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Drilldown: Cases

Not many cases (252 of them) have been added to the database so far. To see the full list of cases (2079) go to the Mental health case law page.

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Cases > Subject : Absolute or conditional discharge or Bias or Deputyship cases or LPA cases - all or MHT capacity cases

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Showing below up to 13 results in range #1 to #13.

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Page name Sentence Summary
JG v Kent and Medway NHS and Social Care Partnership Trust (2019) UKUT 187 (AAC)

Non-legal research by judge

Judicial summary from gov.uk website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair."

M v Abertawe Bro Morgannwg University Health Board (2018) UKUT 120 (AAC)

Covert medication and MHT

The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision.

NKR v The Thomson Snell And Passmore Trust Corporation Ltd (2019) EWCOP 15

Appointment of property and affairs deputy

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

PBC v JMA (2018) EWCOP 19

Gifts

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

Public Guardian v DA (2018) EWCOP 26

LPA wording - euthanasia and multiple attorneys

"This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment."

Re ACC (2020) EWCOP 9

Deputies and litigation

This case concerned whether, and in what circumstances, a property and affairs deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings. The applicant deputies from Irwin Mitchell wanted to know when a professional deputy may instruct a legal firm with which it is associated and recover the costs from P. The court gave detailed guidance, including a summary of conclusions in an appendix.

Re AR (2018) EWCOP 8

Deputy - remuneration

"The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy."

Re BGO: Office of the Public Guardian v PGO (2019) EWCOP 13

LPA witnessed by attorney

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

Re M: A v Z (2018) EWCOP 4

COP bias

"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."

SB v South London and Maudsley NHS Foundation Trust (2020) UKUT 33 (AAC)

Reviewing appointment of legal representative

The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so.

SLL v Priory Healthcare Limited (2019) UKUT 323 (AAC)

Inadequate reasons for not absolutely discharging

The patient challenged the tribunal's decision to grant a conditional, rather than absolute, discharge. (1) Ground 1: Failure properly to apply the two-stage process required by s73(1) and (2). The MHRT had decided (under s73(1)) that the s72(1)(b)(i) (appropriateness) test was not met, and had moved straight to s73(2) (absolute or conditional discharge) without considering s72(1)(b)(ii) (necessity) or s72(1)(b)(iia) (appropriate treatment). The UT decided that the statute permitted the tribunal to stop once it had decided that it was not satisfied of the first s72 test. However, s73(2) required the tribunal to make findings on substantially similar matters, albeit on a forward-looking basis, and to make a decision on the type of discharge on the basis of those findings. Without express findings (in particular in relation to potential medical treatment for any psychotic condition the patient may suffer from) and an explanation of how the relevant factors were weighed (including the two factors discussed below) it was not possible to be sure how the tribunal reached its decision. The UT gave guidance in paras 33-35 on the findings likely to be required when considering s73(2), and in para 47 on the appropriateness of treatment with no realistic prospect of therapeutic benefit. (2) Ground 2: Failure to give adequate reasons. The Appellant had presented credible expert evidence that risk could be managed by future Part 2 detention rather than the recall power, so it was incumbent on the Tribunal to explain why it was not persuaded by that evidence: instead, it had merely quoted another doctor's evidence (which stated that recall would be available but did not grapple with the Part 2 issue) and said that this evidence was "more apt". The Appellant had also argued that the setting of a psychiatric hospital was positively harmful, and the tribunal had failed to explain its rejection of this argument. Taken as a whole it was not adequately clear why the tribunal was not satisfied that it was inappropriate for the Appellant to continue to be liable to recall to hospital for further treatment.

SM v Livewell Southwest CIC (2020) UKUT 191 (AAC)

Capacity to make tribunal application

(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including on when the hospital managers, IMHA, or the tribunal itself should request the making of a reference.

VS v St Andrew's Healthcare (2018) UKUT 250 (AAC)

Capacity to make tribunal application

(1) The capacity that a patient must have in order to make a valid MHT application is that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released. This is a lower threshold than the capacity to conduct proceedings. (2) (Obiter) a solicitor appointed under rule 11(7)(b) can request to withdraw an application in the best interests of the patient, but on the facts the tribunal had been entitled to give effect to the patient's own desire to come before a tribunal. (3) When a tribunal lacks jurisdiction it should strike out the proceedings but (obiter) if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law.

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