Category

2013 cases

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Page and summaryDate added to siteCategories
Tricker v Church [2013] EWCOP 2, [2013] MHLO 152 — The application for an order to enforce the receiver's security bonds was rejected, and costs were to be paid by the applicant personally. 2015-11-042013 cases, Brief summary, Deputyship cases, Transcript
MAP v RAP [2013] EWHC 4784 (Fam), [2013] MHLO 151 — A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance. 2014-08-242013 cases, Brief summary, Other capacity cases, Transcript
Re MM [2013] MHLO 150 (UT) — (1) The tribunal did not misdirect itself by applying the s2 criteria to a s3 case. (2) However, the tribunal's reasoning was inadequate. The tribunal stated that all the evidence was to the effect that MM's mental disorder 'warrants his treatment in hospital' (this is language from the s2 criteria), but it was only (part of) the medical evidence in which there was any confusion as to the criteria. The findings of fact (that the condition was chronic and relapsing etc) did not show that the mental disorder warranted detention (or made it appropriate). The only finding that could support the tribunal's decision was the medical evidence, which was affected by reference to the wrong legal test. In those circumstances the tribunal should have (a) shown that they had applied the correct criteria and not made the same mistake as the doctor, and (b) shown by precise findings of fact that the s3 criteria were satisfied. A blanket reference to a possibly-contaminated report did not ..→2014-08-172013 cases, Brief summary, Transcript, Upper Tribunal decisions
LBX v K, L and M [2013] EWHC 4170 (Fam), [2013] MHLO 149 — "In the judgment I handed down this morning I concluded that L has capacity in relation to decisions about where he should live, the care he receives and contact with his family. Having made that decision I then considered the question as to whether I should invoke the inherent jurisdiction as L was a vulnerable adult. ... I accept this is a difficult balance but, in this case, I am entirely satisfied that because of the vulnerability that this particular person has, and the very clear psychiatric evidence dating back to Dr. Halstead's report in 2007, endorsed by the various witnesses that gave evidence earlier this week, that he remains vulnerable to overwhelming emotional issues which could compromise his capacity. He needs to be able to retain his capacity in circumstances where he has emotional safety. That can only be where there is a proportionate structure in place that enables him to be able to maintain his capacity in a relatively calm environment, and free from the ..→2014-08-072013 cases, 39 Essex Street summary, Best interests, Transcript
LBX v K, L and M [2013] EWHC 3230 (Fam), [2013] MHLO 148 — "The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. ... Having considered all the evidence and the submissions that have been made, I have reached the conclusion that there does need to be a further assessment as to L’s capacity." 2014-08-072013 cases, 39 Essex Street summary, Other capacity cases, Transcript
Re RGS (No 2) [2013] MHLO 147 (COP) — "On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended." 2014-08-012013 cases, No summary, Other capacity cases, Transcript
Re Jared Britton [2013] MHLO 146 (FTT) — Extract from decision: "In a decision given on 26 September 2011, the application by Mr Jared Britton that his application dated 4th September 2009 should be held in public was granted. The fact of this decision should be published. The reasons for the decision must not to be made public. An open hearing is now listed at Liverpool Crown Court on Wednesday 3rd April 2013 for an all day hearing starting at 10.30am." 2014-07-172013 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript
The Local Authority v HP [2013] EWCOP B40, [2013] MHLO 145 — "The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. ... They now accept that it is not necessary for a declaration in respect of capacity to marry. ... The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment." 2014-05-022013 cases, No summary, Other capacity cases, Transcript
Re Buckley [2013] MHLO 144 (LPA) — The donor made an LPA for property and financial affairs and included the following provision: "Assets should be used firstly to ensure the well being and comfort of [my wife] and secondly to meet any urgent need of the families of the Attorneys and thereafter managed until distributed in accordance with the terms of my will." On the application of the Public Guardian the provision was severed. Although the attorneys would have power to maintain the donor's wife (see Re Bloom above), this should not be the priority of the LPA because section 1(5) of the MCA provides that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." The attorneys had no authority to meet the needs of their families, as the donor was not under any legal obligation to maintain them. Any maintenance of the families would be a gift which would potentially fall outside section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Rider [2013] MHLO 143 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "No political donations to be made other than to the conservative party." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. While section 12(2)(b) permits the making of gifts to charities (subject to certain conditions), donations to the conservative party, or any other political party, would not fall within that provision. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Barac [2013] MHLO 142 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "After having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation [e.g. Inheritance Tax] and be able to create Trusts where beneficial." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bishop [2013] MHLO 141 (LPA) — The donor appointed attorneys to act jointly and severally and included the following provision: "I direct that my attorneys shall endeavour to act jointly on decisions wherever possible. They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made." On the application of the Public Guardian the provision was severed as being incompatible with a joint and several appointment. Although in the guidance section, it was expressed in mandatory terms and was in substance a restriction. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
The Local Authority v Mrs D [2013] EWHC B34 (COP), [2013] MHLO 140 — "These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR. ... However, despite this non-admission of liability, the Local Authority had offered in compromise: (a) an apology to Mrs D for the delay in bringing these proceedings; (b) to pay a sum of £15,000 to Mrs D; (c) to pay the reasonable costs of the action incurred by Mrs D's litigation friend; (d) to pay a sum of £12,500 to her husband Mr D; (e) to pay Mr D's reasonable costs of the action. ... For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of ..→2014-03-052013 cases, Deprivation of liberty, No summary, Transcript
AB v LM [2013] EWHC 1234 (COP), [2013] MHLO 139 — "I find on paying close attention to Dr P's advice, but also considering the contribution of Dr G, that Lisa does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been full to sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for Lisa would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality." 2014-02-152013 cases, Capacity to consent to sexual relations, Missing from Bailii, No summary, Transcript
Arshad v Court of Magistrates Malta [2013] EWHC 3619 (Admin), [2013] MHLO 138 — Extradition case with mental health background. [Summary required.] 2013-12-302013 cases, No summary, Repatriation cases, Transcript
R v Yusuf (Nadia Ali) [2013] EWCA Crim 2077, [2013] MHLO 137 — The appellant sought a restricted hospital order in place of an IPP sentence, but was unsuccessful as her medical evidence addressed the current situation rather than the situation at the time of sentencing. 2013-12-302013 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R (McKay) v SSJ [2013] EWHC 3728 (Admin), [2013] MHLO 136 — Permission to apply for judicial review of the decision to refer the claimant prisoner to a prison Dangerous and Severe Personality Disorder (DSPD) unit for assessment was refused because it was 'a classic example of a situation in which two experts disagree' and it was not for the court to interfere and substitute its own view. 2013-12-302013 cases, Brief summary, Miscellaneous, Transcript
R v Kenyon (Lindsay) [2013] EWCA Crim 2123, [2013] MHLO 135 — Unsuccessful appeal against eight-month sentence for eight offences of neglect of a person who lacks capacity contrary to MCA 2005 s44. 2013-12-302013 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Transcript
R v Anderson (Darren Gabriel) [2013] EWCA Crim 2212, [2013] MHLO 134 — Appellant sought restricted hospital order, in place of IPP and s45A hybrid order, but was unsuccessful. 2013-12-302013 cases, Brief summary, Hybrid order cases, Missing from Bailii, Transcript
Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133 — Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area). 2013-12-302013 cases, Best interests, Brief summary, Missing from Bailii, Transcript
R (MM) v SSWP [2013] EWCA Civ 1565, [2013] MHLO 132 — (1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed. 2013-12-302013 cases, Brief summary, ICLR summary, Transcript, Welfare benefits cases
R v Odiowei [2013] EWCA Crim 2253, [2013] MHLO 131 — The appellant sought a restricted hospital order in place of a life sentence, relying on two recent medical reports which were critical of previous reports. The matter was adjourned for six weeks to obtain responses from the previous reports' authors. 2013-12-302013 cases, Brief summary, Life sentence cases, Missing from Bailii, Transcript
R v G (A) [2013] EWCA Crim 2256, [2013] MHLO 130 — Unsuccessful appeal against restriction order. [Summary required.] 2013-12-302013 cases, Missing from Bailii, No summary, Restriction order cases, Transcript
Obrey v SSWP [2013] EWCA Civ 1584, [2013] MHLO 129 — (1) The Upper Tribunal had not erred in law in finding that the cessation of Housing Benefit after 52 weeks as a hospital patient (which indirectly discriminated against the mentally ill) was justified . (2) The Court of Appeal discussed the limitations on appeals against the specialist Upper Tribunal. 2013-12-302013 cases, Brief summary, Transcript, Welfare benefits cases
RGB v Cwm Taf Health Board [2013] EWHC B23 (COP), [2013] MHLO 128 (COP) — At a time when she had been assessed to have capacity, Mrs B left her husband and did not wish him to see her. On the basis of these wishes, when she was admitted to hospital with dementia Mr B was refused access. The husband unsuccessfully sought a declaration that the Health Board had acted unlawfully. 2013-12-302013 cases, Best interests, Brief summary, Transcript
Re P (Caesarian) [2013] MHLO 127 (COP) — The press has reported this case as follows: Peter Jackson J decided that, in the event of a Caesarian scar rupturing during labour, it was in P's best interests that doctors could intervene and perform a Caesarean section. 2013-12-302013 cases, No summary, No transcript, Other capacity cases
R v Fry (David George) [2013] EWCA Crim 2337, [2013] MHLO 126 — Unsuccessful appeal against conviction. Summary from judgment: "The central complaints are that his legal team (a) failed to ensure that he was mentally and/or emotionally able to decide whether or not on give evidence; (b) failed to ensure that he properly understood that an adverse inference might be drawn by the jury if he did not give evidence; (c) failed to ensure that he properly understood that if he did not give evidence the jury would have no account from him as to the allegation made by SB, given that he had declined to answer questions during his police interview about those allegations; (d) failed to make the judge aware of his mental difficulties before she decided whether or not the jury should be directed that they might, subject to various conditions, draw an adverse inference from his failure to give evidence; (e) failed to place evidence of his mental condition before the jury to explain his failure to give evidence; and (f) in the circumstances to which we have ..→2013-12-302013 cases, Missing from Bailii, No summary, Other criminal law cases, Transcript
A Local Authority v C [2013] EWHC 4036 (Fam), [2013] MHLO 125 — C had long-standing mental health problems and her two children had previously been removed from her. (1) Under the inherent jurisdiction Parker J made an anticipatory declaration that it was lawful for C's third baby to be removed immediately upon delivery, in order to safeguards the child's interests, on the understanding that the local authority would apply for an emergency protection order or an interim care order at the first possible moment. (2) No evidence was heard from C, and a litigation friend was not appointed, in order to avoid C being informed, the judge (and local authority solicitor) thinking that that (a) Official Solicitor would become C's solicitor so the solicitor-client duty of disclosure would apply, and (b) the only exception to that duty is when the client consents. 2013-12-222013 cases, Brief summary, Miscellaneous, Transcript
R (Greenough) v SSJ [2013] EWHC 3112 (Admin), [2013] MHLO 124 — The decision not to authorise exceptional Legal Aid funding for representation at an inquest into the death of Paul Shovelton (who died in his own home on the day following his discharge from hospital) was lawful. 2013-12-212013 cases, Miscellaneous, No summary, Transcript
R (Muhammad) v SSHD [2013] EWHC 3157 (Admin), [2013] MHLO 123 — Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused. 2013-12-212013 cases, Brief summary, Other capacity cases, Repatriation cases, Transcript
Kirklees MBC 11 004 229 [2013] MHLO 122 (LGO/PHSO) — Ombudsmen find maladministration in case involving deprivation of liberty. [Summary required.] 2013-12-212013 cases, LGO decisions, No summary, Transcript
TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing. 2013-12-202013 cases, Brief summary, Other capacity cases, Transcript
Re Whiting [2013] EWHC B27 (COP), [2013] MHLO 119 — Social services sought to have Leslie Whiting committed to prison for breach of a Court of Protection injunction. The alleged breaches were in August-December 2012 and the court application was made in January 2013 but, owing to procedural irregularities, the hearing did not take place until December 2013. The lack of an intellectually rigorous relationship between the lawyers and the social workers meant that three of the four allegations were inadequately drafted and based on insufficient evidence to meet the criminal standard of proof. Despite the fourth allegation being established, the judge declined to take any action because a year had passed and there had been no subsequent allegations. The injunction, however, was continued for a further 12 months. 2013-12-202013 cases, Brief summary, Other capacity cases, Transcript
West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2013] MHLO 118 — The facts can be found in the summary of the Court of Appeal's judgment. The Supreme Court allowed Dr Chhabra's appeal, granting an order restraining the Trust from (a) pursuing any of the confidentiality concerns contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and (b) pursuing any confidentiality concerns without first re-starting and completing an investigation under its policy D4A. 2013-12-192013 cases, Brief summary, Miscellaneous, Transcript
G v Scottish Ministers sub nom G v MHTS [2013] UKSC 79, [2013] MHLO 117 — This 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 tribunal's decision to make no order was lawful. The Supreme Court took the opportunity to clarify the nature of decision-making under section 264(2) Mental Health (Care and Treatment) (Scotland) Act 2003, and the factors which are relevant to the proper application of that section and of other provisions of the Act. 2013-12-182013 cases, Brief summary, Scottish cases, Transcript
Re P (A Child) [2013] EWHC 4048 (Fam), [2013] MHLO 116 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - full judgment, including detailed chronology. [Summary required.] 2013-12-172013 cases, No summary, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4037 (Fam), [2013] MHLO 115 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment. [Summary required.] 2013-12-172013 cases, Brief summary, Other capacity cases, Transcript
YLA v PM [2013] EWHC 4020 (COP), [2013] MHLO 114 — There was a very significant possibility that PM married YLA and had a child with her for reasons solely to do with his immigration status. Parker J made interim declarations including that YLA lacked capacity to consent to sexual relations or marriage, or to decide where she should live, and provided general guidance on such forced marriage cases. 2013-12-162013 cases, Brief summary, Capacity to consent to sexual relations, Missing from Bailii, Transcript
R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD [2013] EWCA Civ 1561, [2013] MHLO 113 — Unsuccessful appeal in hunger strike deportation case. [Summary required.] 2013-12-162013 cases, ICLR summary, Repatriation cases, Transcript
R (Muaza) v SSHD [2013] EWHC 3764 (Admin), [2013] MHLO 112 — "These two cases raise common issues over the lawfulness of the exercise by the Secretary of State for the Home Department of her powers of detention in respect of immigration detainees whose refusal to take food and fluids causes them life threatening physical conditions, and over whether there comes a stage at which such a detainee's continued detention after the refusal to take food or fluids involves a breach of rights under Articles 2 and 3 of the European Convention on Human Rights." [Summary required.] 2013-12-152013 cases, Missing from Bailii, No summary, Repatriation cases, Transcript
R v Fort [2013] EWCA Crim 2332, [2013] MHLO 111 — (1) The sentencing judge erred in concluding that the appellant would continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated, and therefore erred in imposing a sentence of custody for life as opposed to a s37/41 hospital order. (2) The judge's order under s45A was unlawful, because such an order could not be made on someone who was under 21 at the time of conviction (and was thus being considered for a sentence of custody for life, as opposed to a sentence of imprisonment, as would be the case on a person over 21 at the date of conviction). 2013-12-152013 cases, Brief summary, Hybrid order cases, Life sentence cases, Transcript
Re PO: JO v GO [2013] EWHC 3932 (COP), [2013] MHLO 110 — Judgment relating to Hague Convention on the International Protection of Adults 2000 and MCA 2005 sch 3. [Summary required.] 2013-12-132013 cases, No summary, Other capacity cases, Transcript
Cuthbertson v Rasouli (2013) SCC 53, [2013] MHLO 109 — Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent. 2013-12-122013 cases, Brief summary, Other capacity cases, Transcript
R v Farooqi [2013] EWCA Crim 1649, [2013] MHLO 108 — Unsuccessful criminal appeal based partly on the misconduct of a trial advocate, in which the Lord Chief Justice comments on the advocate's role. 2013-12-122013 cases, Brief summary, Other criminal law cases, Transcript
Re Devillebichot (deceased) [2013] EWHC 2867 (Ch), [2013] MHLO 107 — The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence. 2013-12-122013 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4383 (Fam), [2013] MHLO 106 — Decision of Charles J on reporting restrictions in 'forced caesarian' case. [Summary required.] 2013-12-112013 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
UF v A Local Authority [2013] EWHC 4289 (COP), [2013] MHLO 105 — Under Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013/480, Legal Aid for MCA 2005 s21A appeals is non-means-tested for as long as the relevant DOLS standard authorisation is in force. In this case the Ministry of Justice and the Legal Aid Agency confirmed that Legal Aid could continue if the court extends the standard authorisation for the duration of the case. 2013-12-092013 cases, Brief summary, Deprivation of liberty, Transcript
ACCG v MN [2013] EWHC 3859 (COP), [2013] MHLO 104 — The Court of Protection may, exceptionally, in determining whether a local authority has breached convention rights, consider best interests beyond the available options. "[86] I find therefore that: (i) As restated by Baroness Hale in Aintree 'the court has no greater powers than the patient would have if he were of full capacity'. (ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities. (iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s7(1)(b) HRA, conduct an assessment of the person's best ..→2013-12-072013 cases, Best interests, No summary, Transcript
Re P (A Child) (2013) EW Misc 20 (CC), [2013] MHLO 103 — Care proceedings judgment in 'Italian forced caesarian' case. [Summary required.] 2013-12-032013 cases, Miscellaneous, No summary, Transcript
R v Edgington [2013] EWCA Crim 2185, [2013] MHLO 102 — The appellant had been sentenced to life imprisonment for murder and attempted murder, with a minimum term of 37 years. (1) Appeal against conviction dismissed, as the judge was not wrong to prevent counsel from re-examining the defence expert on whether she would 'as a matter of practice ... ever be released' from a hospital order. (2) Appeal against sentence dismissed as it was not manifestly excessive. 2013-12-032013 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101 — A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded. 2013-11-272013 cases, Bias, Brief summary, Transcript, Upper Tribunal decisions
R (Z) v Camden and Islington NHS Foundation Trust [2013] EWCA Civ 1425, [2013] MHLO 100 — Unsuccessful challenge to (1) detention under s2 (a subsequent tribunal decision to discharge was consistent with a lawful initial detention) and (2) decision not to hold hospital managers' hearing (it was reasonable to wait a few days for the tribunal). 2013-11-192013 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript
Re VT (minimally conscious state): An NHS Foundation Trust v VT [2013] EWHC B26 (Fam), [2013] MHLO 99 (COP) — The Trust obtained a declaration covering a decision not to provide intensive care or resusistation in specified circumstances. 2013-11-192013 cases, Best interests, Brief summary, Transcript
R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] MHLO 98 — "This claim for judicial review arises out of the suicide of Mrs Jane Antoniou... At the time she was a patient detained ... under section 3 of the Mental Health Act 1983... For the reasons given above, we have concluded that, given all the circumstances of this case, in particular the fact that there was a properly constituted and conducted Inquest, there was no obligation under Article 2 of the ECHR to have, in addition, a separate independent investigation into the death of JA, either from the outset or from any time thereafter. We have also concluded that, taken as a whole, the investigation process into the death of JA was independent, effective and prompt. Lastly, we have concluded that there was no unlawful discrimination against JA or the claimant by any of the defendants in the way that JA's death was investigated." [Summary required.] 2013-11-192013 cases, ICLR summary, Inquests, Transcript
Re M (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP), [2013] MHLO 97 — "These Court of Protection proceedings under Section 21A of the Mental Capacity Act 2005 were brought in May 2013 on behalf of a 67-year-old lady named M. ... M wants to return to her own home, a bungalow that, until she went into residential care, she had shared for much of the time with her partner of 30 years." [Summary required.] 2013-11-122013 cases, Deprivation of liberty, No summary, Transcript
A Local Authority v SY [2013] EWHC 3485 (COP), [2013] MHLO 96 — "It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage." [Summary required.] 2013-11-122013 cases, Capacity to consent to sexual relations, No summary, Transcript
Aintree University Hospitals NHS Foundation Trust v David James [2013] UKSC 67, [2013] MHLO 95 — "This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?" [Summary required.] 2013-10-312013 cases, Best interests, No summary, Transcript
MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94 — (1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case ..→2013-10-232013 cases, Brief summary, Displacement, ECHR, Transcript
DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93 — This is the latest in a series of cases considering personality disorder, refusal to engage in treatment, and the question of whether the 'appropriate medical treatment is available' test in s72 is met. (1) Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration - although a patient may well continue to satisfy the conditions for detention despite refusing to engage. (2) In this case, the tribunal did not seem to have asked itself whether the deterioration after recall might not have been a response to detention rather than a manifestation of his mental disorder: this was relevant to the questions of 'nature/degree' and of whether the available treatment was appropriate, so the decision was set aside. 2013-10-232013 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
A Local Authority v ED [2013] EWHC 3069 (COP), [2013] MHLO 92 — "The issues: (1) Does she have litigation capacity? (2) Does she have capacity to make decisions as to: (i) Where she should live; (ii) Contact; (iii) Her personal care needs; (iv) The removal of her pubic hair; (v) Whether or not she can consent to give an Achieving Best Evidence interview. (3) If the answer to any of the above is 'no', what are her best interests in respect of each? (4) Should there be a protocol governing the enquiries to be made, (which could be used in the investigation by the police/Local Authority and/or Official Solicitor if in post), of purported allegations made by her as to, for example, physical assaults upon her? If yes, what should be the operative terms and conditions of such a protocol?" [Summary required.] 2013-10-232013 cases, Best interests, COP costs cases, No summary, Transcript
A Local Authority v TZ [2013] EWHC 2322 (COP), [2013] MHLO 91 — "The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations." [Summary required.] 2013-10-042013 cases, Capacity to consent to sexual relations, No summary, Transcript
R (Moosa) v LSC [2013] EWHC 2804 (Admin), [2013] MHLO 90 — In Court of Protection proceedings, the patient's mother was financially ineligible for Legal Aid (the equity in her home was about £65,000 over the £100,000 limit) so the patient's brother was added as a party purely because he would be financially eligible. The LSC refused him funding, for reasons including that the mother should fund the case. Permission to apply for judicial review of that decision was refused. 2013-09-172013 cases, Brief summary, Miscellaneous, Transcript
Re Ian Brady [2013] MHLO 89 (FTT) — After a public hearing the tribunal issued a notice on 28/6/13 that: 'Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.' The full reasons, dated 11/12/13, were published on 24/1/14: (1) When deciding to hold a public hearing the tribunal had concluded that it was not satisfied that Ian Brady suffered from schizophrenia but, in reaching the opposite conclusion when considering the detention criteria, it did not consider itself bound by its previous finding of fact. (2) The tribunal set out at length the reasons for concluding that the detention criteria were met in this case. 2013-09-142013 cases, Brief summary, First-tier Tribunal decisions, No transcript, Publicity
Re Boff [2013] MHLO 88 (LPA) — The donor of a Lasting Power of Attorney cannot appoint a replacement attorney to succeed another replacement attorney. 2013-09-132013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Neary v LB Hillingdon [2013] MHLO 87 (SEC) — Mark Neary's appeal against Hillingdon's decision to end Housing Benefit was unsuccessful: as he was estranged from his wife, who lived separately in a jointly-owned property, his share of the property counted towards the statutory limit for Housing Benefit purposes. 2013-09-082013 cases, Brief summary, Miscellaneous, Transcript
Re Goodwin [2013] MHLO 86 (LPA) — The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: "She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing 'Lasting Power of Attorney' in place during the donor's lifetime." On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Griggs [2013] MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that "My Remaining attorney is to choose which replacement attorney is to act as my other attorney." Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian's application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re CM (Judicial Review) (2013) CSOH 143, [2013] MHLO 84 — "The petitioner asks the court to declare that the respondents' 'policy of a complete smoking ban and prohibition of possession of tobacco products by patients at the State Hospital' is unlawful; and also to declare that the respondents' policy has breached the petitioner's human rights, specifically article 8 of the European Convention on Human Rights (right to respect for private life and home) as a stand‑alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination) and the first protocol, article 1 ECHR (right not to be deprived of property) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination). ... I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way. In that it relied on compulsion, the decision was contrary to the national policy which it purported to implement. The decision should ..→2013-08-302013 cases, No summary, Scottish cases, Transcript
Re K (cancer) [2013] MHLO 83 (COP) — The press has reported this case as follows: (1) It was suspected that K had cancer of the womb, but she was took frightened to undergo an diagnostic examination. (2) Moylan J decided that (a) K lacked capacity to take decisions about medical treatment; (b) it was in her best interests to undergo a hysteroscopy, which is more detailed and invasive than the normal ultrasound, on the basis that her fear meant she would be under general anaesthetic anyway. 2013-08-302013 cases, Best interests, Brief summary, Transcript
R (LV) v SSJ [2013] EWCA Civ 1086, [2013] MHLO 82 — The applicant had been given an IPP sentence then transferred to hospital under s47/49. On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of Article 5(4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court's refusal of permission to apply for judicial review). 2013-08-302013 cases, Brief summary, Deprivation of liberty, Missing from Bailii, Transcript
MK v JK [2013] EWHC 4334 (COP), [2013] MHLO 81 — "MK made an application to the court to be appointed Personal Welfare Deputy for JK and that is how these proceedings commenced. However, all parties accept that the one issue is residence and that it is to be determined by a court ... it is in his best interests to move to the CNC Home on the basis that his placement at the Home will be retained for eight weeks so that he has somewhere to return should the move to the CNC Home fail... I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like ... Article 8 of the Convention rights ... I do think that putting in place a State-appointed decision-maker – which is what a Deputy is – is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to ..→2013-08-302013 cases, Best interests, No summary, Transcript
AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80 — It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.] 2013-08-242013 cases, Deprivation of liberty, Detailed summary, Transcript, Upper Tribunal decisions
A Local Authority v WMA [2013] EWHC 2580 (COP), [2013] MHLO 79 — "The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty. ... there is no doubt in my mind it is WMA's best interests to move to B ... if one looks at WMA's isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. ... I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty ... The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the ..→2013-08-242013 cases, Best interests, Deprivation of liberty, No summary, Transcript
An NHS Trust v DE [2013] EWHC 2562 (Fam), [2013] MHLO 78 (COP) — "In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification." [Summary required.] 2013-08-162013 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
Pearce v Beverley (2013) EW Misc 10 (CC), [2013] MHLO 77 — "This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. ... In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007." [Summary required.] 2013-08-162013 cases, No summary, Other capacity cases, Transcript
R (JG) v LSC [2013] EWHC 804 (Admin), [2013] MHLO 76 — Payment for expert evidence. [Summary required; detailed external review available.] 2013-08-122013 cases, Detailed summary, Miscellaneous, Missing from Bailii, Transcript
Re Baxter [2013] MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am ..→2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Spaas [2013] MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.] 2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal. 2013-08-102013 cases, Brief summary, Missing from Bailii, Powers, Transcript
Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, [2013] MHLO 72 — "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then ..→2013-08-082013 cases, Detailed summary, Other capacity cases, Transcript
Loughlin v Singh [2013] EWHC 1641 (QB), [2013] MHLO 71 — "On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the ..→2013-08-082013 cases, No summary, Other capacity cases, Transcript
R v Turbill [2013] EWCA Crim 1422, [2013] MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions." [Summary required; detailed external summary available.] 2013-08-082013 cases, Criminal law capacity cases, ICLR summary, Transcript
RC v CC [2013] EWHC 1424 (COP), [2013] MHLO 68 — "The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC's incapacity that enables an application to be made." [Summary required.] 2013-08-082013 cases, No summary, Other capacity cases, Transcript
An NHS Foundation Trust v M and K [2013] EWHC 2402 (COP), [2013] MHLO 67 — "The painful and difficult issues now to be faced by M's family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition." [Summary required.] 2013-08-082013 cases, No summary, Other capacity cases, Transcript
R v Ahmed [2013] EWCA Crim 1393, [2013] MHLO 66 — Appellant unsuccessfully sought restricted hospital order in place of an IPP sentence. 2013-08-082013 cases, Brief summary, MHLR summary, Sentence appeal cases, Transcript
R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961, [2013] MHLO 65 — Assisted suicide. [Summary required; detailed external summary available.] 2013-08-082013 cases, ICLR summary, Other criminal law cases, Transcript
Republic of South Africa v Dewani (2013) EW Misc 8 (MC), [2013] MHLO 64 — Immigration case. [Summary required.] 2013-08-082013 cases, No summary, Repatriation cases, Transcript
R (Modaresi) v SSH [2013] UKSC 53, [2013] MHLO 63 — The Secretary of State's refusal to refer case under s67 was lawful. 2013-08-082013 cases, ICLR summary, MHLR summary, Other Tribunal cases, Transcript
R (T (Sri Lanka)) v SSHD [2013] EWHC 1093 (Admin), [2013] MHLO 62 — Immigration case. [Summary required.] 2013-08-082013 cases, No summary, Repatriation cases, Transcript
PC v City of York Council [2013] EWCA Civ 478, [2013] MHLO 61 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband." [Summary required; detailed external summary available.] 2013-08-082013 cases, Capacity to consent to sexual relations, Detailed summary, ICLR summary, Transcript
R (Faulkner) v SSJ [2013] UKSC 23, [2013] MHLO 60 — Quantum of compensation for delayed Parole Board hearing. [Summary required; detailed external summary available.] 2013-08-082013 cases, Detailed summary, ICLR summary, Prison law cases, Transcript
TW v LB Enfield [2013] EWHC 1180 (QB), [2013] MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that ..→2013-08-082013 cases, Brief summary, Nearest relative, Transcript
A Local Authority v HS [2013] EWHC 2410 (COP), [2013] MHLO 58 — "These applications for costs against the local authority are made by the Official Solicitor on behalf of the First Respondent and by the Third Respondent, HLS, who is the brother of the First Respondent." [Summary required.] 2013-08-012013 cases, COP costs cases, Missing from Bailii, No summary, Transcript
Re Joan Treadwell (Deceased); OPG v Colin Lutz [2013] EWHC 2409 (COP), [2013] MHLO 57 — "This judgment concerns an application by the Public Guardian to enforce a security bond in respect of unauthorised gifts made by the late Mrs Joan Treadwell’s deputy for property and affairs, Colin Lutz." [Summary required.] 2013-08-012013 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
SSJ v SB [2013] UKUT 320 (AAC), [2013] MHLO 56 — Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty. 2013-08-012013 cases, Brief summary, Discharge conditions, MHLR summary, Transcript, Upper Tribunal decisions
Sandwell MBC v RG [2013] EWHC 2373 (COP), [2013] MHLO 55 — "I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. ... Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled." [Summary required.] 2013-07-302013 cases, Capacity to consent to sexual relations, No summary, Transcript
R (Lee-Hirons) v SSJ [2013] EWHC 1784 (Admin), [2013] MHLO 54 — "For the detailed reasons set out above I am satisfied that the decision to recall the Claimant was lawful because there had been a deterioration in his mental health since the hearing before the Tribunal. I find that there is a duty to give the patient who is being recalled oral reasons for that decision. I am satisfied that the Claimant was told of the reasons for his recall. I therefore dismiss the claim for damages for false imprisonment and breaches of article 5 of the ECHR, and I dismiss the claim for a declaration." [Summary required.] 2013-07-202013 cases, MHLR summary, Ministry of Justice, Transcript
SRA decision: Nnadozie Okpokiri of Dozie and Co Solicitors [2013] MHLO 53 (SRA) — The SRA closed down Dozie and Co on the grounds that (1) it had reason to suspect dishonesty on the part of Nnadozie Okpokiri (director) and (2) it was satisfied that he had failed to comply with the conduct and accounts rules. 2013-07-192013 cases, Brief summary, SRA decisions, Transcript
Re Clarke [2013] EWCA Civ 811, [2013] MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters. 2013-07-152013 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
R (Afework) v LB Camden [2013] EWHC 1637 (Admin), [2013] MHLO 51 — The judge held that as a matter of law s117(2) is only engaged vis-à-vis accommodation if: '(i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition"); (ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.' No obvious reason is given for the third requirement, which is probably wrongly decided (or, as the COP Newsletter puts it, 'will fall to be considered again in due course'). 2013-07-042013 cases, After-care, Brief summary, MHLR summary, Transcript
GA v Betsi Cadwaladr University Local Health Board [2013] UKUT 280 (AAC), [2013] MHLO 50 — (1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.] 2013-07-042013 cases, Detailed summary, MHLR summary, Powers, Transcript, Upper Tribunal decisions
Re SK [2013] MHLO 49 — "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.] 2013-07-042013 cases, No summary, Other capacity cases, Transcript
Re SB (A Patient: Capacity To Consent To Termination) [2013] EWHC 1417 (COP), [2013] MHLO 48 — SB's desire for an abortion coincided with her stopping her medication for bipolar affective disorder, which led to the Trust seeking decisions on capacity and best interests. (1) Even if aspects of her decision-making were influenced by paranoid thoughts in relation to lack of support from her husband and her mother, SB also had a range of rational reasons, and had capacity to make the decision. (2) Interesting aspects to the case include: (a) the judge disagreed with the two psychiatrists who believed SB lacked capacity; (b) he appeared to consider the question of being 'unable' to make a decision separately in relation to its ordinary meaning (whether SB had in fact made a decision, para 38) and its legal meaning by reference to MCA 2005 s3(1) (whether she could understand the relevant information etc, para 39); (c) the Official Solicitor asked for his appointment as litigation friend to be ended, and this request was granted (para 30); (d) the judge granted this request ..→2013-06-032013 cases, Best interests, Brief summary, Transcript
EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701, [2013] MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.] 2013-05-122013 cases, Brief summary, MHLR summary, No transcript, Powers
Pitt v Holt [2013] UKSC 26, [2013] MHLO 46 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point. 2013-05-112013 cases, Brief summary, Other capacity cases, Transcript
SL v Westminster City Council [2013] UKSC 27, [2013] MHLO 45 — "The short issue raised by this appeal is whether the respondent (SL), a failed asylum-seeker, was at the relevant time in need of 'care and attention', requiring the provision of accommodation by the local authority under section 21(1)(a) of the National Assistance Act 1948. Burnett J decided that he was not, but that decision was reversed by the Court of Appeal ... I consider that Burnett J reached the right result for substantially the right reasons." [Summary required.] 2013-05-112013 cases, Community care, No summary, Transcript
Re GM: MJ and JM v The Public Guardian [2013] EWHC 2966 (COP), [2013] MHLO 44 — "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place." [Summary required.] 2013-05-072013 cases, No summary, Other capacity cases, Transcript
PS v LP [2013] EWHC 1106 (COP), [2013] MHLO 43 — (1) It was in LP's best interests not to see her estranged family: before losing capacity due to a cerebral aneurism, she had taken the decision that her future was with her new partner and that she wished to break with the past. (2) Contact should only commence in future if LP becomes capable of expressing a view to that effect, and the family should be kept informed in relation to this approximately every six months. 2013-05-052013 cases, Best interests, Brief summary, Transcript
R v Dixon [2013] EWCA Crim 465, [2013] MHLO 42 — (1) Despite the appellant's intellect and condition the judge was entitled to permit the jury to draw an adverse inference from his failure to give evidence. (2) The appellant argued that fresh medical evidence showed the judge's decision was wrong, but this evidence was not admitted. (3) The appellant had been able meaningfully to participate in his trial, which was fair, and the conviction was safe. (4) The minimum term of the appellant's detention at Her Majesty's pleasure was reduced from 14 to 13 years. 2013-05-052013 cases, Brief summary, MHLR summary, Other criminal law cases, Transcript
R (T) v LSC [2013] EWHC 960 (Admin), [2013] MHLO 41 — The LSC's decision in care proceedings to agree prior authority for a multi-disciplinary assessment at a lower amount than that sought was unlawful because of the lack of reasons given, and was quashed. 2013-05-052013 cases, Brief summary, Miscellaneous, Transcript
R v Foye [2013] EWCA Crim 475, [2013] MHLO 40 — The rule in s2(2) Homicide Act 1957 that the burden of establishing diminished responsibility lies on the defendant, on the balance of probabilities, is not incompatible with the presumption of innocence contained in Article 6(2). 2013-05-052013 cases, Brief summary, Diminished responsibility cases, Transcript
Bialek v Circuit Court in Warsaw Poland [2013] EWHC 930 (Admin), [2013] MHLO 39 — Extradition case with psychiatric element. [Summary required.] 2013-05-052013 cases, Missing from Bailii, No summary, Repatriation cases, Transcript
Stoke City Council v Maddocks [2013] EWHC 1137 (COP), [2013] MHLO 38 — (1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) ..→2013-05-042013 cases, Brief summary, Other capacity cases, Transcript
R v AJR [2013] EWCA Crim 591, [2013] MHLO 37 — The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989. 2013-05-042013 cases, Brief summary, ICLR summary, Sentence appeal cases, Transcript
Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] MHLO 36 — "Mr Leslie Stolkin ..., some seven weeks before his death, executed a codicil. This case concerns the validity of that document. ...[O]ne of the deceased's sons, Mr Gary Stolkin ... disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. ... In my judgment, the Disputed Codicil is valid, and it should be admitted to probate." [Summary required.] 2013-05-042013 cases, No summary, Other capacity cases, Transcript
Coombs v North Dorset NHS PCT [2013] EWCA Civ 471, [2013] MHLO 35 — "Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? ... In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private ..→2013-05-032013 cases, ICLR summary, Miscellaneous, Transcript
RC v NHS Islington [2013] UKUT 167 (AAC), [2013] MHLO 34 — "This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. ... The grounds of appeal argue that the ... policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted. ... The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences. Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal. Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been ..→2013-04-222013 cases, No summary, Transcript, Upper Tribunal decisions
Baker Tilley (A Firm) v Makar [2013] EWHC 759 (QB), [2013] MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. 2013-04-052013 cases, Brief summary, Other capacity cases, Transcript
MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32 — The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical ..→2013-04-052013 cases, Brief summary, Transcript, Upper Tribunal decisions
DD v Durham County Council [2013] EWCA Civ 96, [2013] MHLO 31 — DD wished to bring proceedings against local authorities arguing that (a) the two assessing AMHPs owed a duty to him (a legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held); (b) that by making the application for admission, each was in breach of duty; and (c) that the county council was responsible vicariously for that breach of duty. (1) The Court of Appeal (reversing the High Court decision in this respect) decided that the argument was sufficient for leave under s139 to bring proceedings to be granted. (2) DD should not have been made responsible for the costs of Middlesbrough City Council. 2013-03-282013 cases, Brief summary, Miscellaneous, Transcript
DD v Durham County Council & Anor [2013] EWCA Civ 96, [2013] MHLO 31 — "DD appeals against the decision refusing leave and that part of the order relating to the payment of Middlesbrough City Council's costs. There is no appeal against the decision that Durham would be the body liable for any breach of duty or infringement of the Human Rights Act by the second AMHP. ... It was contended by Ms Lieven QC, on behalf of DD, that the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty. It was Ms Lieven QC's primary case that under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps ..→2013-03-282013 cases, Miscellaneous, No summary, Transcript
R (Copson) v Dorset Healthcare University NHS Foundation Trust [2013] EWHC 732 (Admin), [2013] MHLO 30 — "This is a claim by the claimant, Rosalind Copson, for an order quashing the decision of the defendant, Dorset Healthcare University NHS Foundation Trust, on 14 June 2012 to implement its Mental Health Urgent Care Services Project for the reconfiguration of mental health services in the west of Dorset. ... The claim is put on two grounds. First, it is said that the defendant failed, before reaching its decision, to carry out an adequate consultation with users of its mental health services, chiefly in that it failed to provide to those users sufficient information to enable them to engage meaningfully with the proposals. Second, it is said that the defendant failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard, in the exercise of its functions, to the need to advance equality of opportunity. ... The claimant is a user of mental health facilities in Bridport, Dorset. The facilities that she uses include the in-patient facility at the Hughes Unit ..→2013-03-282013 cases, Miscellaneous, No summary, Transcript
R (Z) v Whittington Hospital [2013] EWHC 358 (Admin), [2013] MHLO 29 — "The claimant, Mrs Z, who very ably represented herself, was sectioned under the Mental Health Act shortly after giving birth to her first baby after a prolonged and very difficult labour. ... Miss Z says that looking at the reasons that were given at the time, which are recorded in a document signed by both doctors (Form A3, that is the formal sectioning document) the reasons that are there recorded are insufficient reasons to warrant her detention under the Mental Health Act." [Summary required.] 2013-03-282013 cases, MHLR summary, Miscellaneous, Missing from Bailii, Transcript
R (Das) v SSHD [2013] EWHC 682 (Admin), [2013] MHLO 28 — "The Claimant's submission in these proceedings is that at the time of the second period of detention she suffered from a mental illness, in the form of depression and post traumatic stress disorder ("PTSD"), and that in detaining her the Secretary of State acted contrary to, or without having proper regard to, his own policy regarding detention of persons suffering from mental illness. This means that her detention was unlawful, as being in breach of the Claimant's legitimate expectation that the Secretary of State would take into account and abide by his policy in this regard. ... The Claimant is entitled to a declaration that the entire second period of detention was unlawful. However, she is only entitled to nominal damages for false imprisonment in relation to that detention." [Summary required.] 2013-03-282013 cases, No summary, Repatriation cases, Transcript
R v Caress [2013] EWCA Crim 218, [2013] MHLO 27 — "In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence [a restricted hospital order] was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence." [Summary required.] 2013-03-272013 cases, MHLR summary, Missing from Bailii, Sentence appeal cases, Transcript
Bernard v SW London and St George's MH NHS Trust [2013] UKUT 58 (AAC), [2013] MHLO 26 — The medical member, questioning the RC, had stated 'I have no issues with the nature; it is chronic, relapsing, etcetera' but he had not formed a preconceived and concluded view (actual bias) or expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias). 2013-03-272013 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC), [2013] MHLO 25 — The patient had been visited by an independent doctor but did not rely on a report from him. The hospital argued that the tribunal should infer that the doctor had been instructed to prepare a tribunal report, that this report was not favourable to the patient, and that it concurred with the clinical team's opinion. The patient appealed, arguing that (in light of the hospital's argument) the panel should have recused themselves for there to be a fair hearing. (1) In relation to the hospital's argument: (a) as a matter of practical reasoning, it could never succeed (invalid inferences); (b) as a matter of law, it may not be permissible (requiring inferences to be drawn from other inferences); and (c) it failed to take into account the context: 'The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine ..→2013-03-272013 cases, Brief summary, Transcript, Upper Tribunal decisions
MS v North East London Foundation Trust [2013] UKUT 92 (AAC), [2013] MHLO 24 — In this case it was argued that the tribunal had addressed the s3 criteria for a patient who was detained under s2. (1) The Upper Tribunal decided that the First-tier Tribunal had not misdirected itself in this way. (2) However, the judge considered the criteria: he set out why he considered them different (primarily the different purpose of each section) but did not define how they were different. He concluded: 'This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.' (3) The tribunal decision was set aside because, faced with a medical report which had wrong language and a confused focus, the tribunal had failed to analyse the evidence to ..→2013-03-272013 cases, Brief summary, Transcript, Upper Tribunal decisions
R v Coley [2013] EWCA Crim 223, [2013] MHLO 23 — "We have heard these three cases in succession because they have some features in common. Each raises a (different) question connected with the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism. Each calls, however, for consideration of its very particular facts. Neither individually nor collectively do they provide an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally. We know that this area of the law is under active consideration by the Law Commission, which work will, we think, be of value. Although there have historically been very few cases which raise insanity, that has been because the statutory provisions governing the disposal orders which must be made if there is a verdict of insanity have historically inhibited attempts to rely on it. More recent changes in those disposal provisions may well lead to an increase in numbers. Any review must, ..→2013-03-272013 cases, No summary, Transcript, Unfitness and insanity cases
SRA decision: Billy Chucks of Chris Solicitors [2013] MHLO 22 (SRA) — "It is reported that whilst employed by various legal practices: Mr Chucks failed to comply with restrictions on his attendance imposed by a number of hospital trusts, and that he prepared a “consent to disclosure” request at a hospital for a client who has confirmed that he had not instructed Mr Chucks to act on his behalf, and that he improperly removed clients’ files/documentation without authority from a former employer. Those papers have not yet been returned. ... I FIND that Mr Billy Chucks, (Date of birth: 23 August 1975) of Flat 1, 701 Fulham Road, London SW6 5UL who is or was involved in legal practice but is not a solicitor has, in the Society’s opinion occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the Society’s opinion it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in ..→2013-03-272013 cases, No summary, SRA decisions, Transcript
Re Martin [2013] MHLO 21 (LPA) — The donor appointed two primary attorneys, A and B, to act jointly and severally, and three replacement attorneys, C, D and E. He included a valid provision to the effect that the D should replace B if B was unable to act, and then directed as follows: "In the event of my first attorney being unable to continue, E should act as Assistant to C (1st Replacement Attorney), and in the event of C being unable to continue, he should assume the power of Attorney." On the application of the Public Guardian this provision was severed because (applying Re Baldwin, above) the MCA does not permit a replacement attorney to be replaced, nor is it possible to direct an attorney or replacement attorney to act as assistant to another attorney or replacement attorney. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Black [2013] MHLO 20 (LPA) — The donor, a solicitor, appointed A and B as attorneys, to act jointly and severally. She imposed the following restriction: "A has been appointed solely to manage ABC Solicitors to enable continuing management of the Practice. B has been appointed to deal with all other financial matters both personal and business related, which do not specifically require a Solicitor of the Supreme Court." On the application of the Public Guardian the restriction was severed because it was incompatible with a joint and several appointment. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hart [2013] MHLO 19 (LPA) — The donor made an LPA for property and financial affairs. He was also the sole attorney under an EPA made by his wife and registered. In his LPA he authorised his attorneys to have access to his will and medical records, and then continued as follows: "This also applies to acting as Attorneys for my wife, whose EPA has been registered." On the application of the Public Guardian this provision was severed because an LPA may not be used to add anything to someone else's EPA. (The donor appears to have wrongly assumed that his own attorneys could take over his role as attorney for his wife.) [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
NT v FS [2013] EWHC 684 (COP), [2013] MHLO 18 — "This is an application by NT ("the Deputy") for authority to execute a statutory will on behalf of FS ("F"). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a will be made. There are a large number of Respondents to the application each of whom are potential beneficiaries under such a will. There are, however significant disputes between them as to the provisions of such a will." [Summary required.] 2013-03-262013 cases, No summary, Statutory will cases, Transcript
Aintree University Hospitals NHS Foundation Trust v David James [2013] EWCA Civ 65, [2013] MHLO 17 — "On 6th December 2012 Mr Justice Peter Jackson ... declined to make the declarations sought by the appellant, the hospital treating DJ, that subject to the agreement of his clinical team, it would be lawful, being in his best interests, for the following treatment to be withheld in the event of a clinical deterioration: cardiopulmonary resuscitation; invasive support for circulatory problems; renal replacement therapy in the event of deterioration in renal function." The Court of Appeal allowed the Trust's appeal. [Summary required.] 2013-03-262013 cases, Best interests, No summary, Transcript
R (Children's Rights Alliance for England) v SSJ [2013] EWCA Civ 34, [2013] MHLO 16 — "This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ([2012] EWHC Admin 8), by which he dismissed the appellant's application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom." [Summary required; detailed external summary available.] 2013-03-262013 cases, ICLR summary, Miscellaneous, Transcript
Mihailovs v Latvia 35939/10 [2013] ECHR 65, [2013] MHLO 15 — "The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights." 2013-03-262013 cases, ECHR, MHLR summary, Other capacity cases, Transcript
Lashin v Russia 33117/02 [2013] ECHR 63, [2013] MHLO 14 — "The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry." [Summary required; detailed external summary available.] 2013-03-262013 cases, ECHR, MHLR summary, Other capacity cases, Transcript
Re Buckley: The Public Guardian v C [2013] EWHC 2965 (COP), [2013] MHLO 13 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. ... Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA." 2013-03-262013 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Pender v DPP [2013] MHLO 12 (QBD) — An ASBO was imposed with a 'no begging' condition. A Crown Court appeal, based on uncontradicted medical evidence (that the appellant suffered learning difficulties, schizophrenia and severe nicotine addiction, and that begging was the manifestation of nicotine addiction), was unsuccessful. The Court of Appeal allowed an appeal by way of case stated, because the judge had failed to set out the factual basis for her factual conclusion (which was contrary to the medical evidence) that the appellant had been capable of complying with the ASBO. 2013-03-262013 cases, Brief summary, Criminal law capacity cases, No transcript
A Local Authority v K [2013] EWHC 242 (COP), [2013] MHLO 11 — "K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K's social welfare) for a best interests' determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family)." [Summary required; detailed external summary available.] 2013-03-262013 cases, Capacity to consent to sexual relations, No summary, Transcript
Turner v Phythian [2013] EWHC 499 (Ch), [2013] MHLO 10 — "Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. ... The second ground is that Iris lacked mental capacity to make the will. ... The third ground is that Iris did not know or approve of the contents of the will. ... I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will." [Summary required.] 2013-03-252013 cases, No summary, Other capacity cases, Transcript
ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69, [2013] MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.] 2013-03-252013 cases, Brief summary, Other capacity cases, Transcript
SSJ v MP [2013] UKUT 25 (AAC), [2013] MHLO 8 — "The Secretary of State had two grounds of appeal. One related to the tribunal’s finding on diagnosis; the other related to the decision not impose any conditions. ... I can only decide that, despite the errors of law, the tribunal’s decision should not be set aside. The result is that this decision provides in effect a declaration of the errors made in the tribunal’s decision." [Summary required.] 2013-03-252013 cases, No summary, Reasons, Transcript, Upper Tribunal decisions
B v R [2013] EWCA Crim 3, [2013] MHLO 7 — "This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant." [Summary required; detailed external summary available.] 2013-03-252013 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript
A PCT v LDV [2013] EWHC 272 (Fam), [2013] MHLO 6 — "The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?" [Summary required; detailed external summary available.] 2013-03-252013 cases, Deprivation of liberty, No summary, Other capacity cases, Transcript
Re P (fair trial); Knowsley MBC v P [2013] MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' ..→2013-02-102013 cases, Brief summary, No transcript, Other capacity cases
An NHS Trust v Dr A [2013] EWHC 2442 (COP), [2013] MHLO 4 — Dr A was refusing food in protest at a UK Border Agency decision. (1) He was suffering from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment. (2) It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. (3) (a) That treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. (b) However, he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder; although the physical disorder was in part a consequence of the mental disorder, it was not obviously either a manifestation or a symptom of the mental disorder. (c) The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as ..→2013-01-302013 cases, Best interests, Brief summary, Transcript
Re AW (Permanent Vegetative State); The NHS Trust v AW [2013] EWHC 78 (COP), [2013] MHLO 3 — AW was in a permanent vegetative state, having suffered a spontaneous, severe intra-cerebral haemorrhage in 2008. The NHS Trust responsible for AW's care sought a declaration that it would be lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, even though this would lead to AW's death. The application was supported by AW's family, by all the medical staff who looked after her, by the evidence of the expert witnesses provided reports, and by the Official Solicitor on behalf of AW herself. (1) The judge's findings were as follows: (a) AW is in a permanent vegetative state; (b) there will be no change or improvement in her condition; (c) there is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and (d) the suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan ..→2013-01-292013 cases, Best interests, Brief summary, Transcript
West London MH NHS Trust v Dr Chhabra [2013] EWCA Civ 11, [2013] MHLO 2 — (1) Various complaints had been made against Dr Chhabra, including in relation to breaches of patient confidentiality, and the case investigator's report stated that Dr Chhabra admitted to reading CPA notes and dictating reports on public transport. (2) Upon reading the case investigator's report the case manager decided to convene a disciplinary panel to consider the following allegations and to consider them as potential gross misconduct which could lead to dismissal: (a) that Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport (the complaint being made by another passenger who happened to be Head of Secure Services Policy at the Department of Health); (b) that she undertook dictation on at least two occasions whilst completing Mental Health Tribunal reports whilst on public transport (the complaint being made by a member of secretarial staff); (c) that whilst travelling to work on public transport she would often ..→2013-01-272013 cases, Brief summary, Miscellaneous, Transcript
Re P (abortion) [2013] EWHC 50 (COP), [2013] MHLO 1 — (1) The solicitor who was one of P's deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that '[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do'. [Summary based on press article; judgment now available.] 2013-01-252013 cases, Best interests, Brief summary, Missing from Bailii, Transcript

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