Category:Other capacity cases
The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.
| Case and summary | Date added | Categories |
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| * Anticipatory declarations under s16 - assessment of deaf people Oldham Metropolitan Borough Council v KZ [2024] EWCOP 72 (T3) — (1) The court decided that it had power to make anticipatory declarations under MCA 2005 s16 (which in this case would render deprivation of liberty under s4A(4) lawful as being a decision of the court under s16(2)(a)). (2) The original psychiatric evidence was that KZ lacked capacity in all areas. A subsequent assessment by a psychologist with expertise in assessing deaf people found that, while he lacked capacity in relation to sex, finances, tenancy, social media and internet, and litigation, he did have capacity in relation to residence, care and support, and contact with his family (although that capacity fluctuated daily); and that he had extreme language deprivation rather than borderline learning disability. (3) The new evidence was accepted, and anticipatory declarations were made. (4) The judge provided guidance for assessment of a deaf individual fluent in BSL: it should be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL and ideally with a background in understanding deafness and engaging with the deaf community; otherwise, explanations would be required. | 2024‑12‑07 20:52:27 | Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Other capacity cases
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| * Residence, care and contact Re DY (Capacity) [2024] EWCOP 4 — DY had capacity to make decisions about residence, care and contact with others. There were concerns that she might lose capacity in the future (including how she would respond to the birth of her baby and the stresses of living in a parent and baby unit) but it was not appropriate to make anticipatory or contingent declarations in circumstances of this case. | 2024‑12‑06 21:41:22 | Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Other capacity cases
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| * Habitual residence Aberdeenshire Council v SF (No 3) (Change of Habitual Residence) [2024] EWCOP 74 (T3) — SF had previously been habitually resident in Scotland, but was now habitually resident in England, having made astonishing progress at her community placement and integrated into a social environment in England. | 2024‑11‑23 22:59:38 | Judgment available on Bailii
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| * Non-recognition of Scottish Guardianship Order Aberdeenshire Council v SF (No 2) [2024] EWCOP 10 — The Court of Protection exercised its discretion to refuse to recognise a Scottish Guardianship Order (which authorised SF's mother to consent to deprivation of liberty) because: (1) "(a) the case in which the measure was taken was not urgent, (b) the adult was not given an opportunity to be heard, and (c) that omission amounted to a breach of natural justice" (para 19(3) of sch 3 MCA 2005); (2) "the measure would be inconsistent with a mandatory provision of the law of England and Wales" (para 19(4)(b)), as the breaches of Article 5(1)(e) and Article 5(4) would be unlawful under s6 HRA 1998; and (3) "recognition of the measure would be manifestly contrary to public policy" (para 19(4)(a)), because of the breach of natural justice and the breaches of fundamental human rights under Article 5, 6 and 8. | 2024‑11‑23 18:16:26 |
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| * Anticipatory declarations Leicestershire County Council v P (Capacity: Anticipatory declaration) [2024] EWCOP 53 (T3) — The Court of Protection confirmed that it has jurisdiction to make anticipatory declarations under MCA 2005 s15(1)(c), and provided guidance (including that s5 and s6 MCA 2005 are not limited only to address emergency situations). On the facts (the person suffered from dissociative identity disorder, or complex PTSD with dissociative characteristics, and had fluctuating capacity) no anticipatory declarations were made. | 2024‑10‑29 21:48:27 |
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| * Reverse indemnity Re BJB [2024] EWCOP 59 (T2) — "On 7th May 2009 an order was made in the Queen's Bench Division of the High Court approving settlement of a damages claim brought on behalf of BJB, on terms which included: (a) reverse indemnity undertakings, whereby 98% of sums received by BJB in state provision are to be deducted from her periodical payments; and (b) provision for release from the reverse indemnity undertakings by the Master of the Court of Protection or his successors, if that person is satisfied that BJB does not have sufficient resources to meet her reasonable needs. BJB's property and affairs deputy has made an application to the Court of Protection for release from the reverse indemnity undertakings." | 2024‑10‑25 20:08:55 | Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Other capacity cases
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| * Inherent jurisdiction and Article 3 Re P (Vulnerable adult: Withdrawal of application) [2024] EWHC 1882 (Fam) — The central issue in this case was whether the court should continue to use its powers under the inherent jurisdiction to compel P to live apart from her father. The judgement focusses on whether concluding proceedings would breach P's Article 3 rights. | 2024‑10‑10 12:19:42 | Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Other capacity cases
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| * Representation during DOL review period Re PQ (Court authorised DOL: Representation during review period) [2024] EWCOP 41 (T3) — "[T]he central questions for the Court are: (a) Whether PQ's continued participation during the review period requires her to have some form of representation, whether by a Litigation Friend, an ALR, or a r1.2 representative, in order for there to be compliance with ECHR Art 5; (b) If so, what form of participation should the court require given the options available; and (c) If the LAA refused to fund PQ's representation during the review period, whether by a Litigation Friend or an ALR, what steps should the Court then take?" | 2024‑10‑10 12:01:25 | Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Litigation friend cases, Other capacity cases
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| * Gender dysphoria O v P [2024] EWHC 1077 (Fam) — "In this case I am considering applications with respect to a young person who has just attained the age of 16. The mother has applied for a prohibited steps order (PSO) pursuant to section 8 Children Act 1989 and for court to make a best interests declaration under the Inherent Jurisdiction. The father has applied for interim orders to be discharged and the proceedings to come to an end." | 2024‑10‑07 14:18:52 |
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| * Residence and care Re HC [2024] EWCOP 24 — The local authority and ICB responsible for meeting HC's care needs under s117 MHA 1983 jointly sought declarations that she lacked capacity to decide where she should live and receive care, and that it was in her best interests to move to a new placement immediately, using physical restraint if necessary. | 2024‑10‑07 14:01:07 | Pages using DynamicPageList3 parser function, Judgment available on Bailii, Cases, 2024 cases, Other capacity cases, After-care
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| * Donationes mortis causa Rahman v Hassan [2024] EWHC 1290 (Ch) — This case, primarily about transactions between the claimant and the deceased, mentions capacity under the common law and MCA 2005. | 2024‑06‑15 19:18:40 |
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| * Divorce D v S [2023] EWCOP 8 — "There are two applications before this Court. The first to be determined (in the Court of Protection) relates to a best interests decision in respect of D, who lacks capacity in a wide sphere of decision-taking in consequence of a severe acquired brain injury. The injury which occurred in 2006, resulted in significant physical and cognitive impairment. The second application (in the Family Court), which as will become clear below, is contingent upon the decision in the first, is an application for a decree nisi of divorce." | 2023‑06‑06 21:18:53 | 2023 cases
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| * Paedophilia A Local Authority v H [2023] EWCOP 4 — "H prefers to be referred to by female pronouns. ... H has expressed a sexual interest in pre-pubescent children. ... In the opinion of a highly experienced psychiatrist, instructed in these proceedings, H presents a real risk of sexual harm to children, both in contact with them and online. ... The Court has been asked to consider H's capacity to take decisions in the following areas: (i) Residence; (ii) Care/support; (iii) Contact with others (both adults and children); (iv) Use of the internet and social media." | 2023‑06‑06 21:11:13 | 2023 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Reporting restriction order cases, Sex and marriage cases, Judgment available on Bailii, 2023 cases
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| * Capacity and fact finding Sunderland City Council v FP [2020] EWCOP 75 — (1) The judge decided to assess capacity before moving on to fact finding: "I feel uncomfortable in assessing credibility and making findings and possibly making significant criticism without determining whether or not FP lacks capacity. If the evidence provides that FP has capacity across the board, the role of the Court of the Protection is rendered nugatory. If the Court is satisfied, on the evidence, that FP lacks capacity, in whatever regard, it is then the responsibility of the Court to investigate and reach conclusions about the best interests of FP in respect of matters on which she is found not to have capacity to decide. Therefore, I will consider the issue of capacity before proceeding, if justified, to make findings in this matter." (2) FP lacked capacity in relation to her care and support needs, residence and contact. (3) The LPA, under which FP's mother was the donee, was revoked. (4) Decisions about contact were for the Responsible Clinician (FP was detained under s3) but the court declared in the interim that FP should not live with her mother. | 2023‑03‑24 20:56:00 | 2020 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Closed hearing and closed material guidance Guidance: 'Closed Hearings' and 'Closed Material' [2023] EWCOP 6 — This guidance, given following Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44, relates to closed hearings (at which a party and, if represented, his representative is excluded by order of the court) and closed material (which the court has determined should not be seen by the party and/or his representative). | 2023‑02‑27 21:28:55 | 2023 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2023 cases
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| * Southern Irish wardship case Re FE (a ward of court) [2022] IEHC 646 — "[T]he then President ... directed that the Ward continue to be placed at a nursing home in North Dublin. There were associated Orders, including Orders which prevented the Ward from leaving the nursing home, and Orders in respect of the Ward being returned to the nursing home. ... When the application came before me, the HSE, who had been the moving party, indicated that they had evidence that the Ward no longer lacked capacity and that in those circumstances they were not seeking to renew the detention Order. The result of a finding of capacity would be that the wardship would fall away since the Court would no longer have jurisdiction. The Committee of the person and of the estate, who is the General Solicitor in this instance, indicated that they were of the opinion that the Ward continued to lack capacity." | 2022‑12‑16 21:40:51 | 2022 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Residence update post-judgment London Borough of X v MR [2022] EWCOP 29 — "On 13 January 2022 I handed down judgment in a case involving MR: London Borough of X v MR [2022] EWCOP 1. The issue was whether it was in MR's best interests to continue to reside in a secular care home or to move to a Jewish care home. I decided that it was in MR's best interests to move notwithstanding the risks arising from a transfer. I have been asked by several practitioners for news about how MR has fared. I am pleased to write that I have received a brief email saying that the move went smoothly, and he is doing very well in his new home ..." | 2022‑12‑04 11:59:59 | 2022 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Self-harm and Article 2 Gloucestershire City Council v AB [2022] EWCOP 42 — "On the afternoon of 29 September 2022, the Official Solicitor submitted that an operational duty had arisen under Article 2 of the European Convention on Human Rights for the public bodies to take reasonable steps to protect AB from a real and immediate risk to her life. This conclusion was not simply in the context of the recent change in policy as to self-harm and restraint but also events in August 2022 where AB had consumed both noxious substances and medication which required her to attend hospital. The Official Solicitor submitted that: (i) the position put forward by the Care Co-ordinator that the placement could implement their own care plans was clinically, ethically and legally unsustainable; (ii) it was legally questionable as to whether the self-harm arrangement could be authorised by way of schedule A1; (iii) the current arrangements in respect of self-harm are so unplanned and risky that they ought not continue; (iv) exceptionally, the care and support arrangements should be authorised by the Court and not by the processes set out in Schedule A1 of the Mental Capacity Act 2005. ... In light of the exceptional circumstances of this case, the public interest and to provide a sufficient element of public scrutiny considering the Official Solicitor’s submissions as to Article 2 of the ECHR, the Senior Judge has ordered that this order is published in this, anonymised, form." | 2022‑12‑04 11:35:22 | 2022 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Convention Adoption Order and capacity A v B [2022] EWHC 2962 (Fam) — This case involved an application for a Convention Adoption Order (under the 1993 Hague Adoption Convention) but mentions capacity in passing when the court dispensed with the consent of the mother. (Section 52(1) Adoption and Children Act 2002 states: "The court cannot dispense with the consent of any parent or guardian of the child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that (a) The parent or guardian cannot be found or lacks capacity within the meaning of the Mental Capacity Act 2005) to give consent, or (b) The welfare of the child requires the consent to be dispensed with.") | 2022‑12‑04 11:23:18 | 2022 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2022 cases
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| * Social media and internet use Re AA (Social media and internet use) [2021] EWCOP 70 — "In the absence of any evidence, for many months now, of AA putting himself at risk of harm in his use of the internet and social media, I am satisfied that there is insufficient evidence for me to conclude that he lacks capacity to make decisions in respect of his use of the internet and of social media. Even if I am wrong in coming to that conclusion and I ought to find that he does lack capacity, I am entirely satisfied that it is not in his best interests for the daily checks to be undertaken of his electronic devices because: (a) they deliver no evidence of any value and afford no protection to AA; and (b) it is contrary to AA's wishes that those checks are undertaken, which causes him some distress and/or at least uneasiness." | 2022‑12‑01 16:17:41 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Residence Lancashire and South Cumbria NHS Foundation Trust v AH [2022] EWCOP 45 — AH lacked capacity to make decisions about residence, care, sharing information concerning her physical and mental health and care, and conducting these proceedings. The judge noted that a DOLS mental capacity assessment had concluded that AH did not lack capacity, so AH had been detained under his order rather than DOLS (which attracts non-means-tested Legal Aid); he recommended that the court report author should carry out a DOLS assessment or, alternatively, the assessor should have access to the court report and any judgment about capacity. | 2022‑10‑31 12:45:06 | 2022 cases, Cases, Judgment available on Bailii, Other capacity cases, 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. | 2022‑10‑27 20:44:44 | 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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| * Injunctions Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312 — "The Court of Protection does have power to grant injunctions under s.16(5) of the 2005 Act, both in the case where a deputy has been appointed under s.16(2)(b) and in the case where the Court has made an order taking a decision for P under s.16(2)(a). In doing so, it is exercising the power conferred on it by s.47(1) and such an injunction can therefore only be granted when it is just and convenient to do so. This requirement is now to be understood in line with the majority judgment in Broad Idea as being satisfied where there is an interest which merits protection and a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something. In the present case, as is likely to be the case wherever an injunction is granted to prevent the Court's decision under s.16(2)(a) from being frustrated or undermined, those requirements are satisfied because G's interest in the December order being given effect to is an interest that merits protection, and the principle that the Court may make ancillary orders to prevent its orders being frustrated is ample justification for the grant of injunctive relief if the facts merit it." | 2022‑10‑27 20:23:38 | 2022 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, 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. | 2022‑06‑25 21:52:35 | 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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| * Habitual residence IM v Gateshead Council [2020] EWFC B85 — "My task is to consider the issue of habitual residence as of today. The Local Authorities, both Gateshead and Edinburgh, submit that habitual residence in England has not been established and IM continues to be habitually resident in Scotland. Mr Wilkinson on behalf of IM, instructed by the official solicitor, argues that IM is habitually resident in England. Determination of the issue is required because of the consequences which flow thereafter. ... If habitual residence in England is established the powers of the court thereafter are much wider than otherwise." | 2022‑04‑14 21:23:48 | 2020 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Guidance on judicial visits Guidance: Judicial visits to 'P' [2022] EWCOP 5 — This guidance was issued by Hayden J following Re AH [2021] EWCA Civ 1768, and contains information under three headings: (1) Introduction; (2) Principles; and (3) Practicalities. Contained in an appendix is guidance entitled "Facilitating participation of 'P' and vulnerable persons in Court of Protection proceedings" which was originally issued on 14/11/16 by Charles J. | 2022‑02‑10 21:03:32 | 2022 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii, 2022 cases
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| * Judicial visits Re AH [2021] EWCA Civ 1768 — This appeal against a Court of Protection serious medical treatment decision was allowed because of the nature of the judge's visit to the patient in hospital: it may have been that the judge considered AH to have given him some insight into her wishes; if so, the judge's decision was undermined because (a) it was strongly arguable that the judge was not equipped properly to gain any such insight (the validity of any such assessment might well have required further evidence or submissions) and (b) the parties needed to be informed about this and given an opportunity to make submissions. The Court of Appeal provided the following guidance pending any update to the guidance issued by Charles J: "Clearly, these matters will need to be determined before any visit takes place and after hearing submissions or observations from the parties: (a) Whether the judge will visit P; (b) The purpose of any visit; (c) When the visit is to take place and the structure of the visit (in other words, how the visit it to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken); (d) What is to happen after the visit. This will include, depending on the purpose of the visit, how the parties are to be informed what occurred; when and how this is to happen; and how this will fit within the hearing so as to enable it to be addressed as part of the parties' respective cases." | 2021‑12‑31 08:06:36 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Capacity in various areas Re ZK (No 2) [2021] EWCOP 61 — (1) In relation to residence, the judge noted: "ZK is having to learn that he can choose, as well as how to choose. If and when he develops that 'skill', he will almost certainly have capacity to make the decision." (2) The jointly-instructed expert had concluded that ZK had capacity to make decisions about contact with members of his family, but not others; the judge disagreed and, having decided that it would be unnecessary and disproportionate to direct further questions or to list a further hearing, declared that ZK lacked capacity in relation to contact with anyone. (3) The family asked for the residence decision to be revisited, but the judge decided that in the context of this litigation, its prolonged nature (it had begun over four years ago in relation to forced marriage concerns and continued in the COP), and the cost it must have had on all those concerned, it was not appropriate, necessary or proportionate to prolong matters further. | 2021‑11‑21 22:21:30 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Sex and contact A local Authority v P and CCG [2021] EWCOP 48 — P had capacity in relation to sex, but lacked capacity in relation to litigation, residence, care and contact. The judge's letter to P included the following explanation: "Sex is a part of contact with other people but in law considered separately. Everyone was prepared to agree you could understand what decisions you and the person you have sex with have to take. However the decision about who is a person who you can trust enough to have sex with is a decision about contact and the evidence shows me that this is something you do not have understanding about." | 2021‑09‑12 20:36:33 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2021 cases
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| * Capacity to access the internet and social media Re C [2020] EWCOP 73 — C lacked capacity to take decisions in relation to using the internet and social media: "I do not find that C can understand, retain and weigh the relevant information independently and, sadly, if the process could only really occur with the degree of supervision and prompting suggested then that would, in truth, be a fiction rather than a genuine exercise in autonomy. It would probably also be impractical in the care setting." | 2021‑09‑12 19:53:42 | 2020 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Capacity Liverpool City Council v CMW [2021] EWCOP 50 — The court made decisions on CMW's capacity in relation to the conduct of proceedings, the management of her affairs, her residence, her care, her contact with others, the use of social media and the internet, and whether she could engage in sexual relations. | 2021‑08‑29 21:19:44 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Removal of family member from home A Local Authority v TA [2021] EWCOP 22 — GA was an 87-year-old woman who lacked capacity to make decisions about her residence, health, or care needs owing to severe and deteriorating dementia. Living with her was her son TA (a controlling presence), daughter XA (visiting to assist TA), and son HA (believed to have schizophrenia). The court ordered TA and XA to leave the home, so that GA could receive social and medical care at home and have contact with other members of the family, and authorised GA's deprivation of liberty there. The court also prevented TA from returning within 100 yds, ordered him not to use GA's Motability car and not to publish information on the internet, limited his correspondence with the local authority and Official Solicitor, and made a civil restraint order for a period of two years. Committal proceedings brought by the local authority were to be considered at a future hearing. | 2021‑05‑16 08:31:29 | 2021 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * Residence/care capacity Y CCG v KG [2021] EWCOP 30 — In these s21A proceedings, the Court of Protection decided that KG, who had been clinically fit for discharge from hospital for two years but was extremely resistant to leaving hospital, lacked capacity in relation to future residence and care. | 2021‑05‑13 21:54:56 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, 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. | 2021‑04‑23 20:47:59 | 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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| * Travel, contact, internet London Borough of Greenwich v EOA [2021] EWCOP 20 — Decisions were made on EOA's capacity to make decisions in relation to:(a) foreign travel; (b) contact with his family and others; (c) social media and internet usage. | 2021‑04‑11 21:38:36 | 2021 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2021 cases
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| * s21A and capacity DP v London Borough of Hillingdon [2020] EWCOP 45 — Section 21A, capacity, section 48. | 2021‑04‑10 15:29:23 | 2020 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Capacity to discontinue proceedings Wickham v Riley [2020] EWHC 3711 (Fam) — (1) When the claimant served notice of discontinuance of this Inheritance (Provision for Family and Dependants) Act 1975 claim he had capacity to do so, and was not subject to duress or undue influence, so the notice was effective. (2) The court gave permission to issue a second set of proceedings notwithstanding the expiry of the limitation period (one factor being that the decision to discontinue was not a decision taken by a commercial entity after careful consideration but was the almost-certainly unwise decision of a vulnerable just-18 year old under the influence of and on the advice of his mother who was his primary carer). | 2021‑01‑30 22:28:50 | 2020 cases, Cases, Judgment available on Bailii, Other capacity 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. | 2020‑11‑21 23:29:52 | 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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| * Capacity - DOL Sunderland City Council v AS [2020] EWCOP 13 — (1) The court decided that a CTO patient lacked capacity in all relevant areas (litigation, residence, care and contact). When giving oral evidence the jointly-instructed psychologist changed her mind on: litigation capacity (initially she thought AS had litigation capacity while not having subject matter capacity), residence (she placed insufficient weight on 'structure and routine', which is an integral part of the information relevant to a decision on residence in supported as opposed to independent living), and fluctuating capacity. The judge noted with approval the approach in NICE guidance on "Decision-making and mental capacity" to people with executive dysfunction. (2) The court authorised the deprivation of liberty (there was a high level of supervision throughout the day and night, in the accommodation and community). | 2020‑07‑07 16:47:31 | 2020 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Litigation capacity cases, Other capacity 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." | 2020‑07‑03 10:10:38 | 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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| * Disclosure of documents Re Z [2019] EWCOP 55 — "This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making of the [court's] order." | 2020‑06‑20 20:39:52 | 2019 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, 2019 cases
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| * Capacity in family case CS v FB [2020] EWHC 1474 (Fam) — The judge in this international children law case made an interim declaration that the mother lacked capacity to litigate, to enable the Official Solicitor to be appointed as litigation friend and, with the benefit of legal aid, to investigate for final determination the mother's capacity to conduct these proceedings. | 2020‑06‑11 21:03:26 | 2020 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Residence and care capacity London Borough of Tower Hamlets v A [2020] EWCOP 21 — (1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment"). | 2020‑04‑26 09:02:36 | 2020 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2020 cases
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| * Interim declarations under s48 MCA 2005 DA v DJ [2017] EWHC 3904 (Fam) — In this case Parker J followed the approach of HHJ Marshall QC in Re F [2009] EWHC B30 (Fam)M rather than the approach of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam)B in relation to the correct approach to the threshold test for making an interim order under MCA 2005 s48 (which requires that there is "reason to believe that P lacks capacity in relation to the matter"). There is no need for the purpose and extent of the capacity assessment to be explained to the person concerned, and the evidence does not need to go so far as to rebut the presumption of capacity. | 2020‑03‑21 17:58:13 | 2017 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 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. | 2020‑02‑22 23:33:05 | 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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| * Claimant not told value of settlement DXW v PXL [2019] EWHC 2579 (QB) — "In the Application Notice seeking approval of the settlement, the Claimant also sought what has been called an "EXB Order" after the judgment of Foskett J in EXB v FDZ and others [2018] EWHC 3456 (QB)M. In that case, Foskett J made what was a novel form of order to the effect that it was not in the best interests of the claimant to know the amount of a settlement of his personal injuries action in circumstances where the court had also determined that the claimant lacked capacity to decide whether or not he should know the amount of the settlement." | 2019‑10‑05 21:24:52 | 2019 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Capacity and ability to communicate Patel v Arriva Midlands Ltd [2019] EWHC 1216 (QB) — "Dr Fleminger's assessment was: 'Whether or not he can understand what information he is given and use and weigh this information in the balance to make decision, he is unable to communicate any decision he has made. Whether or not he regains capacity in the future depends on the outcome of his conversion disorder'. I am satisfied on the balance of probabilities that Dr Fleminger's capacity assessment was made on the basis of incorrect information gleaned from the Claimant's presentation and from what he was told by Chirag Patel of the Claimant's disabilities, namely that the Claimant was unable to communicate any decision he has made. ... In addition ... I do accept Dr Schady's opinion [that there is no conversion disorder]. Once again that leaves the Claimant with a presumption of capacity. ... To summarise: (i) The Claimant is presumed to have capacity. (ii) The court finds that the Claimant has been fundamentally dishonest in respect of his claim, and his litigation friend Chirag Patel has participated in this dishonesty. (iii) The entirety of the claim is dismissed, the court being satisfied that no substantial injustice would be caused in so doing. The court assesses damages for the 'honest part' of the claim at £5750." | 2019‑05‑15 21:46:03 | 2019 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Marriage, prenuptial agreement, information about extent of assets, etc PBM v TGT [2019] EWCOP 6 — "... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto." | 2019‑05‑10 21:29:22 | 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Residence, contact, tenancy London Borough of Hackney v SJF [2019] EWCOP 8 — "SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into." | 2019‑03‑18 22:38:32 | 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * EXB v FDZ [2018] EWHC 3456 (QB) — "This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement. [I]t was thought by those who knew him best ... that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved. ... The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because 'by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant.' Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations. In those circumstances a declaration as to incapacity in relation to this specific decision is justified. ... This case is the first I can recall when an issue such as that which has arisen has occurred. ... I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result." The draft order included the following declarations: "(1) The Claimant lacks the capacity to decide whether or not he should know the amount of the Settlement. (2) It is in the Claimant's best interests that he does not know the amount of the Settlement. (3) It shall be unlawful for any person (whether the Claimant's deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life." | 2018‑12‑14 22:43:03 | 2018 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii, 2018 cases
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| * Contact SR v A Local Authority [2018] EWCOP 36 — "At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary." | 2018‑11‑29 21:25:14 | 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Placement for child Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance." | 2018‑11‑08 02:43:22 | 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Family Court considering MCA Z v Kent County Council [2018] EWFC B65 — This family court case - subtitled 'Revocation of placement order - Failure to assess Mother's capacity and Grandparents' - has a detailed consideration of the MCA 2005. Extract: "The law - capacity, presumption of capacity and determining protected party status. This issue is governed primarily by the Family Procedure Rules 2010 Part 15 and Practice Directions 15A and 15B, and by the Mental Capacity Act 2005. Additionally, there is guidance provided by the Department for Children, Schools and Families’ publication 'The Children Act 1989 Guidance and Regulations', and in April 2010 the Family Justice Council published guidance for proceedings and pre-proceedings called 'Parents who Lack Capacity to Conduct Public Law Proceedings' [updated in April 2018]." | 2018‑11‑08 02:26:08 | 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Capacity - residence, care, contact and finances Re FX [2017] EWCOP 36 — "I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions." | 2018‑07‑06 21:25:50 | 2017 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Fluctuating capacity Royal Borough of Greenwich v CDM [2018] EWCOP 15 — "In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests." | 2018‑07‑03 20:15:50 | 2018 cases, 39 Essex Chambers summary, Cases, Deprivation of liberty, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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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..." | 2018‑04‑27 20:10:34 | 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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| * 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." | 2018‑03‑28 21:47:31 | 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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| * Vexatious COP application Re SW (No 2) [2017] EWCOP 30 — "This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place." | 2018‑03‑19 01:09:49 | 2017 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| * COP bias Re M: A v Z [2018] EWCOP 4 — "This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests." | 2018‑03‑12 22:55:33 | 2018 cases, Bias cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018 cases
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| * Social security appointeeship DB (as executor of the estate of OE) v SSWP [2018] UKUT 46 (AAC) — "The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly." | 2018‑02‑26 22:50:22 | 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Welfare benefits cases, Judgment available on Bailii, 2018 cases
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| * Habitual residence DB and EC v Worcestershire County Council [2016] EWCOP 30 — "DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court." | 2017‑02‑12 21:31:18 | 2016 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on 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. | 2016‑12‑09 21:19:13 | 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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| * Contact Re L: K v LBX [2016] EWHC 2607 (Fam) — "In essence, K says that this court should intervene because his son lacks capacity to be able to decide contact. More recently he has made an application to remove Miss O'Connell as a litigation friend for L. ... By the order I made on 15 November 2013, I found that L had capacity to decide about residence and care and I made orders under the inherent jurisdiction regulating what contact there should be between L and his father, as I considered him to be a vulnerable adult, he needed orders being made to ensure he retained his capacity... There is no evidence that L's capacity has changed." | 2016‑11‑19 20:35:03 | Judgment available on Bailii, 2016 cases
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| Re Clarke [2016] EWCOP 11, [2016] MHLO 33 — "In 2012, I gave three judgments in this matter. ... A written application has now been made by Mr Michael Clarke on 3 September 2015 to vary the order of 9 October 2012 so as to allow the sale of Mrs Clarke’s Blackpool property. There has also been a request by Ms Angela Wilde and Mr Kevin Clarke for access to the property in order to inspect and maintain it, but no application has been issued, despite time being allowed. The application and request are both opposed." | 2016‑08‑31 21:17:47 | 2016 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| PJV v Assistant Director Adult Social Care Newcastle City Council [2016] EWCOP 7, [2016] MHLO 28 — "I am pleased record that the parties addressed these points [(i) the imposition of a term in a trust directed to the risk that a perpetrator would benefit from the award, (ii) the terms of the appointment of a deputy, (iii) the declaratory relief granted and the discharge of the Deputy, and (iv) the Peters undertaking and a restriction on the powers of the trustees]. I attach in Parts 1 and 2 of the Schedule hereto (i) the wording for the appointment of a deputy that was agreed, and (ii) the terms of the trust that were agreed (anonymised save for the identity of the original trustee). I also record that, as the appointment of the deputy was discharged, it was agreed that there was no need for a Peters undertaking. It seems to me that the agreed wording for the appointment of a deputy should be a useful precedent or starting point in other cases." (CICA case.) | 2016‑08‑29 21:22:12 | 2016 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| WBC v Z [2016] EWCOP 4, [2016] MHLO 27 — "The central issue which arises in this case is whether risks taken by a 20-year old young woman with autism represent 'unwise' decision-making, or evidence her lack of capacity." | 2016‑08‑29 21:02:08 | 2016 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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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." | 2016‑08‑29 20:39:18 | 2015 cases, ICLR summary, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| V v Associated Newspapers Ltd [2015] EWCOP 88, [2015] MHLO 128 — "I do not propose to say very much in this judgment. The reason I do not propose to say very much is that I am pleased to report that the media respondents have indicated to me that they would wish to put in some further evidence relating to the public interest in identifying C. They would also wish to (and I can understand why they would wish to) put in evidence relating to criticism of an approach by a journalist employed by one of them. Additionally and, to my mind, importantly, they also wish to take the opportunity, if so advised, to put in evidence and/or representations on more general points concerning the mechanics and principles that arise in respect of Court of Protection proceedings that the court directs are to be heard in public and in respect of which the court makes some form of reporting restriction order or anonymity order. ... In those circumstances, it seems to me that it is inevitably appropriate to continue the injunction until 4.30 on the day I hand down judgment. The indication from the Bar is that there will be no need for further oral submissions." | 2015‑12‑22 21:37:31 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| V v Associated Newspapers Ltd [2015] EWCOP 83, [2015] MHLO 127 — "MacDonald J ... concluded C did have capacity to refuse the treatment and dismissed the application by the Hospital Trust. C, sadly, died on 28 November 2015. ... I was notified at about 5.45 pm on 2 December 2015 that an application was likely to be made by Mr Vikram Sachdeva Q.C. on behalf of C's daughter, V, for the RRO to be extended after C's death. ... There is no issue between the parties that the court has jurisdiction to extend a RRO in these circumstances. ... I concluded the RRO should be extended for 7 days to enable an effective inter partes hearing to take place." | 2015‑12‑22 21:30:33 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function, Judgment available on Bailii
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| King's College Hospital NHS Foundation Trust v C [2015] EWCOP 80, [2015] MHLO 125 — "The question in this difficult and finely balanced case is whether C has the capacity to decide whether or not to consent to the life saving treatment that her doctors wish to give her following her attempted suicide, namely renal dialysis. Without such treatment the almost inevitable outcome will be the death of C. If the treatment is administered the likelihood is that it will save C's life, albeit that there remains an appreciable and increasing possibility that C will be left requiring dialysis for the rest of her life. C now refuses to consent to dialysis and much of the treatment associated with it. ... For the reasons set out above I am not satisfied on the evidence before the court that the Trust has established on the balance of probabilities that C lacks capacity to decide whether or not to accept treatment by way of dialysis. ... [A] capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient and, accordingly, a capacitous patient may refuse treatment even in circumstances where that refusal will lead to his or her death. The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect of growing old, the fear of living with fewer material possessions and the fear that she has lost, and will not regain, 'her sparkle' outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C's decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity. The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign." | 2015‑12‑22 20:44:29 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re HNL: ATL v Public Guardian [2015] EWCOP 77, [2015] MHLO 122 — "This is an application regarding the payment of a gratuitous care allowance. To describe the allowance as 'gratuitous' is slightly incongruous, as it is a payment towards the cost of maintenance of a close relative, who provides care and case management services to someone who is severely incapacitated because of an impairment of, or a disturbance in the functioning of, the mind or brain. ... The Public Guardian is currently reviewing all gratuitous care allowances paid by deputies to family members, particularly in cases where the person to whom the proceedings relate has been awarded damages for clinical negligence or personal injury. Because the number of families who are receiving allowances of this kind and are affected by the Public Guardian's review runs into thousands, I have concluded that it would be in the public interest to publish this judgment. ... Having regard to all the circumstances, therefore, I am satisfied that it is in Helen's best interests for Adrian to continue to provide care and case management services to her and that until further order he should be paid an allowance of £23,000 a year, tax-free in accordance with ESM4016. Even though Adrian has not specifically requested it, I propose to give him the option of index-linking future payments of the allowance. ... I understand that the Public Guardian will shortly be issuing a practice note on gratuitous care payments. ... In our initial discussions, the OPG suggested that these payments should be reviewed regularly. However, a review process of this kind is not cheap and, inevitably, it will have a knock-on effect on the amounts sought by claimants in respect of Court of Protection costs in future claims for damages for personal injury and clinical negligence. ... In Helen's case, because of the wide gulf between the commercial value of the services Adrian is providing and the actual payment he is receiving, I consider that it would be disproportionate to go through this process too frequently, and I suggest that Adrian's gratuitous care allowance should be formally reviewed again in 2022 or earlier, if necessary, because of a change in his or Helen's circumstances." | 2015‑12‑22 20:25:56 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Health Service Executive of Ireland v CNWL [2015] EWCOP 48, [2015] MHLO 119 — "Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?" | 2015‑12‑21 23:58:58 | 2015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| St George's Healthcare NHS Trust v P and Q [2015] EWCOP 42, [2015] MHLO 115 — "On 20 January 2015 the Health Trust responsible for his care made an application seeking declarations in this very serious medical case. They seek declarations: (i) That he lacks capacity (this is uncontentious); (ii) That it is not in his best interests to receive cardio pulmonary resuscitation (CPR) in the event of cardiac arrest (this is also now uncontentious); and (iii) As to whether it is lawful to continue to provide renal replacement therapy (RRT), the Trust wish to discontinue life sustaining treatment with the inexorable and inevitable consequence that as a result P would quickly die. ... There is almost nothing to rebut the very strong presumption that it is in P's best interests to stay alive. I order and direct that the renal replacement therapy should continue. ... The application was launched, it might be thought, somewhat precipitously, before any SMART testing had been undertaken. ... Therefore in all cases where there is any question of doubt about diagnosis, in order to eliminate mistakes or potential tragedies it is essential that those assessments [such as SMART or WHIM] are carried out in good time so that the diagnosis is clear before the Court, then the Court can conduct its own enquiry and balance." | 2015‑12‑21 23:31:30 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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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." | 2015‑12‑18 23:03:04 | 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. | 2015‑11‑29 22:00:53 | 2015 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re RS [2015] EWCOP 56, [2015] MHLO 85 — "The matters before the court proceed as a challenge to the standard authorisation pursuant to Section 21A of the Mental Capacity Act 2005. ... On 28th May ... capacity being the gateway to the jurisdiction of this court a report was ordered pursuant to Section 49 of the Mental Capacity Act 2005 ... I am not prepared to vary or alter the principle behind the original order of 28th May. Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere." | 2015‑10‑31 20:48:24 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Newcastle City Council v PV [2015] EWCOP 22, [2015] MHLO 51 — "This judgment considers the role of the Court of Protection in connection with applications to the Criminal Injuries Compensation Authority ('CICA'). In particular, it looks at cases in which the CICA requires a trust to be created in order to exclude any possibility that the assailant may benefit from the compensation award. These cases arise almost exclusively in the context of domestic violence, where the assailant is a family member." [See appeal decision.] | 2015‑07‑20 20:19:11 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| R (MT) v Oxford City Council [2015] EWHC 795 (Admin), [2015] MHLO 47 — The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the Housing Act 1996. (1) The claimant's argument that Article 14 (with Article 8) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 National Assistance Act 1948). | 2015‑06‑26 22:53:16 | 2015 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
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| A Healthcare NHS Trust v P and Q [2015] EWCOP 15, [2015] MHLO 23 — "The Trust ... applied to the Court for a declaration in P's best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. ... At the same time they also applied for a reporting restriction order with accompanying documentation. When they sought to serve that material on the Press Association through the service known as CopyDirect, but now in fact called the Injunctions Alert Service, the second respondent objected to the disclosure of any identity either of P or of P's family. ... As a result I listed a hearing ... for the Court to consider four questions: (Generally) (1) Whether in applications for reporting restrictions orders the applicant, when notifying the Press of the application, is required to identify the parties and or P. (Specifically in this application) (2) Whether further hearings in these proceedings should be heard in public. (3) Whether there should be any reporting restrictions in relation to these proceedings and if so those restrictions. (4) Such further directions as seemed appropriate to the Court." | 2015‑03‑24 19:35:57 | 2015 cases, Judgment available on Bailii, No summary, Other capacity cases, 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 ..→ | 2015‑01‑31 20:37:41 | 2015 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Kicks v Leigh [2014] EWHC 3926 (Ch), [2014] MHLO 136 — "The Claimants claim that the transfer by Mrs Smith to the Defendant of the Proceeds should be set aside on either of two grounds, namely that: (1) Mrs Smith lacked the mental capacity to make such a gift or transfer; (2) The gift or transfer was procured by the Defendant's exercise of undue influence over Mrs Smith." | 2014‑12‑31 16:26:55 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWCA Civ 1350, [2014] MHLO 134 — This appeal by Aster Healthcare was unsuccessful. | 2014‑12‑31 15:42:31 | 2014 cases, Community care, Judgment available on Bailii, No summary, Other capacity 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." | 2014‑12‑31 15:38:07 | 2014 cases, Community care, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Royal Free NHSFT v AB [2014] EWCOP 50, [2014] MHLO 127 — "The Trust seeks three declarations that: (a) AB lacks capacity to consent to medical treatment, including to a Caesarean Section; (b) AB lacks capacity to monitor and regulate her own intake of food and/or drink; (c) AB lacks capacity to decide whether to comply with her regime of diabetic medication." | 2014‑12‑30 23:45:05 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Gloucestershire CCG v AB [2014] EWCOP 49, [2014] MHLO 126 — "All parties are now agreed that AB's life is futile, in the sense of that word used by Lord Goff in the Bland case. ... AB has no awareness. He merely exists. There is no prospect of recovery. This court accepts the fundamental importance of the sanctity of life, but, as Butler-Sloss P noted in the passage cited above, that is not an absolute principle and does not impose an obligation to provide treatment where life is futile. ... I unhesitatingly conclude that ... it would be in his best interests for artificial nutrition and hydration to be withdrawn, provided this is carried out in an appropriate fashion by nursing staff trained in the provision of palliative care. In his final report, Professor Wade makes a number of recommendations as to the management of the withdrawal of artificial nutrition and hydration and subsequent treatment ... and I endorse those recommendations." | 2014‑12‑30 23:39:42 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| An English Local Authority v SW and A Scottish Local Authority [2014] EWCOP 43, [2014] MHLO 122 — "The issue in this case is where an adult ('SW'), who lacks capacity, is habitually resident. This is for the purposes of determining whether the English court has jurisdiction to deal with applications under the Mental Capacity Act 2005. ... The parties' respective positions are as follows. The Official Solicitor submits that SW is habitually resident in England and Wales. The [English Local Authority] and the [Scottish Local Authority] submit that she is habitually resident in Scotland." | 2014‑12‑30 23:04:36 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Derbyshire County Council v AC [2014] EWCOP 38, [2014] MHLO 121 — "In inviting the Court of Protection to exercise its jurisdiction, the Local Authority asserts that AC lacks capacity in the following areas: (i) to litigate in these proceedings; (ii) to make choices about her future care, therapeutic and educational needs; (iii) in relation to contact with others; and (iv) in making informed decisions about her future residence. In respect of (i)-(iii) above, the Local Authority invites me to make final declarations under section 15 of the Mental Capacity Act 2005. In respect of (iv) it invites me to make an interim declaration under section 48 of the 2005 Act, pending further capacity assessments of AC. The Local Authority has invited the court to consider AC's capacity to consent to sexual relations; it invites me to conclude that she does have capacity in this regard. The Local Authority further invites me to make limited best interests decisions following on from the capacity declarations. Specifically, and importantly, it invites me to declare (re (iv) above) that it is in AC's best interests that she reside at Pennine House (a pseudonym), a residential home which is geographically local to her parents' home." | 2014‑12‑30 23:00:26 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Sex and marriage cases, Transcript
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| A Local Authority v M [2014] EWCOP 33, [2014] MHLO 119 — (1) Legal Aid: "One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy." (2) Disclosure: "In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. ... This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure." (3) Fact finding: "The principal focus of this hearing has been to make findings on disputed issues of fact as the basis for future decisions about M's life. In my judgment, the legal principles to be applied at a fact finding hearing in the Court of Protection should be broadly the same as in children's proceedings where a court is investigating allegations that a child has been ill-treated or neglected. I have summarised those principles in a number of children's cases, including Re JS [2012] EWHC 1370 (Fam)B. Of those principles, the following seem to me to be of particular importance in this case. ..." (4) Orders: Various interim orders, including on contact and residence, were made and a decision on deputyship was adjourned. | 2014‑12‑30 22:02:00 | 2014 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re DM [2014] EWHC 3119 (Fam), [2014] MHLO 112 — "This Claimant local authority sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult, which contemplated: (i) interference with the mother/baby relationship following the birth, to a degree which involved some unspecified level of forced separation and, potentially, removal of the child; (ii) that the mother should not be informed of key aspects of the plan. I phrase the ambit of the relief sought carefully, because it seems to me that, whilst the local authority thought long and hard about the birth plan, it had not managed to reflect fully on the practicalities, extent of their intervention or the proportionality of the measures required." | 2014‑12‑30 13:23:08 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Bradbury v Paterson [2014] EWHC 3992 (QB), [2014] MHLO 110 — "The application before me raises a novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor's costs ceases to be available." | 2014‑12‑30 13:01:01 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| * Residence LBX v K, L and M [2012] EWHC 439 (Fam) — "The central issue that I have to determine is whether it is in L’s best interests that he should remain in supported living accommodation or return home. He has been living in supported accommodation called the J placement, on a trial basis, since 24th August 2011. The LBX submit that L should remain in supported living accommodation; this is supported by the OS on behalf of L and by M. K contends that L should return to live with him as this accords with his wishes or his wishes are difficult to determine and all the stated benefits that are relied on to support the decision for L to live in supported living accommodation can be achieved by L living at home, with all the additional benefits that living within the family brings L." | 2014‑11‑08 20:41:30 | 2012 cases
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| * Residence LBX v K, L and M [2011] EWHC 2419 (Fam) — "The issues to be determined at this hearing are: (i) whether it is in L’s best interest to move to supported living accommodation on a trial basis; (ii) whether the hearing listed in September 2011 is required and, (iii) any further directions." | 2014‑11‑08 20:37:25 | Pages using DynamicPageList3 parser function, Cases, 2011 cases
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| * Unknown LBX v K, L and M [2010] EWHC 2422 (COP) — A summary will be added when the judgment has been located. Mentioned in Re L; K v LBX [2012] EWCA Civ 79 at para 3. | 2014‑11‑08 20:28:05 | 2010 cases
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| Derbyshire County Council v Kathleen Danby [2014] EWCOP B26, [2014] MHLO 106 — "Today was listed to give Mrs Danby the opportunity of persuading me that the sentence I imposed in April was wrong, that I should reduce it, mitigate it or even quash it, and she has failed to avail herself of that opportunity. So, in the circumstances, I have no alternative other than to leave the sentence outstanding, together with the warrant of arrest. If Mrs Danby is arrested pursuant to that warrant she can apply to purge her contempt and I will see her as soon as is possible to look at the matter." | 2014‑11‑04 22:00:56 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function, Judgment available on Bailii
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| BIM v MD [2014] EWCOP 39, [2014] MHLO 100 — Dispute over who should act as property and affairs deputy. | 2014‑10‑30 21:26:52 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re DG: David v Peter [2014] EWCOP 31, [2014] MHLO 94 — Contested application for the appointment of a deputy for property and affairs. | 2014‑09‑09 22:42:32 | 2014 cases, Judgment available on Bailii, Judgment available on MHLO, No summary, Other capacity cases, Transcript
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| MAP v RAP [2013] EWHC 4784 (Fam), [2013] MHLO 151 — A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance. | 2014‑08‑24 20:24:59 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| * Capacity LBX v K, L and M [2013] EWHC 3230 (Fam) — "The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. ... Having considered all the evidence and the submissions that have been made, I have reached the conclusion that there does need to be a further assessment as to L’s capacity." | 2014‑08‑07 13:26:28 | Judgment missing from Bailii, 2023 cases
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| LBX v TT [2014] EWCOP 24, [2014] MHLO 84 — (1) Consideration of evidence relevant to the capacity of TT to litigate, to make decisions about residence, contact and her package of care, and her capacity to consent to sexual relations, and findings in that regard. (2) Consideration of "(i) How I should approach a 'best interests' decision at an interim hearing (MCA 2005 s48) which has been set up for the calling of reasonably extensive oral evidence; (ii) What factors should influence the exercise of the court's discretion in deciding whether there should be a finding of fact hearing at an interim (or final) hearing?" (3) Findings of fact. (4) Best interests and declarations. | 2014‑08‑06 13:13:50 | 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| LB Islington v QR [2014] EWCOP 26, [2014] MHLO 80 — "This is an application originally made by Camden & Islington NHS Foundation Trust for an order that QR’s current tenancy of a property owned by the London Borough of Islington be terminated due to QR's lack of capacity to make such decision for herself. ... In my judgment QR lacks capacity to make the decisions which are at issue in the case. ... Is this one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity? ... It would fly in the face of my own experience of dealing with the case to find that QR lacks capacity to litigate. ... Removing a person’s capacity to litigate is a significant interference. I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate." | 2014‑08‑01 16:22:32 | 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment missing from Bailii
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| Re RGS (No 3) [2014] EWCOP B12, [2014] MHLO 76 — "The primary issue was whether it continued to be in RGS's best interests to reside at X Care Home having regard to the fact that he had been injured there. The two secondary issues concerned contempt of court and reporting restrictions." | 2014‑08‑01 12:20:43 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re RGS (No 2) [2013] MHLO 147 (COP) — "On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended." | 2014‑08‑01 12:18:09 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re P (capacity to tithe inheritance) [2014] EWCOP B14, [2014] MHLO 74 — Headnote from judgment: 'Application by the local authority deputy for property and affairs - Whether P has capacity to tithe 10% of his inheritance to the Church of the Latter Day Saints - Mental Capacity Act 2005 test and the common law test in Re Beaney - Whether such a gift is in P's best interests - Whether P has litigation capacity' | 2014‑08‑01 11:51:00 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Derbyshire County Council v Kathleen Danby [2014] EWCOP B22, [2014] MHLO 73 — "Before me today the local authority contends that this Respondent Grandmother, Kathleen Danby, is in breach to a significant degree of the injunction granted by Her Honour Judge Thomas. ... Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has. I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment. ... In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months' imprisonment concurrently. I shall issue a warrant for her arrest and list the matter for review, I think in two months' time, unless Miss Cavanagh tells me that it is a wrong date to choose, in which case I shall listen to what she has to say. I shall direct that this lady can come before the court, mitigate and try to persuade me to take a different view if she can justify her behaviour and explain to me what she has done and why it is not as bad as I see it to be." | 2014‑08‑01 11:46:10 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| A Local Authority v B, F and G [2014] EWCOP B21, [2014] MHLO 71 — "The local authority seeks that the father and grandmother should not have any contact with her save by indirect supervised telephone calls once every four weeks and no other. The local authority takes the view that that position should continue for a period of five years. ... However, should the restriction of applications to Court be as long as five years? I have borne in mind the very careful submissions of Ms. Lattimer, and I bear in mind, too, that B wants to see her father, even though she does not appreciate the dire emotional effects he appears to have had on her. I have concluded that it would be right to restrict applications to vary the injunction for a period of four years only. That is still a very substantial period and quite outside the norm." | 2014‑08‑01 11:31:32 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function, Judgment available on Bailii
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| A Local Authority v B, F and G [2014] EWCOP B18, [2014] MHLO 70 — "This case raises the novel point as to whether or not a Hadkinson order can be granted in the Court of Protection and whether or not, in the circumstances of this particular case, it should be. I am unaware of there being any previous such orders in the Court of Protection, though it seems to me that that is no impediment to one being made in a case like this involving contempt, such as this." | 2014‑08‑01 11:26:42 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Press Association v Newcastle Upon Tyne Hospitals Foundation Trust [2014] EWCOP 6, [2014] MHLO 68 — "This application arising from proceedings in the Court of Protection raises questions about the continued confidentiality after a person's death of information gathered during litigation occurring during her lifetime. The first question is whether an order that preserving the person's anonymity (and hence the confidentiality of information about her) can continue to have effect after her death. If such a power exists, the second question is whether it should be exercised in the present case. For the reasons set out below, I consider that the court does have the power to preserve the anonymity of the protected person after death but that in this case the balance falls in favour of lifting that anonymity." | 2014‑08‑01 11:01:21 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re EU (Appointment of deputy) [2014] EWCOP 21, [2014] MHLO 64 — "EU's sons, JU and TU, have objected to an application by Suffolk County Council to be appointed as his deputy for property and financial affairs. ... Having regard to all the circumstances, therefore, I am satisfied that it is in EU's best interests to appoint Suffolk County Council to be his deputy for property and affairs and to dismiss his sons' objections." | 2014‑08‑01 10:39:10 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| GW v A Local Authority [2014] EWCOP 20, [2014] MHLO 59 — "In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of Liberty Safeguards in Schedule A1 to the Act and/or is compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The fact that this point had been raised was a material consideration in my decision to grant permission to appeal against Judge Marston's order. In their response to this appeal, the first respondent, the local authority for the area where GW lives, being the supervisory body for the purposes of the DOLS, and the second respondent, ('B Ltd') the owners and managers of the residential home where GW is currently living, contended that this proposed appeal amounted in effect to a second appeal following the decision of the district judge. Under rule 182 of the Court of Protection Rules 2007, 'a decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal'. At the outset of the hearing before me, Miss Weston on behalf of the appellant (who did not appear at first instance) conceded that this provision ruled out my consideration of the proposed further appeal. Accordingly, the only question for this court to determine is the appeal on the issue of capacity." | 2014‑08‑01 10:08:28 | 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| LB Redbridge v G (No 5) [2014] EWCOP 17, [2014] MHLO 53 — (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or F to remain. ... I consider that I have powers under s 17 to make the order I have that C and F vacate G's home..." (3) LPA: "As I have concluded that it is not in G's best interests for C to remain in her home, then it follows that it is not in G's best interests for C to be her appointed health and welfare Attorney. ... On the findings I have made ... it is more likely than not that C used undue pressure. ... I revoke the LPA..." (4) Contact: "I cannot find any benefit for G in having any direct or indirect contact with C or F either now or in the future." | 2014‑07‑28 13:36:29 | 2014 cases, 39 Essex Street summary, Judgment available on Bailii, LPA cases - revocation, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16, [2014] MHLO 51 — "The critical decision is whether it is in N's best interests to continue invasive, risk laden, medical care as would be involved in a further attempt at artificial feeding. I am utterly convinced that it would not. Accordingly, I declare that it is lawful and in her best interests for the clinicians (a) not to make any further attempt to secure a means of providing artificial nutrition; (b) to withdraw the provision of intravenous fluids and dextrose; and (c) to provide such palliative care and related treatment (including pain relief) as considered appropriate to ensure she suffers the least distress and retains the greatest dignity until such time as her life comes to an end." | 2014‑07‑23 21:37:50 | 2014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| R (ZYN) v Walsall MBC [2014] EWHC 1918 (Admin), [2014] MHLO 40 — "The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives. ... For the reasons given, I find that the Council's policy on charging for the cost of social care services is unlawful insofar as it takes account of any of the capital derived from the claimant's personal injury settlement." | 2014‑06‑12 22:24:03 | 2014 cases, Community care, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| North Somerset Council v LW [2014] EWCOP 3, [2014] MHLO 39 — "At the conclusion of the hearing on 23 April an issue about costs arose. ... I am in no doubt that, on the evidence before me, UHBT fell well short in meeting their duties to LW and her unborn child. ... The cumulative effect of these factors is that part of the hearing on 15 April and the whole of the hearing on 16 April, were completely ineffective. Accordingly I am satisfied that in the premises the court is justified in departing from the general rule that there be no order as to costs: rr 157 & 159. ... Accordingly I propose to order that UHBT pay the whole of the Official Solicitor's costs of 15 and 16 April. In contrast the hearing of 23 April was an effective hearing albeit I ultimately made no order on the full evidence then before the court. Thus the usual rule will apply in respect of the hearing on 23 April, namely UHBT will pay one half of the Official Solicitor's costs for that hearing. Those costs are to be assessed, if not agreed, on a standard basis. In respect of the costs of the local authority, on the basis that it applied for and was granted orders under the inherent jurisdiction and a RRO on the morning of 15 April. I shall direct that UHBT pay one half of the local authority's costs of the hearing on 15 April and the whole of its costs for the hearing on 16 April. For the reason given in paragraph 43 above, I make no order for costs for the hearing on 23 April." | 2014‑06‑10 14:37:35 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| North Somerset Council v LW [2014] EWHC 1670 (Fam), [2014] MHLO 38 — "In those circumstances I am satisfied that if the mother were to learn of the plan to remove her child at birth there is a very real risk she would harm herself and a very very real risk that she would cause physical harm to her baby. ... On the exceptional facts of this case I was wholly satisfied that the balance fell decisively in favour of making the [Reporting Restrictions Order]. It was the only proportionate course to be taken to secure the safety of the mother and of the child. ... At the hearing on 6 May it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order. ... I am in no doubt that the only order I can make in EW's welfare best interests is an interim care order." | 2014‑06‑10 14:28:37 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Sheffield Teaching Hospitals NHS Foundation Trust v TH [2014] EWCOP 4, [2014] MHLO 37 — "On the 14th May 2014 I granted declarations in respect of TH, a 52 year old man presently in a minimally conscious state at what has been described as the lower end of the spectrum of that condition (i.e. a very profound disorder of consciousness). There is no doubt TH lacks capacity to litigate in these proceedings and also lacks the capacity to give or withhold consent to his medical treatment. ... In relation to withdrawal of nutrition and hydration I am persuaded that the correct course is to adjourn this issue to provide for a structured clinical assessment to evaluate whether there is evidence that TH's primary neurological pathways are sufficiently intact to permit any evidence of awareness to be detected and fully to assess, over a set period of time, TH's general awareness, responsiveness and capacity to experience pain. The National Clinical Guidelines have been drawn to my attention in some detail and Professor Barnes has highlighted the benefits of a standard assessment tool, for example the Sensory Modality Assessment and Rehabilitation Technique (SMART) and the Wessex Head Injury Matrix (WHIM)." | 2014‑06‑10 14:19:20 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| An NHS Foundation Hospital v P [2014] EWHC 1650 (Fam), [2014] MHLO 35 — "This short judgment explains the reasons for an order I have just made as the out of hours judge in the middle of the night on 13th and 14th May 2014 on an extremely urgent application by a hospital foundation trust for a declaration that it is lawful for its doctors to treat a seventeen-year-old girl following a drug overdose notwithstanding her refusal to consent to that treatment." | 2014‑06‑08 00:48:44 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re Gladys Meek [2014] EWCOP 1, [2014] MHLO 32 — "This is the hearing of an application by Mr Hugh Adrian Scott Jones, the property and affairs deputy for Gladys Meek, for: (i) authority pursuant to section 18(1)(i) of the Mental Capacity Act 2005 to execute a statutory will on behalf of Mrs Meek; and (ii) consequential directions in relation to Mrs Meek’s property and affairs, and in particular: (a) an order calling in the £275,000 security bond of Mrs Meek’s two former property and affairs deputies, Mrs Janet Miller and Mrs Margaret Phyllis Johnson; and (b) a direction as to whether the deputy should refer the conduct of Mrs Miller and Mrs Johnson to the police." | 2014‑05‑18 00:39:35 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| LB Redbridge v G (No 3) [2014] EWCOP 1361, [2014] MHLO 29 — "These are personal welfare proceedings in the Court of Protection. They relate to an elderly lady, G, who is 94 years old. She is represented by the Official Solicitor as her litigation friend. The proceedings were launched, in circumstances I describe below, by the London Borough of Redbridge. The two other parties to the proceedings are G's two carers, C and F. I have before me an application by Associated Newspapers Limited (ANL), publishers of the Daily Mail." | 2014‑05‑10 14:58:50 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function, Judgment available on Bailii
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| LB Redbridge v G (No 2) [2014] EWCOP 959, [2014] MHLO 28 — "It seems to me that, weighing these matters one against the other, it is not in G's best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G's capacity to make such relationships with the press it is, in my judgment, clearly in G's best interests that I should make an interim order that she should not make such communications. ... The second matter which I have been invited to adjudicate upon is what, if any, role should be played by the Applicant authority in the interim period between now and the 2nd May hearing. ... I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers ..." | 2014‑05‑10 14:50:56 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function, Judgment available on Bailii
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| The Local Authority v HP [2013] EWCOP B40, [2013] MHLO 145 — "The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. ... They now accept that it is not necessary for a declaration in respect of capacity to marry. ... The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment." | 2014‑05‑02 01:37:41 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Julia Lomas v AK (gift application) [2014] EWHC B11 (COP), [2014] MHLO 21 — AK's financial deputy sought the court's approval of a £150,000 gift to AK's parents to allow them to build a suitably-adapted house for when AK stayed in Pakistan each year; she sought a gift as it would be unrealistic in Pakistan to obtain receipts for all expenditure and expensive to translate those received. The Official Solicitor supported the proposed gift only if it proved impossible for AK instead to purchase an interest in the land or part of it. The judge decided that it would be in AK's best interests for a 10-year interest-free £150,000 loan to be made to his parents, and authorised the deputy to make annual gifts of £15,000, from any surplus, to AK's parents to assist them in repaying this loan. This arrangement was preferable to a gift because AK would retain the capital as part of his estate, and it was more likely to ensure that his parents actually carried out the building work; coincidentally, it should avoid inheritance tax. | 2014‑04‑27 21:24:13 | 2014 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Wandsworth CCG v IA [2014] EWHC 990 (COP), [2014] MHLO 19 — This case illustrates the difficulties in assessing capacity where: (a) the cognitive difficulties of the subject are multi-factorial; (b) there is evidence that the subject displayed strong and challenging pre-morbid personality traits; and (c) there is no doubt that he plainly has capacity in relation to decision-making in some domains of his life. Having heard oral evidence for the jointly-instructed expert neuro-psychiatrist, the court decided that IA had capacity in relation to (a) ongoing medical treatment; (b) future residence and care; and (c) management of his property and affairs. | 2014‑04‑27 21:09:07 | 2014 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Newcastle upon Tyne Hospitals Foundation Trust v LM [2014] EWHC 454 (COP), [2014] MHLO 14 — "On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. ...At the end of the hearing I granted the application and made the following declaration: 'It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.' ... I find that LM made a decision that the doctors rightly considered must be respected. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. ... The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court's jurisdiction to restrict the reporting after a person's death of information gathered during proceedings that took place during her lifetime. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question." | 2014‑03‑05 02:23:46 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| LB Redbridge v G [2014] EWHC 485 (COP), [2014] MHLO 13 — "Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. ... I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction. ... The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare. It is my intention to so direct. ... Rule 90 (3) allows me to authorise any person or class of persons to attend the hearing and, given the interest of the Press, I will allow accredited members of the media to attend. However there will be an order, as before, prohibiting the publication of anything that will lead to the identification of G, C and F and any other private individual concerned with the proceedings." | 2014‑03‑05 02:16:42 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| JS v KB and MP (Property And Affairs Deputy for DB) [2014] EWHC 483 (COP), [2014] MHLO 12 — "This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for: (i) the financial and emotional vulnerability of the person who lacks capacity; and (ii) the requirements for formal, and legal, authorisation for the family's actions, specifically in relation to property and financial affairs. ... For the reasons set out above, the order I make is that: (i) JS shall pay four-fifths of the deputy's litigation costs to date; (ii) JS shall pay two-thirds of the litigation costs of KB. Given the possibility that JS will be unable to fund the costs within a reasonable time, either from the sale of the Spanish property or otherwise, I propose to allow MP to explore the mechanics of an equity release scheme to permit JS to discharge her liability for costs by way of a loan against the equity in Beech Avenue. I give MP leave to apply for such a scheme. ... I give further leave to MP to investigate, and if the need arises to bring proceedings against PK solicitors for any financial loss suffered by DB." | 2014‑03‑05 02:11:01 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re ES: Kent County Council v PLC and AJS [2014] EWHC B6 (COP), [2014] MHLO 10 — "Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs. ... I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed." | 2014‑03‑04 15:30:45 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), [2014] MHLO 9 — "My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her." | 2014‑03‑04 15:24:07 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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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." | 2014‑03‑04 14:59:13 | 2014 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re X, Y and Z (Minors) [2014] EWCOP 87 — "On 20th and 29th November 2013, sitting as a judge in the Family Division and in the Court of Protection, I made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother who is a person lacking capacity within the meaning of the 2005 Act. This judgment sets out the reasons for making those orders." | 2014‑03‑04 14:50:58 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5 — "The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)." | 2014‑03‑04 14:45:44 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re PW (Court of Protection Order) [2014] EWHC B8 (COP), [2014] MHLO 4 — "The applicant in this matter, Sunderland City Council, brings these proceedings for committal against Lindsey M for breach of an order which this court made on 14th October 2013. ... Lindsey M admits that on 28th October she breached the order which the court had made and therefore brought herself within breach of the suspended order for imprisonment which the court had made on 14th October. Upon that date the court made a suspended order, which was suspended upon the basis that she complied with the previous court order and that she did not seek to have contact, or go into the property of PW. ... In all the circumstances, it seems to me that before I determine what is an appropriate sentence in all the circumstances it would be preferable to see whether Miss M, in fact, does carry out what she says to the court she will do, namely not to have a relationship with PW. I make it clear for Miss M's sake that if there are no further breaches then I will deal with the admitted breach by taking no action upon it." | 2014‑03‑04 14:42:06 | 2014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| R (Muhammad) v SSHD [2013] EWHC 3157 (Admin), [2013] MHLO 123 — Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused. | 2013‑12‑21 22:51:47 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Repatriation cases, Transcript
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| TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing. | 2013‑12‑20 20:49:08 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re P (A Child) [2013] EWHC 4048 (Fam), [2013] MHLO 116 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - full judgment, including detailed chronology. | 2013‑12‑17 20:30:04 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re P (A Child) [2013] EWHC 4037 (Fam), [2013] MHLO 115 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment. | 2013‑12‑17 20:28:01 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re PO: JO v GO [2013] EWHC 3932 (COP), [2013] MHLO 110 — Judgment relating to Hague Convention on the International Protection of Adults 2000 and MCA 2005 sch 3. | 2013‑12‑13 20:31:30 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Cuthbertson v Rasouli (2013) SCC 53, [2013] MHLO 109 — Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent. | 2013‑12‑12 21:43:09 | 2013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
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| Re Devillebichot (deceased) [2013] EWHC 2867 (Ch), [2013] MHLO 107 — The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence. | 2013‑12‑12 20:30:22 | 2013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
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| Re P (A Child) [2013] EWHC 4383 (Fam), [2013] MHLO 106 — Decision of Charles J on reporting restrictions in 'forced caesarian' case. | 2013‑12‑11 22:51:58 | 2013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
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| Pearce v Beverley [2013] EW Misc 10 (CC) — "This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. ... In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007." | 2013‑08‑16 19:45:04 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| An NHS Trust v L [2012] EWHC 4313 (Fam), [2012] MHLO 180 (COP) — "By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. ... I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust's application. ... Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L's death and not to prolong, in any meaningful way, his life. I repeat Dr Bell's powerful analysis - It would result in Mr L's death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit." | 2013‑08‑14 19:44:24 | 2012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, [2013] MHLO 72 — "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over 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. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then the provision of the accommodation would in the circumstances have been a necessary either at common law or under section 7 of the Mental Capacity Act 2005, and he would have been obliged to pay a reasonable price for it, which would have been recoverable from his estate (Wychavon District Council v EM [2012] UKUT 12 (AAC)M). Mr. Harrison, like others before him in similar cases, has sought to contend that the council was not in fact acting under those powers but was acting unlawfully both because Mr. Jackson’s dementia was so severe that he required to be provided for by the NHS, and indeed ought to have been sectioned under the Mental Health Act, because he lacked capacity to consent to being admitted to the care home, and because he had no need of accommodation because he already had his own home. These points are misconceived and self-contradictory." | 2013‑08‑08 20:16:05 | 2013 cases, Detailed summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Loughlin v Singh [2013] EWHC 1641 (QB), [2013] MHLO 71 — "On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the circumstances, set out in detail above, in which Professor Barnes came to give his "revised" opinion, nor that no-one at Pannone had shown the report of Dr Huddy to Professor Barnes. ... All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision." | 2013‑08‑08 19:52:43 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| RC v CC [2013] EWHC 1424 (COP), [2013] MHLO 68 — "The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC's incapacity that enables an application to be made." | 2013‑08‑08 03:02:32 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| An NHS Foundation Trust v M and K [2013] EWHC 2402 (COP), [2013] MHLO 67 — "The painful and difficult issues now to be faced by M's family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition." | 2013‑08‑08 02:56:33 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re Joan Treadwell (Deceased); OPG v Colin Lutz [2013] EWHC 2409 (COP), [2013] MHLO 57 — "This judgment concerns an application by the Public Guardian to enforce a security bond in respect of unauthorised gifts made by the late Mrs Joan Treadwell’s deputy for property and affairs, Colin Lutz." | 2013‑08‑01 21:43:03 | 2013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
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| Re Clarke [2013] EWCA Civ 811, [2013] MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters. | 2013‑07‑15 19:47:06 | 2013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| Re SK [2013] MHLO 49 — "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.] | 2013‑07‑04 15:47:49 | 2013 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Other capacity cases, Transcript
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| Pitt v Holt [2013] UKSC 26, [2013] MHLO 46 — 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; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point. | 2013‑05‑11 15:47:42 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re GM: MJ and JM v The Public Guardian [2013] EWHC 2966 (COP), [2013] MHLO 44 — "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place." | 2013‑05‑07 07:57:57 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Stoke City Council v Maddocks [2013] EWHC 1137 (COP), [2013] MHLO 38 — (1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) Any attempt to publicise the case would be a cruelty to JM. (7) The case would be reviewed on the first available date after 3 months, or earlier if a committal application is made by the local authority. | 2013‑05‑04 14:07:58 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] MHLO 36 — "Mr Leslie Stolkin ..., some seven weeks before his death, executed a codicil. This case concerns the validity of that document. ...[O]ne of the deceased's sons, Mr Gary Stolkin ... disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. ... In my judgment, the Disputed Codicil is valid, and it should be admitted to probate." | 2013‑05‑04 09:21:07 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Baker Tilley (A Firm) v Makar [2013] EWHC 759 (QB), [2013] MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. | 2013‑04‑05 21:27:47 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| R (Chatting) v Viridian Housing [2012] EWHC 3595 (Admin), [2012] MHLO 177 — "This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. ... On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting's best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg's claim and also sought a ruling on two further issues of interpretation of the compromise agreement." | 2013‑03‑28 12:07:30 | 2012 cases, Community care, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| PB v RB [2012] EWHC 4159 (COP), [2012] MHLO 174 — "This decision deals with a fact-finding hearing held on 10-12 September 2012. ... The local authority sought to prove 13 alleged facts ... " | 2013‑03‑28 08:02:10 | 2012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re RGS [2012] EWHC 4162 (COP), [2012] MHLO 173 — "RGS is the person concerned in these proceedings ('P'). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure." | 2013‑03‑28 07:54:58 | 2012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Mihailovs v Latvia 35939/10 [2013] ECHR 65, [2013] MHLO 15 — "The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights." | 2013‑03‑26 21:59:55 | 2013 cases, ECHR, Judgment available on Bailii, MHLR summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| Lashin v Russia 33117/02 [2013] ECHR 63, [2013] MHLO 14 — "The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry." | 2013‑03‑26 21:53:05 | 2013 cases, ECHR, Judgment available on Bailii, MHLR summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| WCC v AB [2012] MHLO 168 (COP) — Whether AB's aunt should be appointed as litigation friend. | 2013‑03‑26 21:08:16 | 2012 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Other capacity cases, Transcript
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| LB Waltham Forest v WD [2010] MHLO 195 — "The issues which I have to consider are four fold: first, WD’s future accommodation and residence; secondly, his contact arrangements with other members of his family; thirdly, the application by the Local Authority for the appointment of a deputy under the Mental Capacity Act 2005; and fourthly, whether or not these proceedings should now come to an end. Other matters of the care plan are fully agreed between the parties. As I have said, the plan put before me is comprehensive and this court is happy to endorse it." | 2013‑03‑26 18:06:00 | 2010 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Other capacity cases, Transcript
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| Turner v Phythian [2013] EWHC 499 (Ch), [2013] MHLO 10 — "Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. ... The second ground is that Iris lacked mental capacity to make the will. ... The third ground is that Iris did not know or approve of the contents of the will. ... I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will." | 2013‑03‑25 23:37:04 | 2013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69, [2013] MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.] | 2013‑03‑25 23:30:58 | 2013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| DO v LBH [2012] EWHC 4044 (Admin), [2012] MHLO 165 — "I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings." | 2013‑03‑25 23:05:31 | 2012 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
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| J Council v GU [2012] EWHC 3531 (COP), [2012] MHLO 137 — "Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts." [Detailed summary available.] | 2012‑12‑19 19:08:41 | 2012 cases, Detailed summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Calvert v Clydesdale Bank Plc [2012] EWCA Civ 962, [2012] MHLO 131 — There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor's lack of capacity. | 2012‑12‑18 23:30:21 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| X v Finland 34806/04 [2012] ECHR 1371, [2012] MHLO 128 — "The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication." [Detailed summary available via external link.] | 2012‑12‑18 20:25:10 | 2012 cases, Detailed summary, ECHR, Judgment available on Bailii, Other capacity 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.] | 2012‑11‑17 23:38:26 | 2012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re AS; SH v LC [2012] MHLO 113 (COP) — AS's niece objected to a panel solicitor's application to be appointed deputy with specific authority to sell a property. (1) Generally speaking the order of preference for the appointment of a deputy is: (a) P's spouse or partner; (b) any other relative who takes a personal interest in P’s affairs; (c) a close friend; (c) a professional adviser, such as the family's solicitor or accountant; (d) a local authority's Social Services Department; and finally (e) a panel deputy, as deputy of last resort. (2) The court prefers to appoint a family member or close friend because of: (a) familiarity with P’s affairs, wishes and communication methods; (b) likely greater ability to consult with P and encourage participation; (c) reasons of economy; (d) the concept of deputyship of last resort. (3) The appointment of a family member will generally be a less restrictive alternative, though the question remains as to whether this will achieve the desired objective as effectively as the appointment of a panel deputy. (4) The court would not appoint a family member in cases involving, for example: (a) financial or other abuse; (b) conflict of interests; (c) an unsatisfactory track record in managing financial affairs; and (d) ongoing friction between various family members. (5) On the facts, the niece was appointed as there was no need for a deputy of last resort. (6) The general rule as to costs (that AS pay) was followed. | 2012‑11‑12 23:12:51 | 2012 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Other capacity cases, Transcript
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| A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112 — The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, if unaccompanied by contemporary medical evidence asserting capacity, might be seriously open to challenge. (3) The same observations applied to X's capacity to revoke or create lasting or enduring powers of attorney. (4) X lacked capacity to manage his own affairs: although a snapshot of X's condition at certain times would reveal an ability to manage his affairs, the general concept of managing affairs is an ongoing act and relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. (5) X also lacked capacity to litigate: this required separate consideration because the time frame involved is different to managing affairs on the one hand, or making a will or granting power of attorney on the other. The basis for this assessment was stated in Masterman-Lister: 'whether the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings'. (6) No finding was sought in relation to capacity to decide on contact, and the judge thought 'the idea that this distinguished elderly gentleman’s life should be circumscribed by contact provisions as though he was a child in a separated family' to be deeply unattractive. (7) There should be (a) a greater emphasis on judicial continuity in the COP, and (b) a pre-hearing review in any case estimated to last three days or more. | 2012‑11‑12 22:59:02 | 2012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, LPA cases - capacity to make an LPA, Other capacity cases, Transcript
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| Stoke City Council v Maddocks [2012] EWHC B31 (COP), [2012] MHLO 111 — (1) One of JM's children, WM, had breached court orders by, amongst other things, (a) arranging for JM to be taken from the care home to hear judgment delivered, and separately to see a solicitor, (b) discussing the possibility of moving back home with him, (c) harassing her father and employees of the local authority and care home. (2) WM was sentenced to five months' imprisonment for contempt because (a) there had been a considerable number of breaches of court orders, and (b) she had no intention, unless restrained by a severe measure by the court, of obeying the orders herself. | 2012‑11‑11 06:37:42 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re CA (A Baby); Coventry City Council v C [2012] EWHC 2190 (Fam), [2012] MHLO 110 — The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge seriously doubted the social worker's assessment that she had such capacity. (3) There was no informed consent because (a) the mother was never told that continued refusal of consent would result in the child staying in hospital with her for another day or two, and (b) she was told that removal was only a temporary arrangement when it was highly unlikely to be anything of the sort. (4) In relation to fairness, the local authority had settled an HRA damages claim, accepting that (a) s20 consent should not have been sought on the day it was, and (b) removal was not a proportionate response to the risks that then existed. (5) The court made the care order and (adoption) placement order which the local authority had sought, as the case for that was overwhelming. | 2012‑11‑08 23:43:57 | 2012 cases, Detailed summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109 — (1) Michael Clarke's application that the court postpone a decision on costs (and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian) was refused. (2) The costs of the other family members and the deputy would be charged from Ann Clarke's estate. (3) In the light of the one-sided publicity that Michael Clarke gives to the affairs of the family, the three judgments were placed into the public domain. | 2012‑10‑29 23:21:55 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108 — Michael Clarke objected to the deputy selling of his elderly mother's (Ann Clarke's) house to pay for future care as he considered it to be his. (1) No party asked for an oral hearing and the judge was satisfied that there was nothing to be gained by that. (2) Thre was a balance to be struck between the consequences of (a) retaining the property and leaving Ann Clarke on a low income, or (b) selling the property and maintaining a higher standard of living for Ann Clarke until the funds are exhausted, with her having no familiar home and, if she lived long enough, no money either. (3) Mrs Clarke's Blackpool property shall not be sold or charged during her lifetime without an order of this Court. (4) The deputyship was therefore discharged. (5) Publication of the judgments was authorised as, given Michael Clarke's comprehensive and long-standing breaches of his mother's entitlement to privacy, the court's reasons should be made known. | 2012‑10‑29 23:20:52 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript, Pages using DynamicPageList3 parser function
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| Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107 — Following an accident, Ann Clarke suffered brain injuries and was awarded damages of £775,000. This money was used to pay for care and buy a home in Blackpool which was worth £200-250,000. The deputy proposed to sell the house to pay for care when the remainder of the money ran out, but Michael Clarke (son and carer) applied to court to prevent this. (1) Ann Clarke had the mental capacity to make a will (in particular, one leaving the house to the applicant and nothing to his siblings). (2) Whether or not Ann Clarke had mental capacity to manage her state pension and benefits it was lawful and in her best interests for these to be paid to her carer(s) to be applied for her benefit. (3) Ann Clarke did not have the mental capacity to decide whether or not her Blackpool property should be sold. | 2012‑10‑29 23:14:53 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| RP v UK 38245/08 [2012] ECHR 1796, [2012] MHLO 102 — The appointment of the Official Solicitor (who decided, against RP's wishes, not to oppose the making of a care order and a placement order) did not breach RP's Article 6 or Article 8 rights. | 2012‑10‑13 21:43:31 | 2012 cases, Brief summary, ECHR, Judgment available on Bailii, Other capacity cases, Transcript
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| Re SK [2012] EWHC 1990 (COP), [2012] MHLO 98 — "This is an application by the parties to certain Queen's Bench personal injury proceedings who seek in effect to be joined in these Court of Protection proceedings. The subject of both sets of proceedings is SK, a mentally incapacitated adult aged 55. The issue which arises one way or another in both sets of proceedings is as to his care, accommodation and rehabilitation. The two applicants for joinder to these proceedings are (a) CK, aged 52, brother of SK and (b) GA Group PLC, a bus company whose bus struck SK in November 2008, causing him severe lasting brain and physical injuries. That company is the defendant in the Queen's Bench proceedings." | 2012‑09‑30 21:26:27 | 2012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89 — KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under MCA 2005 s21A. (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty. | 2012‑09‑27 22:31:54 | 2012 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Other capacity cases, Transcript
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| Re BS; SC v BS [2012] MHLO 78 (COP) — The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed. | 2012‑08‑17 15:17:27 | 2012 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Other capacity cases, Transcript
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| Re DS; A Local Authority v DS [2012] EWHC 1442 (Fam), [2012] MHLO 68 — In this case the President of the Family Division gave guidance on LSC prior authority for expert evidence in the Family Division, and suggested wording for court orders. | 2012‑06‑23 14:37:14 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Sedge v Prime [2012] MHLO 66 (QB) — "This is an application for an interim payment of £300,000 to enable the Claimant to move from the 'Little Oyster' residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely." | 2012‑06‑23 14:16:30 | 2012 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
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| Re G [2012] EWCA Civ 431, [2012] MHLO 52 — The local authority issued proceedings under the court's inherent jurisdiction in relation to a 30-year-old with Downs Syndrome history who was in the exclusive care of her mother. This decision relates to an unsuccessful appeal against case management orders. | 2012‑05‑05 22:07:35 | 2012 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
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| Verlander v Rahman [2012] EWHC 1026 (QB), [2012] MHLO 49 — Personal injury quantum judgment including the following issues: (1) whether and to what extent the claimant's disabilities were due to frontal lobe brain damage (and are now incapable of significant improvement) or due depression or psychological factors (which may well improve over time); (2) whether the claimant had capacity to manage her properties and affairs. | 2012‑05‑05 13:28:22 | 2012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
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| LB Haringey v FG (No. 1) [2011] EWHC 3932 (COP) — "In this case there are a number of matters: does H have capacity to conduct litigation; does she have capacity to decide where she should live, or capacity to decide where she should be educated, or capacity to decide on the extent of the contact and relationship she should have with her natural family; capacity to deal with her financial affairs, or to enter into what has been described as a tenancy agreement, and capacity in a sense to judge her own best interests in those respects?" | 2012‑05‑05 12:50:35 | 2011 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
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| Re EB; IB v RC [2011] EWHC 3805 (COP) — "This is an application by the applicant, IB, for the removal of the respondent as his mother's deputy for property and affairs. There is also a counter-application by the respondent, RC, for orders that the applicant sign letters of authority in relation to two bank accounts that are held in the joint names of EB and the applicant." | 2012‑03‑28 22:29:55 | 2011 cases, Judgment available on Bailii, No summary, Other capacity 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. | 2012‑03‑28 21:52:47 | 2012 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Seaton v Seddon [2012] EWHC 735 (Ch), [2012] MHLO 28 — Chancery case partly involving, in relation to the fourth claimant, consideration of the effect of mental incapacity on statutory limitation periods. (1) If a claimant is under one disability (minority) when the cause of action accrued, and subsequently under a second overlapping disability (mental incapacity), the limitation period does not run until he is no longer under the second disability. (2) The question of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced (in this case: whether he was 'of unsound mind [meaning that he] by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing or administering his property and affairs' rather than the new test of whether he 'lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings'. (3) On the facts, the fourth claimant was not 'of unsound mind'; hence he would not meet the new test either. | 2012‑03‑24 14:10:16 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. (1) The police actions constituted assault, battery and false imprisonment. There was no need for the police to be aware of the Mental Capacity Act 2005 for the defence in ss5-6 to be made out, but on the facts it was not. When the MCA applies, the common law defence of necessity has no application, but had it applied it would have failed. (2) There was a breach of the DDA 1995 duty to make reasonable adjustments to the normal practice, policy or procedure, and the defence of justification failed. (3) The inhuman or degrading treatment breached Article 3. (4) Even treating purpose and intention as relevant, there was a breach of Article 5. (5) The intereference with ZH's private life under Article 8 was not in accordance with the law or proportionate. (6) Quantum: PTSD £10,000; exacerbation of epilepsy £12,500; DDA £5,000; trespass to the person (loss of liberty £500, pain and distress from assault £250); total £28,250; no aggravated or exemplary damages; no additional HRA damages. | 2012‑03‑23 22:00:49 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Long v Rodman [2012] EWHC 347 (Ch), [2012] MHLO 12 — The general guardian (under an order made by a court in Nevada) sought to be appointed deputy in place of the existing deputy. Variation or discharge under s16(7) must be done in accordance with P's best interests; in this case a change of deputy would not be in P's best interests. | 2012‑03‑01 23:01:30 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re M [2011] EWHC 3590 (COP) — Under MCA 2005 s63 and schedule 3, which incorporates the Hague Convention on the International Protection of Adults 2000 into domestic law, the High Court recognised and gave effect to an order of the Southern Irish High Court which required M's transfer to and treatment at an English psychiatric hospital. | 2012‑02‑04 17:51:15 | 2011 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
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| Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC), [2012] MHLO 5 — The UT judge reviewed his previous decision because he had overlooked a legislative provision which could have had a material effect on the decision: in this case MCA 2005 s7, which provides that 'If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.' (1) Although the purported tenancy agreement between P and her father was void because the lack of capacity was known, under s7 P was still 'liable to make payments in respect of the dwelling which she occupies as her home' so she was entitled to benefits under the Housing Benefits Regulations 2006. (2) Even if 'services' in s7 is not wide enough to cover the provision of accommodation, the common law rules as to necessaries survive and the provision of accommodation is an obvious necessary. | 2012‑02‑04 17:11:36 | 2012 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re H; A Local Authority v H [2012] EWHC 49 (COP), [2012] MHLO 3 — "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.] | 2012‑01‑27 20:03:41 | 2012 cases, Judgment available on Bailii, No summary, Other capacity cases, Sex and marriage cases, Transcript
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| DM v Doncaster MBC [2011] EWHC 3652 (Admin) — DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) domestic legislation required this result and it was not suggested that the legislation was incompatible with European obligations. | 2012‑01‑22 19:47:43 | 2011 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1 — (1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded. | 2012‑01‑17 22:03:51 | 2012 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Judgment available on Bailii, Other capacity cases, Transcript
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| Re C; C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP) — C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship. | 2012‑01‑05 23:33:29 | 2011 cases, Detailed summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam) — "The Claimant, whom I shall call Ms B, seeks declarations from the High Court in its exercise of the inherent jurisdiction. She claims that the invasive treatment which is currently being given by the respondent by way of artificial ventilation is an unlawful trespass. The respondent is the NHS Hospital Trust (the Trust) responsible for the hospital which is currently caring for Ms B, (the Hospital). At the request of the court the Official Solicitor instructed Mr Peter Jackson QC to act as Advocate to the Court. The main issue is whether Ms B has the capacity to make her own decision about her treatment in hospital. Underlying this important issue is the tragic story of an able and talented woman of 43 who has suffered a devastating illness which has caused her to become tetraplegic and whose expressed wish is not to be kept artificially alive by the use of a ventilator." [Paras 1 and 2 of judgment.] | 2012‑01‑05 20:31:06 | 2002 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
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| Re AB; AB v LCC (A Local Authority) [2011] EWHC 3151 (COP) — There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P's); (iii) the RPR can and is willing to act as litigation friend in P's best interests; and (iv) the procedure as set out in COP rule 143 is complied with. The judge set out the pros and cons of this course of action; in this case, he appointed the RPR to as P's litigation friend. | 2011‑12‑08 21:30:16 | 2011 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re RB (Adult); A London Borough v RB (Adult) (No 1) [2010] EWHC 2423 (Fam) — This case under the inherent jurisdiction concerned RB's best interests in relation to residence and contact. Of the 16 issues considered by the judge, he found for RB's partner MF in relation to one sub-issue (which was a 'saddening example of the institutional inability of some bureaucracies ever to admit that something has gone wrong') but against him in relation to all others (most of which were MF's unfounded criticisms of almost everybody involved in the case: the judge's own criticisms of Dr Kahtan and the MP are worth reading). Had she not died during the hearing, it would have been, given MF's inability to cooperate with any community care package, in RB's best interests to continue residing at the care home. | 2011‑12‑03 20:42:26 | 2011 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re RB (Adult); A London Borough v RB (Adult) (No 2) [2011] EWHC 112 (Fam) — MF's applications for permission to appeal and for a re-trial were refused as being devoid of merit. | 2011‑12‑03 20:39:59 | 2011 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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| Re RB (Adult); A London Borough v RB (Adult) (No 3) [2011] EWHC 2576 (Fam) — (1) MF's claim for compensation was dismissed as it had no factual foundation; it also had no legal basis. (2) MF sought costs from the local authority; the Official Solicitor sought costs against MF (from a certain date) and the local authority (to the extent that costs were increased by their stance): there was no order for costs, except that MF was to pay 20% of the Official Solicitor's costs between certain dates, to reflect the time spent on the peripheral issues which MF had raised and the 'extravagant, strident and on occasions vicious way in which he chose to pursue them'. | 2011‑12‑03 20:39:48 | 2011 cases, Brief summary, COP costs cases, Judgment available on Bailii, Other capacity cases, Transcript
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| Re RB (Adult); A London Borough v RB (Adult) (No 4) [2011] EWHC 3017 (Fam) — There is no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults, so it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court. | 2011‑11‑21 22:21:06 | 2011 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
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Article titles
The following 200 pages are in this category.
(previous page) (next page)A
- A Healthcare NHS Trust v P and Q (2015) EWCOP 15, (2015) MHLO 23
- A Local Authority v B, F and G (2014) EWCOP B18, (2014) MHLO 70
- A Local Authority v B, F and G (2014) EWCOP B21, (2014) MHLO 71
- A Local Authority v DL (2010) EWHC 2675 (Fam)
- A Local Authority v DL (2011) EWHC 1022 (Fam)
- A Local Authority v E (2007) EWHC 2396 (Fam)
- A Local Authority v H (2023) EWCOP 4
- A Local Authority v M (2014) EWCOP 33, (2014) MHLO 119
- A local Authority v P and CCG (2021) EWCOP 48
- A Local Authority v TA (2021) EWCOP 22
- A NHS Foundation Trust v G (2022) EWCOP 25
- A Primary Care Trust v AH (2008) EWHC 1403 (Fam)
- A v B (2022) EWHC 2962 (Fam)
- A, B and C v X, Y and Z (2012) EWHC 2400 (COP), (2012) MHLO 112
- AA v London Borough of Southwark (2021) EWCA Civ 512
- Aberdeenshire Council v SF (No 2) (2024) EWCOP 10
- Aberdeenshire Council v SF (No 3) (Change of Habitual Residence) (2024) EWCOP 74 (T3)
- AMDC v AG (2020) EWCOP 58
- An English Local Authority v SW and A Scottish Local Authority (2014) EWCOP 43, (2014) MHLO 122
- An NHS Foundation Hospital v P (2014) EWHC 1650 (Fam), (2014) MHLO 35
- An NHS Foundation Trust v M and K (2013) EWHC 2402 (COP), (2013) MHLO 67
- An NHS Trust v DE (2013) EWHC 2562 (Fam), (2013) MHLO 78 (COP)
- An NHS Trust v L (2012) EWHC 4313 (Fam), (2012) MHLO 180 (COP)
- Aster Healthcare Ltd v The Estate of Mohammed Shafi (2014) EWCA Civ 1350, (2014) MHLO 134
- Aster Healthcare Ltd v The Estate of Mohammed Shafi (2014) EWHC 77 (QB), (2014) MHLO 133
B
C
D
- D v S (2023) EWCOP 8
- DA v DJ (2017) EWHC 3904 (Fam)
- DB (as executor of the estate of OE) v SSWP (2018) UKUT 46 (AAC)
- DB and EC v Worcestershire County Council (2016) EWCOP 30
- De Louville De Toucy v Bonhams 1793 Ltd (2011) EWHC 3809 (Ch)
- Derbyshire County Council v AC (2014) EWCOP 38, (2014) MHLO 121
- Derbyshire County Council v Kathleen Danby (2014) EWCOP B22, (2014) MHLO 73
- Derbyshire County Council v Kathleen Danby (2014) EWCOP B26, (2014) MHLO 106
- DL v A Local Authority (2012) EWCA Civ 253, (2012) MHLO 32
- DM v Doncaster MBC (2011) EWHC 3652 (Admin)
- DO v LBH (2012) EWHC 4044 (Admin), (2012) MHLO 165
- DP v London Borough of Hillingdon (2020) EWCOP 45
- Dunhill v Burgin (2011) EWHC 464 (QB)
- Dunhill v Burgin (2012) EWCA Civ 397, (2012) MHLO 33
- Dunhill v Burgin (2012) EWHC 3163 (QB), (2012) MHLO 115
- DXW v PXL (2019) EWHC 2579 (QB)
G
- G v E (2010) EWHC 2512 (COP)
- Gale v Gale (2010) EWHC 1575 (Ch)
- GJ v The Foundation Trust (2009) EWHC 2972 (Fam)
- Gloucestershire CCG v AB (2014) EWCOP 49, (2014) MHLO 126
- Gloucestershire City Council v AB (2022) EWCOP 42
- Gorjat v Gorjat (2010) EWHC 1537 (Ch)
- Greaves v Stolkin (2013) EWHC 1140 (Ch), (2013) MHLO 36
- Guidance: 'Closed Hearings' and 'Closed Material' (2023) EWCOP 6
- Guidance: Judicial visits to 'P' (2022) EWCOP 5
- GW v A Local Authority (2014) EWCOP 20, (2014) MHLO 59
H
- Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, (2013) MHLO 72
- Haworth v Cartmel and HMRC (2011) EWHC 36 (Ch)
- Health Service Executive of Ireland v CNWL (2015) EWCOP 48, (2015) MHLO 119
- Health Service Executive of Ireland v PA (2015) EWCOP 38, (2015) MHLO 107
- Heart of England NHS Foundation Trust v JB (2014) EWHC 342 (COP), (2014) MHLO 9
- Hill v Fellowes Solicitors LLP (2011) EWHC 61 (QB)
I
J
K
- KC v City of Westminster Social and Community Services Department (2007) EWHC 3096 (Fam)
- KC v City of Westminster Social and Community Services Department (2008) EWCA Civ 198
- Key v Key (2010) EWHC 408 (Ch)
- Kicks v Leigh (2014) EWHC 3926 (Ch), (2014) MHLO 136
- King's College Hospital NHS Foundation Trust v C (2015) EWCOP 80, (2015) MHLO 125
- KY v DD (2011) EWHC 1277 (Fam)
L
- Lancashire and South Cumbria NHS Foundation Trust v AH (2022) EWCOP 45
- Lashin v Russia 33117/02 (2013) ECHR 63, (2013) MHLO 14
- LB Haringey v FG (No. 1) (2011) EWHC 3932 (COP)
- LB Islington v QR (2014) EWCOP 26, (2014) MHLO 80
- LB Redbridge v G (2014) EWHC 485 (COP), (2014) MHLO 13
- LB Redbridge v G (No 2) (2014) EWCOP 959, (2014) MHLO 28
- LB Redbridge v G (No 3) (2014) EWCOP 1361, (2014) MHLO 29
- LB Redbridge v G (No 5) (2014) EWCOP 17, (2014) MHLO 53
- LB Waltham Forest v WD (2010) MHLO 195
- LBL v RYJ (2010) EWHC 2665 (COP)
- LBX v K, L and M (2010) EWHC 2422 (COP)
- LBX v K, L and M (2011) EWHC 2419 (Fam)
- LBX v K, L and M (2012) EWHC 439 (Fam)
- LBX v K, L and M (2013) EWHC 3230 (Fam)
- LBX v TT (2014) EWCOP 24, (2014) MHLO 84
- Leicestershire County Council v P (Capacity: Anticipatory declaration) (2024) EWCOP 53 (T3)
- Lindsay v Wood (2006) EWHC 2895 (QB)
- Liverpool City Council v CMW (2021) EWCOP 50
- London Borough of Ealing v KS (2008) EWHC 636 (Fam)
- London Borough of Greenwich v EOA (2021) EWCOP 20
- London Borough of Hackney v SJF (2019) EWCOP 8
- London Borough of Tower Hamlets v A (2020) EWCOP 21
- London Borough of X v MR (2022) EWCOP 29
- Long v Rodman (2012) EWHC 347 (Ch), (2012) MHLO 12
- Loughlin v Singh (2013) EWHC 1641 (QB), (2013) MHLO 71
M
- MAP v RAP (2013) EWHC 4784 (Fam), (2013) MHLO 151
- MASM v MMAM (2015) EWCOP 3, (2015) MHLO 10
- Masterman-Lister v Brutton and Co (2002) EWCA Civ 1889
- Masterman-Lister v Jewell (2002) EWHC 417 (QB)
- Mihailovs v Latvia 35939/10 (2013) ECHR 65, (2013) MHLO 15
- Ms B v An NHS Hospital Trust (2002) EWHC 429 (Fam)
N
- Newcastle City Council v PV (2015) EWCOP 22, (2015) MHLO 51
- Newcastle upon Tyne Hospitals Foundation Trust v LM (2014) EWHC 454 (COP), (2014) MHLO 14
- NHS Trust v FG (2014) EWCOP 30
- North Somerset Council v LW (2014) EWCOP 3, (2014) MHLO 39
- North Somerset Council v LW (2014) EWHC 1670 (Fam), (2014) MHLO 38
O
P
- P v Independent Print Ltd (2011) EWCA Civ 756
- Patel v Arriva Midlands Ltd (2019) EWHC 1216 (QB)
- PB v RB (2012) EWHC 4159 (COP), (2012) MHLO 174
- PBM v TGT (2019) EWCOP 6
- Pearce v Beverley (2013) EW Misc 10 (CC)
- Perrins v Holland (2009) EWHC 1945 (Ch)
- Perrins v Holland (2010) EWCA Civ 1398
- Perrins v Holland (2010) EWCA Civ 840
- Peters v East Midlands SHA (2009) EWCA Civ 145
- Pitt v Holt (2010) EWHC 45 (Ch)
- Pitt v Holt (2011) EWCA Civ 197
- Pitt v Holt (2013) UKSC 26, (2013) MHLO 46
- PJV v Assistant Director Adult Social Care Newcastle City Council (2015) EWCOP 87, (2015) MHLO 138
- PJV v Assistant Director Adult Social Care Newcastle City Council (2016) EWCOP 7, (2016) MHLO 28
- Practice Guidance (Transparency in the Court Of Protection) (2014) EWHC B2 (COP), (2014) MHLO 5
- Press Association v Newcastle Upon Tyne Hospitals Foundation Trust (2014) EWCOP 6, (2014) MHLO 68
R
- R (Chatting) v Viridian Housing (2012) EWHC 3595 (Admin), (2012) MHLO 177
- R (MT) v Oxford City Council (2015) EWHC 795 (Admin), (2015) MHLO 47
- R (Muhammad) v SSHD (2013) EWHC 3157 (Admin), (2013) MHLO 123
- R (W) v LB Croydon (2011) EWHC 696 (Admin)
- R (ZYN) v Walsall MBC (2014) EWHC 1918 (Admin), (2014) MHLO 40
- R v Heaney (2011) EWCA Crim 2682
- R v Hopkins; R v Priest (2011) EWCA Crim 1513
- Rahman v Hassan (2024) EWHC 1290 (Ch)
- RC v CC (2013) EWHC 1424 (COP), (2013) MHLO 68
- RC v CC (2014) EWHC 131 (COP), (2014) MHLO 7
- Re AA (Social media and internet use) (2021) EWCOP 70
- Re AB; AB v LCC (A Local Authority) (2011) EWHC 3151 (COP)
- Re AH (2021) EWCA Civ 1768
- Re AS; SH v LC (2012) MHLO 113 (COP)
- Re BJB (2024) EWCOP 59 (T2)
- Re BS (2009) NIFam 5
- Re BS; SC v BS (2012) MHLO 78 (COP)
- Re C (2020) EWCOP 73
- Re C; C v Blackburn with Darwen Borough Council (2011) EWHC 3321 (COP)
- Re CA (A Baby); Coventry City Council v C (2012) EWHC 2190 (Fam), (2012) MHLO 110
- Re Clarke (2012) EWHC 2256 (COP), (2012) MHLO 107
- Re Clarke (2012) EWHC 2714 (COP), (2012) MHLO 108
- Re Clarke (2012) EWHC 2947 (COP), (2012) MHLO 109
- Re Clarke (2013) EWCA Civ 811, (2013) MHLO 52
- Re Clarke (2016) EWCOP 11, (2016) MHLO 33
- Re CM; LBB v JM (2010) COP 5/2/10
- Re D (A Child): Liverpool City Council v AM (2018) EWCOP 31
- Re D: A v B (2020) EWCOP 1
- Re Devillebichot (deceased) (2013) EWHC 2867 (Ch), (2013) MHLO 107
- Re DG: David v Peter (2014) EWCOP 31, (2014) MHLO 94
- Re DM (2014) EWHC 3119 (Fam), (2014) MHLO 112
- Re DS; A Local Authority v DS (2012) EWHC 1442 (Fam), (2012) MHLO 68
- Re DY (Capacity) (2024) EWCOP 4
- Re EB; IB v RC (2011) EWHC 3805 (COP)
- Re EM (2022) EWCOP 31
- Re ES: Kent County Council v PLC and AJS (2014) EWHC B6 (COP), (2014) MHLO 10
- Re EU (Appointment of deputy) (2014) EWCOP 21, (2014) MHLO 64
- Re F (2009) EWHC B30 (Fam)
- Re F (Adult Patient: Court's Jurisdiction) (2000) EWCA Civ 192
- Re FE (a ward of court) (2022) IEHC 646
- Re FX (2017) EWCOP 36
- Re G (2012) EWCA Civ 431, (2012) MHLO 52
- Re G (Court of Protection: Injunction) (2022) EWCA Civ 1312
- Re Gladys Meek (2014) EWCOP 1, (2014) MHLO 32
- Re GM: MJ and JM v The Public Guardian (2013) EWHC 2966 (COP), (2013) MHLO 44
- Re H; A Local Authority v H (2012) EWHC 49 (COP), (2012) MHLO 3
- Re HC (2024) EWCOP 24
- Re HM: SM v HM (2011) EWHC B30 (COP)
- Re HNL: ATL v Public Guardian (2015) EWCOP 77, (2015) MHLO 122
- Re Hunt (2008) (Preston county court, 12/6/08)
- Re Joan Treadwell (Deceased); OPG v Colin Lutz (2013) EWHC 2409 (COP), (2013) MHLO 57
- Re JP; DP v JCP (2010) COP 11692737
- Re K (Forced Marriage: Passport Order) (2020) EWCA Civ 190
- Re KK; CC v KK (2012) EWHC 2136 (COP), (2012) MHLO 89
- Re KS (2010) COP 99162476
- Re L: K v LBX (2016) EWHC 2607 (Fam)
- Re M (2011) EWHC 3590 (COP)
- Re M: A v Z (2018) EWCOP 4
- Re M; W v M (2011) EWHC 1197 (COP)
- Re Mark Reeves (2010) COP 5/1/10
- Re MB (Caesarean Section) (1997) EWCA Civ 1361
- Re McDougall or Muldoon (Guardianship Order) (2005) ScotSC 6
- Re MM; City of Sunderland v MM (2011) 1 FLR 712
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