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Date added
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Categories
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| * RROs in end-of-life proceedings Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 — "These appeals concern the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order ("RRO") made long before in end-of-life proceedings in the High Court. ... The orders made in these cases provide for the indefinite continuation of injunctions against the world prohibiting publication of the names of a small number of clinicians in the Abbasi case and a wide range of health service staff in the Haastrup case. The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to "tell their story" outweigh such article 8 rights of clinicians and staff as may still be in play, long after the RROs were made in the respective end-of-life proceedings. The wider systemic concerns which affect the operation of the NHS laid before the court by representative bodies cannot justify the creation of a practice, not anchored to the specific circumstances of the case, of granting indefinite anonymity to those involved in end-of-life proceedings. Such a step is one that is controversial and intensely political and suitable for Parliament rather than the courts."
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2023‑06‑26 20:18:36
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2023 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Reporting restriction order cases, Judgment available on Bailii, 2023 cases
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| * Immigration FXJ v SSHD [2022] EWHC 1531 (QB) — "The principal issue in this appeal is whether the Respondent owes a duty of care in tort to the Appellant in circumstances where a delay before withdrawing an appeal against a decision as to immigration status had exacerbated the Appellant's mental health condition thereby leading to his hospitalisation."
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2023‑03‑17 11:28:05
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2022 cases
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| * Article 2 inquest R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410 — The coroner was right to conclude that the patient's circumstances did not give rise to an operational duty under Article 2 upon the Trust to protect her from the risk of accidental death from the use of recreational drugs, and therefore was right to conclude that the parasitic procedural duty to hold a Middleton inquest did not arise. There was no error in the Divisional Court upholding that decision, and the appeal was dismissed.
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2022‑10‑29 20:01:39
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2022 cases, Cases, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Participation - anonymity - transparency order Re EM [2022] EWCOP 31 — This judgment considered participation by the protected person, anonymity, and the correctness of the standard transparency order. (1) The fundamental rule is that, where an application is made which seeks the deprivation of the protected person's liberty, he must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for him, with the only exception being where an interim order is very urgently needed and there is just not enough time to secure his representation before the hearing (but at the hearing his representation at future hearings must be enabled). An unjustified failure by the court to secure such representation when making a non-urgent deprivation of liberty order will very likely render the order unlawful. (2) The anonymisation of orders (as opposed to published judgments) should cease. (3) The transparency order in this case may have been technically unsound for two separate reasons (which are both condoned by r4 COPR and PD4C): (a) it was made in the absence of a Re S-type balancing exercise, weighing the Article 8 ECHR rights of EM with the Article 10 ECHR rights of the public at large, exercised via the press; and (b) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRA 1998.
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2022‑10‑27 20:44:44
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Reporting restriction order cases, Judgment available on Bailii, 2022 cases
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| * Admissibility of foreign conviction Re W-A [2022] EWCA Civ 1118 — A paedophile argued that his conviction in Spain was inadmissible in English care proceedings. The judge noted that, while this was a public law case under Part IV Children Act 1989, the same issues may arise in a private law case under Part I, or the inherent jurisdiction relating to children, or a MCA 2005 welfare case. The Court of Appeal concluded that: (1) the rule in Hollington v Hewthorn [1943] 1 KB 587 (which, unless distinguished, would render the conviction inadmissible) did not apply, as it would be incompatible with the welfare-based and protective character of family proceedings; (2) in family proceedings all relevant evidence is admissible; and (3) a previous finding or conviction stands as presumptive proof of the underlying facts, but it is open to a party to establish on a balance of probability that it should not be relied upon.
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2022‑08‑12 20:12:55
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Funding holidays R (BG) v Suffolk County Council [2022] EWCA Civ 1047 — The council had decided no longer to fund the family holidays of BG and KG (who have autism and learning disability) on the basis that it was no longer including holiday travel and accommodation costs in personal budgets. The High Court quashed this decision, holding that the council had the power to provide financial support for recreational activity and holidays under section 18 Care Act 2014, and ordered a fresh needs assessment. The council appealed but was unsuccessful.
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2022‑08‑04 20:28:17
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2022 cases, Cases, Community care, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2022 cases
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| * Drunkenness Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 — "The appeal in this very sad case raises a short but interesting point of law about whether a claimant can rely on his own drunkenness, and consequential lack of insight, either to avoid a finding of contributory negligence or to reduce the apportionment of responsibility for his contributory negligence."
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2022‑07‑27 22:08:10
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Testamentary capacity and solicitor's role Hughes v Pritchard [2022] EWCA Civ 386 — "This appeal raises some important issues about the proper weight to be given to the drafting solicitor's evidence and a medical practitioner's assessment of a testator's testamentary capacity and the tasks which they need to undertake."
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2022‑07‑16 10:17:26
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Testamentary capacity cases, Judgment available on Bailii, 2022 cases
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| * Injunctions A NHS Foundation Trust v G [2022] EWCOP 25 — G, now 27 years old, had been in a children's hospital since the age of 13. A previous judgment had decided that she should be transferred to a care home prior to any return home, but her father had sabotaged that placement. The Trust sought injunctive relief against G's father, mother and grandmother, in order to put in place clear boundaries to manage their behaviour. The family argued unsuccessfully that the s16(5) MCA 2005 power to make further "necessary or expedient" orders applied only in the context of the appointment of deputies, that s47(1) MCA 2005 (and therefore s37(1) Supreme Court Act 1981) is not apt to cover restricting behaviours in the context of either a hospital or care home, and that little or no weight should be afforded to the hearsay evidence of anonymous nurses about the father's behaviour. The court granted the relief sought.
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2022‑06‑25 21:52:35
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * DLA in hospital MOC v SSWP [2022] EWCA Civ 1 — The rule providing that payment of Disability Living Allowance to an adult is suspended after 28 days in an NHS hospital (the aim being to prevent duplication of public funding to meet the same purpose) did not breach the patient's rights under Article 14 read with A1P1 ECHR. The Court of Appeal also discussed the relevance of capacity to identifying a status for Article 14 purposes.
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2022‑04‑13 07:11:57
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Welfare benefits cases, Judgment available on Bailii, 2022 cases
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| * M'Naghten Rules and choice R v Keal [2022] EWCA Crim 341 — (1) In order to establish the defence of insanity within the M'Naghten Rules on the ground of not knowing the act was "wrong", the defendant must establish both that (a) he did not know that his act was unlawful (i.e. contrary to law) and (b) he did not know that his act was "morally" wrong (also expressed as wrong "by the standards of ordinary people"). "Wrong" means both against the law and wrong by the standards of ordinary reasonable people. (2) Under the M'Naghten Rules, the defence of insanity is not available to a defendant who, although he knew what he was doing was wrong, believed that he had no choice but to commit the act in question. (3) The current law on insanity cannot be interpreted as involving an element of "choice", as significant changes to an aspect of our criminal law that has remained undisturbed for so long, laden with policy choices as they would be, are more properly for Parliament. (4) The judge's direction of law in the present case was appropriate and the convictions are safe.
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2022‑03‑19 20:53:23
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2022 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unfitness and insanity cases, Judgment available on Bailii, 2022 cases
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| * Inquest and care order R (Boyce) v HM Senior Coroner for Teesside and Hartlepool [2022] EWHC 107 (Admin) — (1) There was no procedural obligation to hold an Article 2 Middleton inquest into the death of the child who was under a care order in a residential children's home, as she was not in state detention: the difference between a child deprived of liberty in secure accommodation, and a child in care who is free to come and go (notwithstanding that if she simply left police would have been called to return her) and for whom there was no suggestion of secure accommodation, is of substance not merely of form. Obiter, even if the child had been detained it would not have been pursuant to any action by the state given the private nature of the accommodation. (2) The coroner was not wrong to conclude that on the available material there was no arguable breach of the Article 2 general/systems duty. (3) The argument that the coroner had been wrong to hold that the only material effect of the inquest not being an Article 2 inquest would be on the conclusions that might be returned, rather than upon the scope of the inquest, was also unsuccessful.
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2022‑02‑10 21:37:28
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2022 cases, Cases, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Ordinary residence and s117 R (Worcestershire County Council) v SSHSC [2021] EWCA Civ 1957 — JG was detained under s3 in Worcestershire (Area 1), discharged to residential care in Swindon (Area 2), detained again under s3 in Swindon and discharged again. The Court of Appeal held that: (1) Area 1's duty subsists until it comes to an end by a s117(2) decision that the patient "is no longer in need" of aftercare services (ordinary residence in area 2 when subsequently detained makes no difference); there had been no such decision so the duty continued throughout both the second period of detention and beyond. (2) Obiter, by the ordinary meaning of "ordinarily resident" and under the Shah test JG was ordinarily resident in Swindon immediately before the second detention, and there was nothing in subsequent caselaw (including Cornwall) or the Care Act 2014 amendments (including the change from "resident" to "ordinarily resident") justifying a different conclusion.
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2022‑01‑12 11:37:52
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2021 cases, After-care, Cases, Community care, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Relevance of DOL Practice Guidance Re CK: Derby CC v BA [2021] EWHC 2931 (Fam) — "[W]hilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law."
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2021‑11‑04 22:08:14
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2021 cases, Cases, Deprivation of liberty - children, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, 2021 cases, Judgment available on Bailii
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| * Habitual residence and inherent jurisdiction AB v XS [2021] EWCOP 57 — The judge set out the three issues in the case as: (a) whether XS is habitually resident in England and therefore the Court of Protection retains jurisdiction; (b) whether the High Court can make an order for XS to return to the UK under the inherent jurisdiction; and (c) whether it is in XS's best interests to be brought back to the UK. It was decided that XS was habitually resident in Lebanon, so there was no power under the MCA to make a return order; that to make such order under the inherent jurisdiction would inappropriately cut across the statutory scheme for no principled reason; and that in any event it was in XS's best interests to remain in Lebanon.
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2021‑11‑02 21:02:56
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2021 cases, Best interests, Cases, Foreign protective measure cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2021 cases
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| * Prostitution Secretary of State for Justice v A Local Authority [2021] EWCA Civ 1527 — The words "causes or incites" found in s39 Sexual Offences Act 2003 carry their ordinary meaning, and care workers implementing a care plan facilitating contact between a person with mental disorder and a prostitute would clearly be at risk of committing a criminal offence. Section 39 does not interfere with an Article 8 right (and would be justified if it did), and the discrimination involved (compared with someone whose physical disability prevented him from making the practical arrangements) is justified under Article 14. The court noted situations where facilitating contact might not fall foul of s39, such as where a person with dementia wishes to spend time at home with a spouse, or a young person wishes to meet people of his own age and make friends.
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2021‑10‑25 21:16:32
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021 cases
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| * No Article 2 inquest for voluntary patient R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin) — The issue in this case was whether there was a duty to hold a Middleton inquest (an inquest which fulfils the enhanced investigative duty required by Article 2) following the death of a voluntary in-patient of a psychiatric rehabilitation unit due to an overdose of recreational drugs when she was at home in the community.
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2021‑10‑19 21:00:56
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2021 cases, Cases, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Inherent jurisdiction and money FS v RS and JS [2020] EWFC 63 — The 41-year-old applicant sought financial relief against his parents (who had reduced their financial support) pursuant to s27 Matrimonial Causes Act 1973, sch 1 Children Act 1989 and "that branch of the recently rediscovered inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are 'vulnerable'". His argument on the inherent jurisdiction failed: (a) his claim lay far outside its accepted parameters; (b) it cannot be used to compel an unwilling third party to provide money or services; (c) it is ousted by any relevant statutory scheme.
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2021‑09‑20 09:51:32
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2020 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Competence/capacity and puberty blockers Bell v Tavistock And Portman NHS Foundation Trust [2021] EWCA Civ 1363 — The Court of Appeal decided that the High Court should not have: (a) made a declaration about the relevant information that a child under 16 would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers; or (b) given its guidance on likely Gillick competence to give consent and, in relation to children and young people, on court involvement. The Court concluded that "applications to the court may well be appropriate in specific difficult cases, but it was not appropriate to give guidance as to when such circumstances might arise".
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2021‑09‑17 20:05:36
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Inherent jurisdiction and unauthorised placements Re T (A Child) [2021] UKSC 35 — Where a child or young person meets the s25 Children Act 1989 secure accommodation order criteria but the local authority proposes to place him in an unregulated placement (either because no regulated placement is available or because his needs would be better met elsewhere) the inherent jurisdiction of the High Court may authorise his deprivation of liberty at the unregulated placement. This is despite it being a criminal offence under s11 Care Standards Act 2000 to carry on or manage a children's home without being registered.
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2021‑09‑16 20:14:15
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2021 cases, Cases, Deprivation of liberty - children, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2021 cases
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| * DOL of under 16s in unlawful placements Tameside MBC v AM [2021] EWHC 2472 (Fam) — The Care Planning, Placement and Case Review (England) Regulations 2010 make unlawful the placement of a looked-after child under the age of 16 in unregulated accommodation, but the High Court decided that its inherent jurisdiction can still authorise deprivation of liberty in that accommodation.
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2021‑09‑11 20:30:23
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2021 cases, Cases, Deprivation of liberty - children, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2021 cases
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| * Subject-matter and litigation capacity An NHS Trust v P [2021] EWCOP 27 — P's psychiatrist initially stated that P lacked subject matter capacity (whether to take HIV medication) yet had litigation capacity. (1) The judge: (a) disagreed with the proposition that if a person lacks capacity to conduct proceedings as a litigant in person she might, nevertheless, have capacity to instruct lawyers to represent her and that the latter capacity might constitute capacity to conduct the litigation in question; (b) thought it virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter (it would be as rare as a white leopard). (2) On the facts, P lacked both subject matter capacity and litigation capacity.
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2021‑05‑01 21:10:06
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Prostitution A Local Authority v C [2021] EWCOP 25 — C had capacity to engage in sexual relations and to decide whether to have contact with a prostitute, but lacked capacity in relation to conducting proceedings, residence, care and treatment, internet and social media, and financial affairs. The Court of Protection decided that a care plan to facilitate C's contact with a prostitute could be implemented without committing an offence under s39 Sexual Offences Act 2003 (Care workers: causing or inciting sexual activity).
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2021‑04‑30 08:21:30
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021 cases
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| * Discharge of party AA v London Borough of Southwark [2021] EWCA Civ 512 — Following concerns that if P's mother, AA, were to receive certain information then P would suffer serious harm, the Court of Protection discharged AA as a party without notice, without disclosure of any evidence, without any opportunity to make representations, and without giving any reasons for the decision. The Court of Appeal allowed her appeal, reinstating her as a party, but directed that no further evidence or information be served on her for 28 days to allow the respondents time to decide what course to follow. For part of the hearing AA was represented by a special advocate in a closed session, the first time the Civil Division of the Court of Appeal had adopted that procedure.
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2021‑04‑23 20:47:59
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Capacity and sexual relations A Local Authority v JB [2019] EWCOP 39 — "Distilled to its essence, the question which it is said remains unanswered is this: does the "information relevant to the decision" within section 3(1) of the Mental Capacity Act 2005 include the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity?"
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2021‑04‑14 20:54:03
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Discharge from long s17 leave DB v Betsi Cadwaladr University Health Board [2021] UKUT 53 (AAC) — (1) For it to remain "appropriate for [a patient] to be liable to be detained in a hospital for medical treatment" a significant component of his treatment must be in hospital. Liability to detention is not a fallback when other options (e.g. CTO, conditional discharge, MCA) are unsuitable or unavailable: if the statutory conditions for (liability to) detention are not met, the tribunal must direct discharge. (2) The patient in this case had been on s17 leave for 11 months without any contact with any hospital. The tribunal should have analysed the components of his treatment, as broadly defined in s145, then decided the extent to which they were being delivered in hospital, but had failed to do so. (3) The case was remitted to the MHRT for Wales.
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2021‑04‑07 19:21:21
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Section 17 leave cases, Judgment available on Bailii, 2021 cases
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| * Medical treatment and children Re X (A Child) (No 2): An NHS Trust v X [2021] EWHC 65 (Fam) — The applicant, a Jehovah's Witness child refusing blood transfusions, unsuccessfully challenged the conventional wisdom that the court can in an appropriate case overrule the consent or refusal of medical or surgical treatment given by a person who has not yet reached the age of 18.
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2021‑02‑07 23:19:58
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2021 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2021 cases
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| * "Personally seen" and "personally examined" require physical presence Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin) — In this case the Trust sought declarations that the s12 requirement that a medical practitioner must have "personally examined" a patient before completing a medical recommendation and the s11 requirement that an AMHP must have "personally seen" the patient before making an application (both requirements being in relation to s2, 3, 4 and 7) could be met by remote means, as suggested in NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20). (1) The High Court agreed to give an advisory opinion on statutory construction in this exceptional case, as there was a real (not hypothetical or academic) question, the Trust had a real interest in it, and the court had heard proper argument. (2) The High Court decided that both phrases require the physical attendance of the person in question on the patient, because of the following six considerations: (a) in this country, powers to deprive people of their liberty are generally exercised by judges and where, exceptionally, statute authorises administrative detention the powers are to be construed particularly strictly; (b) splitting up the compound phrases into individual words fails to capture their true import as understood when enacted; (c) Parliament understood the medical examination as necessarily involving physical presence (confirmed by the word "visiting" used elsewhere, and the fact that psychiatric assessment may involve a multi-sensory assessment); (d) it is not appropriate to apply an "updating construction", as the words were intended to be restrictive and circumscribed, and when enacted were understood as connoting physical presence; (e) medical examinations should ideally be carried out face-to-face (the Code of Practice and guidance both state this is preferable), and it is for Parliament to weigh up the competing interests (namely the need to ensure that administrative deprivations of liberty are properly founded on objective evidence and the need to maintain the system of MHA detention given the exigencies of the pandemic); (f) interpretation by the court would be applicable immediately and may remain in force for some time after the end of the current pandemic, but modification by Parliament could involve ongoing judgement on whether to bring them into force and whether to make them time limited.
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2021‑01‑23 22:35:32
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2021 cases, Cases, Coronavirus cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2021 cases
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| * Hybrid order or restricted hospital order R v Nelson [2020] EWCA Crim 1615 — The Court of Appeal considered the differences between a hybrid order (s45A) and a restricted hospital order (s37/41), the guidance from caselaw and the Sentencing Council's Guideline on "Sentencing offenders with mental disorders, developmental disorders or neurological impairment" which came into effect on 1/10/20.
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2020‑12‑03 22:27:05
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2020 cases, Cases, Hybrid order cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Competence/capacity and puberty blockers Bell v Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) — (1) The relevant information that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers, would be as follows: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking puberty blockers go on to cross-sex hormones and therefore that he or she is on a pathway to much greater medical interventions; (iii) the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery; (iv) the fact that cross-sex hormones may well lead to a loss of fertility; (v) the impact of cross-sex hormones on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain. (2) Gillick competence is treatment- and person-specific but the court gave clear guidance that it is highly unlikely that a child aged 13 or under, and very doubtful that a child aged 14 or 15, would ever be Gillick competent to give consent to being treated with puberty blockers. (3) There is a presumption that young people aged 16 or over have capacity to consent but, given the long-term and potentially irreversible consequences and the experimental nature of the treatment, clinicians may well consider that it is not appropriate to move to treatment such as puberty blockers or cross-sex hormones without the involvement of the court, and it would be appropriate to involve the court when there may be any doubt about long-term best interests.
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2020‑12‑03 22:16:30
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Expert evidence guidance AMDC v AG [2020] EWCOP 58 — The court was critical of the jointly-instructed psychiatric reports in this case and provided detailed guidance on how experts' reports on capacity can best assist the court.
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2020‑11‑21 23:29:52
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Ex turpi causa Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43 — The respondent admitted negligently failing to return the appellant to hospital on the basis of her manifest psychotic state, which led to her stabbing her mother to death. The Supreme Court held that the previous case of Gray v Thames Trains Ltd [2009] UKHL 33M could not be distinguished, and should not be departed from, and that therefore the claim was barred by the doctrine of ex turpi causa non oritur actio (illegality).
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2020‑11‑09 12:05:39
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Ex turpi causa Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841 — "This is an appeal from the order dated 19 December 2016 of Jay J in which he held, on the trial of a preliminary issue, that claims in the common law tort of negligence brought by Ms Ecila Henderson, the appellant, against Dorset Healthcare University NHS Foundation Trust, the respondent, were barred by the doctrine of illegality. "
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2020‑11‑09 11:32:51
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Inherent jurisdiction - dispensing with service A Local Authority v B [2020] EWHC 2741 (Fam) — It was proper to dispense with service of proceedings on B's father in relation to inherent jurisdiction proceedings seeking a declaration authorising the deprivation of B's liberty at a community therapeutic placement following discharge from section 2 detention in hospital.
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2020‑10‑29 22:26:17
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2020 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Inherent jurisdiction Mazhar v Birmingham Community Healthcare Foundation NHS Trust [2020] EWCA Civ 1377 — Mr Mazhar was removed from his home to hospital without warning by police and paramedics in the middle of the night under the High Court's inherent jurisdiction on the basis of an out-of-hours application. (1) The Trust's application for, and the granting of, the order for which there was no proper evidence and without giving Mr Mazhar the opportunity to be heard amounted to a clear breach of his Article 6 rights and was a flagrant denial of justice. (2) It was unnecessary to decide whether the inherent jurisdiction extends to the making of an order that has the effect of depriving a vulnerable adult of liberty provided the provisions of Article 5 are met. (3) The President of Family Division was invited to consider whether fresh guidance should be given to practitioners and judges about applications of this sort, and the court set out a list of seven clear lessons to be learnt.
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2020‑10‑29 21:49:16
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2020 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Capacity to make tribunal application SM v Livewell Southwest CIC [2020] UKUT 191 (AAC) — (1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including: (a) if a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any procedural obligations, proceed to hear the case; (b) anyone can request that the Secretary of State make a reference, including when a patient lacks capacity and wishes to leave hospital: this includes not only the hospital managers and IMHA, but also the tribunal itself, which could adjourn for this purpose instead of immediately striking out the case.
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2020‑07‑10 23:49:01
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, MHT capacity cases, Pages using DynamicPageList3 parser function, Upper Tribunal decisions, Judgment available on Bailii, 2020 cases
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| * Serious medical treatment guidance Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2 — "This practice guidance sets out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the Court of Protection. The procedure is currently being reviewed within the revised MCA Code. That will, in due course, be subject to public consultation and Parliamentary scrutiny. This guidance is intended to operate until such time as it is superseded by the revised Code."
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2020‑07‑03 10:25:21
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Court of Protection permission Re D: A v B [2020] EWCOP 1 — (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."
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2020‑07‑03 10:10:38
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Inquest and DOLS R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738 — "The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with section 5(2) of the Coroners and Justice Act 2009. ... Jackie was subject to a standard authorisation granted by Blackpool Council pursuant to the Deprivation of Liberty Safeguards set out in Schedule A1 to the Mental Capacity Act 2005. ... Jackie's circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family. She was not there for medical treatment. If she needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care."
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2020‑06‑11 20:53:44
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2020 cases, Cases, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Capacity and sexual relations A Local Authority v JB [2020] EWCA Civ 735 — "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."
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2020‑06‑11 20:43:02
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2020 cases
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| * Access to records of deceased patient Re AB [2020] EWHC 691 (Fam) — The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative.
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2020‑04‑28 19:20:43
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Medical records cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Secure accommodation and inherent jurisdiction A City Council v LS [2019] EWHC 1384 (Fam) — "Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is 'no'."
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2020‑04‑02 15:08:26
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2019 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Overlap between different decisions, sex B v A Local Authority [2019] EWCA Civ 913 — (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.
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2020‑04‑02 13:29:07
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Lay advocates in public law family proceedings Re C (Lay Advocates) [2019] EWHC 3738 (Fam) — "In my judgment that there is no material difference between the services provided by an interpreter, an intermediary or a lay advocate insofar as they each enable and support parties and witnesses to communicate and understand these proceedings. HMCTS routinely pay for the services of interpreters and intermediaries, I cannot see any principled reason why it should not also pay for the services of lay advocates in an appropriate case. ... Accordingly, I will appoint a lay advocate for the mother and a lay advocate for the father. They cost £30 per hour which I consider to be entirely reasonable. I have assessed the likely number of hours of work on this for the lay advocates to be 50 hours."
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2020‑03‑13 22:08:53
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Sentencing and mental health R v PS [2019] EWCA Crim 2286 — "These three cases, otherwise unconnected, raise issues about proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders."
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2020‑03‑03 09:13:41
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sentence appeal cases, Judgment missing from Bailii, 2019 cases
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| * Abortion Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215 — "The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes. ... [I]n my judgement, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy."
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2020‑02‑25 11:10:15
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * FMPOs and capacity Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 — (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.
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2020‑02‑22 23:33:05
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2020 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2020 cases
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| * DOL and common law R (Jalloh) v SSHD [2020] UKSC 4 — "The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights. A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR."
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2020‑02‑19 23:01:08
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2020 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * ECHR and subordinate legislation RR v SSWP [2019] UKSC 52 — (1) There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act 1998. (2) On the facts of this case, the public authority should disobey Regulation B13 of the Housing Benefit Regulations 2006 and retrospectively apply the Supreme Court's decision in R (Carmichael) v SSWP [2016] UKSC 58B that the "bedroom tax" was an unjustified discrimination on the ground of disability where there was a transparent medical need for an additional bedroom.
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2020‑02‑10 21:24:00
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Immigration tribunal - fair hearing, litigation friends AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 — In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached."
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2019‑07‑26 20:29:51
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * Nominal damages (Barrymore) Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 — "In the early hours of 31 March 2001, Michael Parker (a celebrity entertainer who is better known by his stage name, Michael Barrymore) returned to his home with eight guests. ... In relation to Mr Parker, that arrest was to be effected by Det. Con. Susan Jenkins who had played a central role in the re-investigation and was well aware of the evidence: she believed she had reasonable grounds both to suspect Mr Parker of committing an offence and to conclude that it was necessary to effect his arrest. In the event, she was detained in traffic and a surveillance officer (P.C. Cootes) was ordered to effect the arrest, which he did. ... For these reasons, I would conclude that Stuart-Smith J was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, however, I have no doubt that had things been done as they should have been done (to quote Baroness Hale in Kambadzi), a lawful arrest would have been effected. Thus, I would allow this appeal and, in answer to the issue posed by the Master, declare that Mr Parker is entitled to nominal damages only."
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2019‑04‑30 23:10:30
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unlawful detention cases, Judgment missing from Bailii, 2018 cases
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| * Whether child had "sufficient understanding" to conduct appeal without Guardian CS v SBH [2019] EWHC 634 (Fam) — "Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm."
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2019‑03‑19 22:00:58
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2019 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * False imprisonment and damages R (Jollah) v SSHD [2018] EWCA Civ 1260 — "The context is one of immigration detention. The claimant, who is the respondent to this appeal (and who for present purposes I will call "IJ"), was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. Such curfew was imposed by those acting on behalf of the appellant Secretary of State purportedly pursuant to the provisions of paragraph 2 (5) of Schedule 3 to the Immigration Act 1971 (as it then stood). It has, however, been accepted in these proceedings that, in the light of subsequent Court of Appeal authority, there was no power to impose a curfew under those provisions. Consequently, the curfew was unlawfully imposed. The question arising is whether IJ is entitled to damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The trial judge, Lewis J, decided that he was. Having so decided, the judge at a subsequent hearing assessed the damages at £4,000: [2017] EWHC 330 (Admin)B; [2017] EWHC 2821 (Admin)B. The Secretary of State now appeals, with leave granted by the judge, against the decision that IJ was entitled to damages for false imprisonment. IJ cross-appeals, with leave granted by Singh LJ, against the amount of the award of damages. It is said on behalf of IJ that a much greater award should have been made."
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2019‑01‑29 14:44:09
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unlawful detention cases, Judgment available on Bailii, 2018 cases
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| * Infanticide wrongly withdrawn from jury R v Tunstill [2018] EWCA Crim 1696 — "This was a case where the child was killed soon after birth so that this case can be distinguished from the situation where mental ill health, usually post-partum psychosis, develops over a period of time. Nonetheless, there was evidence from Dr Bashir and Dr Khisty which showed that notwithstanding the existence of the appellant's pre-birth mental disorder, the effects of giving birth had led to a further condition, characterised by Dr Bashir as an acute stress reaction which was a causative factor in disturbing the balance of the appellant's mind. The issue of causation is a matter of fact for a jury after appropriate direction from a judge as to what can constitute a legally effective cause. For the reasons given, we consider that the effects of birth are not required by s.1(1) to be the sole cause of a disturbance of balance of the mind. In the circumstances, we are persuaded that the judge should not have withdrawn infanticide from the jury. There was evidence fit for the jury's consideration. It is not for this court to assess the likelihood of its success. Dr Barlow's evidence was to the contrary, but the issue for us is whether a jury should have had this alternative option to consider. We think it should have had that opportunity. In the circumstances, therefore, the conviction for murder is unsafe and the verdict is quashed. In our judgment, the interests of justice require a re-trial and we so order."
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2019‑01‑21 14:51:33
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Intervention costs statutory demands John Blavo v Law Society [2018] EWCA Civ 2250 — The Law Society successfully appealed against a decision to set aside two statutory demands (of £151,816.27 and £643,489.20) which had been served on John Blavo in relation to costs incurred in respect of the intervention into his practice.
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2019‑01‑01 17:01:07
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2018 cases, Brief summary, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii, 2018 cases
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| * 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.
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2018‑12‑20 14:51:52
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2018 cases, After-care, Brief summary, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii, 2018 cases
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| * Inherent jurisdiction authorises DOL during conditional discharge Re AB (Inherent Jurisdiction: Deprivation of Liberty) [2018] EWHC 3103 (Fam) — AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty. The High Court extended the inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty (firstly, it was clear that there was no legislative provision governing this situation in that the Mental Health Act provided no remedy; secondly, it was in the interests of justice; and, thirdly, there were sound and strong public policy justifications). The court order: authorised the deprivation of liberty for 12 months; required the applicant to apply to court if the restrictions increase, and no less than one month before the expiry of the authorisation; and provided for a review on the papers unless a party requests or the court requires an oral hearing.
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2018‑12‑19 01:55:42
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2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript, 2018 cases, Judgment available on Bailii
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| * s44 and EPA 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."
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2018‑12‑10 22:06:13
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2018 cases, Cases, EPA cases - revocation and suitability, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * SSJ v MM [2018] UKSC 60 — The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient.
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2018‑11‑28 13:49:47
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2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Transcript, Judgment available on Bailii
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| * LPA wording - euthanasia and multiple attorneys Public Guardian v DA [2018] EWCOP 26 — "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."
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2018‑10‑15 20:03:20
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2018 cases, 39 Essex Chambers summary, Cases, E89, ICLR summary, Judgment available on Bailii, Other LPA cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Intoxication R v Taj [2018] EWCA Crim 1743 — (1) Appeal against conviction: "The defence sought to rely on self-defence as codified in s76 Criminal Justice and Immigration Act 2008 noting, in particular, s76(4)(b) which makes it clear that the defence is available even if the defendant is mistaken as to the circumstances as he genuinely believed them to be whether or not the mistake was a reasonable one for him to have made. Although s76(5) provides that a defendant is not entitled to rely upon any mistaken belief attributable to intoxication that was voluntarily induced, it was argued that as there was no suggestion that Taj had alcohol or drugs present in his system at the time, he was not 'intoxicated' and so was not deprived of the defence. It was also submitted that R v McGee, R v Harris, R v Coley [2013] EWCA Crim 223 supported the proposition that to be in a state of 'voluntarily intoxication' there had to be alcohol or drugs active in the system at the time of the offence. ... In our view, the words "attributable to intoxication" in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia. This is consistent with common law principles. We repeat that this conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse. In the circumstances, we agree with Judge Dodgson, that the phrase "attributable to intoxication" is not confined to cases in which alcohol or drugs are still present in a defendant's system. It is unnecessary for us to consider whether this analysis affects the decision in Harris: it is sufficient to underline that the potential significance of voluntary intoxication in the two cases differs." The appeal against conviction was dismissed. (2) The application for leave to appeal against sentence was refused.
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2018‑08‑08 20:56:57
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Pages using DynamicPageList3 parser function, Sentence appeal cases, Judgment missing from Bailii, 2018 cases
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| * Court order not always necessary for withdrawal of CANH NHS Trust v Y [2018] UKSC 46 — "The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. ... In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases."
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2018‑07‑31 21:46:38
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Statutory demands set aside John Blavo v Law Society [2017] EWHC 561 (Ch) — "In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums."
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2018‑07‑11 12:23:54
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, SRA decisions, Judgment missing from Bailii, 2017 cases
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| * Inherent jurisdiction Mazhar v Lord Chancellor [2017] EWHC 2536 (Fam) — "This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar. ... Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law. ... The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal."
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2018‑05‑22 20:51:22
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2017 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| * Homelessness WB v W District Council [2018] EWCA Civ 928 — "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..."
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2018‑04‑27 20:10:34
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Guidance on sentencing on appeal R v Thompson [2018] EWCA Crim 639 — "These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983."
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2018‑04‑09 23:01:37
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Sentence appeal cases, Transcript, Judgment missing from Bailii, 2018 cases
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| * Litigation friend under employment tribunal rules Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17 — Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong."
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2018‑03‑28 22:58:54
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Powers, Judgment available on Bailii, 2017 cases
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| * Variation of Trusts Act ET v JP [2018] EWHC 685 (Ch) — "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."
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2018‑03‑28 21:47:31
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Withdrawal of CANH M v A Hospital [2017] EWCOP 19 — "This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs [2017] EWCA Civ 1169B, it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her."
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2018‑02‑16 23:28:05
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Costs against Parole Board R (Gourlay) v Parole Board [2017] EWCA Civ 1003 — "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?"
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2018‑02‑13 01:41:11
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Prison law cases, Judgment available on Bailii, 2017 cases
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| * Role of COP Visitor in DOL cases Re KT [2018] EWCOP 1 — "These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements."
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2018‑02‑05 23:03:08
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2018 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Insanity Loake v CPS [2017] EWHC 2855 (Admin) — "For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity."
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2018‑02‑04 16:28:33
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unfitness and insanity cases, Judgment available on Bailii, 2017 cases
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| * Immigration detention R (VC) v SSHD [2018] EWCA Civ 57 — "There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention."
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2018‑02‑02 23:41:30
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2018 cases
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| * Hospital pocket money R (Mitocariu) v Central and North West London NHS Foundation Trust [2018] EWHC 126 (Admin) — Two hospital order patients contended that if for any reason they were not in receipt of benefits then the trust should provide regular payments to ensure their dignity was maintained whilst in care. (1) The trust did have a power, arising from s43 NHS Act 2006 (which identified the functions of foundation trusts), and either s46 or s47 (which provided sufficiently general powers), to make payments to patients. Any contract with NHS England purporting to restrict the statutory power would be ultra vires. Similarly, any payment outside the s43 purposes (namely, the provision of services to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health) would be ultra vires. (2) The amount, timing and frequency of payments was a matter for the discretion of the Defendant, taking into account all relevant factors, including the specific therapeutic requirements of the patient. (3) A standardised approach of making regular payments irrespective of and unrelated to the therapeutic needs of the patient, as sought by the Claimants, would be outside the powers granted to a foundation trust. (4) On the facts, the Defendant had lawfully exercised its power: the financial circumstances of the patients were regularly considered and addressed appropriately (e.g. paying for a winter coat and travel costs). (5) The absence of a policy did not mean that the Defendant had acted unlawfully.
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2018‑02‑02 00:33:06
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2018 cases, Cases, ICLR summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Welfare benefits cases, Judgment available on Bailii, 2018 cases
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| * Withdrawal of CANH NHS Trust v Y [2017] EWHC 2866 (QB) — "This is a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient's family are agreed that it is not in the patient's best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn."
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2017‑11‑26 01:18:30
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * After-care payments and double recovery Tinsley v Manchester City Council [2017] EWCA Civ 1704 — "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."
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2017‑11‑08 21:55:03
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2017 cases, After-care, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Disposal of Ian Brady's body Oldham MBC v Makin [2017] EWHC 2543 (Ch) — "This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady, one of the infamous Moors murderers."
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2017‑11‑05 23:42:48
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2017 cases
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| * Deportation following hospital order SSHD v KE (Nigeria) [2017] EWCA Civ 1382 — "This is an appeal [which] gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is 'a foreign criminal who has been sentenced to a period of imprisonment of at least four years' for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights to deport him."
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2017‑09‑20 21:35:34
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * Appeal against life sentence R v Kitchener [2017] EWCA Crim 937 — "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."
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2017‑07‑08 19:55:47
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Life sentence cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436 — "[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention."
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2017‑07‑02 23:01:01
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, 2017 cases, Judgment available on Bailii
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| * Scottish smoking ban McCann v State Hospitals Board for Scotland [2017] UKSC 31 — "This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. ... Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. ... [T]he prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. ... [B]ut for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCann’s article 8 right to respect for his private life. ... The article 14 challenge ... fails."
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2017‑06‑15 11:45:10
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * Diminished responsibility: schizophrenia and voluntary intoxication R v Joyce and Kay [2017] EWCA Crim 647 — "These two appeals have been heard together because each involves a consideration of the judgments in R v Stewart [2009] EWCA Crim 593, [2009] 2 Cr App R 30 and AG's ref (no 34 of 2014) sub nom R v Jenkin [2014] EWCA Crim 1394, [2014] MHLO 56, [2014] 2 Cr App R (S) 84. Both appellants suffered from schizophrenia and killed whilst under the influence of alcohol and or drugs."
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2017‑05‑25 23:27:47
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2017 cases, Cases, Diminished responsibility cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sentence appeal cases, Judgment missing from Bailii, 2017 cases
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| * Extradition Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin) — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?"
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2017‑05‑10 12:41:50
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * DOL discharge conditions SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194 — (1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of Article 5 deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme.
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2017‑05‑07 23:52:25
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2017 cases, CTO cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * DOLS funding case R (Liverpool City Council) v SSH [2017] EWHC 986 (Admin) — "By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine."
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2017‑05‑06 23:09:09
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2017 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Transfer to Broadmoor R (YZ) v Oxleas NHS Foundation Trust [2017] EWCA Civ 203 — "This case involves a challenge by way of judicial review to the decision made by a psychiatrist at the Oxleas NHS Foundation Trust (Oxleas), the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital (operated by the second respondent to whom I shall refer to as Broadmoor) and the decision of Broadmoor to accept him. ... He challenged the decision made to transfer him to Broadmoor on the basis that it was unlawful and in breach of his rights under the European Convention on Human Rights. He contended that he should have been transferred to a Medium Secure Unit."
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2017‑04‑29 22:17:07
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2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2017 cases
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| * Best interests and available options N v ACCG [2017] UKSC 22 — "So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'."
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2017‑04‑27 22:59:08
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2017 cases, Best interests, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * Legal representation in criminal trial R v Holloway [2016] EWCA Crim 2175 — The defendant unsuccessfully argued that legal representation should have been imposed on him despite his decision to dispense with his legal representation.
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2017‑02‑08 21:06:39
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2016 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unfitness and insanity cases, Judgment available on Bailii, 2016 cases
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| * HRA time limit AP v Tameside MBC [2017] EWHC 65 (QB) — "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant."
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2017‑02‑02 19:55:25
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2017 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Unlawful detention cases, Judgment available on Bailii, 2017 cases
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| * Inquests and state detention R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a jury. That result would be costly in terms of human and financial resources."
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2017‑01‑26 15:20:11
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2017 cases, Cases, Deprivation of liberty, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2017 cases
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| R v GA [2014] EWCA Crim 299, [2014] MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent. In this particular case, expert evidence was led before the jury on the question of the complainant's capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is 'expert', relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. What is more, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time. Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury's finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations."
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2016‑12‑29 21:08:41
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2014 cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
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| * Ex turpi causa Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3275 (QB) — "On 25th August 2010 Ms Henderson ('the Claimant') stabbed her mother to death. She was suffering from paranoid schizophrenia at the time, and her condition had recently worsened. It is common ground between the parties that this tragic event would not have happened but for the Defendant's breaches of duty in failing to respond in an appropriate way to the Claimant's mental collapse. The Claimant has now brought proceedings in the tort of negligence claiming general damages under various heads, special damages and future losses, and liability has been admitted. The Defendant's position is that all of the claims should be defeated on illegality or public policy grounds, and that binding authority of the Court of Appeal and House of Lords compels that outcome. ... In my view, there are three main questions for me to consider within the agenda circumscribed by the preliminary issue: (1) the correct interpretation of the sentencing remarks of Foskett J [in the Claimant's case], and the extent to which it is permissible, if at all, to go behind them; (2) whether there is binding authority of the Court of Appeal and House of Lords precluding some or all of these claims; and (3) if not, whether the law as accurately enunciated (there remains a dispute between the parties as to what it is) permits, or obviates, the maintenance of some or all of these claims. I frame the questions in this manner because it is the Defendant's submission that I am bound by the decision of the Court of Appeal in Clunis v Camden and Islington HA [1998] QB 978B and that of the House of Lords in Gray v Thames Trains Ltd [2009] 1 AC 1339B. If I were to uphold the Defendant's submission on stare decisis, the parties are agreed that I need not express a view on question (3) above on the hypothetical basis that I might be overruled. If, on the other hand, question (3) does properly arise for decision, the parties are agreed that the case should be listed for further argument on this point. ...I ... refuse to issue a certificate under section 12 of the Administration of Justice Act 1969. I also refuse permission to appeal to the Court of Appeal for the reason indicated under paragraphs 99 and 104 above."
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2016‑12‑27 21:07:36
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2016 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2016 cases
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| * Personal injury settlements OH v Craven [2016] EWHC 3146 (QB), [2016] MHLO 52 — Principles for personal injury trusts.
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2016‑12‑09 21:19:13
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2016 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2016 cases
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| * Contempt of court appeal Devon County Council v Teresa Kirk [2016] EWCA Civ 1221 — "In the circumstances of the present case, where a party was facing the likelihood of a prison sentence for contempt, but where that party, whom the court accepts had genuine and sincere objections to the welfare determination that had been made, had issued an application for permission to appeal that welfare determination, it was simply premature for the judge to press on with the committal application. The absence of an application for a stay of the order, where it is almost certain that a stay would have been granted pending receipt of the transcript of Baker J's judgment [the welfare determination], should not have been taken as justification for proceeding with the committal application. ... I end with a reminder to contemnors and their representatives of the availability of public funding. ... Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. ...The effect of [a Court of Appeal decision] is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings. Because this is criminal public funding, it can be ordered by the court. ... In the same way, criminal public funding is available in this court."
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2016‑12‑06 21:17:17
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2016 cases, Cases, Contempt of court cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2016 cases
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| R (Lee-Hirons) v SSJ [2016] UKSC 46, [2016] MHLO 38 — "A man is convicted of an offence. Satisfied that he is suffering from mental disorder, the court makes an order for his detention in hospital. Satisfied that it is necessary for the protection of the public, the court also makes a restriction order, which removes from the hospital the power to discharge him. In due course a tribunal directs his discharge from hospital on conditions. Afterwards, however, the Secretary of State for Justice (“the Minister”) exercises his power to recall the man to hospital, where he is subject to renewed detention. This appeal is about the explanation for the recall which the law requires the Minister to provide to the man both at the time of his recall and soon afterwards."
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2016‑10‑07 21:15:28
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2016 cases, ICLR summary, Judgment available on Bailii, Ministry of Justice cases, Transcript, Pages using DynamicPageList3 parser function, Judgment available on Bailii
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| * Inherent jurisdiction Re FD [2016] EWHC 2358 (Fam) — "FD is an 18 year old young woman. In July 2016 a local authority issued proceedings seeking an injunction under the inherent jurisdiction of the High Court to prevent AD (her father) and GH (a male friend) from having contact with FD and from going to her home. So far as concerns the application for an injunction against GH, the local authority also seeks a power of arrest. The issue before the court is whether a power of arrest may be attached to an injunction granted by the High Court under its inherent jurisdiction in the case of a vulnerable adult who has capacity. ... It is clear that under its inherent jurisdiction the High Court has a wide and largely unfettered discretion to grant injunctive relief to protect vulnerable adults. That discretionary power is at least as wide as its powers in wardship. In Re G the Court of Appeal was in no doubt that under its inherent jurisdiction in wardship the High Court has no power to attach a power of arrest to an injunction. I am in no doubt that the position is exactly the same so far as concerns the inherent jurisdiction to protect vulnerable adults. ... [I]t appears that FD will again be unrepresented at the next hearing, on 17th October, at which the court will determine whether she is a vulnerable person in respect of whom the court should exercise its inherent protective jurisdiction. FD does not accept that she is a vulnerable adult. Neither does she support the local authority's application for injunctions against AD and GH. If she is not, in fact, a vulnerable adult then the orders sought by the local authority would, if made, be in breach of FD's Article 8 right to respect for her private and family life. I make that point simply to highlight the importance and significance for FD of the decisions the court is being invited to make. At the hearing on 17th October FD will be a litigant in person defending an application by a local authority represented by leading counsel. There will be no equality of arms. However hard the court tries to ensure that there is a level playing field, the reality is that FD will be significantly disadvantaged. I can do no more than to invite the Legal Aid Agency to reconsider its decision as a matter of urgency."
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2016‑10‑01 23:03:14
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2016 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2016 cases
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| * DOL and representation Re JM [2016] EWCOP 15 — "These five cases are examples of cases in which the procedure to be adopted by the Court of Protection (COP) was left open in my judgment in Re NRA [2015] EWCOP 59, [2015] MHLO 66. That judgment contains the references to the decision of the Supreme Court in Cheshire West and Chester Council v P [2014] UKSC 19 and of the President and the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44, which are the essential background to NRA. In short, the five cases were chosen as cases in which it was thought that there was no family member or friend who could be appointed as a Rule 3A representative. That is no longer the position in VE and my reference to the test cases in this judgment are to the remaining four."
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2016‑08‑31 20:40:27
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2016 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2016 cases
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| PJV v Assistant Director Adult Social Care Newcastle City Council [2015] EWCOP 87, [2015] MHLO 138 — "The appeal before me ... relates to the part, if any, that the Court of Protection must play in the finalisation of an award of compensation under the relevant scheme that the Second Respondent (CICA) has decided and the applicant has agreed is to be held on trust."
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2016‑08‑29 20:39:18
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2015 cases, ICLR summary, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| R v Orr [2016] EWCA Crim 889, [2016] MHLO 21 — "The appeal concerns the definition of 'fitness to plead' and the process engaged by the trial judge in the instant trial which proceeded after he found the defendant 'unfit to be cross examined'. ... Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly found that the appellant had been fit to participate in his trial up to the point of cross examination and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the 'Pritchard' refined criteria. In these circumstances, the procedure to be adopted was clearly set out by section Criminal Procedure (Insanity) Act 1964, 4A. We agree with the submission that this is a statutory mandatory requirement which cannot be avoided by the court's general discretion to order proceedings otherwise, however beneficial to the defendant they may appear. It follows that, in this case, the jury should not have been allowed to return a verdict, other than a verdict of acquittal if they were not satisfied on the evidence already given in the trial that the appellant did the act charged against him. The appeal against conviction must be allowed."
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2016‑07‑09 21:55:06
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2016 cases, ICLR summary, Judgment available on Bailii, No summary, Transcript, Unfitness and insanity cases
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| * Trust's JR of hospital managers' discharge decision South Staffordshire and Shropshire Healthcare NHSFT v Hospital Managers of St George's Hospital [2016] EWHC 1196 (Admin) — "This is an application for judicial review of a decision by an independent panel on 12 April 2016 to discharge the Interested Party, AU, from detention under the Mental Health Act 1983. It is brought by South Staffordshire and Shropshire Healthcare NHS Foundation Trust and Dr Whitworth (previously AU's responsible clinician). ... To put the case in general terms the claimants are concerned about the Panel's decision to discharge AU in the light of the views of the clinical team and also a decision of the First Tier Tribunal ... which decided on 10 March 2016 not to discharge him from detention. ... The judicial review raises an important point of principle as to the capacity of a body to seek judicial review of a decision which it could have made itself. In broad terms the Trust appointed the Panel and under the 1983 Act it exercised delegated powers. Because AU raised this point in his grounds, Warby J joined Dr Whitworth as a second claimant to the action on 4 May 2016 on the basis that, if the Trust could not seek judicial review, she could. If the Trust and Dr Whitworth can seek judicial review, the grounds they advance against the Panel's decision are, first, that it failed to treat the Tribunal's decision as a relevant consideration and, secondly, that the Panel's decision is irrational in light of the evidence available and the reasons it has given."
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2016‑05‑22 22:45:03
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2016 cases, Cases, Hospital managers hearings, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Re-sectioning after hearing, 2016 cases, Judgment available on Bailii
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| R (O) v SSHD [2016] UKSC 19, [2016] MHLO 12 — "The appellant, O, is a woman of Nigerian nationality, aged 38. In November 2003, with her son, then aged three, she illegally entered the UK. In July 2008 she pleaded guilty to offences of cruelty towards her son, who had returned to live in Nigeria, and the court sentenced her to 12 months' imprisonment and recommended that she be deported. On 8 August 2008 her sentence came to an end, whereupon the respondent, the Home Secretary, detained her - at first pending the making of a deportation order and then, following the making of such an order, pending her deportation pursuant to it. O's detention, which was at the Immigration Removal Centre at Yarl's Wood in Bedfordshire, continued until 6 July 2011 when, pursuant to a grant of bail on 1 July 2011, she was released. It follows that O was detained at Yarl's Wood for almost three years. The court knows nothing about her circumstances after 6 July 2011 but infers that she has not, or not yet, been deported. ... In the present proceedings, which - chronologically - encompass her fourth claim for judicial review, O challenges the lawfulness of the later period of her detention, namely from 22 July 2010, and in particular from say 4 March 2011, until 6 July 2011. The object of the present proceedings has never been to secure her release, which had already occurred at the time of their issue. The object has been to secure a declaration that the detention was unlawful and, perhaps in particular, an award of substantial damages for false imprisonment. ... O has the misfortune to have suffered for many years from serious mental ill-health. So the appeal requires this court to consider the Home Secretary's policy relating to the detention of the mentally ill pending deportation; and perhaps also to identify the criterion by which the court should determine a complaint that she has failed to implement some aspect of her policy relating to it. Furthermore the Home Secretary is obliged to conduct monthly reviews of whether a person's detention pending deportation should continue. There were, as the Court of Appeal held, defects in the Home Secretary's conduct of the monthly reviews of O's detention between March and July 2011. ... [W]ere O's claim for judicial review permitted to proceed, the result in all likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and an award to her of damages in the sum of £1. ... I would dismiss the appeal."
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2016‑04‑28 13:48:52
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2016 cases, ICLR summary, Judgment available on Bailii, Repatriation cases, Transcript, Pages using DynamicPageList3 parser function
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| * Recognition of foreign order Re Z (Recognition of Foreign Order) [2016] EWHC 784 (Fam), [2016] MHLO 11 — "This judgment considers the exercise of the court's powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union. On 4 March 2016, I made an interim order in respect of a girl, Z, who lives in the Republic of Ireland, declaring that orders made by the High Court of Ireland on 2 March 2016 should stand as orders of this court, thereby permitting emergency admission for treatment in a hospital in this country. At a hearing on is notice on 23rd March, I made a further interim order to that effect. This judgment set out the reasons for those orders."
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2016‑04‑08 20:38:22
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2016 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2016 cases
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| Public Law Project v Lord Chancellor [2015] EWCA Civ 1193, [2015] MHLO 136 — The proposed Legal Aid residence test was lawful (the High Court had been wrong to decide it to be ultra vires and unjustifiably discriminatory). The proposed test is described as follows in the judgment: "To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days). There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."
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2016‑02‑21 22:49:03
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2015 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript, Pages using DynamicPageList3 parser function
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| * Immigration detention R (VC) v SSHD [2016] EWHC 273 (Admin), [2016] MHLO 7 — Repatriation case with mental health background. "There are two strands to the contentions made by the Claimant in this claim, as argued before me: (1) a challenge to the lawfulness of his detention on the basis that it was in breach of (a) the Defendant's policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant's detention; (b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant's removal within a reasonable timescale; and (c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time. (2) a challenge to the treatment of the Claimant in detention on the basis that it was: (a) in violation of Article 3 ECHR; (b) contrary to the Mental Capacity Act 2005; (c) discriminatory, contrary to the Equality Act 2010; and (d) procedurally unfair."
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2016‑02‑17 21:59:28
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2016 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2016 cases
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| * Legal Aid R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24, [2016] MHLO 4 — This was a claim for false imprisonment and assault arising out of arrest and detention by the police. Paragraph 21 of Part 1 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 relates to Legal Aid for civil legal services under the heading "Abuse of position or powers by public authority". Following an initial refusal of Legal Aid, this case concerned the interpretation of sub-paragraph (4): "For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission (a) is deliberate or dishonest, and (b) results in harm to a person or property that was reasonably foreseeable." The High Court had held that (a) paragraph 21(4) was a comprehensive definition of what was entailed in a claim for abuse of position or power (rather than a statement of the minimum criteria for such a claim), and (b) for the purposes of the definition in this case it was only the arrest itself that had to be deliberate (it was not necessary to allege that the arresting officers knew that they had no power of arrest). The Court of Appeal, allowing the appeal, held that: (a) the judge, in interpreting the words so that that any deliberate act by a public authority that causes reasonably foreseeable harm to another would count as an abuse of power, had ignored what it was that was being defined ("abuse of position or power") and gave no weight at all to the meaning of that phrase: abuse of position or power is a recognised juridical concept which, like many other public law concepts, is both flexible and context-specific and should, therefore, be given meaning in paragraph 21(4); (b) something more than an intentional tort (requiring only a deliberate act, such as, here, false imprisonment) is necessary before the impugned act becomes an "abuse of power": in this case it was not merely the fact of arrest, but the arrest without lawful justification, which had to be deliberate or dishonest. The Court of Appeal noted that a general policy not to fund purely money claims is what explains the anomaly that a claimant able to bring judicial review proceedings under paragraph 19 may add a claim for damages without having to satisfy any equivalent of paragraph 21(4). (There is also no equivalent in paragraph 20, for habeas corpus, or in paragraph 22, for significant breach of Convention rights.)
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2016‑01‑28 16:34:26
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2016 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2016 cases
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| * Inquest R (Speck) v HM Coroner for District of York [2016] EWHC 6 (Admin), [2016] MHLO 1 — "Drawing these strands together, my conclusions were as follows. First, that the duty of the coroner was limited to a duty to investigate those matters which caused, or at least arguably appeared to him to have caused or contributed to, the death. Secondly, that the claimant was unable to show even an arguable case that any body was at the material time under a duty, statutory or otherwise, to establish a health-based place of safety at a time, and in a location, such that Miss Speck could have been taken to such a facility in June 2011. Thirdly, that the claimant was therefore unable to show even an arguable case that Miss Speck's death was caused or contributed to by a breach of such a duty. Fourthly, that the coroner was therefore correct to decline to investigate issues as to the non-availability of a health-based place of safety: to have done so would have been to investigate matters which fell outside his statutory duty under section 5 of the Coroners and Justice Act 2009. Lastly, that even if I had been persuaded that it was within the coroner's discretion to investigate such matters, I would have found there was no basis on which it could be said that his decision not to do so was a perverse or otherwise unlawful exercise of that discretion."
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2016‑01‑17 19:50:20
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2016 cases, Cases, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2016 cases
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| Health Service Executive of Ireland v PA [2015] EWCOP 38, [2015] MHLO 107 — "I turn to the specific orders in these three cases. In each case, I conclude that the individual – PA, PB and PC – is an adult within the meaning of paragraph 4 of the Schedule. I conclude that each is habitually resident in the Republic of Ireland. Having considered the orders of the Irish Court, and the provisions in each order that amount to "protective measures" within the meaning of Schedule 3, (including, in each case, the provision that each individual shall be placed and detained at St Andrew's and the various ancillary orders to facilitate and support the placement and detention), I conclude that there are no grounds for refusing to recognise the measures under paragraph 19(3) or (4). I conclude in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); that in each case the individual – PA, PB and PC – satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; that the orders of the Irish Court demonstrate that each will be afforded a regular right of review of his or her detention so as to comply with the ongoing requirements of Article 5(4); that as a result recognising and enforcing the orders will not contravene the ECHR; that the measures in each case are not inconsistent with any other mandatory provision of the law of England and Wales; and that the measures cannot be said to be manifestly contrary to public policy. I shall therefore make the orders declaring that the protective measures in the said orders shall be recognised in England and Wales and enforced in this jurisdiction."
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2015‑12‑18 23:03:04
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2015 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Winspear v City Hospitals Sunderland NHSFT [2015] EWHC 3250 (QB), [2015] MHLO 104 — (1) The core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity. If it is both practicable and appropriate to consult before doing so then, in the absence of some other compelling reason against consultation, it would be procedurally flawed to proceed without consultation. It would not meet the requirements of MCA 2005 s4(7); it would accordingly not be in accordance with the law. It would be an interference with Article 8(1) that is not justified under Article 8(2). (2) The claimant (patient's mother) sought damages both personally and as personal representative. The judge was not persuaded that she has any personal claim for damages, and decided that a declaration reflecting the procedural breach of Article 8 was sufficient.
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2015‑11‑29 22:00:53
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2015 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| R v Brown (formerly Latham) [2015] EWCA Crim 1328, [2015] MHLO 100 — "The central ground of appeal is that the appellant's conviction is unsafe because the ruling of the judge – viz. that the appellant's conferences at court with his lawyers were to take place in the presence of two nurses from Rampton Hospital – breached his right at common law to consult privately with his lawyers and under Article 6(3)(c) European Convention on Human Rights to "defend himself through legal assistance of his own choosing" (with the concomitant right to private discussions with his lawyers). ... In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting to an abuse of the privilege that justifies interference. This case exemplifies the rare circumstances in which it will be necessary to take this step."
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2015‑11‑14 21:31:37
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2015 cases, ICLR summary, Judgment available on Bailii, MHLR summary, Other criminal law cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| * Inquests and state detention R (LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin) — "Maria died while in intensive care at King's College Hospital in London ... Plainly an inquest will be held; that is not in dispute. However, by a written decision ... the Defendant Senior Coroner rejected the argument that Maria was "in state detention" at the time of her death, within the meaning of ss. 7(2)(a) and 48(1) and (2) of the Coroners and Justice Act 2009 and therefore the inquest must be held with a jury. By way of judicial review, the Claimant challenges that conclusion and contends that in the circumstances the Coroner was bound to call a jury. The sole issue for the Court is whether the Claimant's challenge is well-founded."
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2015‑10‑30 22:49:39
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2015 cases, Cases, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2015 cases
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| Re AB (A child: deprivation of liberty) [2015] EWHC 3125 (Fam), [2015] MHLO 74 — "There is a large measure of agreement between the parties on the relevant factual matrix and the legal principles applicable to the issues I am asked to determine, namely: (1) Whether AB is deprived of his liberty at X. (2) If so, are the parents and/or the local authority entitled to consent to the same? (3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction? (4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases."
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2015‑10‑30 22:39:14
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2015 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript
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| R (Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin), [2015] MHLO 72 — "This application for judicial review concerns the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2... What this case boiled down to was a consideration of how Article 2 applies to the suicide of mental health patients and an assessment of the (in)adequacy of the Guidance in reflecting the law. I have come to the conclusion that in one material respect the Guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression of what the law is. ... [I]n the absence of a clear recognition that there is a category of case where the investigative duty arises quite irrespective of the existence of arguable breach by the State the Guidance is materially misleading and inaccurate."
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2015‑10‑28 23:27:05
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2015 cases, ICLR summary, Inquest cases, Judgment available on Bailii, No summary, Transcript
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| Rochdale MBC v KW [2015] EWCA Civ 1054, [2015] MHLO 71 — (1) The judge (in his second decision) had misinterpreted the consent order (on appeal from his first decision) when he said that the Court of Appeal had not decided that KW was being deprived of her liberty. Therefore, this second appeal would be allowed. (2) The judge was also wrong to say that the Court of Appeal had taken "a procedurally impermissible route" so that its decision was "ultra vires". An order of any court is binding until it is set aside or varied: it is futile and inappropriate for a judge to seek to undermine a binding order by complaining that it was ultra vires or wrong for any other reason. In any event, the consent order was made by a procedurally permissible route: the appeal court has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. If the appeal court is satisfied that (i) the parties' consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. (3) The Court of Appeal stated that the judge's disagreement with the Cheshire West decision was in danger of distorting his approach to these cases and, in light of the two successful appeals, the review should be conducted by a different judge.
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2015‑10‑23 22:29:42
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2015 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript, Pages using DynamicPageList3 parser function
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| Commissioner of the Police of the Metropolis v Ahsan [2015] EWHC 2354 (Admin), [2015] MHLO 62 — The Commissioner of Police of the Metropolis applied for an order to impose notification requirements for a period of 15 years on Syed Talha Ahsan under the Counter-Terrorism Act 2008. The notification order would require him for that period to attend police stations to provide, and update, information about his living arrangements and to provide details about his travel plans, for which permission can be refused; breach of the requirements is punishable with imprisonment of up to 5 years. (1) Ahsan had been convicted in the United States of providing material assistance for the Taliban, while they were harbouring Osama bin Laden, through his involvement in a US-hosted website, but he argued that this did not constitute an act which "would have constituted an offence… if it had been done in any part of the United Kingdom…" because it was in fact done within the United Kingdom. The judge decided that (a) Parliament must have intended that the notification requirements should apply to terrorist conduct committed here which results in a conviction in a foreign court, even if it could have been prosecuted here but was not; (b) by inadvertence Parliament had failed to give effect to that purpose; (c) taking a purposive approach, even assuming that all elements of Mr Ahsan's offending occurred here, the offences he was convicted of in the US were corresponding foreign offences. (2) Ashan argued that the Commissioner had failed to take into account relevant considerations and therefore the exercise of discretion to make the application was unlawful. The judge decided that: (a) since there is a discretion, its exercise should be open to public law challenge; (b) only in exceptional circumstances would this be successful, because of the strong legislative steer that, where there has been a corresponding foreign conviction and the requisite sentence has been imposed, an application should be made; (c) the public law challenge should, to avoid wasting time and money, be heard within the 2008 Act proceedings rather than by separate judicial review proceedings; (d) failure to consider the sentencing remarks, his mental health, and the fact that Ahsan had not been prosecuted here, did not render the decision unlawful. (3) The notification requirements did not meet the minimum level of severity required for a successful Article 3 claim. (4) The interference with Ahsan's private and family life was not necessary and proportionate under Article 8: (a) this was an exceptional case where there was no significant future risk; (b) the medical evidence was that that the notification requirements were likely to have a severe adverse impact on Ahsan's mental health, and despite this likelihood the requirements would continue for 15 years with no review mechanism. (5) The application was therefore dismissed.
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2015‑08‑23 22:33:37
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2015 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| * Ordinary residence R (Cornwall Council v SSH [2015] UKSC 46 — "PH has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. Since the age of four he has received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. Since then he has lived in two care homes in the Somerset area. There is no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue is: which authority should be responsible? This depends, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident". There are three possible contenders: Wiltshire, as the authority for the area where he was living with his family when he first went into care, and which remained responsible for him under the 1948 Act; Cornwall, where his family have lived since 1991; or South Gloucestershire, where he lived with his foster parents from the age of four until his move to Somerset. ... Although none of the other authorities has argued that Wiltshire should be responsible, the court indicated at the beginning of the hearing that this possibility should not be excluded from consideration. ... In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday. On this analysis it follows that PH's placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and "swings and roundabouts" may be unavoidable."
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2015‑08‑07 23:06:04
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2015 cases, Cases, Community care, ICLR summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2015 cases
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| * Best interests and available options Re MN (An Adult) [2015] EWCA Civ 411 — "The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself."
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2015‑05‑24 21:01:44
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2015 cases, Best interests, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2015 cases
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| * Sentencing guidance; MHT/PB delay R v LV; R (LV) v SSJ [2015] EWCA Crim 45, [2015] EWCA Civ 56 — "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.
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2015‑02‑12 23:21:36
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2015 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Prison law cases, Sentence appeal cases, Judgment available on Bailii, 2015 cases
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| R (Kent CC) v SSH [2015] EWCA Civ 81, [2015] MHLO 13 — "This case concerns the question of which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the National Assistance Act 1948. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere."
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2015‑02‑12 23:03:10
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2015 cases, Community care, ICLR summary, Judgment available on Bailii, Transcript
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| Re AJ (DOLS) [2015] EWCOP 5, [2015] MHLO 11 — "This case raises a number of issues about the provisions of the Mental Capacity Act 2005, and in particular the amendments that were introduced into that Act by the Mental Health Act 2007 concerning the procedures to be followed in cases of deprivation of liberty. The provisions under consideration include the selection and appointment of relevant person's representatives under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty."
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2015‑02‑12 22:48:15
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2015 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript
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| MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10 — (1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard. Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be 'defiance' of a 'declaration' nor can there be an 'enforcement' of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother's best interests. The course he took was not a 'second best' option but one entirely inimical to his mother's welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings." (3) Guidance: "Such guidance as I can give can only be limited: (i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section ..→
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2015‑01‑31 20:37:41
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2015 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| R v Wells [2015] EWCA Crim 2, [2015] MHLO 5 — "In each appeal and application before the court, the defendant has been found unfit to plead: that is to say, based on medical evidence, the court has found that one or more of the following criteria is satisfied namely that he or she does not have the ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror, to understand the evidence. ... Where a defendant's disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances."
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2015‑01‑30 09:41:02
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2015 cases, ICLR summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Unfitness and insanity cases, Judgment available on Bailii
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| Hysaj v SSHD [2014] EWCA Civ 1633, [2014] MHLO 135 — In each of these three cases, which were heard together, the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time. The mental health case involved a nearest relative who had been awarded costs after displacement proceedings and who (nearly six years out of time) wished to appeal against the sum ordered by the judge. The Court of Appeal, having held that the guidance in the Mitchell and Denton cases applied to applications for extensions of time for filing a notice of appeal, dealt with some questions of general importance (public law cases, shortage of funds, litigants in person, the merits). In the mental health case, the extension of time was refused.
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2014‑12‑31 16:04:25
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2014 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWHC 77 (QB), [2014] MHLO 133 — "This is an appeal from the decision ... to grant summary judgment to the Claimant in a claim against the Estate of the late Mr Mohammed Shafi for outstanding care home fees. It raises interesting and important issues about the relationship between section 7 of the Mental Capacity Act 2005 and the provisions of Part III of the National Assistance Act 1948, Part III of the National Health Service and Community Care Act 1990, and related statutes, regulations and guidance that concern the obligations or powers of a local authority to provide residential accommodation and care services for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. ... The total amount claimed is £62,199.94. The key issue is who, if anyone, is legally liable for payment of fees to the Claimant? There are only two candidates; the Estate of the late Mr Shafi (represented by his wife), and Brent."
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2014‑12‑31 15:38:07
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2014 cases, Community care, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| K v Hospital Managers of the Kingswood Centre [2014] EWCA Civ 1332, [2014] MHLO 102 — A nearest relative sent an order for discharge to the hospital's fax machine. She had not used one of the three prescribed methods of service (delivery to an authorised officer; pre-paid post; or, with the managers' agreement, internal mail) so the 72-hour period began to run when the part-time MHA Administrator considered it on her return to work four days later.
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2014‑11‑02 23:55:06
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2014 cases, ICLR summary, Judgment available on Bailii, Other NR cases, Transcript, Pages using DynamicPageList3 parser function, Judgment missing from Bailii
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| Re X (Deprivation of Liberty) (No 2) [2014] EWCOP 37, [2014] MHLO 98 — "I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16). For ease of reference I set out those questions again: '(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?' These questions require consideration of a number of issues which I take in order, formulating each of these issues in the form of a question. ..."
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2014‑10‑16 21:29:14
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2014 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript, Pages using DynamicPageList3 parser function, Judgment missing from Bailii
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| R v Ali [2014] EWCA Crim 1658, [2014] MHLO 87 — Confiscation order case with mental health background. One of the three principal issues was: "Whether the judge erred in not adjourning the appellant's case before proceeding with the confiscation hearing in order to seek further medical evidence about his re-admission to hospital and in refusing to stay the proceedings as an abuse of process in the light of the appellant's circumstances and mental health."
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2014‑08‑08 21:19:12
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2014 cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| Re X (Deprivation of Liberty) [2014] EWCOP 25, [2014] MHLO 86 — "The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved. ... This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the [rules] Committee. A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions ... not dealt with in this judgment."
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2014‑08‑07 14:02:46
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2014 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii
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| R (Whapples) v Birmingham CCG [2014] EWHC 2647 (Admin), [2014] MHLO 57 — "The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant has an obligation under section 3 of the National Health Service Act 2006 to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS. ... The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits."
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2014‑08‑01 09:56:56
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2014 cases, Community care, ICLR summary, Judgment available on Bailii, Transcript
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| R (M) v Kingston Crown Court [2014] EWHC 2702 (Admin), [2014] MHLO 50 — M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it.
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2014‑07‑22 22:34:02
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2014 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| R (L) v West London MH NHS Trust [2014] EWCA Civ 47, [2014] MHLO 49 — (1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his representative, and that the patient be afforded an opportunity to make written submissions to the panel."
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2014‑07‑22 20:57:13
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2014 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R (O) v SSHD [2014] EWCA Civ 990, [2014] MHLO 47 — "This issue on this appeal is whether the Secretary of State for the Home Department ("the Secretary of State") could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. ... Accordingly, I would dismiss this appeal. The new diagnosis of Dr Agnew-Davies proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if O was released into the community and these were not put in place to the satisfaction of the court until 6 July 2011 when she was in fact released on bail."
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2014‑07‑17 21:52:44
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2014 cases, ICLR summary, Judgment available on Bailii, Repatriation cases, Transcript
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| R (Public Law Project) v SSJ [2014] EWHC 2365 (Admin), [2014] MHLO 46 — The proposed legal aid 'residence test' was unlawful: (1) the statutory instrument containing it was ultra vires and unlawful, as LASPO did not permit such a criterion to be introduced by secondary legislation; (2) residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO.
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2014‑07‑17 21:36:37
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2014 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26 — The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life."
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2014‑05‑10 14:13:56
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2014 cases, Brief summary, Consulting NR, ICLR summary, Judgment available on Bailii, Transcript
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| R (Lee-Hirons) v SSJ [2014] EWCA Civ 553, [2014] MHLO 23 — (1) A restricted patient who had been recalled argued that the Secretary of State was under a duty to provide written (not merely oral) reasons for recall, that the oral reasons given were inadequate and were not the Secretary of State’s true reasons, and that therefore the recall and consequent detention was unlawful. (2) The Court of Appeal held that: (a) Article 5(1) does not require the reasons for detention to be given immediately upon detention; (b) a fortiori, it does not require reasons to be given in writing; (c) Article 5(2) requires those reasons to be adequately and promptly given to him following detention; (d) on the facts, there had been a breach of the Secretary of State’s policy to provide reasons "as soon as possible and in any event within 72 hours" (HSG(93)20) and a breach of Article 5(2); (e) these breaches did not render unlawful what was originally a lawful recall. (3) The Court noted, in relation to the practice of the Secretary of State in relation to recall, that "It is now his practice to include in the warrant a brief reason for recall, and a reminder is given to the person executing the warrant to explain the reason at the time of execution."
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2014‑05‑02 01:34:09
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2014 cases, ICLR summary, Judgment available on Bailii, Ministry of Justice cases, Transcript, Pages using DynamicPageList3 parser function
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| * Ordinary residence R (Cornwall Council) v SSH [2014] EWCA Civ 12 — (1) In deciding the ordinary residence of an adult lacking capacity the Secretary of State had erred in applying 'test 1' from the Vale case (that a person who is so severely handicapped as to be totally dependent upon a parent or guardian in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base). (2) Instead, the words 'ordinary residence' should, unless the context indicates otherwise, be given their ordinary and natural meaning. (3) There is much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A (namely where he is integrated into a social and family environment). (3) On the facts, the person was ordinarily resident in South Gloucestershire (where he lived) rather than Cornwall (where his parents lived).
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2014‑03‑24 20:38:20
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2014 cases, Cases, Community care, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2014 cases
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| RC v CC [2014] EWHC 131 (COP), [2014] MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment."
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2014‑03‑04 14:59:13
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2014 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| IM v LM [2014] EWCA Civ 37, [2014] MHLO 1 — "On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".]
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2014‑01‑31 15:18:06
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2014 cases, ICLR summary, Judgment available on Bailii, Sex and marriage cases, Transcript
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| R (MM) v SSWP [2013] EWCA Civ 1565, [2013] MHLO 132 — (1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed.
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2013‑12‑30 15:15:33
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2013 cases, Brief summary, ICLR summary, Judgment available on Bailii, Transcript, Welfare benefits cases
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| R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD [2013] EWCA Civ 1561, [2013] MHLO 113 — Unsuccessful appeal in hunger strike deportation case.
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2013‑12‑16 13:01:50
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2013 cases, ICLR summary, Judgment available on Bailii, Repatriation cases, Transcript
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| R v Turbill [2013] EWCA Crim 1422, [2013] MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions."
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2013‑08‑08 19:27:17
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2013 cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, Transcript
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| R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961, [2013] MHLO 65 — Assisted suicide.
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2013‑08‑08 01:58:17
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2013 cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| * SSH reference R (Modaresi) v SSH [2013] UKSC 53 — The Secretary of State's refusal to refer case under s67 was lawful.
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2013‑08‑08 01:41:34
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2013 cases, Cases, ICLR summary, Judgment available on Bailii, MHLR summary, Other Tribunal cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2013 cases
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| * Marriage and cohabitation PC v City of York Council [2013] EWCA Civ 478 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband."
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2013‑08‑08 01:34:18
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2013 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2013 cases
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| R (Faulkner) v SSJ [2013] UKSC 23, [2013] MHLO 60 — Quantum of compensation for delayed Parole Board hearing.
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2013‑08‑08 01:27:23
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2013 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Prison law cases, Transcript
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| R v AJR [2013] EWCA Crim 591, [2013] MHLO 37 — The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989.
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2013‑05‑04 12:42:08
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2013 cases, Brief summary, ICLR summary, Judgment available on Bailii, Sentence appeal cases, Transcript
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| Coombs v North Dorset NHS PCT [2013] EWCA Civ 471, [2013] MHLO 35 — "Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? ... In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private accommodation or other top-up care facilities available within the applicable Guidance. Of course, it will not be possible to provide for care or treatment which is in conflict with the recommendations of the responsible clinician. Nor may it always or perhaps even often be possible within the NHS system to purchase additional care or treatment facilities without running into the principle of free provision and the limitations upon the exceptions to that principle. However, the cases cited above show that responsible clinicians may recommend treatment or care which the NHS is not under a duty to provide, because it goes beyond its statutory duty. There seems to me no reason in statute or public policy why there should be an absolute bar on the provision of facilities, recommended by or consistent with the recommendations of the responsible clinician, which may be available at a price, within or without the NHS system. Ms Richards submits, as she did below, that private payment may create difficulties of a practical nature, as where private funding previously available breaks down. However, as the judge said, such difficulties of funding may always raise their head, and do not create public policy bars of their own. It seems likely that the same answer is applicable whether the detained patient has a claim against a tortfeasor or whether it is simply a matter of a personal choice to pay. Similarly, it seems also quite possible that even detained patients under Part III have to be assimilated for these, as for other purposes, with detained patients under Part II. However, it is not necessary in this case to determine those matters. It is sufficient to say, in the case of this claimant, who is a detained patient within Part II of the MHA 1983 and has a claim against admitted tortfeasors, that the answer to the issue posed, namely whether there is anything in public policy or otherwise which prevents him paying for his own care or treatment, is No." ..→
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2013‑05‑03 19:07:31
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2013 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R v Smith (Mark John) [2012] EWCA Crim 2566, [2012] MHLO 170 — "This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act."
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2013‑03‑26 23:36:24
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2012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Sentence appeal cases, Transcript
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| R (Children's Rights Alliance for England) v SSJ [2013] EWCA Civ 34, [2013] MHLO 16 — "This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ([2012] EWHC Admin 8B), by which he dismissed the appellant's application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom."
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2013‑03‑26 22:11:58
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2013 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| B v R [2013] EWCA Crim 3, [2013] MHLO 7 — "This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant."
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2013‑03‑25 22:45:56
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2013 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| Selwood v Durham CC [2012] EWCA Civ 979, [2012] MHLO 160 — "This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it is reasonably arguable that such a duty was owed in the circumstances of the case. The claimant had also pleaded that there had been a breach by the second and third defendants of her right under article 2 of the European Convention of Human Rights. The judge also struck out those claims and that issue is raised in this appeal." Appeal allowed and all issues sent for trial. [Detailed summary available.]
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2012‑12‑23 01:29:27
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2012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R v Ligaya Nursing [2012] EWCA Crim 2521, [2012] MHLO 134 — "This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005." [Detailed summary available.]
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2012‑12‑19 18:31:23
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2012 cases, Criminal law capacity cases, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript
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| RM v Scottish Ministers [2012] UKSC 58, [2012] MHLO 133 — "This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions "shall come into force" on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. ... These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security." [Detailed summary available.]
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2012‑12‑19 18:23:04
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2012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Scottish cases, Transcript
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| Dunhill v Burgin [2012] EWHC 3163 (QB), [2012] MHLO 115 — The 'compromise rule' in the Civil Procedure Rules provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court. (1) The rule applies to a claim settled at the door of the court where at the time of the settlement the claimant was not known to lack capacity. (2) The claimant was a protected party ('a party, or an intended party, who lacks capacity to conduct the proceedings') and the Court of Appeal had decided that she lacked capacity to settle her claim. (3) The compromise in this case was invalid; the judgment based on it must be set aside, and the substantive claim should proceed to a trial on the merits. (4) The judge granted a certificate under s12 Administration of Justice Act 1969 to enable an application to be made to the Supreme Court for permission to bring a 'leapfrog' appeal from this decision. [Detailed summary available.]
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2012‑11‑17 23:38:26
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2012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re T (Children) [2012] UKSC 36, [2012] MHLO 100 — A local authority should not be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded; the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. (This case related to care proceedings.)
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2012‑09‑30 21:57:38
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2012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin), [2012] MHLO 77 — (1) Voluntary euthanasia is not a possible defence to murder. (2) The DPP is not under a legal duty to provide further clarification of his policy. (3) Section 2 Suicide Act 1961, in obstructing the claimants from exercising a right in their circumstances to receive assistance to commit suicide, is not incompatible with Article 8. (4) The GMC and the SRA are not under a legal duty to clarify their positions. (5) It was unnecessary in this case to decide whether or not the mandatory life sentence for murder, in a case of genuine voluntary euthanasia, is incompatible with the Convention.
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2012‑08‑17 14:33:38
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2012 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| DL v A Local Authority [2012] EWCA Civ 253, [2012] MHLO 32 — The local authority brought proceedings under the High Court’s inherent jurisdiction to protect his parents from DL; these proceedings could not have been brought under the MCA 2005 as the parents did not lack capacity under that Act; DL argued that the MCA, by establishing a comprehensive scheme for adults, had displaced the inherent jurisdiction. (1) The inherent jurisdiction of the High Court in relation to vulnerable adults survives the implementation of the MCA 2005, which only relates to adults who lack capacity as defined in the Act. (2) The absence of any express provision in relation to the inherent jurisdiction implies that it continues to be available, as 'the great safety net', where the Act does not apply; in any event, there is a strong policy justification, the protection of vulnerable adults, for this conclusion. (3) The jurisdiction is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (a) under constraint; or (b) subject to coercion or undue influence; or (c) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.
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2012‑03‑28 21:52:47
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2012 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| R (NM) v LB Islington [2012] EWHC 414 (Admin), [2012] MHLO 11 — A prisoner whose release was about to be considered by the Parole Board sought judicial review of the local authority's decision not to conduct a s47 NHSCCA 1990 needs assessment with a view to provision of accommodation and support services if he were released from prison. (1) The connection between the Parole Board's consideration of NM's particular case and his release was too 'conditional and speculative' to fall within s47, or within the pragmatic 'about to be in need' or 'may reasonably be considered to be liable' tests from the B case. (2) In other cases of discharge from hospital or prison it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority. (3) Consideration of whether the Convention on the Rights of Persons with Disabilities can be relied upon.
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2012‑03‑01 22:49:59
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2012 cases, Community care, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript
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| Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 — (1) The operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA. (2) There was a 'real and immediate' risk to the patient's life of which the Trust knew or ought to have known and which it failed to take reasonable steps to avoid, so the obligation was breached. (3) The patient's parents were 'victims' within the meaning of Article 34 of the Convention. (4) They had not lost their victim status by settling a negligence claim, as (although it had in substance acknowledged its breach) the Trust had not made adequate redress. (5) The one-year limitation period in s7(5) HRA 1998 was extended becuase the extension was short, the Trust suffered no prejudice, the claimants acted reasonably in delaying, and there was a good claim. (6) The Court of Appeal's assessment of damages was upheld, and £5000 was awarded to each parent.
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2012‑02‑08 12:33:14
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2012 cases, Brief summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript
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| * Section 2 tribunal deadline R (Modaresi) v SSH [2011] EWCA Civ 1359 — The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles.
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2011‑11‑25 13:34:30
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2011 cases, Cases, ICLR summary, Judgment available on Bailii, Other Tribunal cases, Pages using DynamicPageList3 parser function, 2011 cases, Judgment available on Bailii
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| Cheshire West and Chester Council v P [2011] EWCA Civ 1257 — P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.]
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2011‑11‑09 21:34:46
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2011 cases, Deprivation of liberty, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript
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| Re M; W v M [2011] EWHC 2443 (COP) — M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or withdraw ANH from a person in VS or MCS must be referred to the court; (b) no such application should be made unless the necessary assessments for MCS have been carried out; (c) non-means-tested Legal Aid should be available for family members in such applications; (d) consistent with privacy, it is imperative that the press should be free to report such cases. (5) A radical review of M's care plan will be the subject of further submissions; in the meantime, the do-not-resusitate order was continued and other treatment left to clinical discretion.
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2011‑09‑28 17:12:24
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2011 cases, Best interests, Brief summary, ICLR summary, Judgment available on Bailii, Transcript
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| SL v Westminster City Council [2011] EWCA Civ 954 — On the true meaning of section 21(1)(a) of the National Assistance Act 1948, as amended, an asylum seeker suffering from depression and mental health difficulties who had been granted indefinite leave to remain was entitled to residential accommodation if the local authority had provided a programme of assistance and support to him through a care co-ordinator, since such provision of assistance would be otiose without the additional provision of housing. [Summary from WLR (D).]
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2011‑08‑13 15:32:17
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2011 cases, Community care, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript
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| Eba v Advocate General for Scotland [2011] UKSC 29 — Scope of judicial review of Upper Tribunal in Scotland.
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2011‑07‑20 21:06:31
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2011 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other Tribunal cases, Transcript
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| R (Cart) v Upper Tribunal [2011] UKSC 28 — Judicial review of an UT decision which is unappealable (here, the UT's refusal of permission to appeal to itself) is available where the second-tier appeal criteria apply (whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it).
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2011‑06‑22 19:47:44
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2011 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other Tribunal cases, Transcript
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| C v D [2011] EWCA Civ 646 — (1) A settlement offer which is time-limited is not capable of being a Part 36 offer; (2) in the context of the intention to comply with Part 36, the statement that the offer be 'open for 21 days' did not mean that it was a time-limited offer (rather, it was indicating that it could be withdrawn after 21 days); (3) on the facts, the Part 36 offer had not expired and was capable of acceptance.
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2011‑05‑28 12:00:44
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2011 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| Pitt v Holt [2011] EWCA Civ 197 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal 'effect', so the disposition would not be set aside.
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2011‑03‑18 19:51:43
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2011 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77 — The appellant sought: 'A declaration that "is resident" in s117(3) Mental Health Act 1983 has the same (or substantially the same) meaning as "is ordinarily resident" under s24 National Assistance Act 1948, so that a person placed by a local authority under s21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 NAA and s117(3) MHA.' The court refused to grant the declaration as: (1) Parliament must have deliberately chosen a different formula for s117; (2) s117 was intended to be a free-standing provision, not dependent on the 1948 Act; (3) there was no legitimate way to interpret 'resident' as excluding a placement under s21. The court noted that the decision is in line with recent government guidance, and that the Law Commission's current project provides a much better forum for considering and remedying any defects in the present law.
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2011‑02‑17 22:33:28
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2011 cases, After-care, Brief summary, ICLR summary, Judgment available on Bailii, Transcript
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| TW v A City Council [2011] EWCA Civ 17 — The Court of Appeal issued a reminder of the following: (a) that the bundle of authorities should be agreed; (b) that it should be filed at least seven days before the hearing; (c) that it should not contain more than ten authorities unless the scale of the appeal warrants more extensive citation; (d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. BAILII judgments (with neutral citation numbers) should only be used if no other recognised reports were available and the case really needs to be cited; and (e) that the passages in the authorities which were relevant and on which counsel sought to rely must be marked.
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2011‑01‑24 20:35:26
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2011 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327 — {{Resource
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Title=Practice Direction (Upper Tribunal: Judicial Review Jurisdiction)
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Organisation=Upper Tribunal
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Date=2009
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Type=Tribunal guidance
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Sentence=JR in UT
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Abstract=This Practice Direction sets out the JR jurisdiction of the Upper Tribunal.
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Detail===The Practice Direction==
IN THE SUPREME COURT OF ENGLAND AND WALES
DIRECTION - CLASSES OF CASES SPECIFIED UNDER SECTION 18(6) OF THE TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
It is ordered as follows:
1. The following direction takes effect in relation to an application made to the High Court or Upper Tribunal on or after 3 November 2008 that seeks relief of a kind mentioned in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act").
2. The Lord Chief Justice hereby directs that the following classes of case are specified for the purposes of section 18(6) of the 2007 Act -
- (a) Any decision of the First-Tier Tribunal on an appeal made in the exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with s 5(1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on review); and
- (b) Any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within para (b), (c), or (f) of section 11(5) of the 2007 Act.
3. This Direction does not have effect where an application seeks (whether or not alone) a declaration of incompatibility under section 4 of the Human Rights Act 1998.
4. This Direction is made by the Lord Chief Justice with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by s 18(6) of the 2007 Act and in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
The Right Honourable Lord Judge
Lord Chief Justice of England and Wales
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2011‑01‑22 22:36:17
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ICLR summary, Pages using DynamicPageList3 parser function, Resources
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| TTM v LB Hackney [2011] EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were.
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2011‑01‑14 12:03:45
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2011 cases, Consulting NR, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript, Unlawful detention cases
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| C v D [2010] EWHC 2940 (Ch) — (1) A settlement offer which is time-limited (in this case it was open for acceptance for 21 days) is not capable of being a Part 36 offer; (2) on the facts, the offer had expired after 21 days and was not capable of acceptance. [Caution: partly overturned on appeal.]
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2010‑11‑18 18:56:45
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2010 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R (Cart) v Upper Tribunal [2010] EWCA Civ 859 — Judicial review of Upper Tribunal decisions is restricted to cases of outright excess of jurisdiction or fundamental denials of procedural justice. [Caution.]
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2010‑07‑29 21:37:44
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2010 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other Tribunal cases, Transcript
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| R (Smith) v Secretary of State for Defence [2010] UKSC 29 — The ECHR does not apply to soldiers serving abroad.
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2010‑07‑09 20:36:58
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2010 cases, Detailed summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript
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| R (Noone) v HMP Drake Hall [2010] UKSC 30 — In calculating release dates, the provisions of the Criminal Justice Act 1991 apply to sentences of under 12 months provided that these are not imposed concurrently or consecutively with sentences of 12 months or over, and the CJA 2003 apply to sentences of under 12 months that are imposed concurrently or consecutively with sentences of 12 months or over.
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2010‑07‑09 20:19:44
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2010 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Prison law cases, Transcript
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| Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698 — Health trusts do not have the Article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a "real and immediate" risk of death. [Caution.]
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2010‑07‑08 22:17:17
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2010 cases, Detailed summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript
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| * Control order and DOL SSHD v AP [2010] UKSC 24 — Whether the curfew amounted to a deprivation of liberty.
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2010‑06‑18 23:23:09
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2010 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2010 cases
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| R v Kluxen [2010] EWCA Crim 1081 — (1) Where the UK Borders Act 2007 requires (subject to exceptions, including certain detained psychiatric patients) the Secretary of State to make a deportation order in respect of a foreign criminal who has received a custodial sentence in relation to a single offence of at least 12 months, it is not appropriate for the court to recommend deportation. (2) Where because of the sentence imposed the UK Borders Act 2007 does not apply, deportation orders are appropriate only in exceptional cases. (3) As the Act applied, the recommendations for deportation were quashed.
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2010‑05‑22 10:27:47
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2010 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| R (MJ (Angola)) v SSHD [2010] EWCA Civ 557 — (1) The MHA regime and the Immigration Act 1971 run in parallel in relation to a person who is both an immigrant and mentally ill, so the SSHD was entitled to decide to deport MJ notwithstanding that he was still subject to s37/41. (2) There is no express statutory limitation on the SSJ's power to discharge under the MHA; it can be used in order to facilitate deportation; the protection for the patient is that the power must be exercised rationally and without breaching his Convention rights. (3) For a settled migrant who has lawfully spent all or most of his childhood in the host country, especially where he committed the relevant offences as a juvenile, very serious reasons are required to justify expulsion; the AIT had not appreciated that very serious reasons were needed so the appeal was granted.
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2010‑05‑22 08:57:19
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2010 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Repatriation cases, Transcript
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| Link Lending Ltd v Bustard sub nom Link Lending Ltd v Hussein [2010] EWCA Civ 424 — (1) The defendant to these possession proceedings was "a person in actual occupation" for the purpose of entitlement to an overriding interest within the meaning of the Land Registration Act 2002 despite her involuntary residence in hospital under s3 MHA, as there was a sufficient degree of continuity and permanence of occupation and a persistent intention to return home when possible. (2) There is no single test but relevant factors from case law are: the degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it, and the nature of the property and personal circumstances of the person.
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2010‑05‑01 23:20:03
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2010 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| Pitt v Holt [2010] EWHC 45 (Ch) — The principle in Hastings-Bass, originally applied only to trustees, applies equally to receivers under the MHA 1983. Therefore Mrs Pitt, who as a receiver had put her husband's money into a settlement without considering the inheritance tax position, could have the settlement set aside as an ineffective transaction. (The principle in Hastings-Bass has been summarised as: "Where trustees act under a discretion given to them by the terms of the trust, in circumstances in which they are free to decide whether or not to exercise that discretion, but the effect of the exercise is different from that which they intended, the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account.") [Caution.]
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2010‑04‑12 00:04:33
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2010 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Independent News and Media Ltd v A [2010] EWCA Civ 343 — The judge's decision (that designated representatives of the media could attend the hearing in the Court of Protection and thereafter apply to the judge for authorisation to publish information disclosed in the proceedings) was upheld, but his approach (that article 10 was not engaged when the media's application was made but rather when the court decided that there was "good reason" under Rule 93(1)(a)) was not.
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2010‑03‑31 22:01:28
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2010 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| Key v Key [2010] EWHC 408 (Ch) — Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval.
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2010‑03‑06 16:26:15
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2010 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| R (Degainis) v SSJ [2010] EWHC 137 (Admin) — In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of Article 5(4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 HRA 1998 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness of the original offence is not.
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2010‑02‑05 20:51:38
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2010 cases, Deprivation of liberty, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript, Tribunal delay
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| * Welfare benefits and transferred prisoners R (D and M) v SSWP [2010] EWCA Civ 18 — (1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date.
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2010‑01‑27 19:00:36
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2010 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Welfare benefits cases, Judgment available on Bailii, 2010 cases
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| R (Miller) v Independent Assessor [2009] EWCA Civ 609 — The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder).
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2009‑12‑09 23:35:49
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2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript
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| EBR Attridge Law LLP v Coleman (2009) UKEAT 0071/09 — The Disability Discrimination Act 1995 should be interpreted so as to prohibit discrimination against employees who, although not themselves disabled, were treated less favourably or harassed on the ground of their association with a person who was disabled.
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2009‑11‑09 21:28:38
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2009 cases, Detailed summary, Disability discrimination, ICLR summary, Judgment available on Bailii, Transcript
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| R (E) v Governing Body of JFS (No 2) [2009] UKSC 1 — If the LSC decide fund a successful litigant, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party; the LSC's decision not to continue funding without a protective costs order against the appellent was unlawful and public funding was therefore to continue.
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2009‑10‑24 09:35:01
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2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R v Ghulam [2009] EWCA Crim 2285 — Under CPIA 1964 s4 the court must not make a determination that the defendant is unfit to plead without medical evidence from two medical practitioners; however, where the medical evidence of unfitness to plead is only available from one medical practitioner, the judge is not bound to adjourn the trial but can make a determination that the defendant is fit to plead.
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2009‑10‑24 08:54:16
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2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript, Unfitness and insanity cases
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| Stockton On Tees Borough Council v Aylott (2009) UKEAT 0401/08/1103 — The decision in Malcolm on the correct comparator in disability-related discrimination cases also applies to employment cases.
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2009‑10‑08 20:31:32
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2009 cases, Brief summary, Disability discrimination, ICLR summary, Judgment available on Bailii, Transcript
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| SCA Packaging Ltd v Boyle [2009] UKHL 37 — Under the Disability Discrimination Act 1995 an impairment which is treated or corrected is counted (in law) as causing disability if it (in fact) would be likely to cause disability if untreated or uncorrected: "likely" here does not mean "probable" but means "could well happen". The employee was therefore disabled and the employer was under a duty to make reasonable adjustments.
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2009‑10‑08 20:16:59
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2009 cases, Brief summary, Disability discrimination, ICLR summary, Judgment available on Bailii, Transcript
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| R (Purdy) v DPP [2009] UKHL 45 — (1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy.
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2009‑08‑01 18:38:02
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2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| * Sexual consent R v C [2009] UKHL 42 — 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.
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2009‑08‑01 17:39:15
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2009 cases, Cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2009 cases
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| R (TF and Thompson) v SSHD [2009] EWCA Civ 792 — (1) The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review of the necessity of the requirements, and the case is stronger in the case of young offenders. (2) The scheme where it related to foreign travel did not breach article 4 ("right of exit") of EC Council Directive 2004/38.
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2009‑07‑29 22:25:46
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2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| R v Khan [2009] EWCA Crim 1569 — (1) The judge had been right to refuse to withdraw the charge of murder from the jury at the close of the evidence: to do otherwise he would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, the diminished responsibility defence. (2) Although the medical evidence in favour of diminished responsibility was unchallenged, there was ample factual evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the defence was made out.
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2009‑07‑29 22:03:41
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2009 cases, Brief summary, Diminished responsibility cases, ICLR summary, Judgment available on Bailii, Transcript
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| R v G; R v J [2009] UKHL 13 — Detailed explanation of elements of, and defences to, s57 and s58 Terrorism Act 2000. It was not a "reasonable excuse" for G to possess terrorist material to wind up prison guards; he was responsible for his actions (applying M'Naghten's case [1843] UKHL J16) and his schizophrenia could not make reasonable what was unreasonable.
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2009‑07‑29 21:26:02
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2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
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| R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795 — The right or freedom to smoke does not engage Article 8(1); Article 14 could not therefore be relied upon either. In any event, the SSH's smoke-free regulations and the Trust's smoke-free policy would be justified under Article 8(2), and the different treatment under the regulations for mental health units compared with prisons, care homes and hospices would be justified under Article 14.
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2009‑07‑26 14:07:15
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2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R (P) v SSJ [2009] EWCA Civ 701 — The refusal of the SSJ to hold an inquiry into P's detention in YOI Feltham was lawful: (1) Article 2 is only engaged where there is a "real and immediate" risk to life; the risk from P's self harming, while real, was not immediate. (2) There was no arguable breach of Article 3 in the delay in transfer to hospital. Had there been an arguable Article 3 breach: in general, an inquiry would not have been mandatory; in this particular case, it would not have been necessary as the relevant facts were known.
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2009‑07‑09 21:47:53
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2009 cases, Brief summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript
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| R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623 — An inquest into the death of a patient who was detained in a hospital under s3 had to satisfy the enhanced requirements of Article 2
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2009‑07‑05 17:10:55
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2009 cases, Detailed summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript
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| Gray v Thames Trains Ltd [2009] UKHL 33 — The principle of ex turpi causa prevented the claimant from recovering for damage which was the consequence of his committing the offence of manslaughter.
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2009‑06‑21 22:24:07
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2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
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| R (James) v SSJ [2009] UKHL 22 — (1) Following the introduction of IPP sentences, the Secretary of State was in breach of his public law duty to make reasonable provision to enable IPP prisoners (if necessary by completing treatment courses) to demonstrate to the Parole Board their safety for release. The appropriate remedy was declaratory relief condemning the Secretary of State's failures and indicating that he is obliged to do more. The systemic failure has ended (following amendments including making the IPP sentence generally available only when the notional minimum term is at least 2 years) so no further relief is appropriate. (2) In relation to post-tariff detention, the systemic failure did not: (a) make the detention unlawful (detention remains lawful under statute until Parole Board release); (b) breach Article 5(1) (causal link with objective of detention remained until Parole Board decision); or (c) breach Article 5(4) (which is concerned with procedure not substance) although cases with prior findings or concessions of Art 5(4) breaches were remitted to Admin court for assessment of damages.
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2009‑05‑06 22:02:20
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2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Prison law cases, Transcript
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