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June 2014 update

Case law

  • Community care case. 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."§
  • Costs case. 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."§
  • Capacity case. 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."§
  • Medical case. 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)."§
  • Medical case. 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."§
  • Deputyship case. LB Haringey v CM [2014] EWCOP B23, [2014] MHLO 36 — "This is an objection by a family member to the London Borough of Haringey's application to be appointed as GW's deputy for property and affairs. ... I allow Haringey's application and dismiss CM's objection, and shall make an order appointing the authorised officer of Haringey Council as GW's deputy for property and affairs on the understanding that it is in GW's best interests, and less restrictive of his rights and freedom of action, for him to retain control over his own expenditure to a limit of £200 a week. I am surprised that CM persisted with her application to manage her uncle's property and finances after he had expressed such trenchant opposition to her in his interview with the Special Visitor. ... Nevertheless, GW's views have not always been consistent and this matter was listed for an attended hearing on 22 May 2014, anyway, and in the circumstances I see no reason to depart from the usual order for costs..."§
  • Unlawful detention case. Bostridge v Oxleas NHS Foundation Trust [2014] MHLO 42 (CC) — A tribunal’s deferred discharge from s3 took place just before a CTO was purportedly imposed. Recall from that (non-existent) CTO, and subsequent detention, had been unlawful; however, because no loss had been shown, following Lumba (a Supreme Court decision on immigration detention), only nominal damages were awarded in this county court case. (The Court of Appeal gave permission to appeal.)§

Legal Aid

  • Simon Pugh, 'Can you prove it?' (Legal Aid Handbook blog, 17/6/14). This article refers to the draft residence test regulations which (if approved) will come into force on 4/8/14. See Legal Aid#Residence requirement

Ministry of Justice

Articles

Event

  • Event. Edge Training are running a one-day course entitled 'Deprivation of liberty after Cheshire West: A day for experienced practitioners' on Monday 23/6/14 in Lincoln's Inn, London. Price: £115 plus VAT. The course aims to provide BIAs and other professionals with an in-depth understanding of the judgment and what it will mean in their daily practice. The speaker will be Aasya Mughal (barrister). See flyer for further details and booking information. See Events

Book

Website

  • CPD. The CPD questionnaires for April and May 2014 have been uploaded. Obtain 12 accredited CPD points online for £60. See CPD scheme

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