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Cases > Subject : Advance decision cases or Bias or Deputyship cases or LPA cases - all or Prison law cases

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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."

Joseph, Application for Reconsideration by (2019) PBRA 43

Reconsideration of Parole Board decision

Unsuccessful application by prisoner with mental health background for reconsideration on basis of irrationality and procedural unfairness of Parole Board oral hearing panel's decision not to direct release on licence.

LV v UK 50718/16 (2018) MHLO 22

MHT/Parole Board delay

"Complaint: The applicant complains under Article 5(4) of the Convention that she did not have a speedy review of the legality of her detention. In particular, she contends that her right to a speedy review was violated both by delays on the part of the Public Protection Casework Section and the Parole Board, and from the unnecessary two-stage Tribunal/Parole Board process. Question to the Parties: Was the review of the applicant’s detention which commenced on 24 May 2011 and concluded on 21 March 2013 conducted 'speedily' within the meaning of Article 5(4) of the Convention?" (The first paragraph of the decision is wrong as the applicant's solicitor works for Campbell Law Solicitors.)

NHS Cumbria CCG v Rushton (2018) EWCOP 41

Withdrawal of CANH; advance decision

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

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."

R (Bate) v Parole Board (2018) EWHC 2820 (Admin)

Damages for Parole Board delay

"Four grounds of claim were pleaded in detail. They can be summarised as challenging: (i) a failure, in violation of Art 5(4), to provide a parole hearing within a reasonably speedy interval; (ii) a systemic failure to maintain and operate a system for speedy and prompt parole reviews; (iii) an unlawful policy for prioritisation of listing which ignores support for release and prospects of release which are identified as realistic, and/or ignores a legitimate expectation given as to the timetable for a deferred hearing; (iv) an unlawful failure, by the decision letter of 2nd December 2016, to direct expedition in the listing of Mr Bate's deferred hearing. ... For the reason I have given, I would find in Mr Bate's favour on ground 1 and ground 4, and would award him damages on the basis indicated in paragraphs 77, 88 and 89 above. I would refuse relief in respect of grounds 3 and 4."

R (EG) v Parole Board (2020) EWHC 1457 (Admin)

Parole Board representation for those lacking capacity

(1) The Parole Board Rules 2019 introduced a power to appoint a representative "where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner's best interests for the prisoner to be represented". In the absence of anything similar to the accreditation system operating in the MHT (and the LAA's pragmatic approach to the regulation preventing providers from making an application for Legal Aid) a solicitor cannot "assume the dual role of legal representative and litigation friend" and so this appointment power cannot be exercised. (2) The 2019 rules, although silent on the matter, allow for the appointment of a litigation friend because: (a) "other representative" in the expression "solicitor, barrister or other representative" includes litigation friend; and, if that is wrong, (b) as with the 2016 rules, it is allowed when necessary under the general power to make directions. (3) In the absence of an accreditation scheme or other litigation friend, the prisoner needed the Official Solicitor to act if his parole review was to progress; (obiter) the OS has the statutory power to act in Parole Board proceedings. (4) The judge limited her decision to issues concerning EG individually, and criticised counsel for EG and the EHRC for continuing the trend in public law litigation of grounds of challenge evolving during proceedings in a way which lacked procedural rigour (in this case, by raising wider issues including the identification and assessment of non-capacitous prisoners and the Public Sector Equality Duty).

R (Evans) v Brockhill Prison (1996) EWHC Admin 234

Release date

"These applications concern a third situation: where a defendant spends time in custody awaiting trial for more than one offence, and is on conviction sentenced to concurrent or overlapping terms of custody. To what extent is account to be taken, in assessing the term of custody to be served in pursuance of the sentence in that situation, of time spent in custody (otherwise than for some unrelated reason) before the sentences were imposed?"

R (Gourlay) v Parole Board (2017) EWCA Civ 1003

Costs against Parole Board

"Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?"

R (Hall) v SSJ (2018) EWHC 1905 (Admin)

Autism in prison

Unsuccessful judicial review by prisoner claiming breach of Equality Act 2010 reasonable adjustments duty.

R (LV) v SSJ (2012) EWHC 3899 (Admin)

MHT/Parole Board delay

"This is a renewed application for permission to apply for judicial review challenging delay, it is said, on the part of the Secretary of State for Justice and the Parole Board in fixing a hearing of the Parole Board."

R (LV) v SSJ (2013) EWCA Civ 1086

MHT/PB delay

The applicant had been given an IPP sentence then transferred to hospital under s47/49. On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of Article 5(4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court's refusal of permission to apply for judicial review).

R (LV) v SSJ (2014) EWHC 1495 (Admin)

MHT/PB delay

"In the light of authority, Mr Southey accepts that he cannot submit as a matter of principle that the system by which the Claimant's release was considered by two successive bodies, the Tribunal and the Parole Board, is in conflict with the Claimant's Article 5(4) rights. ... He goes on to argue that, on the facts as they are here, if there were to be two hearings before two bodies, the state had a legal obligation to ensure expedition throughout the overall process. He says there was no such expedition, since the review of the legality of the Claimant's detention took almost 22 months from the date when the Claimant applied to the Tribunal on 24 May 2011 to the decision of the Parole Board on 21 March 2013. Within that period, Mr Southey makes a series of specific complaints as to periods of delay. ... The claim for judicial review is dismissed as against both Defendants. ... Although it took a considerable time to be resolved, there was in my view no breach of the obligation on the part of the State to provide a 'speedy' resolution."

R v LV; R (LV) v SSJ (2015) EWCA Crim 45, (2015) EWCA Civ 56

Sentencing guidance; MHT/PB delay

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

R v SSHD, ex p Leech (No 2) (1993) EWCA Civ 12

Prison Rules and solicitor-client letters

"Section 47 (1) of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. Rule 33 (3) of the Prison Rules 1964 provides as follows: "(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length." The principal question arising on this appeal is whether Rule 33 (3) is ultra vires section 47 (1) of the Act on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they are in truth bona fide communications between a solicitor and client."

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."

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