Category

2018 cases

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Case and summary Date added Categories
Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 — "In the early hours of 31 March 2001, Michael Parker (a celebrity entertainer who is better known by his stage name, Michael Barrymore) returned to his home with eight guests. ... In relation to Mr Parker, that arrest was to be effected by Det. Con. Susan Jenkins who had played a central role in the re-investigation and was well aware of the evidence: she believed she had reasonable grounds both to suspect Mr Parker of committing an offence and to conclude that it was necessary to effect his arrest. In the event, she was detained in traffic and a surveillance officer (P.C. Cootes) was ordered to effect the arrest, which he did. ... For these reasons, I would conclude that Stuart-Smith J was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, however, I have no doubt that had things been done as they should have been done (to quote Baroness Hale in Kambadzi), a lawful arrest would have been effected. Thus, I would allow this appeal and, in answer to the issue posed by the Master, declare that Mr Parker is entitled to nominal damages only." 2019‑04‑30 23:10:30 2018 cases, Cases, ICLR summary, Judgment available on Bailii


PB v Priory Group Ltd [2018] MHLO 74A Part 36 offer of £11,500 plus legal costs was accepted in this claim brought for unlawful detention and breach of Article 5. The patient had been detained under s5(2) when not an in-patient, and this section had lapsed for nearly seven hours before detention under s2 began. 2019‑04‑19 22:07:56 2018 cases, Cases, Unlawful detention cases


SS v CCG [2018] EWCOP 40 — "The application seeks a declaration pursuant to section 15 (that it is lawful and in B's best interests for CANH to be withdrawn) and, secondly, an order pursuant to section 16 for such withdrawal and for B to receive palliative care only. If granted, it is anticipated that B will pass away. ... In support of granting the application there are a number of important factors. It is consistent with her previously expressed feelings and wishes. It supports her right, I suspect strongly held, to self-determination. She has no quality of life. Therapeutically, her life is futile, there is no hope of recovery. There is no hope. If I allow the application and make the declarations, it will bring to an end the invasive and, in my judgment, burdensome medical treatment from which she, B, obtains no benefit. It is consistent with her Muslim religion. It is consistent with her devoted husband's views of his wife's best interests. It is consistent with the unanimous views of those that are responsible for caring and treating her, whether it be the clinical or the support team. Is there any factor which weighs in the scales against granting the application? There is. It is the powerful principle that if I make the declarations, it will inevitably lead to B's death, so offends against the very strong principle of the sanctity of life. Having taken time to consider the matter, it seems to me clear that the direction of travel is all one way. It is with my very greatest sympathy to the family and B's husband in particular that balance falls very clearly in favour of me granting the application and making the declarations as sought, and I do so." 2019‑03‑20 21:43:32 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


R (Hall) v SSJ [2018] EWHC 1905 (Admin)Unsuccessful judicial review by prisoner claiming breach of Equality Act 2010 reasonable adjustments duty. 2019‑03‑17 15:01:40 2018 cases, Cases, Disability discrimination, Judgment available on Bailii, Prison law cases


Whittaker v Hancock & Ors [2018] EWHC 3478 (Ch) — "The claimant has brought a claim under section 50 of the Administration of Justice Act 1985 to be appointed as substitute personal representative of the estate of John Parker in place of the second defendant, her mother, and for a caveat entered by the third defendant on 20 July 2016 to be removed. ... The third defendant is the deceased's daughter and opposes the claim. ... In a statement accompanying the Will, signed by the deceased and witnessed by a legal secretary the deceased explains that he has made no provision for the third defendant ... On 20 July 2016 the third defendant caused a caveat to be entered. She subsequently entered an appearance to the claimant's warning asserting that the 2003 Will may be invalid due to the deceased lacking testamentary capacity, being subject to undue influence and want of knowledge and approval. ... Mr Devereux-Cooke submits that I should make an order appointing the claimant as substitute personal representative for the second defendant. The claimant is the attorney for the second defendant, the LPA having been registered on 16 January 2014. The second defendant cannot consent to the claim as she lacks capacity. The first defendant does not oppose the claim. ... It is a general LPA in respect of property and financial affairs that is in wide terms enabling the claimant, as attorney, to make decisions about the second defendant's property and financial affairs. There are no conditions or restrictions specified in the instrument. ... It is also relevant that the second defendant is the sole beneficiary under the 2003 will. She is in a different position to a case where there are a number of beneficiaries. ... I accept Mr Devereux-Cooke's analysis that the claimant has standing to bring this claim under section 50. If I am wrong in my analysis I consider that the position could be remedied by adding the second defendant as a claimant and appointing the current claimant as her litigation friend. I also accept Mr Devereux-Cooke's analysis of rules 31 and 35 of the Non-Contentious Probate Rules 1987 and would have been prepared to treat the claim as including this as an alternative legal route, had it been necessary. ... I consider that in order for the deceased's estate to be administered it is necessary to substitute the claimant as personal representative in place of the second defendant." 2019‑02‑03 22:41:23 2018 cases, Cases, Judgment available on Bailii, LPA cases - other, Testamentary capacity cases


R (Bate) v Parole Board [2018] EWHC 2820 (Admin) — "Four grounds of claim were pleaded in detail. They can be summarised as challenging: (i) a failure, in violation of Art 5(4), to provide a parole hearing within a reasonably speedy interval; (ii) a systemic failure to maintain and operate a system for speedy and prompt parole reviews; (iii) an unlawful policy for prioritisation of listing which ignores support for release and prospects of release which are identified as realistic, and/or ignores a legitimate expectation given as to the timetable for a deferred hearing; (iv) an unlawful failure, by the decision letter of 2nd December 2016, to direct expedition in the listing of Mr Bate's deferred hearing. ... For the reason I have given, I would find in Mr Bate's favour on ground 1 and ground 4, and would award him damages on the basis indicated in paragraphs 77, 88 and 89 above. I would refuse relief in respect of grounds 3 and 4." 2019‑02‑03 15:32:51 2018 cases, Cases, Judgment available on Bailii, Prison law cases


R (Jollah) v SSHD [2018] EWCA Civ 1260 — "The context is one of immigration detention. The claimant, who is the respondent to this appeal (and who for present purposes I will call "IJ"), was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. Such curfew was imposed by those acting on behalf of the appellant Secretary of State purportedly pursuant to the provisions of paragraph 2 (5) of Schedule 3 to the Immigration Act 1971 (as it then stood). It has, however, been accepted in these proceedings that, in the light of subsequent Court of Appeal authority, there was no power to impose a curfew under those provisions. Consequently, the curfew was unlawfully imposed. The question arising is whether IJ is entitled to damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The trial judge, Lewis J, decided that he was. Having so decided, the judge at a subsequent hearing assessed the damages at £4,000: [2017] EWHC 330 (Admin)!; [2017] EWHC 2821 (Admin)!. The Secretary of State now appeals, with leave granted by the judge, against the decision that IJ was entitled to damages for false imprisonment. IJ cross-appeals, with leave granted by Singh LJ, against the amount of the award of damages. It is said on behalf of IJ that a much greater award should have been made." 2019‑01‑29 14:44:09 2018 cases, Cases, ICLR summary, Unlawful detention cases


A Local Authority v BF [2018] EWCA Civ 2962An interim order made on 10/12/18 required BF to reside at a care home, over Christmas, and not at his own or his son's home, despite BF's having capacity to make decisions about his residence and wanting to return home. The order was expressed to last until a further hearing to take place no later than 31/1/19 (later fixed for 16/1/19) when the judge could hear full argument on what relief could be granted pursuant to the inherent jurisdiction. The local authority appealed on the basis that the order infringed Article 5. The appeal was dismissed: (1) BF is a vulnerable adult (old, blind, infirm, in a squalid and dangerous home, with undue influence present in relationship with son) who needs protection despite not lacking capacity. (2) The test of "unsound mind" is different from the test of capacity, and there is prima facie evidence that he may be of unsound mind. (3) In an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing Article 5 (Winterwerp); even if BF is found not to be of unsound mind, his vulnerability is such that he could not be returned home without careful planning, which is a crucial component of the protection afforded by the inherent jurisdiction. [This is a surprising decision on both the "unsoundness of mind" and "emergency situation" fronts. This permission judgment of 21/12/18 was published on 21/1/19; presumably the full judgment from the 10/12/18 and 16/1/19 hearings will be published soon.] 2019‑01‑22 23:50:19 2018 cases, Brief summary, Cases, Inherent jurisdiction cases, Transcript


R v Tunstill [2018] EWCA Crim 1696 — "This was a case where the child was killed soon after birth so that this case can be distinguished from the situation where mental ill health, usually post-partum psychosis, develops over a period of time. Nonetheless, there was evidence from Dr Bashir and Dr Khisty which showed that notwithstanding the existence of the appellant's pre-birth mental disorder, the effects of giving birth had led to a further condition, characterised by Dr Bashir as an acute stress reaction which was a causative factor in disturbing the balance of the appellant's mind. The issue of causation is a matter of fact for a jury after appropriate direction from a judge as to what can constitute a legally effective cause. For the reasons given, we consider that the effects of birth are not required by s.1(1) to be the sole cause of a disturbance of balance of the mind. In the circumstances, we are persuaded that the judge should not have withdrawn infanticide from the jury. There was evidence fit for the jury's consideration. It is not for this court to assess the likelihood of its success. Dr Barlow's evidence was to the contrary, but the issue for us is whether a jury should have had this alternative option to consider. We think it should have had that opportunity. In the circumstances, therefore, the conviction for murder is unsafe and the verdict is quashed. In our judgment, the interests of justice require a re-trial and we so order." 2019‑01‑21 14:51:33 2018 cases, Cases, ICLR summary, Other criminal law cases


LW v Cornwall Partnership NHS Trust [2018] UKUT 408 (AAC)(1) Having considered the statutory framework of CTOs and the legislative purposes behind them the UT concluded, primarily on that basis, that in cases where there is a risk of a relapse which might necessitate recall, how soon that such a relapse is likely to occur is a relevant consideration. However, other factors, including the risk to the patient and/or others if a relapse were to occur, may also be relevant, and there is no requirement for likely relapse to be "soon", "in the near future" or within the permitted duration of a CTO. (2) Addressing the claimants' arguments on the analogy between detention and CTO cases, the judge stated that while there are some parallels between the s3 regime and CTOs they are not such that the same principles necessarily apply to both, and (to the extent necessary to reach a view on the detention cases) neither of the previous judgments cited in CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) provided an authoritative basis for the view that imminence of relapse is the only factor or need be in the near future. 2019‑01‑11 14:05:05 2018 cases, Brief summary, Cases, Transcript, Upper Tribunal decisions


Lord Chancellor v Blavo and Co Solictors Ltd [2018] EWHC 3556 (QB)The High Court gave judgment for the Lord Chancellor against John Blavo in the sum of £22,136,001.71 following the allegation that Blavo & Co made dishonest claims for payment on the legal aid fund for thousands of cases where it was not entitled to any fee. 2019‑01‑01 17:19:29 2018 cases, Brief summary, Cases, Judgment available on Bailii, Miscellaneous, Transcript


John Blavo v Law Society [2018] EWCA Civ 2250The Law Society successfully appealed against a decision to set aside two statutory demands (of £151,816.27 and £643,489.20) which had been served on John Blavo in relation to costs incurred in respect of the intervention into his practice. 2019‑01‑01 17:01:07 2018 cases, Brief summary, Cases, ICLR summary, Miscellaneous, Transcript


R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852The patient's mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, the Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117. (1) The patient did not "cease to be detained" or "leave hospital" within the meaning of s117(1) when on leave and so was not a person to whom s117 applied, and also the services provided did not constitute "after-care services" within the meaning of s117(6). (2) In other cases, such as a patient living in the community on a either a full-time or part-time trial basis, the s117 duty could arise. (3) (Obiter) It was difficult to see how s117 could have covered the mother's costs as there was no evidence that she was authorised to provide services on behalf of any CCG or LA. (4) The MHA Code of Practice is analogous to delegated legislation (which can only be used as an aid to interpretation if it formed part of Parliament's background knowledge when legislating) and so cannot be used to construe s117(1) which is part of the original text. (5) The court was critical of and provided guidance in relation to the quality of pleadings in statutory interpretation cases. (6) Even if the evidence provided by Mind's QC in written submissions had been relevant, it would not excuse the flagrant breach of the court's order not to stray into the giving of evidence. The matters which are admissible are so limited in statutory interpretation cases that it may be that there is nothing useful an intervenor can contribute. 2018‑12‑20 14:51:52 2018 cases, After-care, Brief summary, Cases, ICLR summary, Judgment available on Bailii, Transcript


Re AB (Inherent Jurisdiction: Deprivation of Liberty) [2018] EWHC 3103 (Fam)AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty. The High Court extended the inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty (firstly, it was clear that there was no legislative provision governing this situation in that the Mental Health Act provided no remedy; secondly, it was in the interests of justice; and, thirdly, there were sound and strong public policy justifications). The court order: authorised the deprivation of liberty for 12 months; required the applicant to apply to court if the restrictions increase, and no less than one month before the expiry of the authorisation; and provided for a review on the papers unless a party requests or the court requires an oral hearing. 2018‑12‑19 01:55:42 2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Transcript


Welsh Ministers v PJ [2018] UKSC 66(1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), but if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review. 2018‑12‑17 14:40:29 2018 cases, Brief summary, Cases, Deprivation of liberty, Powers, Transcript


EXB v FDZ [2018] EWHC 3456 (QB) — "This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement. [I]t was thought by those who knew him best ... that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved. ... The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because 'by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant.' Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations. In those circumstances a declaration as to incapacity in relation to this specific decision is justified. ... This case is the first I can recall when an issue such as that which has arisen has occurred. ... I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result." The draft order included the following declarations: "(1) The Claimant lacks the capacity to decide whether or not he should know the amount of the Settlement. (2) It is in the Claimant's best interests that he does not know the amount of the Settlement. (3) It shall be unlawful for any person (whether the Claimant's deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life." 2018‑12‑14 22:43:03 2018 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


R v Kurtz [2018] EWCA Crim 2743 — "The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1)(b) of the Mental Capacity Act 2005 ('MCA 2005) of which the Appellant was convicted. This provision has not previously been considered by the Court of Appeal. ... The essential question at the heart of this appeal is whether, on a prosecution for the offence contrary to s 44(2) read with s 44(1)(b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as 'the lack of capacity requirement'. ... The submission by Ms Wade QC on behalf of the Appellant was that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1)(b) of the MCA 2005 even if she had wilfully neglected her mother. ... Despite our comments in [19] above as to the evidence which suggests that, at a minimum, the Appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge's failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed." 2018‑12‑10 22:06:13 2018 cases, Cases, EPA cases - all, EPA cases - other, ICLR summary, No summary, Transcript


SR v A Local Authority [2018] EWCOP 36 — "At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary." 2018‑11‑29 21:25:14 2018 cases, Cases, No summary, Other capacity cases, Transcript


Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 — "The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction." 2018‑11‑29 21:13:11 2018 cases, Cases, Deprivation of liberty, No summary, Transcript


SSJ v MM [2018] UKSC 60The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient. 2018‑11‑28 13:49:47 2018 cases, Brief summary, Cases, Deprivation of liberty, ICLR summary, Powers, Transcript


R (Western Health and Social Care Trust) v Secretary of State for Health [2018] NIQB 67 — "The impugned determination is that of the [Secretary of State for Health of England and Wales] to the effect that a lady whom I shall describe as CM (aged 32 years) is 'ordinarily resident' in Northern Ireland and has been thus since 2009, with the result that the care management and funding responsibilities for her have fallen on the Trust, rather than [the London Borough of Enfield], since that date. In very brief compass, lying at the heart of this challenge is a funding dispute between the Trust and Enfield." 2018‑11‑23 14:24:37 2018 cases, Cases, Community care, No summary, Transcript


Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB) — "The Claimant, Dr. Caroline Ardron, is a very experienced consultant psychiatrist employed by the Defendant [Trust]. The Trust considers it appropriate for Dr. Ardron to face disciplinary proceedings for alleged gross misconduct relating to her work at HMP Lewes in late 2015 and early 2016. At that time, Dr. Ardron was the responsible clinician of a young prisoner known as JO, who committed suicide by hanging himself on 12 February 2016. The proposed disciplinary proceedings relate, almost exclusively, to Dr. Ardron's care of JO including her record-keeping in that respect. Dr. Ardron does not suggest that disciplinary proceedings are inappropriate as a matter of principle, or that there is no case of misconduct that could be brought against her. However, she contends that there is no basis for a charge of gross misconduct; a charge which, if established, could potentially lead to the termination of her contract and serious ramifications for her including her prospects of obtaining subsequent employment. On 18 June 2018, an interlocutory injunction was granted by Mr. Pushpinder Saini QC, sitting as a Deputy Judge of the High Court, which restrained the Trust from proceeding until further order with a disciplinary hearing into gross misconduct. The question for resolution now is whether that injunction should be made permanent. That issue depends upon whether Dr. Ardron can prove that the Trust will breach her contract of employment by holding the proposed disciplinary hearing on a charge of gross misconduct. The Trust's intention to proceed to such a hearing was communicated in its letter to Dr. Ardron dated 20 March 2018, and the issue is therefore whether the Trust should be prevented from operating on the basis of that letter. The resolution of that issue depends principally upon the question of whether the facts found in an investigation into Dr. Ardron's conduct could, taken at their highest, amount to gross misconduct." 2018‑11‑23 14:02:05 2018 cases, Cases, Judgment available on Bailii, Miscellaneous, No summary, Transcript


CQC v Hillgreen Care Ltd [2018] MHLO 50(1) The care home provider charged with failing between 1/4/15 and 1/12/15 to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by failing to provide care and treatment in a safe way for service users (reg 12) and failing to put in place, and operate effectively, systems and processes to protect service users from abuse, including sexual abuse (reg 13). The provider had known since 2004 that its resident XX posed risk a of causing sexual abuse. Following an allegation of anal rape of a woman in 2008 his care plan stated that he "identifies with both male and female around his sexual orientation" and that he "needs to be supported at all times and not to be left alone unsupervised when around other service users and when in the community". XX admitted to having sex with two other residents, neither of whom had capacity to consent: a female resident AA in April 2015 and a male resident YY on 1/11/18. The provider had not followed the care plan and the district judge concluded that "[t]he incident with YY could not have happened had there been an extra member of staff on duty to watch XX and where he went." It was found guilty of both charges and was fined £300,000. (2) The judgement states that the CQC's inspection of the care home and seizure of documents took place on 27/7/17: this is the same day as a critical article in the Times (Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17)). Information about the chronology can be found in the CQC's subsequent report (CQC, 'CQC publishes independent investigation into its regulation of 14 Colne Road' (press release, 13/6/18)). 2018‑11‑17 22:44:00 2018 cases, Cases, Miscellaneous, Transcript


Leeds Teaching Hospitals NHS Trust v JF [2018] EWCOP 32 — "... N suffered a cardiac arrest in the taxi as she was arriving at Leeds General Infirmary and as a result for some 20 minutes or so ceased breathing and suffered a severe hypoxic injury. In consequence she has suffered a very significant and severe brain injury. The position now and since then has remained that she is essentially unconscious. ... The issues before me have been threefold. First, whether or not the tracheostomy tube should be removed. ... The second issue has rather retreated in significance. I have to consider whether or not N should receive an escalation of invasive care or treatment, in particular vasoactive drugs, renal replacement therapy, ventilation treatment that requires central venous action or CPR. ... That brings me on to morphine, and that is a difficult issue." 2018‑11‑12 21:50:46 2018 cases, 39 Essex Chambers summary, Medical treatment cases, Transcript


Re HC (A Minor: Deprivation of Liberty) [2018] EWHC 2961 (Fam) — "HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire ("the unit"). By application dated 18th July 2018, the local authority responsible for HC's placement asks that the court determine whether HC's placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. ... Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC's placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate." 2018‑11‑08 02:48:41 2018 cases, Deprivation of liberty, No summary, Transcript


Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance." 2018‑11‑08 02:43:22 2018 cases, Cases, No summary, Other capacity cases, Transcript


Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance." 2018‑11‑08 02:43:22 2018 cases, Cases, No summary, Other capacity cases, Transcript


Z v Kent County Council [2018] EWFC B65This family court case - subtitled 'Revocation of placement order - Failure to assess Mother's capacity and Grandparents' - has a detailed consideration of the MCA 2005. Extract: "The law - capacity, presumption of capacity and determining protected party status. This issue is governed primarily by the Family Procedure Rules 2010 Part 15 and Practice Directions 15A and 15B, and by the Mental Capacity Act 2005. Additionally, there is guidance provided by the Department for Children, Schools and Families’ publication 'The Children Act 1989 Guidance and Regulations', and in April 2010 the Family Justice Council published guidance for proceedings and pre-proceedings called 'Parents who Lack Capacity to Conduct Public Law Proceedings' [updated in April 2018]." 2018‑11‑08 02:26:08 2018 cases, Brief summary, Other capacity cases, Transcript


Manchester City Council Legal Services v LC [2018] EWCOP 30After a circuit judge endorsed a care plan which led to the repeated sexual exploitation by strangers of a young woman with autism and significant learning disabilities (who had capacity to consent to sexual relations but lacked capacity to make decisions on her contact with men), Hayden J provided guidance that 'where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection'. 2018‑11‑07 13:41:36 2018 cases, 39 Essex Chambers summary, Brief summary, Capacity to consent to sexual relations, No transcript


University College London Hospitals v KG [2018] EWCOP 29 — "In this case the University College London Hospitals NHS Foundation Trust seeks the court's authority to administer a treatment known as PRN100 to a patient KG. KG is represented by the Official Solicitor. KG, the Official Solicitor on his behalf, his family and the Trust all ask for the court's approval. The matter is before the court because PRN100 has never been tested on or administered to any person anywhere. It is thus a completely novel treatment." 2018‑10‑31 22:26:36 2018 cases, 39 Essex Chambers summary, Medical treatment cases, Transcript


LB Islington v AA [2018] EWCOP 24 — "These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge." 2018‑10‑22 15:39:21 2018 cases, 39 Essex Chambers summary, Best interests, Transcript


Griffiths v Chief Constable of Suffolk Police, and Norfolk and Suffolk NHSFT [2018] EWHC 2538 (QB) — "This case arises out of the murder of Mary Griffiths by John McFarlane on 6 May 2009 in Bury St Edmunds, Suffolk. The Claimants are her three daughters, suing by their father and litigation friend. They seek damages from the Chief Constable of the Suffolk Police, the 'Suffolk Police', and North and Suffolk NHS Foundation Trust, the 'NHS Trust', the first and second Defendants. ... The claim, put very shortly, is that the NHS Trust assessment under the Mental Health Act, MHA, was flawed in a number of respects, and that Mr McFarlane ought to have been admitted to hospital, voluntarily or compulsorily, on 3 May 2009, which would have prevented him being in a position to murder Ms Griffiths on 6 May. In any event, the NHS Trust should have warned her that Mr McFarlane was a danger to her, and they ought also to have communicated with the Suffolk Police. This would have affected the way in which they, in turn, addressed Ms Griffiths' concerns when she telephoned them on 5 May 2009. The Suffolk Police, in any event, ought to have graded Ms Griffiths' call as more serious than they did, and ought to have sent someone round that night. That person would have realised that the situation was more threatening than had the call-taker, and steps would have been taken to protect Ms Griffiths, who faced a real and immediate risk from Mr McFarlane, to remove her from danger, or to warn or detain Mr McFarlane." 2018‑10‑22 15:23:23 2018 cases, 39 Essex Chambers summary, Cases, Judgment available on Bailii, Miscellaneous


Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10 — "This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, No summary, Transcript


Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10 — "This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, No summary, Transcript


Re Y (Autism - Care Proceedings - Deprivation of Liberty): LB Barking and Dagenham v Mr and Mrs X (2018) EWHC B63 — "The local authority, represented by Ms Mustafa of counsel, applies for a care order under Section 31 of the Children Act 1989 and for an order declaring that it is lawful for the local authority to deprive Y of his liberty. Y is the child of the First and Second Respondent parents. Mr and Mrs X are represented by Ms Prolingheuer of counsel. Mr and Mrs X oppose the application for a Care Order and DoL and submit he should return home to their care" 2018‑10‑22 14:27:39 2018 cases, Cases, Deprivation of liberty


Re T (A Child) [2018] EWCA Civ 2136 — "This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)." 2018‑10‑15 20:15:07 2018 cases, 39 Essex Chambers summary, Cases, Deprivation of liberty - children, Judgment available on Bailii


Public Guardian v DA [2018] EWCOP 26 — "This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment." 2018‑10‑15 20:03:20 2018 cases, 39 Essex Chambers summary, Cases, ICLR summary, Judgment available on Bailii, LPA cases - all, LPA cases - other, Transcript


PBC v JMA [2018] EWCOP 19 — "PBC is the son of JMA, and was appointed as her sole attorney for property and affairs by a Lasting Power of Attorney ... He seeks the authority of the Court to make from JMA’s estate various gifts together exceeding £7 million. The purpose of such gifting, openly stated from the outset of the application, is to achieve - as long as JMA lives at least a further 3 years - reduction of inheritance tax liabilities. The parties have reached an agreement between themselves. Together, they ask the Court to make orders to give effect to their agreement. The matter was listed for hearing because the Court sought assistance in order to reach a conclusion as to whether or not the terms of that agreement are in the best interests of JMA." 2018‑09‑02 21:58:59 2018 cases, Deputyship cases, No summary, Transcript


VS v St Andrew's Healthcare [2018] UKUT 250 (AAC)(1) The capacity that a patient must have in order to make a valid MHT application is that the patient must understand that he is being detained against his wishes and that the First-tier Tribunal is a body that will be able to decide whether he should be released. This is a lower threshold than the capacity to conduct proceedings. (2) (Obiter) a solicitor appointed under rule 11(7)(b) can request to withdraw an application in the best interests of the patient, but on the facts the tribunal had been entitled to give effect to the patient's own desire to come before a tribunal. (3) When a tribunal lacks jurisdiction it should strike out the proceedings but (obiter) if the proceedings were fair then the use of withdrawal rather than strike out is unlikely to be a material error of law. 2018‑08‑25 22:22:47 2018 cases, 39 Essex Chambers summary, Brief summary, MHT capacity cases, Transcript, Upper Tribunal decisions


Y v A Healthcare NHS Trust [2018] EWCOP 18 — "This application was made by Y on 12 July 2018 when I was sitting as the emergency applications judge. It required urgent determination by reason of the critical medical condition of Z, Y's husband. Y sought the following relief: (a) A declaration that, notwithstanding her husband's incapacity and his inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death; (b) An order pursuant to section 16 of the Mental Capacity Act 2005 directing that a suitable person should sign the relevant consent form for the storage of Z's sperm on her husband's behalf." 2018‑08‑18 08:47:12 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


R v Taj [2018] EWCA Crim 1743 — (1) Appeal against conviction: "The defence sought to rely on self-defence as codified in s76 Criminal Justice and Immigration Act 2008 noting, in particular, s76(4)(b) which makes it clear that the defence is available even if the defendant is mistaken as to the circumstances as he genuinely believed them to be whether or not the mistake was a reasonable one for him to have made. Although s76(5) provides that a defendant is not entitled to rely upon any mistaken belief attributable to intoxication that was voluntarily induced, it was argued that as there was no suggestion that Taj had alcohol or drugs present in his system at the time, he was not 'intoxicated' and so was not deprived of the defence. It was also submitted that R v McGee, R v Harris, R v Coley [2013] EWCA Crim 223 supported the proposition that to be in a state of 'voluntarily intoxication' there had to be alcohol or drugs active in the system at the time of the offence. ... In our view, the words "attributable to intoxication" in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia. This is consistent with common law principles. We repeat that this conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse. In the circumstances, we agree with Judge Dodgson, that the phrase "attributable to intoxication" is not confined to cases in which alcohol or drugs are still present in a defendant's system. It is unnecessary for us to consider whether this analysis affects the decision in Harris: it is sufficient to underline that the potential significance of voluntary intoxication in the two cases differs." The appeal against conviction was dismissed. (2) The application for leave to appeal against sentence was refused. 2018‑08‑08 20:56:57 2018 cases, ICLR summary, Other criminal law cases, Sentence appeal cases, Transcript


Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam) — "The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases." 2018‑08‑08 20:33:34 2018 cases, Deprivation of liberty, No summary, Transcript


NHS Trust v Y [2018] UKSC 46 — "The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. ... In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases." 2018‑07‑31 21:46:38 2018 cases, Cases, ICLR summary, Medical treatment cases, Transcript


NHS Trust v Y [2018] UKSC 46 — "The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. ... In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases." 2018‑07‑31 21:46:38 2018 cases, Cases, ICLR summary, Medical treatment cases, Transcript


Re A (A Patient, now deceased) (No 4) [2018] EWCOP 17 — "On 24 July 2018, Mr Fitzgerald issued an application in the Family Division of the High Court of Justice, under number FD13P90056, seeking an order that, as President of the Family Division, I 'withdraw from public record Judgement EWCOP16 [2018] on the grounds that: (1) It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.' ... Mr Fitzgerald's latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order." 2018‑07‑29 19:19:05 2018 cases, Miscellaneous, No summary, Transcript


Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) — "The claim arises out of the death of the Deceased who was found dead at her home on the morning of the 30th of January 2012. For present purposes it is accepted that the Deceased took her own life. There are two pleaded causes of action: common law negligence and alleged breaches of convention rights under the Human Rights Act 1998. The Recorder, as I am, was concerned only with the negligence claim and then only with the issue as to the existence of a duty of care owed to the Deceased. Issues as to breach of any such duty or issues as to causation were not before the Recorder. The pleaded particulars of negligence amount to allegations that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the Deceased in a 999 call made by the Deceased's mother." 2018‑07‑19 16:01:43 2018 cases, Cases, Judgment available on Bailii, Miscellaneous


Re A (A Patient, now deceased) (No 3) [2018] EWCOP 16 — "I have before me an application [which] relates to certain costs orders against Mr Fitzgerald dated 22 and 24 March 2016 which I made in the Court of Protection, as President of the Court of Protection, in proceedings (95908524), to which Mr Fitzgerald was a party. Those proceedings related to Mr Fitzgerald's now deceased aunt A, a patient whose affairs were under the control of the Court of Protection until her death on 5 March 2018. Central to Mr Fitzgerald's application are the circumstances in which, in the course of those proceedings, SJ Lush, by an order dated 28 May 2013, had appointed her niece, C, to be A's deputy for property and affairs." 2018‑07‑19 15:37:34 2018 cases, COP costs cases, No summary, Transcript


Re FX [2017] EWCOP 36 — "I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions." 2018‑07‑06 21:25:50 2018 cases, No summary, Other capacity cases, Transcript


Royal Borough of Greenwich v CDM [2018] EWCOP 15 — "In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests." 2018‑07‑03 20:15:50 2018 cases, 39 Essex Chambers summary, No summary, Other capacity cases, Transcript


R (Conway) v SSJ [2018] EWCA Civ 1431 — "This is an appeal from the order dated 5 October 2017 of the Divisional Court (Sales LJ, Whipple and Garnham JJ) dismissing the claim of the appellant, Mr Noel Conway, for a declaration under section 4 of the Human Rights Act 1998 in respect of section 2(1) of the Suicide Act 1961, which imposes a blanket ban on assisted suicide. Mr Conway contends that section 2(1) constitutes a disproportionate interference with his right to respect for his private life under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms." 2018‑07‑02 21:28:43 2018 cases, ICLR summary, Miscellaneous, Transcript


PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067 — "Two central criticisms are made of the judgment below, and the judge's determination of best interests. First, that the judge failed to appreciate and therefore give any or any adequate weight to RW's wishes and feeling. These were, contrary to her findings, ascertainable; they pointed to the fact that he was a "fighter", to the value he ascribed to life and to his desire to "hold fast to it" no matter how "poor" or "vestigial" in nature it was. Secondly, the judge overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide would remove or mitigate that risk. In the result, and in any event, it is submitted the judge's overall analysis of what was in RW's best interests failed adequately to address the relevant issues and evidence, and was a flawed one. In my view neither criticism is well-founded." Another aspect of this case related to the transparency order/reporting restrictions. 2018‑05‑22 20:40:44 2018 cases, Best interests, Cases, Judgment available on Bailii, Reporting restriction order cases


WB v W District Council [2018] EWCA Civ 928 — "This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996. ... The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need..." 2018‑04‑27 20:10:34 2018 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript


WB v W District Council [2018] EWCA Civ 928 — "This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996. ... The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need..." 2018‑04‑27 20:10:34 2018 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript


Buckinghamshire County Council v RT [2018] EWCOP 12 — "I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. ... RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place]. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night. ... Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. ... It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year. RT's 18th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18th birthday which in particular will enable him to have a say at that point." 2018‑04‑25 23:34:51 2018 cases, Deprivation of liberty, No summary, Transcript


LV v UK 50718/16 [2018] MHLO 22 — "Complaint: The applicant complains under Article 5(4) of the Convention that she did not have a speedy review of the legality of her detention. In particular, she contends that her right to a speedy review was violated both by delays on the part of the Public Protection Casework Section and the Parole Board, and from the unnecessary two-stage Tribunal/Parole Board process. Question to the Parties: Was the review of the applicant’s detention which commenced on 24 May 2011 and concluded on 21 March 2013 conducted 'speedily' within the meaning of Article 5(4) of the Convention?" (The first paragraph of the decision is wrong as the applicant's solicitor works for Campbell Law Solicitors.) 2018‑04‑21 22:48:11 2018 cases, Cases, ECHR deprivation of liberty cases, Prison law cases


M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC)The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision. 2018‑04‑20 20:33:54 2018 cases, Cases, MHT capacity cases, Upper Tribunal decisions


M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC)The tribunal had failed to turn its mind to the extent to which (despite his lack of capacity to conduct proceedings) the patient was capable of participating in proceedings before addressing the test for non-disclosure. The appeal was allowed and the matter remitted to the tribunal to re-make its decision. 2018‑04‑20 20:33:54 2018 cases, Cases, MHT capacity cases, Upper Tribunal decisions


NHS Windsor, Ascot and Maidenhead CCG v SP (Withdrawal of CANH) [2018] EWCOP 11 — "Windsor, Ascot and Maidenhead CCG have applied to the court for a personal welfare order in respect of SP. The order sought is for a Declaration and Order that it is not in SP's best interests for Clinically Assisted Nutrition and Hydration (CANH) to be continued. In tandem with the withdrawal of CANH palliative care will be provided. The consequence is an expectation that SP will die within 7-14 days. ... In early 2015 she was diagnosed as being in a continuing vegetative state and in April 2015 as being in a permanent vegetative state (PVS). She has been in receipt of CANH since October 2014." 2018‑04‑20 19:54:41 2018 cases, Medical treatment cases, No summary, Transcript


R v Thompson [2018] EWCA Crim 639 — "These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983." 2018‑04‑09 23:01:37 2018 cases, ICLR summary, Sentence appeal cases, Transcript


NHS Dorset CCG v LB [2018] EWCOP 7 — "In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision." 2018‑04‑09 00:53:58 2018 cases, COP costs cases, Cases, Judgment available on Bailii, No summary, Transcript


NHS Dorset CCG v LB [2018] EWCOP 7 — "In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision." 2018‑04‑09 00:53:58 2018 cases, COP costs cases, Cases, Judgment available on Bailii, No summary, Transcript


Re AR [2018] EWCOP 8 — "The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy." 2018‑04‑09 00:46:17 2018 cases, Deputyship cases, No summary, Transcript


Cash v Court of First Instance, Strasbourg, France [2018] EWHC 579 (Admin) — "At the conclusion of the hearing on 13 March 2018 I allowed the Appellant's appeal and quashed the extradition order made by District Judge Grant on 15 March 2017. I did so on the grounds that it would be unjust and oppressive to extradite the Appellant because he is currently unfit to stand trial and is seriously mentally ill with paranoid schizophrenia, and thus the judge should have decided that extradition is barred by s 25 of the Extradition Act 2003." 2018‑03‑28 21:58:14 2018 cases, Cases, Judgment available on Bailii, Repatriation cases


ET v JP [2018] EWHC 685 (Ch) — "This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958. ... The way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act." 2018‑03‑28 21:47:31 2018 cases, Cases, Judgment available on Bailii, Other capacity cases


SSHD v Skripal [2018] EWCOP 6 — "On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Mr and Ms Skripal remain in hospital under heavy sedation. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. The fact of their exposure to a nerve agent has already had significant consequences on the wider domestic and international stage which I need not go into for the purposes of this judgment. However central to the application before me is the fact that on 14 and 16 March 2018 the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom 'to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).' This in effect is to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries the OPCW wish to: (i) Collect fresh blood samples from Mr and Ms Skripal to (a) undertake their own analysis in relation to evidence of nerve agents, (b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal; (ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018; (iii) Re-test the samples already analysed by Porton Down. Because Mr Skripal and Ms Skripal are unconscious and neither are in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust have quite properly confirmed to the UK Government that a court order would be required to authorise (a) and (b) above." 2018‑03‑28 09:35:57 2018 cases, Medical treatment cases, No summary, Transcript


R v Edwards [2018] EWCA Crim 595These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s.37/41 and s.45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle., These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s.37/41 and s.45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle. 2018‑03‑28 09:21:34 2018 cases, Cases, Judgment available on Bailii, Sentence appeal cases


Re JMK [2018] EWCOP 5 — "The application before the Court is for an order to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether such an instrument amounts to 'a protective measure' for the purposes of Schedule 3." 2018‑03‑19 01:04:50 2018 cases, Cases, Judgment available on Bailii, Other capacity cases


Re M: A v Z [2018] EWCOP 4 — "This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests." 2018‑03‑12 22:55:33 2018 cases, Bias, No summary, Other capacity cases, Transcript


Re M: AB v HT [2018] EWCOP 2 — "These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M's father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her capacity, and orders made following my findings." 2018‑03‑08 20:27:30 2018 cases, Capacity to consent to sexual relations, No summary, Transcript


DB (as executor of the estate of OE) v SSWP [2018] UKUT 46 (AAC) — "The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly." 2018‑02‑26 22:50:22 2018 cases, No summary, Other capacity cases, Transcript


Miller v DPP [2018] EWHC 262 (Admin) — "This is an appeal by way of case stated from a pre-trial ruling of the Black Country Magistrates' Court sitting at Dudley on 13 October 2016 in respect of an information preferred against the Appellant for failing to provide a specimen of blood in breach of section 7 of the Road Traffic Act 1988, not to exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence of the drug drive procedure at Oldbury Police Station that led to the charge being made. ... On 24 June 2016, the Appellant was stopped by the police on suspicion of driving under the influence of drugs. When arrested and taken into custody, he behaved erratically and aggressively. It appears that he was known to the police as a person who had learning difficulties and autism. ... As Mr Scott submitted, the presence of an appropriate adult (whilst not being able to provide technical, legal or medical advice) would have provided the Appellant with the opportunity not only to have the question as to whether or not to provide a sample explained to him, but also to obtain an appreciation of the consequences of failing to do so. He points out that the offence of failing to provide a blood sample is predicated not only on the person's comprehension of the requirement to provide a sample, but also of the consequences of failing to do so in terms of criminal liability. The Appellant was clearly very exercised whilst being detained, and there is a very real possibility that the presence of an appropriate adult would have calmed him, and led him to behave differently and make different choices from those he in fact made. ... [H]aving found there to have been a breach of Code C in failing to inform and summon an appropriate adult to the police station, we do not consider that the magistrates did properly exercise their discretion under section 78 of PACE not to exclude the evidence of the drug drive procedure. Their reasoning was, unfortunately, fundamentally flawed; and, had they exercised their discretion properly, they would have been bound to have excluded the evidence of the drug drive procedure." 2018‑02‑16 23:19:33 2018 cases, Cases, Judgment available on Bailii, Other criminal law cases


LMN v Government of Turkey [2018] EWHC 210 (Admin) — "It would be unlawful for this country to extradite the appellant to Turkey if he would there face a real risk of being treated in a manner which breached his Article 3 right not to be "subjected to torture or to inhuman or degrading treatment or punishment": see R (Ullah) v Special Immigration Adjudicator [2004] 2 AC 323!. It is for the appellant to establish that there are substantial grounds for believing that, if extradited, he will face such a risk; and the ill-treatment must reach a minimum level of severity before Article 3 would be breached. Given that Turkey is a member of the Council of Europe and a signatory to the European Convention on the Prevention of Torture, the respondent is entitled to rely on the presumption that the Turkish authorities will protect prisoners against breaches of their Article 3 rights. Mr Josse has not invited this court to decide the appeal on the basis of findings about the Turkish prison system as a whole, and in any event there is no evidence which would enable the court to do so. ... There are in my judgment two key aspects of the evidence relating to the Article 3 issue: the expert evidence as to the appellant's mental health; and the expert evidence as to prison conditions in Turkey following the attempted coup. ... In those circumstances, I accept the expert evidence now available as establishing that the appellant is presently suffering from a recognised medical condition, namely severe depressive episode; that he also presents some features of PTSD; that he is currently prescribed antidepressant medication, and in receipt of regular psychological counselling; that there is a continuing need for coordinated care management; and that there is a high risk of suicide in the event of extradition. ... The further evidence now before the court shows, as I have indicated, a continuing need for medication and healthcare. The appellant has very plainly raised the issues of whether his healthcare needs would in fact be met, and whether the healthcare which is in principle available in Turkish prisons would in fact be available to the appellant in the context of the greatly-increased prison population. There is simply no evidence that such care will be available to him. ... In my judgment, taking into account the risk of suicide, a failure to meet the mental healthcare needs of the appellant would in the circumstances of this case attain the minimum standard of severity necessary to breach his Article 3 rights. ... It follows that his extradition would not be compatible with Article 3 or with section 87 of the 2003 Act." 2018‑02‑09 20:44:58 2018 cases, Cases, Judgment available on Bailii, Repatriation cases


Re KT [2018] EWCOP 1 — "These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15, [2016] MHLO 31. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements." 2018‑02‑05 23:03:08 2018 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript


Re KT [2018] EWCOP 1 — "These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15, [2016] MHLO 31. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements." 2018‑02‑05 23:03:08 2018 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript


R (VC) v SSHD [2018] EWCA Civ 57 — "There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention." 2018‑02‑02 23:41:30 2018 cases, ICLR summary, Repatriation cases, Transcript


R (Mitocariu) v Central and North West London NHS Foundation Trust [2018] EWHC 126 (Admin)Two hospital order patients contended that if for any reason they were not in receipt of benefits then the trust should provide regular payments to ensure their dignity was maintained whilst in care. (1) The trust did have a power, arising from s43 NHS Act 2006 (which identified the functions of foundation trusts), and either s46 or s47 (which provided sufficiently general powers), to make payments to patients. Any contract with NHS England purporting to restrict the statutory power would be ultra vires. Similarly, any payment outside the s43 purposes (namely, the provision of services to individuals for or in connection with the prevention, diagnosis or treatment of illness and the promotion and protection of public health) would be ultra vires. (2) The amount, timing and frequency of payments was a matter for the discretion of the Defendant, taking into account all relevant factors, including the specific therapeutic requirements of the patient. (3) A standardised approach of making regular payments irrespective of and unrelated to the therapeutic needs of the patient, as sought by the Claimants, would be outside the powers granted to a foundation trust. (4) On the facts, the Defendant had lawfully exercised its power: the financial circumstances of the patients were regularly considered and addressed appropriately (e.g. paying for a winter coat and travel costs). (5) The absence of a policy did not mean that the Defendant had acted unlawfully. 2018‑02‑02 00:33:06 2018 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


Re A-F (Children) [2018] EWHC 138 (Fam) — "... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the comparison should be made with a 'typical' child of the same age who is subject to a care order. The answer in my judgment is quite clearly, No. ... I turn to matters of process and procedure." 2018‑02‑02 00:19:06 2018 cases, Deprivation of liberty, No summary, Transcript


Application by Darlington Borough Council in respect of the Adult: AB [2018] ScotSC 4 — "The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian." 2018‑01‑25 21:58:52 2018 cases, No summary, Other capacity cases, Scottish cases, Transcript


James v James [2018] EWHC 43 (Ch) — "There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin [2014] EWHC 71 (Ch)Not on Bailii! [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect." 2018‑01‑22 22:56:10 2018 cases, Cases, Judgment available on Bailii, Testamentary capacity cases


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