Special

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.

The relevant pages (and summaries) are displayed at the bottom of this page.

Cases > Subject : Bias or EPA cases - all or Life sentence cases or Reasons or Testamentary capacity cases

Use the filters below to narrow your results.

Showing below up to 16 results in range #1 to #16.

View (previous 250 | next 250) (20 | 50 | 100 | 250 | 500)

Page name Sentence Summary
Clitheroe v Bond (2020) EWHC 1185 (Ch)

Testamentary capacity

"This is a bitter family dispute between the Claimant brother and Defendant sister as to whether their mother, the deceased, had testamentary capacity to make each of her two wills and in addition or in the alternative whether either or both wills resulted from fraudulent calumny."

CM v Derbyshire Healthcare NHS Foundation Trust (2011) UKUT 129 (AAC)

Nature and degree

(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests.

DL-H v West London MH NHS Trust (2017) UKUT 387 (AAC)

Religious beliefs and tribunal expertise

Judicial summary from Gov.uk website: (1) "In deciding whether a patient is manifesting religious beliefs or mental disorder, a tribunal is entitled to take account of evidence from both religious and medical experts." (2) "A tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision."

James v James (2018) EWHC 43 (Ch)

Banks v Goodfellow test for testamentary capacity survives MCA

"There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin [2014] EWHC 71 (Ch)Not on Bailii! [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must 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."

M v An NHS Trust (2017) MHLO 39 (UT)

Tribunal reasons

"[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made."

Parsonage v Parsonage (2019) EWHC 2362 (Ch)

Validity of will

" The validity of the 2011 Will is challenged by D1 on the grounds that BP lacked capacity (1) to know and understand the nature and effect of the 2011 Will, (2) to know and understand the size of her estate, and/or (3) to know and appreciate the claims to which she ought to give effect. The underlying factual basis of the challenge is the severity or extent of BP's dementia and the circumstances in which the 2011 Will was prepared and executed."

R v Bala (2017) EWCA Crim 1460

Unsuccessful life sentence appeal

The appellant unsuccessfully argued that he should have received a s37/41 restricted hospital order instead of a life sentence. Extract from judgment: "His applications for an extension of time of 10 years to apply for leave to appeal against sentence and to call fresh evidence were referred to the full court by the single judge. It is the appellant's case that instead of a sentence of Custody for Life the judge should have imposed a hospital order under section 37 Mental Health Act (MHA) 1983 together with a Restriction Order under section 41. ... In R v Vowles; R (Vowles) v SSJ [2015] EWCA Crim 45, [2015] EWCA Civ 56, [2015] MHLO 16 this court set out in detail the approach to be taken by sentencing judges dealing with offenders with mental disorders. At paragraph 54, having earlier set out the statutory framework, the court described the situation in which a section 37/41 order is likely to be the correct disposal in a case where a life sentence is being considered. It is that 1) the mental disorder is treatable 2) once treated there is no evidence the offender would be in any way dangerous, and 3) the offending is entirely due to that mental disorder. In this case the new evidence does not demonstrate that the offending was entirely due to the mental disorder. We are quite satisfied, on the evidence available at the time and the more recent evidence, that the appellant's behaviour when committing the offence was affected by both mental illness and his personality disorder. On the face of it therefore this case did not come within the situation described as likely to lead to a section 37/41 order as described in Vowles. To that we would add the reminder in Vowles that consideration should be given to whether the powers of the Secretary of State under section 47 to transfer a prisoner for treatment would, taking into account all the other circumstances, be appropriate. It is clear from the court log that the judge had well in mind those powers, in the light of Dr Payne's reference to a further review after three months. We are satisfied therefore that even on the fresh evidence the judge could not have concluded, as required by section 37(2)(b), that 'having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under [section 37.]' In short the judge's conclusion was correct at the time and, with hindsight and fresh evidence, remains correct. The real purpose of this appeal was to move the appellant from the release regime consequent upon a life sentence to the regime consequent on a hospital order. That is not a proper basis for an appeal if the original sentence was not wrong in principle. There are some, relatively few, cases where medical evidence obtained years after sentence convincingly demonstrates that the sentencing court proceeded on the wrong basis because of an error by an expert – see eg R v Ahmed [2016] EWCA Crim 670, [2016] MHLO 19. On analysis that is not this case. The sentence was not wrong in principle."

R v Fisher (2019) EWCA Crim 1066

Summary of MH sentencing guidance - life sentence replaced with s37/41

Having summarised the Sentencing Council's Definitive Guideline for Manslaughter (in force 1/11/18) and the relevant available disposals under the MHA, the Court of Appeal revoked sentences of imprisonment and replaced the life sentence with a s37/41 restricted hospital order.

R v Kitchener (2017) EWCA Crim 937

Appeal against life sentence

"On 22 November 2002 at the Crown Court at Cardiff before the Recorder of Cardiff His Honour Judge Griffith-Williams QC the applicant, then aged 20, pleaded guilty to attempted murder contrary to s.1(1) of the Criminal Attempts Act 1981. On 2 December 2002, he was sentenced by the same judge to custody for life with a minimum term of 4 years and 8 months less 4 months on remand in custody. His applications for an extension of time of about 14 years, for leave to appeal against sentence and to call fresh psychiatric evidence have been referred to the full Court by the single judge. The basis for the application for leave to appeal against sentence is that the applicant contends that he should have been sentenced to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 rather than to custody for life. The basis for the application for an extension of time is that the psychiatric report of Dr Sobia Khan dated 26 October 2015 was not available at the time of sentence. That report is said to satisfy the conditions for the admission of fresh evidence under section 23 of the Criminal Appeal Act 1968. The admission of the report is said to be both necessary and expedient in the interests of justice."

R v Kurtz (2018) EWCA Crim 2743

"The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1)(b) of the Mental Capacity Act 2005 ('MCA 2005) of which the Appellant was convicted. This provision has not previously been considered by the Court of Appeal. ... The essential question at the heart of this appeal is whether, on a prosecution for the offence contrary to s 44(2) read with s 44(1)(b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as 'the lack of capacity requirement'. ... The submission by Ms Wade QC on behalf of the Appellant was that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1)(b) of the MCA 2005 even if she had wilfully neglected her mother. ... Despite our comments in [19] above as to the evidence which suggests that, at a minimum, the Appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge's failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed."

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."

RM v St Andrew's Healthcare (2010) UKUT 119 (AAC)

Non-disclosure of covert medication

(1) When considering the "interests of justice" limb of rule 14(2), the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to his detention. (2) On the facts, without knowing that he was being covertly medicated the patient would be unable effectively to challenge his detention; the non-disclosure decision was set aside and re-made. (3) Non-disclosure orders should not only be drafted in terms of documents, but also should deal, in a precise, clear and exhaustive way, with the information which should not be disclosed.

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.

Todd v Parsons (2019) EWHC 3366 (Ch)

Testamentary capacity

"The claim was opposed by the third defendant, challenging that will on the grounds of lack of testamentary capacity, want of knowledge and approval and undue influence. ... The traditional test for capacity is that laid down in Banks v Goodfellow (1870) LR 5 QB 549 ... In James v James [2018] WTLR 1313, I held that the traditional test still applied, and had not been replaced by that contained in the Mental Capacity Act 2005. Neither party argued before me that the test should now be that contained in the 2005 Act, although the third defendant reserved the right to argue otherwise on appeal. ... In my judgment the 2008 will is valid."

Whittaker v Hancock & Ors (2018) EWHC 3478 (Ch)

LPA attorney as substituted personal representative

"The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as substitute personal representative of the estate of John Parker in place of the second defendant, her mother, and for a caveat entered by the third defendant on 20 July 2016 to be removed. ... The third defendant is the deceased's daughter and opposes the claim. ... In a statement accompanying the Will, signed by the deceased and witnessed by a legal secretary the deceased explains that he has made no provision for the third defendant ... On 20 July 2016 the third defendant caused a caveat to be entered. She subsequently entered an appearance to the claimant's warning asserting that the 2003 Will may be invalid due to the deceased lacking testamentary capacity, being subject to undue influence and want of knowledge and approval. ... Mr Devereux-Cooke submits that I should make an order appointing the claimant as substitute personal representative for the second defendant. The claimant is the attorney for the second defendant, the LPA having been registered on 16 January 2014. The second defendant cannot consent to the claim as she lacks capacity. The first defendant does not oppose the claim. ... It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant's property and financial affairs. There are no conditions or restrictions specified in the instrument. ... It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries. ... I accept Mr Devereux-Cooke's analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke's analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary. ... I consider that in order for the deceased's estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant."

View (previous 250 | next 250) (20 | 50 | 100 | 250 | 500)