Other capacity cases

Case and summary Date added Categories
— "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 , , , Other capacity cases,

— "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 , , , Other capacity cases,

— "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 , , , Other capacity cases,

— "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 , , , Other capacity cases,

This 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 , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , Other capacity cases, ,

— "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 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 , , Other capacity cases,

— "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 , , Other capacity cases,

— "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 , , , Other capacity cases,

— "In 2012, I gave three judgments in this matter. ... A written application has now been made by Mr Michael Clarke on 3 September 2015 to vary the order of 9 October 2012 so as to allow the sale of Mrs Clarke’s Blackpool property. There has also been a request by Ms Angela Wilde and Mr Kevin Clarke for access to the property in order to inspect and maintain it, but no application has been issued, despite time being allowed. The application and request are both opposed." 2016‑08‑31 21:17:47 , , Other capacity cases,

— "I am pleased record that the parties addressed these points [(i) the imposition of a term in a trust directed to the risk that a perpetrator would benefit from the award, (ii) the terms of the appointment of a deputy, (iii) the declaratory relief granted and the discharge of the Deputy, and (iv) the Peters undertaking and a restriction on the powers of the trustees]. I attach in Parts 1 and 2 of the Schedule hereto (i) the wording for the appointment of a deputy that was agreed, and (ii) the terms of the trust that were agreed (anonymised save for the identity of the original trustee). I also record that, as the appointment of the deputy was discharged, it was agreed that there was no need for a Peters undertaking. It seems to me that the agreed wording for the appointment of a deputy should be a useful precedent or starting point in other cases." (CICA case.) 2016‑08‑29 21:22:12 , , Other capacity cases,

— "The central issue which arises in this case is whether risks taken by a 20-year old young woman with autism represent 'unwise' decision-making, or evidence her lack of capacity." 2016‑08‑29 21:02:08 , , Other capacity cases,

— "The appeal before me ... relates to the part, if any, that the Court of Protection must play in the finalisation of an award of compensation under the relevant scheme that the Second Respondent (CICA) has decided and the applicant has agreed is to be held on trust." 2016‑08‑29 20:39:18 , , , Other capacity cases,

— "I do not propose to say very much in this judgment. The reason I do not propose to say very much is that I am pleased to report that the media respondents have indicated to me that they would wish to put in some further evidence relating to the public interest in identifying C. They would also wish to (and I can understand why they would wish to) put in evidence relating to criticism of an approach by a journalist employed by one of them. Additionally and, to my mind, importantly, they also wish to take the opportunity, if so advised, to put in evidence and/or representations on more general points concerning the mechanics and principles that arise in respect of Court of Protection proceedings that the court directs are to be heard in public and in respect of which the court makes some form of reporting restriction order or anonymity order. ... In those circumstances, it seems to me that it is inevitably appropriate to continue the injunction until 4.30 on the day I hand down judgment. The indication from the Bar is that there will be no need for further oral submissions." 2015‑12‑22 21:37:31 , , Other capacity cases,

— "MacDonald J ... concluded C did have capacity to refuse the treatment and dismissed the application by the Hospital Trust. C, sadly, died on 28 November 2015. ... I was notified at about 5.45 pm on 2 December 2015 that an application was likely to be made by Mr Vikram Sachdeva Q.C. on behalf of C's daughter, V, for the RRO to be extended after C's death. ... There is no issue between the parties that the court has jurisdiction to extend a RRO in these circumstances. ... I concluded the RRO should be extended for 7 days to enable an effective inter partes hearing to take place." 2015‑12‑22 21:30:33 , , Other capacity cases,

— "The question in this difficult and finely balanced case is whether C has the capacity to decide whether or not to consent to the life saving treatment that her doctors wish to give her following her attempted suicide, namely renal dialysis. Without such treatment the almost inevitable outcome will be the death of C. If the treatment is administered the likelihood is that it will save C's life, albeit that there remains an appreciable and increasing possibility that C will be left requiring dialysis for the rest of her life. C now refuses to consent to dialysis and much of the treatment associated with it. ... For the reasons set out above I am not satisfied on the evidence before the court that the Trust has established on the balance of probabilities that C lacks capacity to decide whether or not to accept treatment by way of dialysis. ... [A] capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient and, accordingly, a capacitous patient may refuse treatment even in circumstances where that refusal will lead to his or her death. The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect of growing old, the fear of living with fewer material possessions and the fear that she has lost, and will not regain, 'her sparkle' outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C's decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity. The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign." 2015‑12‑22 20:44:29 , , Other capacity cases,

— "This is an application regarding the payment of a gratuitous care allowance. To describe the allowance as 'gratuitous' is slightly incongruous, as it is a payment towards the cost of maintenance of a close relative, who provides care and case management services to someone who is severely incapacitated because of an impairment of, or a disturbance in the functioning of, the mind or brain. ... The Public Guardian is currently reviewing all gratuitous care allowances paid by deputies to family members, particularly in cases where the person to whom the proceedings relate has been awarded damages for clinical negligence or personal injury. Because the number of families who are receiving allowances of this kind and are affected by the Public Guardian's review runs into thousands, I have concluded that it would be in the public interest to publish this judgment. ... Having regard to all the circumstances, therefore, I am satisfied that it is in Helen's best interests for Adrian to continue to provide care and case management services to her and that until further order he should be paid an allowance of £23,000 a year, tax-free in accordance with ESM4016. Even though Adrian has not specifically requested it, I propose to give him the option of index-linking future payments of the allowance. ... I understand that the Public Guardian will shortly be issuing a practice note on gratuitous care payments. ... In our initial discussions, the OPG suggested that these payments should be reviewed regularly. However, a review process of this kind is not cheap and, inevitably, it will have a knock-on effect on the amounts sought by claimants in respect of Court of Protection costs in future claims for damages for personal injury and clinical negligence. ... In Helen's case, because of the wide gulf between the commercial value of the services Adrian is providing and the actual payment he is receiving, I consider that it would be disproportionate to go through this process too frequently, and I suggest that Adrian's gratuitous care allowance should be formally reviewed again in 2022 or earlier, if necessary, because of a change in his or Helen's circumstances." 2015‑12‑22 20:25:56 , , Other capacity cases,

— "Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?" 2015‑12‑21 23:58:58 , , , Other capacity cases,

— "On 20 January 2015 the Health Trust responsible for his care made an application seeking declarations in this very serious medical case. They seek declarations: (i) That he lacks capacity (this is uncontentious); (ii) That it is not in his best interests to receive cardio pulmonary resuscitation (CPR) in the event of cardiac arrest (this is also now uncontentious); and (iii) As to whether it is lawful to continue to provide renal replacement therapy (RRT), the Trust wish to discontinue life sustaining treatment with the inexorable and inevitable consequence that as a result P would quickly die. ... There is almost nothing to rebut the very strong presumption that it is in P's best interests to stay alive. I order and direct that the renal replacement therapy should continue. ... The application was launched, it might be thought, somewhat precipitously, before any SMART testing had been undertaken. ... Therefore in all cases where there is any question of doubt about diagnosis, in order to eliminate mistakes or potential tragedies it is essential that those assessments [such as SMART or WHIM] are carried out in good time so that the diagnosis is clear before the Court, then the Court can conduct its own enquiry and balance." 2015‑12‑21 23:31:30 , , Other capacity cases,

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

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

— "The matters before the court proceed as a challenge to the standard authorisation pursuant to Section 21A of the Mental Capacity Act 2005. ... On 28th May ... capacity being the gateway to the jurisdiction of this court a report was ordered pursuant to Section 49 of the Mental Capacity Act 2005 ... I am not prepared to vary or alter the principle behind the original order of 28th May. Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere." 2015‑10‑31 20:48:24 , , Other capacity cases,

— "This judgment considers the role of the Court of Protection in connection with applications to the Criminal Injuries Compensation Authority ('CICA'). In particular, it looks at cases in which the CICA requires a trust to be created in order to exclude any possibility that the assailant may benefit from the compensation award. These cases arise almost exclusively in the context of domestic violence, where the assailant is a family member." [See appeal decision.] 2015‑07‑20 20:19:11 , , Other capacity cases,

The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the . (1) The claimant's argument that (with ) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 ). 2015‑06‑26 22:53:16 , , , Other capacity cases,

— "The Trust ... applied to the Court for a declaration in P's best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. ... At the same time they also applied for a reporting restriction order with accompanying documentation. When they sought to serve that material on the Press Association through the service known as CopyDirect, but now in fact called the Injunctions Alert Service, the second respondent objected to the disclosure of any identity either of P or of P's family. ... As a result I listed a hearing ... for the Court to consider four questions: (Generally) (1) Whether in applications for reporting restrictions orders the applicant, when notifying the Press of the application, is required to identify the parties and or P. (Specifically in this application) (2) Whether further hearings in these proceedings should be heard in public. (3) Whether there should be any reporting restrictions in relation to these proceedings and if so those restrictions. (4) Such further directions as seemed appropriate to the Court." 2015‑03‑24 19:35:57 , , Other capacity cases,

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

— "This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement ('CFA'). The issue is whether the CFA terminated automatically by reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips J, sitting in the Queen's Bench Division with assessors, held in a clear and cogent judgment that the CFA was not frustrated ... At the conclusion of the hearing of the appeal we announced that the appeal would be dismissed for reasons to be given in writing at a later date. These are my reasons for dismissing it." 2015‑01‑31 20:07:22 , , Other capacity cases,

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

— "The Claimants claim that the transfer by Mrs Smith to the Defendant of the Proceeds should be set aside on either of two grounds, namely that: (1) Mrs Smith lacked the mental capacity to make such a gift or transfer; (2) The gift or transfer was procured by the Defendant's exercise of undue influence over Mrs Smith." 2014‑12‑31 16:26:55 , , Other capacity cases,

— This appeal by Aster Healthcare was unsuccessful. 2014‑12‑31 15:42:31 , , , Other capacity cases,

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

— "The Trust seeks three declarations that: (a) AB lacks capacity to consent to medical treatment, including to a Caesarean Section; (b) AB lacks capacity to monitor and regulate her own intake of food and/or drink; (c) AB lacks capacity to decide whether to comply with her regime of diabetic medication." 2014‑12‑30 23:45:05 , , Other capacity cases,

— "All parties are now agreed that AB's life is futile, in the sense of that word used by Lord Goff in the Bland case. ... AB has no awareness. He merely exists. There is no prospect of recovery. This court accepts the fundamental importance of the sanctity of life, but, as Butler-Sloss P noted in the passage cited above, that is not an absolute principle and does not impose an obligation to provide treatment where life is futile. ... I unhesitatingly conclude that ... it would be in his best interests for artificial nutrition and hydration to be withdrawn, provided this is carried out in an appropriate fashion by nursing staff trained in the provision of palliative care. In his final report, Professor Wade makes a number of recommendations as to the management of the withdrawal of artificial nutrition and hydration and subsequent treatment ... and I endorse those recommendations." 2014‑12‑30 23:39:42 , , Other capacity cases,

— "The issue in this case is where an adult ('SW'), who lacks capacity, is habitually resident. This is for the purposes of determining whether the English court has jurisdiction to deal with applications under the Mental Capacity Act 2005. ... The parties' respective positions are as follows. The Official Solicitor submits that SW is habitually resident in England and Wales. The [English Local Authority] and the [Scottish Local Authority] submit that she is habitually resident in Scotland." 2014‑12‑30 23:04:36 , , Other capacity cases,

— "In inviting the Court of Protection to exercise its jurisdiction, the Local Authority asserts that AC lacks capacity in the following areas: (i) to litigate in these proceedings; (ii) to make choices about her future care, therapeutic and educational needs; (iii) in relation to contact with others; and (iv) in making informed decisions about her future residence. In respect of (i)-(iii) above, the Local Authority invites me to make final declarations under section 15 of the Mental Capacity Act 2005. In respect of (iv) it invites me to make an interim declaration under section 48 of the 2005 Act, pending further capacity assessments of AC. The Local Authority has invited the court to consider AC's capacity to consent to sexual relations; it invites me to conclude that she does have capacity in this regard. The Local Authority further invites me to make limited best interests decisions following on from the capacity declarations. Specifically, and importantly, it invites me to declare (re (iv) above) that it is in AC's best interests that she reside at Pennine House (a pseudonym), a residential home which is geographically local to her parents' home." 2014‑12‑30 23:00:26 , , , Other capacity cases,

— (1) Legal Aid: "One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy." (2) Disclosure: "In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. ... This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure." (3) Fact finding: "The principal focus of this hearing has been to make findings on disputed issues of fact as the basis for future decisions about M's life. In my judgment, the legal principles to be applied at a fact finding hearing in the Court of Protection should be broadly the same as in children's proceedings where a court is investigating allegations that a child has been ill-treated or neglected. I have summarised those principles in a number of children's cases, including Re JS">[2012] EWHC 1370 (Fam). Of those principles, the following seem to me to be of particular importance in this case. ..." (4) Orders: Various interim orders, including on contact and residence, were made and a decision on deputyship was adjourned. 2014‑12‑30 22:02:00 , , Other capacity cases,

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

— "This Claimant local authority sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult, which contemplated: (i) interference with the mother/baby relationship following the birth, to a degree which involved some unspecified level of forced separation and, potentially, removal of the child; (ii) that the mother should not be informed of key aspects of the plan. I phrase the ambit of the relief sought carefully, because it seems to me that, whilst the local authority thought long and hard about the birth plan, it had not managed to reflect fully on the practicalities, extent of their intervention or the proportionality of the measures required." 2014‑12‑30 13:23:08 , , Other capacity cases,

— "The application before me raises a novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor's costs ceases to be available." 2014‑12‑30 13:01:01 , , Other capacity cases,

— "The central issue that I have to determine is whether it is in L’s best interests that he should remain in supported living accommodation or return home. He has been living in supported accommodation called the J placement, on a trial basis, since 24th August 2011. The LBX submit that L should remain in supported living accommodation; this is supported by the OS on behalf of L and by M. K contends that L should return to live with him as this accords with his wishes or his wishes are difficult to determine and all the stated benefits that are relied on to support the decision for L to live in supported living accommodation can be achieved by L living at home, with all the additional benefits that living within the family brings L." 2014‑11‑08 20:41:30 , , , Other capacity cases,

— "The issues to be determined at this hearing are: (i) whether it is in L’s best interest to move to supported living accommodation on a trial basis; (ii) whether the hearing listed in September 2011 is required and, (iii) any further directions." 2014‑11‑08 20:37:25 , , , Other capacity cases,

— A summary will be added when the judgment has been located. 2014‑11‑08 20:28:05 , , , , Other capacity cases

— "Today was listed to give Mrs Danby the opportunity of persuading me that the sentence I imposed in April was wrong, that I should reduce it, mitigate it or even quash it, and she has failed to avail herself of that opportunity. So, in the circumstances, I have no alternative other than to leave the sentence outstanding, together with the warrant of arrest. If Mrs Danby is arrested pursuant to that warrant she can apply to purge her contempt and I will see her as soon as is possible to look at the matter." 2014‑11‑04 22:00:56 , , Other capacity cases,

— Dispute over who should act as property and affairs deputy. 2014‑10‑30 21:26:52 , , Other capacity cases,

— Contested application for the appointment of a deputy for property and affairs. 2014‑09‑09 22:42:32 , , Other capacity cases,

A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance. 2014‑08‑24 20:24:59 , , Other capacity cases,

— "The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. ... Having considered all the evidence and the submissions that have been made, I have reached the conclusion that there does need to be a further assessment as to L’s capacity." 2014‑08‑07 13:26:28 , , Other capacity cases,

(1) Consideration of evidence relevant to the capacity of TT to litigate, to make decisions about residence, contact and her package of care, and her capacity to consent to sexual relations, and findings in that regard. (2) Consideration of "(i) How I should approach a 'best interests' decision at an interim hearing () which has been set up for the calling of reasonably extensive oral evidence; (ii) What factors should influence the exercise of the court's discretion in deciding whether there should be a finding of fact hearing at an interim (or final) hearing?" (3) Findings of fact. (4) Best interests and declarations. 2014‑08‑06 13:13:50 , , Other capacity cases,

— "This is an application originally made by Camden & Islington NHS Foundation Trust for an order that QR’s current tenancy of a property owned by the London Borough of Islington be terminated due to QR's lack of capacity to make such decision for herself. ... In my judgment QR lacks capacity to make the decisions which are at issue in the case. ... Is this one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity? ... It would fly in the face of my own experience of dealing with the case to find that QR lacks capacity to litigate. ... Removing a person’s capacity to litigate is a significant interference. I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate." 2014‑08‑01 16:22:32 , , Other capacity cases,

— "The primary issue was whether it continued to be in RGS's best interests to reside at X Care Home having regard to the fact that he had been injured there. The two secondary issues concerned contempt of court and reporting restrictions." 2014‑08‑01 12:20:43 , , Other capacity cases,

— "On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended." 2014‑08‑01 12:18:09 , , Other capacity cases,

— Headnote from judgment: 'Application by the local authority deputy for property and affairs - Whether P has capacity to tithe 10% of his inheritance to the Church of the Latter Day Saints - Mental Capacity Act 2005 test and the common law test in Re Beaney - Whether such a gift is in P's best interests - Whether P has litigation capacity' 2014‑08‑01 11:51:00 , , Other capacity cases,

— "Before me today the local authority contends that this Respondent Grandmother, Kathleen Danby, is in breach to a significant degree of the injunction granted by Her Honour Judge Thomas. ... Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has. I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment. ... In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months' imprisonment concurrently. I shall issue a warrant for her arrest and list the matter for review, I think in two months' time, unless Miss Cavanagh tells me that it is a wrong date to choose, in which case I shall listen to what she has to say. I shall direct that this lady can come before the court, mitigate and try to persuade me to take a different view if she can justify her behaviour and explain to me what she has done and why it is not as bad as I see it to be." 2014‑08‑01 11:46:10 , , Other capacity cases,

— "The local authority seeks that the father and grandmother should not have any contact with her save by indirect supervised telephone calls once every four weeks and no other. The local authority takes the view that that position should continue for a period of five years. ... However, should the restriction of applications to Court be as long as five years? I have borne in mind the very careful submissions of Ms. Lattimer, and I bear in mind, too, that B wants to see her father, even though she does not appreciate the dire emotional effects he appears to have had on her. I have concluded that it would be right to restrict applications to vary the injunction for a period of four years only. That is still a very substantial period and quite outside the norm." 2014‑08‑01 11:31:32 , , Other capacity cases,

— "This case raises the novel point as to whether or not a Hadkinson order can be granted in the Court of Protection and whether or not, in the circumstances of this particular case, it should be. I am unaware of there being any previous such orders in the Court of Protection, though it seems to me that that is no impediment to one being made in a case like this involving contempt, such as this." 2014‑08‑01 11:26:42 , , Other capacity cases,

— "This application arising from proceedings in the Court of Protection raises questions about the continued confidentiality after a person's death of information gathered during litigation occurring during her lifetime. The first question is whether an order that preserving the person's anonymity (and hence the confidentiality of information about her) can continue to have effect after her death. If such a power exists, the second question is whether it should be exercised in the present case. For the reasons set out below, I consider that the court does have the power to preserve the anonymity of the protected person after death but that in this case the balance falls in favour of lifting that anonymity." 2014‑08‑01 11:01:21 , , Other capacity cases,

— "EU's sons, JU and TU, have objected to an application by Suffolk County Council to be appointed as his deputy for property and financial affairs. ... Having regard to all the circumstances, therefore, I am satisfied that it is in EU's best interests to appoint Suffolk County Council to be his deputy for property and affairs and to dismiss his sons' objections." 2014‑08‑01 10:39:10 , , Other capacity cases,

— "In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of Liberty Safeguards in Schedule A1 to the Act and/or is compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The fact that this point had been raised was a material consideration in my decision to grant permission to appeal against Judge Marston's order. In their response to this appeal, the first respondent, the local authority for the area where GW lives, being the supervisory body for the purposes of the DOLS, and the second respondent, ('B Ltd') the owners and managers of the residential home where GW is currently living, contended that this proposed appeal amounted in effect to a second appeal following the decision of the district judge. Under rule 182 of the Court of Protection Rules 2007, 'a decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal'. At the outset of the hearing before me, Miss Weston on behalf of the appellant (who did not appear at first instance) conceded that this provision ruled out my consideration of the proposed further appeal. Accordingly, the only question for this court to determine is the appeal on the issue of capacity." 2014‑08‑01 10:08:28 , , Other capacity cases,

— "On 16 May 2014 I heard two applications by the Applicant local authority, namely: (i) an application under the inherent jurisdiction of the High Court for permission not to disclose to the First Respondent, M, the care plan for her unborn child namely to remove the child at birth; and (ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court. I granted those applications at a hearing on 20 May at which further evidence in support of the applications had been filed. I reserved judgment." 2014‑07‑28 13:46:56 , , Other capacity cases,

— (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or F to remain. ... I consider that I have powers under s 17 to make the order I have that C and F vacate G's home..." (3) LPA: "As I have concluded that it is not in G's best interests for C to remain in her home, then it follows that it is not in G's best interests for C to be her appointed health and welfare Attorney. ... On the findings I have made ... it is more likely than not that C used undue pressure. ... I revoke the LPA..." (4) Contact: "I cannot find any benefit for G in having any direct or indirect contact with C or F either now or in the future." 2014‑07‑28 13:36:29 , , , , Other capacity cases,

— "The critical decision is whether it is in N's best interests to continue invasive, risk laden, medical care as would be involved in a further attempt at artificial feeding. I am utterly convinced that it would not. Accordingly, I declare that it is lawful and in her best interests for the clinicians (a) not to make any further attempt to secure a means of providing artificial nutrition; (b) to withdraw the provision of intravenous fluids and dextrose; and (c) to provide such palliative care and related treatment (including pain relief) as considered appropriate to ensure she suffers the least distress and retains the greatest dignity until such time as her life comes to an end." 2014‑07‑23 21:37:50 , , Other capacity cases,

— "The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives. ... For the reasons given, I find that the Council's policy on charging for the cost of social care services is unlawful insofar as it takes account of any of the capital derived from the claimant's personal injury settlement." 2014‑06‑12 22:24:03 , , , Other capacity cases,

— "At the conclusion of the hearing on 23 April an issue about costs arose. ... I am in no doubt that, on the evidence before me, UHBT fell well short in meeting their duties to LW and her unborn child. ... The cumulative effect of these factors is that part of the hearing on 15 April and the whole of the hearing on 16 April, were completely ineffective. Accordingly I am satisfied that in the premises the court is justified in departing from the general rule that there be no order as to costs: rr 157 & 159. ... Accordingly I propose to order that UHBT pay the whole of the Official Solicitor's costs of 15 and 16 April. In contrast the hearing of 23 April was an effective hearing albeit I ultimately made no order on the full evidence then before the court. Thus the usual rule will apply in respect of the hearing on 23 April, namely UHBT will pay one half of the Official Solicitor's costs for that hearing. Those costs are to be assessed, if not agreed, on a standard basis. In respect of the costs of the local authority, on the basis that it applied for and was granted orders under the inherent jurisdiction and a RRO on the morning of 15 April. I shall direct that UHBT pay one half of the local authority's costs of the hearing on 15 April and the whole of its costs for the hearing on 16 April. For the reason given in paragraph 43 above, I make no order for costs for the hearing on 23 April." 2014‑06‑10 14:37:35 , , Other capacity cases,

— "In those circumstances I am satisfied that if the mother were to learn of the plan to remove her child at birth there is a very real risk she would harm herself and a very very real risk that she would cause physical harm to her baby. ... On the exceptional facts of this case I was wholly satisfied that the balance fell decisively in favour of making the [Reporting Restrictions Order]. It was the only proportionate course to be taken to secure the safety of the mother and of the child. ... At the hearing on 6 May it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order. ... I am in no doubt that the only order I can make in EW's welfare best interests is an interim care order." 2014‑06‑10 14:28:37 , , Other capacity cases,

— "On the 14th May 2014 I granted declarations in respect of TH, a 52 year old man presently in a minimally conscious state at what has been described as the lower end of the spectrum of that condition (i.e. a very profound disorder of consciousness). There is no doubt TH lacks capacity to litigate in these proceedings and also lacks the capacity to give or withhold consent to his medical treatment. ... In relation to withdrawal of nutrition and hydration I am persuaded that the correct course is to adjourn this issue to provide for a structured clinical assessment to evaluate whether there is evidence that TH's primary neurological pathways are sufficiently intact to permit any evidence of awareness to be detected and fully to assess, over a set period of time, TH's general awareness, responsiveness and capacity to experience pain. The National Clinical Guidelines have been drawn to my attention in some detail and Professor Barnes has highlighted the benefits of a standard assessment tool, for example the Sensory Modality Assessment and Rehabilitation Technique (SMART) and the Wessex Head Injury Matrix (WHIM)." 2014‑06‑10 14:19:20 , , Other capacity cases,

— "This is an objection by a family member to the London Borough of Haringey's application to be appointed as GW's deputy for property and affairs. ... I allow Haringey's application and dismiss CM's objection, and shall make an order appointing the authorised officer of Haringey Council as GW's deputy for property and affairs on the understanding that it is in GW's best interests, and less restrictive of his rights and freedom of action, for him to retain control over his own expenditure to a limit of £200 a week. I am surprised that CM persisted with her application to manage her uncle's property and finances after he had expressed such trenchant opposition to her in his interview with the Special Visitor. ... Nevertheless, GW's views have not always been consistent and this matter was listed for an attended hearing on 22 May 2014, anyway, and in the circumstances I see no reason to depart from the usual order for costs..." 2014‑06‑10 01:10:31 , , Other capacity cases,

— "This short judgment explains the reasons for an order I have just made as the out of hours judge in the middle of the night on 13th and 14th May 2014 on an extremely urgent application by a hospital foundation trust for a declaration that it is lawful for its doctors to treat a seventeen-year-old girl following a drug overdose notwithstanding her refusal to consent to that treatment." 2014‑06‑08 00:48:44 , , Other capacity cases,

— "This is the hearing of an application by Mr Hugh Adrian Scott Jones, the property and affairs deputy for Gladys Meek, for: (i) authority pursuant to section 18(1)(i) of the Mental Capacity Act 2005 to execute a statutory will on behalf of Mrs Meek; and (ii) consequential directions in relation to Mrs Meek’s property and affairs, and in particular: (a) an order calling in the £275,000 security bond of Mrs Meek’s two former property and affairs deputies, Mrs Janet Miller and Mrs Margaret Phyllis Johnson; and (b) a direction as to whether the deputy should refer the conduct of Mrs Miller and Mrs Johnson to the police." 2014‑05‑18 00:39:35 , , Other capacity cases,

— "These are personal welfare proceedings in the Court of Protection. They relate to an elderly lady, G, who is 94 years old. She is represented by the Official Solicitor as her litigation friend. The proceedings were launched, in circumstances I describe below, by the London Borough of Redbridge. The two other parties to the proceedings are G's two carers, C and F. I have before me an application by Associated Newspapers Limited (ANL), publishers of the Daily Mail." 2014‑05‑10 14:58:50 , , Other capacity cases,

— "It seems to me that, weighing these matters one against the other, it is not in G's best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G's capacity to make such relationships with the press it is, in my judgment, clearly in G's best interests that I should make an interim order that she should not make such communications. ... The second matter which I have been invited to adjudicate upon is what, if any, role should be played by the Applicant authority in the interim period between now and the 2nd May hearing. ... I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers ..." 2014‑05‑10 14:50:56 , , Other capacity cases,

— "The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. ... They now accept that it is not necessary for a declaration in respect of capacity to marry. ... The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment." 2014‑05‑02 01:37:41 , , Other capacity cases,

AK's financial deputy sought the court's approval of a £150,000 gift to AK's parents to allow them to build a suitably-adapted house for when AK stayed in Pakistan each year; she sought a gift as it would be unrealistic in Pakistan to obtain receipts for all expenditure and expensive to translate those received. The Official Solicitor supported the proposed gift only if it proved impossible for AK instead to purchase an interest in the land or part of it. The judge decided that it would be in AK's best interests for a 10-year interest-free £150,000 loan to be made to his parents, and authorised the deputy to make annual gifts of £15,000, from any surplus, to AK's parents to assist them in repaying this loan. This arrangement was preferable to a gift because AK would retain the capital as part of his estate, and it was more likely to ensure that his parents actually carried out the building work; coincidentally, it should avoid inheritance tax. 2014‑04‑27 21:24:13 , , Other capacity cases,

This case illustrates the difficulties in assessing capacity where: (a) the cognitive difficulties of the subject are multi-factorial; (b) there is evidence that the subject displayed strong and challenging pre-morbid personality traits; and (c) there is no doubt that he plainly has capacity in relation to decision-making in some domains of his life. Having heard oral evidence for the jointly-instructed expert neuro-psychiatrist, the court decided that IA had capacity in relation to (a) ongoing medical treatment; (b) future residence and care; and (c) management of his property and affairs. 2014‑04‑27 21:09:07 , , Other capacity cases,

— "On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. ...At the end of the hearing I granted the application and made the following declaration: 'It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.' ... I find that LM made a decision that the doctors rightly considered must be respected. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. ... The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court's jurisdiction to restrict the reporting after a person's death of information gathered during proceedings that took place during her lifetime. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question." 2014‑03‑05 02:23:46 , , Other capacity cases,

— "Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. ... I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction. ... The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare. It is my intention to so direct. ... Rule 90 (3) allows me to authorise any person or class of persons to attend the hearing and, given the interest of the Press, I will allow accredited members of the media to attend. However there will be an order, as before, prohibiting the publication of anything that will lead to the identification of G, C and F and any other private individual concerned with the proceedings." 2014‑03‑05 02:16:42 , , Other capacity cases,

— "This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for: (i) the financial and emotional vulnerability of the person who lacks capacity; and (ii) the requirements for formal, and legal, authorisation for the family's actions, specifically in relation to property and financial affairs. ... For the reasons set out above, the order I make is that: (i) JS shall pay four-fifths of the deputy's litigation costs to date; (ii) JS shall pay two-thirds of the litigation costs of KB. Given the possibility that JS will be unable to fund the costs within a reasonable time, either from the sale of the Spanish property or otherwise, I propose to allow MP to explore the mechanics of an equity release scheme to permit JS to discharge her liability for costs by way of a loan against the equity in Beech Avenue. I give MP leave to apply for such a scheme. ... I give further leave to MP to investigate, and if the need arises to bring proceedings against PK solicitors for any financial loss suffered by DB." 2014‑03‑05 02:11:01 , , Other capacity cases,

— "Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs. ... I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed." 2014‑03‑04 15:30:45 , , Other capacity cases,

— "My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her." 2014‑03‑04 15:24:07 , , Other capacity cases,

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

— "On 20th and 29th November 2013, sitting as a judge in the Family Division and in the Court of Protection, I made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother who is a person lacking capacity within the meaning of the 2005 Act. This judgment sets out the reasons for making those orders." 2014‑03‑04 14:50:58 , , Other capacity cases,

— "The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)." 2014‑03‑04 14:45:44 , , Other capacity cases,

— "The applicant in this matter, Sunderland City Council, brings these proceedings for committal against Lindsey M for breach of an order which this court made on 14th October 2013. ... Lindsey M admits that on 28th October she breached the order which the court had made and therefore brought herself within breach of the suspended order for imprisonment which the court had made on 14th October. Upon that date the court made a suspended order, which was suspended upon the basis that she complied with the previous court order and that she did not seek to have contact, or go into the property of PW. ... In all the circumstances, it seems to me that before I determine what is an appropriate sentence in all the circumstances it would be preferable to see whether Miss M, in fact, does carry out what she says to the court she will do, namely not to have a relationship with PW. I make it clear for Miss M's sake that if there are no further breaches then I will deal with the admitted breach by taking no action upon it." 2014‑03‑04 14:42:06 , , Other capacity cases,

The press has reported this case as follows: Peter Jackson J decided that, in the event of a Caesarian scar rupturing during labour, it was in P's best interests that doctors could intervene and perform a Caesarean section. 2013‑12‑30 11:44:42 , , , Other capacity cases

Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused. 2013‑12‑21 22:51:47 , , Other capacity cases, ,

A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his (4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing. 2013‑12‑20 20:49:08 , , Other capacity cases,

Social services sought to have Leslie Whiting committed to prison for breach of a Court of Protection injunction. The alleged breaches were in August-December 2012 and the court application was made in January 2013 but, owing to procedural irregularities, the hearing did not take place until December 2013. The lack of an intellectually rigorous relationship between the lawyers and the social workers meant that three of the four allegations were inadequately drafted and based on insufficient evidence to meet the criminal standard of proof. Despite the fourth allegation being established, the judge declined to take any action because a year had passed and there had been no subsequent allegations. The injunction, however, was continued for a further 12 months. 2013‑12‑20 19:57:51 , , Other capacity cases,

— Decision of Munby P on reporting restrictions in 'forced caesarian' case - full judgment, including detailed chronology. [Summary required.] 2013‑12‑17 20:30:04 , , Other capacity cases,

— Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment. [Summary required.] 2013‑12‑17 20:28:01 , , Other capacity cases,

— Judgment relating to and . [Summary required.] 2013‑12‑13 20:31:30 , , Other capacity cases,

Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent. 2013‑12‑12 21:43:09 , , Other capacity cases,

The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence. 2013‑12‑12 20:30:22 , , , Other capacity cases,

— Decision of Charles J on reporting restrictions in 'forced caesarian' case. [Summary required.] 2013‑12‑11 22:51:58 , , , Other capacity cases,

— "In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification." [Summary required.] 2013‑08‑16 19:58:06 , , , Other capacity cases,

— "This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. ... In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007." [Summary required.] 2013‑08‑16 19:45:04 , , Other capacity cases,

— "By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. ... I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust's application. ... Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L's death and not to prolong, in any meaningful way, his life. I repeat Dr Bell's powerful analysis - It would result in Mr L's death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit." [Summary required.] 2013‑08‑14 19:44:24 , , Other capacity cases,

— "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then the provision of the accommodation would in the circumstances have been a necessary either at common law or under section 7 of the Mental Capacity Act 2005, and he would have been obliged to pay a reasonable price for it, which would have been recoverable from his estate (Wychavon District Council v EM">[2012] UKUT 12 (AAC)). Mr. Harrison, like others before him in similar cases, has sought to contend that the council was not in fact acting under those powers but was acting unlawfully both because Mr. Jackson’s dementia was so severe that he required to be provided for by the NHS, and indeed ought to have been sectioned under the Mental Health Act, because he lacked capacity to consent to being admitted to the care home, and because he had no need of accommodation because he already had his own home. These points are misconceived and self-contradictory." [Summary required; detailed external summary available.] 2013‑08‑08 20:16:05 , , Other capacity cases,

— "On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the circumstances, set out in detail above, in which Professor Barnes came to give his "revised" opinion, nor that no-one at Pannone had shown the report of Dr Huddy to Professor Barnes. ... All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision." [Summary required.] 2013‑08‑08 19:52:43 , , Other capacity cases,

— "The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC's incapacity that enables an application to be made." [Summary required.] 2013‑08‑08 03:02:32 , , Other capacity cases,

— "The painful and difficult issues now to be faced by M's family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition." [Summary required.] 2013‑08‑08 02:56:33 , , Other capacity cases,

— "This judgment concerns an application by the Public Guardian to enforce a security bond in respect of unauthorised gifts made by the late Mrs Joan Treadwell’s deputy for property and affairs, Colin Lutz." [Summary required.] 2013‑08‑01 21:43:03 , , , Other capacity cases,

On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters. 2013‑07‑15 19:47:06 , , , Other capacity cases,

— "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.] 2013‑07‑04 15:47:49 , , Other capacity cases,

As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point. 2013‑05‑11 15:47:42 , , Other capacity cases,

— "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place." [Summary required.] 2013‑05‑07 07:57:57 , , Other capacity cases,

(1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) Any attempt to publicise the case would be a cruelty to JM. (7) The case would be reviewed on the first available date after 3 months, or earlier if a committal application is made by the local authority. 2013‑05‑04 14:07:58 , , Other capacity cases,

— "Mr Leslie Stolkin ..., some seven weeks before his death, executed a codicil. This case concerns the validity of that document. ...[O]ne of the deceased's sons, Mr Gary Stolkin ... disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. ... In my judgment, the Disputed Codicil is valid, and it should be admitted to probate." [Summary required.] 2013‑05‑04 09:21:07 , , Other capacity cases,

During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. 2013‑04‑05 21:27:47 , , Other capacity cases,

— "This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. ... On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting's best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg's claim and also sought a ruling on two further issues of interpretation of the compromise agreement." [Summary required; detailed external summary available.] 2013‑03‑28 12:07:30 , , , Other capacity cases,

— "This decision deals with a fact-finding hearing held on 10-12 September 2012. ... The local authority sought to prove 13 alleged facts ... " [Summary required.] 2013‑03‑28 08:02:10 , , Other capacity cases,

— "RGS is the person concerned in these proceedings ('P'). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure." [Summary required.] 2013‑03‑28 07:54:58 , , Other capacity cases,

— "The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights." 2013‑03‑26 21:59:55 , , , Other capacity cases,

— "The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry." [Summary required; detailed external summary available.] 2013‑03‑26 21:53:05 , , , Other capacity cases,

— Whether AB's aunt should be appointed as litigation friend. [Summary required; detailed external summary available.] 2013‑03‑26 21:08:16 , , Other capacity cases,

— "The issues which I have to consider are four fold: first, WD’s future accommodation and residence; secondly, his contact arrangements with other members of his family; thirdly, the application by the Local Authority for the appointment of a deputy under the Mental Capacity Act 2005; and fourthly, whether or not these proceedings should now come to an end. Other matters of the care plan are fully agreed between the parties. As I have said, the plan put before me is comprehensive and this court is happy to endorse it." [Summary required.] 2013‑03‑26 18:06:00 , , Other capacity cases,

— "Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. ... The second ground is that Iris lacked mental capacity to make the will. ... The third ground is that Iris did not know or approve of the contents of the will. ... I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will." [Summary required.] 2013‑03‑25 23:37:04 , , Other capacity cases,

ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.] 2013‑03‑25 23:30:58 , , Other capacity cases,

— "I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings." [Summary required.] 2013‑03‑25 23:05:31 , , , Other capacity cases,

— "The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?" [Summary required; detailed external summary available.] 2013‑03‑25 22:35:38 , , , Other capacity cases,

The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's (liberty), (fair trial) and (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' 2013‑02‑10 23:40:47 , , , Other capacity cases

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

There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor's lack of capacity. 2012‑12‑18 23:30:21 , , Other capacity cases,

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

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

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

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

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

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

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

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

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

The appointment of the Official Solicitor (who decided, against RP's wishes, not to oppose the making of a care order and a placement order) did not breach RP's or rights. 2012‑10‑13 21:43:31 , , , Other capacity cases,

— "This is an application by the parties to certain Queen's Bench personal injury proceedings who seek in effect to be joined in these Court of Protection proceedings. The subject of both sets of proceedings is SK, a mentally incapacitated adult aged 55. The issue which arises one way or another in both sets of proceedings is as to his care, accommodation and rehabilitation. The two applicants for joinder to these proceedings are (a) CK, aged 52, brother of SK and (b) GA Group PLC, a bus company whose bus struck SK in November 2008, causing him severe lasting brain and physical injuries. That company is the defendant in the Queen's Bench proceedings." [Summary required.] 2012‑09‑30 21:26:27 , , Other capacity cases,

KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under . (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty. 2012‑09‑27 22:31:54 , , , Other capacity cases,

The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed. 2012‑08‑17 15:17:27 , , Other capacity cases,

In this case the President of the Family Division gave guidance on LSC prior authority for expert evidence in the Family Division, and suggested wording for court orders. 2012‑06‑23 14:37:14 , , Other capacity cases,

— "This is an application for an interim payment of £300,000 to enable the Claimant to move from the 'Little Oyster' residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely." [Summary required.] 2012‑06‑23 14:16:30 , , Other capacity cases,

— The local authority issued proceedings under the court's inherent jurisdiction in relation to a 30-year-old with Downs Syndrome history who was in the exclusive care of her mother. This decision relates to an unsuccessful appeal against case management orders. [Summary required.] 2012‑05‑05 22:07:35 , , , Other capacity cases,

Personal injury quantum judgment including the following issues: (1) whether and to what extent the claimant's disabilities were due to frontal lobe brain damage (and are now incapable of significant improvement) or due depression or psychological factors (which may well improve over time); (2) whether the claimant had capacity to manage her properties and affairs. 2012‑05‑05 13:28:22 , , , Other capacity cases,

— "In this case there are a number of matters: does H have capacity to conduct litigation; does she have capacity to decide where she should live, or capacity to decide where she should be educated, or capacity to decide on the extent of the contact and relationship she should have with her natural family; capacity to deal with her financial affairs, or to enter into what has been described as a tenancy agreement, and capacity in a sense to judge her own best interests in those respects?" [Summary required.] 2012‑05‑05 12:50:35 , , , Other capacity cases,

(1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court. 2012‑04‑13 07:40:18 , , , Other capacity cases

— "This is an application by the applicant, IB, for the removal of the respondent as his mother's deputy for property and affairs. There is also a counter-application by the respondent, RC, for orders that the applicant sign letters of authority in relation to two bank accounts that are held in the joint names of EB and the applicant." [Summary required.] 2012‑03‑28 22:29:55 , , Other capacity cases,

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

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

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

The general guardian (under an order made by a court in Nevada) sought to be appointed deputy in place of the existing deputy. Variation or discharge under (7) must be done in accordance with P's best interests; in this case a change of deputy would not be in P's best interests. 2012‑03‑01 23:01:30 , , Other capacity cases,

Under and schedule 3, which incorporates the Hague Convention on the International Protection of Adults 2000 into domestic law, the High Court recognised and gave effect to an order of the Southern Irish High Court which required M's transfer to and treatment at an English psychiatric hospital. 2012‑02‑04 17:51:15 , , , Other capacity cases,

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

— "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.] 2012‑01‑27 20:03:41 , , , Other capacity cases,

DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under MHA and the State would in any event have offered sufficient justification for the result); (6) domestic legislation required this result and it was not suggested that the legislation was incompatible with European obligations. 2012‑01‑22 19:47:43 , , , Other capacity cases,

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

C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship. 2012‑01‑05 23:33:29 , , Other capacity cases,

— "The Claimant, whom I shall call Ms B, seeks declarations from the High Court in its exercise of the inherent jurisdiction. She claims that the invasive treatment which is currently being given by the respondent by way of artificial ventilation is an unlawful trespass. The respondent is the NHS Hospital Trust (the Trust) responsible for the hospital which is currently caring for Ms B, (the Hospital). At the request of the court the Official Solicitor instructed Mr Peter Jackson QC to act as Advocate to the Court. The main issue is whether Ms B has the capacity to make her own decision about her treatment in hospital. Underlying this important issue is the tragic story of an able and talented woman of 43 who has suffered a devastating illness which has caused her to become tetraplegic and whose expressed wish is not to be kept artificially alive by the use of a ventilator." [Paras 1 and 2 of judgment.] 2012‑01‑05 20:31:06 , , Other capacity cases,

There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P's); (iii) the RPR can and is willing to act as litigation friend in P's best interests; and (iv) the procedure as set out in COP rule 143 is complied with. The judge set out the pros and cons of this course of action; in this case, he appointed the RPR to as P's litigation friend. 2011‑12‑08 21:30:16 , , Other capacity cases,

This case under the inherent jurisdiction concerned RB's best interests in relation to residence and contact. Of the 16 issues considered by the judge, he found for RB's partner MF in relation to one sub-issue (which was a 'saddening example of the institutional inability of some bureaucracies ever to admit that something has gone wrong') but against him in relation to all others (most of which were MF's unfounded criticisms of almost everybody involved in the case: the judge's own criticisms of Dr Kahtan and the MP are worth reading). Had she not died during the hearing, it would have been, given MF's inability to cooperate with any community care package, in RB's best interests to continue residing at the care home. 2011‑12‑03 20:42:26 , , Other capacity cases,

MF's applications for permission to appeal and for a re-trial were refused as being devoid of merit. 2011‑12‑03 20:39:59 , , Other capacity cases,

(1) MF's claim for compensation was dismissed as it had no factual foundation; it also had no legal basis. (2) MF sought costs from the local authority; the Official Solicitor sought costs against MF (from a certain date) and the local authority (to the extent that costs were increased by their stance): there was no order for costs, except that MF was to pay 20% of the Official Solicitor's costs between certain dates, to reflect the time spent on the peripheral issues which MF had raised and the 'extravagant, strident and on occasions vicious way in which he chose to pursue them'. 2011‑12‑03 20:39:48 , , , Other capacity cases,

There is no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults, so it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court. 2011‑11‑21 22:21:06 , , Other capacity cases,

The appellant had been convicted of two offences under and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character. 2011‑11‑21 18:27:21 , , , , Other capacity cases,

(1) There was no inconsistency between the Insolvency Rules (defining an 'incapacitated person') and the CPR (defining a 'protected party'). (2) The registrar should not have declared the claimant bankrupt: he ought to have (a) been aware that the claimant was incapable, (b) adjourned the case for a representative or litigation friend to be appointed, and (c) heard representations from such a person. (3) On the evidence, the financial situation was complex and, without proper investigation, it was impossible to be sure that it was appropriate to make a bankruptcy order, so the order was set aside and the matter referred to the registrar to be heard again. [Summary based on All ER (D) report.] 2011‑11‑14 21:40:38 , , , , Other capacity cases

— 'The issue is whether it is ever, and if so in what circumstances, appropriate for the Court (ie the Court of Protection) to authorise the creation of a trust – in particular a personal injury trust - of P’s assets as the means of administering those assets for him, rather than appointing a deputy for him under s 16 of the 2005 Act.' [Summary required.] 2011‑11‑09 22:04:16 , , Other capacity cases,

Unsuccessful application by Hunters Solicitors against wasted costs order in the Court of Protection. 2011‑10‑13 22:34:22 , , Other capacity cases,

The defendant's application to the Court of Protection qualified as a notice of severance served under section 36(2) of the . 2011‑10‑13 22:02:24 , , Other capacity cases,

The following declarations were made: (1) PH lacks capacity in relation to the question on whether or not he should be accommodated at Y Court for the purposes of being given care and treatment; and (2) PH lacks capacity to make a decision as to his residence and care (the second declaration to remain in force for six months). 2011‑07‑23 11:43:30 , , Other capacity cases,

— Whether the Independent Newspaper should be authorised to attend the substantive hearing which would determine the living arrangements to be made for a young man who lacks capacity. [Summary required.] 2011‑07‑20 19:41:05 , , Other capacity cases,

— Prosecution under . [Summary required.] 2011‑07‑18 22:30:54 , , , , Other capacity cases,

— Guidance on without notice applications. [Summary required.] 2011‑07‑18 22:25:27 , , Other capacity cases,

(1) The tenant lacked capacity so the tenancy contract was not valid, which meant that there was no liability to pay rent and therefore no entitlement to Housing Benefit. (2) The contract was void, not voidable, because the landlord knew the tenant lacked sufficient mental capacity to reach such an agreement. [Caution.] 2011‑06‑22 20:36:58 , , , Other capacity cases,

— HSG's application to be discharged as a party in a forced marriage protection order case was refused because there was good cause to believe that he may lack capacity (the test for interim orders). The judge set out a list of lessons learnt for future cases. [Summary required.] 2011‑06‑19 22:24:01 , , Other capacity cases,

— Reporting-restriction orders and non-contact injunctions. 2011‑05‑26 18:46:48 , , Other capacity cases,

— The inherent jurisdiction survives the Mental Capacity Act 2005. 2011‑04‑30 15:51:01 , , Other capacity cases,

— "The local authority took the view that since the intervention of the court would engage a potential breach of the rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified." 2011‑04‑30 15:37:31 , , , Other capacity cases

Litigation capacity. The experts agreed that, as a result of her impulsive nature, V lacked capacity to manage her financial affairs; however, they disagreed on whether she had litigation capacity. The critical future decisions would be in connection with settlement offers (including the global value of the claim, provisional damages and periodical payments) albeit in the conext of the common understanding that she would not have unfettered access to the money. V would have difficulties in weighing the evidence and making decisions, but they could be ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates: the decisions would be made in the presence of her mother and lawyers; there was no suggestion that V would be left to make decisions on her own. On balance she did not lack capacity to ligitate. 2011‑04‑09 15:14:40 , , , Other capacity cases,

Mr Hunt suffered from Huntington's disease and had shut himself off from the world, in his home; he had ignored demands for payment of council tax; the court (not knowing his condition) made a bankruptcy order, then an order that he be arrested and brought before the court for failure to attend for public examination. (1) Under rules 7.43-7.44 (since amended to reflect the MCA) an 'incapacitated person' was one who is incapable of managing and administering his property and affairs either (a) by reason of mental disorder within the meaning of the Mental Health Act 1983, or (b) due to physical affliction or disability; the court may appoint a representative for such a person. (2) A bankruptcy order may be annulled if the order 'ought not to have been made' at the time. (3) The onus cannot lie on the debtor to establish lack of capacity because lack of capacity would itself render the debtor unable to do so: courts should investigate capacity where there is reason to suspect it may be absent. (4) On the facts, Mr Hunt was incapable of engaging in the proceedings by reason not only of mental disorder but also physical affliction or disability. (5) If there had been a representative the outcome could have been different, and one was required. (6) There is no point in an annulment if there is no prospect of a bankruptcy order being refused on a re-hearing; however, in this case the outcome could have been different, particularly given the potential DDA and HRA issues, and the order was annulled. 2011‑03‑29 23:45:57 , , Other capacity cases,

The local authority decided, in order to reduce costs and promote independence, to transfer W from his residential placement to supported living. (1) In principle, the council would be entitled to terminate W's residential placement on grounds of costs, or needs, subject to consultation. (2) On the facts, the consultation with W's parents and the professional carers (as required by ) had been inadequate, so the decision was quashed. 2011‑03‑29 22:56:40 , , Other capacity cases,

The claimant had settled a PI claim on unfavourable terms and now sought to have the consent order declared void for want of capacity; this judgment involves a consideration of litigation capacity. (1) In considering the issue of capacity historically, rather than prospectively, the court should confine itself to examining the decisions actually required of the claimant and should not expand its consideration to hypothetical circumstances (i.e. had she been advised differently). (2) On the facts, the presumption that she had capacity to enter into the agreement had not been rebutted. [Caution.] 2011‑03‑29 22:28:29 , , Other capacity cases,

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

Disability Discrimination Act, and lack of capacity, used to annul bankruptcy order. 2011‑02‑24 20:51:39 , , , Other capacity cases,

Professional negligence claim including an allegation that a solicitor's firm negligently failed to make enquiries as to the client's capacity to understand the sale of her house. 2011‑02‑24 20:35:14 , , Other capacity cases,

DP's application to be appointed financial deputy for her father JP was opposed by her siblings, who also disputed DP's claim to the ownership of their mother's ashes. Guidance was given as to the ownership of the ashes. DP was capable of acting as deputy but did not have the necessary independence so a panel deputy was appointed. [Summary based on Eld LJ case report.] 2011‑01‑23 18:47:10 , , Other capacity cases,

— Costs under the Court of Protection Rules. [Summary required.] 2010‑12‑20 23:17:05 , , Other capacity cases,

— P's partner's rights were breached by the denial of contact between them. [Summary required.] 2010‑12‑16 23:14:25 , , Other capacity cases,

— Unsuccessful costs appeal. [No summary.] 2010‑12‑09 21:45:29 , , Other capacity cases,

— RYJ had capacity in relation to care, contact, residential education and residence, and was not vulnerable as a result of external factors so as to invoke the inherent jurisdiction; discussion of mother's status as appointee and her application to SENDIST. [Summary required.] 2010‑11‑26 00:21:55 , , Other capacity cases,

(1) The approach in (that if a testator gives instructions when he has capacity, the will stands good even though at the time of execution he only understands that he is executing the will which he has instructed) applies also to dispositions inter vivos. (2) Mrs Singellos had the necessary capacity when she gave instructions to her accountant, but when she signed the multiple documents involved she only understood that she was giving effect to her instructions: the documents were declared to be validly executed. 2010‑11‑18 19:05:32 , , Other capacity cases,

The Court: (1) granted a worldwide freezing injunction over the assets of a son alleged to have to wrongfully obtained the proceeds of the sale of a house belonging to his incapacitated mother; and (2) made a declaration requiring the son to return his mother, a British citizen now in Guyana, to the United Kingdom for the purposes of assessment of her capacity, inter alia, to make decisions concerning her health and welfare. The Court determined (it appears for the first time) that it had the jurisdiction under paragraph 7 of Schedule 3 to the Mental Capacity Act 2005 to make decisions regarding the health and welfare of an incapacitated adult in a foreign country on the basis that they were habitually resident in England and Wales. [Summary from 39 Essex Street website.] 2010‑11‑17 00:32:43 , , , Other capacity cases

P and his mother brought claims under s7 HRA in the Court of Protection; the other parties asserted that only declaratory relief was possible as the CoP had no jurisdiction to hear and deal with (a) any of the mother's HRA claim or (b) the son's HRA damages claim, and that the claim should have been in the Queen's Bench Division. (1) The common ground that the CoP has jurisdiction to deal with P's HRA claim and grant declaratory relief was correct. (2) The CoP has jurisdiction (a) to hear argument on behalf of the mother that acts done in relation to P constitute breaches of her Convention rights and (b) to make declarations as to the lawfulness of such acts. (3) The CoP is a 'court which has power to award damages... in civil proceedings' under s8(1) HRA 1998 when exercising its HRA jurisdiction either because (a) in exercising its jurisdiction the CoP has the same powers as the High Court, which can award damages in such cases, or because (b) the CoP has power to award damages other than under the HRA. (4) There was therefore no need to transfer the claim to the QBD, but at the next hearing the relevant part of the proceedings would be treated as QBD proceedings, to ensure any award would have a jurisdictional base if the judgment was subsequently found to be wrong. (5) Those bringing the strike out application were ordered to pay half the mother's costs because they had not given any consideration to the negative procedural consequences of success, the other half being reserved because it was a legitimate jurisdictional issue. 2010‑11‑03 22:42:42 , , Other capacity cases,

— Scope of inherent jurisdiction. [Summary required.] 2010‑10‑25 21:46:40 , , Other capacity cases,

— Unsuccessful applications for (1) deputies to be appointed and (2) sister to become Litigation Friend in place of Official Solicitor. [Official summary available.] 2010‑10‑18 23:27:36 , , Other capacity cases,

— Unsuccessful appeal against decision to pronounce in favour of a will. Summary of decision below: The testator had testamentary capacity at the time that he gave instructions for the will, but not when he executed it; however, when he executed the will he believed that it gave effect to his previous instructions, it did in fact do so, and the instructions remained his testamentary wishes. Therefore the court pronounced in favour of the will. [Summary of appeal required.] 2010‑10‑06 19:58:02 , , Other capacity cases,

S's financial deputy started an action in S's name seeking a declaration that gifts of money totalling over £500,000 made by S to D were procured by undue influence; S wanted the Chancery proceedings to be discontinued, so D sought a declaration that S had the capacity to do so. (1) Detailed consideration was given to the law (including that whether a decision is unwise or foolish is a relevant consideration in deciding on capacity, in particular where there is a marked contrast between the unwise nature of the decision and the former attitude when capacity was not in question) and to the conflicting medical evidence. (2) In order to have capacity: S must be able to understand, as a minimum, the nature and extent of the relationship of trust and confidence which he arguably reposed in Mrs D, the extent to which it may be said that his gifts to her cannot readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on her to rebut any presumption of undue influence which might have arisen; also, since D's relationship with S is still subsisting, the court will need to scrutinise with particular care whether S is able to stand back from the impugned transactions with sufficient detachment truly to understand the nature of the claim. (3) On that basis, it was clear that S did not have capacity, as he could not (a) understand, (b) retain, or (c) use or weigh the relevant information. (4) The judge expressed the wish that, having regard to S's wishes and feelings, a settlement generous to D could be reached. 2010‑10‑05 22:46:47 , , Other capacity cases,

— [Summary required.] 2010‑10‑04 18:11:11 , , Other capacity cases,

EG had to pay the costs of her application for permission to apply to be appointed RS's health and welfare deputy: she ought to have known that her application was doomed to fail because her role as RS's brother-in-law's solicitor, in an acrimonious family dispute, conflicted with the duty to act in RS's best interests. 2010‑10‑04 18:06:44 , , Other capacity cases,


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