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|Harrow CCG v IPJ (2018) EWCOP 44||Residence and care||"The Court is asked to determine where AJ should live and how he should be cared for. The applicant CCG has proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third party broker. JA's parents, who are the Second and Third Respondents, do not agree the proposals and seek the dismissal of the application.|
|Hounslow Clinical Commissioning Group v RW (2019) EWCOP 12||Death||"This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect."|
|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."|
|LB Islington v AA (2018) EWCOP 24||Residence, wishes and feelings||"These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge."|
|London Borough of Hackney v SJF (2019) EWCOP 8||Residence, contact, tenancy||"SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into."|
|Milton Keynes CCG (17 018 823e) (2019) MHLO 61 (LGSCO)||Section 117 complaint||"Whilst the Trust was acting on behalf of the CCG in carrying out the s117 actions, the CCG is ultimately responsible for s.117 provision, along with the Council. ... The CCG, Trust and the Council should, by 23 December: (a) Write to Mrs B apologising for the impact of the fault in relation to not refunding the care fees relating to the supported living placement. (b) Confirm with Mrs B and refund the supported living fees which have not already been reimbursed. Mrs B may need to provide additional information to the organisations about fees paid as part of this. (c) Write to Miss A and Mrs B personally and apologise for the impact the lack of s.117 planning had on both of them individually due to the length of time Miss A went without adequate support. They should also apologise for the uncertainty caused by not knowing whether the incidents outlined above could have been avoided. (d) Pay Miss A £1500 and Mrs B £1000 each in recognition of the impact of the and length of time Miss A had a lack of s.117 support.
By 20 February 2020, the Council, CCG and Trust should create an action plan of how they will notify and cooperate with each other to ensure patients are assessed promptly and s.117 care put in place in line with the MHA Code of Practice. This action plan should include a review of progress and the impact of any changes following implementation of the plan."
|NHS Guilford and Waverley CCG (18 007 431a) (2019) MHLO 60 (LGSCO)||Section 117 complaint||"(1) Within one month of my final decision, the Council and CCG will: (a) Write to Miss X and Mr Y, acknowledging the fault identified in this decision and offering meaningful apologies; (b) Jointly pay Mr Y £500 for failure to provide support as outlined on his s117 aftercare plan, delayed care planning, loss of opportunity to re-engage him and distress as a result of poor communication around his care plan and eviction; (c) Jointly pay Miss X £150 for poor complaint handling, stress and inconvenience. (2) Within three months of my final decision, the Council and CCG will ensure that Cherrytrees and all other providers acting on their behalf under s117 review their policies and procedures to ensure compliance with the relevant parts of the Code of Practice: Mental Health Act Code 1983, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Act 2014, in relation to: (a) Care planning; (b) Daily record keeping; (c) Complaint handling, including ensuring all points are responded to adequately and complainants are properly signposted should they wish to escalate their complaint."|
|PBM v TGT (2019) EWCOP 6||Marriage, prenuptial agreement, information about extent of assets, etc||"... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto."|
|PW v Chelsea and Westminster Hospital NHS Foundation Trust (2018) EWCA Civ 1067||Best interests/transparency||"Two central criticisms are made of the judgment below, and the judge's determination of best interests. First, that the judge failed to appreciate and therefore give any or any adequate weight to RW's wishes and feeling. These were, contrary to her findings, ascertainable; they pointed to the fact that he was a "fighter", to the value he ascribed to life and to his desire to "hold fast to it" no matter how "poor" or "vestigial" in nature it was. Secondly, the judge overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide would remove or mitigate that risk. In the result, and in any event, it is submitted the judge's overall analysis of what was in RW's best interests failed adequately to address the relevant issues and evidence, and was a flawed one. In my view neither criticism is well-founded." Another aspect of this case related to the transparency order/reporting restrictions.|
|R (CXF) v Central Bedfordshire Council (2017) EWHC 2311 (Admin)||"The central question raised in these proceedings is whether either or both of the Defendants has a duty under s117 of the MHA to cover the costs of the Claimant's mother's visits, on the ground that they constitute "after-care services" within the meaning of that provision. ... The specific issues that arise are as follows: (a) Whether the duty to provide after-care services under s117 is triggered when the Claimant is granted leave of absence from the Hospital under s17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely, (i) that he has "ceased to be detained" under s3 of the MHA, and (ii) that he has "left hospital"; (b) If so, whether the after-care services which are to be provided pursuant to s117(6) of the MHA may as a matter of principle include funding to cover the Claimant's mother's transport costs; (c) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s117; (d) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017."|
|R (CXF) v Central Bedfordshire Council (2018) EWCA Civ 2852||The patient's mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, the Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117. (1) The patient did not "cease to be detained" or "leave hospital" within the meaning of s117(1) when on leave and so was not a person to whom s117 applied, and also the services provided did not constitute "after-care services" within the meaning of s117(6). (2) In other cases, such as a patient living in the community on a either a full-time or part-time trial basis, the s117 duty could arise. (3) (Obiter) It was difficult to see how s117 could have covered the mother's costs as there was no evidence that she was authorised to provide services on behalf of any CCG or LA. (4) The MHA Code of Practice is analogous to delegated legislation (which can only be used as an aid to interpretation if it formed part of Parliament's background knowledge when legislating) and so cannot be used to construe s117(1) which is part of the original text. (5) The court was critical of and provided guidance in relation to the quality of pleadings in statutory interpretation cases. (6) Even if the evidence provided by Mind's QC in written submissions had been relevant, it would not excuse the flagrant breach of the court's order not to stray into the giving of evidence. The matters which are admissible are so limited in statutory interpretation cases that it may be that there is nothing useful an intervenor can contribute.|
|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."|
|Richards v Worcestershire County Council (2016) EWHC 1954 (Ch)||After-care||"The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards' deputy on his behalf on providing him with care. The claim is based on section 117 of the 1983 Act. It is Mr Richards' case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that that duty extended to the provision of the various services which have thus far been paid for privately. ... There are essentially two issues to consider: (i) Is it in principle possible for Mr Richards to bring a restitutionary claim? (ii) If so, can the present claim be pursued otherwise than by way of judicial review?"|
|Richards v Worcestershire County Council (2017) EWCA Civ 1998||After-care||Executive summary and conclusion from judgment: "The claimant has a long history of mental illness, following frontal lobe injury which he sustained in a road traffic accident 33 years ago. He received damages following the accident, which his deputy administers. The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he has received various after-care services. The claimant's deputy funded the services between 2004 and 2013. The defendants have funded those services since 2013. The claimant by his deputy now seeks to recover the costs of the after-care services between 2004 and 2013 (including 18 months residential placement) on the grounds that the defendants are liable for the costs under section 117 of the 1983 Act. The defendants applied to strike out the claim as an abuse of process. The judge rejected that application. The defendants now appeal on two grounds: first, the claimant should have brought his claim by judicial review; secondly, the defendants' alleged non-compliance with section 117 of the 1983 Act does not entitle the claimant to recover damages for unjust enrichment or restitution. The first ground of appeal raises a clean point of law, capable of resolution on the basis of the pleadings. I decide that point against the defendants. The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out. In the result, therefore, if my Lords agree, this appeal will be dismissed."|
|Tinsley v Manchester City Council (2016) EWHC 2855 (Admin)||After-care payments and double recovery||"Thus there is a fundamental issue between the parties which they require the court to resolve, which is whether or not it is lawful for the defendant to refuse to provide after-care services to the claimant under s117 on the basis that he has no need of such provision because he is able to fund it himself from his personal injury damages. The claimant's position is that this is unlawful, and represents a thinly disguised attempt to charge through the back door in this particular category of cases when the House of Lords has confirmed in Stennett that it is impermissible to do so in any circumstances. The defendant's position is that to allow the claimant's deputy to claim the provision of after-care services on his behalf under s.117 would offend against the principle against double recovery which has been established in the decided cases in the personal injury field, most notably by the Court of Appeal in Crofton v NHSLA B, B and Peters v East Midlands SHA  EWCA Civ 145, B."|
|Tinsley v Manchester City Council (2017) EWCA Civ 1704||After-care payments and double recovery||"The question in this appeal is whether a person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released from detention but still requires "after-care services" is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor."|