Category

Brief summary

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.
Page and summaryDate added to siteCategories
N v ACCG [2017] UKSC 22, [2017] MHLO 11 — "So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'." 2017-04-272017 cases, Best interests, Brief summary, ICLR summary, Transcript
Victoria Wadsworth (strike off) [2016] MHLO 58 (SDT) — Since 2007 Victoria Wadsworth had been in charge of a law firm's mental health department, and had invented another firm called "Healthy Minds" to pretend to write medical reports for clients, at the Legal Services Commission's expense. In the Crown Court she had admitted to obtaining £25,000 between 2007 and 2012 (though the law firm stated it had repaid £181,887.72, and the Legal Aid Agency statement referred to a value exceeding £134,000 being repaid). At the time of the hearing, she was in prison having been sentenced to three years (reduced to two on appeal) for fraud, but the Solicitors Disciplinary Tribunal proceeded in her absence. The Tribunal agreed that the rule 5(2) allegations which had commenced its proceedings had been superseded by the conviction and should lie on file. The Tribunal found breaches of Principle 1 (which requires a solicitor to uphold the rule of law and the proper administration of justice), Principle 2 (which requires a solicitor to act with ..→2017-02-112016 cases, Brief summary, SRA decisions, Transcript
R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3 — The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have ..→2017-01-272017 cases, Brief summary, Powers, Transcript
R v Fuller [2016] EWCA Crim 1867, [2016] MHLO 53 — (1) IPP sentence quashed and replaced with a restricted hospital order. (2) Request for anonymisation refused. 2016-12-152016 cases, Anonymisation cases, Brief summary, Sentence appeal cases, Transcript
Jimoh Adun of Nieko Solicitors (SRA decision: control of practice) [2016] MHLO 23 — (1) The SRA decided on 15/7/15 (decision published 24/7/15) that Mr Adun's practising certificate for 2014/2015 would be subject to the following conditions: "(a) Mr Adun is not to be a recognised sole practitioner, manager or owner of any authorised body or authorised non-SRA firm; (b) Mr Adun shall immediately inform any actual or prospective employer and relevant authorised body's authorised signatory and/or organisation contact of these conditions and the reasons for their imposition." (2) Reasons: "Jimoh Adun is subject to Regulation 3 of the SRA Practising Regulations 2011. He was the sole manager and owner of the firm Nieko Solicitors, which was subject to an intervention decision dated 5 December 2014. The grounds for intervention were abandonment of practice and that the intervention was necessary to protect the interests of clients (former or potential) of Mr Adun. The SRA had been advised that he was being investigated by the Legal Aid Agency. His conduct is currently ..→2016-07-302016 cases, Brief summary, No transcript, SRA decisions
RP v Dudley and Walsall Mental Health Partnership NHS Trust [2016] UKUT 204 (AAC), [2016] MHLO 15 — Unsuccessful Article 8 challenge to conditions of discharge. 2016-05-092016 cases, Brief summary, Transcript, Upper Tribunal decisions
Re P (Huntingdon's disease patient at Royal Liverpool and Broadgreen University Hospitals NHS Trust) [2016] MHLO 13 — This case involved a man in his 30s in the advanced stages of Huntington’s disease who had repeatedly pulled out a feeding tube attached to his stomach. The Trust applied for a ruling on what treatment would be in his best interests. Having heard evidence from a consultant neurologist (who said that it would not be right, and would be futile, to re-insert the feeding tube), and other evidence, including from relatives, Hayden J concluded that the tube should not be reinserted, even though this would hasten the man’s death. (Summary based on Press Association article.) 2016-05-012016 cases, Best interests, Brief summary, Transcript
Lord Chancellor v John Blavo [2016] EWHC 126 (QB), [2016] MHLO 6 — There was a strongly arguable case that John Blavo was party to an arrangement whereby false claims were submitted to the LAA in many thousands of cases, there was evidence of a less than scrupulous approach to his duty of disclosure to the Court, and evidence of a recent attempt improperly to put property beyond the reach of the Lord Chancellor. Taking these matters together there was a real risk that any judgment would go unsatisfied because of disposal of assets. Given the sums of money involved and the admitted financial difficulties it was just and convenient in all the circumstances to continue the freezing order. (The precursor to the official investigation was an audit during which 49 files were passed to the LAA's counter-fraud team, whose conclusions included: "In respect of 42 of these 49 files HMCTS have confirmed that they have no record of there having been tribunal proceedings either in respect of the individual client or on the date when the file indicates...Following ..→2016-02-022016 cases, Brief summary, Miscellaneous, Transcript
Birmingham City Council v D [2016] EWCOP 8, [2016] MHLO 5 — (1) A parent cannot consent to the confinement (i.e. the objective element of Article 5 deprivation of liberty) of a child who has attained the age of 16. (2) The confinement was imputable to the state despite the accommodation being provided under s20 Children Act 1989, as the local authority had taken a central role; in any event, even if D's confinement were a purely private affair the state would have a positive obligation under Article 5(1) to protect him. (3) The judge did not resile from his previous judgment that D's parents could consent to his confinement in hospital when he was under 16. 2016-01-312016 cases, Brief summary, Deprivation of liberty, ICLR summary, Transcript
R v Fletcher [2015] EWCA Crim 2007, [2015] MHLO 133 — The appellant unsuccessfully sought a restricted hospital order in place of an IPP sentence. 2016-01-282015 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R (C) v SSJ [2016] UKSC 2, [2016] MHLO 2 — (1) There is no presumption of anonymity in proceedings which are about the compulsory powers of detention, care and treatment under the 1983 Act: in each case the judge must decide whether or not anonymity is necessary in the interests of the patient. (2) On the facts, an anonymity order was necessary in the interests of this particular patient. Extracts from judgment: "The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 (“the 1983 Act”). The second issue is whether there should be an anonymity order on the facts of this particular case. ... The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every ..→2016-01-272016 cases, Anonymisation cases, Brief summary, ICLR summary, Transcript
WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132 — The tribunal, having decided that the appropriate treatment test in s72(1)(b)(iia) was met, refused to discharge a patient who had a diagnosis of dissocial personality disorder. (1) The Upper Tribunal allowed the appeal on the following grounds: (a) The appropriate treatment test relates only to the treatment that a patient is receiving at the detaining hospital, so the tribunal erred in law by considering the test met because treatment was available elsewhere. (b) The tribunal also erred in law by providing inadequate reasons: (i) the reasons were not set out by reference to the relevant criteria; (ii) the tribunal failed to address any of the solicitor's submissions about appropriate treatment; (iii) it was unclear what evidence was accepted or rejected, and why; (iv) the tribunal made findings which were wholly unsupported by the evidence. (2) The Upper Tribunal also stated that: (a) The tribunal is required to evaluate the evidence and reach its own conclusions, so was not ..→2016-01-032015 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
AM v Partnerships in Care Ltd [2015] UKUT 659 (AAC), [2015] MHLO 106 — The First-tier Tribunal, on the basis of their finding that the patient had committed two rapes, refused to discharge because sexual understanding and treatment work had not been undertaken. The Upper Tribunal held: (1) The tribunal had made a mistake of fact which undermined its conclusion as to the rapes, which was a fundamental error in the light of which the tribunal’s decision not to discharge could not stand. (2) The tribunal’s decision was made in error of law because of its failure to take into account relevant considerations. It had not scrutinised the evidence carefully or addressed features of the evidence which may cast doubt on the allegations; rather, the reasons gave the impression that, having found that AM lacked credibility generally, the tribunal simply and illogically accepted that the rape allegations were true because they were viewed as credible at the time. (3) A decision as to risk must involve findings of fact, not merely suspicion that an act was done ..→2015-12-172015 cases, Brief summary, MHLR summary, Missing from Bailii, Transcript, Upper Tribunal decisions
MM v WL Clinic [2015] UKUT 644 (AAC), [2015] MHLO 103 — (1) For the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in KC at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case. 2015-11-262015 cases, Brief summary, Deprivation of liberty, MHLR summary, Powers, Transcript, Upper Tribunal decisions
M v Mrs N [2015] EWCOP 76, [2015] MHLO 102 — It was in the best interests of N, who was in a minimally-conscious state, not to continue to receive clinically assisted nutrition and hydration. The judge concluded that: "Ultimately, I have concluded that her wishes, so thoughtfully presented by her family, coupled with the intrusive nature of the treatment and its minimal potential to achieve any medical objective, rebut any presumption of continuing to promote life. Quite simply, I have come to the conclusion that it would be disrespectful to Mrs. N to preserve her further in a manner I think she would regard as grotesque." 2015-11-232015 cases, Brief summary, Medical treatment cases, Transcript
R (Howard League for Penal Reform) v Lord Chancellor [2015] EWCA Civ 819, [2015] MHLO 101 — This was an appeal against the refusal of permission to apply for judicial review of changes introduced to criminal legal aid for prison law by the Criminal Legal Aid (General) (Amendment) Regulations 2013. (1) The 'lack of consultation' challenge was unarguable. (2) The appellants also challenged the removal of criminal legal aid funding in seven principal areas of prison law (including pre-tariff reviews and return to open condition cases before the Parole Board) on the basis that they either impact upon the liberty of the prisoner or they engage his or her Article 8 Convention rights in a way that is systemically unfair. The Court of Appeal accepted that it was arguable that, without appropriate assistance, the system could carry an unacceptable risk of unlawful decision making in relation to those with mental health, learning or other difficulties which effectively deprive them of the ability effectively to participate in the relevant decisions. 2015-11-142015 cases, Brief summary, Miscellaneous, Transcript
XZ v The Public Guardian [2015] EWCOP 35, [2015] MHLO 98 — "This is an application regarding the effectiveness of some provisions contained in a Lasting Power of Attorney ('LPA') for property and financial affairs. It is not a type of application for which permission would normally be given for a judgment to be published. However, paragraph 16 of the Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5, says that "permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest." I can't imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication. ... XZ wants his attorneys to act only when he lacks capacity. In his LPA he has described in intricate detail the ..→2015-11-132015 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript
L v NG [2015] EWCOP 34, [2015] MHLO 97 — Headnote from judgment: "Application by the sister of NG to be appointed as his deputy for property and affairs together with her sons – Even if NG lacked capacity to manage his property and affairs it was not in his best interests to appoint a deputy to manage his property and affairs." The main part of the decision is the following: "Section 16(4) of the Act provides that when deciding whether it is in the relevant person's interests to appoint a deputy, the court must have regard to section 4 (best interests) and the principle that a decision by the court is to be preferred to the appointment of a deputy to make a decision. The fact that a person generally lacks capacity to manage their property and affairs does not automatically mean that it is in their best interests to appoint a deputy to manage their property and affairs. The best interests requirements of section 4 require the court to consider the wishes, feelings, beliefs and values of the person concerned. One of the ..→2015-11-132015 cases, Brief summary, Deputyship cases, Transcript
A Hospital NHS Trust v CD [2015] EWCOP 74, [2015] MHLO 94 — CD was willing to have the total abdominal hysterectomy, in order to remove two very large ovarian growths, which the medical experts recommended. (1) Mostyn J held that she lacked capacity in relation to this but that it was in her best interests to have the surgery. (2) The correct way to interpret the MCA ineligibity rules is as follows: "if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn't (obviously) so she isn't ineligible." (3) In relation to deprivation of liberty the judge noted: "In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated 'even if Cheshire West is wrong, there is nothing confusing about it'. It may seem that way from the lofty heights of ..→2015-11-132015 cases, Best interests, Brief summary, Deprivation of liberty, Transcript
An NHS Trust v A [2015] EWCOP 71, [2015] MHLO 91 — A patient detained under MHA 1983 s3 was not ineligible to be deprived of his liberty in a general hospital under the MCA 2005 for the purpose of physical treatment (and the previous case on this point, A Local Health Board v AB [2015] EWCOP 31, [2015] MHLO 95, should be read as if the judge accidentally omitted a negative and inadvertently and mistakenly stated the law wrongly). 2015-11-122015 cases, Brief summary, Deprivation of liberty, Transcript
Tricker v Church [2013] EWCOP 2, [2013] MHLO 152 — The application for an order to enforce the receiver's security bonds was rejected, and costs were to be paid by the applicant personally. 2015-11-042013 cases, Brief summary, Deputyship cases, Transcript
R (MM and DM) v SSWP (Costs) [2015] UKUT 566 (AAC), [2015] MHLO 73 — Tribunals Judiciary website summary: "When a case is transferred to the Upper Tribunal by the High Court in the exercise of its discretion, the Upper Tribunal will apply the approach to costs taken under CPR." 2015-10-302015 cases, Brief summary, Transcript, Upper Tribunal decisions
Blavo and Co Solicitors (SRA decision: closure) [2015] MHLO 70 — The SRA closed down Blavo & Co Solicitors and suspended John Blavo's practising certificate, giving the following reasons: (a) there is reason to suspect dishonesty of the part of a manager or employee of Blavo & Co Solicitors Limited; (b) there is reason to suspect dishonesty on the part of John Blavo in connection with his practice; (c) to protect the interests of clients of Blavo & Co Solicitors Limited. 2015-10-162015 cases, Brief summary, SRA decisions, Transcript
North Yorkshire County Council v MAG [2015] EWCOP 64, [2015] MHLO 69 — The Council sought a declaration that it was in MAG's best interests (a) to be deprived of his liberty and reside in his current placement, and (b) for the Corporate Director of Health and Adult services to enter into a tenancy agreement on MAG's behalf in relation to the current placement. (1) The reference in Re MN (An Adult) [2015] EWCA Civ 411, [2015] MHLO 41 to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. (2) The placement at which MAG had been deprived of his liberty for 9 years did not meet his needs (for instance, there was insufficient room to manoeuvre a wheelchair indoors, so he had to mobilise on his hands and knees causing physical problems including bursitis and a recurring fungal infection in his thigh) and the council ..→2015-10-072015 cases, Brief summary, Deprivation of liberty, Transcript
PJ v A Local Health Board [2015] UKUT 480 (AAC), [2015] MHLO 63 — The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then the tribunal (whether by the statutory criteria or under its discretion) ..→2015-09-102015 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC), [2015] MHLO 60 — The patient was living outside hospital on s17 leave but was required to attend hospital for fortnightly psychology sessions and a monthly ward round. He challenged the tribunal's decision that it remained appropriate for him to be liable to be detained in hospital under s3 for medical treatment. This was unsuccessful as the tribunal had applied the correct legal test and had applied it properly. The UT judge added that medical treatment includes rehabilitation under medical supervision, which meant that the s17 leave and the rehabilitation provided outside hospital, both of which operated under medical supervision, were themselves part of the treatment plan. 2015-08-072015 cases, Brief summary, Transcript, Upper Tribunal decisions
Case HM/0339/2015 [2015] MHLO 57 (UT) — After the case had been adjourned part-heard, the patient's withdrawal was agreed by a tribunal clerk. The panel judge spoke with a salaried tribunal judge, who then set aside the decision to consent to withdrawal, and the tribunal reconvened without discharging the patient. The salaried tribunal judge's decision was unlawful and the tribunal therefore had no jurisdiction to continue with the hearing. (Under the subsequent Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 [2015] MHLO 36 the original decision would not have been made by a clerk.) 2015-07-262015 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
SSJ v KC [2015] UKUT 376 (AAC), [2015] MHLO 49 — (1) A conditional discharge may include conditions which will, on an objective assessment, give rise to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA. (2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no Article 5 deprivation of liberty. 2015-07-152015 cases, Brief summary, Deprivation of liberty, Transcript, Upper Tribunal decisions
Re MOD (Deprivation of Liberty) [2015] EWCOP 47, [2015] MHLO 48 — Nine cases which had been issued under the Re X streamlined procedure were listed for directions before DJ Marin. (1) One case (ML) would require a best interests hearing so never really belonged in the Re X procedure, but orders under the Re X procedure would or would potentially have been made in the other cases. (2) The Court of Appeal in Re X had (obiter, and without referring to new rule 3A) decided that P should be a party in every deprivation of liberty case. (3) Party status would entail the need for a litigation friend but, except for an IMCA in one case (MOD), no-one suitable had been identified: (a) in most of these cases, the family may be said to have an adverse interest to the person concerned; (b) there must be a question in every case as to whether family members have the required expertise; (c) the Official Solicitor refused to act as his COP Health & Welfare team was already "fire-fighting" at an unsustainable level owing to budgetary constraints; (d) IMCAs in one ..→2015-07-122015 cases, Brief summary, Deprivation of liberty, Transcript
R (MT) v Oxford City Council [2015] EWHC 795 (Admin), [2015] MHLO 47 — The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the Housing Act 1996. (1) The claimant's argument that Article 14 (with Article 8) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 National Assistance Act 1948). 2015-06-262015 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
LB Redbridge v G (No 6) [2015] EWCA Civ 446, [2015] MHLO 40 — The Official Solicitor unsuccessfully appealed against an order that Associated Newspapers Limited should pay (only) 30% of his costs. (1) The primary ground of appeal - that the COP Rules did not apply - was described by the Court of Appeal as "simply a device to suggest that the costs presumption should be reversed". (2) The alternative ground was that if the COP Rules did apply then the judge had erred in the exercise of his discretion in the proportionate costs order that he made. In relation to this the Court of Appeal held that (a) given that inaccurate letters from the OS (stating that that ANL were prevented from visiting G) had triggered ANL's application, and that the OS had not understood the public importance of the media's general role, a proportionate costs order was unsurprising; and (b) multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. 2015-05-232015 cases, 39 Essex Chambers summary, Brief summary, COP costs cases, Transcript
ABC v St George's Healthcare NHS Trust [2015] EWHC 1394 (QB), [2015] MHLO 39 — The claimant's father had killed his wife, was detained under s37/41, and refused to allow the Trust to inform his pregnant daughter of his Huntingdon's disease diagnosis. She claimed that the failure to inform her: (a) was negligent and breached Article 8; and (b) had caused psychiatric damage, and (if her daughter also has the disease) additional expense which she would have avoided by an abortion. Her claim was struck out. 2015-05-232015 cases, Brief summary, Miscellaneous, Transcript
DD v Dudley and Walsall NHS Trust [2014] MHLO 145 (PI) — The Claimant's partner committed suicide while being detained under s2 Mental Health Act. The Claimant and the deceased were not married but had been cohabiting for a number of years. The deceased was also the Claimant's full time carer as a result of the spinal fusion surgery the Claimant had undergone some years previously. The deceased had a history of mental illness which was depressive in nature. At the time of his death his mental health had deteriorated significantly. While detained under the Mental Health Act, the deceased was initially assessed as not having capacity nor insight into his illness; he was also becoming aggressive and a risk to himself and others. However, an assessment by the duty doctor the following night did not indicate that the deceased was a self-harm risk, nor were there any known acts/plans since admission. Later that evening the deceased killed himself. The Trust carried out a Serious Untoward Incident investigation which highlighted a number of ..→2015-04-132014 cases, Brief summary, Miscellaneous, No transcript
NM v Kent County Council [2015] UKUT 125 (AAC), [2015] MHLO 34 — NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS ..→2015-04-102015 cases, Brief summary, Deprivation of liberty, Transcript, Upper Tribunal decisions
Rochdale MBC v KW [2015] EWCOP 13, [2015] MHLO 24 — (1) The Court of Appeal's decision to allow an appeal against the judge's earlier decision (that KW was not being deprived of her liberty at home) by consent, and without an oral hearing or judgment, was procedurally impermissible. (2) Although the Court of Appeal had set aside the decision, it had not actually declared that KW was deprived of her liberty: therefore, her status will be in limbo until the judge decides the matter at an oral 12-month review hearing. (3) The provisions for a review on the care plan becoming more restrictive would only be triggered if the changes amount to bodily restraint comparable to that which obtained in Cheshire West, as any restrictions short of that would amount to no more than arrangements for her care in her own home and would not amount to state detention. (4) The judge concluded that: "In this difficult and sensitive area, where people are being looked after in their ..→2015-03-242015 cases, Brief summary, Deprivation of liberty, Transcript
MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10 — (1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a ..→2015-01-312015 cases, Brief summary, ICLR summary, Other capacity cases, Transcript
Cambridgeshire County Council 13 016 935 [2015] MHLO 9 (LGO) — LGO's summary: "Complaint from a woman that the council moved her husband into a residential home against both his and her wishes. She says she was forced to accept this course of action and the council failed to properly consider her preference of care home. The Ombudsman upheld the complaint and found fault causing injustice. Recommendations: To remedy the injustice caused, we recommend the council (within three months of the date of our report): (1) apologise to the woman for the failures outlined in our report. This apology should accept responsibility for the faults, and acknowledge the impact these had on her. It should also include an assurance that the same faults will not happen again, and explain what steps have been taken to ensure this; (2) set a timetable for refresher training for social care staff on mental capacity assessments, best interests decisions, deprivation of liberty and the role of the Court of Protection and how to advise the public on their rights. This may ..→2015-01-312015 cases, Brief summary, LGO decisions, Transcript
Jimoh Adun of Nieko Solicitors (SRA decision: closure) [2015] MHLO 4 (SRA) — The SRA decided to intervene because Jimoh Adun had abandoned his practice at Nieko Solicitors, and it was necessary to protect the interests of clients (former or potential) and any beneficiaries of any trust of which he is or was a trustee. The SRA was unable to gain access on 8/12/14 but gained access three days later with a court order. 2015-01-292015 cases, Brief summary, No transcript, SRA decisions
LB Hillingdon v PS [2015] MHLO 3 (COP) — Faced with an impasse about contact between PS and M, Hillingdon asked the court to determine what was in PS's best interests. Permission was required under MCA 2005 s50 and CS objected to the grant of permission. The factors in s50 required for permission were satisfied. Also, the court could give effect to the rules in accordance with the overriding objective (dealing with the case justly, including having regard to proportionality). The judge gave the following directions: (a) M to be served with a copy of the application and joined as a party; (b) CS to be joined as party; (c) permission to the attorneys to intervene; (d) final hearing listed and provision made for statements to be filed; (e) Court of Protection Visitor to visit PS to ascertain his wishes and feelings and to gather information relevant to the issue of contact in the same way Cafcass would report in a children's case; (f) costs reserved. 2015-01-292015 cases, Best interests, Brief summary, Transcript
Essex County Council v RF [2015] EWCOP 1, [2015] MHLO 2 — (1) A final declaration was made that P lacked capacity to make decisions in relation to his residence and care arrangements, but retained capacity to make decisions in relation to contact with others. (2) In considering quantum for unlawful detention there is a difference between procedural breaches (which would have made no difference to P's living or care arrangements) and substantive breaches (where P would not have been detained if the authority had acted lawfully). (3) The judge approved the following compromise agreement: (a) a declaration that ECC unlawfully deprived P of his liberty for approximately 13 months; (b) £60,000 damages; (c) care home fees to be waived (around £23-25,000); (d) damages to be excluded from means testing for community care costs; (e) costs to be paid (may exceed £64,000). (4) The judge described the situation as follows: "It is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91 year old gentleman in the final ..→2015-01-212015 cases, Brief summary, Deprivation of liberty, Transcript
Lucia Benyu (strike off) and Ronnie Benyu (section 43 order) [2014] MHLO 138 (SDT) — (1) In relation to Lucia Shingirai Benyu, née Ndoro, who at the material time practised as a sole practitioner under the style of Peters & Co Solicitors, the Solicitors Disciplinary Tribunal concluded that: "The First Respondent had admitted a lack of integrity and had had several allegations of dishonesty proved against her. The Tribunal had heard a litany of the most ruthless exploitation of an obviously vulnerable individual and had disbelieved much of what the First Respondent had to say whilst giving evidence on oath. In cases where dishonest misappropriation of client’s funds had been found then it was well-established that that would invariably lead to strike off. There were no circumstances put before the Tribunal that might lead it to mitigate that penalty. The First Respondent would be struck off the Roll of Solicitors. Indeed, the seriousness of her misconduct was such that this would have been the appropriate sanction even if she had not been found to be dishonest." ..→2014-12-312014 cases, Brief summary, SRA decisions, Transcript
AG's reference (no 91 of 2014) sub nom R v Joseph Williams [2014] MHLO 137 (CA) — The trial judge had imposed a sentence of 14 years' imprisonment, together with with a s45A hospital order and limitation direction, on an offender (W) who had pleaded guilty to attempted murder. Following an AG's reference the Court of Appeal held that: (1) The appropriate range was 17-25 years, the starting point was 20 years after a trial, and the judge was not at fault for reducing the sentence by six years given the unusual facts of the case that related to W's mental health. (2) It was not certain that the offence was motivated by antipathy to V's sexual orientation; it could equally have been the case that W did not want to share his flat with anyone. (3) As the judge considered that W's dangerousness was not confined to his mental illness, he should have passed an extended sentence to protect the public in the event that the criteria for the hospital order and restrictions were no longer satisfied, but the offender remained a risk to the public. (4) An extended period of ..→2014-12-312014 cases, Brief summary, Hybrid order cases, Sentence appeal cases, Transcript
Hysaj v SSHD [2014] EWCA Civ 1633, [2014] MHLO 135 — In each of these three cases, which were heard together, the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time. The mental health case involved a nearest relative who had been awarded costs after displacement proceedings and who (nearly six years out of time) wished to appeal against the sum ordered by the judge. The Court of Appeal, having held that the guidance in the Mitchell and Denton cases applied to applications for extensions of time for filing a notice of appeal, dealt with some questions of general importance (public law cases, shortage of funds, litigants in person, the merits). In the mental health case, the extension of time was refused. 2014-12-312014 cases, Brief summary, ICLR summary, Miscellaneous, Transcript
R (Guntrip) v Parole Board [2014] EWHC 4180 (Admin), [2014] MHLO 132 — (1) When the prisoner was transferred to psychiatric hospital an unlawful and unfair decision was taken to cancel (rather than adjourn) a Parole Board hearing. (2) The delay of 12 months breached Article 5(4) and damages of £2,500 were awarded. 2014-12-312014 cases, Brief summary, Prison law, Transcript
A Local Authority v M [2014] EWCOP 33, [2014] MHLO 119 — (1) Legal Aid: "One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy." (2) Disclosure: "In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. ... This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure." (3) ..→2014-12-302014 cases, Brief summary, Other capacity cases, Transcript
R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin), [2014] MHLO 104 — In this case Essex argued that VC lacked capacity to have consented to her place of residence, and therefore had not been resident in Essex for the purposes of s117. The result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself. They were unsuccessful. Extract from judgment: "I do not however read these passages as deciding that a person cannot acquire residence in a place unless he does so voluntarily. Still less do they decide that residence may only be acquired as a result of a decision made by a person with capacity, or lawfully on his behalf by someone else. ... The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. There may be reasons to conclude that he has not lost an ..→2014-11-032014 cases, After-care, Brief summary, Transcript
R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712, [2014] MHLO 103 — The patient had been placed under a hospital order when he was resident in Wiltshire. He was conditionally discharged with a condition to reside in Hertfordshire. He had no wish to return to Wiltshire, but the Court of Appeal decided that the residence condition meant his place of residence was not voluntary, and decided that he was still 'resident' in Wiltshire. 2014-11-032014 cases, After-care, Brief summary, ICLR summary, Transcript
Lucia Benyu (SRA decision: control of practice) [2014] MHLO 99 (SRA) — (1) The SRA decided that as Lucia Benyu, née Ndoro, was in an Individual Voluntary Arrangement, and her conduct was under investigation, the following conditions on her 2013/14 practising certificate were necessary: (a) she may act as a solicitor only as an employee; which role has first been approved in writing by the SRA; she is not a sole practitioner, or a manager or owner of any authorised body or authorised non-SRA firm except as a minority share owner in Peters Legal Limited (SRA ID 607645); (c) she does not hold, receive or have access to client money or have responsibility for any client money; (d) she is not a signatory to any client or office account and does not have the power to authorise electronic payments or transfers from any client or office account; (e) Mrs Benyu shall immediately inform any actual or prospective employer of these conditions and the reasons for their imposition. (2) She was subsequently struck off the roll of solicitors by an order of the ..→2014-10-272014 cases, Brief summary, No transcript, SRA decisions
An NHS Foundation Trust v Ms X [2014] EWCOP 35, [2014] MHLO 96 — An NHS Foundation Trust sought declarations that: (a) it is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life; (b) it is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply. The judge decided that X should not be compelled to have treatment for her anorexia, and made the declarations, but expressed the hope that she would realise the benefit of treatment. 2014-10-092014 cases, Best interests, Brief summary, Transcript
MAP v RAP [2013] EWHC 4784 (Fam), [2013] MHLO 151 — A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance. 2014-08-242013 cases, Brief summary, Other capacity cases, Transcript
Re MM [2013] MHLO 150 (UT) — (1) The tribunal did not misdirect itself by applying the s2 criteria to a s3 case. (2) However, the tribunal's reasoning was inadequate. The tribunal stated that all the evidence was to the effect that MM's mental disorder 'warrants his treatment in hospital' (this is language from the s2 criteria), but it was only (part of) the medical evidence in which there was any confusion as to the criteria. The findings of fact (that the condition was chronic and relapsing etc) did not show that the mental disorder warranted detention (or made it appropriate). The only finding that could support the tribunal's decision was the medical evidence, which was affected by reference to the wrong legal test. In those circumstances the tribunal should have (a) shown that they had applied the correct criteria and not made the same mistake as the doctor, and (b) shown by precise findings of fact that the s3 criteria were satisfied. A blanket reference to a possibly-contaminated report did not ..→2014-08-172013 cases, Brief summary, Transcript, Upper Tribunal decisions
McCann v State Hospitals Board for Scotland [2014] CSIH 71, [2014] MHLO 93 — The smoking ban at Carstairs Hospital, which at first instance had been declared to be unlawful, was decided on appeal to be lawful. 2014-08-152014 cases, Brief summary, Scottish cases, Transcript
Re X (anonymity) [2014] EWCA Civ 1009, [2014] MHLO 90 — The press has reported this case as follows: a restricted transferred prisoner patient in medium security judicially reviewed the Secretary of State's refusal to grant permission for unescorted community leave; Cranston J refused to make an anonymity order, a decision upheld by the Court of Appeal (Lord Dyson MR; Maurice Kay LJ, VP; Floyd LJ). It is understood that an appeal will be made to the Supreme Court. 2014-08-112014 cases, Brief summary, No transcript, Re X (anonymity) [2014] EWCA Civ 1009, [2014] MHLO 90
Re X (amputation) [2014] MHLO 89 (CA) — The Court of Protection had decided that X lacked capacity to consent to a below-knee amputation to treat her foot infection, and that this treatment was in her best interests. The Court of Appeal refused her son permission to appeal. (1) The judge's decision on capacity was correct. (2) The judge was also correct on best interests: there was no need for further tests to determine best interests; the medical experts had no difficulty reaching their conclusions and there was no disagreement; the alternatives were unsuitable (for example, antibiotics would cease to be effective); the son was worried about death in theatre, but in fact surgery gave X the best chance of survival; her condition was deteriorating and the infection would spread without amputation. (Summary based on Lawtel report of ex tempore judgment - transcript not available at time of writing.) 2014-08-112014 cases, Best interests, Brief summary, No transcript
Sandwell and West Birmingham Hospitals NHS Trust v CD [2014] EWCOP 23, [2014] MHLO 83 — (1) Capacity and best interests in relation to life-sustaining treatment. (2) Guidance regarding out-of-hours applications involving medical treatment. 2014-08-052014 cases, Best interests, Brief summary, Transcript
AG's ref (no 34 of 2014) sub nom R v Jenkin [2014] EWCA Crim 1394, [2014] MHLO 56 — Criminal sentencing case with mental health background (a s45 hybrid order had been given in conjunction with life sentences). The Court of Appeal clarified that if a sentencing court "chooses to work with the currency of minimum terms, as it generally will do in homicide cases involving mandatory or discretionary life sentences, it does not need to have regard to the early release provisions". In this case, the judge should not have halved the 12-year minimum term to 6 years. A minimum term of 13 years 4 months was substituted. 2014-07-282014 cases, Brief summary, Sentence appeal cases, Transcript
R (M) v Kingston Crown Court [2014] EWHC 2702 (Admin), [2014] MHLO 50 — M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it. 2014-07-222014 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript
R (L) v West London MH NHS Trust [2014] EWCA Civ 47, [2014] MHLO 49 — (1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided ..→2014-07-222014 cases, Brief summary, ICLR summary, Miscellaneous, Transcript
MH v MHRT for NI (2014) NIQB 87, [2014] MHLO 48 — The patient challenged the MHRT's decision on the grounds that "(i) the approach of the MHRT was unlawful and that the MHRT had not adopted the narrow focused based approach required under Article 77(1) and Article 2(4) of the Order and, (ii) the MHRT had misunderstood the meaning of "discharge" and had failed to take into account the applicant's stated intention which was to remain in hospital as a voluntary patient if discharged from detention". These challenges were rejected. The tribunal's decision was the only reasonable one on the evidence. 2014-07-222014 cases, Brief summary, Northern Irish cases, Transcript
Re Jared Britton [2013] MHLO 146 (FTT) — Extract from decision: "In a decision given on 26 September 2011, the application by Mr Jared Britton that his application dated 4th September 2009 should be held in public was granted. The fact of this decision should be published. The reasons for the decision must not to be made public. An open hearing is now listed at Liverpool Crown Court on Wednesday 3rd April 2013 for an all day hearing starting at 10.30am." 2014-07-172013 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript
Bostridge v Oxleas NHS Foundation Trust [2014] MHLO 42 (CC) — A tribunal’s deferred discharge from s3 took place just before a CTO was purportedly imposed. Recall from that (non-existent) CTO, and subsequent detention, had been unlawful; however, because no loss had been shown, following Lumba (a Supreme Court decision on immigration detention), only nominal damages were awarded in this county court case. (The Court of Appeal gave permission to appeal.) 2014-06-172014 cases, Brief summary, Transcript, Unlawful detention cases
TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26 — The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life." 2014-05-102014 cases, Brief summary, ICLR summary, Nearest relative, Transcript
RB v Brighton and Hove CC [2014] EWCA Civ 561, [2014] MHLO 25 — This is the executive summary and conclusion from the Court of Appeal decision: "In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle and (b) to suffer serious or fatal injuries in consequence. The Council granted a standard authorisation pursuant to schedule A1 to the Mental Capacity Act 2005 ('MCA'), which enabled staff to detain RB at S House. RB brought proceedings in the Court of Protection to terminate the standard authorisation. The Court of Protection dismissed the application and RB appealed to the Court of Appeal. He contends that two preconditions for deprivation of liberty are not satisfied, namely ..→2014-05-102014 cases, Best interests, Brief summary, Deprivation of liberty, Transcript
Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 (COP), [2014] MHLO 22 — A detained patient (RC) was self-harming by cutting and had made an advance decision refusing blood transfusions. (1) RC had capacity to refuse blood transfusions and sometimes had capacity to lacerate himself. (2) The advance decision was valid and applicable. (3) The self-harming was a symptom or manifestation of mental disorder so a blood transfusion would be treatment under s63 MHA 1983. (4) Where the consequences of a decision not to impose s63 treatment may be life-threatening the Trust should apply to the High Court for declaratory relief and (just as with a decision to impose treatment) the hearing will involve a 'full merits review'. (5) It would be lawful to withhold blood transfusions despite the s63 power (indeed, the judge stated that given RC's current capacity and advance decision it would be 'an abuse of power ... even to think about imposing a blood transfusion' and that it 'would be a denial of a most basic freedom'). 2014-05-022014 cases, Advance decision cases, Brief summary, Transcript
Re Davies [2012] MHLO 184 (LPA) — The donor appointed four attorneys, A, B, C and D, to act jointly and severally, and imposed the following restriction: "The appointment of C and D shall not take effect unless I am mentally and/or physically incapable of managing my affairs and the appointment of C shall not take effect unless she has been in my employment within the period of one month preceding my loss of capacity to manage my affairs." This restriction was severed on the ground that the appointments of co-attorneys cannot be activated at different times. [OPG summary - LPA case.] 2014-04-292012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Buckley [2013] MHLO 144 (LPA) — The donor made an LPA for property and financial affairs and included the following provision: "Assets should be used firstly to ensure the well being and comfort of [my wife] and secondly to meet any urgent need of the families of the Attorneys and thereafter managed until distributed in accordance with the terms of my will." On the application of the Public Guardian the provision was severed. Although the attorneys would have power to maintain the donor's wife (see Re Bloom above), this should not be the priority of the LPA because section 1(5) of the MCA provides that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." The attorneys had no authority to meet the needs of their families, as the donor was not under any legal obligation to maintain them. Any maintenance of the families would be a gift which would potentially fall outside section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Rider [2013] MHLO 143 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "No political donations to be made other than to the conservative party." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. While section 12(2)(b) permits the making of gifts to charities (subject to certain conditions), donations to the conservative party, or any other political party, would not fall within that provision. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Barac [2013] MHLO 142 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "After having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation [e.g. Inheritance Tax] and be able to create Trusts where beneficial." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bishop [2013] MHLO 141 (LPA) — The donor appointed attorneys to act jointly and severally and included the following provision: "I direct that my attorneys shall endeavour to act jointly on decisions wherever possible. They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made." On the application of the Public Guardian the provision was severed as being incompatible with a joint and several appointment. Although in the guidance section, it was expressed in mandatory terms and was in substance a restriction. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Julia Lomas v AK (gift application) [2014] EWHC B11 (COP), [2014] MHLO 21 — AK's financial deputy sought the court's approval of a £150,000 gift to AK's parents to allow them to build a suitably-adapted house for when AK stayed in Pakistan each year; she sought a gift as it would be unrealistic in Pakistan to obtain receipts for all expenditure and expensive to translate those received. The Official Solicitor supported the proposed gift only if it proved impossible for AK instead to purchase an interest in the land or part of it. The judge decided that it would be in AK's best interests for a 10-year interest-free £150,000 loan to be made to his parents, and authorised the deputy to make annual gifts of £15,000, from any surplus, to AK's parents to assist them in repaying this loan. This arrangement was preferable to a gift because AK would retain the capital as part of his estate, and it was more likely to ensure that his parents actually carried out the building work; coincidentally, it should avoid inheritance tax. 2014-04-272014 cases, Brief summary, Other capacity cases, Transcript
Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1136 (COP), [2014] MHLO 20 — A detained patient with a severe personality disorder was self-harming by cutting and had to be mechanically restrained to prevent this. (1) He had made an advance decision, apparently with capacity to do so, refusing blood transfusions because of his religious beliefs: the court ruled that this was valid and applicable, but only on an interim basis since the document did not state that it was signed by the maker and the witness in each other's presence. (2) The Responsible Clinician accepted that a blood transfusion would be medical treatment for mental disorder under s63 MHA 1983, and therefore the advance decision could be overridden; however, because the patient's wishes were religious, she did not want to impose treatment: the Trust therefore sought the protection of a court declaration that her decision was lawful. (3) The court was unwilling to make the declaration, without hearing both sides of the argument, because of the importance of the issues (including the right to ..→2014-04-272014 cases, Advance decision cases, Brief summary, Transcript
Wandsworth CCG v IA [2014] EWHC 990 (COP), [2014] MHLO 19 — This case illustrates the difficulties in assessing capacity where: (a) the cognitive difficulties of the subject are multi-factorial; (b) there is evidence that the subject displayed strong and challenging pre-morbid personality traits; and (c) there is no doubt that he plainly has capacity in relation to decision-making in some domains of his life. Having heard oral evidence for the jointly-instructed expert neuro-psychiatrist, the court decided that IA had capacity in relation to (a) ongoing medical treatment; (b) future residence and care; and (c) management of his property and affairs. 2014-04-272014 cases, Brief summary, Other capacity cases, Transcript
R (Cornwall Council) v SSH [2014] EWCA Civ 12, [2014] MHLO 17 — (1) In deciding the ordinary residence of an adult lacking capacity the Secretary of State had erred in applying 'test 1' from the Vale case (that a person who is so severely handicapped as to be totally dependent upon a parent or guardian in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base). (2) Instead, the words 'ordinary residence' should, unless the context indicates otherwise, be given their ordinary and natural meaning. (3) There is much to be said for the court adopting in the context of severely incapacitated adults a test of ordinary residence similar to the test of habitual residence adopted for dependent children in Re A (namely where he is integrated into a social and family environment). (3) On the facts, the person was ordinarily resident in South Gloucestershire (where he lived) rather than Cornwall (where his parents lived). 2014-03-242014 cases, Brief summary, Community care, ICLR summary, Transcript
Lucia Benyu of Peters Legal Limited (SRA decision: prosecution) [2014] MHLO 15 (SRA) — On 28/1/14 the SRA published their 30/5/13 decision to prosecute, before the Solicitors Disciplinary Tribunal, Lucia Benyu (who until 18/4/2013 was the director of Peters Legal Limited, one of the largest mental health law firms). The Tribunal certified that there is a case to answer in respect of allegations which are or include that she: (1) failed to maintain properly written up and accurate accounting records; (2) authorised or permitted improper withdrawals of client money from client account; (3) failed promptly or at all to remedy the breaches; (4) failed to manage the financial affairs of the firm either effectively or properly; (5) submitted misleading correspondence and/or documents to third parties; (6) created correspondence and/or documents; (7) continued to act on behalf of clients when there existed a conflict between her own interests and those of her clients; and (8) failed to provide to a client adequate information regarding costs. 2014-03-162014 cases, Brief summary, No transcript, SRA decisions
Republic of South Africa v Dewani [2014] EWHC 153 (Admin), [2014] MHLO 3 — If the RSA government were to give a suitable undertaking, it would not be oppressive or unjust to return Dewani to the RSA for trial. The undertaking would need to be to the following effect: "In the event of the appellant being found unfit to be tried, he will be free to return to the UK, unless there is found to be a realistic prospect of his being tried within a year (or other stated reasonable period) of that finding and the trial takes place within the period. In any event the appellant must be free to return in the event a Court in South Africa, having found him unfit to be tried, embarked on the process of determining under the Criminal Procedure Act 1977 whether he did the act." 2014-02-052014 cases, Brief summary, Repatriation cases, Transcript
R v Yusuf (Nadia Ali) [2013] EWCA Crim 2077, [2013] MHLO 137 — The appellant sought a restricted hospital order in place of an IPP sentence, but was unsuccessful as her medical evidence addressed the current situation rather than the situation at the time of sentencing. 2013-12-302013 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R (McKay) v SSJ [2013] EWHC 3728 (Admin), [2013] MHLO 136 — Permission to apply for judicial review of the decision to refer the claimant prisoner to a prison Dangerous and Severe Personality Disorder (DSPD) unit for assessment was refused because it was 'a classic example of a situation in which two experts disagree' and it was not for the court to interfere and substitute its own view. 2013-12-302013 cases, Brief summary, Miscellaneous, Transcript
R v Kenyon (Lindsay) [2013] EWCA Crim 2123, [2013] MHLO 135 — Unsuccessful appeal against eight-month sentence for eight offences of neglect of a person who lacks capacity contrary to MCA 2005 s44. 2013-12-302013 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Transcript
R v Anderson (Darren Gabriel) [2013] EWCA Crim 2212, [2013] MHLO 134 — Appellant sought restricted hospital order, in place of IPP and s45A hybrid order, but was unsuccessful. 2013-12-302013 cases, Brief summary, Hybrid order cases, Missing from Bailii, Transcript
Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133 — Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area). 2013-12-302013 cases, Best interests, Brief summary, Missing from Bailii, Transcript
R (MM) v SSWP [2013] EWCA Civ 1565, [2013] MHLO 132 — (1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed. 2013-12-302013 cases, Brief summary, ICLR summary, Transcript, Welfare benefits cases
R v Odiowei [2013] EWCA Crim 2253, [2013] MHLO 131 — The appellant sought a restricted hospital order in place of a life sentence, relying on two recent medical reports which were critical of previous reports. The matter was adjourned for six weeks to obtain responses from the previous reports' authors. 2013-12-302013 cases, Brief summary, Life sentence cases, Missing from Bailii, Transcript
Obrey v SSWP [2013] EWCA Civ 1584, [2013] MHLO 129 — (1) The Upper Tribunal had not erred in law in finding that the cessation of Housing Benefit after 52 weeks as a hospital patient (which indirectly discriminated against the mentally ill) was justified . (2) The Court of Appeal discussed the limitations on appeals against the specialist Upper Tribunal. 2013-12-302013 cases, Brief summary, Transcript, Welfare benefits cases
RGB v Cwm Taf Health Board [2013] EWHC B23 (COP), [2013] MHLO 128 (COP) — At a time when she had been assessed to have capacity, Mrs B left her husband and did not wish him to see her. On the basis of these wishes, when she was admitted to hospital with dementia Mr B was refused access. The husband unsuccessfully sought a declaration that the Health Board had acted unlawfully. 2013-12-302013 cases, Best interests, Brief summary, Transcript
A Local Authority v C [2013] EWHC 4036 (Fam), [2013] MHLO 125 — C had long-standing mental health problems and her two children had previously been removed from her. (1) Under the inherent jurisdiction Parker J made an anticipatory declaration that it was lawful for C's third baby to be removed immediately upon delivery, in order to safeguards the child's interests, on the understanding that the local authority would apply for an emergency protection order or an interim care order at the first possible moment. (2) No evidence was heard from C, and a litigation friend was not appointed, in order to avoid C being informed, the judge (and local authority solicitor) thinking that that (a) Official Solicitor would become C's solicitor so the solicitor-client duty of disclosure would apply, and (b) the only exception to that duty is when the client consents. 2013-12-222013 cases, Brief summary, Miscellaneous, Transcript
Oluku v CQC (2012) UKFTT 275, [2012] MHLO 183 — A carer at Dormers Wells Lodge secretly recorded ill-treatment, which led to the conviction of two staff (Sonika Limbu, 25, of Hayes, and Pashi Sahota, 57, of Southall) under MCA 2005 s44. The manager appealed against the CQC's cancellation of her registration as a manager, but the tribunal found that she was not fit to be registered as a manager. In relation to one allegation (although technically there was no breach as at the relevant time she was not yet registered), the tribunal noted: "the necessary paperwork was not present in the form of a Deprivation of Liberty for a number of service users, and in that respect the appellant did not have suitable arrangements in place to protect service users against the risk of such control or restraint being unlawful or otherwise excessive as required under regulation 11(2) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010/781, since proper assessment and recording was not being carried out." 2013-12-212012 cases, Brief summary, Miscellaneous, Transcript
R (Muhammad) v SSHD [2013] EWHC 3157 (Admin), [2013] MHLO 123 — Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused. 2013-12-212013 cases, Brief summary, Other capacity cases, Repatriation cases, Transcript
TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing. 2013-12-202013 cases, Brief summary, Other capacity cases, Transcript
Re Whiting [2013] EWHC B27 (COP), [2013] MHLO 119 — Social services sought to have Leslie Whiting committed to prison for breach of a Court of Protection injunction. The alleged breaches were in August-December 2012 and the court application was made in January 2013 but, owing to procedural irregularities, the hearing did not take place until December 2013. The lack of an intellectually rigorous relationship between the lawyers and the social workers meant that three of the four allegations were inadequately drafted and based on insufficient evidence to meet the criminal standard of proof. Despite the fourth allegation being established, the judge declined to take any action because a year had passed and there had been no subsequent allegations. The injunction, however, was continued for a further 12 months. 2013-12-202013 cases, Brief summary, Other capacity cases, Transcript
West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2013] MHLO 118 — The facts can be found in the summary of the Court of Appeal's judgment. The Supreme Court allowed Dr Chhabra's appeal, granting an order restraining the Trust from (a) pursuing any of the confidentiality concerns contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and (b) pursuing any confidentiality concerns without first re-starting and completing an investigation under its policy D4A. 2013-12-192013 cases, Brief summary, Miscellaneous, Transcript
G v Scottish Ministers sub nom G v MHTS [2013] UKSC 79, [2013] MHLO 117 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The tribunal's decision to make no order was lawful. The Supreme Court took the opportunity to clarify the nature of decision-making under section 264(2) Mental Health (Care and Treatment) (Scotland) Act 2003, and the factors which are relevant to the proper application of that section and of other provisions of the Act. 2013-12-182013 cases, Brief summary, Scottish cases, Transcript
Re P (A Child) [2013] EWHC 4037 (Fam), [2013] MHLO 115 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment. [Summary required.] 2013-12-172013 cases, Brief summary, Other capacity cases, Transcript
YLA v PM [2013] EWHC 4020 (COP), [2013] MHLO 114 — There was a very significant possibility that PM married YLA and had a child with her for reasons solely to do with his immigration status. Parker J made interim declarations including that YLA lacked capacity to consent to sexual relations or marriage, or to decide where she should live, and provided general guidance on such forced marriage cases. 2013-12-162013 cases, Brief summary, Capacity to consent to sexual relations, Missing from Bailii, Transcript
R v Fort [2013] EWCA Crim 2332, [2013] MHLO 111 — (1) The sentencing judge erred in concluding that the appellant would continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated, and therefore erred in imposing a sentence of custody for life as opposed to a s37/41 hospital order. (2) The judge's order under s45A was unlawful, because such an order could not be made on someone who was under 21 at the time of conviction (and was thus being considered for a sentence of custody for life, as opposed to a sentence of imprisonment, as would be the case on a person over 21 at the date of conviction). 2013-12-152013 cases, Brief summary, Hybrid order cases, Life sentence cases, Transcript
Cuthbertson v Rasouli (2013) SCC 53, [2013] MHLO 109 — Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent. 2013-12-122013 cases, Brief summary, Other capacity cases, Transcript
R v Farooqi [2013] EWCA Crim 1649, [2013] MHLO 108 — Unsuccessful criminal appeal based partly on the misconduct of a trial advocate, in which the Lord Chief Justice comments on the advocate's role. 2013-12-122013 cases, Brief summary, Other criminal law cases, Transcript
Re Devillebichot (deceased) [2013] EWHC 2867 (Ch), [2013] MHLO 107 — The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence. 2013-12-122013 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
UF v A Local Authority [2013] EWHC 4289 (COP), [2013] MHLO 105 — Under Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013/480, Legal Aid for MCA 2005 s21A appeals is non-means-tested for as long as the relevant DOLS standard authorisation is in force. In this case the Ministry of Justice and the Legal Aid Agency confirmed that Legal Aid could continue if the court extends the standard authorisation for the duration of the case. 2013-12-092013 cases, Brief summary, Deprivation of liberty, Transcript
R v Edgington [2013] EWCA Crim 2185, [2013] MHLO 102 — The appellant had been sentenced to life imprisonment for murder and attempted murder, with a minimum term of 37 years. (1) Appeal against conviction dismissed, as the judge was not wrong to prevent counsel from re-examining the defence expert on whether she would 'as a matter of practice ... ever be released' from a hospital order. (2) Appeal against sentence dismissed as it was not manifestly excessive. 2013-12-032013 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101 — A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded. 2013-11-272013 cases, Bias, Brief summary, Transcript, Upper Tribunal decisions
R (Z) v Camden and Islington NHS Foundation Trust [2013] EWCA Civ 1425, [2013] MHLO 100 — Unsuccessful challenge to (1) detention under s2 (a subsequent tribunal decision to discharge was consistent with a lawful initial detention) and (2) decision not to hold hospital managers' hearing (it was reasonable to wait a few days for the tribunal). 2013-11-192013 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript
Re VT (minimally conscious state): An NHS Foundation Trust v VT [2013] EWHC B26 (Fam), [2013] MHLO 99 (COP) — The Trust obtained a declaration covering a decision not to provide intensive care or resusistation in specified circumstances. 2013-11-192013 cases, Best interests, Brief summary, Transcript
MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94 — (1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case ..→2013-10-232013 cases, Brief summary, Displacement, ECHR, Transcript
DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93 — This is the latest in a series of cases considering personality disorder, refusal to engage in treatment, and the question of whether the 'appropriate medical treatment is available' test in s72 is met. (1) Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration - although a patient may well continue to satisfy the conditions for detention despite refusing to engage. (2) In this case, the tribunal did not seem to have asked itself whether the deterioration after recall might not have been a response to detention rather than a manifestation of his mental disorder: this was relevant to the questions of 'nature/degree' and of whether the available treatment was appropriate, so the decision was set aside. 2013-10-232013 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
R (Moosa) v LSC [2013] EWHC 2804 (Admin), [2013] MHLO 90 — In Court of Protection proceedings, the patient's mother was financially ineligible for Legal Aid (the equity in her home was about £65,000 over the £100,000 limit) so the patient's brother was added as a party purely because he would be financially eligible. The LSC refused him funding, for reasons including that the mother should fund the case. Permission to apply for judicial review of that decision was refused. 2013-09-172013 cases, Brief summary, Miscellaneous, Transcript
Re Ian Brady [2013] MHLO 89 (FTT) — After a public hearing the tribunal issued a notice on 28/6/13 that: 'Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him.' The full reasons, dated 11/12/13, were published on 24/1/14: (1) When deciding to hold a public hearing the tribunal had concluded that it was not satisfied that Ian Brady suffered from schizophrenia but, in reaching the opposite conclusion when considering the detention criteria, it did not consider itself bound by its previous finding of fact. (2) The tribunal set out at length the reasons for concluding that the detention criteria were met in this case. 2013-09-142013 cases, Brief summary, First-tier Tribunal decisions, No transcript, Publicity
Re Boff [2013] MHLO 88 (LPA) — The donor of a Lasting Power of Attorney cannot appoint a replacement attorney to succeed another replacement attorney. 2013-09-132013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Neary v LB Hillingdon [2013] MHLO 87 (SEC) — Mark Neary's appeal against Hillingdon's decision to end Housing Benefit was unsuccessful: as he was estranged from his wife, who lived separately in a jointly-owned property, his share of the property counted towards the statutory limit for Housing Benefit purposes. 2013-09-082013 cases, Brief summary, Miscellaneous, Transcript
Re Goodwin [2013] MHLO 86 (LPA) — The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: "She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing 'Lasting Power of Attorney' in place during the donor's lifetime." On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Griggs [2013] MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that "My Remaining attorney is to choose which replacement attorney is to act as my other attorney." Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian's application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re K (cancer) [2013] MHLO 83 (COP) — The press has reported this case as follows: (1) It was suspected that K had cancer of the womb, but she was took frightened to undergo an diagnostic examination. (2) Moylan J decided that (a) K lacked capacity to take decisions about medical treatment; (b) it was in her best interests to undergo a hysteroscopy, which is more detailed and invasive than the normal ultrasound, on the basis that her fear meant she would be under general anaesthetic anyway. 2013-08-302013 cases, Best interests, Brief summary, Transcript
R (LV) v SSJ [2013] EWCA Civ 1086, [2013] MHLO 82 — The applicant had been given an IPP sentence then transferred to hospital under s47/49. On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of Article 5(4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court's refusal of permission to apply for judicial review). 2013-08-302013 cases, Brief summary, Deprivation of liberty, Missing from Bailii, Transcript
Re Baxter [2013] MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am ..→2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Spaas [2013] MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.] 2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal. 2013-08-102013 cases, Brief summary, Missing from Bailii, Powers, Transcript
R v Ahmed [2013] EWCA Crim 1393, [2013] MHLO 66 — Appellant unsuccessfully sought restricted hospital order in place of an IPP sentence. 2013-08-082013 cases, Brief summary, MHLR summary, Sentence appeal cases, Transcript
TW v LB Enfield [2013] EWHC 1180 (QB), [2013] MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that ..→2013-08-082013 cases, Brief summary, Nearest relative, Transcript
SSJ v SB [2013] UKUT 320 (AAC), [2013] MHLO 56 — Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty. 2013-08-012013 cases, Brief summary, Discharge conditions, MHLR summary, Transcript, Upper Tribunal decisions
SRA decision: Nnadozie Okpokiri of Dozie and Co Solicitors [2013] MHLO 53 (SRA) — The SRA closed down Dozie and Co on the grounds that (1) it had reason to suspect dishonesty on the part of Nnadozie Okpokiri (director) and (2) it was satisfied that he had failed to comply with the conduct and accounts rules. 2013-07-192013 cases, Brief summary, SRA decisions, Transcript
Re Clarke [2013] EWCA Civ 811, [2013] MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters. 2013-07-152013 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
R (Afework) v LB Camden [2013] EWHC 1637 (Admin), [2013] MHLO 51 — The judge held that as a matter of law s117(2) is only engaged vis-à-vis accommodation if: '(i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition"); (ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.' No obvious reason is given for the third requirement, which is probably wrongly decided (or, as the COP Newsletter puts it, 'will fall to be considered again in due course'). 2013-07-042013 cases, After-care, Brief summary, MHLR summary, Transcript
Re SB (A Patient: Capacity To Consent To Termination) [2013] EWHC 1417 (COP), [2013] MHLO 48 — SB's desire for an abortion coincided with her stopping her medication for bipolar affective disorder, which led to the Trust seeking decisions on capacity and best interests. (1) Even if aspects of her decision-making were influenced by paranoid thoughts in relation to lack of support from her husband and her mother, SB also had a range of rational reasons, and had capacity to make the decision. (2) Interesting aspects to the case include: (a) the judge disagreed with the two psychiatrists who believed SB lacked capacity; (b) he appeared to consider the question of being 'unable' to make a decision separately in relation to its ordinary meaning (whether SB had in fact made a decision, para 38) and its legal meaning by reference to MCA 2005 s3(1) (whether she could understand the relevant information etc, para 39); (c) the Official Solicitor asked for his appointment as litigation friend to be ended, and this request was granted (para 30); (d) the judge granted this request ..→2013-06-032013 cases, Best interests, Brief summary, Transcript
EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701, [2013] MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.] 2013-05-122013 cases, Brief summary, MHLR summary, No transcript, Powers
Pitt v Holt [2013] UKSC 26, [2013] MHLO 46 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point. 2013-05-112013 cases, Brief summary, Other capacity cases, Transcript
PS v LP [2013] EWHC 1106 (COP), [2013] MHLO 43 — (1) It was in LP's best interests not to see her estranged family: before losing capacity due to a cerebral aneurism, she had taken the decision that her future was with her new partner and that she wished to break with the past. (2) Contact should only commence in future if LP becomes capable of expressing a view to that effect, and the family should be kept informed in relation to this approximately every six months. 2013-05-052013 cases, Best interests, Brief summary, Transcript
R v Dixon [2013] EWCA Crim 465, [2013] MHLO 42 — (1) Despite the appellant's intellect and condition the judge was entitled to permit the jury to draw an adverse inference from his failure to give evidence. (2) The appellant argued that fresh medical evidence showed the judge's decision was wrong, but this evidence was not admitted. (3) The appellant had been able meaningfully to participate in his trial, which was fair, and the conviction was safe. (4) The minimum term of the appellant's detention at Her Majesty's pleasure was reduced from 14 to 13 years. 2013-05-052013 cases, Brief summary, MHLR summary, Other criminal law cases, Transcript
R (T) v LSC [2013] EWHC 960 (Admin), [2013] MHLO 41 — The LSC's decision in care proceedings to agree prior authority for a multi-disciplinary assessment at a lower amount than that sought was unlawful because of the lack of reasons given, and was quashed. 2013-05-052013 cases, Brief summary, Miscellaneous, Transcript
R v Foye [2013] EWCA Crim 475, [2013] MHLO 40 — The rule in s2(2) Homicide Act 1957 that the burden of establishing diminished responsibility lies on the defendant, on the balance of probabilities, is not incompatible with the presumption of innocence contained in Article 6(2). 2013-05-052013 cases, Brief summary, Diminished responsibility cases, Transcript
Stoke City Council v Maddocks [2013] EWHC 1137 (COP), [2013] MHLO 38 — (1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) ..→2013-05-042013 cases, Brief summary, Other capacity cases, Transcript
R v AJR [2013] EWCA Crim 591, [2013] MHLO 37 — The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989. 2013-05-042013 cases, Brief summary, ICLR summary, Sentence appeal cases, Transcript
Baker Tilley (A Firm) v Makar [2013] EWHC 759 (QB), [2013] MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. 2013-04-052013 cases, Brief summary, Other capacity cases, Transcript
MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32 — The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical ..→2013-04-052013 cases, Brief summary, Transcript, Upper Tribunal decisions
DD v Durham County Council [2013] EWCA Civ 96, [2013] MHLO 31 — DD wished to bring proceedings against local authorities arguing that (a) the two assessing AMHPs owed a duty to him (a legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held); (b) that by making the application for admission, each was in breach of duty; and (c) that the county council was responsible vicariously for that breach of duty. (1) The Court of Appeal (reversing the High Court decision in this respect) decided that the argument was sufficient for leave under s139 to bring proceedings to be granted. (2) DD should not have been made responsible for the costs of Middlesbrough City Council. 2013-03-282013 cases, Brief summary, Miscellaneous, Transcript
R v Ahmed [2012] EWCA Crim 99, [2012] MHLO 178 — (1) The appellant sought a s37/41 restricted hospital order in place of an IPP sentence. (2) The Responsible Clinician argued for a s45A hybrid order, for reasons summarised by the court as follows: 'The appellant is an illegal immigrant. In order to be discharged from hospital he would have to undergo a period of controlled supervision. This would be in appropriate accommodation. Dr Swinton tells us that this is not an option open to an illegal immigrant like the appellant. Thus he cannot be discharged into the community because he cannot undertake the necessary conditioning which would satisfy the hospital that he was safe to be left in the community on his own. As a consequence he has to remain in hospital and he will take up a bed, apparently permanently. This is damaging to the wider public interest. If a section 45A order were made, then although the appellant would receive precisely the same treatment under a section 47 transfer as he currently does, a discharge can ..→2013-03-282012 cases, Brief summary, Sentence appeal cases, Transcript
MA v SSH [2012] UKUT 474 (AAC), [2012] MHLO 171 — The inability of a nearest relative of a patient detained under s2 (in contrast to s3) to apply to the tribunal following the RC's barring of his order for the patient's discharge did not breach Article 5, 6, 8 or 12. 2013-03-272012 cases, Brief summary, Transcript, Upper Tribunal decisions
Bernard v SW London and St George's MH NHS Trust [2013] UKUT 58 (AAC), [2013] MHLO 26 — The medical member, questioning the RC, had stated 'I have no issues with the nature; it is chronic, relapsing, etcetera' but he had not formed a preconceived and concluded view (actual bias) or expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias). 2013-03-272013 cases, Brief summary, MHLR summary, Transcript, Upper Tribunal decisions
MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC), [2013] MHLO 25 — The patient had been visited by an independent doctor but did not rely on a report from him. The hospital argued that the tribunal should infer that the doctor had been instructed to prepare a tribunal report, that this report was not favourable to the patient, and that it concurred with the clinical team's opinion. The patient appealed, arguing that (in light of the hospital's argument) the panel should have recused themselves for there to be a fair hearing. (1) In relation to the hospital's argument: (a) as a matter of practical reasoning, it could never succeed (invalid inferences); (b) as a matter of law, it may not be permissible (requiring inferences to be drawn from other inferences); and (c) it failed to take into account the context: 'The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine ..→2013-03-272013 cases, Brief summary, Transcript, Upper Tribunal decisions
MS v North East London Foundation Trust [2013] UKUT 92 (AAC), [2013] MHLO 24 — In this case it was argued that the tribunal had addressed the s3 criteria for a patient who was detained under s2. (1) The Upper Tribunal decided that the First-tier Tribunal had not misdirected itself in this way. (2) However, the judge considered the criteria: he set out why he considered them different (primarily the different purpose of each section) but did not define how they were different. He concluded: 'This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.' (3) The tribunal decision was set aside because, faced with a medical report which had wrong language and a confused focus, the tribunal had failed to analyse the evidence to ..→2013-03-272013 cases, Brief summary, Transcript, Upper Tribunal decisions
Re Martin [2013] MHLO 21 (LPA) — The donor appointed two primary attorneys, A and B, to act jointly and severally, and three replacement attorneys, C, D and E. He included a valid provision to the effect that the D should replace B if B was unable to act, and then directed as follows: "In the event of my first attorney being unable to continue, E should act as Assistant to C (1st Replacement Attorney), and in the event of C being unable to continue, he should assume the power of Attorney." On the application of the Public Guardian this provision was severed because (applying Re Baldwin, above) the MCA does not permit a replacement attorney to be replaced, nor is it possible to direct an attorney or replacement attorney to act as assistant to another attorney or replacement attorney. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Black [2013] MHLO 20 (LPA) — The donor, a solicitor, appointed A and B as attorneys, to act jointly and severally. She imposed the following restriction: "A has been appointed solely to manage ABC Solicitors to enable continuing management of the Practice. B has been appointed to deal with all other financial matters both personal and business related, which do not specifically require a Solicitor of the Supreme Court." On the application of the Public Guardian the restriction was severed because it was incompatible with a joint and several appointment. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hart [2013] MHLO 19 (LPA) — The donor made an LPA for property and financial affairs. He was also the sole attorney under an EPA made by his wife and registered. In his LPA he authorised his attorneys to have access to his will and medical records, and then continued as follows: "This also applies to acting as Attorneys for my wife, whose EPA has been registered." On the application of the Public Guardian this provision was severed because an LPA may not be used to add anything to someone else's EPA. (The donor appears to have wrongly assumed that his own attorneys could take over his role as attorney for his wife.) [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
R v Nightingale [2012] EWCA Crim 2734, [2012] MHLO 167 — The appellant, having pleaded guilty to possession of (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm, had been sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. On appeal against sentence, as 'these offences were committed in exceptional circumstances by an exemplary soldier', this was reduced to 12 months, suspended for 12 months. 2013-03-262012 cases, Brief summary, Sentence appeal cases, Transcript
Pender v DPP [2013] MHLO 12 (QBD) — An ASBO was imposed with a 'no begging' condition. A Crown Court appeal, based on uncontradicted medical evidence (that the appellant suffered learning difficulties, schizophrenia and severe nicotine addiction, and that begging was the manifestation of nicotine addiction), was unsuccessful. The Court of Appeal allowed an appeal by way of case stated, because the judge had failed to set out the factual basis for her factual conclusion (which was contrary to the medical evidence) that the appellant had been capable of complying with the ASBO. 2013-03-262013 cases, Brief summary, Criminal law capacity cases, No transcript
ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69, [2013] MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.] 2013-03-252013 cases, Brief summary, Other capacity cases, Transcript
Re P (fair trial); Knowsley MBC v P [2013] MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' ..→2013-02-102013 cases, Brief summary, No transcript, Other capacity cases
An NHS Trust v Dr A [2013] EWHC 2442 (COP), [2013] MHLO 4 — Dr A was refusing food in protest at a UK Border Agency decision. (1) He was suffering from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment. (2) It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. (3) (a) That treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. (b) However, he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder; although the physical disorder was in part a consequence of the mental disorder, it was not obviously either a manifestation or a symptom of the mental disorder. (c) The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as ..→2013-01-302013 cases, Best interests, Brief summary, Transcript
Re AW (Permanent Vegetative State); The NHS Trust v AW [2013] EWHC 78 (COP), [2013] MHLO 3 — AW was in a permanent vegetative state, having suffered a spontaneous, severe intra-cerebral haemorrhage in 2008. The NHS Trust responsible for AW's care sought a declaration that it would be lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, even though this would lead to AW's death. The application was supported by AW's family, by all the medical staff who looked after her, by the evidence of the expert witnesses provided reports, and by the Official Solicitor on behalf of AW herself. (1) The judge's findings were as follows: (a) AW is in a permanent vegetative state; (b) there will be no change or improvement in her condition; (c) there is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and (d) the suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan ..→2013-01-292013 cases, Best interests, Brief summary, Transcript
West London MH NHS Trust v Dr Chhabra [2013] EWCA Civ 11, [2013] MHLO 2 — (1) Various complaints had been made against Dr Chhabra, including in relation to breaches of patient confidentiality, and the case investigator's report stated that Dr Chhabra admitted to reading CPA notes and dictating reports on public transport. (2) Upon reading the case investigator's report the case manager decided to convene a disciplinary panel to consider the following allegations and to consider them as potential gross misconduct which could lead to dismissal: (a) that Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport (the complaint being made by another passenger who happened to be Head of Secure Services Policy at the Department of Health); (b) that she undertook dictation on at least two occasions whilst completing Mental Health Tribunal reports whilst on public transport (the complaint being made by a member of secretarial staff); (c) that whilst travelling to work on public transport she would often ..→2013-01-272013 cases, Brief summary, Miscellaneous, Transcript
Re P (abortion) [2013] EWHC 50 (COP), [2013] MHLO 1 — (1) The solicitor who was one of P's deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that '[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do'. [Summary based on press article; judgment now available.] 2013-01-252013 cases, Best interests, Brief summary, Missing from Bailii, Transcript
AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163 — AC appealed against the tribunal's rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan's independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal's criticisms of Dr Kahtan's evidence on the link between the index offences and AC's mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the ..→2013-01-232012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
R (Cornwall Council) v SSH [2012] EWHC 3739 (Admin), [2012] MHLO 162 — PH was a young man born with significant learning and physical disabilities. The Secretary of State decided that when he turned 18 he was ordinarily resident under the NAA 1948 in Cornwall, where his parents lived, despite his physical presence elsewhere. The court held that the Secretary of State had lawfully applied the test in Vale relevant to a person who is so severely handicapped as to be totally dependent upon a parent or guardian (termed 'test 1' in the guidance), which states that such a person is in the same position as a small child and his ordinary residence is that of his parents or guardian because that is his base. 2013-01-102012 cases, Brief summary, Community care, Transcript
R v Fletcher [2012] EWCA Crim 2777, [2012] MHLO 161 — IPP sentence quashed and a restricted hospital order substituted in its place: the judge had not properly been informed as to the appellant's mental state, because the original reports focussed on mental illness (which the appellant did not suffer from) rather than learning disability (which he did). 2013-01-072012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
Re L; The NHS Trust v L [2012] EWHC 2741 (COP), [2012] MHLO 159 — The Trust sought a declaration that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared (to paraphrase) that: (1) L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, specifically, (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes. (2) L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores. (3) In L's best interests, the clinicians were permitted: (a) to provide nutrition and hydration and medical treatment where L complies; (b) to administer dextrose solution to L despite her objections where immediately necessary to save life; (c) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L's co-operation having been taken); (d) to provide palliative ..→2012-12-232012 cases, Best interests, Brief summary, Missing from Bailii, Transcript
A Local Health Board v J [2012] MHLO 158 (COP) — (1) The court made the following declaration and orders as sought by the Health Board: (a) J lacked capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of ANH and other life-sustaining treatment; (b) J was in a permanent vegetative state and had no prospect of recovery; (c) there were no further investigations/treatment which should be undertaken; (d) it was in J's best interests for ANH to be withheld; (e) ANH might be withdrawn lawfully by the applicant, or responsible attending medical practitioners or nursing staff; and (f) it was in her best interests to receive such treatment and nursing care as was appropriate to ensure that she retained the greatest dignity until her life came to an end. (2) In relation to the second declaration, the court considered evidence that J had said 'die' several times, and concluded that this had been (misinterpreted) 'vocalisation' (a moan or groan often repeated, and often seen in PVS) rather ..→2012-12-212012 cases, Best interests, Brief summary, No transcript
R v Channer [2012] EWCA Crim 1667, [2012] MHLO 157 — IPP sentence with minimum term of 23 months quashed and restricted hospital order substituted in its place. 2012-12-212012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R v Searles [2012] EWCA Crim 2685, [2012] MHLO 156 — Custodial sentence of two years' detention in a young offender institution quashed and unrestricted hospital order substituted in its place. 2012-12-212012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R v Searles [2012] EWCA Crim 1839, [2012] MHLO 155 — Criminal appeal adjourned for second medical report in relation to the making of a hospital order. 2012-12-212012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
RAR v GGC [2012] EWHC 2338 (QB), [2012] MHLO 154 — (1) In relation to limitation the court held as follows: 'I am satisfied that it would be fair and just to invoke the discretion afforded to the court by section 33 of the 1980 Act and permit this trial to proceed. I do so for the following reasons: (i) Having read the lengthy report of Dr Roychowdhury, it is clear that as a result of the abuse perpetrated upon her, the mental health of the claimant has been adversely affected. It has fluctuated over the years, at its worst, it has entailed compulsory hospitalisation. I find that the mental health of the claimant played a real part in the delay which has occurred in the bringing of the civil claim. I accept that the nature of the matters to be explored in this case are of themselves a deterrent for a person in the position of the claimant in bringing such a claim. (ii) In 1977/1978 the defendant had cause to consider allegations of sexual assault upon the claimant by reason of the criminal proceedings. That he did so, and that his ..→2012-12-212012 cases, Brief summary, Miscellaneous, Transcript
R (D) v SSHD [2012] EWHC 2501 (Admin), [2012] MHLO 153 — Immigration case with mental health background. (1) D was entitled to damages for unlawful detention for breach of paragraph 55.10 of the Enforcement Instructions and s149 Equality Act 2010, or alternatively for breach of the Hardial Singh principles. (2) Nominal damages for the period during which, had regard been paid to the relevant matters, he would still have been detained. (3) Breaches of Article 3 and 8. 2012-12-212012 cases, Brief summary, Repatriation cases, Transcript
Southend-on-Sea BC v Armour [2012] EWHC 3361 (QB), [2012] MHLO 152 — The recorder's decision to refuse to grant a possession order (on the basis that by the time of the delayed hearing possession was no longer appropriate because there had been full compliance with the terms of the tenancy for the 12 months prior to the hearing) was upheld on appeal. 2012-12-202012 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript
Southend-on-Sea BC v AR (2012) EW Misc 25 (CC), [2012] MHLO 151 — The claimant local authority sought possession of an introductory tenancy on the basis of the defendant's antisocial behaviour. (1) The procedure was followed properly so there was no defence to the claim under the Housing Act 1996. (2) The original decision to seek possession was a necessary and proportionate interference with the defendant's Article 8 rights: in particular, the diagnosis of Aspergers and depression (which led to lack of litigation capacity and appointment of a litigation friend) did not explain the defendant's conduct and was properly considered by the claimant. (3) However, there had been full compliance with the terms of the tenancy for the 12 months prior to the delayed final hearing, so possession was no longer proportionate. (4) No order for costs (despite the claimant seeking costs). 2012-12-202012 cases, Brief summary, Miscellaneous, Transcript
NHS Trust v K [2012] EWHC 2922 (COP), [2012] MHLO 150 — The Trust proposed to carry out surgery on K which could potentially cure her of cancer but which itself (given her co-morbidities including her 20-stone weight) raised a considerable risk of death. (1) K lacked capacity due to her chronic mental illness, and in particular her delusional belief that she did not have cancer, to make informed decisions about major medical treatment. (2) Orders were made that certain specified treatment would be lawful, subject to powers of veto given to specified people. 2012-12-202012 cases, Best interests, Brief summary, Transcript
Re CP; WBC v CP [2012] EWHC 1944 (COP), [2012] MHLO 144 — LPM, the brother of CP (called C in the 'blue room' judgment) sought a costs order against the local authority. (1) The court should follow the general rule in welfare cases (that there be no order as to costs: rule 157) where it is appropriate, and it is only local authorities who have broken the law, or who are guilty of misconduct (that falls within rule 159) that have reason to fear a costs order (G v E). (2) The questions to be addressed are (a) is the departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the Applicant as a public body?; and (b) if so, what order should be made? (Neary). (3) The judge concluded that (a) the local authority's actions were tainted with illegality, (b) the local authority's decision making was impoverished and disorganised, (c) the local authority was responsible for the delay in referring CP's circumstances to the Court of Protection and/or the High Court ..→2012-12-202012 cases, Brief summary, COP costs cases, Transcript
SH v Cornwall Partnership NHS Trust [2012] UKUT 290 (AAC), [2012] MHLO 143 — The appellant was subject to a CTO. When he attended for his depot injection, he said that he did not consent to it but nonetheless he submitted to receive it without resistance. He argued that his lack of consent meant that the 'appropriate medical treatment is available for him' test was not met, but the tribunal did not discharge. The UT held that the issue of consent is outside the jurisdiction of the tribunal: (a) the tribunal can only consider the statutory criteria (consent does not arise until the decision to treat has been made, whereas appropriateness and availability are issues that arise prior to that decision); (b) it is the courts which provide judicial oversight of treatment under the Act. 2012-12-202012 cases, Brief summary, Transcript, Upper Tribunal decisions
R v Jenkin [2012] EWCA Crim 2557, [2012] MHLO 141 — Having pleaded guilty to GBH with intent (for gouging his girlfriend's eyes out), the appellant was sentenced to life imprisonment with a six-year minimum term, combined with a hospital direction and limitation direction under s45A MHA 1983. He appealed against sentence, arguing for a restricted hospital order or alternatively an IPP sentence. (1) A hospital order means that 'release is dependent on the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition': this would be inadequate as, irrespective of his delusional disorder, the appellant posed a significant risk of serious harm to the public. (2) A life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave (R v Kehoe): both those limbs were met in this case. (3) The s45A hybrid order was appropriate as the criteria were met and the disorder was treatable, but when ..→2012-12-202012 cases, Brief summary, Hybrid order cases, Missing from Bailii, Transcript
G v DPP [2012] EWHC 3174 (Admin), [2012] MHLO 140 — At the Youth Court it had been argued that the case should be stayed since it would be an abuse of the court's process to proceed to an adjudication when the appellant was unfit to plead, to participate in his trial and to instruct his defence. Having heard medical evidence from both sides, the District Judge declined to stay the proceedings, arranged for the appointment of an intermediary and accepted the intermediary's advice as to the way in which the appellant should be assisted during the course of the hearing; he found the charge proved. This was an appeal by way of case stated in relation to the appellant's conviction at the Youth Court. (1) The High Court set out the rules for appeals and commented that the way in which the appeal had been prepared is was lamentable. (2) The District Judge had correctly followed the guidance (from DPP v P) for proceedings in the Youth Court in which capacity is relevant. (3) The defence expert confused the propriety of a prosecution with the ..→2012-12-192012 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Transcript
AM v West London MH NHS Trust [2012] UKUT 382 (AAC), [2012] MHLO 139 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. 2012-12-192012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
JO (qualified person - hospital order - effect) Slovakia (2012) UKUT 237 (IAC), [2012] MHLO 132 — The respondent had been charged with attempted murder, found not guilty by reason of insanity, and made subject to a restricted hospital order. The Secretary of State made a deportation order under the Immigration (European Economic Area) Regulations 2006. Under those regulations, (a) a 'qualified person' (jobseeker or worker) is entitled to reside in the UK while he remains a qualified person, (b) after five years of such residence he is entitled to reside in the UK permanently, (c) a worker or self-employed person's periods of inactivity due to illness or accident are treated as if they were periods of activity. (1) The term 'illness' should not be given a narrow or restricted meaning, either in terms of the type of illness (to exclude mental illness) or the period of incapacity (to exclude long-term illnesses). (2) Although a prison sentence does not count towards the qualifying period for permanent residence, time spent subject to a hospital order does: 'The distinction is that ..→2012-12-192012 cases, Brief summary, Repatriation cases, Transcript
Calvert v Clydesdale Bank Plc [2012] EWCA Civ 962, [2012] MHLO 131 — There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor's lack of capacity. 2012-12-182012 cases, Brief summary, Other capacity cases, Transcript
Re Johnston [2012] MHLO 130 (EPA) — The donor appointed two attorneys to act jointly and severally. The donor included the following restriction: "The property at [address] shall not be disposed of without the agreement of A, B and C, as children of [the donor] in addition to the attorneys." On the attorneys' application the restriction was severed as being ineffective as part of an EPA. [OPG summary - EPA case.] 2012-12-182012 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript
Re Edmonds [2012] MHLO 129 (LPA) — The donor appointed a sole attorney and then two replacements, the latter to act jointly for some decisions and jointly and severally for others. She then directed as follows: "I would like my replacement attorneys to act jointly as much as possible and always where any transaction is valued at more than £5,000." On the application of the Public Guardian the words "as much as possible and always" were severed on the ground that they were uncertain and incompatible with the appointment type. [OPG summary - LPA case.] 2012-12-182012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
R v Tudor [2012] EWCA Crim 1507, [2012] MHLO 127 — Following receipt of a psychiatric report which did not recommend a hospital order, the trial judge was entitled to impose an IPP sentence without adjourning for a second psychiatrist's report. 2012-12-172012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
Buck v Norfolk and Waveney MH NHS Foundation Trust [2012] MHLO 123 (CC) — The defendant Trust granted unescorted leave to a detained patient who then ran in front of a bus. The claimant bus driver suffered PTSD and sued the Trust. The court held that a custody authority responsible for the negligent release of a patient did not owe a duty to a victim unless that victim had been identifiable: the Trust therefore owed no duty of care to the driver. 2012-12-172012 cases, Brief summary, Miscellaneous, Transcript
R v B [2012] EWCA Crim 1799, [2012] MHLO 119 — The trial judge found the appellant unfit to plead. The appellant had admitted the act charged during an interview under caution, and the judge refused to exclude that evidence. On the basis of that evidence, the jury found that the appellant had done the act charged. (1) Given that the appellant's mental state was the same during interview as when found unfit to plead, the Court of Appeal found it impossible to understand how the interview could have been admitted: the finding that he had done the act was therefore set aside. (2) The Court of Appeal would have ordered a retrial but has no power to do; the court noted that it was 'high time that Parliament remedied this most unfortunate error in the law'. 2012-12-172012 cases, Brief summary, Transcript, Unfitness and insanity cases
Court Martial in the case of Sergeant Nightingale [2012] MHLO 116 — (1) The accused pleaded guilty of possessing (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm. (2) In mitigation he relied, inter alia, on evidence from a neuropsychologist and a clinicial psychologist to the effect that a brain injury had caused memory problems and confabulation. (3) He was sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. 2012-11-192012 cases, Brief summary, Other criminal law cases, Transcript
R (L) v West London MH NHS Trust [2012] EWHC 3200 (Admin), [2012] MHLO 114 — The claimant began proceedings to challenge the decision to transfer him from a medium secure unit to Broadmoor high secure hospital. (1) The claimant no longer wished to challenge the transfer decision, but the claims were of general importance and merited review, and were not merely academic, so the judge proceeded to hear the case and set out his reasons at extraordinary length. (2) The potential adverse consequences of a transfer to high security are: (a) the potential for delaying the ultimate date of discharge from detention; and (b) the potential for more restrictive detention conditions. (3) The nature of the decision making process as to whether a patient should be transferred from medium to high security is such as to engage a common law duty of fairness. (4) Subject to the need to protect persons from the risk of harm or some other substantial reason, that duty of fairness requires: (a) the patient and his advisers to be informed of any intention to refer him to high ..→2012-11-152012 cases, Brief summary, Miscellaneous, Transcript
Re AS; SH v LC [2012] MHLO 113 (COP) — AS's niece objected to a panel solicitor's application to be appointed deputy with specific authority to sell a property. (1) Generally speaking the order of preference for the appointment of a deputy is: (a) P's spouse or partner; (b) any other relative who takes a personal interest in P’s affairs; (c) a close friend; (c) a professional adviser, such as the family's solicitor or accountant; (d) a local authority's Social Services Department; and finally (e) a panel deputy, as deputy of last resort. (2) The court prefers to appoint a family member or close friend because of: (a) familiarity with P’s affairs, wishes and communication methods; (b) likely greater ability to consult with P and encourage participation; (c) reasons of economy; (d) the concept of deputyship of last resort. (3) The appointment of a family member will generally be a less restrictive alternative, though the question remains as to whether this will achieve the desired objective as effectively as the ..→2012-11-122012 cases, Brief summary, Other capacity cases, Transcript
A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112 — The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, ..→2012-11-122012 cases, Brief summary, LPA cases - all, LPA cases - capacity to make an LPA, Missing from Bailii, Other capacity cases, Transcript
Stoke City Council v Maddocks [2012] EWHC B31 (COP), [2012] MHLO 111 — (1) One of JM's children, WM, had breached court orders by, amongst other things, (a) arranging for JM to be taken from the care home to hear judgment delivered, and separately to see a solicitor, (b) discussing the possibility of moving back home with him, (c) harassing her father and employees of the local authority and care home. (2) WM was sentenced to five months' imprisonment for contempt because (a) there had been a considerable number of breaches of court orders, and (b) she had no intention, unless restrained by a severe measure by the court, of obeying the orders herself. 2012-11-112012 cases, Brief summary, Other capacity cases, Transcript
Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109 — (1) Michael Clarke's application that the court postpone a decision on costs (and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian) was refused. (2) The costs of the other family members and the deputy would be charged from Ann Clarke's estate. (3) In the light of the one-sided publicity that Michael Clarke gives to the affairs of the family, the three judgments were placed into the public domain. 2012-10-292012 cases, Brief summary, Other capacity cases, Transcript
Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108 — Michael Clarke objected to the deputy selling of his elderly mother's (Ann Clarke's) house to pay for future care as he considered it to be his. (1) No party asked for an oral hearing and the judge was satisfied that there was nothing to be gained by that. (2) Thre was a balance to be struck between the consequences of (a) retaining the property and leaving Ann Clarke on a low income, or (b) selling the property and maintaining a higher standard of living for Ann Clarke until the funds are exhausted, with her having no familiar home and, if she lived long enough, no money either. (3) Mrs Clarke's Blackpool property shall not be sold or charged during her lifetime without an order of this Court. (4) The deputyship was therefore discharged. (5) Publication of the judgments was authorised as, given Michael Clarke's comprehensive and long-standing breaches of his mother's entitlement to privacy, the court's reasons should be made known. 2012-10-292012 cases, Brief summary, Other capacity cases, Transcript
Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107 — Following an accident, Ann Clarke suffered brain injuries and was awarded damages of £775,000. This money was used to pay for care and buy a home in Blackpool which was worth £200-250,000. The deputy proposed to sell the house to pay for care when the remainder of the money ran out, but Michael Clarke (son and carer) applied to court to prevent this. (1) Ann Clarke had the mental capacity to make a will (in particular, one leaving the house to the applicant and nothing to his siblings). (2) Whether or not Ann Clarke had mental capacity to manage her state pension and benefits it was lawful and in her best interests for these to be paid to her carer(s) to be applied for her benefit. (3) Ann Clarke did not have the mental capacity to decide whether or not her Blackpool property should be sold. 2012-10-292012 cases, Brief summary, Other capacity cases, Transcript
R (Hossacks) v Legal Services Commission [2012] EWCA Civ 1203, [2012] MHLO 106 — This appeal followed an unsuccessful judicial review of the LSC's rejection of the appellant's tender in relation to community care law in 2010. (1) The issues were set out by the court as follows: (a) Were any of the Appellant's applications acceptable without clarification or amendment? (b) Leaving aside the evidence of the Commission's communications with other applicants, should the Commission have sought clarification or suggested amendment of any of the applications, and if so should the Commission have accepted the resulting application(s)? (c) Do the Commission's communications with other applicants show that by rejecting the Appellant's applications, it acted in breach of its duty to treat all applicants equally? (2) The appeal had no real prospects of success and therefore permission was refused. (3) The LSC were awarded its costs: (a) the appellant's impecuniosity and the fact that her activity both as a solicitor and as a proposed foster parent may be or indeed are in ..→2012-10-272012 cases, Brief summary, Miscellaneous, Transcript
R v Petrolini [2012] EWCA Crim 2055, [2012] MHLO 105 — The appellant had unsuccessfully argued diminished responsibility at trial, but subsequently it became apparent that he had indeed been in the prodromal stage of schizophrenia at the time of the offence. The Court of Appeal (1) granted an extension of time of 16 years and 16 months, (2) quashed the conviction for murder and substituted for it a verdict of manslaughter by reason of diminished responsibility, and (3) made a restricted hospital order in place of the 16-year-tariff life sentence. The hospital order was made for admission to Broadmoor, but the intention was that the patient would remain in Carstairs hospital in Scotland. 2012-10-272012 cases, Brief summary, Life sentence cases, Missing from Bailii, Transcript
C v R [2012] EWCA Crim 2034, [2012] MHLO 104 — The appellant appealed against his convictions for sexual offences on the basis that there had been no sexual relationship with the complainant (his step-daughter) before she was 16 years of age, and that thereafter the sexual relationship had been consensual. There was a substantial body of evidence which showed apparent consent to sexual activity after the complainant was 16 years old. But once the jury were satisfied that sexual activity had occurred when the complainant was a child, and that it impacted on and reflected the appellant's dominance and control over the complainant, it was open to them to conclude that the evidence of apparent consent when the complainant was no longer a child was indeed apparent, not real, and that the appellant was well aware that in reality she was not consenting. 2012-10-272012 cases, Brief summary, Criminal law capacity cases, Transcript
CYC v PC and NC [2012] MHLO 103 (COP) — (1) PC lacked capacity to litigate and lacked capacity to decide whether to resume married life with NC (upon the expiry of a 13-year sentence for his sexual offences against previous wives). (2) The resumption of married life with NC was lawful as being in her best interests. 2012-10-242012 cases, Brief summary, Capacity to consent to sexual relations, Transcript
RP v UK 38245/08 [2012] ECHR 1796, [2012] MHLO 102 — The appointment of the Official Solicitor (who decided, against RP's wishes, not to oppose the making of a care order and a placement order) did not breach RP's Article 6 or Article 8 rights. 2012-10-132012 cases, Brief summary, ECHR, Other capacity cases, Transcript
Re Gunn [2012] MHLO 97 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare. The donor's signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney's application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Burdock [2012] MHLO 96 (LPA) — The donor made an LPA for property and financial affairs and included the following guidance: "(1) If the house is sold I intend to pay off Z's student loan completely. (2) I also intend to give my three daughters, or their issue, as follows: X £30,000, Y £30,000, Z £50,000. (3) The remainder to be used for my care and needs." On the application of the Public Guardian the provision was severed as it gave the attorneys greater gift making powers than are permitted under section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Krajicek [2012] MHLO 95 (LPA) — The donor made two LPAs appointing two attorneys, A and B, and two replacement attorneys, C and D, and directed them to act jointly for some decisions and jointly and severally for other decisions. She provided that "If either of the original attorneys is unable to act then C should step in. D is to step in if the second attorney is unable to act." On the application of the Public Guardian the provision was severed because it appeared to provide for the replacement attorney to act jointly with the survivor of the original attorneys, which was incompatible with the appointment of the attorneys to act jointly for some decisions. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Dowden [2012] MHLO 94 (LPA) — The donor made two LPAs in which she appointed a professional attorney and a lay attorney to act jointly and severally. She directed that the professional attorney should be paid fees "in keeping with the charging rate in force at the time the work is undertaken". She then directed that the lay attorney should be paid a reasonable hourly fee and stated that any sum paid "must be with the approval of my Solicitor/Attorney" and "will be at such rate as he feels is appropriate". On the application of the Public Guardian the provision relating to the lay attorney's fees being approved and set by the professional attorney was severed as being incompatible with a joint and several appointment. The judge added that, to have achieved the desired objective, the donor should have appointed the attorneys to act jointly for some decisions (in this case on agreeing an appropriate level of remuneration for the lay attorney) and jointly and severally for other decisions. ..→2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Sheppard [2012] MHLO 93 (LPA) — The donor of a health and welfare LPA included the following guidance: "My attorneys are to maintain the health and welfare needs of X." On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Kerron [2012] MHLO 92 (LPA) — The donor made an LPA for health and welfare, and imposed the following restriction: "If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys." On the application of the Public Guardian the words "jointly" and "myself and" were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Darlison [2012] MHLO 91 (LPA) — The donor made an LPA for property and financial affairs. In the guidance section she stated: "Oversee X's financial welfare. X is [my] daughter." On the application of the Public Guardian the guidance was severed on the ground that the donor of an LPA cannot authorise the attorneys to act in relation to the financial affairs of another person. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re Norris [2012] MHLO 90 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare and included the following guidance in both LPAs: "At all times to make decisions in the best interests of [my wife] during her lifetime." On the application of the Public Guardian the provision was severed as being potentially inconsistent with the requirement in section 1(5) of the MCA that any act done or decision made must be done or made in the donor's best interests. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89 — KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under MCA 2005 s21A. (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty. 2012-09-272012 cases, Brief summary, Deprivation of liberty, Other capacity cases, Transcript
CNWL NHS Foundation Trust v HJ-H [2012] UKUT 210 (AAC), [2012] MHLO 88 — The tribunal granted discharge from a CTO, deferred for 3 months, expressing the hope that in the meantime the RC would consider reducing the level of the patient's medication. The Trust appealed. (1) The challenge to the decision to discharge was essentially an attempt to re-argue the tribunal’s assessment of the evidence, and was therefore unsuccessful. In deciding on whether there is an error of law, the UT must respect the FTT's assessment of the evidence and fact-finding role (provided this was carried out rationally and explained): (a) the UT's statutory jurisdiction is limited to points of law; (b) the expert composition of the FTT means its fact-finding is worthy of such respect. (2) The challenge to the deferral also failed, as there was no evidence that the tribunal had misdirected itself by granting the deferral with the intention that that the patient's medication could be reduced in order to make her ready for discharge on a future date. (3) If the FTT's reasons for ..→2012-09-242012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
R (RW) v SSJ [2012] EWHC 2082 (Admin), [2012] MHLO 87 — The responsible clinician and tribunal were of the view in March 2011 that the patient required continued treatment in detention in hospital, and the tribunal recommended transfer from Broadmoor to a medium secure unit; in June the RC sought permission for trial leave to a MSU, with return to prison being the planned consequence if it were unsuccessful; trial leave in September was unsuccessful and, that month, the Secretary of State remitted the patient to prison on the RC's advice. (1) There had been new information since the tribunal which put a different complexion on the case, namely the unsuccessful trial leave, so the Secretary of State was entitled to take at face value the RC's new opinion that the patient did not require treatment in hospital for mental disorder. (2) It was not necessary for the Secretary of State to consider that lack of treatment in prison might breach Article 3 or require almost immediate re-transfer to hospital; the correct approach was to consider ..→2012-09-012012 cases, Brief summary, Ministry of Justice, Missing from Bailii, Transcript
Turner v Government of the USA [2012] EWHC 2426 (Admin), [2012] MHLO 84 — The appellant was unable to demonstrate that the evidence that was before the High Court was 'decisive' such that if it had been before the District Judge he would have concluded that she had demonstrated that her mental condition was such that it would be oppressive to extradite her to the USA. 2012-08-312012 cases, Brief summary, Repatriation cases, Transcript
Davis v West Sussex County Council [2012] EWHC 2152 (QB), [2012] MHLO 83 — At a safeguarding vulnerable adults case conference the local authority determined that certain allegations of abuse at a care home were substantiated or inconclusive, made recommendations, and decided to refer three members of staff to their professional bodies. The claimants sought judicial review of the decisions (and of a subsequent Default Notice, although this was not pursued). (1) The local authority's procedure was unfair, in breach of the rules of natural justice, its own guidance (based on government guidance), and legitimate expectations - a precis cannot do justice to how disgraceful the procedure was. (2) Two defences, arguing that no public law rights arose, failed: (a) there was no respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner; (b) there was a sufficient public flavour to make the process of investigation and decision a public function distinct from the contractual ..→2012-08-312012 cases, Brief summary, Community care, Transcript
Re MW; LB Hammersmith and Fulham v MW [2012] MHLO 82 (COP) — (1) MW lacked capacity to make decisions in relation to contact with his childhood friend JC. (2) It was not in MW's best interests for JC to visit MW's home, so an order was granted restraining JC from doing so; this was endorsed with a penal notice because of previous breaches of an injunction. (3) The local authority and Official Solicitor's requested that MW, who lacked litigation capacity, should not attend the hearing because this would be stressful and not conducive to the maintenance of his good mental health: the court acceded to this application. (4) Sensitive evidence was withheld from JC, at the request of the local authority and Official Solicitor, but the court came to its final decision based on the open evidence. 2012-08-292012 cases, Best interests, Brief summary, Transcript
MP v West London Mental Health NHS Trust [2012] UKUT 231 (AAC), [2012] MHLO 81 — In the final days of his determinate prison sentence, MP was transferred to Broadmoor under s47 in order to prolong his detention. The tribunal recommended transfer to an MSU, which proved impossible; when it reconvened it granted discharge, delayed for 10 weeks for appropriate after care arrangements to be made. A salaried tribunal judge accepted the trust's argument that there had been inadequate reasons for discharge: she reviewed and set aside the decision, and refused the patient's application for her decision to be set aside. As these were excluded (unappealable) decisions, the patient sought judicial review. (1) The review decision, although made without receiving representations from the patient, was not made unfairly. (2) Taking account of the two relevant principles - that (a) the review power should only be exercised in clear cases, and (b) the Upper Tribunal should seldom interfere with review decisions when judicial review proceedings are brought, because the review ..→2012-08-212012 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
Munjaz v UK 2913/06 [2012] ECHR 1704, [2012] MHLO 79 — The applicant, C. Munjaz, is a British national who was born in 1947. Suffering from mental health problems, he has spent a number of periods in prison and hospital. The case concerned Mr Munjaz’s complaint about his placement in seclusion in Ashworth Special hospital (a high security hospital) where he was transferred in March 1994 as a result of his increasingly psychotic, aggressive and violent behaviour. Relying in particular on Article 8 (right to respect for private and family life), he alleged that Ashworth’s in-hospital policy on seclusion, which had not complied with the Code of Practice under the Mental Health Act, had adversely affected his right to personal development and to establish and develop relationships with the outside world. Further relying on Article 5 (right to liberty and security), he also claimed that his seclusion had amounted to a further deprivation of his liberty lacking any basis in law and without possibility of bringing an external appeal. No ..→2012-08-192012 cases, Brief summary, ECHR, Transcript
Re BS; SC v BS [2012] MHLO 78 (COP) — The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed. 2012-08-172012 cases, Brief summary, Other capacity cases, Transcript
R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin), [2012] MHLO 77 — (1) Voluntary euthanasia is not a possible defence to murder. (2) The DPP is not under a legal duty to provide further clarification of his policy. (3) Section 2 Suicide Act 1961, in obstructing the claimants from exercising a right in their circumstances to receive assistance to commit suicide, is not incompatible with Article 8. (4) The GMC and the SRA are not under a legal duty to clarify their positions. (5) It was unnecessary in this case to decide whether or not the mandatory life sentence for murder, in a case of genuine voluntary euthanasia, is incompatible with the Convention. 2012-08-172012 cases, Brief summary, ICLR summary, Other criminal law cases, Transcript
Re Ian Brady [2012] MHLO 76 (FTT) — The tribunal hearing was adjourned from 9/7/12, to a date to be fixed, because of the patient's (physical) medical condition. 2012-08-172012 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript
Re Ian Brady [2012] MHLO 75 (FTT) — The media's request for one or more representatives to be present in the tribunal room at Ashworth was refused. 2012-08-172012 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript
Re Harcourt [2012] MHLO 74 (LPA) — "This application relates to an investigation by the Office of the Public Guardian into the management of Mrs Harcourt’s property and financial affairs by her daughter under a Lasting Power of Attorney. It considers the powers of the OPG and the Court of Protection when an attorney impedes an investigation and the circumstances in which the court may revoke an LPA." 2012-08-162012 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript
Re Newman [2012] MHLO 73 (EPA) — The donor made an EPA in which, amongst other defects, he failed to select either of the following alternatives: "with general authority to act on my behalf" or "with authority to do the following on my behalf". The court confirmed that this failure did not invalidate the EPA, because it was an immaterial difference from the prescribed form within paragraph 2(4) of Schedule 4 of the MCA. [OPG summary - EPA case.] 2012-08-162012 cases, Brief summary, EPA cases - all, EPA cases - immaterial differences from the prescribed form, Transcript
Re Stapleton [2012] MHLO 72 (EPA) — (1) The court directed the Public Guardian to cancel the registration of the EPA, because the attorney's financial abuse made him unsuitable. (2) A panel deputy was appointed instead. (3) D was ordered to pay his own costs (a departure from the general rule in property and affairs cases that P pays) because of D's conduct before and during proceedings. 2012-08-162012 cases, Brief summary, EPA cases - all, EPA cases - suitability of attorney, Transcript
Re Steven Neary; LB Hillingdon v Steven Neary [2012] MHLO 71 (COP) — The Court of Protection approved a consent order under which the London Borough of Hillingdon is to pay £35,000 damages to Stephen Neary. 2012-07-262012 cases, Best interests, Brief summary, Deprivation of liberty, No transcript
EC v Birmingham and Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC), [2012] MHLO 70 — (1) Appeals against tribunals' refusals to hear arguments in relation to extra-statutory recommendations were dismissed as (a) there is no legal right to advance these arguments (this is a sufficient reason for not making an extra-statutory recommendation which can be implied if not stated), (b) refusal to consider a extra-statutory recommendation is neutral rather than disadvantageous to the patient, and (c) a flawed extra-statutory should have no effect because of its legal status. (2) The judge made further comments about (a) potential guidance to hospital managers about UT procedure, (b) secondary challenges by the appellants, and (c) tribunal procedure generally in relation to extra-statutory recommendations. 2012-07-242012 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
Re DS; A Local Authority v DS [2012] EWHC 1442 (Fam), [2012] MHLO 68 — In this case the President of the Family Division gave guidance on LSC prior authority for expert evidence in the Family Division, and suggested wording for court orders. 2012-06-232012 cases, Brief summary, Other capacity cases, Transcript
Re O'Brien [2012] MHLO 65 (LPA) — The donor of a property and financial affairs LPA included the following guidance: "My handicapped son should be adequately provided for." On the application of the Public Guardian this provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Strange [2012] MHLO 64 (LPA) — The donor of a property and financial affairs LPA included the following guidance: "I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so." The Public Guardian asked the court to consider whether the guidance needed to be severed as potentially contravening section 12 of the MCA 2005. In the application the Public Guardian referred to the case of Bloom (above), noting that a wife had no common law duty to maintain her husband and that the husband's common law duty would be abolished when section 198 of the Equality Act 2010 came into force, but noting also that various other legislation (see below) imposed a duty on a wife to maintain her husband. The court did not sever the guidance and explained the position in the following terms: "In the context of clauses in an LPA in which the donor makes provision for the maintenance of his or her spouse, there should be no distinction between ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Smith [2012] MHLO 63 (LPA) — The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney's signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney's name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re McGreen [2012] MHLO 62 (LPA) — The donor appointed A as attorney and B as replacement attorney and then provided as follows on the A2 continuation sheet: "If my Replacement Attorney is no longer a partner in the firm of XYZ Solicitors, I appoint in his place a suitably qualified partner of that firm or firm which has succeeded that firm and carries on its practice, to be my Replacement Attorney." (Only A and B had signed Part Cs.) The Public Guardian applied for severance of the provision on the ground that it was not possible to appoint a replacement attorney to take over from a replacement attorney (see Re Baldwin, below, under the heading "Replacement for replacement attorney".) The court severed the provision for that reason and also for the following reason: "Section 19(2) of the Mental Capacity Act 2005 states that, in respect of the appointment of deputies, 'the court may appoint an individual by appointing the holder for the time being of a specified office or position'. However, there is no comparable ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - appointment of office holder as attorney, No transcript
Re Llewelyn [2012] MHLO 61 (LPA) — The donor appointed attorneys including her husband to act jointly in some matters and jointly and severally in other matters. She stated that decisions were to be made jointly and severally apart from a list of specified decisions which were to be made jointly, but added a proviso to the effect that, provided her husband was able to act as one of her attorneys, all decisions could be made jointly and severally. On the application of the Public Guardian the proviso was severed as being incompatible with an appointment to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Phillips [2012] MHLO 60 (LPA) — The donor appointed three attorneys, A, B and C. She did not name any persons to be notified, and so there were two certificate providers. The Public Guardian refused to register on the ground that one certificate provider, X, was a member of the family of A. He was the unmarried partner of A but did not live at the same address. In his Part B certificate X said: "I am the partner of A and have known the donor for 3 years." The attorney applied to court for a direction to register and the Public Guardian was joined as respondent. The court decided that X was to be treated as a member of the family of A, and so the instrument could not be registered. The judge said: "In my judgment, anyone who describes himself in this context as the attorney's partner is courting trouble and automatically disqualifies himself from being a person who can give an LPA certificate. This applies regardless of whether he describes himself as the attorney's partner intentionally or inadvertently, whether ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - eligibility of certificate provider, Transcript
Parascineti v Romania 32060/05 [2012] MHLO 59 (ECHR) — The conditions in an overcrowded psychiatric ward with very poor standards of hygiene led to inhuman and degrading treatment in violation of Article 3. 2012-06-232012 cases, Brief summary, ECHR, Miscellaneous, Transcript
GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58 — The claimant applied for a writ of habeas corpus, challenging the AMHP's decision not to consult the nearest relative (under s11) before making a s3 application. The AMHP's evidence was that, having tried to telephone the NR on five or six occasions, he dispensed with consultation because nursing staff were anxious about the patient's presentation and needed him on s3 to move him to a psychiatric intensive care unit. (1) The question which arises on an application of this sort is whether the AMHP's decision was plainly wrong, or whether it was within the range of appropriate decisions available. (2) In the circumstances his decision was unlawful, in particular because: (a) the notes showed that the claimant had essentially been stable (and, in the event, had not been transferred to the PICU for over two weeks after the s3 began); and (b) the s3 assessment finished about 4.30pm and the s2 was due to expire at midnight, so to drive about 30 minutes to the NR's house would not have ..→2012-06-212012 cases, Brief summary, Consulting NR, Missing from Bailii, Transcript
DC v Nottinghamshire Healthcare NHS Trust [2012] UKUT 92 (AAC), [2012] MHLO 53 — (1) The tribunal cannot grant a deferred conditional discharge until (a) it has found, on the balance of probabilities, that the patient should not be detained but should be subject to recall, and (b) it has drafted the conditions for the discharge. (2) A deferred conditional discharge is not a device for gathering information on whether a conditional discharge would be possible or what conditions might be appropriate. (3) On the facts (where the tribunal had decided that 'with the exception of the availability of suitable after-care for the Patient, none of the criteria for his detention in hospital for treatment are met' but had not drafted conditions) the decision to adjourn was correct. 2012-05-202012 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
DD v Durham County Council [2012] EWHC 1053 (QB), [2012] MHLO 51 — The claimant was gate sectioned at Durham prison and detained under s2, then s3, in a Middlesborough hospital. He had complaints of false imprisonment and breaches of Article 3 and 8 relating to matters such as his being kept in seclusion, the lighting in his room, the number of people supervising his activities and a general lack of privacy. (1) He needed leave under s139 to bring civil proceedings against Durham County Council and Middlesborough City Council. This was refused: there was no realistic prospect of establishing illegality against the AMHPs who made the recommendations for s2 and s3 as AMHPs are (a) not required to choose or investigate the quality of the place of detention, (b) not required to research medical views earlier than those in the statutory recommendations, (c) not responsible for the medical or other regimes to which a detained person is subjected. (2) The AMHP who applied for s3 detention was employed by Middlesborough, so ..→2012-05-052012 cases, Brief summary, Miscellaneous, Transcript
R v Parkins [2012] EWCA Crim 856, [2012] MHLO 50 — The sentencing judge had not been wrong to impose a restriction order contrary to the medical recommendations. 2012-05-052012 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
Verlander v Rahman [2012] EWHC 1026 (QB), [2012] MHLO 49 — Personal injury quantum judgment including the following issues: (1) whether and to what extent the claimant's disabilities were due to frontal lobe brain damage (and are now incapable of significant improvement) or due depression or psychological factors (which may well improve over time); (2) whether the claimant had capacity to manage her properties and affairs. 2012-05-052012 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Re D; An NHS Trust v D [2012] EWHC 885 (COP), [2012] MHLO 47 — (1) P was in a permanent vegetative state so continued medical treatment is of no benefit to him because it is futile. (2) His letter refusing life-sustaining treatment did not comply with the MCA requirements for an advance decision so could not have been relied upon; however, had the evidence on PVS not been clear cut, the judge would have given P's previous wishes and feelings great weight. 2012-05-052012 cases, Advance decision cases, Best interests, Brief summary, Transcript
Re D (Official Solicitor's costs); An NHS Trust v D [2012] EWHC 886 (COP), [2012] MHLO 48 — (1) In medical cases in the Court of Protection, an order that the health authority pays half the Official Solicitor's costs is the starting point, from which the court can depart if there is reason to do so (thus the practice under the inherent jurisdiction continues). (2) On the facts, this was the order made. 2012-05-052012 cases, Brief summary, COP costs cases, Transcript
MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46 — MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and ..→2012-05-052012 cases, Brief summary, ECHR, Miscellaneous, Transcript
Re Drew [2012] MHLO 45 (LPA) — The donor of a property and financial affairs LPA included the following guidance:" If my father is still alive then my trustees should continue with my contributions to his care (my records make clear from which account) and assume my role in financial responsibility for him." [The reference to "trustees" should have been to "attorneys".] The court severed the provision on the ground that it contravened section 12 of the MCA 2005. The order recited that the case of Bloom was distinguishable because in the present case the donor had no common law duty to make provision for her father's maintenance. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bloom [2012] MHLO 44 (LPA) — The donor of a property and financial affairs LPA included the following direction: "I direct my attorneys to use such of my capital and income as they shall at their discretion deem necessary to make provision for my wife's maintenance and benefit." The Public Guardian asked the court to sever either the entire direction or just the words "and benefit". The court severed only the words "and benefit" on the ground that they contravened section 12 of the MCA 2005. The order recited that the donor had a common law duty to make provision for his wife's maintenance. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Batchelor [2012] MHLO 43 (LPA) — The donor of a property and financial affairs LPA included the following provision: "I would ask my attorneys to have regard to any separate guidance note which I may make from time to time and place with this Lasting Power of Attorney." On the application of the Public Guardian the provision was severed on the ground that it contravened the requirements of regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, which do not permit additions to be made to an LPA. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
R v B [2012] EWCA Crim 770, [2012] MHLO 42 — The appellant, an autistic young man who was prosecuted for voyeurism for looking into a swimming pool cubicle, was found by the judge to be unfit to be tried and by the jury to have committed the act charged against him. Voyeurism consists of, for the purpose of obtaining sexual gratification, observing another person doing a private act, knowing that the other person does not consent to being observed for sexual gratification (s67 Sexual Offences Act 2003). (1) Contrary to the judge's direction, the 'act' includes 'for the purpose of obtaining sexual gratification' (only the knowledge was part of the state of mind); hence, the jury's determination was unsafe and the appeal would be allowed. (2) The question of whether the jury should have had expert evidence on whether the appellant had committed the act was (although treated with some doubt) left open for argument in a future case. (3) A Sexual Offences Prevention Order could only be made 'for the purpose of protecting the ..→2012-04-282012 cases, Brief summary, Transcript, Unfitness and insanity cases
R (HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin), [2012] MHLO 41 — (1) The claimant's immigration detention (firstly 1/5/10-5/7/10, then 5/11/10-15/12/10) had been unlawful; (2) the time it took to transfer him to hospital (i.e. 1/5/10-5/7/10) was manifestly unreasonable and unlawful; (3) the policy introduced on 26/8/10 in relation to detention of people with mental illness was unlawful in breach of the defendant's duties under s71 Race Relations Act 1976 and s49A Disability Discrimination Act 1995. (4) The circumstances of the claimant's detention breached Article 3 during both periods. 2012-04-282012 cases, Brief summary, Repatriation cases, Transcript
R v Ahmed [2012] EWCA Crim 708, [2012] MHLO 40 — The appellant was found unfit to plead, spent 35 years subject to s37/41, pleaded guilty to diminished responsibility manslaughter, was given an IPP sentence with a 63-month tariff, and was transferred back to hospital under s47/49. (1) The appropriate minimum term was 39 months. (2) The appeal was adjourned to obtain medical evidence and for future consideration of whether a hospital order ought to have been imposed. 2012-04-282012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R (Sutton) v Calderdale Council [2012] EWHC 637 (Admin), [2012] MHLO 39 — Costs judgment in mental health/community care judicial review: no order for costs. 2012-04-282012 cases, Brief summary, Miscellaneous, Transcript
L v Clinical Director of St Patrick's University Hospital (2012) IEHC 15, [2012] MHLO 36 — Unsuccessful claim for unlawful detention by 'voluntary patient' who was not allowed to leave hospital ward. 2012-04-282012 cases, Brief summary, Southern Irish cases, Transcript
Re JC; D v JC [2012] MHLO 35 (COP) — JC's daughter D, who had been conceived following a post-marital rape of JC’s ex-wife and adopted by other parents very shortly after her birth, and who had never met or had any contact with JC, sought a statutory will giving her an equal share JC's £3.5m estate alongside his other children (A, B and C). (1) The criterion now for making statutory wills on behalf of adults who lack testamentary capacity is what is in their best interests rather than substituted judgment; however, best interests contains a strong element of substituted judgment. (2) The value of the 'balance sheet' approach is of doubtful effectiveness in statutory will applications, and in this case it was a struggle to identify benefits or disbenefits, but usually there is at least one factor of 'magnetic importance'. (3) In this case, the idea of being remembered with affection for having done the 'right thing' was of no assistance: 'JC has an appalling track record. He has spent his entire lifetime doing ..→2012-04-282012 cases, Brief summary, Statutory will cases, Transcript
R v Levey [2012] EWCA Crim 657, [2012] MHLO 34 — Tariff in life sentence for murder reduced from 24 years to 22 years, partly because the sentencing judge made insufficient allowance for the borderline personality disorder which played a significant part in the killing. 2012-04-282012 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33 — (1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court. 2012-04-132012 cases, Brief summary, No transcript, Other capacity cases
DL v A Local Authority [2012] EWCA Civ 253, [2012] MHLO 32 — The local authority brought proceedings under the High Court’s inherent jurisdiction to protect his parents from DL; these proceedings could not have been brought under the MCA 2005 as the parents did not lack capacity under that Act; DL argued that the MCA, by establishing a comprehensive scheme for adults, had displaced the inherent jurisdiction. (1) The inherent jurisdiction of the High Court in relation to vulnerable adults survives the implementation of the MCA 2005, which only relates to adults who lack capacity as defined in the Act. (2) The absence of any express provision in relation to the inherent jurisdiction implies that it continues to be available, as 'the great safety net', where the Act does not apply; in any event, there is a strong policy justification, the protection of vulnerable adults, for this conclusion. (3) The jurisdiction is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason ..→2012-03-282012 cases, Brief summary, ICLR summary, Other capacity cases, Transcript
X v MHRT for NI (2012) NIQB 1, [2012] MHLO 31 — In previous judicial review proceedings, X had established that in NI where there is a mandatory duty to discharge it cannot lawfully be deferred. He now sought to bring a negligence and false imprisonment claim against the Tribunal and the Trust for his detention during a six-week deferral period. To sue the Tribunal he required leave of the High Court (under Article 133 Mental Health (Northern Ireland) Order 1986, the equivalent of s139): the test is whether on the materials immediately available to the court the complaint deserves fuller investigation. Leave was refused because there had been a difficult question of statutory construction and no bad faith or lack of reasonable care. 2012-03-242012 cases, Brief summary, Northern Irish cases, Transcript
Reynolds v UK 2694/08 [2012] ECHR 437, [2012] MHLO 30 — (1) A voluntary in-patient killed himself by breaking and jumping out of a sixth-floor window: the court held that there was an arguable claim that an operational duty under Article 2 arose to take reasonable steps to protect him from a real and immediate risk of suicide and that that duty was not fulfilled. (2) There were no domestic civil proceedings available to his mother to establish any liability and compensation due as regards the non-pecuniary damage suffered by her on her son’s death, and therefore there was a violation of Article 13 in conjunction with Article 2. In particular: (a) neither the inquest nor the internal inquiry were an effective remedy; (b) the HRA claim under Article 2 was struck out by the county court because of domestic case law at that time which required gross negligence; (c) the mother had no prospect of obtaining adequate compensation for non-pecuniary damage under the Fatal Accidents Act 1976 (she was not a dependent) or the Law Reform ..→2012-03-242012 cases, Brief summary, Inquests, Miscellaneous, Transcript
Seaton v Seddon [2012] EWHC 735 (Ch), [2012] MHLO 28 — Chancery case partly involving, in relation to the fourth claimant, consideration of the effect of mental incapacity on statutory limitation periods. (1) If a claimant is under one disability (minority) when the cause of action accrued, and subsequently under a second overlapping disability (mental incapacity), the limitation period does not run until he is no longer under the second disability. (2) The question of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced (in this case: whether he was 'of unsound mind [meaning that he] by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing or administering his property and affairs' rather than the new test of whether he 'lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings'. (3) On the facts, the fourth claimant was not 'of unsound mind'; hence he would not meet the new test ..→2012-03-242012 cases, Brief summary, Other capacity cases, Transcript
Wirral MBC v Salisbury Independent Living Ltd [2012] EWCA Civ 84, [2012] MHLO 27 — In Housing Benefit cases, a landlord cannot exercise an independent right of appeal to the First Tier Tribunal against a decision of the Local Authority other than in the cases for which specific provision is made by the subordinate legislation. 2012-03-242012 cases, Brief summary, Miscellaneous, Transcript
R (Broadway Care Centre Ltd) v Caerphilly County Borough Council [2012] EWHC 37 (Admin), [2012] MHLO 26 — The Claimant unsuccessfully sought permission to challenge the decision of the Defendant local authority to terminate its contract to provide care for elderly dementia sufferers. 2012-03-242012 cases, Brief summary, Miscellaneous, Transcript
ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. (1) The police actions constituted assault, battery and false imprisonment. There was no need for the police to be aware of the Mental Capacity Act 2005 for the defence in ss5-6 to be made out, but on the facts it was not. When the MCA applies, the common law defence of necessity has no application, but had it applied it would have failed. (2) There was a breach of the DDA 1995 duty to make reasonable adjustments to the normal practice, policy or procedure, and the defence of justification failed. (3) The inhuman or degrading treatment breached Article 3. (4) Even treating purpose and intention as relevant, there was a ..→2012-03-232012 cases, Brief summary, Other capacity cases, Transcript
Re Taylor [2012] MHLO 24 (EPA) — (1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally'. [OPG summaries - EPA cases.] 2012-03-222012 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
R (W) v Dr Larkin [2012] EWHC 556 (Admin), [2012] MHLO 23 — A warrant for the claimant's transfer to prison was issued on the RC's advice in the context of Broadmoor's DSPD unit being about to close on 29/3/12. (1) It is not unlawful for an RC to tick both the 'no longer requires treatment in hospital for mental disorder' and the 'no effective treatment for his disorder can be given in the hospital to which he has been removed' boxes on the s50 proforma. (2) There was no evidence that the views expressed on the form were not those of the RC or that he had subordinated his clinical judgment to expediency or national strategies. (3) No relief would have been granted even had there been unlawfulness: the claimant had to leave Broadmoor, no MSU would then take him, so he had to return to prison in any event. 2012-03-202012 cases, Brief summary, Miscellaneous, Missing from Bailii, Transcript
Re H [2012] MHLO 21 (LPA) — The donor used the 2007 version of the LPA prescribed form and failed to tick the box to confirm that she had read (or had read to her) the prescribed information on pages 2, 3 and 4. On the attorney's application the court was unable to find on balance of probability that the donor had read (or had read to her) the prescribed information. This was a failure of execution and the court had no discretion to uphold it. [OPG summary - LPA case.] 2012-03-192012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Forrest [2012] MHLO 20 (LPA) — The donor included the following guidance: "I hereby express the wish that my Attorneys will continue to pay my contribution to the school fees of my granddaughters, A and B, as per my previous pattern of contributions." On the application of the Public Guardian the guidance was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-03-192012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Ian Brady [2012] MHLO 19 (FTT) — (1) Ian Brady's Mental Health Tribunal hearing will be held on 9/7/12 with a time estimate of 8 days; (2) the hearing at Ashworth will be broadcast at the Civil Justice Centre Manchester where the public and media can observe; (3) in relation to the hearing itself, the public will not be allowed to attend, and the position of the media will be the subject of further directions. 2012-03-122012 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript
R v Dowds [2012] EWCA Crim 281, [2012] MHLO 18 — The appellant argued that voluntary acute intoxication (voluntary and uncomplicated by any alcoholism or dependence) is capable of giving rise to the partial defence of diminished responsibility on an indictment for murder under the amended Homicide Act 1957 because it is a 'recognised medical condition'. Held: (1) the presence of a 'recognised medical condition' is a necessary, but not always a sufficient, condition to raise the issue of diminished responsibility; (2) voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility. 2012-03-052012 cases, Brief summary, Diminished responsibility cases, Transcript
JB v MHTS [2012] MHLO 17 (ScotSC) — The MHTS declared under section 257 Mental Health (Care and Treatment) (Scotland) Act 2003 that JB was no longer to be the named person on the basis that it was inappropriate for her to continue as such. The decision was made by a Convenor (legal member) sitting alone, but should have been made by a full panel: the tribunal was faced with an important substantive decision; there was no emergency; even if there had been extant proceedings, this was not a 'preliminary' or 'interim' decision within the rules. The tribunal was therefore improperly constituted, and the appeal was allowed. 2012-03-052012 cases, Brief summary, Scottish cases, Transcript
R v Lucas [2012] EWCA Crim 182, [2012] MHLO 16 — The renewed application for extension of time (the delay being caused by the appellant pondering negative legal advice before deciding to appeal anyway) in which to apply for leave to appeal against restriction order was refused, as there was ample material to justify the restriction order. 2012-03-052012 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
Re Lane [2012] MHLO 15 (LPA) — The donor made an LPA on 3 May 2011 using the 2007 prescribed form. The transitional provisions of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment Regulations) 2009, which introduced new prescribed forms, provide that an instrument executed by the donor before 1 April 2011 on the 2007 prescribed form is capable of being a valid lasting power of attorney. The Public Guardian made an application to the court for the severance of an invalid restriction, and drew the court's attention to the date of execution, submitting that the 'old' forms were not materially different from the 'new' forms. The court accepted that the 'old' forms differed from the 'new' forms in an immaterial respect and were accordingly within paragraph 3(1) of Schedule 1 of the MCA, which provides that an instrument which differs in an immaterial respect in form or mode of expression from the prescribed form is to be treated by the Public Guardian as sufficient in point ..→2012-03-052012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Crawford v Suffolk MH Partnership NHS Trust [2012] EWCA Civ 138, [2012] MHLO 14 — The employees had been dismissed for gross misconduct for restraining a patient on a chair which was tied to a table; they disputed the allegation that they tied the patient to the chair with a sheet. (1) The Employment Tribunal had been entitled to conclude that there had been two procedural errors (in failing to obtain the witness's first statement, and in carrying out a practical experiment on the chair without notification to the appellants) and that they were errors that a reasonable employer would not have made; although the ET went too far in saying no reasonable employer could have preferred the witness's evidence over the employees', this did not invalidate the finding of unfair dismissal. (2) The case was remitted to the ET to consider the Polkey point (reduction in compensation based on chance of dismissal following fair procedure) but the 25% reduction for contributory fault (failure to report the incident) was upheld. (3) (Obiter) The court expressed scepticism about ..→2012-03-052012 cases, Brief summary, Miscellaneous, Transcript
Coombs v Dorset NHS PCT [2012] EWHC 521 (QB), [2012] MHLO 13 — Whether the claimant, who had sustained a serious head injury while a detained patient, should be permitted to fund his future care. (1) The defendant argued that (a) a detained patient could not choose to pay for his treatment, particularly because the RC chose where and how he was treated; (b) allowing payment would create a contract, contrary to the purpose of the MHA to take care and treatment out of patients’ hands; (c) there was no significant difference compared with prisoners, whose expenses are met by the government under s51 Prison Act 1952; (d) while the statute did not prohibit payment, it would be contrary to public policy to allow a patient to use his own funds. (2) The claimant argued that (a) there was no reason why a detained patient should not be able to pay if he wishes; (b) while the patient could not choose where or how he was treated, he should be able to top-up payments if he preferred a placement for which the funding authority were unwilling to pay; (c) ..→2012-03-052012 cases, Brief summary, Miscellaneous, No transcript
Long v Rodman [2012] EWHC 347 (Ch), [2012] MHLO 12 — The general guardian (under an order made by a court in Nevada) sought to be appointed deputy in place of the existing deputy. Variation or discharge under s16(7) must be done in accordance with P's best interests; in this case a change of deputy would not be in P's best interests. 2012-03-012012 cases, Brief summary, Other capacity cases, Transcript
R v Chiles [2012] EWCA Crim 196, [2012] MHLO 10 — The judge should not have should not have taken into account her concerns about the future of the NHS (she had said, 'I cannot be confident in the current fluctuating state of the NHS that the security that the public needs to be protected from you will be ensured unless there is an another government department which has input into the issue of your release and that is what I will achieve by the section 41 order') but there was ample material to justify the conclusion that a restriction order was necessary for the protection of the public from serious harm. 2012-03-012012 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
R v Stead [2012] EWCA Crim 92, [2012] MHLO 9 — The appellant, who had been sentenced to ten years' detention in a young offender institution together with an indefinite Sexual Offences Prevention Order, successfully argued for the imposition of a hybrid order under MHA 1983 s45A. 2012-02-092012 cases, Brief summary, Hybrid order cases, Missing from Bailii, Transcript
R v Nottingham MHRT, ex p Secretary of State for the Home Department (Thomas) [1988] MHLO 1 — The Tribunal has no power to adjourn to give an opportunity for the patient's condition to improve or to see if an improvement already made is sustained. 2012-02-091988 cases, Brief summary, No transcript, Powers
Re L; K v LBX [2012] EWCA Civ 79, [2012] MHLO 7 — Article 8 does not require that maintenance of existing family life arrangements be a 'starting point' in best interests decisions. 2012-02-082012 cases, Best interests, Brief summary, Transcript
Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] MHLO 6 — (1) The operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA. (2) There was a 'real and immediate' risk to the patient's life of which the Trust knew or ought to have known and which it failed to take reasonable steps to avoid, so the obligation was breached. (3) The patient's parents were 'victims' within the meaning of Article 34 of the Convention. (4) They had not lost their victim status by settling a negligence claim, as (although it had in substance acknowledged its breach) the Trust had not made adequate redress. (5) The one-year limitation period in s7(5) HRA 1998 was extended becuase the extension was short, the Trust suffered no prejudice, the claimants acted reasonably in delaying, and there was a good claim. (6) The Court of Appeal's assessment of damages was upheld, and £5000 was awarded to each parent. 2012-02-082012 cases, Brief summary, ICLR summary, Inquests, Transcript
Re M [2011] EWHC 3590 (COP) — Under MCA 2005 s63 and schedule 3, which incorporates the Hague Convention on the International Protection of Adults 2000 into domestic law, the High Court recognised and gave effect to an order of the Southern Irish High Court which required M's transfer to and treatment at an English psychiatric hospital. 2012-02-042011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC), [2012] MHLO 5 — The UT judge reviewed his previous decision because he had overlooked a legislative provision which could have had a material effect on the decision: in this case MCA 2005 s7, which provides that 'If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.' (1) Although the purported tenancy agreement between P and her father was void because the lack of capacity was known, under s7 P was still 'liable to make payments in respect of the dwelling which she occupies as her home' so she was entitled to benefits under the Housing Benefits Regulations 2006. (2) Even if 'services' in s7 is not wide enough to cover the provision of accommodation, the common law rules as to necessaries survive and the provision of accommodation is an obvious necessary. 2012-02-042012 cases, Brief summary, Other capacity cases, Transcript
DM v Doncaster MBC [2011] EWHC 3652 (Admin) — DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) ..→2012-01-222011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
The People (at the suit of the Director of Public Prosecutions) v McMahon (2011) IECCA 94 — The Southern Irish DPP appealed an 11.5-year sentence and invited the Criminal Court of Appeal to impose a life sentence as a form of preventive detention (akin to the English IPP sentence). The court held: 'The protection of the public is an appropriate factor in the exercise of the sentencing function, but it cannot be extracted from that function to create a self-standing judicially created jurisdiction to impose a form of preventive detention. Whether sentencing courts should have the power to order the detention of individuals deemed to posed an immediate threat to the public, over and beyond any appropriate sentence for the crime committed, is a matter which should be addressed in the first place by detailed legislation by the Oireachtas after appropriate research and debate, and subject to Constitutional and Convention review if appropriate.' 2012-01-202011 cases, Brief summary, Southern Irish cases, Transcript
R v Clinton [2012] EWCA Crim 2, [2012] MHLO 2 — In the new 'loss of control' partial defence to murder, which replaces the provocation defence, when determining whether a loss of self-control had a 'qualifying trigger' (as set out in s55(3) and (4) Coroners and Justice Act 2009) 'the fact that a thing done or said constituted sexual infidelity is to be disregarded' (s55(6)(c)). The Court of Appeal held that where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it. 2012-01-172012 cases, Brief summary, Other criminal law cases, Transcript
Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1 — (1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded. 2012-01-172012 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Other capacity cases, Transcript
Re AH (Costs); AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 3524 (COP) — The relevant respondents were ordered to pay the costs of the nine applicants in this welfare case: (1) half the costs between issue of proceedings and settlement or final hearing, and (2) full costs of the costs application. The judge concluded: 'The conclusion I have reached in this case represents a partial departure from the general rule that there should be no order for costs. It is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognise the weakness of their own cases and the strength of the cases against them. In such circumstances they cannot invoke Rule 157 at the expense of others.' 2012-01-122011 cases, Brief summary, COP costs cases, Transcript
Re Tucker (2011) COP 9/12/11 — The donor appointed one attorney and one replacement attorney and then directed as follows: "My replacement attorney shall only act if my attorney is unable to act by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated by reason of the death, disclaimer or other incapacity of my attorney to act as my attorney; whichever shall first occur. For the avoidance of doubt my replacement attorney shall act alone if my attorney is not able to act." On the application of the Public Guardian the words "by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated" were severed because revocation of the attorney's appointment is not one of the events listed in section 13(6)(a)-(d) of the MCA that trigger the activation of the appointment of a replacement attorney. [OPG summary - LPA case.] 2012-01-092011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Evans (2011) COP 24/11/11 — The donor appointed A (his wife) and B as attorneys, to act jointly and severally, and C as replacement attorney. He then directed as follows: "My replacement attorney will replace both my attorneys and act alone if and when my wife becomes unable or unwilling to carry out her duties as my attorney." On the application of the Public Guardian the direction was severed because the donor was attempting to provide for attorney B to be replaced even though one of the triggering events for his replacement listed in section 13(6)(a)-(d) of the MCA had not occurred. [OPG summary - LPA case.] 2012-01-092011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 3522 (COP) — (1) Each application for costs must be considered on its own merit: the previous cases were illustrative only and provided no guidance on the Rules. (2) The judge departed from the general rule in welfare cases (that each party bears his own costs) as this was not a typical case: Hillingdon's actions were significantly unreasonable in relation to the illegality of its actions, its disorganised decision-making, the lack of a proper best interests assessment, its uncooperative attitude to Stephen's father, its delay in referring the matter to the court (thereby increasing costs), and its attempt to defend its actions to the end, both in court and in the media. (3) Hillingdon were ordered to pay the OS's costs from the date of issue to the conclusion of the main hearing in May 2011 but not (a) costs in relation to the press issue, which raised issues of general public importance, or (b) costs following the main hearing, during which Hillingdon adopted a cooperative stance. (4) The ..→2012-01-042011 cases, Brief summary, COP costs cases, Transcript
DP v Hywel DDA Health Board [2011] UKUT 381 (AAC) — WP's order for his son DP's discharge was barred by the Responsible Clinician; WP was then advised by the responsible authority that he was not the nearest relative, and that therefore his order and the barring report were of no effect; on this basis the Tribunal rejected WP's subsequent application. DP appealed. (1) The judge treated the barring report as having been withdrawn (rather than never having been valid): because there was no report, the Tribunal had no jurisdiction, so it had been correct to reject the application. (2) If the barring report had not been withdrawn, the question would have been whether a nearest-relative application made by a non-nearest-relative can be rejected: this was left undecided (despite the clear wording of s66). 2012-01-032011 cases, Brief summary, Other NR cases, Transcript, Upper Tribunal decisions
Re VW; NK v VW (2010) COP 27/10/10 11744555 — NK sought (a) to have his mother VW removed from a care home (where she was detained under a DOLS authorisation) and placed in one more local to him, and consequently (b) to have more frequent contact than permitted by the current DOLS authorisation and (c) to be appointed welfare and financial deputy. He was refused permission to make his applications, because of medical evidence that to move VW would be detrimental to her welfare. 2012-01-022010 cases, Best interests, Brief summary, Transcript
SSJ v RB [2011] EWCA Civ 1608 — The Mental Health Tribunal may not grant a conditional discharge in circumstances where the conditions would inevitably lead to an Article 5 deprivation of liberty. Postscript: see PJ v A Local Health Board [2015] UKUT 480 (AAC), [2015] MHLO 63. 2011-12-312011 cases, Brief summary, Deprivation of liberty, Discharge conditions, Transcript
R v Weekes [1999] EWCA Crim 1225 — Restricted hospital order given on appeal, instead of life imprisonment. 2011-12-181999 cases, Brief summary, Life sentence cases, Transcript
Cardiff Council v Peggy Ross (2011) COP 28/10/11 12063905 — Cardiff Council used the Deprivation of Liberty Safeguards to prevent an elderly couple going on holiday cruise; the court decided that it was in the respondent's best interests to go on the cruise, and gave permission for ITV Wales to report that decision and broadcast interviews; later the court decided that the respondent herself had capacity to decide whether or not to go. 2011-12-102011 cases, Best interests, Brief summary, Transcript
PFZ v West London MH NHS Trust (2011) Settlement 28/11/11 — PFZ, an informal patient with a long history of mental illness, was allowed to run away from hospital in a suicidal state, then jumped from a balcony sustaining and permanent and catastrophic spinal cord injury which left him tetraplegic and wheelchair-bound. He sued the Trust for negligent failure to provide him with adequate treatment. The Trust agreed to compensate him on the basis of 40% liability, and made an advance payment of £75,000; the full amount was yet to be assessed but to meet PFZ's care needs for the remainder of his life was estimated to require millions of pounds. 2011-12-102011 cases, Brief summary, Miscellaneous, No transcript
Scottish Ministers v MHTS [2011] CSIH 76 — The Scottish Ministers challenged revocation by a Mental Health Tribunal of a restriction order affecting a patient suffering from paranoid schizophrenia and living in the community, and successfully argued that the compulsion order and restriction order should remain in force until the final hearing. 2011-12-102011 cases, Brief summary, Scottish cases, Transcript
Re Ian Brady (2011) First-tier Tribunal 7/12/11 — In a decision given on 17th October 2011, the application by Mr Ian Brady for a hearing in public that his application dated 4th August 2010 should be held in public was granted. The date of the hearing and appropriate arrangements are presently being determined and will be published as soon as possible. The fact of this decision should be published. The Tribunal also ordered that the reasons for the decision must not be made public. [Judge's summary.] 2011-12-102011 cases, Brief summary, First-tier Tribunal decisions, Publicity, Transcript
Re AB; AB v LCC (A Local Authority) [2011] EWHC 3151 (COP) — There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P's); (iii) the RPR can and is willing to act as litigation friend in P's best interests; and (iv) the procedure as set out in COP rule 143 is complied with. The judge set out the pros and cons of this course of action; in this case, he appointed the RPR to as P's litigation friend. 2011-12-082011 cases, Brief summary, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 1) [2010] EWHC 2423 (Fam) — This case under the inherent jurisdiction concerned RB's best interests in relation to residence and contact. Of the 16 issues considered by the judge, he found for RB's partner MF in relation to one sub-issue (which was a 'saddening example of the institutional inability of some bureaucracies ever to admit that something has gone wrong') but against him in relation to all others (most of which were MF's unfounded criticisms of almost everybody involved in the case: the judge's own criticisms of Dr Kahtan and the MP are worth reading). Had she not died during the hearing, it would have been, given MF's inability to cooperate with any community care package, in RB's best interests to continue residing at the care home. 2011-12-032011 cases, Brief summary, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 2) [2011] EWHC 112 (Fam) — MF's applications for permission to appeal and for a re-trial were refused as being devoid of merit. 2011-12-032011 cases, Brief summary, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 3) [2011] EWHC 2576 (Fam) — (1) MF's claim for compensation was dismissed as it had no factual foundation; it also had no legal basis. (2) MF sought costs from the local authority; the Official Solicitor sought costs against MF (from a certain date) and the local authority (to the extent that costs were increased by their stance): there was no order for costs, except that MF was to pay 20% of the Official Solicitor's costs between certain dates, to reflect the time spent on the peripheral issues which MF had raised and the 'extravagant, strident and on occasions vicious way in which he chose to pursue them'. 2011-12-032011 cases, Brief summary, COP costs cases, Other capacity cases, Transcript
Re Clare (2011) COP 8/9/11 — The donor made two LPAs, each appointing an attorney and a replacement attorney. In each she directed as follows: "My Attorney may at any time appoint a substitute to act as my Attorney and may revoke any appointment without giving a reason. Each appointment is to be in writing signed by my Attorney. Every substitute has full powers as my Attorney as if appointed by this Deed, except the power to appoint a substitute." On the application of the Public Guardian the provision was severed as being a plain breach of section 10(8)(a) of the MCA, which provides that an LPA cannot give the attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Dhir (2011) COP 15/11/11 — The donor set out eight restrictions, one of which was: "My attorney must not sell any of my properties unless it is required for my wife's medical treatment." On the application of the Public Guardian the restriction was severed on the ground that it authorised the attorneys to make gifts beyond the scope of the statutory power set out in section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Hamilton (2011) COP 25/10/11 — The donor appointed one primary attorney and one replacement attorney. On page 5 of the LPA the donor inappropriately ticked the box indicating that the attorneys were appointed to act jointly for some decisions and jointly and severally for other decisions, and continued: "My No 1 Attorney will make all decisions re my everyday expenses and decisions [and] will make joint decisions with the Replacement Attorney in reference to any large decisions re the selling of investments, property and the eventual need of a nursing home etc." On the application of the Public Guardian the provision was severed on the ground that, having appointed the attorneys to act successively, the donor could not authorise them to make any decisions concurrently, whether jointly or jointly and severally. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Stewart (2011) COP 9/11/11 — The donor included the following direction in the guidance section: "I authorise my attorneys to refuse or consent to my deprivation of liberty." The Public Guardian applied for severance on the ground that: "The deprivation of the donor's liberty is only lawful if ordered by the court or done in accordance with the procedures prescribed by law under the Mental Capacity Act 2005 as amended by the Mental Health Act 2007. The donor does not have power to authorise her attorneys to consent to the deprivation of her liberty in the absence of a court order or going through the Deprivation of Liberty Safeguarding procedures." The court determined that the direction was invalid for the reasons given by the Public Guardian. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re McGregor (2011) COP 16/11/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others, and directed as follows: "Jointly - decisions on sale of house. Decisions on type of care received if no longer able to stay in own home. Severally - financial matters regarding bank accounts and general cash flow." On the application of the Public Guardian the words "decisions on sale of house" and "Severally - financial matters regarding bank accounts and general cash flow" were severed because they purported to give Health and Welfare attorneys authority to make decisions regarding the donor's property and financial affairs. (The result would be that, by implication, the attorneys would be able to decide jointly and severally all matters other than the type of care the donor would receive if no longer able to stay in his own home.) [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Hossack v Legal Services Commission [2011] EWHC 2700 (Admin) — Unsuccessful judicial review of a decision of the LSC rejecting the claimant's tender for the provision of legal services in the field of community care following a competitive tendering exercise in 2010. 2011-11-262011 cases, Brief summary, Miscellaneous, Transcript
Hadzic and Suljic v Bosnia Herzegovina 39446/06 [2011] ECHR 911 — The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of Article 5(1); the applicants were awarded compensation of €15,000 and €25,000 respectively. 2011-11-262011 cases, Brief summary, Deprivation of liberty, ECHR, Transcript
R v Shah [2011] EWCA Crim 2333 — Following a special verdict of not guilty by reason of insanity, a restricted hospital order was imposed; an appeal, relying on post-sentence medical evidence, was made against the restriction order. (1) In exceptional cases the court can consider good progress after sentencing, but in this case the task was to decide whether, on the material before him on the date of sentence, the judge's sentence was wrong in principle or manifestly excessive: it was not. (2) The sentence provides a mechanism for release by a Tribunal from the restriction order and the full rigour therefore of the hospital order [this is incorrect], so the appeal court should not taken over the function of that body. 2011-11-212011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 4) [2011] EWHC 3017 (Fam) — There is no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults, so it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court. 2011-11-212011 cases, Brief summary, Other capacity cases, Transcript
Cheshire West and Chester Council v P [2011] EWCA Civ 1333 — The council sought a costs order against P in relation to the Court of Appeal proceedings. (1) The general rule on appeals from the COP to the Court of Appeal is, in accordance with CPR 44.3(2)(a), that the unsuccessful party will be ordered to pay the costs (subject, where relevant, to costs protection under s11 Access to Justice Act 1999). (2) The general rule in COP welfare cases (that there be no order as to costs) was irrelevant, as was the council's discreditable conduct at first instance. (2) Other factors were taken into account and the court made no order as to costs: 'Among the primary reasons for making no order is that the reason for and the importance of the appeal was not really at all about how P will be dealt with. The point of major importance for the local authority, and indeed local authorities generally, was how often they have to come back to court in this and other like cases.' 2011-11-212011 cases, Brief summary, COP costs cases, Transcript
R v Goucher [2011] EWCA Crim 2473 — On appeal, the restriction order was quashed: the judge had applied the correct test (whether it was necessary to protect the public from serious harm) but, as confirmed by a psychiatric report prepared for the appeal, he had got the answer wrong. [Summary based on All ER (D) report.] 2011-11-212011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
R v Heaney [2011] EWCA Crim 2682 — The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character. 2011-11-212011 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Other capacity cases, Transcript
De Louville De Toucy v Bonhams 1793 Ltd (2011) All ER (D) 32 (Nov) — (1) There was no inconsistency between the Insolvency Rules (defining an 'incapacitated person') and the CPR (defining a 'protected party'). (2) The registrar should not have declared the claimant bankrupt: he ought to have (a) been aware that the claimant was incapable, (b) adjourned the case for a representative or litigation friend to be appointed, and (c) heard representations from such a person. (3) On the evidence, the financial situation was complex and, without proper investigation, it was impossible to be sure that it was appropriate to make a bankruptcy order, so the order was set aside and the matter referred to the registrar to be heard again. [Summary based on All ER (D) report.] 2011-11-142011 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
R v Lavender [2011] EWCA Crim 2420 — (1) On the material before the sentencing judge, there was nothing wrong in principle with an extended sentence. (2) However, given the recent psychiatric evidence, it was now arguable that the option of a hospital order with or without a restriction order needed to be considered, so leave to appeal was given and a representation order was granted. 2011-11-142011 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
R (Smith) v LB Camden [2011] EWCA Civ 1207 — Unsuccessful application for permission for second appeal against strike-out of claim for want of compliance with s139. (The claim was for damages of £100 billion for wrongful removal from his flat and for being forced to live in various mental health institutions where he claimed to have been assaulted many times.) 2011-11-142011 cases, Brief summary, Missing from Bailii, Transcript, Unimportant cases
R v Clark [2011] EWCA Crim 2516 — The defendant appealed against a sentence of 56 months' imprisonment for GBH (financial worries had led him to decide to kill his wife and himself). The sentencing guidelines could never have been intended to apply to such an exceptional case; the sentence was replaced with a community rehabilitation order with a mental health treatment requirement. 2011-11-142011 cases, Brief summary, Missing from Bailii, Sentence appeal cases, Transcript
Re Hurren (2011) COP 28/9/11 — The Public Guardian refused to register the instrument as an LPA because the Part B certificate had been signed before the donor signed Part A, in contravention of Regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (The donor had subsequently lost capacity.) On the attorney's application, the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument was to be treated as if it were in the prescribed form and directed registration. The Public Guardian applied to set aside the order on the ground that paragraph 3(2) did not apply in the case of defective execution. The court set aside the order, and confirmed that the discretion given to the court under paragraph 3(2) applies only to an instrument which is not in the prescribed form and does not apply to any prescribed requirements in connection with its execution. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Steiner (2011) COP 17/10/11 — The donor appointed two attorneys to act jointly. She then gave the following guidance: "Should the need arise relating to the management of my financial affairs and my business interests, whoever at the time is acting for me personally as my accountant or solicitor shall adjudicate over my personal financial interests and whoever is acting professionally for me in respect of my business interests either my accountant or solicitor shall adjudicate over my business interests." On the application of the Public Guardian the court severed the provision from the LPA on the ground that it could potentially oust the jurisdiction of the court. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Wormsley (2011) COP 24/10/11 — The donor appointed two primary attorneys and two replacement attorneys, and directed them to act jointly and severally. He further directed as follows: "If a replacement attorney is required to replace an original attorney, the two replacement attorneys shall decide which one of them shall serve as attorney." On the application of the Public Guardian the court severed the provision as being inconsistent with the joint and several appointment of the replacement attorneys. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Clarke (2011) COP 19/9/11 — The donor made an LPA for property and financial affairs, appointing her husband and daughter as attorneys and her other two daughters as replacement attorneys. She also made an LPA for health and welfare, appointing her husband and three daughters as attorneys. When an application was made to register the instruments, the husband objected on the ground that the instruments had not been properly witnessed. He alleged that the witness had not been in the house when the donor signed, but had added his signature later. The court preferred the evidence of the witness and one daughter, to the effect that the donor had signed at the dining room table and that the witness was in an adjacent room and could see her sign through glass doors separating the two rooms. Applying the old case Casson v Dade (1781), the court held that the instruments had been properly witnessed. (The husband also objected on the ground that the donor lacked capacity to make an LPA, but this was also dismissed. The ..→2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, Transcript
Re GM; FP v GM and A Health Board [2011] EWHC 2778 (COP) — This was an application for a DOLS standard authorisation to be discharged, thus permitting GM, on discharge from hospital, to return to his home rather than be sent to an EMI home. (1) For there to be an order preventing GM from returning home (in practice, permanently) it would have to be 'so contrary to his interests to return that the court must not even contemplate seriously a placement' at home. (2) Factors in favour of a return home included: the 'emotional dimension'; GM's short life expectancy, and the fact that a move to EMI accommodation would be permanent; and Article 8 considerations. (3) Factors against were: the probability of a lesser quality of physical care at home; the risk of risk of breakdown and conflict; and the risk of deterioration, for instance in sleep pattern. (4) The DOLS authorisation was discharged. (5) As GM was ready for discharge from hospital, and the decision would have permanent effect, Hedley J decided the issue in one day in January instead ..→2011-10-262011 cases, Best interests, Brief summary, Missing from Bailii, Transcript
AG's ref (no 54 of 2011) [2011] EWCA Crim 2276 — (1) The restricted hospital order was quashed and a six-year IPP imposed. The judge had failed to take into account the differences between the two regimes: (a) release on licence from IPP depends on lack of danger for any reason, whereas release from hospital order depends on lack of danger for medical reasons only; (b) an IPP licence can be revoked for danger resulting from crime, whereas a conditional discharge can only be revoked if the medical condition relapses. It was essential in this case that the power to recall upon criminal relapse was available. (2) The s45A hybrid order regime would have been perfect in this case, but it is only available to those subject to imprisonment; however, the defendant was under 21 and imprisonment is only available to those 21 or over (the court recommended that this be reconsidered). (3) The notional determinate term of 12 years was not unduly lenient. (4) The hearing was adjourned in order to allow for an immediate s47 transfer ..→2011-10-242011 cases, Brief summary, Life sentence cases, Transcript
R v Morris [1997] EWCA Crim 2564 — The judge erred in law in that he left the jury to decide whether the assault occasioned pyschiatric injury in the absence of appropriate expert evidence; he should have followed the decision in Chan-Fook. 2011-10-241997 cases, Brief summary, Other criminal law cases, Transcript
Re S; D v R (the deputy of S) [2010] EWHC 3748 (COP) — Costs judgment in Court of Protection: (1) up to the December 2009 hearing, because the proceedings had been necessary, the normal rule that costs were to be paid by S's estate was to apply, but (2) from that point onwards, because of her conduct of proceedings, Mrs D was to bear her own costs, plus 75% of the Deputy's costs on the standard (not indemnity) basis. 2011-10-162010 cases, Brief summary, COP costs cases, Missing from Bailii, Transcript
R v Abdi [2011] EWCA Crim 2179 — Unsuccessful appeal against s41 restriction order. 2011-10-132011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
Sharma v Hunters [2011] EWHC 2546 (COP) — Unsuccessful application by Hunters Solicitors against wasted costs order in the Court of Protection. 2011-10-132011 cases, Brief summary, Other capacity cases, Transcript
Quigley v Masterson [2011] EWHC 2529 (Ch) — The defendant's application to the Court of Protection qualified as a notice of severance served under section 36(2) of the Law of Property Act 1925. 2011-10-132011 cases, Brief summary, Other capacity cases, Transcript
R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB) — The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; ..→2011-10-132011 cases, Brief summary, Transcript, Unlawful detention cases
S v Estonia 17779/08 [2011] ECHR 1511 — Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of Article 5(1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded. 2011-10-062011 cases, Brief summary, Deprivation of liberty, ECHR, Transcript
Re Jarman (2011) COP 8/8/11 — The donor made an EPA appointing attorneys to act jointly and severally. He included the following restriction: "While both of my Attorneys are alive and of capacity they are to act jointly and a certificate from a practising doctor will be sufficient evidence of capacity of either of my Attorneys." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011-10-012011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Gee (2011) COP 22/8/11 — The donor of a property and affairs LPA included the following guidance: "Although I authorise my Attorneys to make gifts of money to either grandchild in cases of extreme need (for which I rely on my Attorneys' discretion) no benefit directly or indirectly should go to my daughter. If my house has to be sold I authorise my Attorneys to distribute any furniture, household and personal effects to X, Y and my grandchildren as if I had died." In making the application the Public Guardian referred the court to the view expressed by the Law Commission in its report on Mental Capacity (Law Com. No. 231) to the effect that an LPA attorney could provide for the needs of others as part of his duty to act in the donor's best interests, even in the absence of an express provision such as is conferred on EPA attorneys. The Public Guardian asked the court to consider whether the view of the Law Commission could be relied on in cases where the donor contemplated that the attorneys could provide ..→2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Temple (2011) COP 10/8/11 — The donor of a property and affairs LPA included the following guidance: "My attorney is authorised to grant gifts of up to £5,000 for family and also to provide interest free loans of up to £10,000 for extreme need. Where possible loans to be repaid within one year with flexibility of terms allowed at my attorney's discretion." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Jackson (2011) COP 17/8/11 — The donor of a property and affairs LPA included the following guidance: "If my attorneys believe I lack mental capacity or am becoming mentally incapable of managing and administering my property and financial affairs then I wish them to realise all my stocks, shares and other investments and transfer the proceeds and the balances from all bank and other accounts in my sole name into a joint account in the names of myself and my wife to ensure that my wife has full access to all funds." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Fisher (2011) COP 28/7/11 — The donor included the following provision in his LPA: "I direct that if I lack mental capacity or for any other reason am unable to deal with my day to day financial affairs then my Attorney is to pay from my business the sum of £4,000 per calendar month into the bank account of my wife." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Walker (2011) COP 20/7/11 — The donor of a property and affairs LPA included the following provision in the guidance section: "To help my son X financially from my funds as and when he requires." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Salter (2011) COP 18/8/11 — The donor appointed primary attorneys to act jointly in some matters and jointly and severally in others, and also appointed replacement attorneys. She then directed as follows: "For decisions where my attorneys must act jointly, replacement attorney 1 should replace attorney 1, when he is unable to act and replacement attorney 2 should replace attorney 2 when he is unable to act." On the application of the Public Guardian this provision was severed because the effect of one primary attorney ceasing to act would be that the other primary attorney could no longer act in the matters to be decided jointly, but the direction contemplated that the first replacement would act with the surviving primary attorney. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Druce (2011) COP 31/5/11 — The donor made LPAs appointing A and B as her attorneys, to act jointly, and C and D to be her replacement attorneys. She then imposed the following restriction: "Both C and D should jointly replace the first attorney who needs replacing so that on the first replacement there will be 3 acting attorneys. No further replacements will be needed." On the application of the Public Guardian the court severed the restriction. There is nothing in section 10(8)(b) of the MCA, which deals with the appointment of replacement attorneys, to displace the fundamental principle that the survivor of joint attorneys cannot act. Where one of the original joint attorneys can no longer act, the replacement(s) will step in and act alone, to the exclusion of the surviving original attorney. This ruling reflects what is stated to be the "better view" in paragraph 4.44 of Cretney and Lush on Lasting and Enduring Powers of Attorney (6th edition). [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Brindley (2011) COP 11/5/11 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restriction: "C does not attain the age of 18 until 21.12.2012 upon which date along with A and B she will act jointly and severally as attorney." On the application of the Public Guardian the appointment of C was severed as invalid on the basis that it contravened section 10(1)(a) of the MCA. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript
Re Ingham (2011) COP 15/8/11 — The donor appointed four attorneys to act jointly for some decisions and jointly and severally for others. She then directed as follows: "A. While all attorneys are acting: 1. All may complete any transaction with a value not exceeding £2,500. 2. All must complete any transaction with a value exceeding £2,500. B. In the event that only two or three Attorneys remain capable of acting those Attorneys are bound by A1 and 2 above. C. In the event that only one Attorney remains capable of acting that Attorney has full powers to complete transactions of any value." On the application of the Public Guardian directions B and C were severed on the ground that they were incompatible with the joint aspect of the appointment: if one attorney ceased to act, the matters to be decided jointly would not be able to be decided by the continuing attorneys. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Freeman (2011) COP 17/8/11 — The donor appointed A and B as attorneys to act jointly in some matters and jointly and severally in others. He specified that they were to act as follows: "Major capital expenses jointly. Day to day expenses A." In his application the Public Guardian submitted that the donor had not specified any decisions to be made jointly and severally and so the words "Day to day expenses A" should be severed, with the effect that decisions not specified to be taken jointly should by implication be taken jointly and severally. The court was also asked to sever the word "Major" on the ground of uncertainty. The court accordingly severed these words so that the attorneys were appointed to act jointly for "capital expenses" and (by implication) jointly and severally for everything else. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Pugh (2011) COP 13/7/11 — The donor appointed three replacement attorneys to act jointly. She then completed the box on page 5 of the form (which should be completed only if the attorneys are to act jointly in some matters and jointly and severally in others) and directed as follows: "Where by this power I have appointed three replacement attorneys to act jointly on all occasions then I direct that if there is a dispute it is the majority decision of my three replacement attorneys that is to be followed and in the event that by reason of death or incapacity or other reason I only have two of my three replacement attorneys who are capable of acting then in the event of a dispute between my two continuing replacement attorneys it is the decision of the eldest that is to be followed." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Wheeler (2011) COP 25/7/11 — The Public Guardian applied for the severance of an invalid clause in the LPA. The Senior Judge considered that another clause was also invalid, which was severed on the court's own initiative. The donor had provided the following guidance: "My attorneys may act on the contents of my will." The court's reason for severing the guidance was as follows: "The court considers that the meaning of this guidance is unclear and that it is probably void for uncertainty. Potentially it authorises the attorneys to distribute the donor's estate during his lifetime as if he were dead, which would be not only contrary to public policy but also contrary to the provisions of section 12 of the Mental Capacity Act 2005. A will speaks from death, and it is not a function of an attorney to act as the executor of the donor's will." [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hodgkiss (2011) COP 25/8/11 — The donor of a Health and Welfare LPA selected Option B, which states that the attorneys have no authority to give or refuse life-sustaining treatment. He then directed as follows: "Attorneys must consent to any life sustaining treatment if I am in a persistent vegetative state." On the application of the Public Guardian this provision was severed as being incompatible with his selection of Option B. The court added that, if the donor had wished to give his attorneys authority to consent to life-sustaining treatment if he were in a persistent vegetative state, he should have selected Option A. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions relating to life-sustaining treatment, No transcript
Re Gardner (2011) COP 6/7/11 — The donor included the following statement in the guidance section of the instrument: "If I am suffering from a terminal illness I would ask that my attorneys assist me in travelling to a country where it is legal for me to take my own life should I choose to do so." On the application of the Public Guardian the court severed the guidance for the following reasons: (i) section 62 of the MCA 2005 provides that nothing in the Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide); (ii) the donor was purporting to authorise the attorneys to commit the criminal offence of assisting suicide, and the fact that a person who assists a suicide is not always prosecuted in England and Wales does not detract from the fact that it remains a criminal offence; (iii) although the statement appeared in the guidance section, it is not open to a donor to provide guidance to the attorneys relating to the ..→2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re M; W v M [2011] EWHC 2443 (COP) — M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or ..→2011-09-282011 cases, Best interests, Brief summary, ICLR summary, Transcript
R (Sunderland City Council) v South Tyneside Council [2011] EWHC 2355 (Admin) — SF moved from a residential college in Sunderland (ESPA) to a hospital in South Tyneside (Rose Lodge), initially informally then under section 3; the placement in Sunderland was terminated because of the hospital stay. The judge drew 10 propositions from the law, and concluded that Sunderland remained the authority with aftercare responsibility under s117. Relevant considerations were that (a) the informal admission was close to being involuntary (through force of circumstances) and was in what was intended to be short-term accommodation, (b) the termination of the Sunderland placement was not voluntary, and (c) the Tyneside placement was not part of SF's regular order of life or for a settled purpose. [Caution: overturned on appeal.] 2011-09-272011 cases, After-care, Brief summary, Transcript
DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC) — It was argued before the FTT that DN should be discharged, deferred until arrangements under the MCA DOLS could be put in place in relation to residence and control of his alcohol consumption. (1) When the MHA applies, it has primacy over the MCA; however, if the MCA were applied in anticipation of discharge from detention then DN would NOT then be 'within the scope' of the MHA and therefore not ineligible for MCA DOLS. (2) The FTT erred in law by failing, when deciding not to discharge, to address the possibility of supervision under the MCA. (3) The Trust had not participated in the appeal so the UT erred on the side of caution by setting aside and directing a rehearing. 2011-09-272011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
G v MHTS [2011] CSIH 55 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The appellant unsuccessfully challenged the decision to make no order. 2011-08-232011 cases, Brief summary, Scottish cases, Transcript
MB v BEH MH NHS Trust [2011] UKUT 328 (AAC) — Following the RC's evidence, without hearing other witnesses or submissions on the law and evidence, the Tribunal judge stated that the patient could not obtain a conditional discharge and invited the patient to withdraw his application; the patient withdrew and appealed against the Tribunal's consent to the withdrawal. (1) Consent to withdrawal is a judicial act and is appealable. (2) The judge's expression of a preconceived concluded opinion (as opposed to a provisional view) amounted to a breach of the rules of natural justice and fair procedure in that the appellant was effectively denied a proper opportunity to put his case. (3) The UT's concerns about remedy (that there had been no application to reinstate the case and no re-application by the patient during the relevant eligibility period) were outweighed by the practical benefit of a fresh hearing and the patient, if unsuccessful, retaining his right to apply during the current eligibility period; therefore, the matter was ..→2011-08-232011 cases, Brief summary, Transcript, Upper Tribunal decisions
Selwood v Durham CC (2011) Newcastle-upon-Tyne county court 25/2/11 — The claimant social worker was not informed of a patient's threats to kill her and was subsequently stabbed by him; she sued the local authority and relevant NHS Trusts in negligence or breach of statutory duty and alternatively alleged a breach of Article 2. The Trusts' application for strike out was successful. [Caution.] 2011-08-222011 cases, Brief summary, Miscellaneous, Transcript
Magritz v Public Prosecutors Office Bremen [2011] EWHC 1861 (Admin) — In relation to the claimant's extradition, where the sentence was for him to be 'placed in a psychiatric hospital for an indefinite period of time': (1) section 25 of the Extradition Act 2003 (the purpose of which is to protect a requested person whose physical or mental health is so poor that the act of extradition would be oppressive or unjust) was not engaged; and (2) there would be no breach of Article 3, Article 5 or Article 8. 2011-08-222011 cases, Brief summary, Missing from Bailii, Repatriation cases, Transcript
M v F [2011] EWCA Civ 273 — Unsuccessful appeal by the mother against a judgment refusing her a wide ranging series of declarations, the object of which was to deny the father (who suffered from mental illness) all knowledge of the birth and subsequent development of his legitimate child. 2011-08-222011 cases, Brief summary, Miscellaneous, Transcript
WCC v GS [2011] EWHC 2244 (COP) — (1) GS lacked capacity to conduct litigation, to make decisions in respect of her care requirements, to decide where she wants to live and to decide issues relating to contact with her family. (2) It was in GS's best interest to remain at a care home. (3) Having set out an general guidance in relation to conditions imposed on contact, the court approved an agreed contact schedule between GS and her son. 2011-08-222011 cases, Best interests, Brief summary, Transcript
DP v South Tyneside DC (2011) Admin Court 14/7/11 — It was not practicable to consult the nearest relative because (1) DP was perceived to be potentially at risk from him (forced marriage/death) and (2) consultation was not possible without disclosing DP's location (the duty of consultation not being one of mere notification): therefore the application for habeas corpus was refused. 2011-08-222011 cases, Brief summary, Consulting NR, No transcript
Ross v SSWP (2011) UKFTT 8/8/11 (SEC) — Unsuccessful application by BBC journalist to record and broadcast proceedings of First-tier Tribunal (Social Entitlement Chamber). 2011-08-162011 cases, Brief summary, Miscellaneous, Transcript
R (S) v SSHD [2011] EWHC 2120 (Admin) — Detention of mentally-ill immigrant was unlawful under common law and Article 5, and breached Articles 3 and 8. 2011-08-162011 cases, Brief summary, Repatriation cases, Transcript
McKie v Swindon College [2011] EWHC 469 (QB) — An email sent by Swindon College, a past employer, to the claimant's then current employer, raising safeguarding issues, caused him to lose his job, for which Swindon were liable in negligence. (Full legal summary required.) (A forthright judgment: '[18] ... Even if there were any substance in that complaint at all, which as I say seems to me to be bordering on the ludicrous... [26] ... We are into the realms of hearsay upon hearsay. ... [27] ... I think when we actually look at the circumstances, we can see that the procedure adopted at Swindon College giving rise to the sending of the email, can be described as slapdash, sloppy, failing to comply with any sort of minimum standards of fairness, certainly any such standards as would be recognised by any judicial body taking decisions and disseminating information about another individual, because Mr Rowe agreed he had no personal knowledge of things at all. ... [29] So not only do I take the view that the contents of the email are ..→2011-08-042011 cases, Brief summary, Miscellaneous, Transcript
Manchester City Council v G [2011] EWCA Civ 939 — Manchester's appeal against the costs order against it in the G v E case was unsuccessful. 2011-08-022011 cases, Brief summary, COP costs cases, Transcript
Re DU; A NHS Trust v DU [2009] EWHC 3504 (Fam) — It was in DU’s best interests to be permitted to return to Nigeria subject to the making of practicable arrangements. [Official summary available.] 2011-07-312009 cases, Best interests, Brief summary, Missing from Bailii, Transcript
Re PH; PH v A Local Authority [2011] EWHC 1704 (COP) — The following declarations were made: (1) PH lacks capacity in relation to the question on whether or not he should be accommodated at Y Court for the purposes of being given care and treatment; and (2) PH lacks capacity to make a decision as to his residence and care (the second declaration to remain in force for six months). 2011-07-232011 cases, Brief summary, Other capacity cases, Transcript
CX v A Local Authority [2011] EWHC 1918 (Admin) — A writ of habeas corpus was granted: (1) there had not been sufficiently informed consultation with the nearest relative before the s3 application was made; (2) the withdrawal of the nearest relative's objection was not full and effective, since it was the result of the incorrect and misleading advice that she could not maintain the objection without legal representation. [Judgment originally published under a different name.] 2011-07-212011 cases, Brief summary, Consulting NR, Transcript
Wychavon District Council v EM (HB) [2011] UKUT 144 (AAC) — (1) The tenant lacked capacity so the tenancy contract was not valid, which meant that there was no liability to pay rent and therefore no entitlement to Housing Benefit. (2) The contract was void, not voidable, because the landlord knew the tenant lacked sufficient mental capacity to reach such an agreement. [Caution.] 2011-06-222011 cases, Brief summary, Other capacity cases, Transcript
R (KM) v Cambridgeshire CC [2011] EWCA Civ 682 — (1) The assessment of needs was adequate. (2) There has to be a rational link between the needs and the assessed direct payments, but there does not need to be a finite absolute mathematical link, so the use of the Resource Allocation System (RAS) was lawful. (3) The explanation of the personal budget figure was rational. 2011-06-222011 cases, Brief summary, Community care, Transcript
R v Goucher [2011] EWCA Crim 1456 — The hearing of an application for an extension of time and for permission to appeal against a restricted hospital order was adjourned in order to obtain evidence from the new Responsible Clinician. 2011-06-222011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
Cheshire West and Chester Council v P [2011] EWHC 1330 (COP) — (1) The new care plan was in P's best interests (paras 35, 39). (2) There was a deprivation of liberty (reasons given in paras 58-60). (3) A costs order was made against the local authority as the serious misconduct of its employees (including misleading the court under oath, failure to disclose documents and falsifying records) rendered the proceedings more costly (para 76). (4) The public interest in holding public authorities accountable amounts to a 'good reason' for naming the local authority; the scale of the possible identification of P was minor enough not to prevent this (paras 89-90). 2011-06-192011 cases, Best interests, Brief summary, Deprivation of liberty, Transcript
Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP) — (1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4). 2011-06-092011 cases, Best interests, Brief summary, Deprivation of liberty, Transcript
B v Croydon Health Authority [1995] Fam 133 — (1) Medical treatment for mental disorder under s63 includes treatment of the symptoms of the disorder (as well as the disorder itself) and includes a range of acts ancillary to the core treatment; (2) on the facts, nasogastric feeding was treatment ancillary to treatment for psychopathic disorder. 2011-05-291995 cases, Brief summary, Challenges to compulsory treatment, Transcript
C v D [2011] EWCA Civ 646 — (1) A settlement offer which is time-limited is not capable of being a Part 36 offer; (2) in the context of the intention to comply with Part 36, the statement that the offer be 'open for 21 days' did not mean that it was a time-limited offer (rather, it was indicating that it could be withdrawn after 21 days); (3) on the facts, the Part 36 offer had not expired and was capable of acceptance. 2011-05-282011 cases, Brief summary, ICLR summary, Miscellaneous, Transcript
LBN v Borland (Mental Health Officer) (2011) ScotSC 9/5/11 — The failure to submit the required medical evidence within the time limit did not vitiate the application. 2011-05-262011 cases, Brief summary, Scottish cases, Transcript
R (Nassery) v LB Brent [2011] EWCA Civ 539 — The judge was not in error in refusing to set aside the decision of the respondent local authority that the appellant was not entitled to support under section 21(1) of the National Assistance Act 1948. 2011-05-262011 cases, Brief summary, Community care, Transcript
Re JR49 (Application for Judicial Review) (2011) NIQB 41 — The order authorising removal from a hospital in NI to a hospital in England pursuant to MHA 1983 s82 was quashed. 2011-05-262011 cases, Brief summary, Northern Irish cases, Transcript
A Council v X [2010] EWHC B10 (COP) — Direct contact between X, a 94 year old lady who lacked capacity due to advanced dementia, and her daughter Y was no longer in X's best interests. 2011-05-262011 cases, Best interests, Brief summary, Missing from Bailii, Transcript
Re Parsonage (2011) COP 1/4/11 — The donor of an LPA inserted the following restriction: "My replacement attorneys under this lasting power shall not have authority to do any act, or take any decision, under this lasting power except in those circumstances where I lack capacity or where the replacement attorneys reasonably believe that I lack capacity or when I have signed that I wish the lasting power to come into effect by signing the lasting power again." On the application of the Public Guardian the words "or when I have signed that I wish the lasting power to come into effect by signing the lasting power again" were severed on the ground that re-execution of the LPA by the donor after completion and registration would contravene the execution requirements for an LPA. [OPG summary - LPA case.] 2011-05-262011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re Putt (2011) COP 22/3/11 — (1) Two LLP partners were appointed attorneys; the certificate provider, as an associate at the same firm, was ineligible to act; (2) A direction that 'My attorneys (or any of them) may delegate in writing any of his, her or their functions to any person and shall not be responsible for the default of that person (even if the delegation was not strictly necessary or expedient) provided that he, she or they took reasonable care in his, her or their selection and supervision' was 'not simply contrary but almost repugnant to the special relationship of personal obligation and faith that one might reasonably expect to exist between a donor and the attorney of an LPA'. 2011-05-262011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, LPA cases - eligibility of certificate provider, Transcript
R (W) v Birmingham City Council [2011] EWHC 1147 (Admin) — Of the four bands (low, moderate, severe, critical), the council decided to cease adult social care funding for needs which were assessed to be severe; the decision only to fund critical needs was unlawful. 2011-05-232011 cases, Brief summary, Community care, Transcript
RN v Curo Care [2011] UKUT 263 (AAC) — (1) If the representative was right that the judge stated at the outset that the Tribunal would refuse to make a CTO recommendation, then reaching that firm conclusion (as opposed to an provisional opinion), and preventing the patient from arguing to the contrary, was a breach of natural justice and the ECHR right to a fair hearing. (2) In any event, the lack of reasons for not making the requested recommendation amounted to an error of law. (3) There would be no point in setting aside the decision if a recommendation were impossible or not a realistic possibility, but this was not a case where a CTO would never become a realistic option in the foreseeable future: the Tribunal can make a CTO recommendation not only if it considers that the criteria are satisfied (here it did not) but also in order to trigger consideration of future steps that could be taken to move the patient towards eventual release. (4) The decision was set aside and remitted to a differently-constituted panel ..→2011-05-042011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
R (WG) v Leicester City Council [2011] EWHC 189 (Admin) — This JR claim had been issued to challenge a failure to carry out an assessment under s47 NHSCCA 1990, but an assessment had subsequently been carried out and not identified any community care needs: (1) permission was therefore refused; (2) it was ordered that unless the claimant was prepared to identify herself she would not be able to bring any further legal actions. 2011-04-302011 cases, Brief summary, Transcript, Unimportant cases
R (Monday) v SSHD [2010] EWHC 3079 (Admin) — There was no prospect (for psychiatric reasons) of deportation of the claimant within a reasonable period, so ongoing detention would be unlawful. 2011-04-302010 cases, Brief summary, Missing from Bailii, Repatriation cases, Transcript
R (Sturnham) v SSJ [2011] EWHC 938 (Admin) — Damages of £300 were awarded under Article 5 for anxiety and distress caused by six-month delay in Parole Board hearing. 2011-04-302011 cases, Brief summary, Prison law cases, Transcript
Lumba (WL) v SSHD [2011] UKSC 12 — (1) It was unlawful in public law for the SSHD to operate an unpublished policy on the detention of foreign national prisoners which differed from the published policy and which amounted to a near-blanket ban on release. (2) The detention of the appellants was unlawful, even though they would have been detained even on the published policy. (3) As they suffered no loss, the appellants were entitled to nominal damages of one pound (and not 'vindicatory' or exemplary damages). 2011-04-302011 cases, Brief summary, Transcript, Unlawful detention cases
Clift v Slough BC [2010] EWCA Civ 1484 — An email from a local authority stating that Clift was on its violent persons register was published too widely: (1) the disproportionate publication was an unjustified breach of Article 8; (2) the Article 8 breach prevented the local authority from using the qualified privilege defence to defamation. 2011-04-302010 cases, Brief summary, Miscellaneous, Transcript
Buckinghamshire CC v RB of Kingston upon Thames [2011] EWCA Civ 457 — Where a person is accommodated under s21 NAA 1948 by authority A in area B, the person is deemed still to be ordinarily resident in area A only until he moves out of s21 accommodation (in this case, into supported housing). When assessing under s47 NHSCCA 1990, authority A owes no duty of fairness to area B and there is no duty to consult: the duty is to the person concerned; the role of authority B, as payers for the service, is essentially incidental. 2011-04-302011 cases, Brief summary, Community care, Transcript
R v Chowdhury [2011] EWCA Crim 936 — The judge imposed a restriction order (contrary to the medical recommendations) because of the serious nature of the offence and his concerns about previous non-compliance. The Court of Appeal were willing to quash the restriction order if the appellant made the following undertakings: to surrender his Bangladeshi passport; not to apply for another Bangladeshi passport; to surrender his UK passport; not to apply for another UK passport; not to apply for any other travel documents; and to give irrevocable instructions that such documents are not to be returned to him without the written consent of his treating psychiatrist. 2011-04-302011 cases, Brief summary, Missing from Bailii, Restriction order cases, Transcript
All About Rights Law Practice v LSC [2011] EWHC 964 (Admin) — The applicant law firm failed properly to complete the online documentation for the 2010 mental health tendering exercise and unsuccessfully challenged the LSC's decision not to award it a contract. 2011-04-302011 cases, Brief summary, Miscellaneous, Transcript
CM v Derbyshire Healthcare NHS Foundation Trust [2011] UKUT 129 (AAC) — (1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests. 2011-04-302011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC) — (1) The Upper Tribunal has power to award costs only where the First-tier Tribunal could do so; (2) in a mental health case, the FTT only has power to make a wasted costs order (and not a costs order 'if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings'); (3) a wasted costs order may only be made against a legal or other representative; (4) it follows that there is no statutory authority to make an order for costs against the FTT, and the patient's solicitors' application to the UT was refused. 2011-04-302011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
TR v Ludlow Street Healthcare Ltd [2011] UKUT 152 (AAC) — (1) The appeal against an interlocutory decision not to order disclosure of medical records was unsuccessful. (2) The judgment also contains guidance on appealing case management decisions, in particular from the MHRT for Wales. 2011-04-302011 cases, Brief summary, Transcript, Upper Tribunal decisions
PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC) — The Tribunal's policy is that a reference made under s68(7) (triggered by the revocation of a CTO) will be treated as having lapsed if the patient subsequently is placed on a new CTO (see Guidance: References made under section 68(7) Mental Health Act 1983 (as amended)). When the patient's representative argued that the case should be heard, the Tribunal treated that letter as the patient's own application. (1) The policy is unlawful: (a) whether the reference has lapsed depends on the nature of the reference, which is a matter of statutory interpretation, so neither the overriding objective nor the policy is relevant; (b) the subject matter of a reference under s68(7) (the duty to consider the s72 criteria) is not related to the circumstances that trigger it (the revocation of the CTO) so survives the change in circumstances; (c) the policy is inconsistent with s68(3)(c) (no six-month reference if revocation reference has been made) which would not be necessary if the ..→2011-04-162011 cases, Brief summary, Transcript, Upper Tribunal decisions
R (G) v South London and Maudsley NHS Foundation Trust [2011] EWHC 747 (Admin) — The claimant sought judicial review of the NHS Trust and the Met police in relation to a proposed visit to his home. (1) A civil restraint order had been made after the JR application was made: so he did not need leave of the High Court to have the claim considered on the papers; however, he did need leave for this renewed application for permission. (2) On the merits, permission would have been refused because (a) it is not the function of the court to review operational decisions such as this, and (b) the claimant had not been detained so the points regarding the MHA were academic. (3) In any event, the civil restraint order was thoroughly appropriate and would not be discharged. 2011-04-102011 cases, Brief summary, Missing from Bailii, Transcript, Unimportant cases
R (Tagoe-Thompson) v The Hospital Managers of the Park Royal Centre [2002] EWHC 2803 (Admin) — Panel of three hospital managers must be unanimous in order to discharge patient. 2011-04-102002 cases, Brief summary, Hospital managers hearings, Transcript
R v PA [2010] EWCA Crim 3121 — The appellant appealed against a sentence of 18 months' imprisonment as being excessive; then, following her transfer to hospital she instead sought a community order with a mental health requirement. Her mental condition, and lack of insight, led to the conclusion that a hospital order was required to ensure that she continued to receive treatment. 2011-04-092011 cases, Brief summary, Missing from Bailii, Transcript
R v O [2011] EWCA Crim 376 — Life sentence quashed and s37/41 restricted hospital order substituted. The life sentence had been passed in the context of confusion about bed availability, and the lack of a second s37 recommendation. There was utility in making the Appellant a patient rather than a prisoner because: (1) it was manifestly the right order to make on all the evidence; (2) there were advantages in terms of treatment; (3) it had advantages to the Appellant in terms of benefits; (4) it would best ensure the protection of the public. 2011-04-092011 cases, Brief summary, Life sentence cases, Missing from Bailii, Transcript
V v R [2011] EWHC 822 (QB) — Litigation capacity. The experts agreed that, as a result of her impulsive nature, V lacked capacity to manage her financial affairs; however, they disagreed on whether she had litigation capacity. The critical future decisions would be in connection with settlement offers (including the global value of the claim, provisional damages and periodical payments) albeit in the conext of the common understanding that she would not have unfettered access to the money. V would have difficulties in weighing the evidence and making decisions, but they could be ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates: the decisions would be made in the presence of her mother and lawyers; there was no suggestion that V would be left to make decisions on her own. On balance she did not lack capacity to ligitate. 2011-04-092011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Jones v Kaney [2011] UKSC 13 — (1) The immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings is abolished. (2) This does not affect the absolute privilege that all witnesses enjoy in respect of claims in defamation. 2011-03-302011 cases, Brief summary, Miscellaneous, Transcript
R (Faulkner) v SSJ [2011] EWCA Civ 349 — The claimant's Parole Board hearing should have been in March 2008 but was delayed in breach of Article 5(4) until January 2009 when he was released; he had shown on balance that he would have been released in March 2008. Having considered the case law on quantum, the court concluded that: 'a figure of £10,000 is appropriate and necessary to reflect the loss of some 10 months' conditional liberty by reason of the state's breach of the claimant's right not to continue to be detained in the absence of a speedy decision by a judicial body. We have not arrived at it by applying a multiplier to a monthly sum, although it can no doubt be disaggregated in that way.' 2011-03-302011 cases, Brief summary, Prison law cases, Transcript
MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC) — The Tribunal panel discharged a s47 patient, deferred for six weeks for after-care arrangements, and stated in para 9 that it 'would also invite Mr P's care team to consider whether to implement a community treatment order'; a CTO was then made; however, the panel's decision by discharging the section simultaneously discharged the CTO. On the responsible authority's application under Tribunal rule 45, a FTT judge reviewed and set aside the decision (because the panel had frustrated its intention that there be a CTO); she then reviewed her own decision, upheld it, and remitted the case to a fresh panel. (1) The patient appealed, but both review decisions are excluded from the appeal jurisdiction (and not from the JR jurisdiction) so the appeal was treated as a JR application. (2) The panel's decision that the first two statutory criteria were not met was not simply an oversight: it had specifically stated that the third criterion was met. (3) Para 9 was not expressed as a ..→2011-03-302011 cases, Brief summary, Powers, Transcript, Upper Tribunal decisions
Re Hunt (2008) (Preston county court, 12/6/08) — Mr Hunt suffered from Huntington's disease and had shut himself off from the world, in his home; he had ignored demands for payment of council tax; the court (not knowing his condition) made a bankruptcy order, then an order that he be arrested and brought before the court for failure to attend for public examination. (1) Under rules 7.43-7.44 Insolvency Rules 1986 (since amended to reflect the MCA) an 'incapacitated person' was one who is incapable of managing and administering his property and affairs either (a) by reason of mental disorder within the meaning of the Mental Health Act 1983, or (b) due to physical affliction or disability; the court may appoint a representative for such a person. (2) A bankruptcy order may be annulled if the order 'ought not to have been made' at the time. (3) The onus cannot lie on the debtor to establish lack of capacity because lack of capacity would itself render the debtor unable to do so: courts should investigate capacity where there is ..→2011-03-292008 cases, Brief summary, Other capacity cases, Transcript
R (W) v LB Croydon [2011] EWHC 696 (Admin) — The local authority decided, in order to reduce costs and promote independence, to transfer W from his residential placement to supported living. (1) In principle, the council would be entitled to terminate W's residential placement on grounds of costs, or needs, subject to consultation. (2) On the facts, the consultation with W's parents and the professional carers (as required by MCA 2005 s4) had been inadequate, so the decision was quashed. 2011-03-292011 cases, Brief summary, Other capacity cases, Transcript
Dunhill v Burgin [2011] EWHC 464 (QB) — The claimant had settled a PI claim on unfavourable terms and now sought to have the consent order declared void for want of capacity; this judgment involves a consideration of litigation capacity. (1) In considering the issue of capacity historically, rather than prospectively, the court should confine itself to examining the decisions actually required of the claimant and should not expand its consideration to hypothetical circumstances (i.e. had she been advised differently). (2) On the facts, the presumption that she had capacity to enter into the agreement had not been rebutted. [Caution.] 2011-03-292011 cases, Brief summary, Other capacity cases, Transcript
Re A; A v A Local Authority [2011] EWHC 727 (COP) — A, represented by the OS, appealed under MCA 2005 s21 against a DOLS standard authorisation; the other parties, including A's son, argued that A lacked capacity and that his current placement was in his best interests. The OS wanted an up-to-date assessment of capacity and a report on best interests, suggesting a COP Visitor report as being the proportionate method: the report would determine whether to dispose of the case by consent or seek further directions. Given the clear evidence, had it been a child best interests case there would have been summary judgment; however, the MCA laid down stringent conditions for deprivation of liberty, so the court cannot act as a rubber stamp and the OS must be allowed to carry out his duty of representing A as he thought fit. Having regard to the overriding objective, the COP Visitor method, and likely disposal without a further hearing, was the best way forward. 2011-03-292011 cases, Best interests, Brief summary, Deprivation of liberty, Transcript
Re P; A Local Authority v PB [2011] EWHC 502 (COP) — (1) The judge's view was that in exercising a welfare or best interests jurisdiction (whether under the Children Act, under the inherent jurisdiction, or under the MCA) the court is choosing between available options; a point then arises whether the COP can add to the available options (by application of public law and HRA tests in the private law proceedings) or whether judicial review is necessary; these jurisdictional issues should be addressed well before a case comes on for final hearing, so that the relevant authority does not refuse to provide the services after the court has decided that they are in P's best interests; in this case there may be a further hearing to decide the issue. (2) At an appropriate stage in most COP welfare cases, a direction along the following lines should be given (paraphrased) - Each party shall serve a document on the other setting out (a) the facts he asks the court to find, the disputed facts he asserts the court need not determine, and the ..→2011-03-292011 cases, Best interests, Brief summary, Missing from Bailii, Transcript
Re AH; AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 276 (COP) — (1) The case concerned the proposal to move 12 adults from a specialist residential service (SRS) to alternative homes, and this judgment is a 'firm provisional decision' on one case in the hope of assisting resolution of all cases. (2) It was clearly not in AH's best interests to be moved: only the closure of SRS could justify the turmoil of a move. (3) This case illustrates the point that guideline policies (here, the campus closure programme) cannot be treated as universal solutions. 2011-03-292011 cases, Best interests, Brief summary, Transcript
Re AM; B (A Local Authority) v RM [2010] EWHC 3802 (Fam) — (1) When considering whether to transfer an application for a care order (under the Children Act 1989) to the Court of Protection (to be dealt with under the MCA) the essential thrust is whether the young person's welfare will be better safeguarded within the Court of Protection. The court will take into account matters such as whether: (a) the child is over 16 (otherwise there is no power); (b) the child manifestly lacks capacity in respect of the principal Children Act decisions; (c) the incapacity is lifelong or at least long-term; (d) all decisions and issues about welfare can be resolved during minority; (e) the COP powers are more appropriate to resolve the issues; and (f) the welfare needs can be fully met using COP powers. (2) AM's welfare would be better protected within the COP because: (a) there should be a court determination about the placement; (b) the court door should remain open during planning the placement; (c) the judge was far from satisfied that the issues ..→2011-03-292010 cases, Best interests, Brief summary, Transcript
R (PA) v Governor of Lewes Prison [2011] EWHC 704 (Admin) — The claimant's social phobia did not make him 'infirm by nature of disability' (within the meaning of PSI 31/2006) for the purpose of deciding whether or not to release on Home Detention Curfew. 2011-03-252011 cases, Brief summary, Miscellaneous, Transcript
Re T (A child: murdered parent) [2011] EWHC B4 (Fam) — B killed his girlfriend, then spent four years as a restricted hospital order patient and a year as a conditionally-discharged patient (with exclusion-zone and no-contact conditions); he now applied for a contact order in respect of their daughter T. (1) There is no presumption that a parent who has murdered the other parent should have no contact with their child; however, having regard to the welfare checklist and other factors, there should be no contact of any kind between B and T. (2) An order under s91(14) Children Act 1989 (preventing further applications by B without leave) was made until T reaches 16 years of age. (3) The family court has no power to vary the conditions of a conditional discharge; however, the court is not constrained by the conditions when making orders; if the order would put the patient in breach of conditions then it should invite the Secretary of State to indicate to what extent he is prepared to vary them. (4) Since the only sanction for breach of ..→2011-03-212011 cases, Brief summary, Discharge conditions, Transcript
R (AC) v Berkshire West PCT [2011] EWCA Civ 247 — The claimant, who suffered from gender identity disorder, unsuccessfully challenged the decisions to refuse funding for breast augmentation surgery and the underlying policies. 2011-03-182011 cases, Brief summary, Miscellaneous, Transcript
Re Cretney (2011) COP 24/2/11 — The donor made an LPA on the "new" form prescribed in 2009 but omitted the attorney's date of birth in Part A. The Public Guardian refused to register on the ground that the instrument differed materially from the prescribed form. On the application of the attorney (who was over 18) the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA that the instrument was to be treated as if it were in the prescribed form. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Dadd (2010) COP 17/10/10 — The donor made an LPA using the "new" form presribed in 2009. She appointed two attorneys but provided no date of birth for either. The Public Guardian was willing to register in favour of one attorney because her title was given as "Mrs", so that it could reasonably be inferred that she was at least 18. It was overlooked that the other attorney was described in the instrument as the donor's husband. On the attorney's application the court directed registration. As it could be inferred from the instrument that both attorneys were at least 18, the instrument differed from the prescribed form in an immaterial respect within paragraph 3(1) of Schedule 1 of the MCA 2005. [OPG summary - LPA case.] 2011-03-182010 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Parker (2011) COP 18/2/11 — The donor of a Health and Welfare LPA appointed X and Y as attorneys to act jointly in some matters and jointly and severally in others. He then directed as follows: "I wish the prime responsibility for decisions in respect of my health to vest in X. My attorneys need only act jointly in the event of serious and/or life threatening conditions. In this case X should endeavour to contact Y but if she is, for whatever reason, unable to do so she may act on her own (severally) despite the serious and/or life threatening condition." On the application of the Public Guardian the last sentence of this direction was severed as being incompatible with the appointment to act jointly in some matters. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Noel (2011) COP 31/1/11 — The donor appointed two attorneys to act jointly in some matters and jointly and severally in others. He then appointed X as replacement attorney. He directed that a decision to sell a named property " must be made jointly by all surviving attorneys including X". On the application of the Public Guardian the words "including X" were severed, as being incompatible with the manner in which the attorneys and replacement attorneys had been appointed. The court added that, to have acheived the desired objective, the donor should have appointed all three as attorneys (rather than two attorneys and a replacement) and directed them to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Scragg (2011) COP 1/2/11 — The donor of a property and affairs LPA (who lived abroad) gave detailed instructions to his attorney relating to all of his assets in the event of a return to England, and added that these instructions were "subject to the written consent of my daughter" (who was the replacement attorney and also the attorney under his Health and Welfare LPA). On the application of the Public Guardian the words "subject to the written consent of my daughter" were severed because the requirement that the attorney should obtain the consent of a third party before exercising his powers imposed an unjustifiable fetter on his authority. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Knight (2011) COP 18/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "I wish my attorneys, if they think fit, to pay my sister by way of gift the sum of £3,000 annually and to pay by way of gift the sum of £250 annually to my brother in law, my nephew, his spouse and all my nieces including spouses (other than to X), my great nephew and great niece, all of whom are listed on page A2 being the amounts of gifts exempt from inheritance tax under the current inheritance tax laws or such other annual sums by way of gift as shall for the time being be exempt from inheritance tax or other tax payable on death." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power, and although it might be possible for the attorneys to make the desired ..→2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Careford (2011) COP 16/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "While my husband is my attorney, he may use my own money and property for his benefit in any way he wishes. My replacement attorneys may use my money and property for the benefit of my husband in any way they think fit. All of my attorneys may make gifts to my husband from my estate." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Wheatley (2011) COP 31/1/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "My attorneys will continue to make contributions to my grandchildrens' Child Trust Funds and any other saving/pension plans that I fund for their benefit." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. ALthough expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Munn (2011) COP 28/1/11 — The donor of a property and affairs LPA included the follwoing provision in the guidance section; "My finances should be managed so that X can continue to live at [a named property] for as long as she wishes and receives income from all investments and holiday lettings." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Baker (2011) COP 4/2/11 — In Part A of the instrument the donor put his middle name in the box for "Last Name" and omitted his surname completely. As his middle name could have passed for a surname, this error was not noticed by anybody and the instrument was registered. The attorney applied for a declaration that the LPA was to be treated as valid under paragraph 3(2) of Schedule 1 of the MCA 2005, under which the court may declare that an instrument is to be treated as if it had been made in the prescribed form even though it differs in a material respect from the prescribed form. The court exercised its discretion under paragraph 3(2) because, although the error was material, it was satisfied that the instrument was intended to be an LPA. The Public Guardian was directed to amend the register and attach a note to the instrument to this effect. (Note: for a similar case concerning an EPA, see Re Orriss (2010) COP 20/10/10, under the "Rectification" heading.) [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - donor surname missing, No transcript
Re McKenna (2011) COP 1/2/11 — The donor purported to appoint a replacement attorney who, at the date the donor signed the instrument, was 16 years old. The donor added the following restriction; "My replacement attorney shall only act if she is over the age of 18." On the application of the Public Guardian the appointment of the replacement attorney was severed as it contravened section 10(1)(a) of the MCA 2005, which provided that an attorney must have reached 18. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript
Re Cranston (2011) COP 18/2/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others. He included in the list of matters which should be decided jointly "changing my will". On the application of the Public Guardian these words were severed on the ground that an attorney has no authority to change a donor's will. An attorney may apply to the court for an order authorising the execution of a statutory will if a donor lacks testamentary capacity. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
JLG v Managers of Llanarth Court [2011] UKUT 62 (AAC) — (1) An appeal to the Upper Tribunal can only succeed if 'the making of the decision concerned involved the making of an error on a point of law'. The issue is whether the Tribunal did its job properly: whether (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; (iii) it answered the legal questions appropriately given its findings of fact; (iv) it gave the parties a fair hearing; and (v) it provided adequate reasons. (2) The UT is entitled to assume that the members of the Tribunal understand the basic legal concepts which they must apply, particuarly with a specialist tribunal applying the same limited range of criteria repeatedly; the claimant's argument was essentially that the Tribunal failed to mention these matters, but there was nothing in the reasons to show that they did not understand them. (3) The reasons, albeit discursively, had soundly and rationally addressed the statutory criteria. (4) ..→2011-03-072011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC) — (1) The Tribunal's reasons for not reconvening following non-implementation of its statutory recommendation were inadequate. (2) A decision had clearly been made not to transfer so there would be no point in requiring the Tribunal to reconvene or reconsider whether or not to do so; the decision was therefore not set aside. 2011-03-072011 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
AH v West London MH NHS Trust [2011] UKUT 74 (AAC) — (1) Once the threshold tests for establishing a right to a public hearing have been satisfied, Article 6 ECHR (reinforced by Article 13 CRPD) requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person who has been deprived of his liberty; such a right can only be denied a patient if enabling that right imposes a truly disproportionate burden on the state. (2) The threshold tests are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (3) How the right to a public hearing can be ..→2011-03-072011 cases, Brief summary, Publicity, Transcript, Upper Tribunal decisions
Re CW; A Primary Care Trust v CW [2010] EWHC 3448 (COP) — (1) Medical treatment is of no benefit to a person in a persistent vegetative state because he is not sentient and has no prospect of recovery; whether the withdrawal of life-sustaining treatment measures is in P's best interests depends on whether the diagnosis of PVS is correct; if it is correct then the provision of any treatment is futile and cannot be in his best interests. (2) CW was in a persistent vegetative state with no prospect of recovery; it was in his best interests for artificial nutrition and hydration to be withheld, which could be done lawfully; it was in his best interests to receive treatment and nursing care to ensure that he retains the greatest dignity possible until death. 2011-03-022011 cases, Best interests, Brief summary, Missing from Bailii, Transcript
Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 413 (COP) — (1) The judge directed that: (a) the named media organisations could send designated representatives to court, subject to further directions; (b) the media could identify the parties by name, rather than initials; (c) the media could report any information already in the public domain when reporting the proceedings; (d) any application to report information during the course of any private hearing is to be determined by the court at the conclusion of the relevant hearing. (2) The reasons given were that: (a) the circumstances are already in the public domain to a significant extent; (b) there is no evidence of a real possibility of detriment or distress to Stephen of anything other than a trivial nature; (c) it would be impossible to prevent the media from reporting parties' names at the end of proceedings. (3) In relation to future care, directions had been given for a mediated solution to be attempted. (4) In relation to lawfulness of the past deprivation of liberty, a hearing was ..→2011-03-022011 cases, Best interests, Brief summary, Transcript
NMC Conduct and Competence Committee decision: Josiah Foeka Amara 18/2/11 — Nurse was struck off for misconduct. The following charges were proved: 'That you, on or around 19 December 2005, whilst working as a Staff Nurse on Vincent Ward at the Gordon Hospital, Bloomberg Street, London SW1V 2RH: (1) Purchased crack cocaine in the company of Patient A, a patient on the ward; (2) Took crack cocaine with Patient A; (3) Had sexual intercourse with an unknown female when Patient A was also present in your flat; AND in light of the above, your fitness to practise is impaired by reason of your misconduct.' 2011-02-242011 cases, Brief summary, Miscellaneous, Transcript
Massie v H [2011] EWCA Civ 115 — The general rule is that an appeal shall lie from a decision of a county court to the High Court. One exception is for final decisions in Part 7 CPR multi-track cases, which go to the Court of Appeal. (1) This exception does not apply in nearest relative displacement cases under s29 MHA as the application is made under Part 8 CPR; no other exception applied. (2) The court declared that it lacked jurisdiction and that a previous consent order was therefore a nullity. (3) Because of the passage of time and costs involved, rather than abandon the matter or simply transfer it to the High Court, the case was transferred to the High Court for one of the Court of Appeal judges to consider it as a High Court judge there and then. 2011-02-172011 cases, Brief summary, Displacement, Missing from Bailii, Transcript
R (Hertfordshire CC) v LB Hammersmith and Fulham [2011] EWCA Civ 77 — The appellant sought: 'A declaration that "is resident" in s117(3) Mental Health Act 1983 has the same (or substantially the same) meaning as "is ordinarily resident" under s24 National Assistance Act 1948, so that a person placed by a local authority under s21 NAA in the area of another local authority remains ordinarily resident in the area of the placing authority for the purposes of Part 3 NAA and s117(3) MHA.' The court refused to grant the declaration as: (1) Parliament must have deliberately chosen a different formula for s117; (2) s117 was intended to be a free-standing provision, not dependent on the 1948 Act; (3) there was no legitimate way to interpret 'resident' as excluding a placement under s21. The court noted that the decision is in line with recent government guidance, and that the Law Commission's current project provides a much better forum for considering and remedying any defects in the present law. 2011-02-172011 cases, After-care, Brief summary, ICLR summary, Transcript
R v Welsh [2011] EWCA Crim 73 — Welsh appealed against a discretionary life sentence for diminished responsibility manslaughter, but was unsuccessful because (1) his propensity for violence, even before he suffered from paranoid schizophrenia, and the gravity of the offence, meant that public confidence would not be maintained by making a restricted hospital order, and (2) there was ample justification for the conclusion that he bore substantial responsibility and that there was a risk he would remain a source of danger even if his condition substantially improved once he received treatment and medication. 2011-02-022011 cases, Brief summary, Life sentence cases, Transcript
Re Scott (2011) COP 11/1/11 — The donor made an LPA for property and financial affairs, appointing A and B to act jointly and severally. She then imposed the following restriction: "In the event of there being any disagreement between A and B (as the attorneys for property and financial affairs) and C (as the attorney for health and welfare) over expenditure on my health or welfare then C's decision is to prevail." The Public Guardian applied for this restriction to be severed on the basis that Re Reading (above) showed that a donor could not require that a person who was not an attorney under the instrument should join in the making of decisions by the attorneys. The court dismissed the Public Guardian's application, considering that there was no reason in law why the donor of two seperate LPAs should not be able to provide that, in the event of a disagreement between the attorneys for property and financial affairs and the attorney for health and welfare, the decision of the attorney for health and ..→2011-01-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Stevens (2011) COP 11/1/11 — The donor made an EPA including the following provision: "The word "seasonal" in section 3(5) of the Enduring Powers of Attorney Act 1985 includes the end of one tax year and the beginning of another." On the application of the attorneys the court severed the provision as being ineffective as part of an EPA. [OPG summary - EPA case.] 2011-01-302011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Harris (2011) COP 6/1/11 — The donor made an EPA purporting to authorise the Attorneys to do the following: "Making a choice on my behalf for any nursing/residential care needed for me in the future." On the application of the Attorneys the court severed the provision on the ground that it would be ineffective as part of an EPA, because it sought to authorise Personal Welfare decision making. [OPG summary - EPA case.] 2011-01-302011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Donegan (2011) COP 6/1/11 — The donor made an EPA including the following provision: "All the while that I am practically and financially able to remain in my own home my Attorneys should ensure that I remain there. My Attorneys do not have power to sell my home." On the application of the Attorneys the court severed the restriction on the ground that it was ineffective as part of an EPA because it sought to confer Personal Welfare decision making powers on the Attorneys. [OPG summary - EPA case.] 2011-01-302011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript
Re Berg (2010) COP 31/12/10 — The donor made an EPA appointing A and B to act jointly. He then added: "so long as neither Attorney dies or is incapacitated in which eventuality the other Attorney is empowered to act on his own". On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.] 2011-01-302010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Haworth (2010) COP 20/12/10 — The donor made an EPA appointing A and B to act jointly and severally. He then imposed the following restriction: "B shall not, while A is alive and mentally capable, without A's consent (a) sell, mortgage, charge, lease, or otherwise dispose of any asset of mine or (b) enter into any transaction with a value of more than £2,000." On the attorneys' application the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011-01-302010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re KM; NCC v KM (2009) COP 1145479102 — Consideration of the legal aid position in relation to deprivation of liberty reviews following final hearing. 2011-01-242009 cases, Brief summary, Deprivation of liberty, Transcript
TW v A City Council [2011] EWCA Civ 17 — The Court of Appeal issued a reminder of the following: (a) that the bundle of authorities should be agreed; (b) that it should be filed at least seven days before the hearing; (c) that it should not contain more than ten authorities unless the scale of the appeal warrants more extensive citation; (d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. BAILII judgments (with neutral citation numbers) should only be used if no other recognised reports were available and the case really needs to be cited; and (e) that the passages in the authorities which were relevant and on which counsel sought to rely must be marked. 2011-01-242011 cases, Brief summary, ICLR summary, Miscellaneous, No transcript
Re JP; DP v JCP (2010) COP 11692737 — DP's application to be appointed financial deputy for her father JP was opposed by her siblings, who also disputed DP's claim to the ownership of their mother's ashes. Guidance was given as to the ownership of the ashes. DP was capable of acting as deputy but did not have the necessary independence so a panel deputy was appointed. [Summary based on Eld LJ case report.] 2011-01-232010 cases, Brief summary, Other capacity cases, Transcript
Re P (2010) COP 23/12/10 (Mostyn J) — There was effectively a presumption against deprivation of liberty (pursuant to MCA 2005 s1(6)) and, on the facts, the balance tilted in favour of P returning home pending a final hearing at which full evidence could be considered. [Summary based on counsel's case report.] 2011-01-232010 cases, Brief summary, Deprivation of liberty, No transcript
R v Inglis [2010] EWCA Crim 2269 — Appeal allowed and retrial ordered on the basis of fresh evidence which showed that the appellant suffered at the time of the killing from bipolar affective disorder and supported a defence of diminished responsibility. 2011-01-232010 cases, Brief summary, Diminished responsibility cases, Transcript
CB v Sussex County Council [2010] UKUT 413 (AAC) — (1) Under s25 TCEA 2007 the Upper Tribunal issued a fine of £500, payable within 28 days, for failure to comply with a witness summons issued by the HESC chamber (education jurisdiction). (2) Under s16(3) Contempt of Court Act 1981 the Upper Tribunal specified a term of imprisonment of 7 days if payment was not made within the specified period. 2011-01-222010 cases, Brief summary, Transcript, Upper Tribunal decisions
Re J (2010) COP 6/12/10 — Under MCA 2005 s22(3) ('Powers of court in relation to validity of lasting powers of attorney') the court can consider any past behaviour or apparent prospective behaviour by the attorney (not just behaviour as P's attorney); depending on the circumstances and gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arising if P lacks capacity) whether by revoking the power or by taking some other course. 2011-01-222010 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript
Francis v GSCC (2010) UKFTT 434 (HESC) — The GSCC had refused to register Francis as a social worker under s58 Care Standards Act 2000 because (a) he had from 2005 to 2006 failed to register as a social worker but continued to act as such, (b) during the same period he had continued to act as an AMHP; (c) he had failed to inform his employer of his personal difficulties, (d) there was no adequate endorsement of his application. His appeal under s68 was dismissed. 2011-01-222010 cases, Brief summary, Miscellaneous, Transcript
GSCC conduct committee decision: Philip Julian Davies 10/12/10 — Social worker suspended for misconduct for 12 months. Two of the proven allegations were: '(4) Without authority, on or around 18th July 2008, you requested service user Mrs Z to sign financial papers after she had been diagnosed by a consultant psychiatrist as having a lack of mental capacity. (5) Between 20th May 2008 and 30th October 2009, you failed to ensure that an application for a Court of Protection order in respect of a service user Mr Z, was made expeditiously, or at all.' 2011-01-222010 cases, Brief summary, Miscellaneous, Transcript
Salisu v SSH (2011) UKFTT 1 (HESC) — The Applicant was guilty of misconduct within the meaning of Section 86(7)(a) Care Standards Act 2000 (convicted of ill-treatment under s127 MHA 1983) but was not unsuitable to work with vulnerable adults and children under s86(7)(b). 2011-01-222011 cases, Brief summary, Miscellaneous, Transcript
Re AVS; AVS v A NHS Foundation Trust [2011] EWCA Civ 7 — Court of Appeal refuse permission to appeal from Court of Protection decision in medical treatment case. [Official summary available.] 2011-01-172011 cases, Best interests, Brief summary, Transcript
DL v South London and Maudsley NHS Foundation Trust [2010] UKUT 455 (AAC) — The Tribunal failed to explain why it rejected medical and social reports which recommended absolute discharge. Their decision was set aside and the case remitted to the First-tier Tribunal for a rehearing. 2011-01-132010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
Re Williams (2010) COP 1/12/10 — The donor appointed three attorneys to act jointly. She then added: "The attorneys are only to make decisions jointly and should any of the attorneys die within my lifetime I wish for their personal representative to take over as my attorney in their place." On the application of the Public Guardian the court severed this provision on the ground that section 10(8)(a) of the MCA provided that an LPA instrument could not give the attorney power to appoint a substitute or successor. [Note: The provision could also be viewed as incompatible with the nature of a joint appointment.] [OPG summary - LPA case.] 2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Warren (2010) COP 10/12/10 — The donor appointed four attorneys, A, B , C and D, to act jointly for some decisions and jointly and severally for others. She imposed the following restriction: "All decisions will be made by my first attorney A unless and until such time that he no longer has the mental capacity to do so. Should A no longer have the mental capacity to make decisions the remaining attorneys will jointly make decisions regarding the house and property and jointly and severally make decisions concerning finance." On the application of the Public Guardian the words preceding "attorneys will jointly" were severed on the ground that, where attorneys were appointed to act jointly in some matters and jointly and severally in others, it was not open to the donor to provide that one attorney should act alone for so long as he was able to do so. The Senior Judge added that, to have achieved the desired objective, the donor should have appointed A as the sole attorney and the three others as replacement ..→2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Weyell (2010) COP 2/12/10 — The donor appointed three attorneys, A, B and C, to act jointly for some decisions and jointly and severally for others. He then imposed the following restrictions: (1) "Two out of three of my attorneys must act jointly in relation to any transaction with a value in excess of £5,000 and my attorneys may act jointly and severally in relation to everything else." (2) "I direct that when acting jointly and severally where possible my attorneys are to act in the following order of priority: firstly A, then B and then C." On the application of the Public Guardian the first restriction was severed as being incompatible with the joint aspect of the appointment. In the application the Public Guardian submitted that, while a direction that attorneys appointed to act jointly and severally must act in an order of priority would normally be regarded as incompatible with a joint and several appointment, the addition of the words "where possible" made the direction in effect a statement of ..→2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re RK; YB v BCC [2010] EWHC 3355 (COP) — (1) Given the terms of s20(8) Children Act 1989 (that any person with parental responsibility may at any time remove the child) the provision of accommodation to a child under s20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Article 5. If the child is being accommodated under the auspices of a care order, interim or full, or if the child has been placed in secure accommodation under s25, then the position might be different. (2) In any event: (a) the objective element of deprivation of liberty was not remotely close to being met on the facts; (b) the subjective element was not met, as the parents had consented on RK's behalf; (c) RK's placement was at the behest of her parents and could not be imputed to the state. [Detailed summary to follow.] 2011-01-042010 cases, Brief summary, Deprivation of liberty, Missing from Bailii, Transcript
R (Khela) v Brandon MH Unit [2010] EWHC 3313 (Admin) — This renewed application for permission to judicially review a Tribunal decision and to quash the RC's previous diagnosis was dismissed and the claim found to be totally without merit. 2010-12-192010 cases, Brief summary, Missing from Bailii, Transcript, Unimportant cases
Re ADE (Scope of Schedule A1) (2010) COP 11821802 — Given that a standard authorisation extends to restraining a person from leaving the accommodation, it must also extend to compelling him to return: "Do the powers under the existing standard authorisation extend to coercing ADE back to the nursing home if ADE refuses to return? It would be little short of absurd if the local authority and AHNH had powers to restrain him from leaving but not to compel him to return: the greater power must include the lesser. I will therefore declare that this power is implicit in the current and any future standard authorisation." 2010-12-172010 cases, Brief summary, Deprivation of liberty, Transcript
AG's ref (nos 37, 38 and 65 of 2010) sub nom R v Khan [2010] EWCA Crim 2880 — Sentencing case which includes an illustration of the principle that there is no presumption that a hospital order will be made as a consequence of the satisfaction of the conditions in s37(2). The court noted that 'there were recognised symptoms of a depressive illness which in Mrs Khan's case were absent or equivocal. She was sleeping well; she could concentrate; she had been fit to give evidence but declined to do so; she was selective in her submission to treatment. These features of Mrs Khan's illness were relevant to her ability to serve a sentence of imprisonment which, as the judge found, was richly deserved. This was not a case in respect of which it could be argued that Mrs Khan's mental condition had any causative influence upon her offending.' 2010-12-112010 cases, Brief summary, Other criminal law cases, Transcript
R v Maynard [2010] EWCA Crim 2854 — On appeal the conviction for murder had been reduced to diminished responsibility manslaughter, and a restricted hospital order was imposed. The appellant remained in prison 18 months later, largely because he had refused to cooperate in the belief that he would be released sooner if given a prison sentence. Based on his dangerousness, the gravity of the offence and the level of culpability, the court imposed a life sentence with a 10-year tariff. 2010-12-092010 cases, Brief summary, Other criminal law cases, Transcript
R v AN [2004] EWCA Crim 3238 — (1) Although the medical evidence recommended a hospital order, the judge had been entitled to exercise his discretion not to impose a hospital order, particularly since there was no causal connection between the mental illness and the offending. (2) The 12-year sentence was not excessive. 2010-12-092004 cases, Brief summary, Sentence appeal cases, Transcript
Seal v UK 50330/07 [2010] ECHR 1976 — The claimant issued his claim on the eve of the limitation period without seeking leave under s139; the House of Lords had found that his claim was therefore a nullity. (1) No breach of Article 6 was found because (a) the six-year limitation period pursued a legitimate aim, (b) s139 was to restrict access to the court only where the claim was manifestly unmeritorious, and its general aim of protecting those who exercise powers under that Act, including the police, pursued a legitimate aim, (c) the decision to strike out did not impair the very essence of the applicant's right of access to court and was not disproportionate: he had not explained his delay or failure to seek leave, and should bear the consequences of his own decisions, and in any event could continue his non-MHA claims (2) No breach of Article 6 taken with Article 14 was found because he did not argue it in any substance and, by not having argued it previously, had failed to exhaust domestic remedies. 2010-12-092010 cases, Brief summary, ECHR, Miscellaneous, Transcript
SSWP v SS (DLA) [2010] UKUT 384 (AAC) — The decision under challenge was stated to have been made unanimously when in fact it was made by majority. (1) There is no obligation on the First-tier Tribunal (Social Entitlement Chamber) to state whether a decision is made by a majority or is unanimous; however, any statement given must be accurate. (2) If the decision notice accurately records that the decision was by a majority then any statement of reasons must contain at least a brief statement of the reasons for the dissent of the minority member. (3) An inaccurate statement that a decision is unanimous amounts to an error of law. (4) The decision was therefore set aside and remitted to a freshly constituted Tribunal for reconsideration. 2010-12-022010 cases, Brief summary, Transcript, Upper Tribunal decisions
Re Freeman (2010) COP 7/9/10 — The donor signed Part B of the EPA instrument on 14 April 2006, but the attorney did not sign Part C until 3 October 2008. The Public Guardian refused to register on the ground that an instrument could not be a valid EPA unless the attorney had signed before 1 October 2007. Section 66(2) of the Mental Capacity Act 2005 provides that an EPA cannot be "created" after commencement. On the attorney's application the court declared that the instrument was not a valid EPA. (The attorney applied for a reconsideration but the Judge confirmed his earlier decision by an order made at a hearing on 28 February 2011.) (Note: The Public Guardian will register an EPA appointing joint and several attorneys if at least one attorney signed before 1 October 2007 even though other(s) did not, in which case registration will be limited to the attorney(s) who signed before that date.) [OPG summary - EPA case.] 2010-12-012010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript
R (SP) v SSJ [2010] EWCA Civ 1590 — The Secretary of State for Justice was entitled to rely on a medical recommendation under s47 which did not explicitly address the new 'appropriate treatment' test: (1) his case workers are not concerned to pursue medical reasoning, but only to see whether the expert had given some reasons which they considered adequate and did not conflict with the facts known or the statutory requirements; (2) he was entitled to give the reports a sensible meaning, and to satisfy himself that the 'appropriate treatment' test was met by reference to matters which had been in the report by necessary implication. [Summary based on All ER (D) report of ex tempore judgment] 2010-12-012010 cases, Brief summary, Transcript, Unlawful detention cases
Re Baker (2010) COP 12/11/10 — The donor of a property and affairs LPA included the following provision: "I authorise my Attorneys to make gifts from my assets on such terms and conditions as they think fit, for the purposes of inheritance tax planning, including but not restricted to the making of gifts in line with the annual lifetime gift allowance." On the application of the Public Guardian the provision was severed on the grounds that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Jass (2010) COP 26/10/10 — The donor of a property and affairs LPA included the following provision: "I hereby authorise my attorneys to give gifts on my behalf at my attorneys' discretion up to the exempt amount permitted by sections 19 (Annual Exemption), 20 (Small Gifts) and 22 (Marriage/Civil Partnership Gifts) of the Inheritance Act 1984 (or such other legislation or provision as may supersede these sections) for the time being in force." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Moore (2010) COP 26/10/10 — The donor appointed three attorneys to act jointly. She then imposed the following restriction: "At least two attorneys to act on any transactions". On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Hartup (2010) COP 28/10/10 — (1) The donor appointed two attorneys, A and B, to act jointly and severally, and two replacement attorneys. He then imposed the following restriction: "My wife A is to take the lead in all decisions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. (2) The donor made two LPAs, one for property and financial affairs and the other for health and welfare. In both instruments he appointed A (his wife) and B as primary attorneys, to act jointly and severally, and C and D as replacement attorneys. In the property and financial affairs instrument he imposed the following restriction: "Should my wife be unable to continue to act severally as my attorney, then B and my two replacement attorneys are to act on my behalf. They must act jointly in relation to decisions about selling my house or they may act jointly and severally in everything else." In the health and welfare instrument he imposed the following ..→2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to how a replacement attorney may act, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Ferguson (2010) COP 26/10/10 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restrictions: "I wish my attorneys to act as follows: A to act independently. B and C to act only in the event that A is deceased or unable to act. In these circumstances B and C may act independently." "I wish my attorneys to act only when I lack capacity to act. A may judge for himself when I lack capacity to act. B and C must agree together that I lack capacity to act. Alternatively, should either of them wish, then at my expense they may seek medical and, if necessary, legal advice as to whether or not I have capacity to act." On the application of the Public Guardian both restrictions were severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Orriss (2010) COP 20/10/10 — By mistake the donor's surname was omitted from the instrument, which included only his first and second names. The EPA was registered without the mistake being discovered. On the application of the attorney the court directed the Public Guardian to attach a note to the EPA stating that the donor's surname had been omitted in error from Part B. [OPG summary - EPA case.] 2010-11-282010 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript
Re Williamson (2010) COP 25/10/10 — The donor appointed A, B and C to act jointly. He then imposed the following restriction: "The said B and C shall not exercise their authority under this Power whilst my wife is alive and able to act as my attorney." On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.] 2010-11-282010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Dickenson (2010) COP 12/11/10 — The donor appointed two attorneys to act jointly and severally and imposed the following restriction: "My professional Attorneys may at any time appoint a substitute to act as my attorney and may revoke the appointment without giving reason. Every appointment is to be in writing signed by my Attorney. Every substitute has full powers as my attorney, as if appointed by this Deed, except the power to appoint a substitute." On the application of an attorney the court severed the restriction. Paragraph 2(6) of Schedule 4 of the MCA 2005 provides that "A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power." [OPG summary - EPA case.] 2010-11-282010 cases, Brief summary, EPA cases - all, EPA cases - appointment of substitute by an attorney, No transcript
LBL v RYJ [2010] EWHC 2665 (COP) — RYJ had capacity in relation to care, contact, residential education and residence, and was not vulnerable as a result of external factors so as to invoke the inherent jurisdiction; discussion of mother's status as appointee and her application to SENDIST. [Summary required.] 2010-11-262010 cases, Brief summary, Other capacity cases, Transcript
R v Dunn [2010] EWCA Crim 2935 — Dunn had been convicted of four counts of ill-treating a person without capacity contrary to MCA 2005 s44 against three victims at the residential care home of which she was manageress. The judge had directed that 'a person without capacity' meant a person unable to make decisions for himself because of a disturbance or impairment of function of the mind or brain, that a diagnosis of dementia was not enough, that 'impairment' could be permanent or temporary, that capacity was presumed unless disproved on the balance of probabilities, and that this direction applied to all three victims. The defendant appealed on the basis that the direction on 'a person without capacity' was inadequate, failed to focus on the capacity of each victim to make a decision at the relevant time, and failed to identify the questions required by s3. Appeal dismissed. (1) The legislation, including s2, was convoluted and did not appropriately define the elements of the ..→2010-11-252010 cases, Brief summary, Criminal law capacity cases, Transcript
Re G (TJ) [2010] EWHC 3005 (COP) — The court considered the meaning of 'best interests' when deciding whether or not to direct a deputy to make maintenance payments from P's funds to her daughter. (1) The balance sheet of facts which P would draw up if he had capacity to make the decision (taking into account actual wishes, beliefs and values, and other factors) is a relevant factor for the court's decision: thus a substituted judgment can be subsumed into the consideration of best interests. (2) 'Best interests' does not only include the self-interest of P: it includes wishes (or those he would have formed had he capacity) even if altruistic and not self-interested, and even if P has no awareness of the fact that such wishes are being respected. (3) On the facts: (a) no weight would be given to the possibility that P might be thought to have done the 'right thing', principally because she could not participate in the decision in any way, and partly because the family disagreed about what was the right thing; (b) ..→2010-11-222010 cases, Best interests, Brief summary, Transcript
Singellos v Singellos [2010] EWHC 2353 (Ch) — (1) The approach in Parker v Felgate (1883) 8 PD 171 (that if a testator gives instructions when he has capacity, the will stands good even though at the time of execution he only understands that he is executing the will which he has instructed) applies also to dispositions inter vivos. (2) Mrs Singellos had the necessary capacity when she gave instructions to her accountant, but when she signed the multiple documents involved she only understood that she was giving effect to her instructions: the documents were declared to be validly executed. 2010-11-182010 cases, Brief summary, Other capacity cases, Transcript
Re P and OM (2008) COP 26/11/08 — The Court: (1) granted a worldwide freezing injunction over the assets of a son alleged to have to wrongfully obtained the proceeds of the sale of a house belonging to his incapacitated mother; and (2) made a declaration requiring the son to return his mother, a British citizen now in Guyana, to the United Kingdom for the purposes of assessment of her capacity, inter alia, to make decisions concerning her health and welfare. The Court determined (it appears for the first time) that it had the jurisdiction under paragraph 7 of Schedule 3 to the Mental Capacity Act 2005 to make decisions regarding the health and welfare of an incapacitated adult in a foreign country on the basis that they were habitually resident in England and Wales. [Summary from 39 Essex Street website.] 2010-11-172008 cases, Brief summary, No transcript, Other capacity cases
RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273 — (1) The SC case stated that one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is - as section 73(1)(b) puts it - 'satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment'. The putting of the burden of proof on the patient is not in breach of the ECHR: Article 5 does not apply; conditions imposed may engage Article 8, but it is justified to require a patient made subject to a restriction order following a criminal trial/conviction to satisfy the FTT that the order should cease to have effect. (2) The FTT's reasons were undoubtedly adequate. (3) The FTT had not said that RH's restriction order 'should remain in place essentially for life' (it had said that in some cases this would be the case) so this ground of appeal failed. (4) The FTT's comparison between conditional discharge and life licence was not an equation but merely to ..→2010-11-132010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
Re Collis (2010) COP 27/10/10 — An application was made to the court to direct the Public Guardian to cancel the registration of an LPA on the grounds that the instrument was not a valid LPA because the Donor lacked capacity to create an LPA at the date of execution. In the course of his judgment the Senior Judge set out the law relating to capacity to create an LPA. [OPG summary - LPA case.] 2010-11-062010 cases, Brief summary, LPA cases - all, LPA cases - capacity to make an LPA, Transcript
YA(F) v A Local Authority [2010] EWHC 2770 (COP) — P and his mother brought claims under s7 HRA in the Court of Protection; the other parties asserted that only declaratory relief was possible as the CoP had no jurisdiction to hear and deal with (a) any of the mother's HRA claim or (b) the son's HRA damages claim, and that the claim should have been in the Queen's Bench Division. (1) The common ground that the CoP has jurisdiction to deal with P's HRA claim and grant declaratory relief was correct. (2) The CoP has jurisdiction (a) to hear argument on behalf of the mother that acts done in relation to P constitute breaches of her Convention rights and (b) to make declarations as to the lawfulness of such acts. (3) The CoP is a 'court which has power to award damages... in civil proceedings' under s8(1) HRA 1998 when exercising its HRA jurisdiction either because (a) in exercising its jurisdiction the CoP has the same powers as the High Court, which can award damages in such cases, or because (b) the CoP has power to award damages ..→2010-11-032010 cases, Brief summary, Other capacity cases, Transcript
Hirst v UK (No 2) 74025/01 [2005] ECHR 681 — The blanket restriction on voting, which applies to all convicted prisoners in prison irrespective of the length of their sentence, the nature or gravity of their offence, or their individual circumstances, is unlawful. 2010-11-032005 cases, Brief summary, Miscellaneous, Transcript
Re AVS; CS v A NHS Foundation Trust [2010] EWHC 2746 (COP) — (1) AVS suffered from CJD and at a previous hearing it had been declared that he lacked capacity to instruct solicitors or make medical decisions. (2) The critical question was: 'is it in AVS's bests interests that PPS treatment continues to be administered to him?' The applicant wanted it to recommence; the Trust did not. (3) The applicant brother was not an appropriate next friend as the relationship between him and the clinicians had broken down completely and he lacked the necessary objectivity: the Official Solicitor would be invited to act. (4) The court's 'best interests' analysis embraces all the circumstances of the case, and clinical opinion is not necessarily determinative, but it is unlikely in the extreme that the court would order a clinician to undertake a medical intervention which the clinician did not believe to be in the best interests of the patient. (5) These proceedings would therefore be doomed to failure without a clinical opinion on the applicant's side. A ..→2010-11-022010 cases, Best interests, Brief summary, Transcript
Re HP (Remuneration of a Financial Guardian under Section 68 of the Adults with Incapacity (Scotland) Act 2000) (2010) ScotSC 21/7/10 — This appeal concerns a decision of the Public Guardian regarding the question of the remuneration payable to a financial guardian in respect of the work undertaken by him in connection with the applications he submitted for renewal of the guardianship. Following an application to the Public Guardian for remuneration in connection with the renewal process, it was decided that additional remuneration was appropriate, but the proposed payment was at a level the guardian did not regard as adequate. The court held that this case was an exceptional circumstance in which the Public Guardian should authorise payment on a time and trouble basis. 2010-10-302010 cases, Brief summary, Scottish cases, Transcript
Re FB (Incapacity Application) (2005) ScotSC 26 — An application for guardianship was sought and granted. The court held that the first question it was to consider was whether the respondent was incapable in relation to decisions about, or of acting to safeguard his interests in, his personal welfare, as a consequence of the mental disorder, and whether this was likely to continue to be so. It was held that this meant much more than just being incapable of making decisions but also being incapable of understanding decisions in relation to his interests in his personal welfare or of acting to safeguard or promote those interests. The next question to consider was whether there was any other means provided by or under the Act which would be sufficient to enable the respondent's interests in his personal welfare to be safeguarded. Finally, the court held that the next question to be considered was whether the interests could be safeguarded otherwise than by guardianship order. 2010-10-292005 cases, Brief summary, Scottish cases, Transcript
Re DC (Dispensing with Service of Applications under the Adults with Incapacity (Scotland) Act 2000 on the Adult) (2010) ScotSC 6 — An application for Financial and Welfare Guardianship was accompanied by a form purporting to justify dispensing with intimation of the application on the adult. The Sheriff referred to his earlier decision in Re LC (2005) ScotSC 19/5/05 and held that the words in the application that "He is too disturbed and mentally ill" were insufficient to demonstrate that intimation of the application itself would be likely to pose a serious risk to the health of the adult. 2010-10-272010 cases, Brief summary, Scottish cases, Transcript
Anam v SSHD [2010] EWCA Civ 1140 — This appeal concerns the Secretary of State for the Home Department's powers of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 and the implications of his failure to have regard, when exercising those powers to detain the Appellant, to his own policy as set out in a document entitled "Enforcement Instructions and Guidance". [Summary required.] 2010-10-272010 cases, Brief summary, Repatriation cases, Transcript
Re John (2010) COP 14/10/10 — The donor made an LPA using the "old" form prescribed in 2007. She appointed an original attorney and a replacement attorney, but the replacement attorney's Part C omitted his date of birth, and it could not be inferred from the instrument that he was at least 18. The usual practice of the Public Guardian in such a case is to request a fresh Part C, but this could not be done because the donor had lost capacity (see Re Sporne (2009) COP 13/10/09). The instrument was registered, with registration being limited to the original attorney, but the attorney then applied to court to have the defective Part C "reinstated". The Public Guardian was joined as a party. The court ruled that the LPA was not in the prescribed form because of the failure to include the replacement attorney's date of birth. As the court was satisfied on the evidence that the replacement attorney was in fact at least 18, it exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA (which is set out ..→2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Thrussell (2010) COP 12/10/10 — The donor directed her attorneys to consult with X "in respect of any major decision". On the application of the Public Guardian the court severed this provision on the grounds that it was so uncertain as to be unworkable. [OPG summary - LPA case.] 2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - severance of unreasonable, impractical or uncertain conditions, No transcript
Re Warner (2010) COP 31/8/10 — The donor made an LPA appointing A as the original attorney and B and C as replacement attorneys, the latter to act jointly. She imposed the following restriction in relation to the replacement attorneys: "If for any reason one of my replacement attorneys is unable or unwilling to act, the remaining replacement attorney is then permitted to act solely under my LPA". On the application of the Public Guardian the restriction was severed as being incompatible with the joint appointment of the replacement attorneys. [OPG summary - LPA case.] 2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Devine (2010) COP 13/10/10 — The attorney's signature in Part C was witnessed but the witness did not sign his name. On the application of the attorney the court declared that the instrument was defective in a material respect and did not take effect as an EPA. [OPG summary - EPA case.] 2010-10-252010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript
Re SB (2010) COP 19/10/10 — (1) SB lacked capacity to consent to potentially life-saving treatment for aplastic anaemia. (2) It was lawful for the clinicians to administer the treatment and restrain her for that purpose; also, if the they decided that it was too distressing, they could decide to stop. [Summary based on press report.] 2010-10-202010 cases, Best interests, Brief summary, No transcript
City of Edinburgh Council v D (2010) ScotSC 30/9/10 — An Intervention Order was sought, and granted, to allow the applicant to instruct solicitors, on the adult's behalf, to negotiate for settlement with respect to an outstanding compensation claim, to receive funds and invest same for the benefit of the adult, and to instruct solicitors to apply to have the applicant confirmed as executor to the adult's father's estate, in order that his estate could then be wound up and disbursed. 2010-10-182010 cases, Brief summary, Scottish cases, Transcript
Grant v MHRT (1986) The Times 28/4/86 — The Tribunal has no power to make statutory recommendations under s72(3) in restricted cases. 2010-10-111986 cases, Brief summary, No transcript, Powers
F v Clinical Director of Our Lady's Hospital (2010) IEHC 243 — The discharge of the patient from voluntary status (despite his desire to remain as a voluntary patient) and the subsequent admission order making him an involuntary patient, in order to be transferred to the Central Mental Hospital in Dublin, and the CMH policy only to accept involuntary patients, were lawful. 2010-10-062010 cases, Brief summary, Southern Irish cases, Transcript
An NHS Foundation Trust v D [2010] EWHC 2535 (COP) — (1) D lacked the capacity to decide on medical treatment for her prolapsed uterus, as she held the delusional belief that her condition was normal and did not require treatment. (2) It was in D's best interests to receive surgery, as if untreated her condition could be life-threatening. (3) The proposed restraint and deprivation of liberty (including a general aesthetic six days before the surgery) was authorised, if absolutely necessary, as being in her best interests. (Summary based on press articles.) 2010-10-052010 cases, Best interests, Brief summary, Missing from Bailii, Transcript
Re S (statutory will); D v R (the deputy of S) [2010] EWHC 2405 (COP) — S's financial deputy started an action in S's name seeking a declaration that gifts of money totalling over £500,000 made by S to D were procured by undue influence; S wanted the Chancery proceedings to be discontinued, so D sought a declaration that S had the capacity to do so. (1) Detailed consideration was given to the law (including that whether a decision is unwise or foolish is a relevant consideration in deciding on capacity, in particular where there is a marked contrast between the unwise nature of the decision and the former attitude when capacity was not in question) and to the conflicting medical evidence. (2) In order to have capacity: S must be able to understand, as a minimum, the nature and extent of the relationship of trust and confidence which he arguably reposed in Mrs D, the extent to which it may be said that his gifts to her cannot readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on her to rebut any ..→2010-10-052010 cases, Brief summary, Other capacity cases, Transcript
EG v RS [2010] EWHC 3073 (COP) — EG had to pay the costs of her application for permission to apply to be appointed RS's health and welfare deputy: she ought to have known that her application was doomed to fail because her role as RS's brother-in-law's solicitor, in an acrimonious family dispute, conflicted with the duty to act in RS's best interests. 2010-10-042010 cases, Brief summary, Other capacity cases, Transcript
R (Martins) v Cannons Park MHRT (1995) 26 BMLR 134 — The eligibility of an un-recalled conditionally discharged patient to apply to the Tribunal under s75(2) is calculated, not from the date of a deferred conditional discharge decision, but from the date of actual release from detention in hospital under conditional discharge. 2010-09-271995 cases, Brief summary, Deferred conditional discharge, No transcript
J v DLA Piper UK LLP (2010) UKEAT 0263/09/1506 — (1) In holding that at the material time (June 2008) the claimant was not suffering from 'clinical depression' amounting to a disability within the meaning of the DDA 1995, the Tribunal had (a) wrongly declined to give weight to the evidence of Claimant's GP, on the issues both of impairment and of 'deduced effect', because she was not a specialist; and (b) made a perverse finding as to whether the claimant's past depression had amounted to an impairment having a substantial adverse effect on her ability to carry out normal day-to-day activities, which was material both to the question of whether she had an impairment in June 2008 and to the potential application of para 2(2) of Schedule 1. (2) The appeal was allowed and the issue remitted. (3) Discussion of: (a) correct approach to issue of 'impairment' in cases involving a mental disability following the repeal of para 1(1) of Schedule 1; (b) distinction between 'clinical depression' and reactions to stress or other adverse ..→2010-09-232010 cases, Brief summary, Disability discrimination, Transcript
R (Nassery) v LB Brent [2010] EWHC 2326 (Admin) — The claimant unsuccessfully challenged decisions that he did not have a need for care and attention pursuant to s1 NAA 1948 and s47 NHSCCA 1990; the challenge was on the basis that the decisions failed to have regard to, or give good reasons for rejecting, evidence that he needed looking after because of the continued risk of self‑harm or violence arising out of mental health problems (a subsidiary issue was raised about his ability to cook). 2010-09-232010 cases, Brief summary, Community care, Transcript
Minister for Justice, Equality and Law Reform v Murphy (2010) IESC 17 — (1) A 'sentence of detention' under (Irish) European Arrest Warrant Act 2003 s10(d), read with the aid of the relevant Framework Decision, is any order involving deprivation of liberty which has been made by a criminal court in addition to or instead of a prison sentence. (2) This therefore includes a restricted hospital order made under s37/41 MHA 1983. (3) The appellant, who had escaped having been convicted of extraditable offences, was surrendered to the UK. 2010-09-232010 cases, Brief summary, Southern Irish cases, Transcript
LC v DHIH [2010] UKUT 319 (AAC) — (1) The MHRT for Wales's decision not to discharge the patient, following a deferred conditional discharge, was inadequately reasoned because: (a) it took into account matters to which it had not referred in its original decision; (b) in relation to the newly-identified risk factors, either they must have been risk factors at the time of the original decision, or something unidentified must have happened to make them risk factors; (c) the tribunal could have deferred its decision for a report from the RC at the proposed accommodation, given that all staff agreed with the transfer; (d) the transfer was recommended despite the above; (e) given the liability to recall inherent in a conditional discharge, no reason was given as to why it was necessary to retain the "support of the MHA for the time being" during the accommodation move. (2) The second decision was set aside, so the original deferred conditional discharge decision remained effective, and the matter was referred to the ..→2010-09-232010 cases, Brief summary, Reasons, Transcript, Upper Tribunal decisions
A Primary Care Trust v P (2009) EW Misc 10 (EWCOP) — (1) P lacked capacity to decide where and with whom he should reside. (2) The removal of P from AH's care at home, as a manifest breach of Article 8, could only be proportionate if the best interests of P compellingly required it. (3) It was in P's best interests to be moved to independent living accommodation. (4) There would be a deprivation of liberty due to (a) the degree of control to be exercised by staff, (b) the constraint on P leaving if he intends to return to AH, (c) the power to refuse a request from AH for P's return, (d) the restraints on contact, (e) the fairly high degree of supervision and control. (5) Directions were given in relation to the conduct of further court reviews. (6) Contact would be dealt with separately in an Order. 2010-09-132009 cases, Best interests, Brief summary, Deprivation of liberty, Transcript
Smith v MHTS (2006) CSOH 44 — A Mental Health Officer sought Judicial Review of the Mental Health Tribunal for Scotland's decision not to convene a Tribunal before the end of the 5-day STDC extension period. The Tribunal had cited the limited availability of venues and the lateness of the compulsory treatment order application as reasons; these were irrelevant as the obligation is straightforward and clear and not qualified by reference to reasonable practicability. An order was pronounced requiring the Tribunal administration to schedule a hearing within 5 days of the judicial review hearing. 2010-09-092006 cases, Brief summary, Scottish cases, Transcript
Laurie v MHTS (2007) GWD 32-555 — An application was made for revocation/variation of a Compulsory Treatment Order by the patient's Named Person. Two competing arguments were before the Mental Health Tribunal - one regarding a community option, the other a move to a specialist unit. A report prepared on behalf of the specialist unit was before the Tribunal. The Sheriff concluded that there will be many cases where proceeding on the basis of a report, without requiring the author to speak to it, was entirely proper and satisfactory but that it was not adequate in the circumstances of this case given the importance attached to that report. Whilst no party had requested an opportunity to cross-examine the author of the report, the Sheriff held that the Tribunal is not purely adversarial but there is an inquisitorial element in the approach required to be adopted by the Tribunal in its reaching decisions. The failure to consider whether to require the author to give evidence and the failure to consider the weight ..→2010-09-092007 cases, Brief summary, Scottish cases, Transcript
Di Mascio v MHTS (2008) GWD 37-559 — The Mental Health Officer appealed against the decision by the Mental Health Tribunal for Scotland to vary the conditions of a Compulsory Treatment Order from a hospital based order to a community based one. The variation provided that the patient should reside with his mother. The appeal was refused. It was held that he Tribunal should have regard to the principles set out in section 1 of the Mental Health (Care & Treatment) (Scotland) Act 2003 when determining what compulsory measures should be authorised; and that a significant risk to the safety of others did not determine that detention in hospital must be authorised. 2010-09-092008 cases, Brief summary, Scottish cases, Transcript
AB v MHTS (2008) GWD 36-543 — During the course of a Mental Health Tribunal the Convenor curtailed the appellant's solicitor's repetitive cross-examination. An interim Compulsory Treatment Order (CTO) was granted. A subsequent Tribunal granted a CTO. This decision was subject to appeal. The Sheriff concluded there had been no procedural impropriety in the conduct of the hearing, nor was there a requirement for the Responsible Medical Officer to formally adopt their mental health report; the Tribunal could consider the evidence read as a whole in conjunction with the earlier mental health reports. 2010-09-092008 cases, Brief summary, Scottish cases, Transcript
LM v MHTS (2010) ScotSC x — The appellant had been subject to a Short-Term Detention Certificate (STDC), which was followed by an (unlawful) Extension Certificate, which was then followed by a subsequent STDC. Section 44(2) Mental Health (Care and Treatment) (Scotland) Act 2003 prohibits the granting of a STDC when the patient is subject to an Extension Certificate. An application under s50 was made to revoke the second STDC; the MHTS considered the detention criteria and refused the application. This decision was subject to an appeal to the Sheriff Principal who held that as the appellant had not been "subject to" the Extension Certificate (it being unlawful) the second STDC was valid. The Sheriff noted that the appellant could have made an application in terms of section 291 to challenge the lawfulness of his detention; this option met Article 5 requirements and would have been more appropriate as the detaining party would have been the respondent. 2010-09-042010 cases, Brief summary, Scottish cases, Transcript
Re M Crook (2010) COP 16/7/10 — The donor's Health and Welfare LPA included an invalid restriction. A further defect was that she had not entered the date on which she executed Part A of the instrument in section 10, nor had she dated section 5 when selecting Option A. The Public Guardian does not regard a failure to execute the Options section as invalidating the instrument, but a failure to date Part A will normally do so. However, in this case the Public Guardian was prepared to infer that both sections had been executed on 13 October 2009, as Continuation Sheet A1 had been signed on that date, and so was the Part B certificate. In addition, the certificate provider had witnessed the Part A signatures. When applying for severance of the invalid restriction, the Public Guardian requested the court to direct that Part A was to be treated as having been signed on 13 October 2009, to avoid any challenges by third parties. The court accordingly included a provision in the order to the effect that sections 5 and 10 ..→2010-09-022010 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Lan (2010) COP 10/8/10 — The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "Any major decisions should be discussed between my attorneys so that a joint agreement to the matter can be achieved." On the application of the Public Guardian this restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-09-022010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Farrow (2010) COP 18/8/10 — The donor appointed A to be her attorney and then appointed B to act in the event that A should be unable or unwilling to act or died. The donor then stated that A and B should act jointly and severally. On the application of the attorneys the court severed the words "jointly and severally", so that the instrument could be registered as an EPA appointing A as primary attorney and B as substitute attorney. [OPG summary - EPA case.] 2010-09-022010 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript
WS v MHTS [2010] CSIH 74 — WS had been transferred from an English medium secure unit to the state hospital at Carstairs in Scotland under s80 MHA 1983. (1) His appeal to the MHTS under s220 Mental Health (Care and Treatment) (Scotland) Act 2003 ("Appeal to Tribunal against transfer under section 218 to state hospital") was misconceived because he had not been transferred under s218. (2) The appropriate remedies would have been (a) a judicial review in England of the English s80 decision or (b) an appeal under the Scottish s264 ("Detention in conditions of excessive security: state hospitals"). (3) An order under s264 would oblige the Health Board to search for suitable accommodation in England if necessary. 2010-08-222010 cases, Brief summary, Scottish cases, Transcript
Re LD; London Borough of Havering v LD and KD [2010] EWHC 3876 (COP) — (1) The practice of the Court to appoint personal wefare deputies only relatively rarely, in the most extreme cases, is the correct approach, considering the intention of s16(4). Specific decisions of the court are to be preferred to the ongoing appointment of a deputy and when a deputy must be appointed it is to be for the narrowest scope and the shortest time reasonably practicable in the circumstances. (2) The local authority's application to be appointed as LD's personal welfare deputy until further order was rejected: the case was not especially unusual or difficult; residence had recently been resolved by the court, and the other issues were either routine (and thus subject to s5) or very major (requiring court scrutiny); the absence of a deputy would not cause problematic delay in decision-making, as as court orders can be obtained very swiftly, and was not preventing care or services being provided; mere convenience to a local authority in ..→2010-08-212010 cases, Best interests, Brief summary, Transcript
Re D (Statutory Will); VAC v JAD [2010] EWHC 2159 (Ch) — (1) There is no presumption that the Court of Protection should not direct the execution of a statutory will in any case where the validity of an earlier will is in dispute. Such an approach would tend to elevate one factor (a previous written statement) over all others, contrary to the structured decision-making process required by the MCA 2005. (2) On the facts, the doubts about the validity of the previous wills were sufficient to conclude that D's best interests would be served by the execution of a statutory will to prevent her estate being eroded, and her memory being tainted, by a bitter contested probate dispute. 2010-08-172010 cases, Brief summary, Statutory will cases, Transcript
Re Cotterell (2010) COP 3/8/10 — The donor appointed two attorneys to act jointly and severally, and imposed the following restriction: "My second named attorney may only act as my attorney if a general medical practitioner certifies that I am mentally incapable of managing my affairs and in this instance, if my first attorney is alive and mentally capable, may only act on my behalf in relation to a sale of the property which at that time is deemed to be my principal place of residence. If however my said first named attorney has passed away or is deemed by a general medical practitioner as incapable then my second named attorney may act generally on my behalf subject to no restrictions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-08-162010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Porter (2010) COP 26/7/10 — The donor appointed his wife and two children as attorneys, to act jointly and severally. He added the following restriction: "My wife may act alone during her lifetime and whilst she is mentally capable. My children shall act jointly." On the application of an attorney the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2010-08-162010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Lodge (2010) COP 6/8/10 — Unfortunately by mistake the donor signed Part C and the attorney signed Part B of the EPA instrument. On the attorney's application the Court held that the donor's failure to execute the instrument correctly was a material defect and it was not a valid EPA. The attorney applied for a reconsideration of this order. By an order of the Senior Judge made on 14/3/11 the previous order was affirmed. [OPG summary - EPA case - transcript available.] 2010-08-162010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, Transcript
AH v West London MH NHS Trust [2010] UKUT 264 (AAC) — (1) The normal practice that Tribunal hearings are held in private is justified; and the relevant factors in deciding whether to direct a hearing in public are: (a) is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? (b) will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? (c) are there any other special factors for or against a public hearing? (d) can practical arrangements be made for an open hearing without disproportionate burden on the authority? (2) The First-tier Tribunal decision not to grant a public hearing was set aside. (3) The question will be determined by the Upper Tribunal following a further hearing (at which the Department of Health is invited to appear) for the purpose of considering further evidence as to: (a) the practicalities and potential cost of providing a public hearing ..→2010-08-162010 cases, Brief summary, Publicity, Transcript, Upper Tribunal decisions
D County Council v LS [2010] EWHC 1544 (Fam) — The original decision in this case, that LS had capacity to consent to sexual relations and marriage, was revisited in light of the House of Lords decision in R v C. (1) The MCA statutory scheme should be applied in preference to the previous civil case law; the approach in R v C clearly applied to both the civil and criminal arenas, and was consistent with s3 MCA, so would be followed. (2) Capacity requires not only an understanding of the relevant information but also the ability to retain and weigh it in the balance: therefore capacity to consent to sexual relations is person- and situation-specific, and there may be factors (such as irrational fear) impeding or undermining a person's capacity to make a choice. (3) This approach applies equally to marriage. (4) On the facts, the conclusion about capacity was the same. [Caution.] 2010-08-092010 cases, Brief summary, Capacity to consent to sexual relations, Transcript
Re Mark Reeves (2010) COP 5/1/10 — The Council, relying on a recent Court of Appeal judgment in relation to double recovery, compelled P's deputy to make an application to the Court of Protection for authorisation to apply for public funding. (1) The application was misconceived in seeking to apply the recent CA decision to this case which had been determined six years previously; (2) the Court of Protection is not an appropriate forum to adjudicate on double recovery in personal injury proceedings. 2010-08-082010 cases, Brief summary, No transcript, Other capacity cases
Saulle v Nouvet [2007] EWHC 2902 (QB) — (1) The claimant had capacity to conduct litigation and manage his own property and affairs. (2) The definition of and approach to capacity to be adopted by the Queen's Bench Division of the High Court in deciding whether a person is a protected party, or a protected beneficiary, is the MCA 2005 statutory definition. 2010-08-082007 cases, Brief summary, Other capacity cases, Transcript

Article titles

The following 200 pages are in this category.

(previous page) (next page)

A

C

D

(previous page) (next page)