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Category

Judgment available on Bailii

The new database structure introduced in 2019 is more useful than this Category page: see Special:Drilldown/Cases.

The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Withdrawal of life-sustaining treatment - transfer to Italy Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 (Admin)This judgment related to: (a) the child's (Tafida's) judicial review of the Trust's decision not to agree to transfer her to an Italian hospital; (b) the Trust's application for a specific issue order under s8 Children Act 1989, and for an inherent jurisdiction declaration, that it was in the child's best interests for life-sustaining treatment to be withdrawn. Both applications were dismissed, with the effect that one of the hospitals had to continue life-sustaining treatment and, there being no justification for interfering with Tafida's right (under Article 56 Treaty for the Functioning of the European Union) to receive treatment in another EU state, it was anticipated that the transfer would take place. The judgment provides guidance on dealing with a request by parents of an EU citizen child for transfer for medical treatment in another Member State, 2019‑10‑17 22:42:09 2019 cases, Cases, Deprivation of liberty - children, Inherent jurisdiction cases, Judgment available on Bailii, Medical treatment cases


* Inherent jurisdiction prevents elderly man from living with son Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam)"The essence of his vulnerability is, in fact, his entirely dysfunctional relationship with his son ... Mr Meyers, I am satisfied, is entirely capable of and has the capacity ... for determining where he wishes to reside and with whom. ... I instinctively recoil from intervening in the decision making of a capacitious adult ... Here Mr Meyers' life requires to be protected and I consider that, ultimately, the State has an obligation to do so. Additionally, it is important to recognise that the treatment of Mr Meyers has not merely been neglectful but abusive and corrosive of his dignity. To the extent that the Court's decision encroaches on Mr Meyers' personal autonomy it is, I believe, a justified and proportionate intervention. The preservation of a human life will always weigh heavily when evaluating issues of this kind. ... The objective here ... is that Mr Meyers be prevented from living with his son, either in the bungalow or in alternative accommodation. I do not compel him to reside in any other place or otherwise limit with whom he should live. ... The impact of the Court's intervention is to limit Mr Meyers's accommodation options but it does not deprive of his physical liberty which is the essence of the right guaranteed by Article 5. ... It is also necessary to restrict the extent of Mr Meyers's contact with his son in order to keep him safe. ... To the extent that this interferes with his Article 8 rights it is, again as I have indicated above, a necessary and proportionate intervention. ... The ideal solution here, it seems to me, would be for Mr Meyers to return to his bungalow with a suitable package of support, his son having been excluded from the property." 2019‑10‑08 18:43:20 2019 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Pregnancy - OS out-of-hours representation Guy's and St Thomas' NHS Foundation Trust v X [2019] EWCOP 35(1) Official Solicitor's lack of out-of-hours service: "... I invite the Official Solicitor to urgently review this position and consider putting in place arrangements that will ensure appropriate representation out of normal court hours for those individuals who are the subject of urgent applications that potentially involve serious medical treatment. ... [E]very effort must be made to issue such applications during normal court hours." (2) Pregnancy: "Having considered the submissions of the parties there is, in my judgment, in accordance with s 48 Mental Capacity Act 2005, reason to believe that X lacks capacity in relation to the matter, namely the medical intervention that may be necessary for X to give birth to a baby who is safe and well. On the evidence the court has from Dr Y, which I accept, his assessment is X is unable to reconcile her conflicting beliefs (on the one hand of wanting a natural birth and also wanting a live, well and safely born baby) in a way that she is able to balance the pros and cons. Additionally, there is, in my judgment, a real risk the position is unlikely to change and is more likely to deteriorate. He concluded X showed limited insight in relation to her previous mental ill- health. I have carefully considered the submissions on behalf of the Official Solicitor regarding capacity but looking at all the evidence and information available to the court I am satisfied the interim declaration should be made." 2019‑08‑19 23:28:47 2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Medical treatment cases


* Serious medical treatment - delay in making application Royal Bournemouth and Christchurch Hospitals NHSFT v SE [2018] EWCOP 45"Whilst, of course, it is understood emergencies do arise, in this case the emergency was due to the failure to have any effective system in place for securing legal advice for clinicians in the Trusts. I hope that the procedures now put in place (as set out at the end of this judgment) will be replicated elsewhere to avoid this situation happening again. ... [H]er best interests will be met by this court endorsing the Order that has been agreed and giving the applicants permission to be able to carry out the procedures set out in paragraph 4, namely the amputation of her right leg ... 2019‑08‑10 22:27:25 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Non-legal research by judge JG v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 187 (AAC)Judicial summary from gov.uk website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair." 2019‑08‑01 23:25:11 2019 cases, Bias, Cases, Judgment available on Bailii


* Oral tribunal decision PAA v SSHD [2019] UKUT 13 (IAC)The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175! is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above. 2019‑07‑26 21:46:00 2019 cases, Cases, Judgment available on Bailii, Powers, Upper Tribunal decisions


* Immigration tribunal - fair hearing, litigation friends AM (Afghanistan) v SSHD [2017] EWCA Civ 1123In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached." 2019‑07‑26 20:29:51 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Repatriation cases


* Reinstatement JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC)(1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties." 2019‑07‑17 10:54:45 2019 cases, Cases, Judgment available on Bailii, Powers, Upper Tribunal decisions


* Immigration detention R (ASK) v SSHD [2019] EWCA Civ 1239"These appeals raise important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the United Kingdom. In each case, the Appellant is a foreign national who satisfied the statutory criteria for detention pending removal, but who suffered from mental illness such that it is said that, for at least some of the period he was detained, he was not only unfit to be removed and/or detained in an immigration removal centre ("IRC"), but did not have mental capacity to challenge his detention and/or engage with the procedures to which he was subject as a detainee. As a result, it is submitted that, in detaining each Appellant, the Secretary of State acted unlawfully in one or more of the following ways. ..." 2019‑07‑17 10:17:55 2019 cases, Cases, Judgment available on Bailii, Repatriation cases


* Death - wishes and feelings Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21"I am being asked to take today an irreversible decision that will lead inevitably to death sooner rather than later and probably within minutes or seconds of the tube being removed. I am being asked to do so in the face of what I find are the wishes and feelings of TG. ... I have come to the clear decision that it is in the patient's best interests that intubation should continue. I recognise that this places a huge burden on the treating team. It is against their advice and their wishes and of course also those of Dr Newman but I remind myself constantly, this is her life and her wishes as I have found them to be and nobody else's. It may be that if the position were to remain the same in six months' time or no successful tracheostomy had been carried out that different considerations might apply but I am not looking at the future, I am looking at things as they are now and for those reasons I reach my decision and refuse the application." 2019‑07‑08 22:29:31 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Jehovah's Witness - blood transfusion Manchester University NHS Foundation Trust v DE [2019] EWCOP 19"The only issue during the hearing was the degree to which DE's wishes and feelings would be overborne by a decision to allow a blood transfusion, in the light of her being a Jehovah's Witness; and therefore whether there was a disproportionate interference in DE's article 8 rights. However, the evidence even at the oral hearing was that although DE described herself as a Jehovah's Witness she was not someone for whom those beliefs were central to her personality or sense of identity. During the oral hearing I did not get any sense that she would feel deeply upset if an order was made in the form sought, or that she would feel a deep conflict with her religious beliefs. As such she was someone who was in a quite different decision from B in Jackson J's decision, where his religious beliefs were fundamental to B's sense of who he was. The other stark contrast with that case is that DE had been completely clear that she did not want to die. She is also significantly younger than was B." 2019‑07‑08 22:16:16 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Litigation friend LJ v Mercouris [2019] EWHC 1746 (QB)"The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs." 2019‑07‑06 22:29:26 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Other capacity cases


* Summary of MH sentencing guidance - life sentence replaced with s37/41 R v Fisher [2019] EWCA Crim 1066Having summarised the Sentencing Council's Definitive Guideline for Manslaughter (in force 1/11/18) and the relevant available disposals under the MHA, the Court of Appeal revoked sentences of imprisonment and replaced the life sentence with a s37/41 restricted hospital order. 2019‑07‑04 22:52:10 2019 cases, Cases, Judgment available on Bailii, Life sentence cases


* Costs in s21A case BP v London Borough of Harrow [2019] EWCOP 20"The relevant circumstances of the adjournment of the January hearing are that the Respondent, the London Borough of Harrow, offered at the hearing a trial of BP returning home. ... For the Applicant, it is submitted that this is a case where it is appropriate to depart from the usual costs rule and to order the costs of the January hearing be paid by the Respondent because of the Respondent's consistent failure to offer a trial period at home before the start of and for the duration of the proceedings, and its decision to do so only after the January hearing had commenced. ... Overall, I can see the basis on which the Applicant considers an application for costs to be justified. However, this was a finely balanced case on the Applicant's own submissions in position statements, in particular that of 15 June 2018. I bear in mind the authorities on which the parties rely, in particular the Applicant's reliance on the comments of Hooper LJ in the Court of Appeal. I note the circumstances of Manchester City Council v. G, E and F [2010] EWHC 3385 were quite different. On balance and considering the circumstances as a whole, I am not persuaded that it is appropriate to depart from the general rule on this occasion. I decide this based on the chronological position of the parties set out above and all the circumstances. The Respondent's conduct falls short, to what degree is immaterial, of the necessary test. This case does not represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in the Manchester case (paraphrased slightly)." 2019‑06‑15 22:57:39 2019 cases, COP costs cases, Cases, Judgment available on Bailii


* Withdrawal of CANH A Clinical Commissioning Group v P [2019] EWCOP 18"Having given anxious consideration to this very sad case, and with profound regret, for the reasons set out above I am satisfied this court should declare that P lacks capacity to make decisions regarding CANH. Further, in circumstances where I have concluded that P lacks capacity to decide for herself whether or not to continue to receive CANH, I am satisfied that it is in P's best interests to consent on her behalf to the withdrawal of that treatment, a step that I acknowledge will result in her death. ... In all the circumstances, I am satisfied that the sanctity of P's life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014." 2019‑05‑29 21:45:45 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Police use of force Gilchrist v Greater Manchester Police [2019] EWHC 1233 (QB)"I recognise that this was a challenging situation for the police officers. They were faced with an individual who presented as very angry, covered in blood and with whom they were unable to communicate. Prior to Andrew Gilchrist's explanation, their assumption that Michael Gilchrist was an aggressor who, probably, had assaulted someone and needed to be detained, was reasonable. In those circumstances, their initial actions to attempt to bring him under control using CS gas and Taser were justified, reasonable and proportionate. However, once they were appraised of his vulnerability as an autistic man, and his behaviour suggested that he was defensive rather than aggressive, a more cautious approach should have been adopted. The further use of Taser, which had already proved to be ineffective, and following the use of CS gas, was inappropriate. The alternative course mandated by PS Morris, namely, using the force of the officers available to take Mr Gilchrist to the ground and restrain him without using weapons was a reasonable and proportionate response." 2019‑05‑20 12:45:21 2019 cases, Cases, Judgment available on Bailii, Miscellaneous


* Capacity to consent to sex with husband London Borough of Tower Hamlets v NB [2019] EWCOP 17"There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..." 2019‑05‑15 22:02:33 2019 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Capacity and ability to communicate Patel v Arriva Midlands Ltd [2019] EWHC 1216 (QB)"Dr Fleminger's assessment was: 'Whether or not he can understand what information he is given and use and weigh this information in the balance to make decision, he is unable to communicate any decision he has made. Whether or not he regains capacity in the future depends on the outcome of his conversion disorder'. I am satisfied on the balance of probabilities that Dr Fleminger's capacity assessment was made on the basis of incorrect information gleaned from the Claimant's presentation and from what he was told by Chirag Patel of the Claimant's disabilities, namely that the Claimant was unable to communicate any decision he has made. ... In addition ... I do accept Dr Schady's opinion [that there is no conversion disorder]. Once again that leaves the Claimant with a presumption of capacity. ... To summarise: (i) The Claimant is presumed to have capacity. (ii) The court finds that the Claimant has been fundamentally dishonest in respect of his claim, and his litigation friend Chirag Patel has participated in this dishonesty. (iii) The entirety of the claim is dismissed, the court being satisfied that no substantial injustice would be caused in so doing. The court assesses damages for the 'honest part' of the claim at £5750." 2019‑05‑15 21:46:03 2019 cases, Cases, Judgment available on Bailii, Other capacity cases


* Inquest and DOLS R (Maguire) v HM's Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin)"First, the claimant contends that the defendant erred in law by determining at the end of the evidence that article 2 no longer applied under Parkinson, thereby prejudging a matter that should have been left to the jury. Secondly, the Coroner erred in law by determining that the jury should not be directed to consider whether neglect should form part of their conclusion. ... That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the "paradigm example" of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under article 2. ... We agree that a person who lacks capacity to make certain decisions about his or her best interests - and who is therefore subject to DOLS under the 2005 Act - does not automatically fall to be treated in the same way as Lord Dyson's paradigm example. In our judgment, each case will turn on its facts. ... [The Coroner] properly directed himself as to the appropriate test to apply to the issue of neglect and having done so declined to leave the issue to the jury." 2019‑05‑15 21:35:39 2019 cases, Cases, Inquests, Judgment available on Bailii


* Diminished responsibility medical evidence R v Hussain [2019] EWCA Crim 666"The single judge has referred the application for leave to appeal against conviction [for murder] and the extension of time application to the full court. The application for leave to appeal raises again the issue of what a trial judge should do when the sole issue to be determined at trial is the partial defence of diminished responsibility provided by section 2 of the Homicide Act 1957 (as amended) and there is unanimity amongst the psychiatric experts as to the mental health of the killer at the time of the killing." 2019‑05‑10 21:49:38 2019 cases, Cases, Diminished responsibility cases, Judgment available on Bailii


* HBSO, colonoscopy, deception University Hospitals of Derby and Burton NHSFT v J [2019] EWCOP 16"[Anne] is the subject of an application brought by the [Trust] for declarations that it is in Anne's best interests to undergo a hysterectomy and bilateral salpingo-oophorectomy and a colonoscopy, and that, in order to enable those to be undertaken, it is in her best interests for a transfer plan to be implemented which will involve her sedation and a level of deception to ensure her presence at hospital for the procedures to be undertaken. The application arises because it is said that Anne lacks capacity. ... It is entirely right that cases such as this, where medical decisions and the plan for their implementation impact so profoundly on P's personal autonomy, bodily integrity and reproductive rights, should be considered by the Court of Protection at High Court level, and as this case demonstrates, once in the hands of the court and the Official Solicitor they can be dealt with rapidly. I therefore have no hesitation in declaring that it is in Anne's best interests to undergo HBSO and colonoscopy (and associated surgical procedures) and for the care plan to be implemented in its final amended form." 2019‑05‑10 21:41:37 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Suicide burden of proof at inquests R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire [2019] EWCA Civ 809"This appeal involves questions of importance concerning the law and practice of coroners' inquests where an issue is raised as to whether the deceased died by suicide. The questions can be formulated as follows: (1) Is the standard of proof to be applied the criminal standard (satisfied so as to be sure) or the civil standard (satisfied that it is more probable than not) in deciding whether the deceased deliberately took his own life intending to kill himself? (2) Does the answer depend on whether the determination is expressed by way of short-form conclusion or by way of narrative conclusion? Those are the questions falling for decision in this case; but to an extent they have also required some consideration of the position with regard to unlawful killing. ... I conclude that, in cases of suicide, the standard of proof to be applied throughout at inquests, and including both short-form conclusions and narrative conclusions, is the civil standard of proof." 2019‑05‑10 21:35:22 2019 cases, Cases, Inquests, Judgment available on Bailii


* Marriage, prenuptial agreement, information about extent of assets, etc PBM v TGT [2019] EWCOP 6"... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto." 2019‑05‑10 21:29:22 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases


* Residence and care Harrow CCG v IPJ [2018] EWCOP 44"The Court is asked to determine where AJ should live and how he should be cared for. The applicant CCG has proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third party broker. JA's parents, who are the Second and Third Respondents, do not agree the proposals and seek the dismissal of the application. 2019‑05‑10 21:18:53 2019 cases, Best interests, Cases, Judgment available on Bailii


* Capacity to conduct proceedings TB v KB [2019] EWCOP 14"Law applicable to the court's determination of the question of whether P lacks capacity to conduct proceedings is well settled. ... Having regard to that analysis, I am clear that P does lack that capacity. This leaves the question of P's participation in these proceedings." 2019‑05‑09 12:28:53 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases


* Prison Rules and solicitor-client letters R v SSHD, ex p Leech (No 2) [1993] EWCA Civ 12"Section 47 (1) of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. Rule 33 (3) of the Prison Rules 1964 provides as follows: "(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length." The principal question arising on this appeal is whether Rule 33 (3) is ultra vires section 47 (1) of the Act on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they are in truth bona fide communications between a solicitor and client." 2019‑05‑03 13:13:45 1993 cases, Cases, Judgment available on Bailii, Prison law cases


* Nurses' appeal against ill-treatment conviction R v Spencer [1987] UKHL 2Six nurses appealed against convictions for ill-treating a patient contrary to s126 Mental Health Act 1959 (the old equivalent of MHA 1983 s127), three successfully. 2019‑05‑02 13:38:27 1986 cases, Cases, Judgment available on Bailii, Other criminal law cases


* Nominal damages (Barrymore) Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788"In the early hours of 31 March 2001, Michael Parker (a celebrity entertainer who is better known by his stage name, Michael Barrymore) returned to his home with eight guests. ... In relation to Mr Parker, that arrest was to be effected by Det. Con. Susan Jenkins who had played a central role in the re-investigation and was well aware of the evidence: she believed she had reasonable grounds both to suspect Mr Parker of committing an offence and to conclude that it was necessary to effect his arrest. In the event, she was detained in traffic and a surveillance officer (P.C. Cootes) was ordered to effect the arrest, which he did. ... For these reasons, I would conclude that Stuart-Smith J was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, however, I have no doubt that had things been done as they should have been done (to quote Baroness Hale in Kambadzi), a lawful arrest would have been effected. Thus, I would allow this appeal and, in answer to the issue posed by the Master, declare that Mr Parker is entitled to nominal damages only." 2019‑04‑30 23:10:30 2018 cases, Cases, ICLR summary, Judgment available on Bailii, Unlawful detention cases


* LPA witnessed by attorney Re BGO: Office of the Public Guardian v PGO [2019] EWCOP 13"Some time later one of the financial institutions to which the registered property and affairs LPA was sent noticed that BGO’s signature on the instrument had been witnessed by one of the attorneys (MAB), which is contrary to the requirements of Regulations. ... The Public Guardian applied to the Court for a determination as to whether or not the requirements for creation of an LPA were met, and directions as to whether the Public Guardian should cancel the registration of the instrument. ... The wording of paragraph 18 of Schedule 1 is mandatory. Because the requirements of execution have not been met, I must direct the Public Guardian to cancel the registration of BGO’s LPAs. ... For many donors, the failure of their LPA because of a defect in execution can be overcome by the relatively simple step of granting fresh powers, taking care to ensure that the requirements are met – an irritation perhaps and an expense but not an insurmountable hurdle. However, that option is not open to BGO. Sadly, before this defect was identified, BGO’s capacity had deteriorated to the point where she is unable to execute fresh LPAs. ... In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. ... In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect. ... The Respondents are invited to make an application for appointment as property and affairs deputies for BGO. ... If the Respondents, or any of them, seek the appointment of a welfare deputy or deputies for BGO, they should also file at Court within 28 days a COP24 statement which sets out any welfare issues which require decisions to be made, why (having regard to s5 of the Mental Capacity Act 2005) an order is needed and why (having regard to section 16(4) of the Act) the decisions should be taken by a deputy rather than the Court." 2019‑04‑25 22:04:21 2019 cases, Cases, Judgment available on Bailii, LPA cases - all, LPA cases - other


* Death Hounslow Clinical Commissioning Group v RW [2019] EWCOP 12"This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect." 2019‑04‑19 22:50:27 2019 cases, Best interests, Cases, Judgment available on Bailii


* Amputation East Lancashire Hospitals NHS Trust v PW [2019] EWCOP 10"This is an application by East Lancashire NHS Trust for orders under the Mental Capacity Act 2005 that PW lacks capacity "to make a decision regarding whether to undergo the leg amputation surgery to address his high risk of sepsis"; and that it is lawful to carry out that surgery having regard to his best interests. Before dealing with the substantive issues in this case I will deal with the timing of the application." 2019‑04‑19 22:41:55 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Appointment of property and affairs deputy NKR v The Thomson Snell And Passmore Trust Corporation Ltd [2019] EWCOP 15"The application before the Court is for the discharge of the appointment of an existing professional property and affairs deputy, and the appointment of another instead. The discharge of the current deputy is agreed but there is an issue as to who should be appointed instead. ... In the matter of Re AS; SH v LC [2012] MHLO 113 (COP), [2013] COPLR 29 at paragraph 22 Senior Judge Lush set out "generally speaking" an order for preference of various candidates for appointment as deputy. A panel deputy is included "as deputy of last resort," after "a professional adviser, such as the family's solicitor or accountant." ... I am not aware of any previous appointments of a barrister as professional deputy (as distinct from a family member who just happens to be a barrister by profession but is appointed on the usual non-remunerated basis of a family member). Not being considered by the Bar Council as 'a legal service', discharge of the functions of deputyship is apparently not subject to the Bar Council's full regulatory force. However, the risk of property and affairs deputyship lies chiefly in misappropriation of funds. It seems to me beyond debate that misappropriation of MBR's funds whilst acting as deputy would count as "behaviour which diminishes trust and confidence" in Ms. Sood individually and her profession generally, and so Ms. Sood's holding of deputyship appointment would be subject to some professional regulation. ... On the information presently available to me, I am willing to accept that Ms. Sood is personally and professionally a suitable person to hold a deputyship appointment. Her appointment is however not the only option before the Court. A panel deputy has also been identified as willing to act ... Taking all matters into consideration, I conclude that it is in the best interests of MBR for Mr. Kambli to be appointed as replacement deputy upon discharge of the appointment of TSPTC." 2019‑04‑18 22:29:35 2019 cases, Cases, Deputyship cases, Judgment available on Bailii


* Withdrawal of CANH; advance decision NHS Cumbria CCG v Rushton [2018] EWCOP 41"This is an application regarding the proposed withdrawal of clinically assisted nutrition and hydration in respect of Mrs Jillian Rushton, who is now 85 years of age. Since sustaining a traumatic head injury in December 2015, Mrs Rushton has suffered from a prolonged period of disorder of consciousness. Insofar as a label is relevant, the consensus of medical opinion, in respect of which there is no dissent at all, is that she is in a persistent vegetative state (PVS). In their recent guidance, ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’, the Royal College of Physicians and the British Medical Association have noted that the importance of obtaining a precise and definitive diagnosis has reduced. It is recognised by the Courts and clinicians that drawing a firm distinction between vegetative state and minimally conscious state is frequently both artificial and unnecessary. In practice, when assessing best interests, information about the patient’s current condition and prognosis for functional recovery and the level of confidence with which these can be evaluated is invariably of greater importance than a precise diagnosis. ... It perhaps requires to be said, though in my view it should be regarded as axiomatic, that the medical profession must give these advanced decisions the utmost care, attention and scrutiny. I am confident the profession does but I regret to say that I do not think sufficient care and scrutiny took place here. The lesson is an obvious one and needs no amplification. Where advanced decisions have been drawn up and placed with GP records there is an onerous burden on the GP to ensure, wherever possible, that they are made available to clinicians in hospital. By this I mean a copy of the decision should be made available and placed within the hospital records with the objective that the document should follow the patient. It need hardly be said that it will rarely, if ever, be sufficient to summarise an advance decision in a telephone conversation. ... The family have ... made it clear to me that she would not have regarded her present situation as tolerable. Whilst I have no doubt that she would understand the commitment of her son, Tim and his profound resistance to letting her go, I have equally no doubt that she would want to be let go and I have no hesitation in concluding that it is my responsibility to respect this." 2019‑04‑05 21:53:04 2018 cases, Advance decision cases, Cases, Judgment available on Bailii, Medical treatment cases


* Injunction against publication of video Southern Health NHS Foundation Trust v AB [2019] EWCOP 11"This is an application to prevent publication of a video of a patient, AB, in her treating hospital. ... At times she is catatonic and lies in a foetal position on the floor. She has a history during these periods of self-harm, and for that reason she wears protective headgear at all times. In the light of AB's condition and the difficulties in accommodating her appropriately, the Trust has had to adapt the room in which she has been living urgently, and it is true to say that the condition of the room therefore looks somewhat poor. ... On about 20 January 2019, AB's son, W, who is the second respondent, took a video recording of his mother in her room. ... I am clear that it is appropriate in these circumstances to make the order. First of all, having seen the video, it is apparent that AB can be identified, even if pixilated, and would be identifiable from the information that Mail Online intend to publish. ... Secondly, it is clear from Dr Marlowe's statements that AB does not currently have capacity ... Thirdly, I have no doubt, having watched it, that the video would be an interference with AB's privacy and her private life. ... The draft order provides for W being able to apply to the court at a full hearing if he wishes to do so to seek to lift the injunction, and argue that it is in her interests to publish the video. Further, according to Dr Marlowe, AB may well regain capacity herself relatively shortly, i.e. within a matter of weeks, and if she then wishes for publication, that will be a matter for her." 2019‑03‑23 17:33:15 2019 cases, Cases, Judgment available on Bailii, Reporting restriction order cases


* Withdrawal of CANH SS v CCG [2018] EWCOP 40"The application seeks a declaration pursuant to section 15 (that it is lawful and in B's best interests for CANH to be withdrawn) and, secondly, an order pursuant to section 16 for such withdrawal and for B to receive palliative care only. If granted, it is anticipated that B will pass away. ... In support of granting the application there are a number of important factors. It is consistent with her previously expressed feelings and wishes. It supports her right, I suspect strongly held, to self-determination. She has no quality of life. Therapeutically, her life is futile, there is no hope of recovery. There is no hope. If I allow the application and make the declarations, it will bring to an end the invasive and, in my judgment, burdensome medical treatment from which she, B, obtains no benefit. It is consistent with her Muslim religion. It is consistent with her devoted husband's views of his wife's best interests. It is consistent with the unanimous views of those that are responsible for caring and treating her, whether it be the clinical or the support team. Is there any factor which weighs in the scales against granting the application? There is. It is the powerful principle that if I make the declarations, it will inevitably lead to B's death, so offends against the very strong principle of the sanctity of life. Having taken time to consider the matter, it seems to me clear that the direction of travel is all one way. It is with my very greatest sympathy to the family and B's husband in particular that balance falls very clearly in favour of me granting the application and making the declarations as sought, and I do so." 2019‑03‑20 21:43:32 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Retrospective authorisation of DNA swab sample DCC v NLH [2019] EWCOP 9"I concluded it would be appropriate to make a declaration (1) that NLH lacked capacity (a) to make decisions as to the provision of buccal swab samples, the testing of such samples and the profiling of his DNA and (b) to conduct these proceedings, and further (2) that it was lawful for the local authority to arrange for the taking of buccal swabs from NLH for the purposes of performing DNA paternity testing in respect of the child. I further concluded it would be appropriate to make an order, by consent, that the court consented on NLH's behalf for the swab sample to be taken and tested and so that his DNA could be profiled to establish whether he was the father of the child. Shortly before the order was made, however, it emerged that a member of staff from the DNA testing company, Lextox, had already attended at the nursing home and taken the sample, with the agreement of NLH's family, but without either the formal consent of NLH (who lack capacity to provide consent) or the approval of the court. ... I therefore agreed to prepare this short judgment to remind practitioners, carers and those involved in taking samples in these circumstances that, where the patient lacks capacity and an application has been made to the Court of Protection for an order authorising the taking of a sample, it will be unlawful for the sample to be taken without the Court's permission. All practitioners and professionals working in this field ought to be aware that there is always a judge of the Family Division on duty available to sit in the Court of Protection twenty-four hours a day, seven days a week, every day of the year, to deal with urgent applications, usually by telephone. Consequently, there is no excuse for any failure to comply with the obligations to obtain the court's permission in circumstances such as these. As stated, no harm arose on this occasion, but any infringement in future will run the risk not only of attracting severe criticism from the Court but also potentially incurring liability for damages if a breach of human rights were to be established." 2019‑03‑20 20:45:21 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Whether child had "sufficient understanding" to conduct appeal without Guardian CS v SBH [2019] EWHC 634 (Fam)"Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm." 2019‑03‑19 22:00:58 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation capacity cases


* Residence, contact, tenancy London Borough of Hackney v SJF [2019] EWCOP 8"SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into." 2019‑03‑18 22:38:32 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases


* Autism in prison R (Hall) v SSJ [2018] EWHC 1905 (Admin)Unsuccessful judicial review by prisoner claiming breach of Equality Act 2010 reasonable adjustments duty. 2019‑03‑17 15:01:40 2018 cases, Cases, Disability discrimination, Judgment available on Bailii, Prison law cases


* Disproportionate litigation - legal costs, and LIP costs London Borough of Hounslow v A Father & A Mother [2018] EWCOP 23Judge's headnote: "Costs in the Court of Protection - Disproportionate litigation - Whether a litigant in person is entitled to recover costs including loss of earnings" 2019‑03‑16 20:44:59 2018 cases, COP costs cases, Cases, Judgment available on Bailii


* Medical treatment case King's College Hospital NHS Foundation Trust v FG [2019] EWCOP 7"[T]he King's College Hospital NHS Foundation Trust seeks an order in the following terms in relation to FG: (a) a declaration that FG lacks capacity to make decisions regarding the medical treatment for his physical health conditions; (b) that it is lawful and in FG's best interests for him to undergo an operation to repair his right shoulder fracture/dislocation; and (c) that it is in his best interests to receive any sedation and anaesthesia his clinicians think necessary to allow the operation to be done. The matter has come in front of me today as urgent applications judge." 2019‑03‑15 21:01:36 2019 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Medical treatment cases


* Unfair summary disposal of DOL/residence case CB v Medway Council [2019] EWCOP 5"The simple issue is whether the Judge had sufficient information before her to discount, at this stage, any real possibility of CB returning to her home, supported by the extensive and expensive care package that is being mooted. The language of the Judgment itself, to my mind, answers this question in phrases such as “I very much doubt…. I am very sceptical…. The practicalities are…. likely to be extremely difficult….” I share the Judge’s scepticism and I also very much doubt that even with an extensive package of support a return home will be in CB’s best interest. I note too that Dr Ajiteru expressed himself in cautious terms (see para 10 above). However, scepticism and “doubt” is not sufficient to discount a proper enquiry in to such a fundamental issue of individual liberty. ... It is easy to see why the Judge took the course she did and I have a good deal of sympathy with her. She will have recognised, as do I, that the effluxion of time has had its own impact on the viability of the options in this case. However, what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases." 2019‑03‑15 20:56:19 2019 cases, Cases, Deprivation of liberty, Judgment available on Bailii


* Litigation capacity DM v Dorset County Council [2019] EWCOP 4Unsuccessful challenge to a finding that DM lacked litigation capacity. 2019‑03‑14 14:26:53 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases


* Social media and sexual relations Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3"By this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss B’s life, including her capacity: (i) To litigate in these proceedings...; (ii) To manage her property and affairs...; (iii) To decide where she resides...; (iv) To decide on her package of care...; (v) To decide with whom she has contact...; (vi) To use the internet and communicate by social media; (specifically, it is agreed that the question is ‘whether Miss B has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others’)...; (vii) To consent to sexual relations... It is clear that the information relevant to the decision in this area includes: (i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act; (ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy; (iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse. (iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections; (v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom." 2019‑02‑23 12:12:34 2019 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Social media and internet use Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2"I have reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online ‘contact’ is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. ... It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is as follows: (i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know , without you knowing or being able to stop it; (ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below]; (iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below]; (iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly; (v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm; (vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; [see paragraph below]. With regard to the test above, I would like to add the following points to assist in its interpretation and application: ..." 2019‑02‑23 12:01:31 2019 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Contractual dispute between Health Board and independent hospital company Priory Healthcare Limited v Highland Health Board [2019] CSOH 17A patient from Scotland travelled to England and was detained at a Priory hospital, and for a few months the Highland Health Board paid the £540-per-day fee. When the Health Board decided to stop paying, the Priory unsuccessfully argued that the that the Health Board was contractually obliged to meet the continuing cost of the patient's care. 2019‑02‑21 15:02:19 2019 cases, Cases, Judgment available on Bailii, Miscellaneous


* Litigation friends for children in immigration tribunal proceedings R (JS) v SSHD [2019] UKUT 64 (IAC)The Upper Tribunal provided mainly age-based guidance on whether a child applicant in immigration proceedings requires a litigation friend, and on the role of the litigation friend. 2019‑02‑21 14:41:38 2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Repatriation cases


* Medical treatment, including CPR University Hospitals Birmingham NHSFT v HB [2018] EWCOP 39"When considering what is in HB's best interests, I take account of the fact that the balance of medical evidence would support the view that the treatment set out in the second part of the treatment plan would bring about no significant improvement in HB's underlying condition and, to that end, they might be seen as futile. ... Against that, I have to balance the very clear wishes, expressed by HB to her daughter, that she would want all steps taken to preserve her life ... Where it is not clear whether HB will make an improvement in her neurological condition, it is, in my judgment, contrary to her best interests and premature to rule out the treatments set out in Part 2 of the updated treatment plan, numbers (2) to (6). ... Mr McKendrick submits that it would not be in HB's best interests that the potentially last moments of her life were lived with her undergoing the violent and invasive procedures necessary in providing CPR, that it would be a traumatic scene for her children to witness in her final moments. I entirely accept those submissions and the force in them, but key to the decision must be the wishes and feelings of HB and it is plain that administering CPR in the event of a further collapse and giving her, albeit a very, very small chance of life, is what she would wish. In my judgment, at the moment, it remains in her best interests for that treatment to be provided to her. I entirely accept that there will undoubtedly come a time when such treatments would no longer be in her best interests but I am entirely satisfied that that stage has not been reached yet." 2019‑02‑12 09:31:12 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Settlement of property on trust LCN v KF [2019] EWCOP 1"This is an application under section 18(1)(h) of the Mental Capacity Act 2005 for the settlement of CJF's property on trust. ... By the time of the hearing it was expected that CJF would die in a matter of days. As noted earlier in this judgement, CJF died the following week. ... LCN [CJF's deputy] made an application on 20th November 2018 for the settlement of CJF's assets including his property at 1AY on revocable trust for himself during his lifetime and thereafter for 1AY to pass to EH [CFJ's daughter] and AH [EH's husband] and the residue of CJF's estate to pass to KF [CFJ's mother]. ... By the rules of intestacy, CJF's estate would be divided equally between KF and CJF's biological father, stated by KF to be BJF. This is subject to section 18 of the Family Law Reform Act 1987 which raises a rebuttable presumption that BJF pre-deceased CJF as his name did not appear on CJF's birth certificate. KF was able to contact BJF, but only through social media. That contact was sufficient, in my view, to rebut the presumption. If the court did not approve the settlement of CJF's property, it would be divided equally between KF and BJF with nothing passing to EH and AH. It would be open to EH and AH to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, but the outcome of such an application was uncertain. ... In this case, I consider that there were exceptional circumstance justifying proceeding without BJF being notified. These circumstances were his complete lack of involvement in CJF's life and care and his denial of paternity. There was a genuine urgency and balancing the prejudice of proceeding in the absence of BJF with the prejudice to EH and AH of not proceeding, I considered that the hearing had to take place despite the lack of service on BJF. It was agreed between the parties, and I ordered, that attempts should be made after the hearing to locate BJF and serve him with a copy of the final order so that it would be open to him to apply to set aside or vary it. ... The parties agree, and I find, that the authorities on the making of a statutory will apply to the settlement of CJF's estate in this case. I was advised by Miss Hughes that between 1925 and 1959 the Court had no power to make a statutory will and so would have approved settlement trusts as an alternative. ... All agreed that 1AY should pass to EH and AH and that the residue of the estate should pass to KF. I take that agreement into account and see no reason to depart from it. ... The question remains whether AH and EH should be effectively liable for some of the Inheritance Tax liability or whether the liability should all be borne by the estate, and in effect KF. ... I do not consider that it would be in CJF's best interests for there to be any risk to the security and stability of EH's and AH's home and therefore I consider that they should inherit 1AY effectively free of Inheritance Tax." 2019‑02‑05 13:34:25 2019 cases, Cases, Judgment available on Bailii, Statutory will cases


* LPA attorney as substituted personal representative Whittaker v Hancock & Ors [2018] EWHC 3478 (Ch)"The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as substitute personal representative of the estate of John Parker in place of the second defendant, her mother, and for a caveat entered by the third defendant on 20 July 2016 to be removed. ... The third defendant is the deceased's daughter and opposes the claim. ... In a statement accompanying the Will, signed by the deceased and witnessed by a legal secretary the deceased explains that he has made no provision for the third defendant ... On 20 July 2016 the third defendant caused a caveat to be entered. She subsequently entered an appearance to the claimant's warning asserting that the 2003 Will may be invalid due to the deceased lacking testamentary capacity, being subject to undue influence and want of knowledge and approval. ... Mr Devereux-Cooke submits that I should make an order appointing the claimant as substitute personal representative for the second defendant. The claimant is the attorney for the second defendant, the LPA having been registered on 16 January 2014. The second defendant cannot consent to the claim as she lacks capacity. The first defendant does not oppose the claim. ... It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant's property and financial affairs. There are no conditions or restrictions specified in the instrument. ... It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries. ... I accept Mr Devereux-Cooke's analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke's analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary. ... I consider that in order for the deceased's estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant." 2019‑02‑03 22:41:23 2018 cases, Cases, Judgment available on Bailii, LPA cases - other, Testamentary capacity cases


* Damages for Parole Board delay R (Bate) v Parole Board [2018] EWHC 2820 (Admin)"Four grounds of claim were pleaded in detail. They can be summarised as challenging: (i) a failure, in violation of Art 5(4), to provide a parole hearing within a reasonably speedy interval; (ii) a systemic failure to maintain and operate a system for speedy and prompt parole reviews; (iii) an unlawful policy for prioritisation of listing which ignores support for release and prospects of release which are identified as realistic, and/or ignores a legitimate expectation given as to the timetable for a deferred hearing; (iv) an unlawful failure, by the decision letter of 2nd December 2016, to direct expedition in the listing of Mr Bate's deferred hearing. ... For the reason I have given, I would find in Mr Bate's favour on ground 1 and ground 4, and would award him damages on the basis indicated in paragraphs 77, 88 and 89 above. I would refuse relief in respect of grounds 3 and 4." 2019‑02‑03 15:32:51 2018 cases, Cases, Judgment available on Bailii, Prison law cases


* Dishonest solicitor Maitland-Hudson v SRA [2019] EWHC 67 (Admin)"The Appellant appeals against findings of misconduct and dishonesty made against him by ... the Solicitors Disciplinary Tribunal ... Pursuant to those findings, on 2 May 2018 the Appellant was struck off the Roll of Solicitors and ordered to pay the SRA's costs, including £300,000 by way of interim payment. The Tribunal found the Appellant to have been guilty of misconduct "at the highest level", characterised as "deliberate, calculated and repeated… over a number of years". It was aggravated by the Appellant's dishonesty and attempts to defend his conduct. The appeal is based on grounds of alleged procedural unfairness, specifically that the Appellant, a litigant in person, was substantially impaired in his ability to defend himself, to the extent that he admitted himself to hospital. Despite the fact that consultant psychiatrist experts on both sides found that the Appellant was unable to represent himself, the Tribunal refused to dismiss the proceedings on the basis of "incurable unfairness" or even to stay or adjourn their remainder." 2019‑02‑01 09:02:50 2019 cases, Cases, Judgment available on Bailii, SRA decisions


* False imprisonment and damages 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, Judgment available on Bailii, Unlawful detention cases


* Inherent jurisdiction to authorise DOL of vulnerable adult A Local Authority v BF [2018] EWCA Civ 2962An interim order made on 10/12/18 required BF to reside at a care home, over Christmas, and not at his own or his son's home, despite BF's having capacity to make decisions about his residence and wanting to return home. The order was expressed to last until a further hearing to take place no later than 31/1/19 (later fixed for 16/1/19) when the judge could hear full argument on what relief could be granted pursuant to the inherent jurisdiction. The local authority appealed on the basis that the order infringed Article 5. Permission to appeal was refused: (1) BF is a vulnerable adult (old, blind, infirm, in a squalid and dangerous home, with undue influence present in relationship with son) who needs protection despite not lacking capacity. (2) The test of "unsound mind" is different from the test of capacity, and there is prima facie evidence that he may be of unsound mind. (3) In an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing Article 5 (Winterwerp); even if BF is found not to be of unsound mind, his vulnerability is such that he could not be returned home without careful planning, which is a crucial component of the protection afforded by the inherent jurisdiction. 2019‑01‑22 23:50:19 2018 cases, Brief summary, Cases, Inherent jurisdiction cases, Judgment available on Bailii, Transcript


* Infanticide wrongly withdrawn from jury 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, Judgment available on Bailii, Other criminal law cases


* Damages for unlawful immigration detention R (Adegun) v SSHD [2019] EWHC 22 (Admin)"There are two bases of challenge to Mr Adegun's detention which, in broad outline, are as follows. ... There is first an issue, which I shall call the "rule 34 issue", as to whether Mr Adegun declined a medical examination pursuant to rule 34 of the Detention Centre Rules when he was taken into detention. ... The second issue I shall call the "paragraph 55.10 issue". It arises because there is evidence, not disputed by the Secretary of State, that Mr Adegun was suffering from a mental health condition which was not recognised by the Home Office until some time after his admission into detention and was not treated with medication until 19 January 2016. ... I therefore propose to award nominal damages in respect of the early period of Mr Adegun's detention and substantial damages in respect of 40 days' detention." 2019‑01‑12 22:58:23 2019 cases, Cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript


* Meaning of "nature" in discharge criteria LW v Cornwall Partnership NHS Trust [2018] UKUT 408 (AAC)(1) Having considered the statutory framework of CTOs and the legislative purposes behind them the UT concluded, primarily on that basis, that in cases where there is a risk of a relapse which might necessitate recall, how soon that such a relapse is likely to occur is a relevant consideration. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be "soon", "in the near future" or within the permitted duration of a CTO. (2) Addressing the claimants' arguments on the analogy between detention and CTO cases, the judge stated that while there are some parallels between the s3 regime and CTOs they are not such that the same principles necessarily apply to both, and (to the extent necessary to reach a view on the detention cases) neither of the previous judgments cited in CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) provided an authoritative basis for the view that imminence of relapse is the only factor or need be in the near future. 2019‑01‑11 14:05:05 2018 cases, Brief summary, Cases, Judgment available on Bailii, Transcript, Upper Tribunal decisions


* John Blavo personally ordered to repay Legal Aid claims Lord Chancellor v Blavo and Co Solictors Ltd [2018] EWHC 3556 (QB)The High Court gave judgment for the Lord Chancellor against John Blavo in the sum of £22,136,001.71 following the allegation that Blavo & Co made dishonest claims for payment on the legal aid fund for thousands of cases where it was not entitled to any fee. 2019‑01‑01 17:19:29 2018 cases, Brief summary, Cases, Judgment available on Bailii, Miscellaneous, Transcript


* Intervention costs statutory demands 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, Judgment available on Bailii, 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, Judgment available on Bailii, Transcript


* Inherent jurisdiction authorises DOL during conditional discharge 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, Judgment available on Bailii, Transcript


* Welsh Ministers v PJ [2018] UKSC 66(1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), but if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review. 2018‑12‑17 14:40:29 2018 cases, Brief summary, Cases, Deprivation of liberty, Judgment available on Bailii, Powers, Transcript


* EXB v FDZ [2018] EWHC 3456 (QB)"This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement. [I]t was thought by those who knew him best ... that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved. ... The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because 'by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant.' Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations. In those circumstances a declaration as to incapacity in relation to this specific decision is justified. ... This case is the first I can recall when an issue such as that which has arisen has occurred. ... I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result." The draft order included the following declarations: "(1) The Claimant lacks the capacity to decide whether or not he should know the amount of the Settlement. (2) It is in the Claimant's best interests that he does not know the amount of the Settlement. (3) It shall be unlawful for any person (whether the Claimant's deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life." 2018‑12‑14 22:43:03 2018 cases, Cases, Judgment available on Bailii, No summary, Other capacity 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, Judgment available on Bailii, No summary, Transcript


* Contact SR v A Local Authority [2018] EWCOP 36"At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary." 2018‑11‑29 21:25:14 2018 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


* Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47"The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction." 2018‑11‑29 21:13:11 2018 cases, Cases, Deprivation of liberty, Judgment available on Bailii, 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, Judgment available on Bailii, Powers, Transcript


* R (Western Health and Social Care Trust) v Secretary of State for Health [2018] NIQB 67"The impugned determination is that of the [Secretary of State for Health of England and Wales] to the effect that a lady whom I shall describe as CM (aged 32 years) is 'ordinarily resident' in Northern Ireland and has been thus since 2009, with the result that the care management and funding responsibilities for her have fallen on the Trust, rather than [the London Borough of Enfield], since that date. In very brief compass, lying at the heart of this challenge is a funding dispute between the Trust and Enfield." 2018‑11‑23 14:24:37 2018 cases, Cases, Community care, Judgment available on Bailii, No summary, Transcript


* Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB)"The Claimant, Dr. Caroline Ardron, is a very experienced consultant psychiatrist employed by the Defendant [Trust]. The Trust considers it appropriate for Dr. Ardron to face disciplinary proceedings for alleged gross misconduct relating to her work at HMP Lewes in late 2015 and early 2016. At that time, Dr. Ardron was the responsible clinician of a young prisoner known as JO, who committed suicide by hanging himself on 12 February 2016. The proposed disciplinary proceedings relate, almost exclusively, to Dr. Ardron's care of JO including her record-keeping in that respect. Dr. Ardron does not suggest that disciplinary proceedings are inappropriate as a matter of principle, or that there is no case of misconduct that could be brought against her. However, she contends that there is no basis for a charge of gross misconduct; a charge which, if established, could potentially lead to the termination of her contract and serious ramifications for her including her prospects of obtaining subsequent employment. On 18 June 2018, an interlocutory injunction was granted by Mr. Pushpinder Saini QC, sitting as a Deputy Judge of the High Court, which restrained the Trust from proceeding until further order with a disciplinary hearing into gross misconduct. The question for resolution now is whether that injunction should be made permanent. That issue depends upon whether Dr. Ardron can prove that the Trust will breach her contract of employment by holding the proposed disciplinary hearing on a charge of gross misconduct. The Trust's intention to proceed to such a hearing was communicated in its letter to Dr. Ardron dated 20 March 2018, and the issue is therefore whether the Trust should be prevented from operating on the basis of that letter. The resolution of that issue depends principally upon the question of whether the facts found in an investigation into Dr. Ardron's conduct could, taken at their highest, amount to gross misconduct." 2018‑11‑23 14:02:05 2018 cases, Cases, Judgment available on Bailii, Miscellaneous


* Tracheostomy tube, escalation, morphine Leeds Teaching Hospitals NHS Trust v JF [2018] EWCOP 32"... N suffered a cardiac arrest in the taxi as she was arriving at Leeds General Infirmary and as a result for some 20 minutes or so ceased breathing and suffered a severe hypoxic injury. In consequence she has suffered a very significant and severe brain injury. The position now and since then has remained that she is essentially unconscious. ... The issues before me have been threefold. First, whether or not the tracheostomy tube should be removed. ... The second issue has rather retreated in significance. I have to consider whether or not N should receive an escalation of invasive care or treatment, in particular vasoactive drugs, renal replacement therapy, ventilation treatment that requires central venous action or CPR. ... That brings me on to morphine, and that is a difficult issue." 2018‑11‑12 21:50:46 2018 cases, 39 Essex Chambers summary, Cases, E90, Judgment available on Bailii, Medical treatment cases


* DOL of child Re HC (A Minor: Deprivation of Liberty) [2018] EWHC 2961 (Fam)"HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire ("the unit"). By application dated 18th July 2018, the local authority responsible for HC's placement asks that the court determine whether HC's placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. ... Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC's placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate." 2018‑11‑08 02:48:41 2018 cases, Cases, Deprivation of liberty, Judgment available on Bailii


* Placement for child Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31"However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance." 2018‑11‑08 02:43:22 2018 cases, Cases, Judgment available on Bailii, Other capacity cases


* Family Court considering MCA Z v Kent County Council [2018] EWFC B65This family court case - subtitled 'Revocation of placement order - Failure to assess Mother's capacity and Grandparents' - has a detailed consideration of the MCA 2005. Extract: "The law - capacity, presumption of capacity and determining protected party status. This issue is governed primarily by the Family Procedure Rules 2010 Part 15 and Practice Directions 15A and 15B, and by the Mental Capacity Act 2005. Additionally, there is guidance provided by the Department for Children, Schools and Families’ publication 'The Children Act 1989 Guidance and Regulations', and in April 2010 the Family Justice Council published guidance for proceedings and pre-proceedings called 'Parents who Lack Capacity to Conduct Public Law Proceedings' [updated in April 2018]." 2018‑11‑08 02:26:08 2018 cases, Cases, Judgment available on Bailii, Other capacity cases


* Sexual exploitation, restrictions where adults have capacity Manchester City Council Legal Services v LC [2018] EWCOP 30After a circuit judge endorsed a care plan which led to the repeated sexual exploitation by strangers of a young woman with autism and significant learning disabilities (who had capacity to consent to sexual relations but lacked capacity to make decisions on her contact with men), Hayden J provided guidance that 'where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection'. 2018‑11‑07 13:41:36 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, Judgment available on Bailii


* DOL damages Atudorei v Romania 50131/08 [2014] ECHR 947Breach of Articles 5 and 8, but not Article 8, relating to hospital admission. 2018‑11‑03 23:16:39 2014 cases, Cases, Deprivation of liberty, Judgment available on Bailii, MHLR summary


* Novel treatment University College London Hospitals v KG [2018] EWCOP 29"In this case the University College London Hospitals NHS Foundation Trust seeks the court's authority to administer a treatment known as PRN100 to a patient KG. KG is represented by the Official Solicitor. KG, the Official Solicitor on his behalf, his family and the Trust all ask for the court's approval. The matter is before the court because PRN100 has never been tested on or administered to any person anywhere. It is thus a completely novel treatment." 2018‑10‑31 22:26:36 2018 cases, 39 Essex Chambers summary, Cases, E90, Judgment available on Bailii, Medical treatment cases


Gill v Woodall [2009] EWHC B34 (Ch) — "The Claimant disputes the validity of Mrs Gill's will on two grounds. They are: (1) At the time Mrs Gill executed the will she did not know and approve its contents; (2) Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill." 2018‑10‑23 18:37:55 2009 cases, Judgment available on Bailii, No summary, Testamentary capacity cases, Transcript


* DOL Re D (A Child) [2017] EWCA Civ 1695"This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D [2016] EWCOP 8!, [2016] PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam)!, [2016] 1 FLR 142!. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms." 2018‑10‑23 18:24:57 2017 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Residence, wishes and feelings LB Islington v AA [2018] EWCOP 24"These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge." 2018‑10‑22 15:39:21 2018 cases, 39 Essex Chambers summary, Best interests, Cases, E90, Judgment available on Bailii


* Claim following decision not to admit under MHA Griffiths v Chief Constable of Suffolk Police, and Norfolk and Suffolk NHSFT [2018] EWHC 2538 (QB)"This case arises out of the murder of Mary Griffiths by John McFarlane on 6 May 2009 in Bury St Edmunds, Suffolk. The Claimants are her three daughters, suing by their father and litigation friend. They seek damages from the Chief Constable of the Suffolk Police, the 'Suffolk Police', and North and Suffolk NHS Foundation Trust, the 'NHS Trust', the first and second Defendants. ... The claim, put very shortly, is that the NHS Trust assessment under the Mental Health Act, MHA, was flawed in a number of respects, and that Mr McFarlane ought to have been admitted to hospital, voluntarily or compulsorily, on 3 May 2009, which would have prevented him being in a position to murder Ms Griffiths on 6 May. In any event, the NHS Trust should have warned her that Mr McFarlane was a danger to her, and they ought also to have communicated with the Suffolk Police. This would have affected the way in which they, in turn, addressed Ms Griffiths' concerns when she telephoned them on 5 May 2009. The Suffolk Police, in any event, ought to have graded Ms Griffiths' call as more serious than they did, and ought to have sent someone round that night. That person would have realised that the situation was more threatening than had the call-taker, and steps would have been taken to protect Ms Griffiths, who faced a real and immediate risk from Mr McFarlane, to remove her from danger, or to warn or detain Mr McFarlane." 2018‑10‑22 15:23:23 2018 cases, 39 Essex Chambers summary, Cases, E90, Judgment available on Bailii, Miscellaneous


* Sex and covert contraception Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10"This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." ... Given the serious infringement of rights involved in the covert insertion of a contraceptive device, it is in my judgement highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of best interests, with P having the benefit of legal representation and independent expert advice. 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, Judgment available on Bailii


* DOL of child Re Y (Autism - Care Proceedings - Deprivation of Liberty): LB Barking and Dagenham v Mr and Mrs X (2018) EWHC B63"The local authority, represented by Ms Mustafa of counsel, applies for a care order under Section 31 of the Children Act 1989 and for an order declaring that it is lawful for the local authority to deprive Y of his liberty. Y is the child of the First and Second Respondent parents. Mr and Mrs X are represented by Ms Prolingheuer of counsel. Mr and Mrs X oppose the application for a Care Order and DoL and submit he should return home to their care" 2018‑10‑22 14:27:39 2018 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Secure accommodation Re T (A Child) [2018] EWCA Civ 2136"This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)." 2018‑10‑15 20:15:07 2018 cases, 39 Essex Chambers summary, Cases, Deprivation of liberty - children, E89, Judgment available on Bailii


* LPA wording - euthanasia and multiple attorneys 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, Cases, E89, ICLR summary, Judgment available on Bailii, LPA cases - all, LPA cases - other, Transcript


* Gifts PBC v JMA [2018] EWCOP 19"PBC is the son of JMA, and was appointed as her sole attorney for property and affairs by a Lasting Power of Attorney ... He seeks the authority of the Court to make from JMA’s estate various gifts together exceeding £7 million. The purpose of such gifting, openly stated from the outset of the application, is to achieve - as long as JMA lives at least a further 3 years - reduction of inheritance tax liabilities. The parties have reached an agreement between themselves. Together, they ask the Court to make orders to give effect to their agreement. The matter was listed for hearing because the Court sought assistance in order to reach a conclusion as to whether or not the terms of that agreement are in the best interests of JMA." 2018‑09‑02 21:58:59 2018 cases, Cases, Deputyship cases, Judgment available on Bailii


* Capacity to make tribunal application VS v St Andrew's Healthcare [2018] UKUT 250 (AAC)(1) The capacity that a patient must have in order to make a valid MHT application is that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released. This is a lower threshold than the capacity to conduct proceedings. (2) (Obiter) a solicitor appointed under rule 11(7)(b) can request to withdraw an application in the best interests of the patient, but on the facts the tribunal had been entitled to give effect to the patient's own desire to come before a tribunal. (3) When a tribunal lacks jurisdiction it should strike out the proceedings but (obiter) if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law. 2018‑08‑25 22:22:47 2018 cases, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


* Sperm Y v A Healthcare NHS Trust [2018] EWCOP 18"This application was made by Y on 12 July 2018 when I was sitting as the emergency applications judge. It required urgent determination by reason of the critical medical condition of Z, Y's husband. Y sought the following relief: (a) A declaration that, notwithstanding her husband's incapacity and his inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death; (b) An order pursuant to section 16 of the Mental Capacity Act 2005 directing that a suitable person should sign the relevant consent form for the storage of Z's sperm on her husband's behalf." 2018‑08‑18 08:47:12 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Intoxication 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, Cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Sentence appeal cases


* DOL - children Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam)"The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases." 2018‑08‑08 20:33:34 2018 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Court order not always necessary for withdrawal of CANH 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, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases


* Miscellaneous Re A (A Patient, now deceased) (No 4) [2018] EWCOP 17"On 24 July 2018, Mr Fitzgerald issued an application in the Family Division of the High Court of Justice, under number FD13P90056, seeking an order that, as President of the Family Division, I 'withdraw from public record Judgement EWCOP16 [2018] on the grounds that: (1) It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.' ... Mr Fitzgerald's latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order." 2018‑07‑29 19:19:05 2018 cases, Cases, Judgment available on Bailii, Miscellaneous


* Negligence claim about 999 call Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB)"The claim arises out of the death of the Deceased who was found dead at her home on the morning of the 30th of January 2012. For present purposes it is accepted that the Deceased took her own life. There are two pleaded causes of action: common law negligence and alleged breaches of convention rights under the Human Rights Act 1998. The Recorder, as I am, was concerned only with the negligence claim and then only with the issue as to the existence of a duty of care owed to the Deceased. Issues as to breach of any such duty or issues as to causation were not before the Recorder. The pleaded particulars of negligence amount to allegations that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the Deceased in a 999 call made by the Deceased's mother." 2018‑07‑19 16:01:43 2018 cases, Cases, Judgment available on Bailii, Miscellaneous


* COP costs Re A (A Patient, now deceased) (No 3) [2018] EWCOP 16"I have before me an application [which] relates to certain costs orders against Mr Fitzgerald dated 22 and 24 March 2016 which I made in the Court of Protection, as President of the Court of Protection, in proceedings (95908524), to which Mr Fitzgerald was a party. Those proceedings related to Mr Fitzgerald's now deceased aunt A, a patient whose affairs were under the control of the Court of Protection until her death on 5 March 2018. Central to Mr Fitzgerald's application are the circumstances in which, in the course of those proceedings, SJ Lush, by an order dated 28 May 2013, had appointed her niece, C, to be A's deputy for property and affairs." 2018‑07‑19 15:37:34 2018 cases, COP costs cases, Cases, Judgment available on Bailii


* Statutory demands set aside 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, Judgment available on Bailii, SRA decisions


* Capacity - residence, care, contact and finances Re FX [2017] EWCOP 36"I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions." 2018‑07‑06 21:25:50 2017 cases, Cases, Judgment available on Bailii, Other capacity cases


* Fluctuating capacity Royal Borough of Greenwich v CDM [2018] EWCOP 15"In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests." 2018‑07‑03 20:15:50 2018 cases, 39 Essex Chambers summary, Cases, Deprivation of liberty, E89, Judgment available on Bailii, Other capacity cases


* Assisted suicide 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, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


* Inherent jurisdiction Mazhar v Lord Chancellor [2017] EWHC 2536 (Fam)"This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar. ... Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law. ... The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal." 2018‑05‑22 20:51:22 2017 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, No summary, Transcript


* Best interests/transparency PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067"Two central criticisms are made of the judgment below, and the judge's determination of best interests. First, that the judge failed to appreciate and therefore give any or any adequate weight to RW's wishes and feeling. These were, contrary to her findings, ascertainable; they pointed to the fact that he was a "fighter", to the value he ascribed to life and to his desire to "hold fast to it" no matter how "poor" or "vestigial" in nature it was. Secondly, the judge overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide would remove or mitigate that risk. In the result, and in any event, it is submitted the judge's overall analysis of what was in RW's best interests failed adequately to address the relevant issues and evidence, and was a flawed one. In my view neither criticism is well-founded." Another aspect of this case related to the transparency order/reporting restrictions. 2018‑05‑22 20:40:44 2018 cases, Best interests, Cases, Judgment available on Bailii, Reporting restriction order cases


* Homelessness 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, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases


R v Press Complaints Commission, ex parte Ian Stewart-Brady [1996] EWCA Civ 986 — "This is a renewed application for leave to apply for judicial review in relation to an adjudication of the Press Complaints Commission. ... The application arises out of a publication in The Sun newspaper on 26 July 1995. The publication contained an article relating to the applicant, Ian Brady, who was convicted of murder and is now a patient at the Ashworth Hospital. The effect of the article was that he was being treated in a way which was wholly inappropriate having regard to the very serious crimes which he had committed. No complaint, however, is made about the article. Although Mr Beloff certainly does not approve of its contents, he accepts that he cannot say that there was any justification for complaining about the article. His complaint is that the article has alongside it a substantial photograph of the applicant, albeit a photograph which is indistinct and does not show Mr Brady clearly. ... Looking at the matter as a whole, I do not think there is any prospect of this application succeeding and therefore I would dismiss it." 2018‑04‑27 20:00:41 1996 cases, Judgment available on Bailii, Miscellaneous, No summary, Transcript


* DOL - 17-year-old Buckinghamshire County Council v RT [2018] EWCOP 12"I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. ... RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place]. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night. ... Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. ... It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year. RT's 18th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18th birthday which in particular will enable him to have a say at that point." 2018‑04‑25 23:34:51 2018 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Covert medication and MHT M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC)The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision. 2018‑04‑20 20:33:54 2018 cases, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


* Withdrawal of CANH NHS Windsor, Ascot and Maidenhead CCG v SP (Withdrawal of CANH) [2018] EWCOP 11"Windsor, Ascot and Maidenhead CCG have applied to the court for a personal welfare order in respect of SP. The order sought is for a Declaration and Order that it is not in SP's best interests for Clinically Assisted Nutrition and Hydration (CANH) to be continued. In tandem with the withdrawal of CANH palliative care will be provided. The consequence is an expectation that SP will die within 7-14 days. ... In early 2015 she was diagnosed as being in a continuing vegetative state and in April 2015 as being in a permanent vegetative state (PVS). She has been in receipt of CANH since October 2014." 2018‑04‑20 19:54:41 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Guidance on sentencing on appeal 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, Cases, ICLR summary, Judgment available on Bailii, Judgment available on MHLO, Sentence appeal cases, Transcript


* COP costs NHS Dorset CCG v LB [2018] EWCOP 7"In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision." 2018‑04‑09 00:53:58 2018 cases, COP costs cases, Cases, Judgment available on Bailii


* Deputy - remuneration Re AR [2018] EWCOP 8"The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy." 2018‑04‑09 00:46:17 2018 cases, Cases, Deputyship cases, Judgment available on Bailii


* Litigation friend under employment tribunal rules 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, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Powers


* Medical treatment, costs, anonymity Re SW [2017] EWCOP 7(1) "[A]s matters stand, the transplant being proposed cannot proceed, whatever the court may say or do. As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor." (2) "As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. ... [B]oth Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs." (3) "There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour." 2018‑03‑28 22:40:05 2017 cases, Anonymisation cases, COP costs cases, Cases, Judgment available on Bailii, Medical treatment cases, Reporting restriction order cases


* Extradition Cash v Court of First Instance, Strasbourg, France [2018] EWHC 579 (Admin)"At the conclusion of the hearing on 13 March 2018 I allowed the Appellant's appeal and quashed the extradition order made by District Judge Grant on 15 March 2017. I did so on the grounds that it would be unjust and oppressive to extradite the Appellant because he is currently unfit to stand trial and is seriously mentally ill with paranoid schizophrenia, and thus the judge should have decided that extradition is barred by s 25 of the Extradition Act 2003." 2018‑03‑28 21:58:14 2018 cases, Cases, Judgment available on Bailii, Repatriation cases


* Variation of Trusts Act 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, Cases, Judgment available on Bailii, Other capacity cases


Re AB [2016] EWCOP 66 — "I am asked to, and I do approve, a treatment regime for AB, which involves the administration of medication to her on a basis of deception. Not merely passive deception, which, to use a legal phrase might be characterised as suppressio veri, but active deception, which lawyers might describe as suggestio falsi. It is debateable whether there is in fact much moral difference between the two types of deception, but what is being proposed here is a treatment regime, an administration of medication, on the basis of active deception of AB. I only have to state this for the unusual nature of the case to be revealed, but the circumstances in which these facts arise demonstrate that such a course is manifestly required in the best interests of AB, notwithstanding that her personal wishes and feelings would be entirely contrary to the course that is going to ensue. AB is infected with HIV. ... The order will provide, however, that if the truth emerges to AB and she moves to a position of active resistance then the matter will have to be reviewed, and the Court will have to consider, in that situation, whether to move to forced administration of these drugs, which would be a very difficult decision to make, because it would not be a one-off administration of treatment, but would be a quotidian administration of treatment, which is a very different state of affairs to that which is normally encountered in this Court." 2018‑03‑28 09:45:15 2016 cases, Judgment available on Bailii, Medical treatment cases, No summary, Transcript


* Nerve agent poisoning SSHD v Skripal [2018] EWCOP 6"On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Mr and Ms Skripal remain in hospital under heavy sedation. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. The fact of their exposure to a nerve agent has already had significant consequences on the wider domestic and international stage which I need not go into for the purposes of this judgment. However central to the application before me is the fact that on 14 and 16 March 2018 the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom 'to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).' This in effect is to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries the OPCW wish to: (i) Collect fresh blood samples from Mr and Ms Skripal to (a) undertake their own analysis in relation to evidence of nerve agents, (b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal; (ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018; (iii) Re-test the samples already analysed by Porton Down. Because Mr Skripal and Ms Skripal are unconscious and neither are in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust have quite properly confirmed to the UK Government that a court order would be required to authorise (a) and (b) above." 2018‑03‑28 09:35:57 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Sentencing guidance, including s37 and s45A 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, Cases, Judgment available on Bailii, Sentence appeal cases


* Vexatious COP application Re SW (No 2) [2017] EWCOP 30"This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place." 2018‑03‑19 01:09:49 2017 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


* Canadian LPA as protective measure Re JMK [2018] EWCOP 5"The application before the Court is for an order to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether such an instrument amounts to 'a protective measure' for the purposes of Schedule 3." 2018‑03‑19 01:04:50 2018 cases, Cases, Judgment available on Bailii, Other capacity cases


* COP bias Re M: A v Z [2018] EWCOP 4"This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests." 2018‑03‑12 22:55:33 2018 cases, Bias, Cases, Judgment available on Bailii, Other capacity cases


* Declaration of non-marriage in English law Re M: AB v HT [2018] EWCOP 2"These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M's father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her capacity, and orders made following my findings." 2018‑03‑08 20:27:30 2018 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Social security appointeeship DB (as executor of the estate of OE) v SSWP [2018] UKUT 46 (AAC)"The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly." 2018‑02‑26 22:50:22 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Welfare benefits cases


* Withdrawal of CANH 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, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases


* Appropriate adult Miller v DPP [2018] EWHC 262 (Admin)"This is an appeal by way of case stated from a pre-trial ruling of the Black Country Magistrates' Court sitting at Dudley on 13 October 2016 in respect of an information preferred against the Appellant for failing to provide a specimen of blood in breach of section 7 of the Road Traffic Act 1988, not to exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence of the drug drive procedure at Oldbury Police Station that led to the charge being made. ... On 24 June 2016, the Appellant was stopped by the police on suspicion of driving under the influence of drugs. When arrested and taken into custody, he behaved erratically and aggressively. It appears that he was known to the police as a person who had learning difficulties and autism. ... As Mr Scott submitted, the presence of an appropriate adult (whilst not being able to provide technical, legal or medical advice) would have provided the Appellant with the opportunity not only to have the question as to whether or not to provide a sample explained to him, but also to obtain an appreciation of the consequences of failing to do so. He points out that the offence of failing to provide a blood sample is predicated not only on the person's comprehension of the requirement to provide a sample, but also of the consequences of failing to do so in terms of criminal liability. The Appellant was clearly very exercised whilst being detained, and there is a very real possibility that the presence of an appropriate adult would have calmed him, and led him to behave differently and make different choices from those he in fact made. ... [H]aving found there to have been a breach of Code C in failing to inform and summon an appropriate adult to the police station, we do not consider that the magistrates did properly exercise their discretion under section 78 of PACE not to exclude the evidence of the drug drive procedure. Their reasoning was, unfortunately, fundamentally flawed; and, had they exercised their discretion properly, they would have been bound to have excluded the evidence of the drug drive procedure." 2018‑02‑16 23:19:33 2018 cases, Cases, Judgment available on Bailii, Other criminal law cases


* Costs against Parole Board 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, Cases, ICLR summary, Judgment available on Bailii, Prison law cases


* Extradition LMN v Government of Turkey [2018] EWHC 210 (Admin)"It would be unlawful for this country to extradite the appellant to Turkey if he would there face a real risk of being treated in a manner which breached his Article 3 right not to be "subjected to torture or to inhuman or degrading treatment or punishment": see R (Ullah) v Special Immigration Adjudicator [2004] 2 AC 323!. It is for the appellant to establish that there are substantial grounds for believing that, if extradited, he will face such a risk; and the ill-treatment must reach a minimum level of severity before Article 3 would be breached. Given that Turkey is a member of the Council of Europe and a signatory to the European Convention on the Prevention of Torture, the respondent is entitled to rely on the presumption that the Turkish authorities will protect prisoners against breaches of their Article 3 rights. Mr Josse has not invited this court to decide the appeal on the basis of findings about the Turkish prison system as a whole, and in any event there is no evidence which would enable the court to do so. ... There are in my judgment two key aspects of the evidence relating to the Article 3 issue: the expert evidence as to the appellant's mental health; and the expert evidence as to prison conditions in Turkey following the attempted coup. ... In those circumstances, I accept the expert evidence now available as establishing that the appellant is presently suffering from a recognised medical condition, namely severe depressive episode; that he also presents some features of PTSD; that he is currently prescribed antidepressant medication, and in receipt of regular psychological counselling; that there is a continuing need for coordinated care management; and that there is a high risk of suicide in the event of extradition. ... The further evidence now before the court shows, as I have indicated, a continuing need for medication and healthcare. The appellant has very plainly raised the issues of whether his healthcare needs would in fact be met, and whether the healthcare which is in principle available in Turkish prisons would in fact be available to the appellant in the context of the greatly-increased prison population. There is simply no evidence that such care will be available to him. ... In my judgment, taking into account the risk of suicide, a failure to meet the mental healthcare needs of the appellant would in the circumstances of this case attain the minimum standard of severity necessary to breach his Article 3 rights. ... It follows that his extradition would not be compatible with Article 3 or with section 87 of the 2003 Act." 2018‑02‑09 20:44:58 2018 cases, Cases, Judgment available on Bailii, Repatriation cases


* Role of COP Visitor in DOL cases 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, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii


* Insanity 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, Cases, ICLR summary, Judgment available on Bailii, Unfitness and insanity cases


* Immigration detention 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, Cases, ICLR summary, Judgment available on Bailii, Repatriation cases


* Hospital pocket money 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, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


* DOL - children Re A-F (Children) [2018] EWHC 138 (Fam)"... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the comparison should be made with a 'typical' child of the same age who is subject to a care order. The answer in my judgment is quite clearly, No. ... I turn to matters of process and procedure." 2018‑02‑02 00:19:06 2018 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Scottish capacity case Application by Darlington Borough Council in respect of the Adult: AB [2018] ScotSC 4"The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian." 2018‑01‑25 21:58:52 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Scottish cases


* Banks v Goodfellow test for testamentary capacity survives MCA James v James [2018] EWHC 43 (Ch)"There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin [2014] EWHC 71 (Ch)Not on Bailii! [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect." 2018‑01‑22 22:56:10 2018 cases, Cases, Judgment available on Bailii, Testamentary capacity cases


* After-care Richards v Worcestershire County Council [2017] EWCA Civ 1998Executive summary and conclusion from judgment: "The claimant has a long history of mental illness, following frontal lobe injury which he sustained in a road traffic accident 33 years ago. He received damages following the accident, which his deputy administers. The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he has received various after-care services. The claimant's deputy funded the services between 2004 and 2013. The defendants have funded those services since 2013. The claimant by his deputy now seeks to recover the costs of the after-care services between 2004 and 2013 (including 18 months residential placement) on the grounds that the defendants are liable for the costs under section 117 of the 1983 Act. The defendants applied to strike out the claim as an abuse of process. The judge rejected that application. The defendants now appeal on two grounds: first, the claimant should have brought his claim by judicial review; secondly, the defendants' alleged non-compliance with section 117 of the 1983 Act does not entitle the claimant to recover damages for unjust enrichment or restitution. The first ground of appeal raises a clean point of law, capable of resolution on the basis of the pleadings. I decide that point against the defendants. The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out. In the result, therefore, if my Lords agree, this appeal will be dismissed." 2017‑12‑13 23:00:29 2017 cases, After-care, Cases, Judgment available on Bailii


* Withdrawal of CANH NHS Trust v Y [2017] EWHC 2866 (QB)"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, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases


Bunting v W [2005] EWHC 1274 (Ch) — "By the Application the Receiver seeks an order against the Respondent, to whom I shall refer as ("Mr W") that the accounts he delivered in his capacity as Receiver of M for the year ending 21st April 1994 and thereafter annually until year ending 21st April 2002 be re-opened or set aside. The application further seeks an order that Mr W deliver fresh accounts verified by affidavit, identifying (amongst other matters) the funds or assets of M used directly or indirectly for the personal benefit of Mr W or his family; that the Receiver be given permission to raise objections and further inquiries as to whether or not Mr W is to be entitled to charge remuneration for the services of himself and his wife in caring for or attending on M and an order that he should pay into the Court of Protection such sums as may be found due on taking the accounts and inquiries. In the event that there is a jurisdictional impediment to an order for payment into court the Receiver seeks an order authorising her pursuant to section 96(1) (i) of MHA 1983 to make an application to the High Court pursuant section 139(2) MHA, 1983 for leave to bring proceedings against Mr W to recover the sums found due on taking the accounts and inquiries." 2017‑11‑26 01:16:02 2005 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript


* After-care payments and double recovery Tinsley v Manchester City Council [2017] EWCA Civ 1704"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, Cases, ICLR summary, Judgment available on Bailii


* Disposal of Ian Brady's body Oldham MBC v Makin [2017] EWHC 2543 (Ch)"This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady, one of the infamous Moors murderers." 2017‑11‑05 23:42:48 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


* JR of decision not to resume inquest R (Silvera) v HM Senior Coroner for Oxfordshire [2017] EWHC 2499 (Admin)"In this claim for judicial review Muhammad Silvera challenges the decision of the Senior Coroner for Oxfordshire not to resume the inquest into the death of his mother, Ms Vittoria Baker. It is submitted that the decision of the Senior Coroner not to resume the inquest and thereby to hold a full inquest into this death was unlawful. It is submitted that the Senior Coroner breached the investigative duty under Article 2 of the European Convention on Human Rights and was irrational and in breach of the duty at common law to fully investigate this death. ... The Senior Coroner refers in his letter of February 2016 to the 'Crown Court Trial' together with the two reports as being sufficient to satisfy Article 2 of the Convention. There was, in fact, no Crown Court trial. At an early hearing an acceptable plea was tendered and 'K' was made the subject of a hospital order. The two other investigations comprised an internal NHS Trust investigation that was carried out in private and the DHR was expressed to be private and confidential. ... In all the circumstances, this claim for judicial review should be allowed." 2017‑10‑23 22:37:24 2017 cases, Cases, Inquests, Judgment available on Bailii


* Religious beliefs and tribunal expertise DL-H v West London MH NHS Trust [2017] UKUT 387 (AAC)Judicial summary from Gov.uk website: (1) "In deciding whether a patient is manifesting religious beliefs or mental disorder, a tribunal is entitled to take account of evidence from both religious and medical experts." (2) "A tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision." 2017‑10‑13 22:09:08 2017 cases, Cases, Judgment available on Bailii, Mind summary, Reasons, Upper Tribunal decisions


* Child, no approved secure accommodation available, deprivation of liberty A Local Authority v AT and FE [2017] EWHC 2458 (Fam)"Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so." 2017‑10‑08 21:47:42 2017 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Unsuccessful life sentence appeal R v Bala [2017] EWCA Crim 1460The appellant unsuccessfully argued that he should have received a s37/41 restricted hospital order instead of a life sentence. Extract from judgment: "His applications for an extension of time of 10 years to apply for leave to appeal against sentence and to call fresh evidence were referred to the full court by the single judge. It is the appellant's case that instead of a sentence of Custody for Life the judge should have imposed a hospital order under section 37 Mental Health Act (MHA) 1983 together with a Restriction Order under section 41. ... In R v Vowles; R (Vowles) v SSJ [2015] EWCA Crim 45, [2015] EWCA Civ 56, [2015] MHLO 16 this court set out in detail the approach to be taken by sentencing judges dealing with offenders with mental disorders. At paragraph 54, having earlier set out the statutory framework, the court described the situation in which a section 37/41 order is likely to be the correct disposal in a case where a life sentence is being considered. It is that 1) the mental disorder is treatable 2) once treated there is no evidence the offender would be in any way dangerous, and 3) the offending is entirely due to that mental disorder. In this case the new evidence does not demonstrate that the offending was entirely due to the mental disorder. We are quite satisfied, on the evidence available at the time and the more recent evidence, that the appellant's behaviour when committing the offence was affected by both mental illness and his personality disorder. On the face of it therefore this case did not come within the situation described as likely to lead to a section 37/41 order as described in Vowles. To that we would add the reminder in Vowles that consideration should be given to whether the powers of the Secretary of State under section 47 to transfer a prisoner for treatment would, taking into account all the other circumstances, be appropriate. It is clear from the court log that the judge had well in mind those powers, in the light of Dr Payne's reference to a further review after three months. We are satisfied therefore that even on the fresh evidence the judge could not have concluded, as required by section 37(2)(b), that 'having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under [section 37.]' In short the judge's conclusion was correct at the time and, with hindsight and fresh evidence, remains correct. The real purpose of this appeal was to move the appellant from the release regime consequent upon a life sentence to the regime consequent on a hospital order. That is not a proper basis for an appeal if the original sentence was not wrong in principle. There are some, relatively few, cases where medical evidence obtained years after sentence convincingly demonstrates that the sentencing court proceeded on the wrong basis because of an error by an expert – see eg R v Ahmed [2016] EWCA Crim 670, [2016] MHLO 19. On analysis that is not this case. The sentence was not wrong in principle." 2017‑10‑08 20:38:54 2017 cases, Cases, Judgment available on Bailii, Life sentence cases


* R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin)"The central question raised in these proceedings is whether either or both of the Defendants has a duty under s117 of the MHA to cover the costs of the Claimant's mother's visits, on the ground that they constitute "after-care services" within the meaning of that provision. ... The specific issues that arise are as follows: (a) Whether the duty to provide after-care services under s117 is triggered when the Claimant is granted leave of absence from the Hospital under s17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely, (i) that he has "ceased to be detained" under s3 of the MHA, and (ii) that he has "left hospital"; (b) If so, whether the after-care services which are to be provided pursuant to s117(6) of the MHA may as a matter of principle include funding to cover the Claimant's mother's transport costs; (c) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s117; (d) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017." 2017‑09‑20 21:41:14 2017 cases, After-care, Cases, Judgment available on Bailii, Mind summary


* Deportation following hospital order SSHD v KE (Nigeria) [2017] EWCA Civ 1382"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, Cases, ICLR summary, Judgment available on Bailii, Repatriation cases


* Deferred discharge beyond current authority for detention JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC), [2017] MHLO 28"The principal issue in this appeal is whether the First-tier Tribunal (Mental Health) erred in law in its belief that, pursuant to s.72(3) of the Mental Health Act 1983, it could not defer the discharge of a detained patient beyond the date of the order authorising detention. The Appellant patient criticised the tribunal for (a) refusing to defer his discharge until a date after the authority for his detention had expired and (b) failing to give adequate reasons for its decision overall. I have concluded that the tribunal did not err in law with respect to the effect of section 72(3) since its reasons did not assert that a deferred discharge could not exceed the date of the order authorising detention. Though strictly obiter, I have concluded that a deferred discharge cannot exceed the date of the order authorising detention and explain why I have reached that view below. I also concluded that the tribunal’s reasoning in this case was adequate." 2017‑09‑08 13:12:19 2017 cases, Cases, Judgment available on Bailii, Mind summary, Powers, Upper Tribunal decisions


* Damages following unlawful arrest (Barrymore) Parker v Chief Constable of Essex Police [2017] EWHC 2140 (QB)"The Defendant founds its submission that the Claimant is entitled to nominal damages only on the decision of the Supreme Court in Lumba (WL) v SSHD [2011] UKSC 12. Lumba has been considered and applied by the Supreme Court in R (Kambadzi) v SSHD [2011] UKSC 23! and by the Court of Appeal in Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, [2015] MHLO 12. The Defendant relies upon Kambadzi and Bostridge as well as Lumba. ... Applying the basic principles of compensatory damages in tort, the counterfactual (i.e. what would have happened if the tort had not been committed) in Lumba was that the Secretary of State would have detained the claimants lawfully pursuant to the published policy. ... In Bostridge the finding of the trial judge was that the appellant would have been detained as and when he was if his illness had been correctly addressed via section 3 of the Mental Health Act, as it should have been; and that he would then have received precisely the same treatment and been discharged when he was. The Court of Appeal held that the fact that this counterfactual necessarily included steps being taken by persons other than the Defendant did not prevent the application of the principles set out in Lumba. The appellant therefore recovered only nominal damages. It is not enough for a Defendant in the position of the Secretary of State in Lumba or the Defendant in the present case to show that the counterfactual could have resulted in the same outcome as had been caused by the tort: the Defendant must go on to show that it would have done so. ... It follows that I reject the Defendant's submission that the principles set out in Lumba are applicable if the unlawfully arrested Claimant was "arrestable", meaning that he could have been lawfully arrested: it is necessary for the Defendant also to show that he would have been lawfully arrested. The principles set out in Lumba lead to an award of nominal damages if no loss has been suffered because the results of the counterfactual are the same as the events that happened. If and to the extent that they diverge (e.g. because a lawful arrest would not have occurred at the time but would have occurred later) the Court will have to decide on normal tortious compensatory principles whether and to what extent a substantial award of damages is merited for the divergence in outcome. What is the appropriate counterfactual in a given case will be acutely fact-sensitive." 2017‑08‑28 22:29:49 2017 cases, Cases, Judgment available on Bailii, Unlawful detention cases


* Article 3 immigration case BA v SSHD (2017) UKAITUR IA343212013"The Appellant is a citizen of Nigeria born on 26th February 1980. His appeal against a refusal to vary leave was allowed by First-tier Tribunal Judge Abebrese on Article 8 grounds on 23 rd May 2016. ... The Appellant sought permission to appeal against the Article 3 findings only ... On the basis of the factual findings, the opinion in the Amnesty International Report and the opinion of Dr Bell, the Appellant is likely to suffer a breakdown at some point on return to Nigeria whether that be at the airport or some time later. He is likely to come to the attention of the police if he has such a breakdown and he would not be able to access the psychiatric hospital in Lagos because he is unable to afford treatment there. Accordingly, it is likely that he would be held in prison where the conditions for this particular Appellant with his particular condition would result in treatment in breach of Article 3. ... The Applicant would not be at risk of Article 3 treatment because of a heightened risk of suicide. He would, however, be at risk of inhuman and degrading treatment in breach of Article 3 because of the conditions of return. ... The medical evidence indicates that the Appellant is vulnerable to relapse even in the UK and without the threat of removal. His removal to Nigeria is likely to trigger a relapse and his behaviour will draw hostile attention. His treatment by the authorities in detaining him under the Lunacy Act 1958 would amount to inhuman and degrading treatment. There is a reasonable degree of likelihood that he would be detained in a prison, there would be no treatment for his mental health, his situation would deteriorate, the length of detention is indeterminate, there is no right of appeal and there is no requirement for him to consent to treatment. Accordingly, I allow the Appellant's appeal on Article 3 grounds." 2017‑07‑11 18:05:39 2017 cases, Cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript


* Appeal against life sentence R v Kitchener [2017] EWCA Crim 937"On 22 November 2002 at the Crown Court at Cardiff before the Recorder of Cardiff His Honour Judge Griffith-Williams QC the applicant, then aged 20, pleaded guilty to attempted murder contrary to s.1(1) of the Criminal Attempts Act 1981. On 2 December 2002, he was sentenced by the same judge to custody for life with a minimum term of 4 years and 8 months less 4 months on remand in custody. His applications for an extension of time of about 14 years, for leave to appeal against sentence and to call fresh psychiatric evidence have been referred to the full Court by the single judge. The basis for the application for leave to appeal against sentence is that the applicant contends that he should have been sentenced to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 rather than to custody for life. The basis for the application for an extension of time is that the psychiatric report of Dr Sobia Khan dated 26 October 2015 was not available at the time of sentence. That report is said to satisfy the conditions for the admission of fresh evidence under section 23 of the Criminal Appeal Act 1968. The admission of the report is said to be both necessary and expedient in the interests of justice." 2017‑07‑08 19:55:47 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Life sentence cases


* Needs assessment; accommodation change R (JF) v London Borough of Merton [2017] EWHC 1519 (Admin)"The Claimant has the benefit of anonymity and will be referred to as JF. He has Autism Spectrum Disorder and severe learning difficulties. As a result, he requires adult residential care with specialist support. ... The Claimant relies upon two grounds of review, contending that: (i) LBM failed to undertake a lawful assessment of his needs in breach of statutory duties under the Care Act 2014 and associated Regulations, namely the Care and Support (Assessment) Regulations 2014 SI 2827, and the Care and Support (Choice of Accommodation) Regulations 2014 SI 2670. (ii) LBM has unlawfully decided to change or to propose to change his accommodation from the David Lewis College in Cheshire, where he has resided since 2012 to Aspen Lodge in Sussex, a residence run by Sussex Health Care. The Claimant contends that LBM has based its decision to prefer the Lodge unlawfully and predominantly upon a Pre-Admission Assessment dated 26 February 2016 and prepared by the Lodge. That document contains the conclusion that the Lodge is suitable and can adequately meet JF's needs. The Claimant alleges that it is an inadequate basis for moving him from his current accommodation." 2017‑07‑04 22:52:00 2017 cases, Cases, Community care, Judgment available on Bailii


* ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436"[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, Cases, ICLR summary, Judgment available on Bailii, Powers, Upper Tribunal decisions


* Scottish smoking ban McCann v State Hospitals Board for Scotland [2017] UKSC 31"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, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


R (Brady) v Lord Chancellor [2017] EWHC 410 (Admin), [2017] MHLO 21To obtain Legal Aid funding, a representative must have a contract under LASPO 2012 covering mental health law, and there is no ECHR right to publicly-funded representation for a lawyer of choice. "In this case, Ian Stewart Brady applies for permission to bring a claim for judicial review of two decisions relating to his legal representation in proceedings before the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health. The Claimant wishes to be represented at those proceedings by a solicitor, Mr Robin Makin, and is seeking public funding for that representation. The decisions challenged are: (1) The decision of the Lord Chancellor dated 3 November 2016, the First Defendant, effectively not to make available or facilitate the public funding of Mr Makin as the Claimant's solicitor in the Proceedings. (2) The decision of the Tribunal, the Second Defendant, dated 4 October 2016 declining to appoint Mr Makin as the Claimant's legal representative under Rule 11(7)(a) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008." 2017‑06‑10 00:03:09 2017 cases, Brief summary, Judgment available on Bailii, Other Tribunal 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, Judgment available on Bailii, Sentence appeal cases, Transcript


ABC v St George's Healthcare NHS Trust & Ors [2017] EWCA Civ 336, [2017] MHLO 19 — "The Claimant alleges that the particular circumstances of her case mean that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father's diagnosis, firstly presumed and subsequently confirmed, in the light of her pregnancy. This was her first and only child. It was all along known that she would be a single mother with sole responsibility for the upbringing of the child. If informed of her father's diagnosis she would have sought to be tested for Huntington's Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child might in due course be dependent on a seriously ill single parent or become an orphan, and the risk that in due course her child might inherit the disease. Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a 'wrongful birth' claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case, one way or another." 2017‑05‑18 23:11:50 2017 cases, Judgment available on Bailii, Miscellaneous, No summary, 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, Judgment available on Bailii, No summary, Repatriation cases, Transcript


* Damages for unlawful immigration detention ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 17"In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4." 2017‑05‑09 10:03:37 2017 cases, Cases, Judgment available on Bailii, Repatriation cases


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, Judgment available on Bailii, 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, Judgment available on Bailii, 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, Judgment available on Bailii, Miscellaneous, Transcript


Mole v Parkdean Holiday Parks Ltd [2017] EWHC B10 (Costs), [2017] MHLO 13 — "The issue that arises for determination is whether the First Claimant ('the Claimant') is entitled to recover a success fee pursuant to a costs order against the Defendants in respect of work carried by his solicitors for a period after the Claimant's mother was replaced as a litigation friend by the Official Solicitor. ... In my judgment the analysis in Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18, [2015] MHLO 7 is clear and it leads to the conclusion that the retainer that was first entered into 2006 has remained effective during the course of the claim unaffected by the substitution of a new litigation friend. Accordingly, the claim for costs in the period after the appointment of the Official Solicitor is not dependent upon the Official Solicitor having entered into a new agreement on 1 April 2013 or indeed founded upon any such agreement. There was already in existence an agreement which was sufficient to ground the liability of the Claimant to pay the success fee under the original CFA for the period after the appointment of the Official Solicitor." 2017‑04‑29 22:03:20 2017 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


R (M) v FTT and CICA [2017] UKUT 95 (AAC), [2017] MHLO 12 — "Mr M sought permission to bring judicial review proceedings in respect of three decisions of the First-tier Tribunal (the Tribunal takes a neutral stance in these proceedings). The Upper Tribunal granted Mr M permission to bring judicial review proceedings in respect of two of these decision. In both, the Tribunal had struck out Mr M’s appeals against decisions of the Criminal Injuries Compensation Authority (CICA) not to extend time for applying for review of a decision to refuse to award him compensation. ... In both decisions, the First-tier Tribunal erred in law by failing to consider how to apply the overriding objective of its procedural rules in the light of Mr M’s mental health condition. ... The overriding objective, set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, is to deal with cases fairly and justly. This includes ensuring “so far as practicable, that the parties are able to participate fully in the proceedings”. ... Accordingly, the overriding objective extends to taking such steps as are practicable to enable a party to present his case. This does not mean the First-tier Tribunal has to construct a case for an applicant. But it does call for a Tribunal to consider whether an applicant’s circumstances mean that he faces obstacles in presenting his case that the Tribunal should seek to remove or mitigate to ensure a case is dealt with fairly and justly. The appropriate step or steps to take will be informed by the circumstances of the case but could include: ensuring that an applicant’s liability to detention in a mental health institution does not prevent him attending a hearing; inviting an applicant to consent to the Tribunal obtaining medical records rather than insisting that the applicant supplies them; acting more inquisitorially than it would in the case of a represented applicant or one without a mental health condition. ... Section 5(7) [Rehabilitation of Offenders Act 1974] provided that, where a hospital order under Part III of the Mental Health Act 1983 was imposed on conviction, the rehabilitation period for the conviction (at the end of which it was ‘spent’) was the longer of the following dates: (a) the period of five years from the date of conviction; or (b) the period beginning with the date of conviction and ending two years after the date on which the order ceases to have effect. ... I note that section 5 of the 1974 Act was amended, from 10 March 2014, by section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As amended, section 5 refers to a range of “relevant orders” which include a hospital order under Part III of the Mental Health Act 1983. The rehabilitation period for the conviction that led to a relevant order is “the day provided for by or under the order as the last day on which the order is to have effect”. I suspect the new version of section 5 of the ..→ 2017‑04‑29 21:42:30 2017 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions


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, Judgment available on Bailii, Transcript


White v Philips [2017] EWHC 386 (Ch), [2017] MHLO 9 — "The claimant, Linda Anne White is the testator's widow. They had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contends that at the time he gave instructions and when he signed his will Mr White lacked testamentary capacity with the result that the will is invalid and, since there was no prior will, his estate should be distributed in accordance with the rules relating to intestacy. A pleaded claim to the effect that the execution of the will was obtained by undue influence is no longer being pursued. The only matter for determination therefore is whether at the time Mr White had testamentary capacity." 2017‑03‑06 22:02:49 2017 cases, Judgment available on Bailii, No summary, Testamentary capacity cases, Transcript


PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity." The Tribunal panel must keep the patient’s capacity in relation to Tribunal rule 11 under review during the hearing, and an appointment may be made for a patient with fluctuating capacity who had previously appointed his own representative. 2017‑02‑23 21:49:05 2017 cases, Judgment available on Bailii, MHT capacity cases, No summary, Transcript, Upper Tribunal decisions


Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 61 — "This case relates to an elderly lady, NS. She has been represented by the Official Solicitor (OS) throughout these proceedings. ... The case therefore first came to court when the Trust sought to place NS in a residential facility after the hospital admission in May 2016. This was at a time when a stay in hospital was no longer required. The issue in the case was really whether NS should be discharged to a residential facility or to the care of MS with a care package. ... This case therefore involves consideration of a number of questions which I summarise as follows: (i) Is the patient incapable of making a decision regarding the particular issue put before the court? (ii) If so is the plan/treatment proposed in the best interests of the patient? (iii) Is the intervention necessary and proportionate pursuant to Article 8 of the ECHR? (iv) If the plan involves a deprivation of liberty under Article 5 of the ECHR should that be authorised by the court and if so under what terms regarding duration and review?" 2017‑02‑23 21:29:50 2016 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Northern Irish cases, Transcript


Belfast Health and Social Care Trust v PT [2017] NIFam 1, [2017] MHLO 7 — "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ..→ 2017‑02‑23 21:22:02 2017 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Northern Irish cases, Transcript


Devon County Council v Manuel Martins and Teresa Kirk [2016] EWCOP 45, [2016] MHLO 60A consent order signed on 9/2/17, which followed an application notice dated 23/1/17 and the death of Manual Martins on 1/2/17, led to the publication of this judgment of 10/6/16, together with the lifting of all reporting restrictions. Extract from judgment: "These proceedings in the Court of Protection concern an 81 year old man called Manuel Martins, now suffering from dementia. He is currently in Portugal, having been taken there by his sister, Teresa Kirk. Previous orders have been made by other judges of this court ordering his immediate return. To date, Mrs Kirk has failed to comply with those orders and it may be therefore that she is in contempt of court as a result. That is not however a matter for this hearing. Because of the passage of time, I considered it appropriate at an earlier hearing to direct a further assessment of where Mr Martins' best interests lay. The fact is that he has now been living in Portugal for some time and I considered that it would be right in the circumstances to direct a further assessment. That assessment having now been carried out, I have today conducted a hearing to determine whether it is in Mr Martins' best interests to return to this country, to reside at a unit hereafter referred to as "A House" in the town where he lived for many years before going to Portugal, or rather to remain in his current residential unit in Portugal. ... I conclude that the balance plainly comes down in favour of a return to this country and a placement at A House." 2017‑02‑14 22:42:29 2016 cases, Best interests, Judgment available on Bailii, No summary, Transcript


Re DB [2016] EWCOP 30, [2016] MHLO 59 — "DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court." 2017‑02‑12 21:31:18 2016 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


* Immigration detention R (ASK) v SSHD [2017] EWHC 196 (Admin)"The issue in this case concerns an allegation that in 2013 the Claimant - 'ASK' - was unlawfully detained in an Immigration Removal Centre pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts. The case raises a number of issues. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19! and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45!. In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained? Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law? Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends? Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 what is meant by'"`UNIQ--nowiki-00000049-QINU`"'prompt'"`UNIQ--nowiki-0000004A-QINU`"' transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee? Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports." 2017‑02‑09 21:04:48 2017 cases, Cases, Judgment available on Bailii, Repatriation cases


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, Judgment available on Bailii, No summary, Transcript, Unfitness and insanity cases


Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 5 — "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'?" 2017‑02‑08 20:31:34 2017 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript


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, Judgment available on Bailii, No summary, Transcript, Unlawful detention cases


R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have jurisdiction", but only after "giving the applicant an opportunity to make representations in relation to the proposed striking out". (3) The solicitor accepted that the patient had lacked capacity to make the application, but argued: (a) that R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 (in which the House of Lords had decided that the MHA scheme was Convention compliant) was distinguishable, as MH related to section 2 where different timescales applied; and, therefore, (b) that s66 (Applications to tribunals), in order to be Convention compliant, should be read as applying to a patient "with the assistance of a litigation friend if needed". (4) The First-tier Tribunal judge's subsequent decision "that the matter may be closed as an invalid application", which was effectively a rule 8 strike-out decision, was the decision considered by the Upper Tribunal. (5) The challenge was made by way of judicial review, but there was a right of appeal so that route would have been more appropriate. (6) UTJ Jacobs, dismissing the JR application, decided that MH could not be distinguished (the timescales in the MH case were not significant, still less decisive) and there was no Convention breach: any apparent gap in the Tribunal rules (in the protection of a patient's right to bring his case to the Tribunal) disappeared when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. In conclusion, he stated that "[a]n application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review". (6) The Upper Tribunal decision makes no reference to the later ECHR decision in the MH case (MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94), which found that, during part of MH's detention, neither the Secretary of State referral process nor habeas corpus were adequate remedies ..→ 2017‑01‑27 23:58:57 2017 cases, Brief summary, Judgment available on Bailii, MHT capacity cases, Powers, Transcript, Upper Tribunal decisions


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, Judgment available on Bailii, No summary, Transcript


ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 1 — "In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4. ... For the avoidance of doubt, I therefore find that the Claimant's detention was unlawful at common law under the Hardial Singh principles from 30 June 2012 (see paragraphs 133 and 137 above). I find that her detention was unlawful by reason of public law error in relation to her report of torture in the Rule 35 report from 2 weeks from the date of receipt of that report, that is 16 March 2012 (see paragraph 144 above) and in respect of her mental illness from receipt of the last of the Part C reports in May 2012 (see paragraph 141 above). I find that. as somebody suffering from serious mental illness, aspects of the Claimant's detention from mid May 2012 amounted to a breach of her Article 3 rights (see paragraph 148 above)." 2017‑01‑22 21:20:58 2017 cases, Judgment available on Bailii, No summary, Repatriation cases, 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, Judgment available on Bailii, 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, Judgment available on Bailii, 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, Judgment available on Bailii, No summary, Transcript


Abertawe Bro Morgannwg University LHB v RY [2016] EWCOP 57, [2016] MHLO 54 — "On 12th October this year the applicant Health Board applied to this court for declarations both as to 'capacity' and 'best interests' under the Mental Capacity Act 2005, concerning RY, to permit withdrawal of ventilation, withholding of life-sustaining treatment, and provision of palliative care only. RY's daughter has from the beginning asserted that, when ventilation is removed, life-sustaining treatment should be provided. I am asked to approve an order filed with the consent of all the parties which provides for some life-sustaining treatment, but not CPR or further intensive care. ... However, there have been a number of recent videos taken of RY ... which have led [Dr Badwan] to conclude that RY is not in a vegetative state, but is in a minimally conscious state with some signs of being in upper minimally conscious state. ... This morning the very experienced advocates in this case presented a plan, by agreement, in which it was proposed that RY underwent a tracheostomy under general anaesthetic and, transferred to a suitable unit for further treatment and/or assessment. ... As a Judge sitting in the Court of Protection, I have experience of litigants seeking very extensive assessments and re-assessments, in a way that occurred in the Family Division in Children Act 1989 proceedings, most particularly in public law care proceedings. The reasons for both strike me as similar, namely that the decisions the Court is asked to make are of such great importance and carry such profound consequences that there is, I think, a forensic instinct to leave no stone unturned. I am bound to say however, that I sometimes feel that I am being asked to authorise a petrological survey on the upturned stone. Just as the Family Justice reforms have re-emphasised the real dangers to vulnerable children caused by avoidable delay, so to, it seems to me, practitioners in this field must recognise that delay which is not, on a true analysis, either constructive or purposeful is almost certainly damaging and thus inimical to P's welfare. Though avoidance of delay is not a statutory imperative in the Mental Capacity Act 2005 the principle is now so deeply embedded in the law of England and Wales and across every jurisdiction of law that it should be read into Court of Protection proceedings as a facet of Article 6 and 8 ECHR. It requires to be restated that the Court of Protection Rules provide for the Court to restrict expert evidence and assessment, application must be made by completing form COP9. ... Given the scale of the hypoxic damage, the preponderant evidence suggests that any significant improvement may be rather a forlorn hope. I think RY's family should be under no delusion as to the prospects. That 'flicker of hope', says the Official Solicitor, is one that should be pursued on RY's behalf. Ultimately, I have acceded to that submission but I do so on a very particular basis and that is that the assessment process, which has been outlined in framework ..→ 2016‑12‑18 21:20:13 2016 cases, Judgment available on Bailii, Medical treatment cases, No summary, Transcript


R v Fuller [2016] EWCA Crim 1867, [2016] MHLO 53(1) IPP sentence quashed and replaced with a restricted hospital order. (2) Request for anonymisation refused. 2016‑12‑15 20:47:18 2016 cases, Anonymisation cases, Brief summary, Judgment available on Bailii, Sentence appeal cases, 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, Judgment available on Bailii, 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, Judgment available on Bailii, No summary, Transcript


Re M: Devon County Council v Teresa Kirk [2016] EWCOP 42, [2016] MHLO 50 — "This is an application made by a Local Authority for committal for contempt of court... The backdrop to this application is a long-running case in the Court of Protection concerning MM. ... The court went on to make declarations. Firstly, that MM lacked capacity. Secondly, that it was in his best interests to live in England, in the area of the South West. Thirdly, that it was not in his best interests to continue to reside at the care home in Portugal; and further ordered at para.7 that, no later than 4pm on 27 June 2016, Mrs. Kirk shall provide to the Local Authority a signed copy of the written declaration of authority... The short point about that provision in the order is that it provided for Mrs. Kirk to sign the written declaration of authority so that MM could be released to the local authority. The order had a penal notice attached to it, the recitals are very clear. ... I apply the criminal standard to the only breach with which I am concerned, which is as set out in the order. I am entirely satisfied and sure - indeed, it is accepted in the face of the court - that Mrs. Kirk has not provided the written declaration of authority... I shall pass a sentence of six months' imprisonment. However, I shall suspend the warrant for a period of seven days only to give Mrs Kirk one last chance to comply..." 2016‑12‑06 20:51:23 2016 cases, Contempt of court cases, Judgment available on Bailii, No summary, Transcript


JMCA v The Belfast Health and Social Care Trust [2014] NICA 37, [2014] MHLO 147 — "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16. It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced deprivation of liberty legislation into the Mental Capacity Act 2005 providing a mechanism for the lawful restriction on or deprivation of liberty of a person such as the appellant. It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction." 2016‑11‑29 21:00:14 2014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Northern Irish cases, Transcript


Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 49 — "The applications are brought to the court under the inherent jurisdiction of the High Court [in Northern Ireland]. The Trust sought a declaratory order in June to move NS from a hospital to a care home. This was opposed by MS who said that he could care for NS. However, the Trust and the Official Solicitor acting on behalf of NS felt that she would only receive the appropriate care and treatment befitting her needs in the care home. The test in relation to this has been set out by Mr Potter in a skeleton argument. He articulates this as a two-fold test, namely: (a) whether or not NS has the capacity to provide a legally valid consent to the proposed care and treatment; and (b) that the proposed care and treatment is necessary and in her best interests. The consideration of this case falls within the common law jurisdiction." 2016‑11‑29 20:45:51 2016 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Northern Irish cases, Transcript


Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3032 (QB), [2016] MHLO 48 — "On 25 August 2010 the claimant killed her mother. ... She pleaded not guilty of murder, but guilty of manslaughter by reason of diminished responsibility. Those pleas were accepted. ... The claimant remains in detention pursuant to the Mental Health Act. Long before the manslaughter, the claimant had been diagnosed as suffering from paranoid schizophrenia. At the time, she was under the care of the Southbourne Community Mental Health Team, within the defendant NHS Trust. An inquiry later made findings critical of the defendant's conduct. The core criticism was of a failure to act in a timely manner when alerted by a health worker, Ms Loyne, to a significant deterioration in the claimant's condition. In this unusual personal injury claim the claimant seeks damages against the defendant for personal injury in the form of psychiatric harm, and for the consequences of killing her mother. Proceedings were issued on 22 August 2013. The defendant admitted liability for negligence. Judgment on liability in negligence, with damages to be assessed, was entered by consent as long ago as 12 May 2014. By an order of 17 February 2016 Master Cook directed the trial of preliminary issues which had been proposed by the defendant. That trial is listed to take place over 3 days in the week commencing 5 December 2016. The preliminary issues concern the extent to which the claimant's claims for damages are barred by the rule of law which prohibits a person from recovering damages for the consequences of their own illegality. ... It was on Monday 14 November 2016, seven working days before the start of the preliminary issue trial window, that the claimant's solicitors filed her application. It seeks permission to amend by adding (1) claims under the Human Rights Act 1998, alleging infringement of the claimant's rights under Articles 3 and 8 of the Convention, and (2) a claim for an extension of time for bringing those claims, pursuant to s 7(5)(b) of the HRA." 2016‑11‑27 00:24:59 2016 cases, Judgment available on Bailii, Miscellaneous, No summary, Transcript


* Discharge from DOLS P v A Local Authority [2015] EWCOP 89"This is an application by P (the Applicant) acting through his litigation friend, the Official Solicitor, for an order under section 21A of the Mental Capacity Act 2005 (MCA) discharging the standard authorisation made on 24 June 2015 which authorises a deprivation of liberty in his current accommodation (the placement)." 2016‑11‑24 23:48:11 2015 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Transcript


Re L: K v LBX [2016] EWHC 2607 (Fam), [2016] MHLO 47 — "In essence, K says that this court should intervene because his son lacks capacity to be able to decide contact. More recently he has made an application to remove Miss O'Connell as a litigation friend for L. ... By the order I made on 15 November 2013, I found that L had capacity to decide about residence and care and I made orders under the inherent jurisdiction regulating what contact there should be between L and his father, as I considered him to be a vulnerable adult, he needed orders being made to ensure he retained his capacity... There is no evidence that L's capacity has changed." 2016‑11‑19 20:35:03 2016 cases, Inherent jurisdiction cases, Judgment available on Bailii, No summary, Transcript


* ECHR and tribunal criteria JD v West London Mental Health NHS Trust [2016] UKUT 496 (AAC)"The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. ... The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015. ... What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf. On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue: 'to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'" 2016‑11‑12 00:09:27 2016 cases, Cases, Judgment available on Bailii, Powers, Upper Tribunal decisions


GW v Gloucestershire County Council [2016] UKUT 499 (AAC), [2016] MHLO 45 — "This appeal is brought with the permission of the First-tier Tribunal against the decision of that tribunal refusing to discharge the patient from guardianship. She was first received into guardianship on 8 January 2013 and the Court of Protection first made a Standard Authorisation on 14 February 2015. The essence of the case before both the First-tier Tribunal and the Upper Tribunal is that the former was no longer necessary in view of the latter." 2016‑11‑12 00:00:27 2016 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions


* After-care payments and double recovery Tinsley v Manchester City Council [2016] EWHC 2855 (Admin)"Thus there is a fundamental issue between the parties which they require the court to resolve, which is whether or not it is lawful for the defendant to refuse to provide after-care services to the claimant under s117 on the basis that he has no need of such provision because he is able to fund it himself from his personal injury damages. The claimant's position is that this is unlawful, and represents a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords has confirmed in Stennett that it is impermissible to do so in any circumstances. The defendant's position is that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s.117 would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA [2007] EWCA Civ 71!, [2007] 1 WLR 923! and Peters v East Midlands SHA [2009] EWCA Civ 145, [2010] QB 48!." 2016‑11‑11 23:52:42 2016 cases, After-care, Cases, Judgment available on Bailii


Test page (2012) — "The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards' deputy on his behalf on providing him with care. The claim is based on section 117 of the 1983 Act. It is Mr Richards' case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that that duty extended to the provision of the various services which have thus far been paid for privately. ... There are essentially two issues to consider: (i) Is it in principle possible for Mr Richards to bring a restitutionary claim? (ii) If so, can the present claim be pursued otherwise than by way of judicial review?" 2016‑11‑01 21:52:04 Judgment available on Bailii


* After-care Richards v Worcestershire County Council [2016] EWHC 1954 (Ch)"The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards' deputy on his behalf on providing him with care. The claim is based on section 117 of the 1983 Act. It is Mr Richards' case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that that duty extended to the provision of the various services which have thus far been paid for privately. ... There are essentially two issues to consider: (i) Is it in principle possible for Mr Richards to bring a restitutionary claim? (ii) If so, can the present claim be pursued otherwise than by way of judicial review?" 2016‑10‑12 22:36:23 2016 cases, After-care, Cases, Judgment available on Bailii


V v Associated Newspapers Ltd [2016] EWCOP 29, [2016] MHLO 42 — "As the Applicant indicated might be the case she makes an application that part of her costs be paid by the Respondents on an indemnity basis. The application has been made and resisted on written submissions." 2016‑10‑09 14:42:34 2016 cases, COP costs cases, Judgment available on Bailii, No summary, Transcript


V v Associated Newspapers Ltd [2016] EWCOP 21, [2016] MHLO 41 — "The application before me is for a reporting restrictions order that extends beyond the period of the reporting restrictions order granted at the first hearing for directions in the case and was not altered by Macdonald J. By its terms it ended on C's death." 2016‑10‑09 14:39:52 2016 cases, Judgment available on Bailii, No summary, Reporting restriction order cases, Transcript


UCL Hospitals NHS Foundation Trust v G [2016] EWCOP 28, [2016] MHLO 40 — "This brief judgment concerns an application by the Applicant Health Trust for the variation of a reporting restriction order (RRO) made by Hogg J on 11 March 2016 in proceedings concerning the Respondent, Miss G. That order, which is expressed to last until one month after Miss G's death, prohibits her identification or the identification of members of her family, all of whom are adults, as being concerned in these proceedings. The Trust, supported by the family, now asks for the order to be extended indefinitely. That application is opposed by the Official Solicitor on behalf of Miss G and by the Press Association in submissions lodged on its behalf by Mr Dodd." 2016‑10‑09 14:11:26 2016 cases, Judgment available on Bailii, No summary, Reporting restriction order cases, Transcript


M v Press Association [2016] EWCOP 34, [2016] MHLO 39 — "The hearing had taken place over four days in early November. On 2 November 2015 I made a reporting restriction order, prohibiting the identification of the first respondent and Mrs N in any press reporting 'during her lifetime'. I also decided that, for a period of seven days after her death, the injunction should continue. On 17 December 2015 the applicant, M, applied to vary the RRO to extend its duration until '14 days after the final judgment in the matter of V v Associated Newspapers Ltd' [2016] EWCOP 21!. In that case, to which I will refer below, Charles J was considering the scope and ambit of such Reporting Restriction Orders following the death of P. On 13 January 2016 I varied the order in the terms applied for, no party sought to contest it. On 16 December 2015 Mrs N died. On 25 April 2016 Charles J delivered the judgment in V (supra) and on 4 May 2016 M applied to vary the RRO to extend the duration 'until further order of the court'." 2016‑10‑09 13:55:42 2016 cases, Judgment available on Bailii, No summary, Reporting restriction order cases, Transcript


Miles v The Public Guardian [2015] EWHC 2960 (Ch), [2015] MHLO 139 — "I have before me two appeals from decisions of Senior Judge Lush sitting in the Court of Protection, one in a case called Re Miles and one in a case called Re Beattie in both of which he was concerned with lasting powers of attorney either for property and financial affairs or for health and welfare matters. In each case the former power of attorney had been drafted by the same solicitor and contained provisions which the Judge was asked to rule on, as to whether they were effective." 2016‑10‑07 22:17:38 2015 cases, Judgment available on Bailii, LPA cases - all, LPA cases - other, 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, Judgment available on Bailii, 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, Judgment available on Bailii, 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, Judgment available on Bailii, Transcript


Re W (Medical Treatment: Anorexia) [2016] EWCOP 13, [2016] MHLO 35 — "In this case, Miss W, a young woman aged 28, has suffered from a severe and enduring eating disorder for 20 years, with physical, social and psychological consequences of the kind described above. In this judgment I will call her W. Since the age of 11, she has had six admissions for inpatient treatment, spread between five units around the country and amounting to about 10 years in total. Her current admission has lasted for 2½ years and yet, despite the most intensive support, she is barely eating and is losing weight at the rate of 500 g – 1 kg per week. She now weighs less than 30 kg and her BMI is 12.6. If she continues to lose weight at this rate, she will die. ... The outcome is that, accepting the unanimous professional view, I approve the plan of the Health Board. This is that W should now be discharged into the community with a closely thought-out package of support for her and her family. Given W's fragile condition, it is a plan that has only been arrived at after the most anxious consideration by her care team. It will at first seem counterintuitive that someone so ill should be discharged from hospital. The conventional assumption is that hospital treatment is likely to bring benefits, but the evidence has persuaded me that in this case that is not so. The outcome is to some extent in accordance with W's wishes, which I will describe below." 2016‑09‑25 20:53:00 2016 cases, Judgment available on Bailii, Medical treatment cases, No summary, Transcript


Re CS (Termination of Pregnancy) [2016] EWCOP 10, [2016] MHLO 34 — "This is an application by a Hospital Trust for orders in respect of a young woman, who I will refer to as CS, who is said to lack capacity and in respect of whom the Trust seeks an order that it would be in her best interests to undergo surgery terminating her current pregnancy. This hearing is being conducted in the Court of Protection in open court in accordance with the Rules but subject to a reporting restriction order which I made earlier this afternoon." 2016‑08‑31 21:30:24 2016 cases, Judgment available on Bailii, Medical treatment cases, No summary, Transcript

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