Annual Review 2014
- 1 Introduction
- 2 About Mental Health Law Online
- 3 Acknowledgements
- 4 Copyright and disclaimer
- 5 Case law
- 5.1 Mental Health Act and the Mental Health Tribunal
- 5.2 Community care
- 5.3 Court of Protection and other capacity cases
- 5.3.1 Cheshire West
- 5.3.2 Re X
- 5.3.3 Deprivation of liberty
- 5.3.4 Assessment of capacity
- 5.3.5 Welfare: residence, contact, personal care
- 5.3.6 Sex
- 5.3.7 Birth
- 5.3.8 Death
- 5.3.9 Medical treatment
- 5.3.10 Breach of court orders
- 5.3.11 Costs
- 5.3.12 Deputyship
- 5.3.13 Lasting and Enduring Powers of Attorney
- 5.3.14 Other capacity cases
- 5.4 Crime
- 5.5 Repatriation
- 5.6 Prison law
- 5.7 Solicitor's Regulation Authority
- 5.8 Miscellaneous cases
- 6 Legislation
- 7 General information
- 7.1 Mental Health Tribunal
- 7.2 Legal Aid Agency
- 7.3 Ministry of Justice
- 7.4 Department of Health
- 7.5 Law Society
- 7.6 Care Quality Commission
- 7.7 Home Office
- 7.8 Office of the Public Guardian
- 7.9 Law Commission
- 7.10 Regulatory Policy Committee
- 7.11 House of Lords
- 7.12 Independent investigations
- 7.13 Newsletters
- 7.14 Articles and other documents
- 7.15 Other jurisdictions
- 8 Twitter
- 9 Email discussion list
- 10 Advertisements
- 11 Further resources
- 12 Publication information
Mental Health Law Online is the internet resource on mental health law, and mental capacity law, for England & Wales. The home page is at www.mentalhealthlaw.co.uk
The Annual Review 2014 contains all news items, arranged thematically, which were added to the website during 2014.
It is available in the following formats:
Chapters 1, 2 and 3 reflect the structure of the website by covering cases, legislation and general information respectively. Twitter ‘retweets’ can be found in chapter 4, and topic headings from the email discussion list are set out in chapter 5. Chapters 6 and 7 are shorter chapters listing advertisements placed during 2014 (events and jobs), and further resources (books, journals and websites).
Each item beside a first-level bullet point is associated with a website page, the title of which is underlined, and which can be located by clicking on the title. Second-level bullet points indicate further resources which are available from the relevant website page.
Comments and suggestions are welcome.
About Mental Health Law Online
Features of Mental Health Law Online include:
- CPD scheme. Obtain 12 CPD points per year by completing online multiple-choice questionnaires based on the monthly updates.
- Suitable for solicitors (SRA-accredited), barristers (established practitioners), psychiatrists, social workers and psychiatric nurses.
- Legal Aid category supervisors must ‘undertake a minimum of 6 hours of Continuing Professional Development per year in the Mental Health Category of Law of which no fewer than 3 hours must be on the Mental Capacity Act 2005’. The CPD questionnaires are sufficient for this purpose.
- Email updates. You can choose whether to receive emails on a monthly or more frequent basis.
- Twitter. Follow @mhlonline at www.twitter.com/mhlonline – many interesting news items from sources external to the website are ‘retweeted’ here. See chapter 4.
- Email discussion list. Discuss all aspects of mental health law in England & Wales with other mental health practitioners. See chapter 5.
- Event and job advertisements. These are listed for a small fee. They appear prominently on the website and email updates. See chapter 6.
- Books. A selection of books is available from the online bookshop. See chapter 7.
Thanks are due to the following people for contributing case transcripts which were not available elsewhere.
- Alex Ruck Keene, 39 Essex Chambers
- Kathren Quinn, Clerk to The Hon Mrs Justice Theis
- Jonathan Litchfield, Burke Niazi Solicitors
If you have any material which has not yet been published, such as case transcripts, please get in touch.
Copyright and disclaimer
(c) Jonathan Wilson 2015. See http://www.mentalhealthlaw.co.uk/Copyrights
Lasting Power of Attorney summaries (marked ‘OPG summary’) are Crown Copyright and are reproduced under the Open Government Licence.
Every effort has been made to ensure accuracy, but no legal liability for errors/omissions is accepted. If you require legal advice please speak with a lawyer rather than rely on this document.
Mental Health Act and the Mental Health Tribunal
- Residence and conditional discharge. R (Wiltshire Council) v Hertfordshire CC  EWCA Civ 712,  MHLO 103 — The patient had been placed under a hospital order when he was resident in Wiltshire. He was conditionally discharged with a condition to reside in Hertfordshire. He had no wish to return to Wiltshire, but the Court of Appeal decided that the residence condition meant his place of residence was not voluntary, and decided that he was still 'resident' in Wiltshire.
- Residence and incapacity. R (Worcestershire CC) v Essex CC  EWHC 3557 (Admin),  MHLO 104 — In this case Essex argued that VC lacked capacity to have consented to her place of residence, and therefore had not been resident in Essex for the purposes of s117. The result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself. They were unsuccessful. Extract from judgment: "I do not however read these passages as deciding that a person cannot acquire residence in a place unless he does so voluntarily. Still less do they decide that residence may only be acquired as a result of a decision made by a person with capacity, or lawfully on his behalf by someone else. ... The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. There may be reasons to conclude that he has not lost an established residence elsewhere, for example because of imprisonment or because he is only temporarily away from that residence on holiday, but if he has no such other place, and in the absence of some other special factor, his actual place of abode is his residence. This would be so whether he is there voluntarily or involuntarily, and whether any lack of voluntariness is caused by his will being overborne (eg on imprisonment) or because a decision he has in fact made is vitiated by lack of capacity, or if the decision has in reality been taken on his behalf by someone else, with or without lawful authority to do so." Some of these comments are obiter, and this is a first instance decision which did not refer to the earlier Court of Appeal decision in R (Wiltshire Council) v Hertfordshire CC  EWCA Civ 712,  MHLO 103.
- Damages for unlawful detention. Bostridge v Oxleas NHS Foundation Trust  EWCA Civ 1005,  MHLO 85 — The judge had awarded only nominal damages because the patient had suffered no loss as a result of his unlawful detention. The Court of Appeal gave permission to appeal, stating as follows: "Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss. I have been persuaded that these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent."
- Damages for unlawful detention. Bostridge v Oxleas NHS Foundation Trust  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.)
- Guardianship and deprivation of liberty. NL v Hampshire CC  UKUT 475 (AAC),  MHLO 107 — The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them.
- Consultation. TW v Enfield Borough Council  EWCA Civ 362,  MHLO 26 — The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life."
- Receipt of discharge order. K v Hospital Managers of the Kingswood Centre  EWCA Civ 1332,  MHLO 102 — A nearest relative sent an order for discharge to the hospital's fax machine. She had not used one of the three prescribed methods of service (delivery to an authorised officer; pre-paid post; or, with the managers' agreement, internal mail) so the 72-hour period began to run when the part-time MHA Administrator considered it on her return to work four days later.
- Receipt of discharge order. K v Hospital Managers of the Kingswood Centre  EWHC 2271 (Admin),  MHLO 101 — Service of nearest relative's order for discharge of s3 patient.
- Public hearing. Re Jared Britton  MHLO 146 (FTT) — Extract from decision: "In a decision given on 26 September 2011, the application by Mr Jared Britton that his application dated 4th September 2009 should be held in public was granted. The fact of this decision should be published. The reasons for the decision must not to be made public. An open hearing is now listed at Liverpool Crown Court on Wednesday 3rd April 2013 for an all day hearing starting at 10.30am."
- Public hearing. Transcript added and summary updated. Re Ian Brady  MHLO 89 (FTT) — After a public hearing the tribunal issued a notice on 28/6/13 that: 'Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.' The full reasons, dated 11/12/13, were published on 24/1/14: (1) When deciding to hold a public hearing the tribunal had concluded that it was not satisfied that Ian Brady suffered from schizophrenia but, in reaching the opposite conclusion when considering the detention criteria, it did not consider itself bound by its previous finding of fact. (2) The tribunal set out at length the reasons for concluding that the detention criteria were met in this case.
- Advance decision and s63 treatment. Nottinghamshire Healthcare NHS Trust v RC  EWHC 1317 (COP),  MHLO 22 — A detained patient (RC) was self-harming by cutting and had made an advance decision refusing blood transfusions. (1) RC had capacity to refuse blood transfusions and sometimes had capacity to lacerate himself. (2) The advance decision was valid and applicable. (3) The self-harming was a symptom or manifestation of mental disorder so a blood transfusion would be treatment under s63 MHA 1983. (4) Where the consequences of a decision not to impose s63 treatment may be life-threatening the Trust should apply to the High Court for declaratory relief and (just as with a decision to impose treatment) the hearing will involve a 'full merits review'. (5) It would be lawful to withhold blood transfusions despite the s63 power (indeed, the judge stated that given RC's current capacity and advance decision it would be 'an abuse of power ... even to think about imposing a blood transfusion' and that it 'would be a denial of a most basic freedom').
- Alex Ruck Keene, 'Advance decisions and the MHA 1983' (Mental Capacity Law and Policy, 1/5/14)
- Advance decision and s63 treatment. Nottinghamshire Healthcare NHS Trust v RC  EWHC 1136 (COP),  MHLO 20 — A detained patient with a severe personality disorder was self-harming by cutting and had to be mechanically restrained to prevent this. (1) He had made an advance decision, apparently with capacity to do so, refusing blood transfusions because of his religious beliefs: the court ruled that this was valid and applicable, but only on an interim basis since the document did not state that it was signed by the maker and the witness in each other's presence. (2) The Responsible Clinician accepted that a blood transfusion would be medical treatment for mental disorder under s63 MHA 1983, and therefore the advance decision could be overridden; however, because the patient's wishes were religious, she did not want to impose treatment: the Trust therefore sought the protection of a court declaration that her decision was lawful. (3) The court was unwilling to make the declaration, without hearing both sides of the argument, because of the importance of the issues (including the right to life under Article 2, freedom of religion under Article 9, and respect for private life, which includes bodily integrity, under Article 8). (4) The Official Solicitor was invited to attend a hearing the following day, the Trust was asked to facilitate the patient being directly represented and to encourage the father to attend, and the judge concluded that if there is an argument for the use of s63 it was very important for the court to hear it.
- Guidance on writing reasons. HK v Llanarth Court Hospital  UKUT 410 (AAC),  MHLO 95 — (1) Guidance for tribunals on writing reasons. (2) First-tier Tribunal decision set aside for inadequate reasons.
- Section 2/3 criteria. Re MM  MHLO 150 (UT) — (1) The tribunal did not misdirect itself by applying the s2 criteria to a s3 case. (2) However, the tribunal's reasoning was inadequate. The tribunal stated that all the evidence was to the effect that MM's mental disorder 'warrants his treatment in hospital' (this is language from the s2 criteria), but it was only (part of) the medical evidence in which there was any confusion as to the criteria. The findings of fact (that the condition was chronic and relapsing etc) did not show that the mental disorder warranted detention (or made it appropriate). The only finding that could support the tribunal's decision was the medical evidence, which was affected by reference to the wrong legal test. In those circumstances the tribunal should have (a) shown that they had applied the correct criteria and not made the same mistake as the doctor, and (b) shown by precise findings of fact that the s3 criteria were satisfied. A blanket reference to a possibly-contaminated report did not suffice, and the tribunal made things worse by expressing its legal conclusions in the same confused terms as the medical report. (Transcript provided by Jonathan Litchfield of Burke Niazi Solicitors.)
Other mental health cases
- Lawfulness of recall. R (Lee-Hirons) v SSJ  EWCA Civ 553,  MHLO 23 — (1) A restricted patient who had been recalled argued that the Secretary of State was under a duty to provide written (not merely oral) reasons for recall, that the oral reasons given were inadequate and were not the Secretary of State’s true reasons, and that therefore the recall and consequent detention was unlawful. (2) The Court of Appeal held that: (a) Article 5(1) does not require the reasons for detention to be given immediately upon detention; (b) a fortiori, it does not require reasons to be given in writing; (c) Article 5(2) requires those reasons to be adequately and promptly given to him following detention; (d) on the facts, there had been a breach of the Secretary of State’s policy to provide reasons "as soon as possible and in any event within 72 hours" (HSG(93)20) and a breach of Article 5(2); (e) these breaches did not render unlawful what was originally a lawful recall. (3) The Court noted, in relation to the practice of the Secretary of State in relation to recall, that "It is now his practice to include in the warrant a brief reason for recall, and a reminder is given to the person executing the warrant to explain the reason at the time of execution."
- Law Society Gazette, Law Report (Lee-Hirons, Court of Appeal), 6/4/14
- Transfer procedure. R (L) v West London MH NHS Trust  EWCA Civ 47,  MHLO 49 — (1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his representative, and that the patient be afforded an opportunity to make written submissions to the panel."
- Anonymity case. Re X (anonymity)  MHLO 90 (CA) — The press has reported this case as follows: a restricted transferred prisoner patient in medium security judicially reviewed the Secretary of State's refusal to grant permission for unescorted community leave; Cranston J refused to make an anonymity order, a decision upheld by the Court of Appeal (Lord Dyson MR; Maurice Kay LJ, VP; Floyd LJ). It is understood that an appeal will be made to the Supreme Court.
- Guardian, 'Murderer not entitled to remain anonymous while seeking rehabilitation' (Press Association, 16/7/14)
- Ordinary residence. R (Cornwall Council) v SSH  EWCA Civ 12,  MHLO 17 — (1) In deciding the ordinary residence of an adult lacking capacity the Secretary of State had erred in applying 'test 1' from the Vale case (that a person who is so severely handicapped as to be totally dependent upon a parent or guardian in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base). (2) Instead, the words 'ordinary residence' should, unless the context indicates otherwise, be given their ordinary and natural meaning. (3) There is much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A (namely where he is integrated into a social and family environment). (3) On the facts, the person was ordinarily resident in South Gloucestershire (where he lived) rather than Cornwall (where his parents lived).
- Local Govenment Lawyer, 'Supreme Court to hear key case on "ordinary residence" in community care' (10/6/14)
- Consultation. R (LH) v Shropshire Council  EWCA Civ 404,  MHLO 18 — "This is an appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre. LH is 63 years old, has a learning disability, has been assessed as having substantial care needs and has been using the services of Hartleys Day Centre in Shrewsbury. Shropshire Council has decided to close that day centre as a result of its re-thinking of day centre care in the county; that re-thinking is itself a result partly of budgetary constraints and partly of encouragement from central Government to give disabled people their own personalised budget for spending in relation to their disability. The Council contends that it consulted generally about the new system which it brought in and made clear that some day centres would close; LH contends by JL (her litigation friend and sister) that LH and others should have been consulted in relation to the closure of Hartleys itself before it occurred. There is also an allegation of failure to comply with the statutory Public Sector Equality Duty as contained in section 149 of the Equality Act 2010. ... my own conclusion is that the omission to consult the users and relatives on the closure of Hartleys Day Centre before it was decided to close it was indeed unlawful. ... If I had held that the Council had complied with their duty to consult at common law, I would not have held that there was a breach of the statutory duty under the Equality Act. ... I would therefore allow this appeal and (subject to any written observations from the parties on the terms of the declaration before hand down) formally declare that, in breach of its common law duty, the Council failed to consult the users of Hartleys Day Centre and their carers before deciding to close the centre."
- Capital from PI settlement. R (ZYN) v Walsall MBC  EWHC 1918 (Admin),  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."
- Accommodation. R (Whapples) v Birmingham CCG  EWHC 2647 (Admin),  MHLO 57 — "The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant has an obligation under section 3 of the National Health Service Act 2006 to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS. ... The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits."
- Care home fees. Aster Healthcare Ltd v The Estate of Mohammed Shafi  EWCA Civ 1350,  MHLO 134 — This appeal by Aster Healthcare was unsuccessful.
- Care home fees. Aster Healthcare Ltd v The Estate of Mohammed Shafi  EWHC 77 (QB),  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."
Court of Protection and other capacity cases
- Deprivation of liberty. Cheshire West and Chester Council v P  UKSC 19,  MHLO 16 — (1) The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person's compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty.
- Lucy Series, 'The Acid Test' (The Small Places, 20/3/14)
- Alex Ruck Keene, 'Cheshire West - one day on' (Mental Capacity Law and Policy, 20/3/14)
- Mithran Samuel, 'Supreme Court ruling heralds sharp rise in Deprivation of Liberty Safeguards cases' (Community Care, 19/3/14)
- O'Donnell's Solicitors, 'Cheshire West: The Supreme Court decides' (information sheet March 2014 no 2, 19/3/14)
- Simon Burrows, 'What is deprivation of liberty? The Supreme Court speaks' (19/3/14)
- Doughty Street Chambers, 'A gilded cage is still a cage' (19/3/14)
- Alex Ruck Keene, 'Cheshire West: the Supreme Court’s right hook' (Mental Capacity Law and Policy, 19/3/14)
- Youtube, 'UK Supreme Court Judgment 19th March 2014' (19/3/14). Video of Lady Hale explaining Supreme Court decision.
- Local Government Lawyer, 'Number of deprivation of liberty cases "to rise ten-fold", warn councils' (10/6/14)
- Richard Gordon QC, 'Thoughts on P v Cheshire West; P & Q v Surrey County Council' (2014) 17 CCLR 416. Closing address at LAG Community Care conference, 5/12/14.
- Nazreen Pearce and Sue Jackson, 'Supplement to Urgent Applications in the Court of Protection' (29/7/14). This free supplement to the Deprivation of Liberty chapter of Nazreen Pearce and Sue Jackson, Urgent Applications in the Court of Protection (2nd edn, Jordans 2014) analyses the Supreme Court judgment in Cheshire West. See DOLS#Academic articles and book chapters and Books
- Post-Cheshire procedure. Re X (Deprivation of Liberty)  EWCOP 25,  MHLO 86 — "The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved. ... This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the [rules] Committee. A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions ... not dealt with in this judgment."
- Neil Allen, Alex Ruck Keene and Victoria Butler-Cole, 'Mental capacity law guidance note: Judicial deprivation of liberty authorisations' (8/8/14). The introduction to this document states: "[W]e outline here how an application for judicial authorisation to deprive liberty ought now to be made in light of Sir James Munby P's first judgment. We suggest that this guidance applies immediately - i.e. there is no need to wait until new application forms are developed before making applications."
- Court of Protection Handbook Blog, 'Post-Cheshire West Judgment Released' (7/8/14)
- Ben Troke, 'Deprivation of liberty and due process' (Browne Jacobson, 8/8/14)
- John Bingham, 'Courts braced for surge in cases of elderly locked up against their will' (Telegraph, 8/5/14). In this report on a directions hearing, Munby P is reported as saying, 'I want to try to bring some measure of administrative order and proper process into play in the light of the ramifications of the recent judgment of the Supreme Court.'
- Post-Cheshire procedure. Re X (Deprivation of Liberty) (No 2)  EWCOP 37,  MHLO 98 — "I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16). For ease of reference I set out those questions again: '(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?' These questions require consideration of a number of issues which I take in order, formulating each of these issues in the form of a question. ..."
- Alex Ruck Keene, 'Re X (2): further amplification of judicial deprivation of liberty process' (COP Handbook blog, 16/10/14)
- James Batey, 'Implementation of the Re X procedure' (letter from HMCTS to court users, 6/11/14)
Deprivation of liberty
See also Assessment of capacity
- Call for Supreme Court to reconsider. Rochdale MBC v KW  EWCOP 45,  MHLO 123 — The judge in this case decided that KW was not deprived of her liberty, stating as follows: "I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged. I am of the view that the matter should be reconsidered by the Supreme Court." Permission to appeal to the Court of Appeal was granted, and an appeal against the decision was allowed by consent.
- New Law Journal, 'Cheshire West decision on deprivation of liberty could be "unpicked"' (25/11/14)
- Damages. The Local Authority v Mrs D  EWHC B34 (COP),  MHLO 140 — "These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR. ... However, despite this non-admission of liability, the Local Authority had offered in compromise: (a) an apology to Mrs D for the delay in bringing these proceedings; (b) to pay a sum of £15,000 to Mrs D; (c) to pay the reasonable costs of the action incurred by Mrs D's litigation friend; (d) to pay a sum of £12,500 to her husband Mr D; (e) to pay Mr D's reasonable costs of the action. ... For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of rights, and as such it was approved."
- Unlawful detention. Milton Keynes Council v RR  EWCOP B19,  MHLO 30 — Having described the council's conduct as "woefully inadequate from the start" the judge declared that there had been breaches of Article 5 and Article 8.
- Lucy Series, 'Another local authority behaving badly' (Small Places Blog, 16/5/14)
- Challenge to standard authorisation. RB v Brighton and Hove CC  EWCA Civ 561,  MHLO 25 — This is the executive summary and conclusion from the Court of Appeal decision: "In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle and (b) to suffer serious or fatal injuries in consequence. The Council granted a standard authorisation pursuant to schedule A1 to the Mental Capacity Act 2005 ('MCA'), which enabled staff to detain RB at S House. RB brought proceedings in the Court of Protection to terminate the standard authorisation. The Court of Protection dismissed the application and RB appealed to the Court of Appeal. He contends that two preconditions for deprivation of liberty are not satisfied, namely the mental capacity requirement (set out in paragraph 15 of schedule A1) and the best interests requirement (set out in paragraph 16 of schedule A1). In my view RB's appeal should be dismissed. Because of his brain injury RB is unable to use and weigh relevant information. He does not appreciate the dangers of resuming his former chaotic lifestyle in his present condition. Therefore the mental capacity requirement is satisfied. If RB is discharged into the community, he is likely to revert to alcoholism and a chaotic lifestyle. Given his current disabilities, this is likely to lead to serious injury. Therefore confinement in S House, at least for the time being, is in RB's best interests. I reject the submission that IM v LM ! somehow governs the outcome in this case. The court must apply the provisions of the MCA, not judicial glosses on the statute." [Permission to appeal to the Supreme Court was refused, and permission to appeal to Strasbourg is being sought.]
- Adult in children's home. Liverpool City Council v SG  EWCOP 10,  MHLO 67 — "This case raises the following question: Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children's home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children's Homes Regulations 2001 (as amended)? Both parties and their counsel in these proceedings submit that the answer is 'yes'. I agree with them that the answer is 'yes'."
- DOL in children's homes. Barnsley MBC v GS  EWCOP 46,  MHLO 124 — "I very respectfully do not agree with the reasoning in paragraph 6 of the guidance [which was issued jointly by the Ofsted and the President of the Court of Protection on 12/2/14]. There is nothing in either the legislation, or the regulations, or the [National Minimum Standards for Children's Homes] which has the effect that a children's home, which is not an approved secure children's home, is 'unable' to deprive a person of his liberty. ... The NMS 3.19 and 12.7 themselves state that 'No children's home/school ... restricts the liberty of any child as a matter of routine...' Whilst never a matter of routine, those very standards clearly contemplate that a home or school may have to restrict liberty as a matter of non-routine. Such restraint may involve a deprivation of liberty as now understood and, in my view, the unqualified proposition in paragraph 4 of the guidance that there is no purpose to be served in seeking an order of the Court of Protection goes too far. So, accordingly, does the proposition in paragraph 6 and the summary in paragraph 13 of the guidance. In my view, there can indeed be circumstances in which the Court of Protection may authorise a children's home or residential special school to impose restraint which amounts to a deprivation of liberty, and the guidance is mistaken in suggesting that the effect of the NMS is necessarily to prevent the court from doing so."
- Psychiatric detention. Lazariu v Romania 31973/03  ECHR 1219,  MHLO 139 — Detention in psychiatric hospital breached Article 5(1) and (4).
- Psychiatric detention. OG v Latvia 66095/09  ECHR 989,  MHLO 115 — Involuntary psychiatric hospital admission breached Article 5(1) and (4) in this case.
Assessment of capacity
- Litigation and subject matter capacity. LB Islington v QR  EWCOP 26,  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."
- Capacity test. Norfolk CC v PB  EWCOP 14,  MHLO 75 — "The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection.
- Court of Protection Handbook Blog, 'A shot across the bows of practitioners' (17/7/14). This article focusses on Parker J's comments on the conduct of cases before the Court of Protection.
- Alex Ruck Keene, 'A true tangle - capacity, influence and the inherent jurisdiction' (Mental Capacity Law and Policy, 23/7/14). This article expresses concerns about Parker J's approach to capacity and influence, and the inherent jurisdiction.
- Amputation. Heart of England NHS Foundation Trust v JB  EWHC 342 (COP),  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."
- Tithing. Re P (capacity to tithe inheritance)  EWCOP B14,  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'
- Korsakoff's syndrome. TX v A Local Authority  EWCOP 29,  MHLO 117 — "X is a retired lawyer who has suffered, or appears to have suffered, from Korsakoff's syndrome, a mental illness related to the over-consumption of alcohol. ... An urgent authorisation was obtained on 1st May and a standard authorisation to detain him on 13th May. ... X appealed that standard authorisation, hence the case being listed before me in late May. ... X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end."
- Care and residence. GW v A Local Authority  EWCOP 20,  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."
- Illustration of difficulty. Wandsworth CCG v IA  EWHC 990 (COP),  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.
- Potential to achieve capacity. LBX v K, L and M  EWHC 3230 (Fam),  MHLO 148 — "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."
- Undue influence. Kicks v Leigh  EWHC 3926 (Ch),  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."
- Various issues. Derbyshire County Council v AC  EWCOP 38,  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."
- Various issues. LB Redbridge v G  EWHC 485 (COP),  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."
Welfare: residence, contact, personal care
- Guidance on fact-finding hearings. A Local Authority v M  EWCOP 33,  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 !. 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.
- Guidance on fact-finding hearings. LBX v TT  EWCOP 24,  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.
- Anonymity. Westminster City Council v Sykes  EWHC B9 (COP),  MHLO 11 — "It is my view that it is in Ms S's best interests to attempt a one-month trial of home-based care. Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed. ... Having thought about the issue carefully, I have decided on balance - and it is quite finely balanced - that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence."
- Contact. LB Redbridge v G (No 5)  EWCOP 17,  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."
- Care home. Re RGS (No 3)  EWCOP B12,  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."
- Care home. Re RGS (No 2)  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."
- Hospital. Northamptonshire Healthcare NHS Foundation Trust v ML  EWCOP 2,  MHLO 31 — "The Applicants seek declarations that: (i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence; (ii) it would be in ML's best interest to reside at Bestwood Hospital; (iii) it would be in ML's best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met."
- Children. Re X, Y and Z (Minors)  EWHC 872 (COP),  MHLO 6 — "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."
- Return home. Re UF (No 2)  EWCOP 18,  MHLO 78 — "The proceedings were launched by AF, UF's youngest daughter, in August 2013 as a challenge under section 21A MCA 2005 to the standard authorisation of deprivation of liberty. The remit of my enquiry at this hearing was defined by order of Charles J in May 2014, thus: (i) Is it in UF's best interests to return to her home to live with a contingency plan of maintaining her current placement for a period of time? (ii) Should direction be given to the LPA finance about releasing equity from UF's property to pay for her care? (iii) Should the LPA finance be replaced by a Deputy appointed by the Court? (iv) Would any care regime at home still represent a deprivation of liberty?"
- Inherent jurisdiction case. LBX v K, L and M  EWHC 4170 (Fam),  MHLO 149 — "In the judgment I handed down this morning I concluded that L has capacity in relation to decisions about where he should live, the care he receives and contact with his family. Having made that decision I then considered the question as to whether I should invoke the inherent jurisdiction as L was a vulnerable adult. ... I accept this is a difficult balance but, in this case, I am entirely satisfied that because of the vulnerability that this particular person has, and the very clear psychiatric evidence dating back to Dr. Halstead's report in 2007, endorsed by the various witnesses that gave evidence earlier this week, that he remains vulnerable to overwhelming emotional issues which could compromise his capacity. He needs to be able to retain his capacity in circumstances where he has emotional safety. That can only be where there is a proportionate structure in place that enables him to be able to maintain his capacity in a relatively calm environment, and free from the emotional maelstrom, as I have described it, resulting from the relationship that he has with his father in particular, and the relationship the father has with those who support L in the care that he has."
- Whether to return home. Old case but transcript only now available. LBX v K, L and M  EWHC 439 (Fam),  MHLO 185 — "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."
- Supported living trial. Old case but transcript only now available. LBX v K, L and M  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."
See also Assessment of capacity
- Capacity to consent. IM v LM  EWCA Civ 37,  MHLO 1 — "On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".]
- Jess Connolly, 'Court of Appeal on the issue of capacity to consent to sexual relations: IM, LM, AB and LCC !' (Legally Blog website, 27/1/14)
- Peter Edwards, 'When should local authorities stop people having sex' (Peter Edwards Law website, 10/2/14)
- Capacity to consent. AB v LM  EWHC 1234 (COP),  MHLO 139 — "I find on paying close attention to Dr P's advice, but also considering the contribution of Dr G, that Lisa does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been full to sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for Lisa would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality."
- Capacity to consent. LB Tower Hamlets v TB  EWCOP 53,  MHLO 130 — "All parties are agreed that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues that I have to decide are these: (i) Where should TB live in her best interests? ... (ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests? (iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does. (iv) Whatever I decide about residence does her care regime amount to a deprivation of liberty within the terms of Article 5?"
- Daily Telegraph, 'Man banned from having sex with wife by High Court judge' (17/12/14). Subtitle: "Bangladeshi man claims he has right under his culture to have sex with wife, who has mental age of a child, whenever he pleases and she has no right to refuse". See LB Tower Hamlets v TB  EWCOP 53,  MHLO 130
- Capacity to consent. A Local Authority v TZ (No 2)  EWCOP 973,  MHLO 72 — "The principal focus of the latest assessments has been the issues that may arise as TZ endeavours to meet, and form intimate relations with, other men. TZ is clear that he wishes to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question is whether he had the capacity in respect of decisions that may have to be made when that opportunity arises. Following discussion at the hearing, it was agreed that the issues now arising can be summarised as follows: (1) What is the relevant decision in respect of which the question of capacity arises? (2) Does TZ lack capacity in respect of that decision? (3) If yes, what orders should be made in TZ's best interests? (4) Should the court appoint the local authority to act as TZ's welfare deputy?"
- Contraception. The Local Authority v HP  EWCOP B40,  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."
- Guidance on pregnancy cases. NHS Trust v FG  EWCOP 30,  MHLO 118 — "I have been invited by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment. There is concern that in a number of recent cases there has not been a full appreciation or understanding of: (a) the planning to be undertaken in such cases; (b) the procedures to be followed; (c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and (d) the evidence required to support an application to the court."
- Caesarian. Royal Free NHSFT v AB  EWCOP 50,  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."
- Patrick Sawer, 'Judge orders mentally ill woman to have forced caesarean' (Telegraph, 1/2/14)† The press has reported this case as follows: Hayden J decided that it was in the best interests of a pregnant woman, who suffered from schizophrenia, to have a caesarian at 32 weeks in order for her life-threatening condition to be treated, although she was not to be restrained or have force used against her.
- Caesarean/contraception. The Mental Health Trust v DD  EWCOP 13,  MHLO 62 — "By judgment dated 4 July 2014 ... I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section. Further to a scheduled hearing which took place in the following week, I now consider: (i) Whether it is in DD's best interests that the Applicants should be authorised (a) to provide DD with education in relation to contraception, and then (b) to assess her capacity to make decisions in relation to contraception; ... (ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment; (iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005) that DD currently lacks the capacity to make decisions in relation to contraception; (iv) If there is reason to believe that she currently lacks capacity (in relation to (iii) above), whether it is in DD's best interests that a short-term contraception be administered by way of injection (and authorise the Applicants' staff to do so)."
- Caesarean/contraception. The Mental Health Trust v DD  EWCOP 11,  MHLO 61 — "DD is 36 years old. She is at an advanced stage of pregnancy. She has had an extraordinary and complex obstetric history and is now expecting her sixth baby. She has a mild to borderline learning disability, and an autistic spectrum disorder. By application dated 23 May 2014, the Applicants seek declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. Specifically, and significantly, they seek a declaration as to the lawfulness in arranging for DD's baby to be delivered by planned caesarean section. The Applicants seek a further order authorising the conduct of an assessment of DD's capacity to make decisions about contraception, following the imminent birth. DD's five older children are all cared for by permanent substitute carers; four of the children have been adopted."
- Caesarean/contraception. The Mental Health Trust v DD  EWCOP 8,  MHLO 60 — "The issues for decision relate to DD, a woman in her mid thirties with diagnoses of autistic spectrum disorder and borderline learning disabilities. In summary they are: (a) Whether DD lacks capacity to make decisions in relation to her healthcare and, in particular, lacks capacity to consent to a placental localisation scan and an ante natal assessment; (b) Whether it is in her best interests to undergo such a scan and assessment; (c) Whether the Applicants should be authorised to take such necessary and proportionate steps so as to give effect to the 'best interests' declaration to include forced entry, restraint and sedation. This brief judgment is given for two reasons (i) to set out my capacity and best interests' determinations and (ii) for the benefit of Cobb J who is to be the allocated judge at two further hearings."
- Separation at birth X County Council v M  EWHC 2262 (Fam),  MHLO 54 — "On 16 May 2014 I heard two applications by the Applicant local authority, namely: (i) an application under the inherent jurisdiction of the High Court for permission not to disclose to the First Respondent, M, the care plan for her unborn child namely to remove the child at birth; and (ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court. I granted those applications at a hearing on 20 May at which further evidence in support of the applications had been filed. I reserved judgment."
- Separation at birth North Somerset Council v LW  EWHC 1670 (Fam),  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."
- Separation at birth Re DM  EWHC 3119 (Fam),  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."
- Guidance on out-of-hours medical applications. Sandwell and West Birmingham Hospitals NHS Trust v CD  EWCOP 23,  MHLO 83 — (1) Capacity and best interests in relation to life-sustaining treatment. (2) Guidance regarding out-of-hours applications involving medical treatment.
- Court of Protection Handbook Blog, 'Out of hours medical treatment applications - the key principles' (5/8/14)
- Miminally-conscious state. United Lincolnshire Hospitals NHS Trust v N  EWCOP 16,  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."
- Alex Ruck Keene, 'A melancholy but profound milestone' (Mental Capacity Law and Policy, 24/7/14). This article describes the court's best interests decision on artificial nutrition and hydration as momentous because of its approach to a patient in a minimally-conscious state.
- Miminally-conscious state. Sheffield Teaching Hospitals NHS Foundation Trust v TH  EWCOP 4,  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)."
- Vegetative state. Gloucestershire CCG v AB  EWCOP 49,  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."
- Anorexia nervosa. An NHS Foundation Trust v Ms X  EWCOP 35,  MHLO 96 — An NHS Foundation Trust sought declarations that: (a) it is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life; (b) it is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply. The judge decided that X should not be compelled to have treatment for her anorexia, and made the declarations, but expressed the hope that she would realise the benefit of treatment.
- Life-sustaining treatment. County Durham and Darlington NHSFT v PP  EWCOP 9,  MHLO 65 — "The Trust seeks the Courts authority, and corresponding declarations, as to P's treatment, in particular the possible withdrawal, or non-escalation of, life-sustaining treatment as part of an end of life care package. The Trust contends (and interim declarations have been made to this effect already) that P lacks the capacity to litigate, and to make decisions in relation to the serious medical treatment in issue in this application. Specifically the Trust seeks the following declarations pursuant to section 15(1)(c) of the Mental Capacity Act 2005: (a) That it is lawful and in P's best interests to continue to receive artificial hydration via subcutaneous injection. (b) That it is lawful and in P's best interests that the Trust's treating clinicians shall be permitted: (i) Not to provide artificial nutrition by a percutaneous endoscopic gastrostomy tube or via an alternative artificial feeding regime; and (ii) Not to resuscitate her in the event of either a cardiac or respiratory arrest."
- Jehovah's Witness's advance decision. Newcastle upon Tyne Hospitals Foundation Trust v LM  EWHC 454 (COP),  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  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."
- Amputation. Re X (amputation)  MHLO 89 (CA) — The Court of Protection had decided that X lacked capacity to consent to a below-knee amputation to treat her foot infection, and that this treatment was in her best interests. The Court of Appeal refused her son permission to appeal. (1) The judge's decision on capacity was correct. (2) The judge was also correct on best interests: there was no need for further tests to determine best interests; the medical experts had no difficulty reaching their conclusions and there was no disagreement; the alternatives were unsuitable (for example, antibiotics would cease to be effective); the son was worried about death in theatre, but in fact surgery gave X the best chance of survival; her condition was deteriorating and the infection would spread without amputation. (Summary based on Lawtel report of ex tempore judgment - transcript not available at time of writing.)
- Brett Gibbons, 'Birmingham pensioner ordered by judges to have maggot-infested foot amputated' (Birmingham Mail, 9/8/14)
- Cancer. An NHS Trust v J  EWCOP 2675,  MHLO 58 — "This application concerns an elderly lady of 79 years whom I shall call 'Mrs J'. She has longstanding mental health problems and now also cancer. Many professionals concerned for her welfare have with much care and diligence come to the view that it is in her best interests for her to have investigations and to receive treatment; but she is resistant and, in spite of all professional efforts and advice, not willing to consent. Accordingly, on 3rd July 2014, the relevant NHS Trust issued a notice of application in the Court of Protection seeking declarations: (1) that Mrs J lacks capacity to litigate in these proceedings; (2) that she lacks capacity to take decisions about the proposed medical investigations and treatment; and (3) that it is in her best interests to have those investigations and treatment. ... Taking all aspects of the case into account and weighing them up, I have come to the conclusion that Mrs J's best interests would be served by the proposed investigations and treatment. I shall make declarations accordingly, as already discussed with Counsel, detailing the necessary treatment and other consequential arrangements."
- Weight loss. Re A (A Child)  EWCOP 920,  MHLO 77 — "A, the young person with whom I am concerned, will be 16 years old in June of this year. At the time I am hearing this application, brought by an NHS Foundation Trust, A weighs just 5 ½ stones and has been in hospital for 10 months. ... On the 9th January 20014 the Trust applied for declarations inter alia (i) that it is lawful and in the best interest of A to have a Nasojejunal tube inserted and reinserted on any occasion that it is removed; (ii) it is lawful and in the interest of A to receive fluids, nutrition and medications through a Nasojejunal tube; (iii) it is lawful and in A's best interest to receive treatment (to include psychiatric, psychological and medication as prescribed by her consultant treating psychiatrist) and assessment by the child and adolescent mental health team."
- Drug overdose. An NHS Foundation Hospital v P  EWHC 1650 (Fam),  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."
Breach of court orders
- No action if no further breach. Re PW (Court of Protection Order)  EWHC B8 (COP),  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."
- Contempt. Derbyshire County Council v Kathleen Danby  EWCOP B26,  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."
- Contempt. Derbyshire County Council v Kathleen Danby  EWCOP B22,  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."
- Hadkinson order. A Local Authority v B, F and G  EWCOP B18,  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."
- Excessive costs. Re A and B (Court of Protection: Delay and Costs)  EWCOP 48,  MHLO 125 — "Two cases that I heard on consecutive days last month illustrate the problem of delay and expense in proceedings in the Court of Protection. In Case A, the proceedings lasted for 18 months. ... In Case B, the proceedings lasted for five years. ... Each case therefore generated legal costs at a rate of approximately £9,000 per month. ... The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old? I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration."
- Council. Milton Keynes Council v RR  EWCOP 34,  MHLO 120 — "MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified. Accordingly the Applicant shall pay the 2nd respondent’s costs of the proceedings to date to be subject to detailed assessment unless agreed between the parties. The costs order shall include a detailed assessment of any publicly funded costs of the 2nd Respondent."
- Press. LB Redbridge v G (No 4)  EWCOP 5,  MHLO 66 — "Stripped of all rhetoric, the essential point here is very simple: it is that [Associated Newspapers Limited] made an application, to be joined in proceedings in which it had no legally recognised interest, which was seemingly unprecedented (para 52 of my previous judgment), which was, as I said, misconceived and which failed completely. The question at the end of the day is whether in all the circumstances, and having regard in particular to the matters referred to in CoPR 2007 rule 159, it is right to depart from the general rule in rule 157. In my judgment it is, given the way in which I have characterised ANL's application and the reasons why it failed. But that does not mean that ANL should necessarily have to pay all the costs, and I have concluded that that would be to go too far. There are, in my judgment, three factors which, taken in combination, justify this conclusion: first, the public importance of the issues; secondly, the stance adopted beforehand in particular by the Official Solicitor; and, thirdly, the fact that I do not see why ANL should be required to pay two sets of costs. Doing the best I can, and readily acknowledging that any figure is to an extent arbitrary, my conclusion is that ANL should be ordered to pay 30% of the costs of the local authority and 30% of the costs of the Official Solicitor (including his costs of instructing two counsel). The costs, if they cannot be agreed, will have to be the subject of detailed assessment. In concluding I wish to make one thing absolutely clear. The essential factor driving the order for costs I have made in this case was, in addition to the fact it failed, the nature of the application, namely an application to be joined as a party. It should not be assumed that the same approach would have been appropriate if the dispute had been, as it usually is in cases involving the media, a dispute as to the need for or the ambit of a reporting restriction order. Very different considerations arise in such cases. Conventionally, there is often no order for costs, whatever the outcome. Nothing I have said here is intended to have any application in such cases."
- Trust. North Somerset Council v LW  EWCOP 3,  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."
- Public Guardian. The Public Guardian v CT  EWCOP 51,  MHLO 128 — "This is the first occasion on which a respondent has sought an order for costs against the Public Guardian in respect of a safeguarding application regarding the respondent's conduct as the donee of a Lasting Power of Attorney."
- Whether 'P' to pay costs. N v E  EWCOP 27,  MHLO 91 — "This judgment relates primarily to the costs of the proceedings and, in particular, whether M should be made to pay her own costs or whether they should be assessed and paid from E's estate. ... The judgment concludes with a brief discussion of how the court was able to salvage E's preferences for medical treatment at the end of her life from the wreckage caused by the termination of the appointment of her health-care proxy. This aspect of the proceedings was uncontested and reflects the consensus of all parties."
- Family dispute. JS v KB and MP (Property And Affairs Deputy for DB)  EWHC 483 (COP),  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."
- Local authority. LB Bexley v V  EWHC 2187 (Fam),  MHLO 82 — "This matter is listed for a directions hearing at my direction in light of the contumelious failure of the London Borough of Bexley to comply with directions set out in an order of 12 May 2014. By paragraph 19 of that order the local authority were to file their final evidence by 4.00pm on 2 June. ... I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing."
- Approval of gift. Julia Lomas v AK (gift application)  EWHC B11 (COP),  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.
- Statutory will. Re Gladys Meek  EWCOP 1,  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."
- David Rees and Sam Chandler, 'David Rees and Ruth Hughes successful in long awaited Court of Protection decision on statutory wills' (5 Stone Buildings, 15/5/14)
- Appointment of deputy. Re ES: Kent County Council v PLC and AJS  EWHC B6 (COP),  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."
- Appointment of deputy. LB Haringey v CM  EWCOP B23,  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..."
- Appointment of deputy. Re EU (Appointment of deputy)  EWCOP 21,  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."
- Appointment of deputy. Re BM  EWCOP B20,  MHLO 131 — "This is a case in which there is a dispute as to who should be appointed as BM’s deputy for property and affairs."
- Appointment of deputy. BIM v MD  EWCOP 39,  MHLO 100 — Dispute over who should act as property and affairs deputy.
- Appointment of deputy. Re DG: David v Peter  EWCOP 31,  MHLO 94 — Contested application for the appointment of a deputy for property and affairs.
Lasting and Enduring Powers of Attorney
- Attorney 'named and shamed'. Re DP: Public Guardian v John Marney  EWCOP 7,  MHLO 69 — "The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had "behaved in a way that has both contravened his authority and has not been in DP's best interests. ... At the end of the day the issue is really very simple. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge's findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be if his self-same conduct was being considered in the Chancery Division or the Crown Court? ... In these circumstances, and with all respect to the Senior Judge, the balance comes down heavily and decisively in favour of the public being told who JM is; in favour of the Daily Mail and others being free to identify him as the person referred to by the Senior Judge in his judgment. JM is John Marney."
- Revocation. Re DP (Revocation of LPA): OPG v John Marney  EWHC B4 (COP),  MHLO 8 — "Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP's best interests. Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP's property and affairs."
- Revocation. The Public Guardian v JW  EWCOP B24 ,  MHLO 34 (COP) — "In his application to the court, the Public Guardian sought two orders. The first was for the revocation of the LPA and the second was for the appointment of a panel deputy."
- Revocation. The Public Guardian v Marvin  EWCOP 47,  MHLO 125 — "This is an application by the Public Guardian to revoke two Lasting Powers of Attorney – an LPA for property and financial affairs and an LPA for health and welfare. The attorney concedes that he has contravened his authority and failed to act in the donor's best interests in respect of the donor's property and affairs, and has no objection to court revoking the LPA for property and financial affairs. However, he does not consider that he has contravened his authority or failed to act in the donor's best interests with regard to the donor's health and welfare."
- Revocation. The Public Guardian v AW (Application to revoke LPA)  EWCOP 28,  MHLO 116 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney ... Having regard to all the circumstances, therefore, I shall revoke AW's appointment as attorney because I am satisfied that: (a) OB lacks capacity to revoke the LPA herself; and (b) AW has contravened her authority by taking advantage of her position."
- Revocation. Re JL (Revocation of LPA)  EWCOP 36,  MHLO 97 — "I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL's best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her. With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL's best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds."
- Revocation. Re PC: Public Guardian v AC  EWCOP 41,  MHLO 109 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs and to direct him to cancel its registration."
- Revocation. Re VH (Revocation of Lasting Power of Attorney)  EWCOP 15,  MHLO 63 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney for property and financial affairs. ... Because of DH's lack of credibility, his inexperience in assessing capacity, his vested interest in the outcome, and because of the complicated nature and effect of the particular transaction that he required VH to enter into, I prefer the Special Visitor's opinion that she probably lacked capacity to DH's bold assertion that his mother 'fully understood what she was doing' when she entered into the mortgage and handed over to him the money that had been advanced by Barclays Bank. I am not satisfied that on 21 October 2011 VH had the capacity to enter into the transaction, which not only severely depleted her capital but also had adverse impact on her income, and I am not prepared retrospectively to approve the gift because it was neither reasonable nor affordable. VH may need these funds in future to pay for her care, either in her own home or in a residential care home or nursing home. I am satisfied that VH lacks the capacity to revoke the LPA and that DH has behaved in a way that has both contravened his very limited authority to make gifts under section 12 of the Mental Capacity Act 2005 and has not been in VH's best interests. Accordingly, I revoke the LPA and direct the Public Guardian to cancel its registration."
- Revocation. Re MRJ (Reconsideration of Order)  EWCOP B15,  MHLO 27 — "This is an application to reconsider an order I made on 27 September 2013: (a) suspending the applicants from acting as MRJ's attorneys under a Lasting Power of Attorney ('LPA') for property and financial affairs until further order; and (b) appointing the authorised officer of Suffolk County Council as MRJ's interim deputy with instructions to investigate the applicants' management of her finances. ... In my judgment, the revocation of the LPA is in MRJ's best interests. It is in accordance with the law, and it is a necessary and proportionate response for the prevention of crime and for the protection of MRJ's right to have her financial affairs managed competently, honestly and for her benefit."
- Revocation. Neutral citation added (case was already on MHLO). Re Buckley: The Public Guardian v C  EWHC 2965 (COP),  MHLO 13 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. ... Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA."
- Revocation of EPA. Re AB (Revocation of Enduring Power of Attorney)  EWCOP 12,  MHLO 55 — "This is an application for the court to revoke an Enduring Power of Attorney on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor's attorneys. ... MD and WD have breached their fiduciary duties in several ways and in the circumstances I am satisfied that they are unsuitable to be AB's attorneys, and I shall revoke the EPA. As far as the choice of deputy is concerned, the appointment of an independent professional deputy or panel deputy would be disproportionate. What is left of AB's estate would rapidly be eroded by the professional deputies' costs. I agree with Miss Cooper that Brent Council is best placed to act as deputy, as AB is in a residential care home and the Council is already funding the lion's share of her care fees."
- Joint attorneys. Public Guardian v Miles  EWCOP 40,  MHLO 105 — "This is an application by the Public Guardian for the court to determine the validity of a provision in a Lasting Power of Attorney... The question I am required to answer is whether the donor of an LPA can appoint more than one attorney to act jointly with survivorship by expressly re-appointing the continuing attorney or attorneys."
- Joint and several attorneys. Re Bishop  MHLO 141 (LPA) — The donor appointed attorneys to act jointly and severally and included the following provision: "I direct that my attorneys shall endeavour to act jointly on decisions wherever possible. They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made." On the application of the Public Guardian the provision was severed as being incompatible with a joint and several appointment. Although in the guidance section, it was expressed in mandatory terms and was in substance a restriction. [OPG summary - LPA case.]
- Timing of appointment. Re Davies  MHLO 184 (LPA) — The donor appointed four attorneys, A, B, C and D, to act jointly and severally, and imposed the following restriction: "The appointment of C and D shall not take effect unless I am mentally and/or physically incapable of managing my affairs and the appointment of C shall not take effect unless she has been in my employment within the period of one month preceding my loss of capacity to manage my affairs." This restriction was severed on the ground that the appointments of co-attorneys cannot be activated at different times. [OPG summary - LPA case.]
- Gifts. Re Buckley  MHLO 144 (LPA) — The donor made an LPA for property and financial affairs and included the following provision: "Assets should be used firstly to ensure the well being and comfort of [my wife] and secondly to meet any urgent need of the families of the Attorneys and thereafter managed until distributed in accordance with the terms of my will." On the application of the Public Guardian the provision was severed. Although the attorneys would have power to maintain the donor's wife (see Re Bloom above), this should not be the priority of the LPA because section 1(5) of the MCA provides that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." The attorneys had no authority to meet the needs of their families, as the donor was not under any legal obligation to maintain them. Any maintenance of the families would be a gift which would potentially fall outside section 12 of the MCA 2005. [OPG summary - LPA case.]
- Gifts. Re Rider  MHLO 143 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "No political donations to be made other than to the conservative party." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. While section 12(2)(b) permits the making of gifts to charities (subject to certain conditions), donations to the conservative party, or any other political party, would not fall within that provision. [OPG summary - LPA case.]
- Gifts. Re Barac  MHLO 142 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "After having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation [e.g. Inheritance Tax] and be able to create Trusts where beneficial." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.]
Other capacity cases
- Confidentiality after death. Press Association v Newcastle Upon Tyne Hospitals Foundation Trust  EWCOP 6,  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."
- Press access. LB Redbridge v G (No 3)  EWCOP 1361,  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."
- Alex Ruck Keene, 'The Press and the COP' (Mental Capacity Law and Policy, 2/5/14)
- Communication with the press. LB Redbridge v G (No 2)  EWCOP 959,  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 ..."
- Habitual residence. An English Local Authority v SW and A Scottish Local Authority  EWCOP 43,  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."
- Official Solicitor's funding. Bradbury v Paterson  EWHC 3992 (QB),  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."
- Restriction on access to court. A Local Authority v B, F and G  EWCOP B21,  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."
- Consent orders. MAP v RAP  EWHC 4784 (Fam),  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.
- Redaction. RC v CC  EWHC 131 (COP),  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."
- Purpose of s35 remand. R (M) v Kingston Crown Court  EWHC 2702 (Admin),  MHLO 50 — M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it.
- Minimum term. AG's ref (no 34 of 2014) sub nom R v Jenkin  EWCA Crim 1394,  MHLO 56 — Criminal sentencing case with mental health background (a s45 hybrid order had been given in conjunction with life sentences). The Court of Appeal clarified that if a sentencing court "chooses to work with the currency of minimum terms, as it generally will do in homicide cases involving mandatory or discretionary life sentences, it does not need to have regard to the early release provisions". In this case, the judge should not have halved the 12-year minimum term to 6 years. A minimum term of 13 years 4 months was substituted.
- Extended sentence. AG's reference (no 91 of 2014) sub nom R v Joseph Williams  MHLO 137 (CA) — The trial judge had imposed a sentence of 14 years' imprisonment, together with with a s45A hospital order and limitation direction, on an offender (W) who had pleaded guilty to attempted murder. Following an AG's reference the Court of Appeal held that: (1) The appropriate range was 17-25 years, the starting point was 20 years after a trial, and the judge was not at fault for reducing the sentence by six years given the unusual facts of the case that related to W's mental health. (2) It was not certain that the offence was motivated by antipathy to V's sexual orientation; it could equally have been the case that W did not want to share his flat with anyone. (3) As the judge considered that W's dangerousness was not confined to his mental illness, he should have passed an extended sentence to protect the public in the event that the criteria for the hospital order and restrictions were no longer satisfied, but the offender remained a risk to the public. (4) An extended period of five years was added to the 14-year sentence. The hospital direction with restrictions remained unchanged. (Summary based on Lawtel summary of ex tempore judgment.)
- Julia Collins, 'Court of Appeal tells Margate homophobic thug Joseph Williams he will serve at least two thirds of sentence years for attack on Connor Huntley' (Kent Online, 26/11/14). Despite the Court of Appeal's statement that it was uncertain, the Solicitor General is quoted as saying "I hope the increased sentence of 19 years sends out a clear message that attacks motivated by homophobia will be dealt with by long prison sentences".
- TPIMs. DD v SSHD  EWHC 3820 (Admin),  MHLO 140 — "Currently, the effects of the [Terrorism Prevention and Investigation Measure] in general, whatever the particular effects of certain restrictions, and the effects of the three most contentious conditions apart from the tag, plainly do not cross that high threshold so as to breach of Article 3. I reach that conclusion recognising that the maintenance of the TPIM and those conditions is significantly worse for DD than for a person who is in normal mental health, and that particular care is required in judging whether a mentally ill and vulnerable person is being treated with proper respect for the fact that he is a human being. The tag as described by Professor Fahy and Dr Deeley is undoubtedly the most severe requirement in its impact on DD, because of his paranoid ideation. DD's delusions about the tag being an explosive device and a camera are very frightening and distressing. He wants to remove it, as voices tell him to, yet knows this would continue with the cycle of breaching the TPIM, facing prison, release, revival of the TPIM and breach. The doctors agree that the removal of the tag would not simply lead to paranoid delusions associated with it being transferred to another object, because of the particular nature of the tag. Its removal would reduce the number and intensity of the stressors he has to cope with, which could increase his ability to handle those which remain. That is a judgment I make, but it is consistent with the medical evidence; indeed it seems obvious. However, I am not persuaded that the effect of the tag, on top of the other TPIM effects, does breach Article 3 in these circumstances in view of the high threshold required to be crossed."
- Extradition. Republic of South Africa v Dewani  EWHC 153 (Admin),  MHLO 3 — If the RSA government were to give a suitable undertaking, it would not be oppressive or unjust to return Dewani to the RSA for trial. The undertaking would need to be to the following effect: "In the event of the appellant being found unfit to be tried, he will be free to return to the UK, unless there is found to be a realistic prospect of his being tried within a year (or other stated reasonable period) of that finding and the trial takes place within the period. In any event the appellant must be free to return in the event a Court in South Africa, having found him unfit to be tried, embarked on the process of determining under the Criminal Procedure Act 1977 whether he did the act."
- Detention. R (MD) v SSHD  EWHC 2249 (Admin),  MHLO 52 — "In my judgment, the Claimant's detention was unlawful from the 21st October 2011 until her release on the 13th September 2012 by reason of a breach of the third Hardial Singh principle and from the 16th February 2012 until her release on the 13th September 2012 due to the failure of the Defendant to properly understand and apply her policy regarding the detention of those with serious mental illness to the circumstances of the Claimant's case. So the Claimant's detention was unlawful both at common law and under Article 5 of the ECHR. I have also found that the Claimant's treatment by the Defendant by detaining her in the circumstances I have set out above amounted to inhuman and degrading treatment in breach of Article 3 of the ECHR."
- Detention. R (O) v SSHD  EWCA Civ 990,  MHLO 47 — "This issue on this appeal is whether the Secretary of State for the Home Department ("the Secretary of State") could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. ... Accordingly, I would dismiss this appeal. The new diagnosis of Dr Agnew-Davies proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if O was released into the community and these were not put in place to the satisfaction of the court until 6 July 2011 when she was in fact released on bail."
- Detention. R (SA (Holland)) v SSHD  EWHC 2570 (Admin),  MHLO 79 — 'In these proceedings the claimant SA challenges his detention by the defendant under immigration powers. ... Permission was granted ... on what were then grounds 1 and 3 of the grounds of claim: that the defendant made public law errors in the application of her policy for detention of the mentally ill (ground 1) and that the claimant's detention was in breach of the Hardial Singh principles ... (ground 3). Ground 2 claimed that the policy on the detention of the mentally ill was itself unlawful. ... in the light of the decision of the Court of Appeal in R (Das) v SSHD the claimant no longer pursues that ground.'
- Detention. BCZ v SSHD  EWHC 3585 (Admin),  MHLO 114 — "This case concerns the position of a person in detention facing deportation who refuses food and fluid with a view to pressurising the SSHD into giving him leave to remain but who, in consequence, is at risk of suffering a serious neurological condition. Cases such as these highlight acute conflicting public interest considerations. On the one hand the State has in place an immigration policy which it seeks, and is entitled, to enforce vigourously and which includes detention pending removal as an important protective component. On the other hand detention is an acute deprivation of a person's civil liberties and, ordinarily, should be used only exceptionally where other courses short of detention are unavailable."
- Detention. R (Alemi) v SSHD  EWHC 3858 (Admin),  MHLO 111 — "I have reached the conclusion that no reasonable Secretary of State could have concluded that detention within a detention centre was in accordance with her published guidance once confronted with the contents of Dr Thomas's report. ... I cannot be precise about the time which would have elapsed, necessarily, before all necessary steps had been taken transfer to the Claimant but it seems reasonable to estimate that the process would have taken at least two weeks. In the result I conclude that the Claimant was unlawfully detained from midnight 23 May 2013 until his transfer to the psychiatric unit on 16 August 2013. ... At the commencement of the hearing before me I made it clear that I would adjudicate upon the issue of liability alone. I make it clear that nothing in this judgment precludes the Defendant from seeking to argue that the Claimant is entitled to nominal as opposed to substantial damages. All issues relating to damages will be considered, as appropriate, after a trial in the Queen's Bench Division."
- Parole Board delay. R (LV) v SSJ  EWHC 1495 (Admin),  MHLO 33 —
MHT/PB delay "In the light of authority, Mr Southey accepts that he cannot submit as a matter of principle that the system by which the Claimant's release was considered by two successive bodies, the Tribunal and the Parole Board, is in conflict with the Claimant's Article 5(4) rights. ... He goes on to argue that, on the facts as they are here, if there were to be two hearings before two bodies, the state had a legal obligation to ensure expedition throughout the overall process. He says there was no such expedition, since the review of the legality of the Claimant's detention took almost 22 months from the date when the Claimant applied to the Tribunal on 24 May 2011 to the decision of the Parole Board on 21 March 2013. Within that period, Mr Southey makes a series of specific complaints as to periods of delay. ... The claim for judicial review is dismissed as against both Defendants. ... Although it took a considerable time to be resolved, there was in my view no breach of the obligation on the part of the State to provide a 'speedy' resolution."