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October 2010 update

Case law - summaries added

  • Re S (statutory will); D v R (the deputy of S) [2010] EWHC 2405 (COP)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.§
  • Re Warner (2010) COP 31/8/10The donor made an LPA appointing A as the original attorney and B and C as replacement attorneys, the latter to act jointly. She imposed the following restriction in relation to the replacement attorneys: "If for any reason one of my replacement attorneys is unable or unwilling to act, the remaining replacement attorney is then permitted to act solely under my LPA". On the application of the Public Guardian the restriction was severed as being incompatible with the joint appointment of the replacement attorneys. [OPG summary - LPA case.]§
  • Re Thrussell (2010) COP 12/10/10The donor directed her attorneys to consult with X "in respect of any major decision". On the application of the Public Guardian the court severed this provision on the grounds that it was so uncertain as to be unworkable. [OPG summary - LPA case.]§
  • Re John (2010) COP 14/10/10The donor made an LPA using the "old" form prescribed in 2007. She appointed an original attorney and a replacement attorney, but the replacement attorney's Part C omitted his date of birth, and it could not be inferred from the instrument that he was at least 18. The usual practice of the Public Guardian in such a case is to request a fresh Part C, but this could not be done because the donor had lost capacity (see Re Sporne (2009) COP 13/10/09). The instrument was registered, with registration being limited to the original attorney, but the attorney then applied to court to have the defective Part C "reinstated". The Public Guardian was joined as a party. The court ruled that the LPA was not in the prescribed form because of the failure to include the replacement attorney's date of birth. As the court was satisfied on the evidence that the replacement attorney was in fact at least 18, it exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA (which is set out in the summary of Re Nazran (2008) 27/6/08) to declare that the LPA was to be treated as if it were in the precribed form. (Note: in the case of LPAs made using the 2009 prescribed form, the attorney's date of birth must be included in Part A, so the practice of requesting a fresh Part C is not applicable, although limited registration may be possible if there is another attorney whose date of birth has been given.) [OPG summary - LPA case.]§
  • Re Devine (2010) COP 13/10/10The attorney's signature in Part C was witnessed but the witness did not sign his name. On the application of the attorney the court declared that the instrument was defective in a material respect and did not take effect as an EPA. [OPG summary - EPA case.]§
  • Re SB (2010) COP 19/10/10(1) SB lacked capacity to consent to potentially life-saving treatment for aplastic anaemia. (2) It was lawful for the clinicians to administer the treatment and restrain her for that purpose; also, if the they decided that it was too distressing, they could decide to stop. [Summary based on press report.]§
  • An NHS Foundation Trust v D [2010] EWHC 2535 (COP)(1) D lacked the capacity to decide on medical treatment for her prolapsed uterus, as she held the delusional belief that her condition was normal and did not require treatment. (2) It was in D's best interests to receive surgery, as if untreated her condition could be life-threatening. (3) The proposed restraint and deprivation of liberty (including a general aesthetic six days before the surgery) was authorised, if absolutely necessary, as being in her best interests. (Summary based on press articles.)§
  • EG v RS [2010] EWHC 3073 (COP)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.§
  • Re DC (Dispensing with Service of Applications under the Adults with Incapacity (Scotland) Act 2000 on the Adult) [2010] ScotSC 6An application for Financial and Welfare Guardianship was accompanied by a form purporting to justify dispensing with intimation of the application on the adult. The Sheriff referred to his earlier decision in Re LC [2005] ScotSC 19/5/05 and held that the words in the application that "He is too disturbed and mentally ill" were insufficient to demonstrate that intimation of the application itself would be likely to pose a serious risk to the health of the adult.§
  • City of Edinburgh Council v D [2010] ScotSC 30/9/10An Intervention Order was sought, and granted, to allow the applicant to instruct solicitors, on the adult's behalf, to negotiate for settlement with respect to an outstanding compensation claim, to receive funds and invest same for the benefit of the adult, and to instruct solicitors to apply to have the applicant confirmed as executor to the adult's father's estate, in order that his estate could then be wound up and disbursed.§
  • Re HP (Remuneration of a Financial Guardian under Section 68 of the Adults with Incapacity (Scotland) Act 2000) [2010] ScotSC 21/7/10This appeal concerns a decision of the Public Guardian regarding the question of the remuneration payable to a financial guardian in respect of the work undertaken by him in connection with the applications he submitted for renewal of the guardianship. Following an application to the Public Guardian for remuneration in connection with the renewal process, it was decided that additional remuneration was appropriate, but the proposed payment was at a level the guardian did not regard as adequate. The court held that this case was an exceptional circumstance in which the Public Guardian should authorise payment on a time and trouble basis.§
  • F v Clinical Director of Our Lady's Hospital (2010) IEHC 243The discharge of the patient from voluntary status (despite his desire to remain as a voluntary patient) and the subsequent admission order making him an involuntary patient, in order to be transferred to the Central Mental Hospital in Dublin, and the CMH policy only to accept involuntary patients, were lawful.§

Case law - transcripts only

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  • Anam v SSHD [2010] EWCA Civ 1140 — This appeal concerns the Secretary of State for the Home Department's powers of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 and the implications of his failure to have regard, when exercising those powers to detain the Appellant, to his own policy as set out in a document entitled "Enforcement Instructions and Guidance". [Summary required.]§
  • ‎Law Society v Legal Services Commission [2010] EWHC 2550 (Admin)
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  • Perrins v Holland [2010] EWCA Civ 840 — 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.]§
  • R v Oakley [2010] EWCA Crim 2419 — Sentencing for diminished responsibility manslaughter. [Summary required.]§
  • ‎City of Edinburgh Council v D [2010] ScotSC 30/9/10
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Case law - other

  • In September 2010, the European Court of Human Rights published various thematic fact sheets, including "Mental Health", "Detention and Mental Health", "Prisoners’ health rights", "Detention conditions and treatment of prisoners". See ECHR#External links
  • On 1/10/10, 39 Essex Street published the October 2010 edition of their Court of Protection Newsletter. See Court of Protection

Legislation

Legal Aid

  • CLS News 27/10/10: LSC will not appeal the Law Society judicial review judgment. See Legal Aid News
  • The LSC have published new civil Legal Aid forms. These forms are mandatory from 15/11/10 and may not be used before that date. The following have new versions: CLS APP1, 6, 7, 8; CLS MEANS1, 1A, 1B, 1C, 2, 3, 4, & 5; Means Guidance & Checklist (CK3); CLS POA1; CW1, CW1&2 (MH), CW2 (IMM), CW Counsel (MH), CW3A, 3B & 3C; Civil Codes Guidance & Guidance for Reporting Controlled Work. See Legal Aid News
  • On 13/10/10 the LSC confirmed that all non-family legal aid contracts and family mediation contracts will start on 15/11/10. See Legal Aid News
  • The LSC has resiled from the position in the August 2010 newsletter that Level 2 cannot be claimed on the day of first attendance even where the solicitor makes the Tribunal application on the day or the client has previously made an application. The division between Level 1 and 2 must be clearly evidenced on the file. Permission is currently being obtained from the LSC Policy Team to publish the relevant email here. See Legal Aid News
  • On 5/5/10 the Law Society published "Q and A: judicial review outcome". Including "11. Will the Law Society now be challenging the LSC's other legal aid tender procedures? We are reviewing the position in respect of the other tenders in the light of the Divisional Court's judgment. However, the issues in the other areas are somewhat different from the position in family legal aid. The key issue for the Divisional Court was the way in which the LSC applied the selection criterion relating to accreditation, and the fact that this arbitrarily and unfairly excluded firms that had not had opportunity to become accredited in order to show that they were in fact as qualified to undertake the work as the winners. Moreover, the court recorded that the number of firms excluded was out of all proportion to the number that was expected by the LSC, and that this drastic reduction in the number of providers was inconsistent with the LSC's strategic aims and statutory duties. This combination of factors was unique to the family tender. The fact that we have succeeded in this one challenge does not therefore mean that we would necessarily do so in other fields." See Legal Aid News

Other

  • The Tribunals Service is consulting, until 15/11/10, on draft Guidance Note on the role of IMHAs (in their capacity as IMHAs, rather than as representatives) at Tribunal hearings. Consideration is given to (1) attendance at the hearing; (2) seating arrangements; (3) relationship with the legal representative; (4) role in relation to any procedural issues; (5) giving of evidence; (6) asking questions and addressing the panel; (7) right of access to the Tribunal's decision. See Consultations#Mental Health Tribunal
  • On 27/10/10 the Care Quality Commission published 'Monitoring the use of the Mental Health Act in 2009/10', their first report on the MHA. See CQC
  • On 5/10/10, Mind published "Achieving justice for victims and witnesses with mental distress: A mental health toolkit for prosecutors and advocates": a practical guide, designed to complement the CPS’s prosecution guidance on mental health, with information and advice about mental distress to aid decision-making during case preparation and at court. See Mind (Charity)
  • The NHS Information Centre published "In-patients formally detained in hospitals under the Mental Health Act 1983 and patients subject to supervised community treatment, Annual figures, England 2009/10" on 5/10/10. Their summary is "This bulletin summarises information about uses of the Mental Health Act 1983. It includes information from high security psychiatric hospitals as well as from other NHS service providers and independent hospitals. The latest figures for 2009/10 show that 16,622 patients were detained in hospital at the end of the year, an increase of 3.4 per cent from last year. Taken together with the number of people on Community Treatment Orders (CTOs) at 31 March (3,325) these figures suggest that increasing numbers of people are being subject to restrictions under the Mental Health Act. The figures also show major changes in the number of formal detentions, uses of Place of Safety Orders and CTOs." See Statistics

Website/CPD

  • CPD questionnaires have been added for all months up to and including September 2010. For £50 you can earn 12 CPD credits online. Barristers have two months left of their CPD year; those of over 3 years' call can use the Mental Health Law Online CPD scheme. Solicitors are encouraged to resubscribe this year. See CPD scheme for further details.
  • New page added. Local Government Ombudsman — The LGO has a new power, with effect from 1/10/10, to investigate complaints about privately-arranged and funded adult social care (in addition to the pre-existing power in relation to complaints about care arranged and funded by local authorities). See their website for details.§
  • New page added. Murder — Some partial defences to murder depend on the mental condition of the offender. On 4/10/10 these were changed: see Coroners and Justice Act 2009 and external links for details.§
  • See October 2010 chronology for this month's changes to the website in date order.