 20:01:41 2005 cases, Detailed summary, ICLR summary, Other classification cases, Transcript

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