Category

2020 cases

This year's cases have all been entered into the new database: see 2020 cases.

The new database structure introduced in 2019 is more useful than this Category page: see Special:Drilldown/Cases.The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Habitual residence Re QD (No.2) [2020] EWCOP 14A legal deadlock had arisen: (a) the English court did not have primary jurisdiction, as QD was habitually resident in Spain; (b) the Spanish court would not exercise its jurisdiction unless QD were in Spain; (c) there was no obligation to return QD there. The coronavirus travel bans meant an "urgent" decision under MCA 2005 sch 3 that he be returned could not be made, so the decision was adjourned for 3-4 months. 2020‑07‑08 14:46:59


* Capacity - DOL Sunderland City Council v AS [2020] EWCOP 13(1) The court decided that a CTO patient lacked capacity in all relevant areas (litigation, residence, care and contact). When giving oral evidence the jointly-instructed psychologist changed her mind on: litigation capacity (initially she thought AS had litigation capacity while not having subject matter capacity), residence (she placed insufficient weight on 'structure and routine', which is an integral part of the information relevant to a decision on residence in supported as opposed to independent living), and fluctuating capacity. The judge noted with approval the approach in NICE guidance on "Decision-making and mental capacity" to people with executive dysfunction. (2) The court authorised the deprivation of liberty (there was a high level of supervision throughout the day and night, in the accommodation and community). 2020‑07‑07 16:47:31 Judgment available on Bailii, Cases, 2020 cases, Deprivation of liberty, Litigation capacity cases, Other capacity cases


* Treatment despite religious delusions Sherwood Forest Hospitals NHS Foundation Trust v C [2020] EWCOP 10(1) Having previously undergone two hysteroscopies, and initially consented to removal of her ovaries and fallopian tubes, C disengaged, expressed religious views (such as that only God could cure her cancer), and was assessed as lacking capacity. The judge decided that "she clearly lacked capacity and her rejection of the treatment, which is clinically so manifestly in her best interests, is predicated on a delusional belief structure which manifests itself in the language of religion". (2) The delay in this case, which was attributable to the treating clinicians not initially knowing C had paranoid schizophrenia, and their reluctance to contemplate coercion, should not have happened and likely stressed C and her family, but had not led to neglect of the cancer. 2020‑07‑06 13:47:32 Judgment available on Bailii, Cases, 2020 cases, Medical treatment cases


* Deputies and litigation Re ACC [2020] EWCOP 9This case concerned whether, and in what circumstances, a property and affairs deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings. The applicant deputies from Irwin Mitchell wanted to know when a professional deputy may instruct a legal firm with which it is associated and recover the costs from P. The court gave detailed guidance, including a summary of conclusions in an appendix. 2020‑07‑03 22:27:38 Judgment available on Bailii, Cases, 2020 cases, Deputyship cases


* Capacity and nutrition/hydration QJ v A Local Authority [2020] EWCOP 7QJ had capacity to decide about nutrition and hydration despite his reluctance to answer certain questions. He was in agreement with the care plan, which included (a) Fortisip; (b) weighing; (c) discharge to a care home; (d) no readmission to hospital if he refuses to accept food or water. 2020‑07‑03 15:34:04


* Medical treatment Sherwood Forest Hospitals NHS Foundation Trust v H [2020] EWCOP 6In the previous judgment the court had authorised surgical excision of a squamous cell carcinoma on Mrs H's left cheek. By the surgery date its further growth rendered it inoperable. Other treatments, including electro-chemo therapy and paliative radiotherapy under general anaesthetic were under consideration, with a view to putting together a care plan for Mrs H's needs for the remainder of her life. The court would review the care plan because (a) the history of the case required that it be monitored, and (b) Mrs H's daughter had requested this. 2020‑07‑03 14:58:09 Judgment available on Bailii, Cases, 2020 cases, Medical treatment cases


* Medical treatment delay Sherwood Forest Hospitals NHS Foundation Trust v H [2020] EWCOP 5Noting that the delay in bringing the case to court "may mean that a life is lost that could well have been saved", the judge authorised surgical excision under general anaesthetic of a squamous cell carcinoma on Mrs H's left cheek. 2020‑07‑03 14:39:07


* Serious medical treatment guidance Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2"This practice guidance sets out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the Court of Protection. The procedure is currently being reviewed within the revised MCA Code. That will, in due course, be subject to public consultation and Parliamentary scrutiny. This guidance is intended to operate until such time as it is superseded by the revised Code." 2020‑07‑03 10:25:21 ICLR summary, Judgment available on Bailii, Cases, 2020 cases, Medical treatment cases


* Non-application of forfeiture rule Re W [2020] UKUT 155 (AAC)The forfeiture rule ("the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing") can be modified in the interests of justice but not following a conviction for murder. The Secretary of State initially argued that W had been convicted of murder. The Crown Court had found that, in relation to his wife's killing, W was unfit to plead but had done the act. The Upper Tribunal equated this with a finding of not guilty by reason of insanity, which for forfeiture rule purposes amounts to an acquittal, so there was no conviction and the forfeiture rule did not apply. 2020‑06‑25 22:12:27 Judgment available on Bailii, Cases, 2020 cases, Miscellaneous


* Protected party - litigation friend Hinduja v Hinduja [2020] EWHC 1533 (Ch)(1) Medical evidence on capacity to conduct proceedings is not required under the CPR, and in this case to require it would not be necessary or in accordance with the overriding objective. The court decided that SP was a protected party. (2) The defendants argued that the proposed litigation friend failed both limbs of the relevant test (ability fairly and competently to conduct proceedings and having no adverse interest). Having considered the tests (including noting that "[w]hether the existence of a financial interest on the part of the litigation friend should debar [her] from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend conducting the proceedings fairly and competently on the protected party's behalf") the court made the appointment sought. 2020‑06‑25 21:33:31 Judgment available on Bailii, Cases, 2020 cases, Litigation capacity cases, Litigation friend cases


* Inquest determination and findings quashed Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin)The applicant, who had been the deceased's Relevant Person's Representative under a DOLS authorisation successfully argued for the inquest's determination and findings to be quashed. 2020‑06‑25 21:10:36 Judgment available on Bailii, Cases, 2020 cases, Inquests


* Change from s3 to s37 during tribunal proceedings GM v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 152 (AAC)The First-tier Tribunal had been right to strike out proceedings arising from a s3 reference when the patient was subsequently made subject to a s37 hospital order. It would be contrary to statutory policy if the tribunal were to retain jurisdiction under an application or reference that was made before the date of the hospital order. 2020‑06‑25 20:55:05 Cases, 2020 cases, Change of status after application made, Judgment available on Bailii


* Parole Board representation for those lacking capacity R (EG) v Parole Board [2020] EWHC 1457 (Admin)(1) The Parole Board Rules 2019 introduced a power to appoint a representative "where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner's best interests for the prisoner to be represented". In the absence of anything similar to the accreditation system operating in the MHT (and the LAA's pragmatic approach to the regulation preventing providers from making an application for Legal Aid) a solicitor cannot "assume the dual role of legal representative and litigation friend" and so this appointment power cannot be exercised. (2) The 2019 rules, although silent on the matter, allow for the appointment of a litigation friend because: (a) "other representative" in the expression "solicitor, barrister or other representative" includes litigation friend; and, if that is wrong, (b) as with the 2016 rules, it is allowed when necessary under the general power to make directions. (3) In the absence of an accreditation scheme or other litigation friend, the prisoner needed the Official Solicitor to act if his parole review was to progress; (obiter) the OS has the statutory power to act in Parole Board proceedings. (4) The judge limited her decision to issues concerning EG individually, and criticised counsel for EG and the EHRC for continuing the trend in public law litigation of grounds of challenge evolving during proceedings in a way which lacked procedural rigour (in this case, by raising wider issues including the identification and assessment of non-capacitous prisoners and the Public Sector Equality Duty). 2020‑06‑16 13:07:57 Judgment available on Bailii, Cases, 2020 cases, Prison law cases, Litigation friend cases


* Capacity in family case CS v FB [2020] EWHC 1474 (Fam)The judge in this international children law case made an interim declaration that the mother lacked capacity to litigate, to enable the Official Solicitor to be appointed as litigation friend and, with the benefit of legal aid, to investigate for final determination the mother's capacity to conduct these proceedings. 2020‑06‑11 21:03:26 Cases, 2020 cases, Other capacity cases, Judgment available on Bailii


* Capacity and sexual relations A Local Authority v JB [2020] EWCA Civ 735"The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations." 2020‑06‑11 20:43:02 Cases, 2020 cases, Capacity to consent to sexual relations, Judgment available on Bailii


* Appeal against IPP R v Stredwick [2020] EWCA Crim 650"In this appeal the appellant invites the court to quash the sentence of imprisonment for public protection imposed in 2008 and make an order pursuant to section 37 of the Mental Health Act 1983 ("the 1983 Act") for his admission or continued detention at Ty Gwyn Hall Hospital, Abergavenny. The appellant also invites the court to make an accompanying Restriction Order without limit of time under section 41 of the 1983 Act. The Crown does not oppose this appeal, nor the orders sought." 2020‑05‑21 21:51:40 Judgment available on Bailii, Cases, 2020 cases, Sentence appeal cases


* Section status and aftercare Tees, Esk and Wear Valleys NHS Foundation Trust (19 012 290a) [2020] MHLO 21 (LGSCO)"Summary: The Ombudsmen find there was fault by a Trust in giving a family incorrect information about a mental health patient’s status. When this came to light it caused the patient’s wife considerable stress which has not yet been fully addressed. The Ombudsmen also find that fault by a Council meant the patient’s wife suffered this stress for too long. The Ombudsmen has recommended small financial payments to act as an acknowledgement of the outstanding injustice." 2020‑05‑21 21:47:57 Cases, 2020 cases, After-care, LGO decisions


* Testamentary capacity Clitheroe v Bond [2020] EWHC 1185 (Ch)"This is a bitter family dispute between the Claimant brother and Defendant sister as to whether their mother, the deceased, had testamentary capacity to make each of her two wills and in addition or in the alternative whether either or both wills resulted from fraudulent calumny." 2020‑05‑21 21:42:00 Cases, 2020 cases, Testamentary capacity cases, Judgment available on Bailii


* Successful s45A appeal R v Westwood [2020] EWCA Crim 598"In the circumstances of this case there was a sound reason for departing from the need to impose a sentence with a "penal element". In view of the low level of the appellant's "retained responsibility", the likelihood that for the rest of his life he will need psychiatric treatment and supervision that can most effectively be provided through orders under sections 37 and 41 of the Mental Health Act, and the likely advantages in this case of the regime for and on his release under such orders when compared to an order under section 45A, we consider that that is the right disposal here." 2020‑05‑07 21:54:27 Judgment available on Bailii, Cases, 2020 cases, Hybrid order cases


* Direction for postponement of CTO hearing set aside Re B [2020] MHLO 18 (FTT)The initial decision indefinitely to postpone a CTO patient's hearing (in accordance with Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20)) was set aside by the First-tier Tribunal. 2020‑04‑30 10:45:25


* Access to records of deceased patient Re AB [2020] EWHC 691 (Fam)The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative. 2020‑04‑28 19:20:43 ICLR summary, Judgment available on Bailii, Cases, 2020 cases, Miscellaneous


* Audio recording of neuropsychological testing MacDonald v Burton [2020] EWHC 906 (QB)(1) The defendant was allowed to carry its neuropsychological examination of the claimant without being subjected to any kind of recording of that examination: a level playing field could not be achieved where the claimant had not recorded the examination and testing by his own expert but where the examination testing by the defendant's expert was so recorded. (2) The judge discussed the question of any privilege which may exist in any recordings that are made. (3) The judge hoped that the forthcoming British Psychological Association guidance would recognise the competing interests and would not merely state that psychological examinations and testing should never be recorded. 2020‑04‑23 21:38:21 Judgment available on Bailii, Cases, 2020 cases, Miscellaneous


* Direction for all-female panel Re A [2020] MHLO 14 (FTT)In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut. 2020‑04‑14 20:19:50


* All-male and all-female panels CB v SSWP [2020] UKUT 15 (AAC)(1) It was unlawful of the tribunal to hear the ESA appeal in the applicant's absence; the decision was set aside and the case remitted to a new panel. (2) The judgment contains obiter comments about the request for an all-female panel. 2020‑04‑14 14:47:35


* Inherent jurisdiction and DOL Hertfordshire CC v K [2020] EWHC 139 (Fam)"In this matter, the question before the court is whether it should grant a deprivation of liberty order (hereafter a DOL order) under the inherent jurisdiction of the High Court in respect of AK, born in 2003 and now aged 16." 2020‑04‑02 15:27:37 Judgment available on Bailii, Cases, 2020 cases, Deprivation of liberty, Inherent jurisdiction cases


* Withholding life-sustaining treatment from baby Rotherham Metropolitan Borough Council v ZZ [2020] EWHC 185 (Fam)"It is impossible not to feel that X's life is one of nothing but suffering. As is set out in the cases above, life itself is precious and there is a very strong presumption in favour of preserving life. But X's life is a truly tragic one and certainly reaches a threshold of intolerability. ... His life expectancy is probably no more than a year on the basis of the literature. ... For all these reasons I am clear that it is not in X's best interests that he should be resuscitated or that he should be given life sustaining treatment." 2020‑04‑02 14:48:15


* Diminished responsibility sentencing R v Rodi [2020] EWCA Crim 330Unsuccessful appeal against s45A and 10-year sentence, in which the November 2018 sentencing guidelines for diminished responsibility manslaughter were applied. 2020‑03‑16 21:51:46


* Disclosure of patient's medical information ABC v St George's Healthcare NHS Trust [2020] EWHC 455 (QB)"By this claim brought against three NHS trusts, the claimant contends that the defendants breached a duty of care owed to her and/or acted contrary to her rights under Article 8 of the European Convention on Human Rights in failing to alert her to the risk that she had inherited the gene for Huntington's disease in time for her to terminate her pregnancy." 2020‑03‑16 21:28:33 Judgment available on Bailii, Cases, 2020 cases, Miscellaneous


* FMPOs and capacity Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190(1) The Family Court the court has jurisdiction to make a Forced Marriage Protection Order to protect an adult who does not lack mental capacity (and the statistics demonstrate that the courts regularly make FMPOs to protect capacitous adults). (2) An open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely. 2020‑02‑22 23:33:05 Judgment available on Bailii, Cases, 2020 cases, Other capacity cases


Article titles

The following 41 pages are in this category.