Category

2011 cases

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Case and summary Date added Categories
LBX v K, L and M [2011] EWHC 2419 (Fam) — "The issues to be determined at this hearing are: (i) whether it is in L’s best interest to move to supported living accommodation on a trial basis; (ii) whether the hearing listed in September 2011 is required and, (iii) any further directions." 2014‑11‑08 2011 cases, Missing from Bailii, No summary, Other capacity cases, Transcript


RM v Scottish Ministers [2011] CSIH 19 — Unsuccessful challenge relating to effectiveness of Scottish "conditions of excessive security" legislation. [Summary required.] 2012‑12‑19 2011 cases, Miscellaneous, No summary, Scottish cases, Transcript


LGO decision: Dorothy 10 013 715 [2011] MHLO 190 — "A case where a DoL application was not made promptly and the care home's/council's approach to restrictions placed on the complainant and her mother was flawed." [Summary required.] 2012‑08‑18 2011 cases, LGO decisions, No summary, No transcript


LGO decision: Jones 10 010 739 [2011] MHLO 191 — "A case where the DoL decision taken was not the 'least restrictive' option." [Summary required.] 2012‑08‑18 2011 cases, LGO decisions, No summary, No transcript


LB Haringey v FG (No. 1) [2011] EWHC 3932 (COP) — "In this case there are a number of matters: does H have capacity to conduct litigation; does she have capacity to decide where she should live, or capacity to decide where she should be educated, or capacity to decide on the extent of the contact and relationship she should have with her natural family; capacity to deal with her financial affairs, or to enter into what has been described as a tenancy agreement, and capacity in a sense to judge her own best interests in those respects?" [Summary required.] 2012‑05‑05 2011 cases, Missing from Bailii, No summary, Other capacity cases, Transcript


LB Haringey v FG (No. 2) [2011] EWHC 3933 (COP) — "There are many issues that have arisen in this case, but now the critical welfare issue is whether or not H should be returned home to live with her mother. This is an outcome sought by the mother, but opposed both by the Local Authority and by the Official Solicitor as litigation friend to H." [Summary required.] 2012‑05‑05 2011 cases, Best interests, Missing from Bailii, No summary, Transcript


Re JO'B; HSE v JO'B (2011) IEHC 73 — "In these proceedings the Health Service Executive ('H.S.E.') seeks declarations that Mr. J. O'B. is a person who lacks capacity to make decisions in relation to his treatment care and welfare; that Mr. O'B. is a person in need of an appropriate and continuous regime of clinical, medical and nursing treatment in an environment of therapeutic security, this being in his best welfare and interest; that the clinical, medical, nursing, therapeutic security, welfare services and treatment at the Central Mental Hospital (C.M.H.), Dundrum, are appropriate to his needs; and for an order directing the H.S.E. to detain Mr. O'B in the C.M.H., as well as seeking various ancillary reliefs. What makes this application very unusual, if indeed not entirely unique, is that it is agreed on all sides that Mr. O'B. is not suffering from a mental illness or mental disorder as that term is defined in s. 3 of the Mental Health Act 2001, and accordingly it is agreed that the provisions of that Act are of no application." [Summary required.] 2012‑04‑28 2011 cases, No summary, Southern Irish cases, Transcript


Re EB; IB v RC [2011] EWHC 3805 (COP) — "This is an application by the applicant, IB, for the removal of the respondent as his mother's deputy for property and affairs. There is also a counter-application by the respondent, RC, for orders that the applicant sign letters of authority in relation to two bank accounts that are held in the joint names of EB and the applicant." [Summary required.] 2012‑03‑28 2011 cases, No summary, Other capacity cases, Transcript


A London Borough v VT [2011] EWHC 3806 (COP) — "The primary matters on which decisions need to be made by the court are: (1) Should ST live at L (or possibly some other care home type accommodation in London) or in his property at X, Nigeria; (2) If ST remains at L, is he being deprived of his liberty and, if he is being so deprived, does that remain appropriate; (3) Should ST's property and affairs deputy be AT or Mr G, the current interim independent professional deputy?" [Summary required.] 2012‑03‑28 2011 cases, Deprivation of liberty, No summary, Transcript


Re M [2011] EWHC 3590 (COP)Under MCA 2005 s63 and schedule 3, which incorporates the Hague Convention on the International Protection of Adults 2000 into domestic law, the High Court recognised and gave effect to an order of the Southern Irish High Court which required M's transfer to and treatment at an English psychiatric hospital. 2012‑02‑04 2011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript


DM v Doncaster MBC [2011] EWHC 3652 (Admin)DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) domestic legislation required this result and it was not suggested that the legislation was incompatible with European obligations. 2012‑01‑22 2011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript


The People (at the suit of the Director of Public Prosecutions) v McMahon (2011) IECCA 94The Southern Irish DPP appealed an 11.5-year sentence and invited the Criminal Court of Appeal to impose a life sentence as a form of preventive detention (akin to the English IPP sentence). The court held: 'The protection of the public is an appropriate factor in the exercise of the sentencing function, but it cannot be extracted from that function to create a self-standing judicially created jurisdiction to impose a form of preventive detention. Whether sentencing courts should have the power to order the detention of individuals deemed to posed an immediate threat to the public, over and beyond any appropriate sentence for the crime committed, is a matter which should be addressed in the first place by detailed legislation by the Oireachtas after appropriate research and debate, and subject to Constitutional and Convention review if appropriate.' 2012‑01‑20 2011 cases, Brief summary, Southern Irish cases, Transcript


Re AH (Costs); AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 3524 (COP)The relevant respondents were ordered to pay the costs of the nine applicants in this welfare case: (1) half the costs between issue of proceedings and settlement or final hearing, and (2) full costs of the costs application. The judge concluded: 'The conclusion I have reached in this case represents a partial departure from the general rule that there should be no order for costs. It is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognise the weakness of their own cases and the strength of the cases against them. In such circumstances they cannot invoke Rule 157 at the expense of others.' 2012‑01‑12 2011 cases, Brief summary, COP costs cases, Transcript


Re Evans (2011) COP 24/11/11The donor appointed A (his wife) and B as attorneys, to act jointly and severally, and C as replacement attorney. He then directed as follows: "My replacement attorney will replace both my attorneys and act alone if and when my wife becomes unable or unwilling to carry out her duties as my attorney." On the application of the Public Guardian the direction was severed because the donor was attempting to provide for attorney B to be replaced even though one of the triggering events for his replacement listed in section 13(6)(a)-(d) of the MCA had not occurred. [OPG summary - LPA case.] 2012‑01‑09 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript


Re Tucker (2011) COP 9/12/11The donor appointed one attorney and one replacement attorney and then directed as follows: "My replacement attorney shall only act if my attorney is unable to act by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated by reason of the death, disclaimer or other incapacity of my attorney to act as my attorney; whichever shall first occur. For the avoidance of doubt my replacement attorney shall act alone if my attorney is not able to act." On the application of the Public Guardian the words "by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated" were severed because revocation of the attorney's appointment is not one of the events listed in section 13(6)(a)-(d) of the MCA that trigger the activation of the appointment of a replacement attorney. [OPG summary - LPA case.] 2012‑01‑09 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript


Re C; C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP)C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship. 2012‑01‑05 2011 cases, Detailed summary, Other capacity cases, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 3522 (COP)(1) Each application for costs must be considered on its own merit: the previous cases were illustrative only and provided no guidance on the Rules. (2) The judge departed from the general rule in welfare cases (that each party bears his own costs) as this was not a typical case: Hillingdon's actions were significantly unreasonable in relation to the illegality of its actions, its disorganised decision-making, the lack of a proper best interests assessment, its uncooperative attitude to Stephen's father, its delay in referring the matter to the court (thereby increasing costs), and its attempt to defend its actions to the end, both in court and in the media. (3) Hillingdon were ordered to pay the OS's costs from the date of issue to the conclusion of the main hearing in May 2011 but not (a) costs in relation to the press issue, which raised issues of general public importance, or (b) costs following the main hearing, during which Hillingdon adopted a cooperative stance. (4) The application for indemnity costs was respectable, but an award on the standard basis was sufficient. 2012‑01‑04 2011 cases, Brief summary, COP costs cases, Transcript


DP v Hywel DDA Health Board [2011] UKUT 381 (AAC)WP's order for his son DP's discharge was barred by the Responsible Clinician; WP was then advised by the responsible authority that he was not the nearest relative, and that therefore his order and the barring report were of no effect; on this basis the Tribunal rejected WP's subsequent application. DP appealed. (1) The judge treated the barring report as having been withdrawn (rather than never having been valid): because there was no report, the Tribunal had no jurisdiction, so it had been correct to reject the application. (2) If the barring report had not been withdrawn, the question would have been whether a nearest-relative application made by a non-nearest-relative can be rejected: this was left undecided (despite the clear wording of s66). 2012‑01‑03 2011 cases, Brief summary, Other NR cases, Transcript, Upper Tribunal decisions


SSJ v RB [2011] EWCA Civ 1608The Mental Health Tribunal may not grant a conditional discharge in circumstances where the conditions would inevitably lead to an Article 5 deprivation of liberty. Postscript: see PJ v A Local Health Board [2015] UKUT 480 (AAC), [2015] MHLO 63. 2011‑12‑31 2011 cases, Brief summary, Deprivation of liberty, Discharge conditions, Transcript


Re Ian Brady (2011) First-tier Tribunal 7/12/11In a decision given on 17th October 2011, the application by Mr Ian Brady for a hearing in public that his application dated 4th August 2010 should be held in public was granted. The date of the hearing and appropriate arrangements are presently being determined and will be published as soon as possible. The fact of this decision should be published. The Tribunal also ordered that the reasons for the decision must not be made public. [Judge's summary.] 2011‑12‑10 2011 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript


Re Albert Haines (2011) First-tier Tribunal 30/9/11 — These are the First-tier Tribunal's reasons for not discharging Albert Haines from liability to be detained. [Summary required.] 2011‑12‑10 2011 cases, First-tier Tribunal decisions, No summary, Publicity, Transcript


Re Albert Haines (2011) First-tier Tribunal 18/10/11 — These are the First-tier Tribunal's reasons for directing that the reasons for its decision not to discharge Albert Haines should be published. [Summary required.] 2011‑12‑10 2011 cases, First-tier Tribunal decisions, No summary, Publicity, Transcript


R (AK) v SSHD [2011] EWHC 3188 (Admin) — Immigration case with mental health element. [Summary required.] 2011‑12‑10 2011 cases, No summary, Repatriation cases, Transcript


Scottish Ministers v MHTS [2011] CSIH 76The Scottish Ministers challenged revocation by a Mental Health Tribunal of a restriction order affecting a patient suffering from paranoid schizophrenia and living in the community, and successfully argued that the compulsion order and restriction order should remain in force until the final hearing. 2011‑12‑10 2011 cases, Brief summary, Scottish cases, Transcript


PFZ v West London MH NHS Trust (2011) Settlement 28/11/11PFZ, an informal patient with a long history of mental illness, was allowed to run away from hospital in a suicidal state, then jumped from a balcony sustaining and permanent and catastrophic spinal cord injury which left him tetraplegic and wheelchair-bound. He sued the Trust for negligent failure to provide him with adequate treatment. The Trust agreed to compensate him on the basis of 40% liability, and made an advance payment of £75,000; the full amount was yet to be assessed but to meet PFZ's care needs for the remainder of his life was estimated to require millions of pounds. 2011‑12‑10 2011 cases, Brief summary, Miscellaneous, No transcript


SSWP v Slavin [2011] EWCA Civ 1515 — 'The respondent is resident in a specialist care home for people with autistic spectrum disorders and similar conditions. The cost of his accommodation is paid for by the National Health Service. The home is registered as a care home, not a nursing home. Its staff are trained to meet the needs of residents but do not have any medical or nursing qualifications. The specific issue in the appeal is whether the respondent is "maintained free of charge while undergoing medical or other treatment as an in-patient … in a hospital or similar institution under [the National Health Service Act 2006]", within the meaning of reg. 12A of the Social Security (Disability Living Allowance) Regulations 1991, so as to be disentitled to receipt of the mobility component of disability living allowance for which he was a claimant.' [Summary required.] 2011‑12‑10 2011 cases, No summary, Transcript, Welfare benefits cases


Black v MHTS [2011] CSIH 83 — 'What remedy, if any, is available to a curator ad litem appointed to represent the interests of a patient in proceedings before the Mental Health Tribunal for Scotland, in the event that the Tribunal acts unlawfully or unfairly or exercises its discretion in an unreasonable manner? That is the question which lies at the heart of the present appeal, which was remitted to this court by the Sheriff Principal of Grampian, Highlands and Islands.' [Summary required.] 2011‑12‑10 2011 cases, No summary, Scottish cases, Transcript


Cardiff Council v Peggy Ross (2011) COP 28/10/11 12063905Cardiff Council used the Deprivation of Liberty Safeguards to prevent an elderly couple going on holiday cruise; the court decided that it was in the respondent's best interests to go on the cruise, and gave permission for ITV Wales to report that decision and broadcast interviews; later the court decided that the respondent herself had capacity to decide whether or not to go. 2011‑12‑10 2011 cases, Best interests, Brief summary, Transcript


R (Baisden) v Leicester City Council [2011] EWHC 3219 (Admin) — Section 117 and accommodation. [Summary required.] 2011‑12‑08 2011 cases, After-care, Missing from Bailii, No summary, Transcript


Re AB; AB v LCC (A Local Authority) [2011] EWHC 3151 (COP)There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P's); (iii) the RPR can and is willing to act as litigation friend in P's best interests; and (iv) the procedure as set out in COP rule 143 is complied with. The judge set out the pros and cons of this course of action; in this case, he appointed the RPR to as P's litigation friend. 2011‑12‑08 2011 cases, Brief summary, Other capacity cases, Transcript


Re RK; RK v BCC [2011] EWCA Civ 1305(1) An adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to detention. Detention engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the detention of a child. (2) The restrictions authorised by RK's parents did not amount to deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range. 2011‑12‑08 2011 cases, Deprivation of liberty, Detailed summary, Transcript


Re RB (Adult); A London Borough v RB (Adult) (No 3) [2011] EWHC 2576 (Fam)(1) MF's claim for compensation was dismissed as it had no factual foundation; it also had no legal basis. (2) MF sought costs from the local authority; the Official Solicitor sought costs against MF (from a certain date) and the local authority (to the extent that costs were increased by their stance): there was no order for costs, except that MF was to pay 20% of the Official Solicitor's costs between certain dates, to reflect the time spent on the peripheral issues which MF had raised and the 'extravagant, strident and on occasions vicious way in which he chose to pursue them'. 2011‑12‑03 2011 cases, Brief summary, COP costs cases, Other capacity cases, Transcript


Re RB (Adult); A London Borough v RB (Adult) (No 2) [2011] EWHC 112 (Fam)MF's applications for permission to appeal and for a re-trial were refused as being devoid of merit. 2011‑12‑03 2011 cases, Brief summary, Other capacity cases, Transcript


Re RB (Adult); A London Borough v RB (Adult) (No 1) [2010] EWHC 2423 (Fam)This case under the inherent jurisdiction concerned RB's best interests in relation to residence and contact. Of the 16 issues considered by the judge, he found for RB's partner MF in relation to one sub-issue (which was a 'saddening example of the institutional inability of some bureaucracies ever to admit that something has gone wrong') but against him in relation to all others (most of which were MF's unfounded criticisms of almost everybody involved in the case: the judge's own criticisms of Dr Kahtan and the MP are worth reading). Had she not died during the hearing, it would have been, given MF's inability to cooperate with any community care package, in RB's best interests to continue residing at the care home. 2011‑12‑03 2011 cases, Brief summary, Other capacity cases, Transcript


Re McGregor (2011) COP 16/11/11The donor appointed attorneys to act jointly in some matters and jointly and severally in others, and directed as follows: "Jointly - decisions on sale of house. Decisions on type of care received if no longer able to stay in own home. Severally - financial matters regarding bank accounts and general cash flow." On the application of the Public Guardian the words "decisions on sale of house" and "Severally - financial matters regarding bank accounts and general cash flow" were severed because they purported to give Health and Welfare attorneys authority to make decisions regarding the donor's property and financial affairs. (The result would be that, by implication, the attorneys would be able to decide jointly and severally all matters other than the type of care the donor would receive if no longer able to stay in his own home.) [OPG summary - LPA case.] 2011‑11‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Stewart (2011) COP 9/11/11The donor included the following direction in the guidance section: "I authorise my attorneys to refuse or consent to my deprivation of liberty." The Public Guardian applied for severance on the ground that: "The deprivation of the donor's liberty is only lawful if ordered by the court or done in accordance with the procedures prescribed by law under the Mental Capacity Act 2005 as amended by the Mental Health Act 2007. The donor does not have power to authorise her attorneys to consent to the deprivation of her liberty in the absence of a court order or going through the Deprivation of Liberty Safeguarding procedures." The court determined that the direction was invalid for the reasons given by the Public Guardian. [OPG summary - LPA case.] 2011‑11‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Hamilton (2011) COP 25/10/11The donor appointed one primary attorney and one replacement attorney. On page 5 of the LPA the donor inappropriately ticked the box indicating that the attorneys were appointed to act jointly for some decisions and jointly and severally for other decisions, and continued: "My No 1 Attorney will make all decisions re my everyday expenses and decisions [and] will make joint decisions with the Replacement Attorney in reference to any large decisions re the selling of investments, property and the eventual need of a nursing home etc." On the application of the Public Guardian the provision was severed on the ground that, having appointed the attorneys to act successively, the donor could not authorise them to make any decisions concurrently, whether jointly or jointly and severally. [OPG summary - LPA case.] 2011‑11‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript


Re Dhir (2011) COP 15/11/11The donor set out eight restrictions, one of which was: "My attorney must not sell any of my properties unless it is required for my wife's medical treatment." On the application of the Public Guardian the restriction was severed on the ground that it authorised the attorneys to make gifts beyond the scope of the statutory power set out in section 12 of the MCA 2005. [OPG summary - LPA case.] 2011‑11‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Clare (2011) COP 8/9/11The donor made two LPAs, each appointing an attorney and a replacement attorney. In each she directed as follows: "My Attorney may at any time appoint a substitute to act as my Attorney and may revoke any appointment without giving a reason. Each appointment is to be in writing signed by my Attorney. Every substitute has full powers as my Attorney as if appointed by this Deed, except the power to appoint a substitute." On the application of the Public Guardian the provision was severed as being a plain breach of section 10(8)(a) of the MCA, which provides that an LPA cannot give the attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2011‑11‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript


AB v MHTS (2011) ScotSC B694/11 — Unsuccessful challenge to MHTS decision. [Summary required.] 2011‑11‑26 2011 cases, No summary, Scottish cases, Transcript


Re DC (Judicial Review) (2011) CSOH 193 — Various questions of Scots law arose in this judicial review claim for damages for unlawful detention. [Summary required.] 2011‑11‑26 2011 cases, No summary, Scottish cases, Transcript


Hadzic and Suljic v Bosnia Herzegovina 39446/06 [2011] ECHR 911The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of Article 5(1); the applicants were awarded compensation of €15,000 and €25,000 respectively. 2011‑11‑26 2011 cases, Brief summary, Deprivation of liberty, ECHR, Transcript


Hossack v Legal Services Commission [2011] EWHC 2700 (Admin)Unsuccessful judicial review of a decision of the LSC rejecting the claimant's tender for the provision of legal services in the field of community care following a competitive tendering exercise in 2010. 2011‑11‑26 2011 cases, Brief summary, Miscellaneous, Transcript


R (Modaresi) v SSH [2011] EWCA Civ 1359The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles. 2011‑11‑25 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript


R v Heaney [2011] EWCA Crim 2682The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character. 2011‑11‑21 2011 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Other capacity cases, Transcript


R v Goucher [2011] EWCA Crim 2473On appeal, the restriction order was quashed: the judge had applied the correct test (whether it was necessary to protect the public from serious harm) but, as confirmed by a psychiatric report prepared for the appeal, he had got the answer wrong. [Summary based on All ER (D) report.] 2011‑11‑21 2011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


Cheshire West and Chester Council v P [2011] EWCA Civ 1333The council sought a costs order against P in relation to the Court of Appeal proceedings. (1) The general rule on appeals from the COP to the Court of Appeal is, in accordance with CPR 44.3(2)(a), that the unsuccessful party will be ordered to pay the costs (subject, where relevant, to costs protection under s11 Access to Justice Act 1999). (2) The general rule in COP welfare cases (that there be no order as to costs) was irrelevant, as was the council's discreditable conduct at first instance. (2) Other factors were taken into account and the court made no order as to costs: 'Among the primary reasons for making no order is that the reason for and the importance of the appeal was not really at all about how P will be dealt with. The point of major importance for the local authority, and indeed local authorities generally, was how often they have to come back to court in this and other like cases.' 2011‑11‑21 2011 cases, Brief summary, COP costs cases, Transcript


Re RB (Adult); A London Borough v RB (Adult) (No 4) [2011] EWHC 3017 (Fam)There is no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults, so it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court. 2011‑11‑21 2011 cases, Brief summary, Other capacity cases, Transcript


R v Shah [2011] EWCA Crim 2333Following a special verdict of not guilty by reason of insanity, a restricted hospital order was imposed; an appeal, relying on post-sentence medical evidence, was made against the restriction order. (1) In exceptional cases the court can consider good progress after sentencing, but in this case the task was to decide whether, on the material before him on the date of sentence, the judge's sentence was wrong in principle or manifestly excessive: it was not. (2) The sentence provides a mechanism for release by a Tribunal from the restriction order and the full rigour therefore of the hospital order [this is incorrect], so the appeal court should not taken over the function of that body. 2011‑11‑21 2011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


Re Clarke (2011) COP 19/9/11The donor made an LPA for property and financial affairs, appointing her husband and daughter as attorneys and her other two daughters as replacement attorneys. She also made an LPA for health and welfare, appointing her husband and three daughters as attorneys. When an application was made to register the instruments, the husband objected on the ground that the instruments had not been properly witnessed. He alleged that the witness had not been in the house when the donor signed, but had added his signature later. The court preferred the evidence of the witness and one daughter, to the effect that the donor had signed at the dining room table and that the witness was in an adjacent room and could see her sign through glass doors separating the two rooms. Applying the old case Casson v Dade (1781), the court held that the instruments had been properly witnessed. (The husband also objected on the ground that the donor lacked capacity to make an LPA, but this was also dismissed. The donor's GP had acted as certificate provider and the court commented on the difficulties facing GPs who act as certificate providers within the time constraints of an appointment at the surgery). [OPG summary - LPA case.] 2011‑11‑14 2011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, Transcript


Re Wormsley (2011) COP 24/10/11The donor appointed two primary attorneys and two replacement attorneys, and directed them to act jointly and severally. He further directed as follows: "If a replacement attorney is required to replace an original attorney, the two replacement attorneys shall decide which one of them shall serve as attorney." On the application of the Public Guardian the court severed the provision as being inconsistent with the joint and several appointment of the replacement attorneys. [OPG summary - LPA case.] 2011‑11‑14 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Steiner (2011) COP 17/10/11The donor appointed two attorneys to act jointly. She then gave the following guidance: "Should the need arise relating to the management of my financial affairs and my business interests, whoever at the time is acting for me personally as my accountant or solicitor shall adjudicate over my personal financial interests and whoever is acting professionally for me in respect of my business interests either my accountant or solicitor shall adjudicate over my business interests." On the application of the Public Guardian the court severed the provision from the LPA on the ground that it could potentially oust the jurisdiction of the court. [OPG summary - LPA case.] 2011‑11‑14 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript


Re Hurren (2011) COP 28/9/11The Public Guardian refused to register the instrument as an LPA because the Part B certificate had been signed before the donor signed Part A, in contravention of Regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (The donor had subsequently lost capacity.) On the attorney's application, the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument was to be treated as if it were in the prescribed form and directed registration. The Public Guardian applied to set aside the order on the ground that paragraph 3(2) did not apply in the case of defective execution. The court set aside the order, and confirmed that the discretion given to the court under paragraph 3(2) applies only to an instrument which is not in the prescribed form and does not apply to any prescribed requirements in connection with its execution. [OPG summary - LPA case.] 2011‑11‑14 2011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript


Re P; A Local Authority v PB [2011] EWHC 2675 (COP) — Case concerning residence, contact, and deprivation of liberty. [Summary required.] 2011‑11‑14 2011 cases, Best interests, No summary, Transcript


R v Clark [2011] EWCA Crim 2516The defendant appealed against a sentence of 56 months' imprisonment for GBH (financial worries had led him to decide to kill his wife and himself). The sentencing guidelines could never have been intended to apply to such an exceptional case; the sentence was replaced with a community rehabilitation order with a mental health treatment requirement. 2011‑11‑14 2011 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


R (Smith) v LB Camden [2011] EWCA Civ 1207Unsuccessful application for permission for second appeal against strike-out of claim for want of compliance with s139. (The claim was for damages of £100 billion for wrongful removal from his flat and for being forced to live in various mental health institutions where he claimed to have been assaulted many times.) 2011‑11‑14 2011 cases, Brief summary, Missing from Bailii, Transcript, Unimportant cases


R v Lavender [2011] EWCA Crim 2420(1) On the material before the sentencing judge, there was nothing wrong in principle with an extended sentence. (2) However, given the recent psychiatric evidence, it was now arguable that the option of a hospital order with or without a restriction order needed to be considered, so leave to appeal was given and a representation order was granted. 2011‑11‑14 2011 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript


R (BA) v SSHD [2011] EWHC 2748 (Admin) — Judicial review of detention pending deportation (psychiatric background). [Summary required.] 2011‑11‑14 2011 cases, No summary, Repatriation cases, Transcript


De Louville De Toucy v Bonhams 1793 Ltd (2011) All ER (D) 32 (Nov)(1) There was no inconsistency between the Insolvency Rules (defining an 'incapacitated person') and the CPR (defining a 'protected party'). (2) The registrar should not have declared the claimant bankrupt: he ought to have (a) been aware that the claimant was incapable, (b) adjourned the case for a representative or litigation friend to be appointed, and (c) heard representations from such a person. (3) On the evidence, the financial situation was complex and, without proper investigation, it was impossible to be sure that it was appropriate to make a bankruptcy order, so the order was set aside and the matter referred to the registrar to be heard again. [Summary based on All ER (D) report.] 2011‑11‑14 2011 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases


LB Tower Hamlets v BB [2011] EWHC 2853 (Fam) — 'There are two sets of proceedings which concern BB. In the first, her litigation friend, sought guidance from the court under sections 16 and 18(k) of the Mental Capacity Act 2005 about the conduct of proceedings concerning BB and declarations that she a) lacks capacity to conduct those proceedings and b) it is in her best interests that, in the event that her marriage to MA is a valid marriage, it be annulled or that there be a declaration that it is not recognised by the law of England and Wales. In the second, the local authority as substituted applicant seeks declarations that BB a) lacks the capacity to litigate, b) lacks capacity to decide where she should live, with whom she should have contact, who should provide her with care, what care should be provided to her and the medical treatment she should receive for her mental disorder. The court is asked to make decisions on her behalf as respects those questions which the court determines she is incapacitated to answer.' [Summary required.] 2011‑11‑09 2011 cases, Best interests, Deprivation of liberty, No summary, Transcript


Cheshire West and Chester Council v P [2011] EWCA Civ 1257P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.] 2011‑11‑09 2011 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript


Re HM: SM v HM [2011] EWHC B30 (COP) — 'The issue is whether it is ever, and if so in what circumstances, appropriate for the Court (ie the Court of Protection) to authorise the creation of a trust – in particular a personal injury trust - of P’s assets as the means of administering those assets for him, rather than appointing a deputy for him under s 16 of the 2005 Act.' [Summary required.] 2011‑11‑09 2011 cases, No summary, Other capacity cases, Transcript


Re FL; HN v FL and Hampshire CC [2011] EWHC 2894 (COP) — 'The primary issues requiring determination by the court were as follows: (1) FL’s capacity to make personal welfare decisions; (2) FL’s mental health needs; (3) FL’s medication; (4) The Z Home’s ability to meet FL’s physical and mental health needs; (5) Whether HN had conducted herself inappropriately or whether such conduct was justified; (6) Whether HCC and or The Z Home conducted themselves inappropriately or whether such conduct was justified; (7) Depending on the outcome of (5) and (6) whether restrictive orders should be made.' 'IPL were permitted to publish details about the case subject to the restrictions in that order.' [Summary required.] 2011‑11‑09 2011 cases, Best interests, No summary, Transcript


Re GM; FP v GM and A Health Board [2011] EWHC 2778 (COP)This was an application for a DOLS standard authorisation to be discharged, thus permitting GM, on discharge from hospital, to return to his home rather than be sent to an EMI home. (1) For there to be an order preventing GM from returning home (in practice, permanently) it would have to be 'so contrary to his interests to return that the court must not even contemplate seriously a placement' at home. (2) Factors in favour of a return home included: the 'emotional dimension'; GM's short life expectancy, and the fact that a move to EMI accommodation would be permanent; and Article 8 considerations. (3) Factors against were: the probability of a lesser quality of physical care at home; the risk of risk of breakdown and conflict; and the risk of deterioration, for instance in sleep pattern. (4) The DOLS authorisation was discharged. (5) As GM was ready for discharge from hospital, and the decision would have permanent effect, Hedley J decided the issue in one day in January instead of waiting for a five-day hearing in May (before a DJ) or October (before a High Court judge). He commented that 'it seems to me that it is absolutely essential that the Court of Protection establishes a practice that these interim cases must be dealt with quickly, and, having regard to the demands on the system generally, proportionately, that is to say almost certainly without detailed oral evidence.' 2011‑10‑26 2011 cases, Best interests, Brief summary, Missing from Bailii, Transcript


AG's ref (no 54 of 2011) [2011] EWCA Crim 2276(1) The restricted hospital order was quashed and a six-year IPP imposed. The judge had failed to take into account the differences between the two regimes: (a) release on licence from IPP depends on lack of danger for any reason, whereas release from hospital order depends on lack of danger for medical reasons only; (b) an IPP licence can be revoked for danger resulting from crime, whereas a conditional discharge can only be revoked if the medical condition relapses. It was essential in this case that the power to recall upon criminal relapse was available. (2) The s45A hybrid order regime would have been perfect in this case, but it is only available to those subject to imprisonment; however, the defendant was under 21 and imprisonment is only available to those 21 or over (the court recommended that this be reconsidered). (3) The notional determinate term of 12 years was not unduly lenient. (4) The hearing was adjourned in order to allow for an immediate s47 transfer direction to be made upon the imposition of the IPP sentence. 2011‑10‑24 2011 cases, Brief summary, Life sentence cases, Transcript


R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB)The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; if even this procedure is too slow then the police can be asked to detain under s136 (an A&E department being a place to which the public have access): there is no lacuna in the MHA. There is unlikely to be unlawful detention or breach of Article 5 if there is no undue delay during the processing of an application under ss2 or 4 MHA 1983. (3) On the facts, as the detention was purportedly under s5 MCA and the application for detention under s2 MHA was delayed, the claimant had been detained in hospital without lawful justification, and deprived of her liberty in breach of Article 5; she was entitled to damages. 2011‑10‑13 2011 cases, Brief summary, Transcript, Unlawful detention cases


Quigley v Masterson [2011] EWHC 2529 (Ch)The defendant's application to the Court of Protection qualified as a notice of severance served under section 36(2) of the Law of Property Act 1925. 2011‑10‑13 2011 cases, Brief summary, Other capacity cases, Transcript


Sharma v Hunters [2011] EWHC 2546 (COP)Unsuccessful application by Hunters Solicitors against wasted costs order in the Court of Protection. 2011‑10‑13 2011 cases, Brief summary, Other capacity cases, Transcript


R v Abdi [2011] EWCA Crim 2179Unsuccessful appeal against s41 restriction order. 2011‑10‑13 2011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


S v Estonia 17779/08 [2011] ECHR 1511Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of Article 5(1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded. 2011‑10‑06 2011 cases, Brief summary, Deprivation of liberty, ECHR, Transcript


LG v DK [2011] EWHC 2453 (COP) — Application to Court of Protection to decide whether it is in DK's best interests to provide DNA sample for paternity test. [Summary to follow.] 2011‑10‑05 2011 cases, Best interests, No summary, Transcript


A London Local Authority v JH [2011] EWHC 2420 (COP) — It was, in the interim, in JH's best interests to return home with a package of care (rather than go to a care home). [Summary to follow.] 2011‑10‑05 2011 cases, Best interests, No summary, Transcript


Re Jarman (2011) COP 8/8/11The donor made an EPA appointing attorneys to act jointly and severally. He included the following restriction: "While both of my Attorneys are alive and of capacity they are to act jointly and a certificate from a practising doctor will be sufficient evidence of capacity of either of my Attorneys." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011‑10‑01 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Gardner (2011) COP 6/7/11The donor included the following statement in the guidance section of the instrument: "If I am suffering from a terminal illness I would ask that my attorneys assist me in travelling to a country where it is legal for me to take my own life should I choose to do so." On the application of the Public Guardian the court severed the guidance for the following reasons: (i) section 62 of the MCA 2005 provides that nothing in the Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide); (ii) the donor was purporting to authorise the attorneys to commit the criminal offence of assisting suicide, and the fact that a person who assists a suicide is not always prosecuted in England and Wales does not detract from the fact that it remains a criminal offence; (iii) although the statement appeared in the guidance section, it is not open to a donor to provide guidance to the attorneys relating to the commission of a criminal offence. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript


Re Hodgkiss (2011) COP 25/8/11The donor of a Health and Welfare LPA selected Option B, which states that the attorneys have no authority to give or refuse life-sustaining treatment. He then directed as follows: "Attorneys must consent to any life sustaining treatment if I am in a persistent vegetative state." On the application of the Public Guardian this provision was severed as being incompatible with his selection of Option B. The court added that, if the donor had wished to give his attorneys authority to consent to life-sustaining treatment if he were in a persistent vegetative state, he should have selected Option A. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions relating to life-sustaining treatment, No transcript


Re Wheeler (2011) COP 25/7/11The Public Guardian applied for the severance of an invalid clause in the LPA. The Senior Judge considered that another clause was also invalid, which was severed on the court's own initiative. The donor had provided the following guidance: "My attorneys may act on the contents of my will." The court's reason for severing the guidance was as follows: "The court considers that the meaning of this guidance is unclear and that it is probably void for uncertainty. Potentially it authorises the attorneys to distribute the donor's estate during his lifetime as if he were dead, which would be not only contrary to public policy but also contrary to the provisions of section 12 of the Mental Capacity Act 2005. A will speaks from death, and it is not a function of an attorney to act as the executor of the donor's will." [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript


Re Pugh (2011) COP 13/7/11The donor appointed three replacement attorneys to act jointly. She then completed the box on page 5 of the form (which should be completed only if the attorneys are to act jointly in some matters and jointly and severally in others) and directed as follows: "Where by this power I have appointed three replacement attorneys to act jointly on all occasions then I direct that if there is a dispute it is the majority decision of my three replacement attorneys that is to be followed and in the event that by reason of death or incapacity or other reason I only have two of my three replacement attorneys who are capable of acting then in the event of a dispute between my two continuing replacement attorneys it is the decision of the eldest that is to be followed." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript


Re Freeman (2011) COP 17/8/11The donor appointed A and B as attorneys to act jointly in some matters and jointly and severally in others. He specified that they were to act as follows: "Major capital expenses jointly. Day to day expenses A." In his application the Public Guardian submitted that the donor had not specified any decisions to be made jointly and severally and so the words "Day to day expenses A" should be severed, with the effect that decisions not specified to be taken jointly should by implication be taken jointly and severally. The court was also asked to sever the word "Major" on the ground of uncertainty. The court accordingly severed these words so that the attorneys were appointed to act jointly for "capital expenses" and (by implication) jointly and severally for everything else. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript


Re Ingham (2011) COP 15/8/11The donor appointed four attorneys to act jointly for some decisions and jointly and severally for others. She then directed as follows: "A. While all attorneys are acting: 1. All may complete any transaction with a value not exceeding £2,500. 2. All must complete any transaction with a value exceeding £2,500. B. In the event that only two or three Attorneys remain capable of acting those Attorneys are bound by A1 and 2 above. C. In the event that only one Attorney remains capable of acting that Attorney has full powers to complete transactions of any value." On the application of the Public Guardian directions B and C were severed on the ground that they were incompatible with the joint aspect of the appointment: if one attorney ceased to act, the matters to be decided jointly would not be able to be decided by the continuing attorneys. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript


Re Brindley (2011) COP 11/5/11The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restriction: "C does not attain the age of 18 until 21.12.2012 upon which date along with A and B she will act jointly and severally as attorney." On the application of the Public Guardian the appointment of C was severed as invalid on the basis that it contravened section 10(1)(a) of the MCA. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript


Re Druce (2011) COP 31/5/11The donor made LPAs appointing A and B as her attorneys, to act jointly, and C and D to be her replacement attorneys. She then imposed the following restriction: "Both C and D should jointly replace the first attorney who needs replacing so that on the first replacement there will be 3 acting attorneys. No further replacements will be needed." On the application of the Public Guardian the court severed the restriction. There is nothing in section 10(8)(b) of the MCA, which deals with the appointment of replacement attorneys, to displace the fundamental principle that the survivor of joint attorneys cannot act. Where one of the original joint attorneys can no longer act, the replacement(s) will step in and act alone, to the exclusion of the surviving original attorney. This ruling reflects what is stated to be the "better view" in paragraph 4.44 of Cretney and Lush on Lasting and Enduring Powers of Attorney (6th edition). [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript


Re Salter (2011) COP 18/8/11The donor appointed primary attorneys to act jointly in some matters and jointly and severally in others, and also appointed replacement attorneys. She then directed as follows: "For decisions where my attorneys must act jointly, replacement attorney 1 should replace attorney 1, when he is unable to act and replacement attorney 2 should replace attorney 2 when he is unable to act." On the application of the Public Guardian this provision was severed because the effect of one primary attorney ceasing to act would be that the other primary attorney could no longer act in the matters to be decided jointly, but the direction contemplated that the first replacement would act with the surviving primary attorney. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript


Re Walker (2011) COP 20/7/11The donor of a property and affairs LPA included the following provision in the guidance section: "To help my son X financially from my funds as and when he requires." 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.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Fisher (2011) COP 28/7/11The donor included the following provision in his LPA: "I direct that if I lack mental capacity or for any other reason am unable to deal with my day to day financial affairs then my Attorney is to pay from my business the sum of £4,000 per calendar month into the bank account of my wife." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Jackson (2011) COP 17/8/11The donor of a property and affairs LPA included the following guidance: "If my attorneys believe I lack mental capacity or am becoming mentally incapable of managing and administering my property and financial affairs then I wish them to realise all my stocks, shares and other investments and transfer the proceeds and the balances from all bank and other accounts in my sole name into a joint account in the names of myself and my wife to ensure that my wife has full access to all funds." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Temple (2011) COP 10/8/11The donor of a property and affairs LPA included the following guidance: "My attorney is authorised to grant gifts of up to £5,000 for family and also to provide interest free loans of up to £10,000 for extreme need. Where possible loans to be repaid within one year with flexibility of terms allowed at my attorney's discretion." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Gee (2011) COP 22/8/11The donor of a property and affairs LPA included the following guidance: "Although I authorise my Attorneys to make gifts of money to either grandchild in cases of extreme need (for which I rely on my Attorneys' discretion) no benefit directly or indirectly should go to my daughter. If my house has to be sold I authorise my Attorneys to distribute any furniture, household and personal effects to X, Y and my grandchildren as if I had died." In making the application the Public Guardian referred the court to the view expressed by the Law Commission in its report on Mental Capacity (Law Com. No. 231) to the effect that an LPA attorney could provide for the needs of others as part of his duty to act in the donor's best interests, even in the absence of an express provision such as is conferred on EPA attorneys. The Public Guardian asked the court to consider whether the view of the Law Commission could be relied on in cases where the donor contemplated that the attorneys could provide for the needs of others in circumstances outside the statutory gifting power. However, the court severed the guidance on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011‑09‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


R (O) v LB Hammersmith and Fulham [2011] EWCA Civ 925 — Dispute over accommodation for child in need. 2011‑09‑29 2011 cases, Detailed summary, Miscellaneous, Transcript


Re M; W v M [2011] EWHC 2443 (COP)M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or withdraw ANH from a person in VS or MCS must be referred to the court; (b) no such application should be made unless the necessary assessments for MCS have been carried out; (c) non-means-tested Legal Aid should be available for family members in such applications; (d) consistent with privacy, it is imperative that the press should be free to report such cases. (5) A radical review of M's care plan will be the subject of further submissions; in the meantime, the do-not-resusitate order was continued and other treatment left to clinical discretion. 2011‑09‑28 2011 cases, Best interests, Brief summary, ICLR summary, Transcript


DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC)It was argued before the FTT that DN should be discharged, deferred until arrangements under the MCA DOLS could be put in place in relation to residence and control of his alcohol consumption. (1) When the MHA applies, it has primacy over the MCA; however, if the MCA were applied in anticipation of discharge from detention then DN would NOT then be 'within the scope' of the MHA and therefore not ineligible for MCA DOLS. (2) The FTT erred in law by failing, when deciding not to discharge, to address the possibility of supervision under the MCA. (3) The Trust had not participated in the appeal so the UT erred on the side of caution by setting aside and directing a rehearing. 2011‑09‑27 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions


R (Sunderland City Council) v South Tyneside Council [2011] EWHC 2355 (Admin)SF moved from a residential college in Sunderland (ESPA) to a hospital in South Tyneside (Rose Lodge), initially informally then under section 3; the placement in Sunderland was terminated because of the hospital stay. The judge drew 10 propositions from the law, and concluded that Sunderland remained the authority with aftercare responsibility under s117. Relevant considerations were that (a) the informal admission was close to being involuntary (through force of circumstances) and was in what was intended to be short-term accommodation, (b) the termination of the Sunderland placement was not voluntary, and (c) the Tyneside placement was not part of SF's regular order of life or for a settled purpose. [Caution: overturned on appeal.] 2011‑09‑27 2011 cases, After-care, Brief summary, Transcript


MB v BEH MH NHS Trust [2011] UKUT 328 (AAC)Following the RC's evidence, without hearing other witnesses or submissions on the law and evidence, the Tribunal judge stated that the patient could not obtain a conditional discharge and invited the patient to withdraw his application; the patient withdrew and appealed against the Tribunal's consent to the withdrawal. (1) Consent to withdrawal is a judicial act and is appealable. (2) The judge's expression of a preconceived concluded opinion (as opposed to a provisional view) amounted to a breach of the rules of natural justice and fair procedure in that the appellant was effectively denied a proper opportunity to put his case. (3) The UT's concerns about remedy (that there had been no application to reinstate the case and no re-application by the patient during the relevant eligibility period) were outweighed by the practical benefit of a fresh hearing and the patient, if unsuccessful, retaining his right to apply during the current eligibility period; therefore, the matter was set aside and referred to the Chamber President for directions to arrange a hearing by a completely differently constituted panel in order that a fresh decision be made. 2011‑08‑23 2011 cases, Brief summary, Transcript, Upper Tribunal decisions


G v MHTS [2011] CSIH 55This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The appellant unsuccessfully challenged the decision to make no order. 2011‑08‑23 2011 cases, Brief summary, Scottish cases, Transcript


R (FB) v SSHD [2011] EWHC 2044 (Admin) — Unlawful detention case involving mentally-ill immigrant. [Summary required.] 2011‑08‑22 2011 cases, No summary, Repatriation cases, Transcript


DP v South Tyneside DC (2011) Admin Court 14/7/11It was not practicable to consult the nearest relative because (1) DP was perceived to be potentially at risk from him (forced marriage/death) and (2) consultation was not possible without disclosing DP's location (the duty of consultation not being one of mere notification): therefore the application for habeas corpus was refused. 2011‑08‑22 2011 cases, Brief summary, Consulting NR, No transcript


WCC v GS [2011] EWHC 2244 (COP)(1) GS lacked capacity to conduct litigation, to make decisions in respect of her care requirements, to decide where she wants to live and to decide issues relating to contact with her family. (2) It was in GS's best interest to remain at a care home. (3) Having set out an general guidance in relation to conditions imposed on contact, the court approved an agreed contact schedule between GS and her son. 2011‑08‑22 2011 cases, Best interests, Brief summary, Transcript


M v F [2011] EWCA Civ 273Unsuccessful appeal by the mother against a judgment refusing her a wide ranging series of declarations, the object of which was to deny the father (who suffered from mental illness) all knowledge of the birth and subsequent development of his legitimate child. 2011‑08‑22 2011 cases, Brief summary, Miscellaneous, Transcript


Magritz v Public Prosecutors Office Bremen [2011] EWHC 1861 (Admin)In relation to the claimant's extradition, where the sentence was for him to be 'placed in a psychiatric hospital for an indefinite period of time': (1) section 25 of the Extradition Act 2003 (the purpose of which is to protect a requested person whose physical or mental health is so poor that the act of extradition would be oppressive or unjust) was not engaged; and (2) there would be no breach of Article 3, Article 5 or Article 8. 2011‑08‑22 2011 cases, Brief summary, Missing from Bailii, Repatriation cases, Transcript


Selwood v Durham CC (2011) Newcastle-upon-Tyne county court 25/2/11The claimant social worker was not informed of a patient's threats to kill her and was subsequently stabbed by him; she sued the local authority and relevant NHS Trusts in negligence or breach of statutory duty and alternatively alleged a breach of Article 2. The Trusts' application for strike out was successful. [Caution.] 2011‑08‑22 2011 cases, Brief summary, Miscellaneous, Transcript


R (S) v SSHD [2011] EWHC 2120 (Admin)Detention of mentally-ill immigrant was unlawful under common law and Article 5, and breached Articles 3 and 8. 2011‑08‑16 2011 cases, Brief summary, Repatriation cases, Transcript


Ross v SSWP (2011) UKFTT 8/8/11 (SEC)Unsuccessful application by BBC journalist to record and broadcast proceedings of First-tier Tribunal (Social Entitlement Chamber). 2011‑08‑16 2011 cases, Brief summary, Miscellaneous, Transcript


SL v Westminster City Council [2011] EWCA Civ 954On the true meaning of section 21(1)(a) of the National Assistance Act 1948, as amended, an asylum seeker suffering from depression and mental health difficulties who had been granted indefinite leave to remain was entitled to residential accommodation if the local authority had provided a programme of assistance and support to him through a care co-ordinator, since such provision of assistance would be otiose without the additional provision of housing. [Summary from WLR (D).] 2011‑08‑13 2011 cases, Community care, Detailed summary, ICLR summary, Transcript


McKie v Swindon College [2011] EWHC 469 (QB)An email sent by Swindon College, a past employer, to the claimant's then current employer, raising safeguarding issues, caused him to lose his job, for which Swindon were liable in negligence. (Full legal summary required.) (A forthright judgment: '[18] ... Even if there were any substance in that complaint at all, which as I say seems to me to be bordering on the ludicrous... [26] ... We are into the realms of hearsay upon hearsay. ... [27] ... I think when we actually look at the circumstances, we can see that the procedure adopted at Swindon College giving rise to the sending of the email, can be described as slapdash, sloppy, failing to comply with any sort of minimum standards of fairness, certainly any such standards as would be recognised by any judicial body taking decisions and disseminating information about another individual, because Mr Rowe agreed he had no personal knowledge of things at all. ... [29] So not only do I take the view that the contents of the email are not in fact supported by any evidence, I also take the view that the circumstances surrounding the sending of the email flouted elementary standards of fairness, diligence, proper enquiry, natural justice, whichever set of epithets you wish to use. ... [34] ... The idea that she should have been part of a disciplinary process as it transpired on 10 June whilst being on the governing body of Swindon College, I find staggering. It contradicts almost every rule, as it seems to me, about decision making in a quasi-judicial matter.' etc) 2011‑08‑04 2011 cases, Brief summary, Miscellaneous, Transcript


Re JM (Variation and renewal of orders for guardianship made under provisions with minute to vary) [2011] ScotSC 8/6/11 — Judgment including guidance on Scots guardianship orders. [Summary required.] 2011‑08‑03 2011 cases, No summary, Scottish cases, Transcript


Manchester City Council v G [2011] EWCA Civ 939Manchester's appeal against the costs order against it in the G v E case was unsuccessful. 2011‑08‑02 2011 cases, Brief summary, COP costs cases, Transcript


LA v MHTS [2011] ScotSC 20/7/11 — Unsuccessful appeal against Mental Health Tribunal for Scotland. [Summary required.] 2011‑08‑02 2011 cases, No summary, Scottish cases, Transcript


Re PH; PH v A Local Authority [2011] EWHC 1704 (COP)The following declarations were made: (1) PH lacks capacity in relation to the question on whether or not he should be accommodated at Y Court for the purposes of being given care and treatment; and (2) PH lacks capacity to make a decision as to his residence and care (the second declaration to remain in force for six months). 2011‑07‑23 2011 cases, Brief summary, Other capacity cases, Transcript


CX v A Local Authority [2011] EWHC 1918 (Admin)A writ of habeas corpus was granted: (1) there had not been sufficiently informed consultation with the nearest relative before the s3 application was made; (2) the withdrawal of the nearest relative's objection was not full and effective, since it was the result of the incorrect and misleading advice that she could not maintain the objection without legal representation. [Judgment originally published under a different name.] 2011‑07‑21 2011 cases, Brief summary, Consulting NR, Transcript


P v Independent Print Ltd [2011] EWCA Civ 756 — Whether the Independent Newspaper should be authorised to attend the substantive hearing which would determine the living arrangements to be made for a young man who lacks capacity. [Summary required.] 2011‑07‑20 2011 cases, No summary, Other capacity cases, Transcript


Hossack v Legal Services Commission [2011] EWCA Civ 788 — Judicial review of rejection of tenders for community care law. [Summary required.] 2011‑07‑20 2011 cases, Miscellaneous, No summary, Transcript


KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC) — Treatment in hospital and 'long leash' s17 leave. [Summary required.] 2011‑07‑20 2011 cases, No summary, Transcript, Upper Tribunal decisions


R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 — 'This appeal concerns the question of whether the Respondent Royal Borough acted unlawfully in seeking to amend the Appellant’s care package by substituting her nighttime carer with provision of incontinence pads or absorbent sheets when the Appellant is not in fact incontinent.' (from Supreme Court press summary) 2011‑07‑20 2011 cases, Community care, No summary, Transcript


JG v MHTS [2011] ScotSC 17/6/11 — Unsuccessful appeal against Tribunal decision. [Summary required.] 2011‑07‑20 2011 cases, No summary, Scottish cases, Transcript


Eba v Advocate General for Scotland [2011] UKSC 29 — Scope of judicial review of Upper Tribunal in Scotland. 2011‑07‑20 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript


KY v DD [2011] EWHC 1277 (Fam) — Guidance on without notice applications. [Summary required.] 2011‑07‑18 2011 cases, No summary, Other capacity cases, Transcript


R v Hopkins; R v Priest [2011] EWCA Crim 1513 — Prosecution under MCA 2005 s44. [Summary required.] 2011‑07‑18 2011 cases, Criminal law capacity cases, Missing from Bailii, No summary, Other capacity cases, Transcript


R (Cart) v Upper Tribunal [2011] UKSC 28Judicial review of an UT decision which is unappealable (here, the UT's refusal of permission to appeal to itself) is available where the second-tier appeal criteria apply (whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it). 2011‑06‑22 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript


R v Goucher [2011] EWCA Crim 1456The hearing of an application for an extension of time and for permission to appeal against a restricted hospital order was adjourned in order to obtain evidence from the new Responsible Clinician. 2011‑06‑22 2011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


R (KM) v Cambridgeshire CC [2011] EWCA Civ 682(1) The assessment of needs was adequate. (2) There has to be a rational link between the needs and the assessed direct payments, but there does not need to be a finite absolute mathematical link, so the use of the Resource Allocation System (RAS) was lawful. (3) The explanation of the personal budget figure was rational. 2011‑06‑22 2011 cases, Brief summary, Community care, Transcript


Hackett v CPS [2011] EWHC 1170 (Admin) — Undue influence. [Summary required.] 2011‑06‑22 2011 cases, Miscellaneous, No summary, Transcript


Wychavon District Council v EM (HB) [2011] UKUT 144 (AAC)(1) The tenant lacked capacity so the tenancy contract was not valid, which meant that there was no liability to pay rent and therefore no entitlement to Housing Benefit. (2) The contract was void, not voidable, because the landlord knew the tenant lacked sufficient mental capacity to reach such an agreement. [Caution.] 2011‑06‑22 2011 cases, Brief summary, Other capacity cases, Transcript


SMBC v WMP [2011] EWHC B13 (COP) — HSG's application to be discharged as a party in a forced marriage protection order case was refused because there was good cause to believe that he may lack capacity (the test for interim orders). The judge set out a list of lessons learnt for future cases. [Summary required.] 2011‑06‑19 2011 cases, No summary, Other capacity cases, Transcript


Cheshire West and Chester Council v P [2011] EWHC 1330 (COP)(1) The new care plan was in P's best interests (paras 35, 39). (2) There was a deprivation of liberty (reasons given in paras 58-60). (3) A costs order was made against the local authority as the serious misconduct of its employees (including misleading the court under oath, failure to disclose documents and falsifying records) rendered the proceedings more costly (para 76). (4) The public interest in holding public authorities accountable amounts to a 'good reason' for naming the local authority; the scale of the possible identification of P was minor enough not to prevent this (paras 89-90). 2011‑06‑19 2011 cases, Best interests, Brief summary, Deprivation of liberty, Transcript


Re C; C v Wigan Borough Council [2011] EWHC 1539 (Admin) — Judgment in related COP and Admin Court proceedings relating to an 18-year old with severe autism and severe learning disabilities living at a residential special school. Issues considered include deprivation of liberty and seclusion. [Summary required.] 2011‑06‑16 2011 cases, Deprivation of liberty, No summary, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP)(1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4). 2011‑06‑09 2011 cases, Best interests, Brief summary, Deprivation of liberty, Transcript


C v D [2011] EWCA Civ 646(1) A settlement offer which is time-limited is not capable of being a Part 36 offer; (2) in the context of the intention to comply with Part 36, the statement that the offer be 'open for 21 days' did not mean that it was a time-limited offer (rather, it was indicating that it could be withdrawn after 21 days); (3) on the facts, the Part 36 offer had not expired and was capable of acceptance. 2011‑05‑28 2011 cases, Brief summary, ICLR summary, Miscellaneous, Transcript


Re M; W v M [2011] EWHC 1197 (COP) — Reporting-restriction orders and non-contact injunctions. 2011‑05‑26 2011 cases, Detailed summary, Other capacity cases, Transcript


Re Putt (2011) COP 22/3/11(1) Two LLP partners were appointed attorneys; the certificate provider, as an associate at the same firm, was ineligible to act; (2) A direction that 'My attorneys (or any of them) may delegate in writing any of his, her or their functions to any person and shall not be responsible for the default of that person (even if the delegation was not strictly necessary or expedient) provided that he, she or they took reasonable care in his, her or their selection and supervision' was 'not simply contrary but almost repugnant to the special relationship of personal obligation and faith that one might reasonably expect to exist between a donor and the attorney of an LPA'. 2011‑05‑26 2011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, LPA cases - eligibility of certificate provider, Transcript


Re Parsonage (2011) COP 1/4/11The donor of an LPA inserted the following restriction: "My replacement attorneys under this lasting power shall not have authority to do any act, or take any decision, under this lasting power except in those circumstances where I lack capacity or where the replacement attorneys reasonably believe that I lack capacity or when I have signed that I wish the lasting power to come into effect by signing the lasting power again." On the application of the Public Guardian the words "or when I have signed that I wish the lasting power to come into effect by signing the lasting power again" were severed on the ground that re-execution of the LPA by the donor after completion and registration would contravene the execution requirements for an LPA. [OPG summary - LPA case.] 2011‑05‑26 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript


A Council v X [2010] EWHC B10 (COP)Direct contact between X, a 94 year old lady who lacked capacity due to advanced dementia, and her daughter Y was no longer in X's best interests. 2011‑05‑26 2011 cases, Best interests, Brief summary, Missing from Bailii, Transcript


Re JR49 (Application for Judicial Review) [2011] NIQB 41The order authorising removal from a hospital in NI to a hospital in England pursuant to MHA 1983 s82 was quashed. 2011‑05‑26 2011 cases, Brief summary, Northern Irish cases, Transcript


R (Nassery) v LB Brent [2011] EWCA Civ 539The judge was not in error in refusing to set aside the decision of the respondent local authority that the appellant was not entitled to support under section 21(1) of the National Assistance Act 1948. 2011‑05‑26 2011 cases, Brief summary, Community care, Transcript


LBN v Borland (Mental Health Officer) [2011] ScotSC 9/5/11The failure to submit the required medical evidence within the time limit did not vitiate the application. 2011‑05‑26 2011 cases, Brief summary, Scottish cases, Transcript


R (W) v Birmingham City Council [2011] EWHC 1147 (Admin)Of the four bands (low, moderate, severe, critical), the council decided to cease adult social care funding for needs which were assessed to be severe; the decision only to fund critical needs was unlawful. 2011‑05‑23 2011 cases, Brief summary, Community care, Transcript


RN v Curo Care [2011] UKUT 263 (AAC)(1) If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a CTO recommendation, then reaching that firm conclusion (as opposed to an provisional opinion), and preventing the patient from arguing to the contrary, was a breach of natural justice and the ECHR right to a fair hearing. (2) In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. (3) There would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future: the Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. (4) The decision was set aside and remitted to a differently-constituted panel for reconsideration. 2011‑05‑04 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions


A Local Authority v DL [2011] EWHC 1022 (Fam) — The inherent jurisdiction survives the Mental Capacity Act 2005. 2011‑04‑30 2011 cases, Detailed summary, Other capacity cases, Transcript


TR v Ludlow Street Healthcare Ltd [2011] UKUT 152 (AAC)(1) The appeal against an interlocutory decision not to order disclosure of medical records was unsuccessful. (2) The judgment also contains guidance on appealing case management decisions, in particular from the MHRT for Wales. 2011‑04‑30 2011 cases, Brief summary, Transcript, Upper Tribunal decisions


RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC)(1) The Upper Tribunal has power to award costs only where the First-tier Tribunal could do so; (2) in a mental health case, the FTT only has power to make a wasted costs order (and not a costs order 'if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings'); (3) a wasted costs order may only be made against a legal or other representative; (4) it follows that there is no statutory authority to make an order for costs against the FTT, and the patient's solicitors' application to the UT was refused. 2011‑04‑30 2011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC)(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests. 2011‑04‑30 2011 cases, Brief summary, Cases, Reasons, Transcript, Upper Tribunal decisions


All About Rights Law Practice v LSC [2011] EWHC 964 (Admin)The applicant law firm failed properly to complete the online documentation for the 2010 mental health tendering exercise and unsuccessfully challenged the LSC's decision not to award it a contract. 2011‑04‑30 2011 cases, Brief summary, Miscellaneous, Transcript


R v Chowdhury [2011] EWCA Crim 936The judge imposed a restriction order (contrary to the medical recommendations) because of the serious nature of the offence and his concerns about previous non-compliance. The Court of Appeal were willing to quash the restriction order if the appellant made the following undertakings: to surrender his Bangladeshi passport; not to apply for another Bangladeshi passport; to surrender his UK passport; not to apply for another UK passport; not to apply for any other travel documents; and to give irrevocable instructions that such documents are not to be returned to him without the written consent of his treating psychiatrist. 2011‑04‑30 2011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript


Buckinghamshire CC v RB of Kingston upon Thames [2011] EWCA Civ 457Where a person is accommodated under s21 NAA 1948 by authority A in area B, the person is deemed still to be ordinarily resident in area A only until he moves out of s21 accommodation (in this case, into supported housing). When assessing under s47 NHSCCA 1990, authority A owes no duty of fairness to area B and there is no duty to consult: the duty is to the person concerned; the role of authority B, as payers for the service, is essentially incidental. 2011‑04‑30 2011 cases, Brief summary, Community care, Transcript


Lumba (WL) v SSHD [2011] UKSC 12(1) It was unlawful in public law for the SSHD to operate an unpublished policy on the detention of foreign national prisoners which differed from the published policy and which amounted to a near-blanket ban on release. (2) The detention of the appellants was unlawful, even though they would have been detained even on the published policy. (3) As they suffered no loss, the appellants were entitled to nominal damages of one pound (and not 'vindicatory' or exemplary damages). 2011‑04‑30 2011 cases, Brief summary, Transcript, Unlawful detention cases


R (Sturnham) v SSJ [2011] EWHC 938 (Admin)Damages of £300 were awarded under Article 5 for anxiety and distress caused by six-month delay in Parole Board hearing. 2011‑04‑30 2011 cases, Brief summary, Prison law cases, Transcript


R (WG) v Leicester City Council [2011] EWHC 189 (Admin)This JR claim had been issued to challenge a failure to carry out an assessment under s47 NHSCCA 1990, but an assessment had subsequently been carried out and not identified any community care needs: (1) permission was therefore refused; (2) it was ordered that unless the claimant was prepared to identify herself she would not be able to bring any further legal actions. 2011‑04‑30 2011 cases, Brief summary, Transcript, Unimportant cases


PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC)The Tribunal's policy is that a reference made under s68(7) (triggered by the revocation of a CTO) will be treated as having lapsed if the patient subsequently is placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (as amended)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy is unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy is inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the revocation reference lapses. (2) The power to treat a letter as a Tribunal application is only appropriately exercised for the applicant's advantage, not potential detriment; it is not permissible to override an unequivocal indication by the solicitor to the opposite effect, especially if to do so would deprive the patient of the chance to make an application later should discharge not be obtained on the reference. (3) If the hospital managers had been represented, the judge would have wanted to know why it took 12 days to complete the simple referral form. (4) The Tribunal Procedure Committee will be consulting on rule changes to make it easier to handle CTO revocation cases in which the patient does not 'co-operate': in the meantime, the judge suggested that proceedings could be stayed, or hearings conducted in patients' absence. 2011‑04‑16 2011 cases, Brief summary, Transcript, Upper Tribunal decisions


R (G) v South London and Maudsley NHS Foundation Trust [2011] EWHC 747 (Admin)The claimant sought judicial review of the NHS Trust and the Met police in relation to a proposed visit to his home. (1) A civil restraint order had been made after the JR application was made: so he did not need leave of the High Court to have the claim considered on the papers; however, he did need leave for this renewed application for permission. (2) On the merits, permission would have been refused because (a) it is not the function of the court to review operational decisions such as this, and (b) the claimant had not been detained so the points regarding the MHA were academic. (3) In any event, the civil restraint order was thoroughly appropriate and would not be discharged. 2011‑04‑10 2011 cases, Brief summary, Missing from Bailii, Transcript, Unimportant cases


V v R [2011] EWHC 822 (QB)Litigation capacity. The experts agreed that, as a result of her impulsive nature, V lacked capacity to manage her financial affairs; however, they disagreed on whether she had litigation capacity. The critical future decisions would be in connection with settlement offers (including the global value of the claim, provisional damages and periodical payments) albeit in the conext of the common understanding that she would not have unfettered access to the money. V would have difficulties in weighing the evidence and making decisions, but they could be ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates: the decisions would be made in the presence of her mother and lawyers; there was no suggestion that V would be left to make decisions on her own. On balance she did not lack capacity to ligitate. 2011‑04‑09 2011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript


R v O [2011] EWCA Crim 376Life sentence quashed and s37/41 restricted hospital order substituted. The life sentence had been passed in the context of confusion about bed availability, and the lack of a second s37 recommendation. There was utility in making the Appellant a patient rather than a prisoner because: (1) it was manifestly the right order to make on all the evidence; (2) there were advantages in terms of treatment; (3) it had advantages to the Appellant in terms of benefits; (4) it would best ensure the protection of the public. 2011‑04‑09 2011 cases, Brief summary, Life sentence cases, Missing from Bailii, Transcript


R v PA [2010] EWCA Crim 3121The appellant appealed against a sentence of 18 months' imprisonment as being excessive; then, following her transfer to hospital she instead sought a community order with a mental health requirement. Her mental condition, and lack of insight, led to the conclusion that a hospital order was required to ensure that she continued to receive treatment. 2011‑04‑09 2011 cases, Brief summary, Missing from Bailii, Transcript


MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC)The Tribunal panel discharged a s47 patient, deferred for six weeks for after-care arrangements, and stated in para 9 that it 'would also invite Mr P's care team to consider whether to implement a community treatment order'; a CTO was then made; however, the panel's decision by discharging the section simultaneously discharged the CTO. On the responsible authority's application under Tribunal rule 45, a FTT judge reviewed and set aside the decision (because the panel had frustrated its intention that there be a CTO); she then reviewed her own decision, upheld it, and remitted the case to a fresh panel. (1) The patient appealed, but both review decisions are excluded from the appeal jurisdiction (and not from the JR jurisdiction) so the appeal was treated as a JR application. (2) The panel's decision that the first two statutory criteria were not met was not simply an oversight: it had specifically stated that the third criterion was met. (3) Para 9 was not expressed as a recommendation; the word 'also' showed that it did not form the basis of the reasoning. (4) In so far as there is an inconsistency, it is para 9 which should be given no weight; in any event, the reference to 'care team' rather than 'RC' was loose and legally inaccurate. (5) Where the panel find any of the statutory criteria not met, there is no power under s72(3A) to recommend a CTO: rather, there is a positive duty to discharge. (6) The review decisions were quashed and a declaration made that the panel's decision be reactivated. 2011‑03‑30 2011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions


R (Faulkner) v SSJ [2011] EWCA Civ 349The claimant's Parole Board hearing should have been in March 2008 but was delayed in breach of Article 5(4) until January 2009 when he was released; he had shown on balance that he would have been released in March 2008. Having considered the case law on quantum, the court concluded that: 'a figure of £10,000 is appropriate and necessary to reflect the loss of some 10 months' conditional liberty by reason of the state's breach of the claimant's right not to continue to be detained in the absence of a speedy decision by a judicial body. We have not arrived at it by applying a multiplier to a monthly sum, although it can no doubt be disaggregated in that way.' 2011‑03‑30 2011 cases, Brief summary, Prison law cases, Transcript


Jones v Kaney [2011] UKSC 13(1) The immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings is abolished. (2) This does not affect the absolute privilege that all witnesses enjoy in respect of claims in defamation. 2011‑03‑30 2011 cases, Brief summary, Miscellaneous, Transcript


Re AH; AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 276 (COP)(1) The case concerned the proposal to move 12 adults from a specialist residential service (SRS) to alternative homes, and this judgment is a 'firm provisional decision' on one case in the hope of assisting resolution of all cases. (2) It was clearly not in AH's best interests to be moved: only the closure of SRS could justify the turmoil of a move. (3) This case illustrates the point that guideline policies (here, the campus closure programme) cannot be treated as universal solutions. 2011‑03‑29 2011 cases, Best interests, Brief summary, Transcript


Re P; A Local Authority v PB [2011] EWHC 502 (COP)(1) The judge's view was that in exercising a welfare or best interests jurisdiction (whether under the Children Act, under the inherent jurisdiction, or under the MCA) the court is choosing between available options; a point then arises whether the COP can add to the available options (by application of public law and HRA tests in the private law proceedings) or whether judicial review is necessary; these jurisdictional issues should be addressed well before a case comes on for final hearing, so that the relevant authority does not refuse to provide the services after the court has decided that they are in P's best interests; in this case there may be a further hearing to decide the issue. (2) At an appropriate stage in most COP welfare cases, a direction along the following lines should be given (paraphrased) - Each party shall serve a document on the other setting out (a) the facts he asks the court to find, the disputed facts he asserts the court need not determine, and the findings that he invites the court to find by reference to the former facts; (b) the investigations he has made of alternative care and thence the alternatives he asserts should be considered (and by whom the relevant services should be provided); (c) by reference to (a) and (b), the factors he asserts the court should take into account; (d) the relief sought and why he asserts the factors support the granting of that relief; (e) the relevant issues of law. (3) Procedural/substantive fairness did not require overnight contact at the mother's home before the final hearing, and this would not be in P's best interests 2011‑03‑29 2011 cases, Best interests, Brief summary, Missing from Bailii, Transcript


Re A; A v A Local Authority [2011] EWHC 727 (COP)A, represented by the OS, appealed under MCA 2005 s21 against a DOLS standard authorisation; the other parties, including A's son, argued that A lacked capacity and that his current placement was in his best interests. The OS wanted an up-to-date assessment of capacity and a report on best interests, suggesting a COP Visitor report as being the proportionate method: the report would determine whether to dispose of the case by consent or seek further directions. Given the clear evidence, had it been a child best interests case there would have been summary judgment; however, the MCA laid down stringent conditions for deprivation of liberty, so the court cannot act as a rubber stamp and the OS must be allowed to carry out his duty of representing A as he thought fit. Having regard to the overriding objective, the COP Visitor method, and likely disposal without a further hearing, was the best way forward. 2011‑03‑29 2011 cases, Best interests, Brief summary, Deprivation of liberty, Transcript


Dunhill v Burgin [2011] EWHC 464 (QB)The claimant had settled a PI claim on unfavourable terms and now sought to have the consent order declared void for want of capacity; this judgment involves a consideration of litigation capacity. (1) In considering the issue of capacity historically, rather than prospectively, the court should confine itself to examining the decisions actually required of the claimant and should not expand its consideration to hypothetical circumstances (i.e. had she been advised differently). (2) On the facts, the presumption that she had capacity to enter into the agreement had not been rebutted. [Caution.] 2011‑03‑29 2011 cases, Brief summary, Other capacity cases, Transcript


R (W) v LB Croydon [2011] EWHC 696 (Admin)The local authority decided, in order to reduce costs and promote independence, to transfer W from his residential placement to supported living. (1) In principle, the council would be entitled to terminate W's residential placement on grounds of costs, or needs, subject to consultation. (2) On the facts, the consultation with W's parents and the professional carers (as required by MCA 2005 s4) had been inadequate, so the decision was quashed. 2011‑03‑29 2011 cases, Brief summary, Other capacity cases, Transcript


R (PA) v Governor of Lewes Prison [2011] EWHC 704 (Admin)The claimant's social phobia did not make him 'infirm by nature of disability' (within the meaning of PSI 31/2006) for the purpose of deciding whether or not to release on Home Detention Curfew. 2011‑03‑25 2011 cases, Brief summary, Miscellaneous, Transcript


Re T (A child: murdered parent) [2011] EWHC B4 (Fam)B killed his girlfriend, then spent four years as a restricted hospital order patient and a year as a conditionally-discharged patient (with exclusion-zone and no-contact conditions); he now applied for a contact order in respect of their daughter T. (1) There is no presumption that a parent who has murdered the other parent should have no contact with their child; however, having regard to the welfare checklist and other factors, there should be no contact of any kind between B and T. (2) An order under s91(14) Children Act 1989 (preventing further applications by B without leave) was made until T reaches 16 years of age. (3) The family court has no power to vary the conditions of a conditional discharge; however, the court is not constrained by the conditions when making orders; if the order would put the patient in breach of conditions then it should invite the Secretary of State to indicate to what extent he is prepared to vary them. (4) Since the only sanction for breach of conditions is recall to hospital (which is discretionary and dependent upon further medical evidence) the protection provided by the two conditions was illusory; orders of the court were required to enable the matter to be brought before the court in the event of breach: (a) the no-contact condition was made the subject of a non-molestation aorder pursuant to s42 Family Law Act 1996; (b) the exclusion-zone condition could amount to an occupation order (for which MS did not qualify); however, applying a broad meaning of 'molestation' it could also be a non-molestation order; if that were wrong then there is power to make the order under the High Court's inherent jurisdiction for the protection of children and/or under s37 Senior Courts Act 1981. (5) The LSC had discharged B's public funding certificate mid-proceedings following pressure from the special guardian; in the circumstances of this case it should not have done so. 2011‑03‑21 2011 cases, Brief summary, Discharge conditions, Transcript


Re Cranston (2011) COP 18/2/11The donor appointed attorneys to act jointly in some matters and jointly and severally in others. He included in the list of matters which should be decided jointly "changing my will". On the application of the Public Guardian these words were severed on the ground that an attorney has no authority to change a donor's will. An attorney may apply to the court for an order authorising the execution of a statutory will if a donor lacks testamentary capacity. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript


Re McKenna (2011) COP 1/2/11The donor purported to appoint a replacement attorney who, at the date the donor signed the instrument, was 16 years old. The donor added the following restriction; "My replacement attorney shall only act if she is over the age of 18." On the application of the Public Guardian the appointment of the replacement attorney was severed as it contravened section 10(1)(a) of the MCA 2005, which provided that an attorney must have reached 18. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript


Re Baker (2011) COP 4/2/11In Part A of the instrument the donor put his middle name in the box for "Last Name" and omitted his surname completely. As his middle name could have passed for a surname, this error was not noticed by anybody and the instrument was registered. The attorney applied for a declaration that the LPA was to be treated as valid under paragraph 3(2) of Schedule 1 of the MCA 2005, under which the court may declare that an instrument is to be treated as if it had been made in the prescribed form even though it differs in a material respect from the prescribed form. The court exercised its discretion under paragraph 3(2) because, although the error was material, it was satisfied that the instrument was intended to be an LPA. The Public Guardian was directed to amend the register and attach a note to the instrument to this effect. (Note: for a similar case concerning an EPA, see Re Orriss (2010) COP 20/10/10, under the "Rectification" heading.) [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - donor surname missing, No transcript


Re Munn (2011) COP 28/1/11The donor of a property and affairs LPA included the follwoing provision in the guidance section; "My finances should be managed so that X can continue to live at [a named property] for as long as she wishes and receives income from all investments and holiday lettings." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Wheatley (2011) COP 31/1/11The donor of a property and affairs LPA included the following provision in the guidance section; "My attorneys will continue to make contributions to my grandchildrens' Child Trust Funds and any other saving/pension plans that I fund for their benefit." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. ALthough expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Careford (2011) COP 16/2/11The donor of a property and affairs LPA included the following provision in the guidance section; "While my husband is my attorney, he may use my own money and property for his benefit in any way he wishes. My replacement attorneys may use my money and property for the benefit of my husband in any way they think fit. All of my attorneys may make gifts to my husband from my estate." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Knight (2011) COP 18/2/11The donor of a property and affairs LPA included the following provision in the guidance section; "I wish my attorneys, if they think fit, to pay my sister by way of gift the sum of £3,000 annually and to pay by way of gift the sum of £250 annually to my brother in law, my nephew, his spouse and all my nieces including spouses (other than to X), my great nephew and great niece, all of whom are listed on page A2 being the amounts of gifts exempt from inheritance tax under the current inheritance tax laws or such other annual sums by way of gift as shall for the time being be exempt from inheritance tax or other tax payable on death." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power, and although it might be possible for the attorneys to make the desired gifts on "customary occasions", the donor did not appear to have been contemplating customary occasions at all. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Scragg (2011) COP 1/2/11The donor of a property and affairs LPA (who lived abroad) gave detailed instructions to his attorney relating to all of his assets in the event of a return to England, and added that these instructions were "subject to the written consent of my daughter" (who was the replacement attorney and also the attorney under his Health and Welfare LPA). On the application of the Public Guardian the words "subject to the written consent of my daughter" were severed because the requirement that the attorney should obtain the consent of a third party before exercising his powers imposed an unjustifiable fetter on his authority. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript


Re Noel (2011) COP 31/1/11The donor appointed two attorneys to act jointly in some matters and jointly and severally in others. He then appointed X as replacement attorney. He directed that a decision to sell a named property " must be made jointly by all surviving attorneys including X". On the application of the Public Guardian the words "including X" were severed, as being incompatible with the manner in which the attorneys and replacement attorneys had been appointed. The court added that, to have acheived the desired objective, the donor should have appointed all three as attorneys (rather than two attorneys and a replacement) and directed them to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript


Re Parker (2011) COP 18/2/11The donor of a Health and Welfare LPA appointed X and Y as attorneys to act jointly in some matters and jointly and severally in others. He then directed as follows: "I wish the prime responsibility for decisions in respect of my health to vest in X. My attorneys need only act jointly in the event of serious and/or life threatening conditions. In this case X should endeavour to contact Y but if she is, for whatever reason, unable to do so she may act on her own (severally) despite the serious and/or life threatening condition." On the application of the Public Guardian the last sentence of this direction was severed as being incompatible with the appointment to act jointly in some matters. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript


Re Cretney (2011) COP 24/2/11The donor made an LPA on the "new" form prescribed in 2009 but omitted the attorney's date of birth in Part A. The Public Guardian refused to register on the ground that the instrument differed materially from the prescribed form. On the application of the attorney (who was over 18) the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA that the instrument was to be treated as if it were in the prescribed form. [OPG summary - LPA case.] 2011‑03‑18 2011 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript


R (AC) v Berkshire West PCT [2011] EWCA Civ 247The claimant, who suffered from gender identity disorder, unsuccessfully challenged the decisions to refuse funding for breast augmentation surgery and the underlying policies. 2011‑03‑18 2011 cases, Brief summary, Miscellaneous, Transcript


Pitt v Holt [2011] EWCA Civ 197As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal 'effect', so the disposition would not be set aside. 2011‑03‑18 2011 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript


AH v West London MH NHS Trust [2011] UKUT 74 (AAC)(1) Once the threshold tests for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state. (2) The threshold tests are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (3) How the right to a public hearing can be practically and proportionately be achieved will depend on the facts of each individual case, including the hospital's facilities. (4) The Tribunal directed that AH was to have a public hearing, not within Broadmoor hospital, with the press, public, AH and his representatives enabled to attend in person in the same hearing room. (5) It was likely that in future cases, if detailed evidence of how video-link and public-notification arrangements would work in practice is provided, that a video-link to off-site premises would suffice. 2011‑03‑07 2011 cases, Brief summary, Publicity, Transcript, Upper Tribunal decisions


RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC)(1) The Tribunal's reasons for not reconvening following non-implementation of its statutory recommendation were inadequate. (2) A decision had clearly been made not to transfer so there would be no point in requiring the Tribunal to reconvene or reconsider whether or not to do so; the decision was therefore not set aside. 2011‑03‑07 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions


JLG v Managers of Llanarth Court [2011] UKUT 62 (AAC)(1) An appeal to the Upper Tribunal can only succeed if 'the making of the decision concerned involved the making of an error on a point of law'. The issue is whether the Tribunal did its job properly: whether (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; (iii) it answered the legal questions appropriately given its findings of fact; (iv) it gave the parties a fair hearing; and (v) it provided adequate reasons. (2) The UT is entitled to assume that the members of the Tribunal understand the basic legal concepts which they must apply, particuarly with a specialist tribunal applying the same limited range of criteria repeatedly; the claimant's argument was essentially that the Tribunal failed to mention these matters, but there was nothing in the reasons to show that they did not understand them. (3) The reasons, albeit discursively, had soundly and rationally addressed the statutory criteria. (4) There is no separate issue of proportionality: this is amply covered by the terms of legislation and the allocation of the burden of proof. 2011‑03‑07 2011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions


R (Modaresi) v SSH [2011] EWHC 417 (Admin)The claimant missed the 14-day deadline for submission of a s2 Tribunal application because of oversight/neglect on the part of Trust employees. Judicial review claims against the Tribunal (for deciding that the application was invalid), the Secretary of State for Health (for refusing to make a reference) and the Trust (for their actions) were all unsuccessful. [Caution.] 2011‑03‑06 2011 cases, Detailed summary, Other Tribunal cases, Transcript


Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 413 (COP)(1) The judge directed that: (a) the named media organisations could send designated representatives to court, subject to further directions; (b) the media could identify the parties by name, rather than initials; (c) the media could report any information already in the public domain when reporting the proceedings; (d) any application to report information during the course of any private hearing is to be determined by the court at the conclusion of the relevant hearing. (2) The reasons given were that: (a) the circumstances are already in the public domain to a significant extent; (b) there is no evidence of a real possibility of detriment or distress to Stephen of anything other than a trivial nature; (c) it would be impossible to prevent the media from reporting parties' names at the end of proceedings. (3) In relation to future care, directions had been given for a mediated solution to be attempted. (4) In relation to lawfulness of the past deprivation of liberty, a hearing was listed for May 2011. 2011‑03‑02 2011 cases, Best interests, Brief summary, Transcript


Re CW; A Primary Care Trust v CW [2010] EWHC 3448 (COP)(1) Medical treatment is of no benefit to a person in a persistent vegetative state because he is not sentient and has no prospect of recovery; whether the withdrawal of life-sustaining treatment measures is in P's best interests depends on whether the diagnosis of PVS is correct; if it is correct then the provision of any treatment is futile and cannot be in his best interests. (2) CW was in a persistent vegetative state with no prospect of recovery; it was in his best interests for artificial nutrition and hydration to be withheld, which could be done lawfully; it was in his best interests to receive treatment and nursing care to ensure that he retains the greatest dignity possible until death. 2011‑03‑02 2011 cases, Best interests, Brief summary, Missing from Bailii, Transcript


Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG [2011] EWCA Civ 190Judgment of Parker J upheld: neither P (aged 18, in a foster placement) nor Q (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court decision.] 2011‑02‑28 2011 cases, Deprivation of liberty, Detailed summary, Transcript


Hill v Fellowes Solicitors LLP [2011] EWHC 61 (QB)Professional negligence claim including an allegation that a solicitor's firm negligently failed to make enquiries as to the client's capacity to understand the sale of her house. 2011‑02‑24 2011 cases, Detailed summary, Other capacity cases, Transcript


Haworth v Cartmel and HMRC [2011] EWHC 36 (Ch)Disability Discrimination Act, and lack of capacity, used to annul bankruptcy order. 2011‑02‑24 2011 cases, Detailed summary, Missing from Bailii, Other capacity cases, Transcript


NMC Conduct and Competence Committee decision: Josiah Foeka Amara 18/2/11Nurse was struck off for misconduct. The following charges were proved: 'That you, on or around 19 December 2005, whilst working as a Staff Nurse on Vincent Ward at the Gordon Hospital, Bloomberg Street, London SW1V 2RH: (1) Purchased crack cocaine in the company of Patient A, a patient on the ward; (2) Took crack cocaine with Patient A; (3) Had sexual intercourse with an unknown female when Patient A was also present in your flat; AND in light of the above, your fitness to practise is impaired by reason of your misconduct.' 2011‑02‑24 2011 cases, Brief summary, Miscellaneous, Transcript


R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77The appellant sought: 'A declaration that "is resident" in s117(3) Mental Health Act 1983 has the same (or substantially the same) meaning as "is ordinarily resident" under s24 National Assistance Act 1948, so that a person placed by a local authority under s21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 NAA and s117(3) MHA.' The court refused to grant the declaration as: (1) Parliament must have deliberately chosen a different formula for s117; (2) s117 was intended to be a free-standing provision, not dependent on the 1948 Act; (3) there was no legitimate way to interpret 'resident' as excluding a placement under s21. The court noted that the decision is in line with recent government guidance, and that the Law Commission's current project provides a much better forum for considering and remedying any defects in the present law. 2011‑02‑17 2011 cases, After-care, Brief summary, ICLR summary, Transcript


Massie v H [2011] EWCA Civ 115The general rule is that an appeal shall lie from a decision of a county court to the High Court. One exception is for final decisions in Part 7 CPR multi-track cases, which go to the Court of Appeal. (1) This exception does not apply in nearest relative displacement cases under s29 MHA as the application is made under Part 8 CPR; no other exception applied. (2) The court declared that it lacked jurisdiction and that a previous consent order was therefore a nullity. (3) Because of the passage of time and costs involved, rather than abandon the matter or simply transfer it to the High Court, the case was transferred to the High Court for one of the Court of Appeal judges to consider it as a High Court judge there and then. 2011‑02‑17 2011 cases, Brief summary, Displacement, Missing from Bailii, Transcript


R v Welsh [2011] EWCA Crim 73Welsh appealed against a discretionary life sentence for diminished responsibility manslaughter, but was unsuccessful because (1) his propensity for violence, even before he suffered from paranoid schizophrenia, and the gravity of the offence, meant that public confidence would not be maintained by making a restricted hospital order, and (2) there was ample justification for the conclusion that he bore substantial responsibility and that there was a risk he would remain a source of danger even if his condition substantially improved once he received treatment and medication. 2011‑02‑02 2011 cases, Brief summary, Life sentence cases, Transcript


Re AB; D Borough Council v AB [2011] EWHC 101 (COP)(1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children), or (c) that both (or all) parties to the act need to consent to it. (5) AB did not have the capacity to consent to and engage in sexual relations, and the regime for his supervision and for the prevention of future sexual activity was in his best interests. (6) The declarations were made on an interim basis, to be reviewed in nine months, with the local authority ordered to provide sex education in the hope that he gains capacity. 2011‑02‑01 2011 cases, Capacity to consent to sexual relations, Detailed summary, Transcript


Re Donegan (2011) COP 6/1/11The donor made an EPA including the following provision: "All the while that I am practically and financially able to remain in my own home my Attorneys should ensure that I remain there. My Attorneys do not have power to sell my home." On the application of the Attorneys the court severed the restriction on the ground that it was ineffective as part of an EPA because it sought to confer Personal Welfare decision making powers on the Attorneys. [OPG summary - EPA case.] 2011‑01‑30 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Harris (2011) COP 6/1/11The donor made an EPA purporting to authorise the Attorneys to do the following: "Making a choice on my behalf for any nursing/residential care needed for me in the future." On the application of the Attorneys the court severed the provision on the ground that it would be ineffective as part of an EPA, because it sought to authorise Personal Welfare decision making. [OPG summary - EPA case.] 2011‑01‑30 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Stevens (2011) COP 11/1/11The donor made an EPA including the following provision: "The word "seasonal" in section 3(5) of the Enduring Powers of Attorney Act 1985 includes the end of one tax year and the beginning of another." On the application of the attorneys the court severed the provision as being ineffective as part of an EPA. [OPG summary - EPA case.] 2011‑01‑30 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Scott (2011) COP 11/1/11The donor made an LPA for property and financial affairs, appointing A and B to act jointly and severally. She then imposed the following restriction: "In the event of there being any disagreement between A and B (as the attorneys for property and financial affairs) and C (as the attorney for health and welfare) over expenditure on my health or welfare then C's decision is to prevail." The Public Guardian applied for this restriction to be severed on the basis that Re Reading (above) showed that a donor could not require that a person who was not an attorney under the instrument should join in the making of decisions by the attorneys. The court dismissed the Public Guardian's application, considering that there was no reason in law why the donor of two seperate LPAs should not be able to provide that, in the event of a disagreement between the attorneys for property and financial affairs and the attorney for health and welfare, the decision of the attorney for health and welfare should prevail. [OPG summary - LPA case.] 2011‑01‑30 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript


TW v A City Council [2011] EWCA Civ 17The Court of Appeal issued a reminder of the following: (a) that the bundle of authorities should be agreed; (b) that it should be filed at least seven days before the hearing; (c) that it should not contain more than ten authorities unless the scale of the appeal warrants more extensive citation; (d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. BAILII judgments (with neutral citation numbers) should only be used if no other recognised reports were available and the case really needs to be cited; and (e) that the passages in the authorities which were relevant and on which counsel sought to rely must be marked. 2011‑01‑24 2011 cases, Brief summary, ICLR summary, Miscellaneous, No transcript


Salisu v SSH (2011) UKFTT 1 (HESC)The Applicant was guilty of misconduct within the meaning of Section 86(7)(a) Care Standards Act 2000 (convicted of ill-treatment under s127 MHA 1983) but was not unsuitable to work with vulnerable adults and children under s86(7)(b). 2011‑01‑22 2011 cases, Brief summary, Miscellaneous, Transcript


Re AVS; AVS v A NHS Foundation Trust [2011] EWCA Civ 7 — Court of Appeal refuse permission to appeal from Court of Protection decision in medical treatment case. [Official summary available.] 2011‑01‑17 2011 cases, Best interests, Brief summary, Transcript


TTM v LB Hackney [2011] EWCA Civ 4(1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were. 2011‑01‑14 2011 cases, Consulting NR, Detailed summary, ICLR summary, Miscellaneous, Transcript, Unlawful detention cases


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