Category

2008 cases

Case and summary Date added Categories
Han v President of the Circuit Court (2008) IEHC 160 — "In the relatively recent past, the applicant was involuntarily committed to a mental hospital under the Mental Health Act 2001. The detention was reviewed by a Mental Health Tribunal and affirmed as correct. The applicant then appealed to the Circuit Court. Before he could process that appeal, he became well and was discharged from the mental hospital. Deery J, the President of the Circuit Court, struck the matter out from the hearing list as, the applicant then being well, he considered the matter to be moot. The applicant now challenges this decision." 2012‑04‑28 17:37:10 2008 cases, No summary, Southern Irish cases, Transcript


Re Hunt (2008) (Preston county court, 12/6/08)Mr Hunt suffered from Huntington's disease and had shut himself off from the world, in his home; he had ignored demands for payment of council tax; the court (not knowing his condition) made a bankruptcy order, then an order that he be arrested and brought before the court for failure to attend for public examination. (1) Under rules 7.43-7.44 Insolvency Rules 1986 (since amended to reflect the MCA) an 'incapacitated person' was one who is incapable of managing and administering his property and affairs either (a) by reason of mental disorder within the meaning of the Mental Health Act 1983, or (b) due to physical affliction or disability; the court may appoint a representative for such a person. (2) A bankruptcy order may be annulled if the order 'ought not to have been made' at the time. (3) The onus cannot lie on the debtor to establish lack of capacity because lack of capacity would itself render the debtor unable to do so: courts should investigate capacity where there is reason to suspect it may be absent. (4) On the facts, Mr Hunt was incapable of engaging in the proceedings by reason not only of mental disorder but also physical affliction or disability. (5) If there had been a representative the outcome could have been different, and one was required. (6) There is no point in an annulment if there is no prospect of a bankruptcy order being refused on a re-hearing; however, in this case the outcome could have been different, particularly given the potential DDA and HRA issues, and the order was annulled. 2011‑03‑29 23:45:57 2008 cases, Brief summary, Other capacity cases, Transcript


Re P and OM (2008) COP 26/11/08The Court: (1) granted a worldwide freezing injunction over the assets of a son alleged to have to wrongfully obtained the proceeds of the sale of a house belonging to his incapacitated mother; and (2) made a declaration requiring the son to return his mother, a British citizen now in Guyana, to the United Kingdom for the purposes of assessment of her capacity, inter alia, to make decisions concerning her health and welfare. The Court determined (it appears for the first time) that it had the jurisdiction under paragraph 7 of Schedule 3 to the Mental Capacity Act 2005 to make decisions regarding the health and welfare of an incapacitated adult in a foreign country on the basis that they were habitually resident in England and Wales. [Summary from 39 Essex Street website.] 2010‑11‑17 00:32:43 2008 cases, Brief summary, No transcript, Other capacity cases


Di Mascio v MHTS (2008) GWD 37-559The Mental Health Officer appealed against the decision by the Mental Health Tribunal for Scotland to vary the conditions of a Compulsory Treatment Order from a hospital based order to a community based one. The variation provided that the patient should reside with his mother. The appeal was refused. It was held that he Tribunal should have regard to the principles set out in section 1 of the Mental Health (Care & Treatment) (Scotland) Act 2003 when determining what compulsory measures should be authorised; and that a significant risk to the safety of others did not determine that detention in hospital must be authorised. 2010‑09‑09 22:02:57 2008 cases, Brief summary, Scottish cases, Transcript


AB v MHTS (2008) GWD 36-543During the course of a Mental Health Tribunal the Convenor curtailed the appellant's solicitor's repetitive cross-examination. An interim Compulsory Treatment Order (CTO) was granted. A subsequent Tribunal granted a CTO. This decision was subject to appeal. The Sheriff concluded there had been no procedural impropriety in the conduct of the hearing, nor was there a requirement for the Responsible Medical Officer to formally adopt their mental health report; the Tribunal could consider the evidence read as a whole in conjunction with the earlier mental health reports. 2010‑09‑09 19:22:00 2008 cases, Brief summary, Scottish cases, Transcript


Re HM; PM v KH [2008] EWHC 2824 (Fam)It was in the best interests of a young lady without capacity to determine questions of treatment, care and medical treatment to reside at a specialist placement rather than with her father. 2010‑07‑20 16:47:50 2008 cases, Best interests, Detailed summary, Missing from Bailii, Transcript


FW v Dept of Psychiatry James Connolly Memorial Hospital (2008) IEHC 283 — Challenge to lawfulness of detention under Southern Irish law. [Summary required.] 2009‑12‑09 23:14:06 2008 cases, Miscellaneous, No summary, Southern Irish cases, Transcript


Z v Khattak (2008) IEHC 262 — Challenge to lawfulness of detention under Southern Irish law. [Summary required.] 2009‑12‑09 23:10:44 2008 cases, Miscellaneous, No summary, Southern Irish cases, Transcript


Re Cloutt (2008) COP 7/11/08The donor made an EPA in October 2000 appointing NatWest Bank as attorney. This was registered in March 2008. In April 2008 the donor executed an instrument intended to be a Lasting Power of Attorney, appointing a different attorney, and executed a deed revoking the EPA. In the LPA the Part B certificate was provided by a medical practitioner, who had confirmed that he was satisfied that the donor was able to make an LPA. In June 2008 the LPA attorney applied to court for an order confirming the revocation of the EPA (as required by paragraph 15 of Schedule 4 of the MCA). The Senior Judge made a directions order in August 2008 requiring the submission of further evidence on the ground that the revocation of an EPA is a different transaction from the creation of an LPA, and capacity to create an LPA is not necessarily the same as capacity to revoke an EPA. Thus a doctor’s certification of an LPA is not of itself sufficient proof of capacity to revoke an EPA. On considering the further evidence subsequently provided by the doctor and the donor’s solicitor, the court was satisfied that the donor had capacity to revoke the EPA. A final order was made confirming the revocation of the EPA and directing the Public Guardian to cancel its registration. [OPG summary - EPA case.] 2009‑11‑29 23:58:12 2008 cases, Brief summary, EPA cases - all, EPA cases - capacity to revoke EPA - test is not the same as for creation of LPA, No transcript


Re Corbett (2008) COP 4/12/08A restriction in an EPA which had been registered in 2006 contained the following restriction: “No transaction with a value greater than £500 to be actioned without the written permission of my son SC.” The attorney applied for an order removing the restriction on the grounds that SC’s whereabouts were unknown and had not been heard from for 12 months. The attorney wished to sell the donor’s house to pay for care home fees. The court determined that, having regard to all the circumstances, the restriction was an unreasonable fetter on the scope of the attorney’s authority, and was having an adverse impact on the management and administration of the donor’s property and affairs. The restriction was accordingly severed and the Public Guardian was directed to register a note to that effect. [OPG summary - EPA case.] 2009‑11‑29 22:46:56 2008 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript


Re Wills (2008) COP 20/11/08The donor appointed three attorneys to act jointly and severally. She then imposed the following restriction: “Although I have appointed my Attorneys to act jointly and severally, I require that at least two of them shall sign any cheque on my behalf for a sum in excess of £500 or act in any transaction worth over £500.” On the application of the attorneys to determine whether the power was valid, the court severed the restriction. (OPG summary.) 2009‑11‑29 22:31:18 2008 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Blair (2008) COP 1/10/08The donor appointed two attorneys to act jointly and severally, and contained the following restriction: “For single transactions of a value in excess of £500 (five hundred pounds) then I declare my attorneys shall act jointly as against jointly and severally.” On the application of the attorneys under paragraph 4(5) of Schedule 4 of the MCA to determine whether the power was valid, the court severed the restriction. (OPG summary.) 2009‑11‑29 22:30:00 2008 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Heartfield (2008) COP 17/6/08The donor stated in the EPA: “I delegate all my trustee functions and powers whether conferred by statute, general law or a trust instrument to my attorneys”. On the application of the attorney the court determined that the provision was ineffective as part of an EPA and severed it. [OPG summary - EPA case.] 2009‑11‑29 22:12:11 2008 cases, Brief summary, EPA cases - all, EPA cases - delegation of trustee functions, No transcript


Re Parker (2008) COP 22/12/08This application concerned an EPA which had already been registered in 2007. The attorneys had signed the EPA on 25 December 1993 and the donor had signed later, on 13 January 1994. The court held that the EPA was valid, applying the unreported decision of Knox J in Re R dated 23 February 1988. (OPG summary.) 2009‑11‑29 22:07:18 2008 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript


Re Wealleans (2008) COP 8/5/08The witness had not stated her address in the instrument, as required by Regulation 3(1) of the Enduring Powers of Attorney (Prescribed Form) Regulations 1990. On the application of the attorney the court declared pursuant to MCA Schedule 4 paragraph 2(4) that the EPA was “procedurally valid”. [Paragraph 2(4) provides that, if an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression]. [OPG summary - EPA case.] 2009‑11‑29 22:05:40 2008 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript


Re Gibbs (2008) COP 9/9/08The certificate provider ticked the box to confirm that he had discussed the LPA with the donor and that the attorneys were not present, and also ticked the box to say that the LPA had been discussed with the donor in the presence of other persons, identified as the attorneys. The court directed that the LPA was valid (the certificate provider having confirmed by letter that he had interviewed the donor on her own as well as with the attorneys present). (OPG summary.) 2009‑11‑29 22:03:42 2008 cases, Brief summary, LPA cases - all, LPA cases - where attorney present when certificate provider interviews the donor, No transcript


Re Howarth (2008) COP 28/7/08The donor had named the replacement attorney as the only person to be notified of an application to register. MCA Schedule 1 paragraph 2(3) provides that a person who is “appointed as donee under the instrument” may not be a named person. If there was no effective named person, the instrument could only be valid if it contained two Part B certificates, but it contained only one. On the application of the Public Guardian the court directed the severance of the appointment of the replacement attorney on the ground that a replacement attorney was a person “appointed as donee under the instrument” who could not, therefore, be a named person. As the appointment of the replacement attorney was severed, the named person was not an attorney and so the instrument could be registered. (OPG summary.) 2009‑11‑29 21:59:57 2008 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney as a named person, No transcript


Re Nazran (2008) 27/6/08The certificate provider had not completed the first two boxes in Part B of the instrument to confirm that he was acting independently of the donor, was not ineligible to provide a certificate, and was aged 18 or over. The attorneys applied to court for a declaration that the instrument was a valid LPA or, alternatively, that the instrument was to be treated as valid under MCA Schedule 1 paragraph 3(2). [Paragraph 3(2) provides that the court may declare that an instrument which is not in the prescribed form may be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney]. The court, in the exercise of its discretion under Schedule 1 paragraph 3(2), declared that the instrument was to be treated as if it were an LPA and registered accordingly. The Public Guardian does not have this discretion. (OPG summary.) 2009‑11‑29 21:50:24 2008 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript


Re Bates (2008) COP 3/12/09The donor appointed two original attorneys and a replacement attorney, who would assume office in the following circumstances: “She may act at any time at the election of either attorney”. These words were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009‑11‑29 21:41:29 2008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript


Re Patel (2008) COP 1/12/08The donor appointed a replacement attorney to act if the original attorney should be “mentally or physically incapable” or if the original attorney “is not in England at any time that my personal or financial affairs require attention”. The words in bold were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009‑11‑29 21:40:14 2008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript


Re Jenkins (2008) COP 2/9/08The donor had appointed the attorneys of a property and affairs LPA to act “together and independently”. She then directed that they must act together in relation to any bills, payments or costs exceeding £2,000 in any one calendar month and in relation to any single payment greater than £1,000 in any calendar month. The donor had also appointed a replacement attorney, and directed that she should act if the original attorneys were “not available through travel or living abroad or any other circumstances that may prevent or restrict their capacity to act on my behalf as attorneys”. The court ordered the severance of both clauses, on the application of the Public Guardian. The directions in the first clause were incompatible with an appointment to act “together and independently”. The directions in the second clause were invalid because a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009‑11‑29 21:37:36 2008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Begum (2008) COP 24/4/08On the application of the Public Guardian, the court directed the severance from a Property and Affairs LPA instrument of the following clauses, on the ground that they were ineffective as part of an LPA: (1) All decisions about the use or disposal of my property and financial resources must be driven by what my Personal Welfare Lasting Power of Attorney(s) believe will support my long term interests. (2) Any decisions affecting assets (individually or together) worth more than £5,000 at any one time must be discussed and agreed with Dr X. (3) In the event of there being any disagreement between my Personal Welfare Lasting Power of Attorney(s) and/or Dr X this should be resolved by these parties appointing an independent advocate to adjudicate. (OPG summary.) 2009‑11‑29 21:33:02 2008 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript


R v Singleton [2008] EWCA Crim 468Sentence of 5 years' imprisonment replaced by 3-year community order with residence, supervision and mental health treatment requirements. 2009‑11‑03 21:55:54 2008 cases, Brief summary, Sentence appeal cases, Transcript


R (Nottingham Healthcare NHS Trust) v MHRT (Northern Region), Re GK [2008] EWHC 2445 (Admin)The Tribunal's decision that GK did not suffer from any mental illness and should be discharged from Rampton, which was contrary to all the medical evidence including the independent psychiatrist's, was inadequately reasoned. 2009‑11‑03 21:49:54 2008 cases, Brief summary, Reasons, Transcript


RM v Scottish Ministers [2008] CSOH 123 — Unsuccessful challenge relating to effectiveness of Scottish "conditions of excessive security" legislation. [Summary required.] 2009‑11‑01 22:01:39 2008 cases, Miscellaneous, No summary, Scottish cases, Transcript


R v Grant [2008] EWCA Crim 1870Based on recently-obtained medical evidence that the appellant's significant learning disability and unfitness to plead was masked by his external demeanour and physical appearance, his conviction (and 3-year community order) was quashed and substituted with a verdict of not guilty by reason of insanity (and a 2-year supervision order). 2009‑10‑24 08:31:14 2008 cases, Brief summary, Transcript, Unfitness and insanity cases


Re GC [2008] EWHC 3402 (Fam)(1) The principle governing State intervention under the Mental Capacity Act 2005 is the same as under the Children Act 1989, namely that the State does not interfere in the private family life of an individual unless the continuance of that private family life is clearly inconsistent with the welfare of the person whose best interests the court is required to determine. (2) The closer the person is to having capacity the more weight his views are to be given. (3) Contrary to the professional evidence, it was in GC's best interests to return home as an interim measure: this decision was reached having regard to (a) the concept of least intervention, (b) GC's consistently-expressed wishes and feelings, (c) a finding that a trial at home was necessary and now was the best time, and (d) the importance of the emotional, as opposed to physical, component of best interests to very elderly (or young) people. 2009‑08‑15 21:13:49 2008 cases, Best interests, Brief summary, Missing from Bailii, Transcript


R (GC) v Managers of the Kingswood Centre of Central and North West London NHS Foundation Trust (2008) EWHC x (Admin) (CO/7784/2008)The patient's compulsion to pick up litter, even if that litter was in the road, amounted to seriously irresponsible conduct in the context of the definition of mental impairment; the patient was likely to act in a dangerous manner so the hospital managers were right not to discharge. 2009‑07‑20 20:03:32 2008 cases, Brief summary, Hospital managers hearings, No transcript


R (Compton) v GMC [2008] EWHC 2868 (Admin)The GMC fitness to practise panel in suspending Dr Compton for a year had exercised a fair procedure (in light of the doctor's decision not to attend) and were justified in their conclusion (that he had been dishonest in not disclosing previous unsuccessful applications for s12 approval). 2009‑06‑15 20:11:40 2008 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript


RA (Sri Lanka) v SSHD [2008] EWCA Civ 1210Unsuccessful human rights appeal against deportation made by suspected terrorist: the article 3 claim being based on (1) a fear of being ill-treated in Sri Lanka on account of actual or suspected involvement with the Tamil Tigers; (2) mental health and in particular the risk of suicide if returned; the article 8 claim being based on the risk of suicide and interference with the private life established in the UK. 2009‑06‑15 19:44:06 2008 cases, Brief summary, Repatriation cases, Transcript


Platts v Coroner for South Yorkshire (East District) [2008] EWHC 2502 (Admin) — Inquest into suicide of person with mental disorder - scope of inquest and Article 2 - whether former girlfriend was properly interested person 2009‑04‑18 11:32:49 2008 cases, Inquests, No summary, Transcript


R (JL) v SSJ [2008] UKHL 68 — The nature of the investigation that must be carried out by the State whenever a prisoner in custody makes an attempt to commit suicide that nearly succeeds and which leaves him with serious injury. 2009‑04‑12 21:29:00 2008 cases, ECHR, No summary, Transcript


Shulepova v Russia 34449/03 [2008] ECHR 1666(1) Violation of Article 5(4): Applicant not detained in accordance with a procedure prescribed by domestic law. (2) Violation of Article 6(1): By appointing the hospital's employees as psychiatric experts, the domestic courts placed the applicant at a substantial disadvantage, in breach of the principle of equality of arms. 2009‑04‑10 21:39:13 2008 cases, Bias, Brief summary, ECHR, Transcript


Atanasov v Bulgaria 73281/01 [2008] ECHR 1266The applicant alleged that his pre-trial detention and house arrest had been unjustified and excessively lengthy, that his confinement in a psychiatric clinic in August and September 2000 had been unlawful, that he had not been able to appeal to a court and that he did not have a right to compensation in this connection. Article 5(1), (4) and (5) had been breached and €2000 damages were awarded. 2009‑04‑09 21:35:21 2008 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Transcript


R v Wood (No 1) [2008] EWCA Crim 1305In addressing a plea of diminished responsibility in the context of alcohol dependency syndrome, the jury must consider whether it had been established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness, and, if that were established, whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. [ICLR] 2009‑04‑05 10:35:22 2008 cases, Detailed summary, Diminished responsibility cases, ICLR summary, Transcript


Re S and S (Protected Persons); C v V [2008] EWHC B16 (Fam)(1) Under the Mental Capacity Act 2005, there is a presumption in favour of implementing P's wishes unless they are irrational, impractical, or irresponsible (with reference to resources), or there is a sufficiently countervailing consideration. (2) The appointment of donees jointly (rather than jointly and severally) under a power of attorney created the presumption that the donors wanted decisions made jointly or by neither appointee. (3) Mr and Mrs S's wishes (that if both daughters were unable to act jointly then neither should act singly) would be implemented, and an independent Deputy would be appointed. 2009‑02‑22 14:14:41 2008 cases, Best interests, Detailed summary, Transcript


RP v UK 38245/08 [2008] ECHR 1124Statement of facts and questions to the parties. (1) Did the appointment of the Official Solicitor give rise to a breach of RP’s procedural rights guaranteed by Article 8 of the Convention? (2) Did the same circumstances give rise to a breach of Article 6 as regards the fairness of the court proceedings? 2009‑01‑15 21:36:54 2008 cases, Brief summary, ECHR, Other capacity cases, Transcript


Pankiewicz v Poland 34151/04 [2008] ECHR 148It would be too rigid to expect immediate transfer from prison to psychiatric hospital but, although the delay of 2 months 25 days did not at first glance seem particularly excessive, on balance it was not acceptable and violated Article 5(1); the claimant had been compensated by the domestic court so was not a victim for Article 5(3) purposes; the Article 6 complaint was rejected for non-exhaustion of domestic remedies 2009‑01‑12 23:57:23 2008 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Transcript


Gray v Thames Trains Ltd [2008] EWCA Civ 713The principle of ex turpa causa did not prevent the claimant from recovering damages after the commission of manslaughter. [Overturned on appeal.] 2008‑12‑28 20:31:09 2008 cases, Brief summary, ICLR summary, Miscellaneous, Transcript


R (Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin)Unsuccessful challenge to decision of the Health Service Commission (i) to refuse to provide Mr Kay with copies of documents provided by the NHS Trust, which are not deemed to be relevant to a determination of a complaint before the ombudsman by virtue of section 15(1)(a) of the Health Service Commissions Act 1993, and (ii) for requiring an undertaking from Mr Kay to use such documents as may be released only for the purpose of the complaints. 2008‑12‑28 19:42:35 2008 cases, Brief summary, Miscellaneous, Transcript


Salford City Council v GJ, re GJ NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam)The appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention. 2008‑12‑28 19:31:41 2008 cases, Brief summary, Deprivation of liberty, Other capacity cases, Transcript


R (MN) v MHRT [2008] EWHC 3383 (Admin)Tribunal application made under s70 when patient subject to s47/49 (restricted transfer direction) lapses when s49 (restriction direction) lapses; to avoid delay, the application can be treated as if it were an application under s69(2)(a). 2008‑12‑22 22:41:33 2008 cases, Change of status after application made, Detailed summary, Transcript


R (F and Thompson) v SSHD [2008] EWHC 3170 (QB)The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review in the case of young offenders; there is no entitlement to have determined the question of whether the notification requirement continues to serve a legitimate purpose. 2008‑12‑22 21:47:06 2008 cases, Brief summary, Other criminal law cases, Transcript


R v Moyle [2008] EWCA Crim 3059Conviction for murder quashed and substituted with a conviction for manslaughter on the ground of diminished responsibility and restricted hospital order 2008‑12‑21 15:57:35 2008 cases, Brief summary, Diminished responsibility cases, Transcript


R (TF) v SSJ [2008] EWCA Civ 1457(1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.] 2008‑12‑18 21:00:37 2008 cases, Brief summary, Transcript, Unlawful detention cases


R v C [2008] EWCA Crim 1155If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.] 2008‑12‑14 22:51:05 2008 cases, Capacity to consent to sexual relations, Cases, Criminal law capacity cases, Missing from Bailii


R v C [2008] EWCA Crim 1155If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.] 2008‑12‑14 22:51:05 2008 cases, Capacity to consent to sexual relations, Cases, Criminal law capacity cases, Missing from Bailii


S v Floyd [2008] EWCA Civ 201Floyd's decision to withhold payment of rent had nothing to do with his disablity, so the Disability Discrimination Act 1995 could not be used to resist a possession order under the Housing Act 1988. 2008‑12‑14 21:35:12 2008 cases, Detailed summary, Disability discrimination, Transcript


R (Cooke) v DPP [2008] EWHC 2703 (Admin)It would be wrong to make an ASBO against a person who by reason of mental ill health would not have the capacity to understand or comply with the order; however, the fact that a person would be likely to breach an order because he suffers from a personality disorder is not, of itself, a good reason for not making the order. 2008‑12‑10 22:16:36 2008 cases, Brief summary, Other criminal law cases, Transcript


Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74Article 2 imposes, in addition to general obligations, a further "operational" obligation on health authorities and their hospital staff: if members of staff know or ought to know that a particular patient presents a real and immediate risk of suicide, they must do all that can reasonably be expected to prevent the patient from committing suicide. 2008‑12‑10 22:08:58 2008 cases, Brief summary, Miscellaneous, Transcript


R v Warwick (2008) NICC 42As the Mental Health (Northern Ireland) Order 1986 does not allow detention for personality disorder, the risks in this case could only be addressed by the imposition of a discretionary life sentence (which would be followed by a transfer to Carstairs) rather than a hospital order. 2008‑12‑06 15:01:30 2008 cases, Brief summary, Northern Irish cases, Other criminal law cases, Transcript


R (DB) v Nottingham Healthcare NHS Trust [2008] EWCA Civ 1354A hospital order under s37 ceases to have effect if the offender is not admitted to the named hospital within 28 days; unless the offender is to be immediately conveyed from court to hospital, the "place of safety" power in s37(4) must be expressly exercised. 2008‑12‑03 13:16:27 2008 cases, Detailed summary, Hospital order cases, Transcript


R (F) v SSJ [2008] EWHC 2912 (Admin)The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.] 2008‑11‑28 18:01:23 2008 cases, Detailed summary, Transcript, Unlawful detention cases


R (N) v Coventry City Council [2008] EWHC 2786 (Admin) — "This case concerns the assessment by Coventry City Council of the claimant's needs under section 47 of the National Health Service and Community Care Act 1990 and its decision to refuse him support under section 21 of the National Assistance Act 1948. It turns, in particular, on the meaning of "care and attention" in section 21, as interpreted by the House of Lords recently, and the ambit of Article 3 ECHR in the context of community care legislation." (para 1) 2008‑11‑25 12:19:11 2008 cases, Community care, No summary, Transcript


R (RD) v SSWP [2008] EWHC 2635 (Admin)Post-tariff lifers who have been transferred to hospital are not entitled to receive Income Support. 2008‑11‑24 00:57:02 2008 cases, Brief summary, Transcript, Welfare benefits cases


R (RJM) v SSWP [2008] UKHL 63Social welfare payments come within the scope of Article 1 Protocol 1; homelessness is an "other status" under Article 14; depriving the homeless of disability premiums was justified; the Court of Appeal is free (but not obliged) to follow an ECtHR decision rather than a previous inconsistent CA decision, but (absent wholly exceptional circumstances) must follow any previous House of Lords decision. 2008‑11‑23 22:48:09 2008 cases, Brief summary, Transcript, Welfare benefits cases


Renolde v France 5608/05 [2008] ECHR 1085The authorities failed to comply with their positive obligation to protect the detainee's right to life, in violation of Article 2, partly because they did not monitor his compliance with anti-psychotic medication. A penalty of 45 days' detention in a punishment cell breached Article 3 (inhuman and degrading treatment and punishment). 2008‑11‑06 13:16:05 2008 cases, Brief summary, ECHR, Transcript


R (IT) v SSJ (2008) EWHC 1707Recall of patient unlawful where no new relevant information available to MoJ after discharge by MHRT; the element of the discharge plan requiring leave to be escorted was a temporary measure and so did not amount to continuing deprivation of liberty. 2008‑11‑03 16:41:04 2008 cases, Detailed summary, Discharge conditions, Ministry of Justice, Transcript, Unlawful detention cases


R (M) v Homerton University Hospital NHS Trust [2008] EWCA Civ 197The patient, whose s2 had been extended during s29 displacement proceedings, was detained under s3 following an interim displacement order but before any final determination. Detention under s2 and s3 could run concurrently in these circumstances and it was not arguable that the s3 detention was unlawful. No permission to apply for judicial review. 2008‑10‑31 01:46:27 2008 cases, Brief summary, Displacement, Permission hearings, Transcript


MH v UK 11577/06 [2008] ECHR 181Statement of facts and question to the parties. The question to the parties is: "Do the facts of the case disclose a breach of Article 5 § 4 of the Convention: (a) in relation to the failure to provide an automatic referral to a court when a patient is detained under section 2 of the Mental Health Act 1983 and when that patient lacks the capacity to take proceedings; and (b) when that detention is prolonged under section 29(4) of the same Act?" 2008‑10‑31 01:18:42 2008 cases, Brief summary, Displacement, ECHR, Transcript


M v South West London and St George's Mental Health NHS Trust [2008] EWCA Civ 1112 — Habeas corpus - challenge to lawfulness of medical recommendation and ASW application. 2008‑10‑30 18:02:45 2008 cases, Miscellaneous, No summary, Transcript


R (B) v South Region MHRT [2008] EWHC 2356 (Admin) — Unsuccessful challenge to Tribunal's decision not to discharge from Broadmoor hospital. 2008‑10‑23 01:05:56 2008 cases, Bias, No summary, Reasons, Transcript


Munjaz v UK 32913/06 [2008] ECHR 215 — Statement of facts and questions lodged with the court. 2008‑10‑23 00:35:31 2008 cases, ECHR, No summary, Transcript


Shtukaturov v Russia 44009/05 [2008] ECHR 223 — Incapacity proceedings and detention breached ECHR Articles 5, 6, and 8. [Summary required.] 2008‑10‑13 15:16:32 2008 cases, ECHR, ECHR deprivation of liberty cases, No summary, Transcript


St Helens Borough Council v Manchester PCT, re PE [2008] EWCA Civ 931It was for the primary care trust acting on behalf of the Secretary of State for Health and not for the local authority to decide whether the care needs of a woman with dissociative identity disorder were primarily for health care or for care which a social services authority should provide. The trust was required to define in its decision the services which the social services authority was required to provide to the woman, whose mental and psychological conditions required constant and expensive care. It was not satisfactory for the two parties to resolve the issue by costly litigation, since the money for the care and the litigation all came from the public purse. 2008‑10‑10 18:38:49 2008 cases, Community care, Detailed summary, Permission hearings, Transcript


R v B [2008] EWCA Crim 1997CRIME— Plea — Fitness to plead — Two among several defendants found unfit to plead — Jury yet to be empanelled — Judge finding single jury incapable in principle of hearing case against fit and unfit defendants together — Whether such conclusion correct. Where one of several defendants in the same criminal proceedings became unfit to stand trial before a jury had been empanelled there was nothing in principle to prevent a single empanelled jury subsequently proceeding to hear the trial of all the defendants, although in the case of the unfit defendant the jury would now be looking to the question whether he had committed the actus reus of the relevant offence. 2008‑09‑23 12:11:00 2008 cases, Detailed summary, Transcript, Unfitness and insanity cases


R (Brooke) v Parole Board [2008] EWCA Civ 29The Parole Board did not have the independence from the executive that was required for its judicial role in determining whether convicted prisoners should be released on licence. 2008‑09‑21 17:24:07 2008 cases, Detailed summary, ICLR summary, Prison law cases, Transcript


London Borough of Ealing v KS [2008] EWHC 636 (Fam)Applications by local authority seeking declarations that a vulnerable adult lacked capacity, among other things, to marry; consent to medical treatment; have sexual relations or decide her place of residence. 2008‑09‑21 11:56:33 2008 cases, Brief summary, Capacity to consent to sexual relations, Other capacity cases, Transcript


GD v Hospital Managers of Edgware Community Hospital [2008] EWHC 3572 (Admin)Habeas corpus - inadequate consultation of nearest relative prior to detention under section 3. 2008‑09‑16 13:48:36 2008 cases, Brief summary, Consulting NR, Transcript


M v Hospital Managers of Queen Mary's Hospital [2008] EWHC 1959 (Admin) — Habeas corpus - challenge to lawfulness of medical recommendation and ASW application. 2008‑09‑15 17:40:28 2008 cases, Brief summary, Miscellaneous, Transcript


BB v Cygnet Health Care [2008] EWHC 1259 (Admin) — Inadequate consultation with nearest relative. 2008‑09‑13 08:01:01 2008 cases, Brief summary, Consulting NR, Transcript


KC v City of Westminster Social and Community Services Department [2008] EWCA Civ 198 — Muslim marriage where groom lacked capacity was not recognised in English law. 2008‑09‑13 07:54:46 2008 cases, Detailed summary, Other capacity cases, Transcript


RP v Nottingham City Council [2008] EWCA Civ 462 — Role of Official Solicitor considered. 2008‑09‑13 07:53:47 2008 cases, Brief summary, Other capacity cases, Transcript


R v Diamond [2008] EWCA Crim 923 — Criminal appeal - diminished responsibility. 2008‑09‑13 07:52:28 2008 cases, Diminished responsibility cases, No summary, Transcript


R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176The statutory scheme dealing with the referral of the case of a recalled mental patient to a mental health review tribunal was not incompatible with the patient’s rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, whether because of the timescale envisaged or for lack of a right of direct access to a court. 2008‑09‑13 07:51:48 2008 cases, Detailed summary, Ministry of Justice, Transcript


AK v Central and NW London Mental Health NHS Trust [2008] EWHC 1217 (QB) — Negligence. 2008‑09‑13 07:49:58 2008 cases, Miscellaneous, No summary, Transcript


Adorian v Commissioner of Police of the Metropolis [2008] EWHC 1081 (QB)Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court; Seal v. Chief Constable of South Wales Police [2007] UKHL 31 distinguished because of differences from s139 MHA 1983; permission now granted.' 2008‑09‑13 07:49:15 2008 cases, Detailed summary, Miscellaneous, Transcript


R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin)HUMAN RIGHTS — Right to respect for private and family life — Smoking ban — Claimants detainees at high security psychiatric hospital — Regulation providing mental health units temporary exemption from smoking ban — Whether regulation to be read as providing mental health units with permanent exemption — Whether interference with claimants’ Convention rights — Human Rights Act 1998, s 3(1), Sch 1, Pt 1, arts 8, 14 — Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765), reg 10(3). A provision which had the effect of prohibiting smoking in a high security psychiatric hospital was not incompatible with the human rights of detained mental patients and was not unlawful. 2008‑09‑13 07:48:22 2008 cases, Detailed summary, ICLR summary, Miscellaneous, Smoking, Transcript


X v An NHS Trust [2008] EWHC 986 (Admin) — Section 37. 2008‑09‑13 07:47:30 2008 cases, Hospital order cases, No summary, Transcript


R (SSJ) v MHRT, re Rafiq [2008] EWHC 598 (Admin) — Tribunal reasons. 2008‑09‑13 07:46:28 2008 cases, No summary, Reasons, Transcript


London Borough of Lewisham v Malcolm [2008] UKHL 43The claim for possession under the Housing Act 1988 was not discriminatory under the Disability Discrimination Act 1995 since the landlord did not know of the disability and the tenant's schizophrenia was not causally responsible for his sub-letting of the premises in breach of tenancy. 2008‑09‑13 07:45:04 2008 cases, Detailed summary, Disability discrimination, Transcript


R v Aisling Murray [2008] EWCA Crim 1792A sentence of life imprisonment and conviction for murder was quashed, and substituted with a conviction for manslaughter on the grounds of diminished responsibility and a restricted hospital order; this was even though the appellant had pleaded guilty to murder, as her decision to plead guilty was affected by her medical condition, which also substantially reduced her responsibility for the killing. 2008‑09‑13 07:43:42 2008 cases, Detailed summary, Life sentence cases, Transcript


R (Juncal) v SSHD [2008] EWCA Civ 869 — Lawfulness of detention. 2008‑09‑13 07:43:00 2008 cases, No summary, Transcript, Unfitness and insanity cases


R v Leslie Norman [2008] EWCA Crim 1810 — Criminal appeal. Fitness to plead. 2008‑09‑13 07:41:02 2008 cases, No summary, Transcript, Unfitness and insanity cases


Roberts v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 (QB) — Data Protection Act case. 2008‑09‑13 07:26:36 2008 cases, Miscellaneous, No summary, Transcript


A Primary Care Trust v AH [2008] EWHC 1403 (Fam)Reasons given for making an interim order under the Mental Capacity Act 2005 relating to a 22 year old adult male suffering from severe epilepsy. 2008‑09‑13 07:25:20 2008 cases, Brief summary, Other capacity cases, Transcript


LGO decision: Medway Council 06/B/12248 and Wigan Metropolitan Borough Council 06/B/12247 (29/4/08) — After funding under s117. 2008‑08‑21 14:38:56 2008 cases, Detailed summary, LGO decisions, Transcript


R v Francis [2008] NICA 6Both hospital orders to which the claimant was subject were quashed, on the basis that when sentenced he had not been suffering from severe mental impairment as defined in the Mental Health (Northern Ireland) Order 1986. 2008‑02‑23 00:38:37 2008 cases, Brief summary, Hospital order cases, Northern Irish cases, Transcript


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