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March 2011 chronology

See March 2011 update for a summary of these changes.

  • 30/03/11 (7): Case summary. Jones v Kaney [2011] UKSC 13 — (1) The immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings is abolished. (2) This does not affect the absolute privilege that all witnesses enjoy in respect of claims in defamation.§
  • 30/03/11 (6): Case summary (Article 5). R (Faulkner) v SSJ [2011] EWCA Civ 349 — The claimant's Parole Board hearing should have been in March 2008 but was delayed in breach of Article 5(4) until January 2009 when he was released; he had shown on balance that he would have been released in March 2008. Having considered the case law on quantum, the court concluded that: 'a figure of £10,000 is appropriate and necessary to reflect the loss of some 10 months' conditional liberty by reason of the state's breach of the claimant's right not to continue to be detained in the absence of a speedy decision by a judicial body. We have not arrived at it by applying a multiplier to a monthly sum, although it can no doubt be disaggregated in that way.'§
  • 30/03/11 (5): Case summary (MHT). MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC) — The Tribunal panel discharged a s47 patient, deferred for six weeks for after-care arrangements, and also stated in para 9 of its decision that it 'would also invite Mr P's care team to consider whether to implement a community treatment order'. A CTO was then made; however, when the panel's decision to discharge the s47 took effect it also discharged the CTO. On the responsible authority's application under Tribunal rule 45, a salaried tribunal judge reviewed and set aside the panel's decision (on the basis that, by directing discharge, the panel had frustrated its intention that there be a CTO) and remitted the case to a fresh panel. The patient appealed, but the relevant decisions were excluded from the appeal jurisdiction so the appeal was treated as a JR application. The Upper Tribunal decided: (1) Where (as here) the panel find any of the statutory criteria not met, there is no power under s72(3A) to recommend a CTO: rather, there is a positive duty to discharge. (2) Para 9 was not expressed as a recommendation; the word 'also' showed that it did not form the basis of the reasoning; in so far as there is an inconsistency (between discharge and a recommendation), it is para 9 which should be given no weight; (3) The review decisions were quashed and a declaration made that the panel's decision be reactivated.
  • 30/03/11 (4): NHS Information Centre, 'Quarterly analysis of Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) Quarter 3 2010/11' (30/3/11). The publication strategy is for biennial reports in 2011/12 and an annual report in 2012/13. The key facts listed are: (1) The number of authorisations completed was 2,267 in quarter 3; (2) Of the total assessments completed in this quarter, a higher proportion were for females than for males; (3) In quarter 3, 74 per cent of assessments were made by local authorities while the rest were made by primary care trusts; (4) The percentage of authorisations granted which led to someone being deprived of their liberty was 54 per cent in quarter 3; (5) At 31 December 2010 1,450 people were subject to such authorisations. See Statistics
  • 30/03/11 (3): AJTC and CQC, 'Patients' experiences of the First-tier Tribunal (Mental Health)' (30/3/11). The report contains recommendations under the following headings: (1) Referral to lawyers by hospitals; (2) Accreditation of lawyers; (3) Quality checking of lawyers by tribunal panels; (4) Information regarding delays; (5) Management information; (6) Cycle of delay; (7) Care plans and conditions; (8) Training for medical members; (9) Explanations of the purpose of the pre-hearing interview; (10) Timing of the medical examination; (11) Information regarding the hearing; (12) Access to reports; (13) Venue; (14) Opportunity for patients to speak; (15) Order of proceedings; (16) Treating patients appropriately; (17) Written copies of the decision; (18) Further explanations of the decision; (19) Right to appeal; (20) Tribunal decisions; (21) Tribunal’s power to recommend; (22) Information on patients' care; (23) Training in relation to patients with multiple or unusual conditions; (24) Facilities and experts for patient’s multiple or unusual conditions; (25) Future research. See Administrative Justice and Tribunals Council
  • 30/03/11 (2): On 28/3/11, the LSC emailed mental health firms with a questionnaire to comply with the judgment in Public Interest Lawyers v LSC [2010] EWHC 3277 (Admin). The questions are worded in the hope of avoiding having to make any changes; nonetheless, responses are encouraged and should be emailed to the LSC by 8/4/11. The LSC will then publish a disability impact assessment by 30/4/11. At the same time it will publish the mitigating steps it plans to make (if any), consult on them until 15/6/11, and implement them on 1/7/11. See Legal Aid News
  • 30/03/11 (1): House of Commons Justice Committee, 'Government's proposed reform of legal aid' (Third Report of Session 2010–11, Volume I, dated 29/3/11, published 30/3/11). This document, among other things, contains interesting information about volume of work and expenditure on mental health Legal Aid over the last six years (Tables 1 and 4, and para 21). See Legal Aid News
  • 29/03/11 (08): Case summary. Re Hunt (2008) (Preston county court, 12/6/08) — Mr Hunt suffered from Huntington's disease and had shut himself off from the world, in his home; he had ignored demands for payment of council tax; the court (not knowing his condition) made a bankruptcy order, then an order that he be arrested and brought before the court for failure to attend for public examination. (1) Under rules 7.43-7.44 Insolvency Rules 1986 (since amended to reflect the MCA) an 'incapacitated person' was one who is incapable of managing and administering his property and affairs either (a) by reason of mental disorder within the meaning of the Mental Health Act 1983, or (b) due to physical affliction or disability; the court may appoint a representative for such a person. (2) A bankruptcy order may be annulled if the order 'ought not to have been made' at the time. (3) The onus cannot lie on the debtor to establish lack of capacity because lack of capacity would itself render the debtor unable to do so: courts should investigate capacity where there is reason to suspect it may be absent. (4) On the facts, Mr Hunt was incapable of engaging in the proceedings by reason not only of mental disorder but also physical affliction or disability. (5) If there had been a representative the outcome could have been different, and one was required. (6) There is no point in an annulment if there is no prospect of a bankruptcy order being refused on a re-hearing; however, in this case the outcome could have been different, particularly given the potential DDA and HRA issues, and the order was annulled.§
  • 29/03/11 (07): Case summary. R (W) v LB Croydon [2011] EWHC 696 (Admin) — The local authority decided, in order to reduce costs and promote independence, to transfer W from his residential placement to supported living. (1) In principle, the council would be entitled to terminate W's residential placement on grounds of costs, or needs, subject to consultation. (2) On the facts, the consultation with W's parents and the professional carers (as required by MCA 2005 s4) had been inadequate, so the decision was quashed.§
  • 29/03/11 (06): Case summary. Dunhill v Burgin [2011] EWHC 464 (QB) — The claimant had settled a PI claim on unfavourable terms and now sought to have the consent order declared void for want of capacity; this judgment involves a consideration of litigation capacity. (1) In considering the issue of capacity historically, rather than prospectively, the court should confine itself to examining the decisions actually required of the claimant and should not expand its consideration to hypothetical circumstances (i.e. had she been advised differently). (2) On the facts, the presumption that she had capacity to enter into the agreement had not been rebutted. [Caution.]§
  • 29/03/11 (05): Case summary (judgment handed down today). Re A; A v A Local Authority [2011] EWHC 727 (COP) — Click on link to view page.§
  • 29/03/11 (04): Case summary. Re P; A Local Authority v PB [2011] EWHC 502 (COP) — (1) The judge's view was that in exercising a welfare or best interests jurisdiction (whether under the Children Act, under the inherent jurisdiction, or under the MCA) the court is choosing between available options; a point then arises whether the COP can add to the available options (by application of public law and HRA tests in the private law proceedings) or whether judicial review is necessary; these jurisdictional issues should be addressed well before a case comes on for final hearing, so that the relevant authority does not refuse to provide the services after the court has decided that they are in P's best interests; in this case there may be a further hearing to decide the issue. (2) At an appropriate stage in most COP welfare cases, a direction along the following lines should be given (paraphrased) - Each party shall serve a document on the other setting out (a) the facts he asks the court to find, the disputed facts he asserts the court need not determine, and the findings that he invites the court to find by reference to the former facts; (b) the investigations he has made of alternative care and thence the alternatives he asserts should be considered (and by whom the relevant services should be provided); (c) by reference to (a) and (b), the factors he asserts the court should take into account; (d) the relief sought and why he asserts the factors support the granting of that relief; (e) the relevant issues of law. (3) Procedural/substantive fairness did not require overnight contact at the mother's home before the final hearing, and this would not be in P's best interests§
  • 29/03/11 (03): Case summary. Re AH; AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 276 (COP) — Click on link to view page.§
  • 29/03/11 (02): Case summary. Re AM; B (A Local Authority) v RM [2010] EWHC 3802 (Fam) — (1) When considering whether to transfer an application for a care order (under the Children Act 1989) to the Court of Protection (to be dealt with under the MCA) the essential thrust is whether the young person's welfare will be better safeguarded within the Court of Protection. The court will take into account matters such as whether: (a) the child is over 16 (otherwise there is no power); (b) the child manifestly lacks capacity in respect of the principal Children Act decisions; (c) the incapacity is lifelong or at least long-term; (d) all decisions and issues about welfare can be resolved during minority; (e) the COP powers are more appropriate to resolve the issues; and (f) the welfare needs can be fully met using COP powers. (2) AM's welfare would be better protected within the COP because: (a) there should be a court determination about the placement; (b) the court door should remain open during planning the placement; (c) the judge was far from satisfied that the issues could be resolved during AM's minority; (d) her disabilities and acute care needs are lifelong; (e) COP declarations avoid the negative consequences of a care order but still set the framework within which AM's needs can be addressed; and (f) her lack of relevant capacity is manifest. (3) The case was transferred to the Court of Protection under article 3 Mental Capacity Act 2005 (Transfer Of Proceedings) Order 2007 on the judge's initiative, he reconstituted as the Court of Protection to avoid a separate hearing, and made various orders on capacity, best interests, and procedure.§
  • 29/03/11 (01): 39 Essex Street, 'Court of Protection Newsletter' (issue 6, March 2011). See Court of Protection
  • 28/03/11 (01): Department of Health, 'Summary of two cases on the meaning of deprivation of liberty: the "MIG and MEG" case and the "A and C" case' (gateway ref 15723, 7/3/11). See DH
  • 27/03/11 (01): RSS added to home page: Court of Protection and Admin Court cases from Bailii, and mental health news from Google. Also, Google search bar added to all pages. See Main Page
  • 26/03/11 (08): Mental Health Law Online has finally followed the herd and joined Twitter. The RSS feeds and email updates will continue as normal, but these updates should now also appear automatically on Twitter. See @mhlonline
  • 26/03/11 (07): Official Solicitor, 'Proposals for the reform of Legal Aid in England and Wales: Ministry of Justice consultation paper CP 12/10: Response of the Official Solicitor to the Senior Courts' (10/2/11). See Legal Aid News
  • 26/03/11 (06): Jonathan Gammon, 'Criminal Justice Secure Email (CJSM)' (letter to solicitors, 31/1/11). This letter provides details of the CJSM system and encourages solicitors to sign up for a free account. See Mental Health Tribunal#External links
  • 26/03/11 (05): LSC, 'Bank statements needed for funding applications' (CLS News, 3/2/11). All MEANS1 forms dated on or after 15/12/10 must be accompanied by bank statements covering the last three months for each account held by the client or his partner. From 14/3/11 the LSC will reject all non-emergency applications in breach of this requirement. See Legal Aid News
  • 26/03/11 (04): Ministry of Justice, 'Office of the Public Guardian - fees 2011/2012: Consultation paper' (CP 16/10, 28/2/11). The consultation runs to 21/5/11. The stated aim is 'to ensure that the OPG fee policy remains fair, equitable and proportionate to the services being provided whilst at the same time reflecting the current economic climate'. The fee changes are summarised on the OPG website. See Consultations#Ministry of Justice
  • 26/03/11 (03): Guidance on the completion of the Deprivation of Liberty Safeguards data collation sheet. The current version is 1.6 (16/12/10), superseding version 1.5 (28/6/10). See DOLS
  • 25/03/11 (12): Department of Health, 'No health without mental health: a cross-Government mental health outcomes strategy for people of all ages'. The government announced this strategy, which alongside various supporting documents is available on the DH website, on 2/2/11. See DH
  • 25/03/11 (08): LSC, 'Community Legal Advice and LSC websites – latest news' (CLS News, 23/3/11). The CLA (Community Legal Advice) and LSRC (Legal Services Research Centre, the independent research division of the LSC) websites will be closed and their content moved to the justice.gov.uk and direct.gov.uk websites on 6/4/11. The LSC website will be incorporated into the justice.gov.uk website later in 2011. See Legal Aid News
  • 25/03/11 (07): On 15/3/11 both the Healthcare Inspectorate Wales and the Care and Social Services Inspectorate Wales published documents entitled 'Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Annual Monitoring Report for Health 1 April 2009 to 31 March 2010' together with various jointly-published documents. See DOLS
  • 25/03/11 (06): Consultation: Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011 (21/2/11 to 16/5/11). 'Part 4 of the Mental Health (Wales) Measure 2010 expands the statutory independent mental health advocacy scheme established by the 1983 Act. Patients subject to certain "short term" sections of the 1983 Act, and those in hospital informally (i.e. not under compulsion) are able to access the service. The Welsh Assembly Government is proposing to make Regulations connected to the expanded independent mental health advocacy scheme. This will relate to the provision, appointment and approval of advocates. It will also say which people advocates can talk to in undertaking their role of supporting patients. This consultation seeks your views on these draft Regulations.' See Consultations
  • 25/03/11 (05): Consultation: Mental Health (Assessment of Former Users of Secondary Mental Health Services) (Wales) Regulations 2011 (21/2/11 to 16/5/11). 'Part 3 of the Mental Health (Wales) Measure 2010 is concerned with mental health assessments for former users of secondary mental health services. The Welsh Assembly Government is proposing to make Regulations under this part of the Measure which will set out certain eligibility criteria for such assessments. For example, the length of time a person will be eligible for such an assessment following their discharge from services. This consultation seeks your views on these draft regulations.' See Consultations
  • 25/03/11 (04): Consultation: Mental Health (Care Coordination and Care and Treatment Planning) (Wales) Regulations 2011 (21/2/11 to 16/5/11). '[This consultation] is concerned with the coordination of secondary mental health services, and care and treatment planning for secondary mental health service users. The Welsh Assembly Government is proposing to make Regulations connected to Part 2 of the Measure. This relates to the appointment of care coordinators and the making, reviewing and revising of care and treatment plans. This consultation seeks your views on these draft regulations.' See Consultations
  • 25/03/11 (03): Legislation added. Civil Proceedings Fees (Amendment) Order 2011 — This Order increases certain fees in the Court of Appeal, High Court and county courts. For convenience, the full schedule of fees (whether increased or unchanged) is set out in the Order. In force 4/4/11.
  • 25/03/11 (02): Case summary added. R (PA) v Governor of Lewes Prison [2011] EWHC 704 (Admin) — The claimant's social phobia did not make him 'infirm by nature of disability' (within the meaning of PSI 31/2006) for the purpose of deciding whether or not to release on Home Detention Curfew.§
  • 25/03/11 (01): Article added. Mark Gould, 'Mental health patients complain of "zombification"' (Guardian, 15/3/11). This article discusses the increasing use of detention and CTOs. See Mental health law in the media
  • 23/03/11 (04): The Law Society published a news item entitled 'Society criticises mental health consultation delays' today. Because of the LSC's plan to dilly-dally over the disability impact assessment and consultation on contract changes following Public Interest Lawyers v LSC [2010] EWHC 3277 (Admin), 'clients will be forced into the very situation that the impact assessment is meant to be considering and potentially preventing'; if the provisions for urgent amendments were used then changes could be implemented by early April instead of the end of June as planned. See Legal Aid News
  • 23/03/11 (03): Consultation from 21/3/11 to 16/5/11. Scottish Government, 'Scottish Government Consultation: Amendment to Rule 58 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005: Rule 58: Power to Decide Case Without a Hearing'. The Scottish Government is consulting on plans to increase the availability of rule 58 which allows the Tribunal, if all parties agree in writing, to dispose of a case without an oral hearing. The three proposed options, all dispensing with the need for agreement and presumably with the intention of cutting costs, are: (1) any party wanting a hearing must show cause why a hearing is necessary, or (2) as option 1 except the patient has the automatic right to hearing if requested, or (3) as option 1 except the hearing will take place unless the patient positively elects not to have one. It is envisaged that the rule would be used 'where there is no real dispute between the parties'. See Consultations#Scotland
  • 23/03/11 (02): On 2/3/11 the Legal Services Commission issued a statement entitled 'Tribunals Service asks mental health providers to use secure email service'. See Mental Health Tribunal#External links
  • 23/03/11 (01): On 20/2/11 the LSC published an updated tender outcome document for the SHA procurement areas. See Legal Aid News
  • 21/03/11 (01): Case summary added (judgment 8/3/11). Re T (A child: murdered parent) [2011] EWHC B4 (Fam) — B killed his girlfriend, then spent four years as a restricted hospital order patient and a year as a conditionally-discharged patient (with exclusion-zone and no-contact conditions); he now applied for a contact order in respect of their daughter T. (1) There is no presumption that a parent who has murdered the other parent should have no contact with their child; however, having regard to the welfare checklist and other factors, there should be no contact of any kind between B and T. (2) An order under s91(14) Children Act 1989 (preventing further applications by B without leave) was made until T reaches 16 years of age. (3) The family court has no power to vary the conditions of a conditional discharge; however, the court is not constrained by the conditions when making orders; if the order would put the patient in breach of conditions then it should invite the Secretary of State to indicate to what extent he is prepared to vary them. (4) Since the only sanction for breach of conditions is recall to hospital (which is discretionary and dependent upon further medical evidence) the protection provided by the two conditions was illusory; orders of the court were required to enable the matter to be brought before the court in the event of breach: (a) the no-contact condition was made the subject of a non-molestation aorder pursuant to s42 Family Law Act 1996; (b) the exclusion-zone condition could amount to an occupation order (for which MS did not qualify); however, applying a broad meaning of 'molestation' it could also be a non-molestation order; if that were wrong then there is power to make the order under the High Court's inherent jurisdiction for the protection of children and/or under s37 Senior Courts Act 1981. (5) The LSC had discharged B's public funding certificate mid-proceedings following pressure from the special guardian; in the circumstances of this case it should not have done so.§
  • 18/03/11 (16): Report added: Care Quality Commission, 'The operation of the Deprivation of Liberty Safeguards in England 2009/10' (March 2011). The 'Issues Raised' are listed as: (1) the DH should consider developing clear, concise and practical briefings on what may constitute a 'deprivation of liberty' and when the Safeguards should be used; (2) staff should be trained effectively on the types of practice that may lead to deprivation of liberty, and should seek advice from their supervisory body in cases of doubt; (3) the move to regulation under the Health and Social Care Act 2008 will allow a monitoring role which is consistent across health and adult social care; (4) the DH should consider reducing the amount of paperwork required. See CQC
  • 18/03/11 (15): Case summary added (judgment 9/3/11). Pitt v Holt [2011] EWCA Civ 197 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal 'effect', so the disposition would not be set aside.§
  • 18/03/11 (14): Case summary added (judgment 11/3/11). R (AC) v Berkshire West PCT [2011] EWCA Civ 247 — The claimant, who suffered from gender identity disorder, unsuccessfully challenged the decisions to refuse funding for breast augmentation surgery and the underlying policies.§
  • 18/03/11 (13): Case transcript added. LS v LB Lambeth (HB) [2010] UKUT 461 (AAC) — Tribunals Service's notes: 'Scope of right of appeal to Upper Tribunal. Required contents of notification of a decision applying a non- dependent deduction.'§
  • 18/03/11 (12): Case summary added. Re Cretney (2011) COP 24/2/11 — The donor made an LPA on the "new" form prescribed in 2009 but omitted the attorney's date of birth in Part A. The Public Guardian refused to register on the ground that the instrument differed materially from the prescribed form. On the application of the attorney (who was over 18) the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA that the instrument was to be treated as if it were in the prescribed form. [OPG summary - LPA case.]§
  • 18/03/11 (11): Case summary added. Re Dadd (2010) COP 17/10/10 — The donor made an LPA using the "new" form presribed in 2009. She appointed two attorneys but provided no date of birth for either. The Public Guardian was willing to register in favour of one attorney because her title was given as "Mrs", so that it could reasonably be inferred that she was at least 18. It was overlooked that the other attorney was described in the instrument as the donor's husband. On the attorney's application the court directed registration. As it could be inferred from the instrument that both attorneys were at least 18, the instrument differed from the prescribed form in an immaterial respect within paragraph 3(1) of Schedule 1 of the MCA 2005. [OPG summary - LPA case.]§
  • 18/03/11 (10): Case summary added. Re Parker (2011) COP 18/2/11 — The donor of a Health and Welfare LPA appointed X and Y as attorneys to act jointly in some matters and jointly and severally in others. He then directed as follows: "I wish the prime responsibility for decisions in respect of my health to vest in X. My attorneys need only act jointly in the event of serious and/or life threatening conditions. In this case X should endeavour to contact Y but if she is, for whatever reason, unable to do so she may act on her own (severally) despite the serious and/or life threatening condition." On the application of the Public Guardian the last sentence of this direction was severed as being incompatible with the appointment to act jointly in some matters. [OPG summary - LPA case.]§
  • 18/03/11 (09): Case summary added. Re Noel (2011) COP 31/1/11 — The donor appointed two attorneys to act jointly in some matters and jointly and severally in others. He then appointed X as replacement attorney. He directed that a decision to sell a named property " must be made jointly by all surviving attorneys including X". On the application of the Public Guardian the words "including X" were severed, as being incompatible with the manner in which the attorneys and replacement attorneys had been appointed. The court added that, to have acheived the desired objective, the donor should have appointed all three as attorneys (rather than two attorneys and a replacement) and directed them to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.]§
  • 18/03/11 (08): Case summary added. Re Scragg (2011) COP 1/2/11 — The donor of a property and affairs LPA (who lived abroad) gave detailed instructions to his attorney relating to all of his assets in the event of a return to England, and added that these instructions were "subject to the written consent of my daughter" (who was the replacement attorney and also the attorney under his Health and Welfare LPA). On the application of the Public Guardian the words "subject to the written consent of my daughter" were severed because the requirement that the attorney should obtain the consent of a third party before exercising his powers imposed an unjustifiable fetter on his authority. [OPG summary - LPA case.]§
  • 18/03/11 (07): Case summary added. Re Knight (2011) COP 18/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "I wish my attorneys, if they think fit, to pay my sister by way of gift the sum of £3,000 annually and to pay by way of gift the sum of £250 annually to my brother in law, my nephew, his spouse and all my nieces including spouses (other than to X), my great nephew and great niece, all of whom are listed on page A2 being the amounts of gifts exempt from inheritance tax under the current inheritance tax laws or such other annual sums by way of gift as shall for the time being be exempt from inheritance tax or other tax payable on death." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power, and although it might be possible for the attorneys to make the desired gifts on "customary occasions", the donor did not appear to have been contemplating customary occasions at all. [OPG summary - LPA case.]§
  • 18/03/11 (06): Case summary added. Re Careford (2011) COP 16/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "While my husband is my attorney, he may use my own money and property for his benefit in any way he wishes. My replacement attorneys may use my money and property for the benefit of my husband in any way they think fit. All of my attorneys may make gifts to my husband from my estate." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power. [OPG summary - LPA case.]§
  • 18/03/11 (05): Case summary added. Re Wheatley (2011) COP 31/1/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "My attorneys will continue to make contributions to my grandchildrens' Child Trust Funds and any other saving/pension plans that I fund for their benefit." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. ALthough expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.]§
  • 18/03/11 (04): Case summary added. Re Munn (2011) COP 28/1/11 — The donor of a property and affairs LPA included the follwoing provision in the guidance section; "My finances should be managed so that X can continue to live at [a named property] for as long as she wishes and receives income from all investments and holiday lettings." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.]§
  • 18/03/11 (03): Case summary added. Re Baker (2011) COP 4/2/11 — In Part A of the instrument the donor put his middle name in the box for "Last Name" and omitted his surname completely. As his middle name could have passed for a surname, this error was not noticed by anybody and the instrument was registered. The attorney applied for a declaration that the LPA was to be treated as valid under paragraph 3(2) of Schedule 1 of the MCA 2005, under which the court may declare that an instrument is to be treated as if it had been made in the prescribed form even though it differs in a material respect from the prescribed form. The court exercised its discretion under paragraph 3(2) because, although the error was material, it was satisfied that the instrument was intended to be an LPA. The Public Guardian was directed to amend the register and attach a note to the instrument to this effect. (Note: for a similar case concerning an EPA, see Re Orriss (2010) COP 20/10/10, under the "Rectification" heading.) [OPG summary - LPA case.]§
  • 18/03/11 (02): Case summary added. Re McKenna (2011) COP 1/2/11 — The donor purported to appoint a replacement attorney who, at the date the donor signed the instrument, was 16 years old. The donor added the following restriction; "My replacement attorney shall only act if she is over the age of 18." On the application of the Public Guardian the appointment of the replacement attorney was severed as it contravened section 10(1)(a) of the MCA 2005, which provided that an attorney must have reached 18. [OPG summary - LPA case.]§
  • 18/03/11 (01): Case summary added. Re Cranston (2011) COP 18/2/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others. He included in the list of matters which should be decided jointly "changing my will". On the application of the Public Guardian these words were severed on the ground that an attorney has no authority to change a donor's will. An attorney may apply to the court for an order authorising the execution of a statutory will if a donor lacks testamentary capacity. [OPG summary - LPA case.]§
  • 17/03/11 (03): Form added: Mental Health Tribunal, 'CMR1: Case Management Request form'. This voluntary form, introduced in March 2011, is intended to ensure that applicants provide the necessary information under the Rules when applying for directions, postponement, prohibition or disclosure of information, wasted costs, permission to withdraw an application, or other interlocutory matters (such as appointment of a representative). The form provides guidance and explains where it should be sent. See Tribunal forms
  • 17/03/11 (02): Case transcript added (summary already available). Haworth v Cartmel and HMRC [2011] EWHC 36 (Ch) — Disability Discrimination Act, and lack of capacity, used to annul bankruptcy order.§
  • 17/03/11 (01): Text of OPG's MCA Update emails of 28/2/11 and 3/3/11 added. Both relate to a consultation on fee changes which runs until 21/5/11, the changes to take effect from 1/7/11. See MCA Update emails
  • 07/03/11 (05): Case summary added (judgment published today). RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC) — (1) The Tribunal's reasons for not reconvening following non-implementation of its statutory recommendation were inadequate. (2) A decision had clearly been made not to transfer so there would be no point in requiring the Tribunal to reconvene or reconsider whether or not to do so; the decision was therefore not set aside.§
  • 07/03/11 (04): Case summary added (judgment published today). JLG v Managers of Llanarth Court [2011] UKUT 62 (AAC) — (1) An appeal to the Upper Tribunal can only succeed if 'the making of the decision concerned involved the making of an error on a point of law'. The issue is whether the Tribunal did its job properly: whether (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; (iii) it answered the legal questions appropriately given its findings of fact; (iv) it gave the parties a fair hearing; and (v) it provided adequate reasons. (2) The UT is entitled to assume that the members of the Tribunal understand the basic legal concepts which they must apply, particuarly with a specialist tribunal applying the same limited range of criteria repeatedly; the claimant's argument was essentially that the Tribunal failed to mention these matters, but there was nothing in the reasons to show that they did not understand them. (3) The reasons, albeit discursively, had soundly and rationally addressed the statutory criteria. (4) There is no separate issue of proportionality: this is amply covered by the terms of legislation and the allocation of the burden of proof.§
  • 07/03/11 (03): Case summary added (judgment published today). AH v West London MH NHS Trust [2011] UKUT 74 (AAC) — (1) Once the threshold tests for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state. (2) The threshold tests are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (3) How the right to a public hearing can be practically and proportionately be achieved will depend on the facts of each individual case, including the hospital's facilities. (4) The Tribunal directed that AH was to have a public hearing, not within Broadmoor hospital, with the press, public, AH and his representatives enabled to attend in person in the same hearing room. (5) It was likely that in future cases, if detailed evidence of how video-link and public-notification arrangements would work in practice is provided, that a video-link to off-site premises would suffice.
  • 07/03/11 (02): Legislation added. Convention on the Rights of Persons with Disabilities — The purpose of this convention is set out in Article 1 as: 'The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.'
  • 06/03/11 (01): Case summary added (judgment handed down 3/3/11). R (Modaresi) v SSH [2011] EWHC 417 (Admin) — The claimant missed the 14-day deadline for submission of a s2 Tribunal application because of oversight/neglect on the part of Trust employees. Judicial review claims against the Tribunal (for deciding that the application was invalid), the Secretary of State for Health (for refusing to make a reference) and the Trust (for their actions) were all unsuccessful. [Caution - see later decisions.]
  • 02/03/11 (02): Case summary added (judgment given 28/2/11) with links to press articles. Thanks to Chris Cuddihee of Conroys Solicitors for the transcript. Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 413 (COP) — (1) The judge directed that: (a) the named media organisations could send designated representatives to court, subject to further directions; (b) the media could identify the parties by name, rather than initials; (c) the media could report any information already in the public domain when reporting the proceedings; (d) any application to report information during the course of any private hearing is to be determined by the court at the conclusion of the relevant hearing. (2) The reasons given were that: (a) the circumstances are already in the public domain to a significant extent; (b) there is no evidence of a real possibility of detriment or distress to Stephen of anything other than a trivial nature; (c) it would be impossible to prevent the media from reporting parties' names at the end of proceedings. (3) In relation to future care, directions had been given for a mediated solution to be attempted. (4) In relation to lawfulness of the past deprivation of liberty, a hearing was listed for May 2011.§
  • 02/03/11 (01): Case summary added. Thanks to Alex Ruck Keene of 39 Essex Street for the transcript. Re CW; A Primary Care Trust v CW [2010] EWHC 3448 (COP) — (1) Medical treatment is of no benefit to a person in a persistent vegetative state because he is not sentient and has no prospect of recovery; whether the withdrawal of life-sustaining treatment measures is in P's best interests depends on whether the diagnosis of PVS is correct; if it is correct then the provision of any treatment is futile and cannot be in his best interests. (2) CW was in a persistent vegetative state with no prospect of recovery; it was in his best interests for artificial nutrition and hydration to be withheld, which could be done lawfully; it was in his best interests to receive treatment and nursing care to ensure that he retains the greatest dignity possible until death.§
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