Special

Drilldown: Cases

Not many cases (246 of them) have been added to the database so far. To see the full list of cases (2073) go to the Mental health case law page.

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

Cases > Subject : Capacity to consent to sexual relations or Criminal law capacity cases or Deputyship cases or MHT capacity cases or Other capacity cases

Use the filters below to narrow your results.

Parties:
A Local Authority (5) · A (4) · AB (4) · B (4) · C (3) · M (3) · Z (2) · London Borough of Tower Hamlets (2) · D (2)
Other values:

Showing below up to 42 results in range #1 to #42.

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

Page name Sentence Summary
A Local Authority v JB (2020) EWCA Civ 735

Capacity and sexual relations

"The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations."

Application by Darlington Borough Council in respect of the Adult: AB (2018) ScotSC 4

Scottish capacity case

"The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian."

B v A Local Authority (2019) EWCA Civ 913

(1) Overlap between different decisions; (2) Sex

(1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations.

CS v FB (2020) EWHC 1474 (Fam)

Capacity in family case

The judge in this international children law case made an interim declaration that the mother lacked capacity to litigate, to enable the Official Solicitor to be appointed as litigation friend and, with the benefit of legal aid, to investigate for final determination the mother's capacity to conduct these proceedings.

DA v DJ (2017) EWHC 3904 (Fam)

Interim declarations under s48 MCA 2005

In this case Parker J followed the approach of HHJ Marshall QC in Re F [2009] EWHC B30 (Fam)M rather than the approach of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam)B in relation to the correct approach to the threshold test for making an interim order under MCA 2005 s48 (which requires that there is "reason to believe that P lacks capacity in relation to the matter"). There is no need for the the purpose and extent of the capacity assessment to be explained to the person concerned, and the evidence does not need to go so far as to rebut the presumption of capacity.

DB (as executor of the estate of OE) v SSWP (2018) UKUT 46 (AAC)

Social security appointeeship

"The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly."

DXW v PXL (2019) EWHC 2579 (QB)

Claimant not told value of settlement

"In the Application Notice seeking approval of the settlement, the Claimant also sought what has been called an "EXB Order" after the judgment of Foskett J in EXB v FDZ and others [2018] EWHC 3456 (QB)M. In that case, Foskett J made what was a novel form of order to the effect that it was not in the best interests of the claimant to know the amount of a settlement of his personal injuries action in circumstances where the court had also determined that the claimant lacked capacity to decide whether or not he should know the amount of the settlement."

ET v JP (2018) EWHC 685 (Ch)

Variation of Trusts Act

"This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958. ... The way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act."

EXB v FDZ (2018) EWHC 3456 (QB)

"This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement. [I]t was thought by those who knew him best ... that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved. ... The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because 'by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant.' Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations. In those circumstances a declaration as to incapacity in relation to this specific decision is justified. ... This case is the first I can recall when an issue such as that which has arisen has occurred. ... I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result." The draft order included the following declarations: "(1) The Claimant lacks the capacity to decide whether or not he should know the amount of the Settlement. (2) It is in the Claimant's best interests that he does not know the amount of the Settlement. (3) It shall be unlawful for any person (whether the Claimant's deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life."

LJ v Mercouris (2019) EWHC 1746 (QB)

Litigation friend

"The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs."

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."

London Borough of Tower Hamlets v A (2020) EWCOP 21

Residence and care capacity

(1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment").

London Borough of Tower Hamlets v NB (2019) EWCOP 17

Capacity to consent to sex with husband

"There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..."

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.

Manchester City Council Legal Services v LC (2018) EWCOP 30

Sexual exploitation, restrictions where adults have capacity

After a circuit judge endorsed a care plan which led to the repeated sexual exploitation by strangers of a young woman with autism and significant learning disabilities (who had capacity to consent to sexual relations but lacked capacity to make decisions on her contact with men), Hayden J provided guidance that 'where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection'.

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."

Patel v Arriva Midlands Ltd (2019) EWHC 1216 (QB)

Capacity and ability to communicate

"Dr Fleminger's assessment was: 'Whether or not he can understand what information he is given and use and weigh this information in the balance to make decision, he is unable to communicate any decision he has made. Whether or not he regains capacity in the future depends on the outcome of his conversion disorder'. I am satisfied on the balance of probabilities that Dr Fleminger's capacity assessment was made on the basis of incorrect information gleaned from the Claimant's presentation and from what he was told by Chirag Patel of the Claimant's disabilities, namely that the Claimant was unable to communicate any decision he has made. ... In addition ... I do accept Dr Schady's opinion [that there is no conversion disorder]. Once again that leaves the Claimant with a presumption of capacity. ... To summarise: (i) The Claimant is presumed to have capacity. (ii) The court finds that the Claimant has been fundamentally dishonest in respect of his claim, and his litigation friend Chirag Patel has participated in this dishonesty. (iii) The entirety of the claim is dismissed, the court being satisfied that no substantial injustice would be caused in so doing. The court assesses damages for the 'honest part' of the claim at £5750."

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."

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."

R v C (2008) EWCA Crim 1155

Capacity to consent to sexual activity

If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.]

R v C (2009) UKHL 42

Sexual consent

For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.

Re A (Capacity: Social Media and Internet Use: Best Interests) (2019) EWCOP 2

Social media and internet use

"I have reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online ‘contact’ is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. ... It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is as follows: (i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know , without you knowing or being able to stop it; (ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below]; (iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below]; (iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly; (v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm; (vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; [see paragraph below]. With regard to the test above, I would like to add the following points to assist in its interpretation and application: ..."

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 B (Capacity: Social Media: Care and Contact) (2019) EWCOP 3

Social media and sexual relations

"By this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss B’s life, including her capacity: (i) To litigate in these proceedings...; (ii) To manage her property and affairs...; (iii) To decide where she resides...; (iv) To decide on her package of care...; (v) To decide with whom she has contact...; (vi) To use the internet and communicate by social media; (specifically, it is agreed that the question is ‘whether Miss B has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others’)...; (vii) To consent to sexual relations... It is clear that the information relevant to the decision in this area includes: (i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act; (ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy; (iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse. (iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections; (v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom."

Re D (A Child): Liverpool City Council v AM (2018) EWCOP 31

Placement for child

"However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance."

Re D: A v B (2020) EWCOP 1

Court of Protection permission

(1) The appropriate threshold for permission under MCA 2005 s50 is the same as that applicable in the field of judicial review: to gain permission the claimant or applicant has to demonstrate a good arguable case. (2) In the current case, the decision to be made was "whether a good arguable case has been shown that it is in [D's] best interests for there to be a full welfare investigation of the current contact arrangements" and the judge's conclusion was: "I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted."

Re FX (2017) EWCOP 36

Capacity - residence, care, contact and finances

"I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions."

Re GED (2019) EWCOP 52

Foreign representative powers

"[T]hree broad issues have been identified: (1) Is a foreign power of attorney capable of constituting a ‘protective measure’? (2) Is there a capacity threshold to the Court’s jurisdiction? (3) Where there is a valid and operable foreign power of attorney in place, is the jurisdiction of the Court of Protection under section 16 of the Mental Capacity Act 2005 limited?"

Re JMK (2018) EWCOP 5

Canadian LPA as protective measure

"The application before the Court is for an order to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether such an instrument amounts to 'a protective measure' for the purposes of Schedule 3."

Re K (Forced Marriage: Passport Order) (2020) EWCA Civ 190

FMPOs and capacity

(1) The Family Court the court has jurisdiction to make a Forced Marriage Protection Order to protect an adult who does not lack mental capacity (and the statistics demonstrate that the courts regularly make FMPOs to protect capacitous adults). (2) An open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely.

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."

Re M: AB v HT (2018) EWCOP 2

Declaration of non-marriage in English law

"These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M's father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her capacity, and orders made following my findings."

Re P (Sexual Relations and Contraception): A Local Authority v P (2018) EWCOP 10

Sex and covert contraception

"This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." ... Given the serious infringement of rights involved in the covert insertion of a contraceptive device, it is in my judgement highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of best interests, with P having the benefit of legal representation and independent expert advice.

Re SW (No 2) (2017) EWCOP 30

Vexatious COP application

"This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place."

Re Z (2019) EWCOP 55

Disclosure of documents

"This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making of the [court's] order."

Royal Borough of Greenwich v CDM (2018) EWCOP 15

Fluctuating capacity

"In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider 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.

SR v A Local Authority (2018) EWCOP 36

Contact

"At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary."

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.

WB v W District Council (2018) EWCA Civ 928

Homelessness

"This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996. ... The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need..."

Z v Kent County Council (2018) EWFC B65

Family Court considering MCA

This family court case - subtitled 'Revocation of placement order - Failure to assess Mother's capacity and Grandparents' - has a detailed consideration of the MCA 2005. Extract: "The law - capacity, presumption of capacity and determining protected party status. This issue is governed primarily by the Family Procedure Rules 2010 Part 15 and Practice Directions 15A and 15B, and by the Mental Capacity Act 2005. Additionally, there is guidance provided by the Department for Children, Schools and Families’ publication 'The Children Act 1989 Guidance and Regulations', and in April 2010 the Family Justice Council published guidance for proceedings and pre-proceedings called 'Parents who Lack Capacity to Conduct Public Law Proceedings' [updated in April 2018]."

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