Category

Detailed summary

Case and summary Date added Categories
R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24, [2016] MHLO 4This was a claim for false imprisonment and assault arising out of arrest and detention by the police. Paragraph 21 of Part 1 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 relates to Legal Aid for civil legal services under the heading "Abuse of position or powers by public authority". Following an initial refusal of Legal Aid, this case concerned the interpretation of sub-paragraph (4): "For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission (a) is deliberate or dishonest, and (b) results in harm to a person or property that was reasonably foreseeable." The High Court had held that (a) paragraph 21(4) was a comprehensive definition of what was entailed in a claim for abuse of position or power (rather than a statement of the minimum criteria for such a claim), and (b) for the purposes of the definition in this case it was only the arrest itself that had to be deliberate (it was not necessary to allege that the arresting officers knew that they had no power of arrest). The Court of Appeal, allowing the appeal, held that: (a) the judge, in interpreting the words so that that any deliberate act by a public authority that causes reasonably foreseeable harm to another would count as an abuse of power, had ignored what it was that was being defined ("abuse of position or power") and gave no weight at all to the meaning of that phrase: abuse of position or power is a recognised juridical concept which, like many other public law concepts, is both flexible and context-specific and should, therefore, be given meaning in paragraph 21(4); (b) something more than an intentional tort (requiring only a deliberate act, such as, here, false imprisonment) is necessary before the impugned act becomes an "abuse of power": in this case it was not merely the fact of arrest, but the arrest without lawful justification, which had to be deliberate or dishonest. The Court of Appeal noted that a general policy not to fund purely money claims is what explains the anomaly that a claimant able to bring judicial review proceedings under paragraph 19 may add a claim for damages without having to satisfy any equivalent of paragraph 21(4). (There is also no equivalent in paragraph 20, for habeas corpus, or in paragraph 22, for significant breach of Convention rights.) 2016‑01‑28 16:34:26 2016 cases, Detailed summary, Miscellaneous, Transcript


R (Cornwall Council v SSH [2015] UKSC 46, [2015] MHLO 61 — "PH has severe physical and learning disabilities and is without speech. He lacks capacity to decide for himself where to live. Since the age of four he has received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. Since then he has lived in two care homes in the Somerset area. There is no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue is: which authority should be responsible? This depends, under sections 24(1) and (5) of the 1948 Act, on, where immediately before his placement in Somerset, he was "ordinarily resident". There are three possible contenders: Wiltshire, as the authority for the area where he was living with his family when he first went into care, and which remained responsible for him under the 1948 Act; Cornwall, where his family have lived since 1991; or South Gloucestershire, where he lived with his foster parents from the age of four until his move to Somerset. ... Although none of the other authorities has argued that Wiltshire should be responsible, the court indicated at the beginning of the hearing that this possibility should not be excluded from consideration. ... In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday. On this analysis it follows that PH's placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and ..→ 2015‑08‑07 23:06:04 2015 cases, Community care, Detailed summary, ICLR summary, MHLR summary, Transcript


R (YZ) v NHS Trust [2015] EWHC 2296 (Admin), [2015] MHLO 58(1) YZ ceased to comply with clozapine treatment, and was referred by a medium secure unit (MSU) to Broadmoor hospital. After Broadmoor's Admission Panel decided that while off clozapine the risks justified a high secure setting, YZ became willing to restart clozapine but his new doctor at the MSU was unwilling to prescribe it. YZ appealed the Admission Panel decision and argued that new information meant the case should be reconsidered by the original panel, but Broadmoor decided there was no new information so the case was considered by the Admission Appeals Panel, which upheld the decision. (2) YZ's position was that he could restart clozapine in medium security, the relationship with staff at the MSU had broken down but he should be transferred to another MSU, and once treatment of his gender dysphoria commenced his mental state would probably improve. He argued that transfer to Broadmoor would breach the Code of Practice's least restriction principle and violate Articles 3 and 8. He sought judicial review of: (a) the decision not to prescribe clozapine; (b) the decision to transfer him to Broadmoor; (c) Broadmoor's decision to accept him; (d) the decision not to refer the case back to the original admissions panel. (3) Taking the grounds in turn, the court held that: (a) There was no clinician willing to prescribe clozapine, and the court "cannot and should not seek to decide what medical treatment is appropriate in these circumstances and declare an informed and justified decision unlawful". (b) The decision to transfer to Broadmoor was taken carefully and through the correct procedures, and no medium secure unit was willing to take the patient. (c) The decision to accept was a rational decision open to the admissions panel on the material before it. (d) The appeals panel decision was not susceptible to judicial review, and the process was rational and had not been challenged at the time. Permission was therefore refused. 2015‑08‑01 21:09:36 2015 cases, Detailed summary, Miscellaneous, Transcript


Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (MCA 2005 s53), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, so the streamlined "Re X" procedure was not compliant with Article 5. (Detailed summary on case page.) 2015‑06‑17 19:08:12 2015 cases, Deprivation of liberty, Detailed summary, Transcript


YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed (and generally) if the representative forms the view that the patient does have capacity, he should inform the Tribunal and take instructions as normal, and act on those instructions. 2015‑02‑12 23:49:18 2015 cases, Detailed summary, MHT capacity cases, Transcript, Upper Tribunal decisions


NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the necessary treatment and protection." (4) That the burden of proof in guardianship cases remained with the patient (in contrast with detention cases) was not a drafting oversight but a further indication that guardianship is not designed to involve a deprivation of liberty. (5) The tribunal had not misplaced the burden of proof (or given any directions on the legal burden). In assessing arguments on this issue it is important to distinguish between the legal burden and the evidential burden. (6) Tribunals are entitled to require the parties to satisfy them by evidence and argument that concessions (on matters of fact or law) are sound and, if they fail to do so, tribunals are not obliged to accept them. 2014‑11‑04 22:44:48 2014 cases, Deprivation of liberty, Detailed summary, Powers, Transcript, Upper Tribunal decisions


R (Public Law Project) v SSJ [2014] EWHC 2365 (Admin), [2014] MHLO 46The proposed legal aid 'residence test' was unlawful: (1) the statutory instrument containing it was ultra vires and unlawful, as LASPO did not permit such a criterion to be introduced by secondary legislation; (2) residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO. 2014‑07‑17 21:36:37 2014 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


R (EH) v SSHD (2012) EWHC 2569, [2012] MHLO 181 — Immigration/mental health case. [Summary required; detailed external summary available.] 2013‑09‑07 20:31:27 2012 cases, Detailed summary, Repatriation cases, Transcript


AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.] 2013‑08‑24 14:36:52 2013 cases, Deprivation of liberty, Detailed summary, Transcript, Upper Tribunal decisions


R (JG) v LSC [2013] EWHC 804 (Admin), [2013] MHLO 76 — Payment for expert evidence. [Summary required; detailed external review available.] 2013‑08‑12 22:27:59 2013 cases, Detailed summary, Miscellaneous, Missing from Bailii, Transcript


Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, [2013] MHLO 72 — "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then the provision of the accommodation would in the circumstances have been a necessary either at common law or under section 7 of the Mental Capacity Act 2005, and he would have been obliged to pay a reasonable price for it, which would have been recoverable from his estate (Wychavon District Council v EM [2012] UKUT 12 (AAC)!). Mr. Harrison, like others before him in similar cases, has sought to contend that the council was not in fact acting under those powers but was acting unlawfully both because Mr. Jackson’s dementia was so severe that he required to be provided for by the NHS, and indeed ought to have been sectioned under the Mental Health Act, because he lacked capacity to consent to being admitted to the care home, and because he had no need of accommodation because he already had his own home. These points are misconceived and self-contradictory." [Summary required; detailed external summary available.] 2013‑08‑08 20:16:05 2013 cases, Detailed summary, Other capacity cases, Transcript


PC v City of York Council [2013] EWCA Civ 478, [2013] MHLO 61 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband." [Summary required; detailed external summary available.] 2013‑08‑08 01:34:18 2013 cases, Capacity to consent to sexual relations, Detailed summary, ICLR summary, Transcript


R (Faulkner) v SSJ [2013] UKSC 23, [2013] MHLO 60 — Quantum of compensation for delayed Parole Board hearing. [Summary required; detailed external summary available.] 2013‑08‑08 01:27:23 2013 cases, Detailed summary, ICLR summary, Prison law cases, Transcript


GA v Betsi Cadwaladr University Local Health Board [2013] UKUT 280 (AAC), [2013] MHLO 50(1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.] 2013‑07‑04 16:17:31 2013 cases, Detailed summary, MHLR summary, Powers, Transcript, Upper Tribunal decisions


R v Smith (Mark John) [2012] EWCA Crim 2566, [2012] MHLO 170 — "This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act." [Summary required; detailed external summary available.] 2013‑03‑26 23:36:24 2012 cases, Detailed summary, ICLR summary, Sentence appeal cases, Transcript


B v R [2013] EWCA Crim 3, [2013] MHLO 7 — "This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant." [Summary required; detailed external summary available.] 2013‑03‑25 22:45:56 2013 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript


Selwood v Durham CC [2012] EWCA Civ 979, [2012] MHLO 160 — "This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it is reasonably arguable that such a duty was owed in the circumstances of the case. The claimant had also pleaded that there had been a breach by the second and third defendants of her right under article 2 of the European Convention of Human Rights. The judge also struck out those claims and that issue is raised in this appeal." Appeal allowed and all issues sent for trial. [Detailed summary available.] 2012‑12‑23 01:29:27 2012 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


Re Ian Brady [2012] MHLO 145 (FTT)The tribunal's decision is as follows: "The hearing in public of the application by Mr Ian Brady has been re-listed for Monday 17/6/13. The arrangements for the hearing will be the same as those made for the hearing which had to be adjourned last July namely that the Tribunal will hear the case at Ashworth Hospital and it will be relayed to the Civil Justice Centre Manchester for members of the public and press to watch the proceedings. The precise details of those arrangements will be published as soon as possible." 2012‑12‑20 02:04:25 2012 cases, Detailed summary, First-tier Tribunal decisions, Publicity, Transcript


J Council v GU [2012] EWHC 3531 (COP), [2012] MHLO 137 — "Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts." [Detailed summary available.] 2012‑12‑19 19:08:41 2012 cases, Detailed summary, Other capacity cases, Transcript


R v Ligaya Nursing [2012] EWCA Crim 2521, [2012] MHLO 134 — "This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005." [Detailed summary available.] 2012‑12‑19 18:31:23 2012 cases, Criminal law capacity cases, Detailed summary, ICLR summary, Transcript


RM v Scottish Ministers [2012] UKSC 58, [2012] MHLO 133 — "This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions "shall come into force" on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. ... These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security." [Detailed summary available.] 2012‑12‑19 18:23:04 2012 cases, Detailed summary, ICLR summary, Miscellaneous, Scottish cases, Transcript


X v Finland 34806/04 [2012] ECHR 1371, [2012] MHLO 128 — "The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication." [Detailed summary available via external link.] 2012‑12‑18 20:25:10 2012 cases, Detailed summary, ECHR, Other capacity cases, Transcript


R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232, [2012] MHLO 117The chronology in this s117 responsibility dispute was as follows: (a) SF lived at a college hall of residence in Sunderland, (b) she had voluntary admissions to various hospitals, (c) she was voluntarily admitted to a South Tyneside hospital, (d) the college terminated her placement and her licence to remain at the hall of residence, (e) she was detained under s2 then s3 at the South Tyneside hospital. (1) It was common ground that (a) the relevant s117 authority is the relevant LSSA for the area in which a patient is resident when he is detained (Hall), (b) during a period of detention the patient is not 'resident' for s117 purposes in the place of detention (JM); and (c) SF remained resident in Sunderland during the hospital admissions, at least until the Sunderland placement was terminated: therefore the question was where she was resident after that. (2) The High Court judge had decided she remained resident in Sunderland: (a) the South Tyneside placement was 'not compulsory, but it was closely analogous to a compulsory admission' so was to be disregarded, as if it were a place of detention; (b) she was not in hospital 'as part of the regular order of her life for the time being' (applying the test in Shah); (c) the loss of her Sunderland accommodation was not voluntary (as in JM) so did not affect her area of residence. (3) The Court of Appeal overturned that decision: (a) a voluntary period in the same hospital as subsequent detention is not to be treated the same as the period of detention; (b) the judge had wrongly followed the approach in Shah (which related to ordinary residence in a very different statutory context); the approach in Mohamed was more helpful (this included that 'so long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence'); (c) decisively, voluntary and third-party termination of accommodation have the same effect: when the Sunderland accommodation ceased to be available SF was either resident in South Tyneside or not resident anywhere (and the case of 'no residence' is a last resort for extreme and clear circumstances). (4) The court raised two scenarios which it did not need to rule upon: (a) the last place a patient was eating and sleeping might not be his place if residence in some cases: for example if he were in prison, or temporarily away from an established home as a matter of choice (though a hospital stay of more than five years might not be considered temporary); (b) if a patient has a family home which is available upon discharge that might be his residence even if, because of action taken by the family, its location changes during the period of detention. 2012‑11‑24 20:50:37 2012 cases, After-care, Detailed summary, Transcript


Dunhill v Burgin [2012] EWHC 3163 (QB), [2012] MHLO 115The 'compromise rule' in the Civil Procedure Rules provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court. (1) The rule applies to a claim settled at the door of the court where at the time of the settlement the claimant was not known to lack capacity. (2) The claimant was a protected party ('a party, or an intended party, who lacks capacity to conduct the proceedings') and the Court of Appeal had decided that she lacked capacity to settle her claim. (3) The compromise in this case was invalid; the judgment based on it must be set aside, and the substantive claim should proceed to a trial on the merits. (4) The judge granted a certificate under s12 Administration of Justice Act 1969 to enable an application to be made to the Supreme Court for permission to bring a 'leapfrog' appeal from this decision. [Detailed summary available.] 2012‑11‑17 23:38:26 2012 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript


Re CA (A Baby); Coventry City Council v C [2012] EWHC 2190 (Fam), [2012] MHLO 110The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge seriously doubted the social worker's assessment that she had such capacity. (3) There was no informed consent because (a) the mother was never told that continued refusal of consent would result in the child staying in hospital with her for another day or two, and (b) she was told that removal was only a temporary arrangement when it was highly unlikely to be anything of the sort. (4) In relation to fairness, the local authority had settled an HRA damages claim, accepting that (a) s20 consent should not have been sought on the day it was, and (b) removal was not a proportionate response to the risks that then existed. (5) The court made the care order and (adoption) placement order which the local authority had sought, as the case for that was overwhelming. 2012‑11‑08 23:43:57 2012 cases, Detailed summary, Other capacity cases, Transcript


LGO decision: Kent County Council 10 012 742 [2012] MHLO 102A — "In her report concerning services for a young woman with learning disabilities, the Ombudsman says: 'The Council’s failure to complete an assessment before the young woman was 18 caused her the injustice of losing services she was assessed as needing. The support plan that was eventually produced did not include services to meet these needs.' In addition, the Council’s poor communication led to uncertainty, confusion and frustration for the young woman and her family, and she was denied a direct payment and the choice to arrange her own respite care." 2012‑09‑30 22:18:59 2012 cases, Detailed summary, LGO decisions, No transcript


LGO decision: Kent County Council 11 001 504 [2012] MHLO 101 — "In her report concerning the elderly woman's residential care payment, the Ombudsman says: 'The Council’s internal guidance said that staff could only use the Council's own homes, or places it had 'pre-purchased', or community hospitals. The requirement to offer service users a genuine choice of placement when they are assessed as needing residential care is enshrined in law. The guidance did not adhere to these principles.'" 2012‑09‑30 22:13:45 2012 cases, Detailed summary, LGO decisions, No transcript


Re T (Children) [2012] UKSC 36, [2012] MHLO 100A local authority should not be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded; the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. (This case related to care proceedings.) 2012‑09‑30 21:57:38 2012 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


NHS Trust v Baby X [2012] EWHC 2188 (Fam), [2012] MHLO 99 — "The question in this case is whether a baby known as X should be removed from a ventilator and made the subject only of palliative care. As the evidence is that he will almost certainly die within minutes, or at best hours, of such removal, it will be readily apparent that this case is both tragic and difficult. Given the nature of the question, I have thought it right to deliver this judgment in open court but nothing of course may be reported which might reasonably lead to the identification of X or his parents. An issue has arisen over the reporting restrictions order in this case; I intend to deal with this matter quite separately to this judgment." [Detailed summary available.] 2012‑09‑30 21:38:07 2012 cases, Best interests, Detailed summary, Transcript


XCC v AA [2012] EWHC 2183 (COP), [2012] MHLO 80An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: 'in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans for an overseas marriage of a patient who has or may lack capacity. The communities where this is likely to happen also need to be told, loud and clear, that if a person, whether male or female, enters into a marriage when they do not have the capacity to understand what marriage is, its nature and duties, or its consequences, or to understand sexual relations, that that marriage may not be recognised, that sexual relations will constitute a criminal offence, and that the courts have the power to intervene.' 2012‑08‑19 22:33:36 2012 cases, Capacity to consent to sexual relations, Detailed summary, Transcript


DD v Lithuania 13469/06 [2012] ECHR 254, [2012] MHLO 29 — Breach of Article 5(4) and Article 6(1) in relation to involuntary admission to a psychiatric institution. 2012‑03‑24 14:22:45 2012 cases, Detailed summary, ECHR, ECHR deprivation of liberty cases, Transcript


R (NM) v LB Islington [2012] EWHC 414 (Admin), [2012] MHLO 11A prisoner whose release was about to be considered by the Parole Board sought judicial review of the local authority's decision not to conduct a s47 NHSCCA 1990 needs assessment with a view to provision of accommodation and support services if he were released from prison. (1) The connection between the Parole Board's consideration of NM's particular case and his release was too 'conditional and speculative' to fall within s47, or within the pragmatic 'about to be in need' or 'may reasonably be considered to be liable' tests from the B case. (2) In other cases of discharge from hospital or prison it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority. (3) Consideration of whether the Convention on the Rights of Persons with Disabilities can be relied upon. 2012‑03‑01 22:49:59 2012 cases, Community care, Detailed summary, ICLR summary, Transcript


Re C; C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP)C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship. 2012‑01‑05 23:33:29 2011 cases, Detailed summary, Other capacity cases, Transcript


Re RK; RK v BCC [2011] EWCA Civ 1305(1) An adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to detention. Detention engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the detention of a child. (2) The restrictions authorised by RK's parents did not amount to deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range. 2011‑12‑08 21:47:01 2011 cases, Deprivation of liberty, Detailed summary, Transcript


R (Modaresi) v SSH [2011] EWCA Civ 1359The claimant's s2 Tribunal application was faxed to the MHA Administrator's office on New Year's Eve, within the 14-day eligibility period, but was not faxed from there to the Tribunal office until after the bank holiday weekend, by which time the 14-day period had expired; the Tribunal therefore rejected the application; the claimant was then placed under s3; the Secretary of State refused to make a s67 reference. (1) Where the Tribunal office is closed on the 14th day of the eligibility period, the period is extended to include the next day that it is open (this is the case even though a fax application can be made when the office is closed). (2) Since the application was made on time, the claim against the Trust (that their inadequate system breached Article 5(4)) was academic. (3) The Secretary of State's decision was not vitiated by being based on the mistaken belief that the application was out of time (as the position was unclear then); requiring the claimant immediately to exercise her s3 right of application (rather than retaining that right until after a reference Tribunal) did not breach Article 5(4) as the Secretary of State would have to exercise his s67 discretion at a later date in accordance with public law principles. 2011‑11‑25 13:34:30 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript


Cheshire West and Chester Council v P [2011] EWCA Civ 1257P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.] 2011‑11‑09 21:34:46 2011 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript


R (O) v LB Hammersmith and Fulham [2011] EWCA Civ 925 — Dispute over accommodation for child in need. 2011‑09‑29 20:57:33 2011 cases, Detailed summary, Miscellaneous, Transcript


SL v Westminster City Council [2011] EWCA Civ 954On the true meaning of section 21(1)(a) of the National Assistance Act 1948, as amended, an asylum seeker suffering from depression and mental health difficulties who had been granted indefinite leave to remain was entitled to residential accommodation if the local authority had provided a programme of assistance and support to him through a care co-ordinator, since such provision of assistance would be otiose without the additional provision of housing. [Summary from WLR (D).] 2011‑08‑13 15:32:17 2011 cases, Community care, Detailed summary, ICLR summary, Transcript


Eba v Advocate General for Scotland [2011] UKSC 29 — Scope of judicial review of Upper Tribunal in Scotland. 2011‑07‑20 21:06:31 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript


R (Cart) v Upper Tribunal [2011] UKSC 28Judicial review of an UT decision which is unappealable (here, the UT's refusal of permission to appeal to itself) is available where the second-tier appeal criteria apply (whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it). 2011‑06‑22 19:47:44 2011 cases, Detailed summary, ICLR summary, Other Tribunal cases, Transcript


Re M; W v M [2011] EWHC 1197 (COP) — Reporting-restriction orders and non-contact injunctions. 2011‑05‑26 18:46:48 2011 cases, Detailed summary, Other capacity cases, Transcript


A Local Authority v DL [2011] EWHC 1022 (Fam) — The inherent jurisdiction survives the Mental Capacity Act 2005. 2011‑04‑30 15:51:01 2011 cases, Detailed summary, Other capacity cases, Transcript


Re CM; LBB v JM (2010) COP 5/2/10 — "The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified." 2011‑04‑30 15:37:31 2010 cases, Detailed summary, No transcript, Other capacity cases


Pitt v Holt [2011] EWCA Civ 197As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set aside on the basis of mistake: (a) the donor must be mistaken, at the time of the disposition, as to its legal effect or as to an existing fact which is basic to the transaction; and (b) the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test (which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift). (4) Mrs Pitt was under a mistake (she believed that the transaction would not have any tax disadvantages) which met the Ogilvie v Littleboy test, but unforeseen fiscal liabilities are a consequence, not a legal 'effect', so the disposition would not be set aside. 2011‑03‑18 19:51:43 2011 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript


R (Modaresi) v SSH [2011] EWHC 417 (Admin)The claimant missed the 14-day deadline for submission of a s2 Tribunal application because of oversight/neglect on the part of Trust employees. Judicial review claims against the Tribunal (for deciding that the application was invalid), the Secretary of State for Health (for refusing to make a reference) and the Trust (for their actions) were all unsuccessful. [Caution.] 2011‑03‑06 16:46:19 2011 cases, Detailed summary, Other Tribunal cases, Transcript


Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG [2011] EWCA Civ 190Judgment of Parker J upheld: neither P (aged 18, in a foster placement) nor Q (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court decision.] 2011‑02‑28 13:44:57 2011 cases, Deprivation of liberty, Detailed summary, Transcript


Haworth v Cartmel and HMRC [2011] EWHC 36 (Ch)Disability Discrimination Act, and lack of capacity, used to annul bankruptcy order. 2011‑02‑24 20:51:39 2011 cases, Detailed summary, Missing from Bailii, Other capacity cases, Transcript


Hill v Fellowes Solicitors LLP [2011] EWHC 61 (QB)Professional negligence claim including an allegation that a solicitor's firm negligently failed to make enquiries as to the client's capacity to understand the sale of her house. 2011‑02‑24 20:35:14 2011 cases, Detailed summary, Other capacity cases, Transcript


Re AB; D Borough Council v AB [2011] EWHC 101 (COP)(1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children), or (c) that both (or all) parties to the act need to consent to it. (5) AB did not have the capacity to consent to and engage in sexual relations, and the regime for his supervision and for the prevention of future sexual activity was in his best interests. (6) The declarations were made on an interim basis, to be reviewed in nine months, with the local authority ordered to provide sex education in the hope that he gains capacity. 2011‑02‑01 19:05:19 2011 cases, Capacity to consent to sexual relations, Detailed summary, Transcript


TTM v LB Hackney [2011] EWCA Civ 4(1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were. 2011‑01‑14 12:03:45 2011 cases, Consulting NR, Detailed summary, ICLR summary, Miscellaneous, Transcript, Unlawful detention cases


SSJ v RB [2010] UKUT 454 (AAC)(1) The Tribunal may conditionally discharge with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. [Caution.] (2) The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the UT may feel less inhibited than the High Court in revisiting the issues. 2011‑01‑13 23:51:30 2010 cases, Deprivation of liberty, Detailed summary, Discharge conditions, Transcript, Upper Tribunal decisions


Public Interest Lawyers v LSC [2010] EWHC 3277 (Admin)(1) The verification process following the LSC's public law and mental health tendering process fell short of what was required by the Public Contract Regulations 2006. No objection was taken, nor could it be, to self-certification. But the self-certification supervisor forms did not require supervisors to confirm specifically the nature of the employment arrangements between them and the organisation or whether they had complied with the supervision standards set out in the contract, in particular the supervision experience or training course requirement (clause 2.28) and the 1:6 supervisor ratio requirement (clause 2.35). There may therefore be a number of firms with contracts who did not meet the supervision criteria, for example who have an external non-employed supervisor, or a part-time supervisor who is not employed for sufficient hours. The LSC must ensure, within a limited period, that all firms currently comply with the supervision standards; those who do not must have their contracts removed and the matter starts redistributed pro rata. (2) The disability equality duty challenge to the HSH contract under s49A Disability Discrimination Act 1995, as originally raised, was essentially a challenge to the consultation and the formulation of the tender proposals; as it was brought eight months after the proposals were available, it was out of time. However, the outcome of the of the tender exercise was only recently known: in particular, senior psychiatrists had given evidence of the distress changing solicitors would cause to a considerable number of patients in the light of the reduction in number of solicitors with contracts (of 98 existing providers, 43 did not bid; of those who bid, six firms were successful at Ashworth, and five at each of Broadmoor and Rampton). The outcome engaged the s49A duty so the LSC must gather information, consult with interested stakeholders, and have due regard to whether they need to take steps to ameliorate the result of the contracting exercise. (3) The public law tender, and the reduction in matter starts, met the LSC’s legal obligations under s4 Access to Justice Act 1999. 2010‑12‑16 22:24:48 2010 cases, Detailed summary, Miscellaneous, Transcript


C v D [2010] EWHC 2940 (Ch)(1) A settlement offer which is time-limited (in this case it was open for acceptance for 21 days) is not capable of being a Part 36 offer; (2) on the facts, the offer had expired after 21 days and was not capable of acceptance. [Caution: partly overturned on appeal.] 2010‑11‑18 18:56:45 2010 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


R (Royal College of Nursing) v SSHD [2010] EWHC 2761 (Admin)Previous scheme established under the Safeguarding Vulnerable Groups Act 2006 which automatically prohibited those placed on lists established under the scheme from working with children and/or vulnerable adults was unlawful: the absence of a right to make representations breached their right to a fair trial. 2010‑11‑11 23:28:46 2010 cases, Detailed summary, Miscellaneous, Transcript


Re MIG and MEG [2010] EWHC 785 (Fam)Neither MIG (aged 18, in a foster placement) nor MEG (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court judgment.] 2010‑09‑03 16:41:13 2010 cases, Deprivation of liberty, Detailed summary, Transcript


Re RC (Deceased); SC v LB Hackney [2010] EWHC B29 (COP)LBH had successfully applied for a property and affairs LPA to be declared invalid and for residence orders; costs were awarded against the donee, SC; the costs order was appealed; subsequently RC died. (1) The court could hear the appeal against costs (but not other issues) after RC's death under its residual jurisdiction; this was so despite the only relevant rule being narrower in scope than to allow this. (2) The judge was wrong to hold that "the LPA was a personal welfare LPA, and therefore its general rule would fall within rule 157". (The general rules are rule 156, that P pay for property and affairs proceedings, and rule 157, that there be no order for costs in personal welfare proceedings.) (3) As a general rule the incidence of costs in cases where there is an LPA for health and welfare should not necessarily differ from the rule in property and affairs cases, subject to the provisions of rule 159 (departure from general rule if justified in circumstances). (4) Reservations were expressed about the manner in which the LPA was declared to be invalid; also, contrary to the judge's findings, SC did not provoke all the issues which she lost. (5) As well as being wrong, the costs decision was unjust: SC was not properly forewarned about the possibility of an adverse costs order; the judge did not consider SC's ability to pay; he did not fully consider the nature of the relationship between SC and RC and the fact SC acted in good faith; the judge was wrong to say this was an exceptional case, as although litigants like SC would try the patience of a saint they were not untypical in the Court of Protection. (6) Accordingly, the general rule (r157) should apply and the court should only depart from the general rule where the circumstances so justify, for instance clear bad faith, where there has been a careful costs warning and a consideration of ability to pay. (7) The order that SC pay LBH's costs was set aside and in its place no order for costs was made. 2010‑08‑10 23:36:50 2010 cases, COP costs cases, Detailed summary, LPA cases - all, Transcript


BB v AM [2010] EWHC 1916 (Fam)(1) BB was not ineligible to be deprived of her liberty within the meaning of Case E of MCA 2005 sch 1A as the psychiatric evidence was that the criteria under s2 or s3 MHA were not made out. (2) In relation to whether or not there was a deprivation of liberty: on one hand (a) BB was under sedation; staff exercised control over her care, movements, assessments and treatments; staff also exercised control over her residence and the contacts she had with other people; her family were hostile to her placement; the court was refusing to sanction the discharge of BB into the care of her parents pending the conclusion of investigations being carried out by the police; on the other hand (b) BB was apparently happy where she was; she had a degree of freedom within the hospital; in addition if she asked to leave, she was allowed to do so, although only under the supervision of accompanying staff; in conclusion (c) she was being deprived of her liberty as she was away from her family, in an institution under sedation in circumstances in which her contact with the outside world was strictly controlled, her capacity to have free access to her family was limited, now by court order, and her movements were under the strict control and supervision of hospital staff. 2010‑08‑09 22:57:10 2010 cases, Deprivation of liberty, Detailed summary, Missing from Bailii, Transcript


Re MN [2010] EWHC 1926 (Fam)Whether (and, if so, according to what criteria) the Court of Protection should recognise and enforce an order of a court of competent jurisdiction in California requiring the return of MN to that state. (1) The basis of jurisdiction is habitual residence: the key to that decision is whether the agent (like an English deputy) had authority to remove MN to England. (2) If she had, then MN is likely habitually resident in England and the English court has jurisdiction. The Californian order could only be enforced if indicated by a full best interests enquiry on the evidence. (3) If she did not have the authority, then MN remains habitually resident in California and its courts should exercise primary jurisdiction. The Californian order would likely be recognised and enforced, unless the carrier or the independent doctor advised otherwise; the best interests enquiry would be confined to the journey; however, a full best interests jurisdiction could be adopted at the invitation of the Californian court. 2010‑08‑09 22:39:36 2010 cases, Detailed summary, Missing from Bailii, Other capacity cases, Transcript


G v E, Manchester City Council and F [2010] EWHC 2042 (Fam)(1) The arguments in favour of publication of the local authority's name (openness and accountability) were truly compelling: they amounted to a "good reason" and the balancing exercise came down in favour of publication. It would be a different matter if there was any significant risk that the family might be identified, but Manchester is a large city. (2) It would inappropriate and unfair to name the social workers, because responsibility for what went wrong rested at a much higher level, including the failure to provide any or any adequate training on the introduction of the DOLS. (3) Neither the company running the establishment nor its manager would be identified: (a) they were not represented when the criticisms were made or identification was discussed; (b) it had not been necessary to make findings on the criticisms, the appropriate course being for the OS to raise the issue with the CQC which has some responsibility for such establishments; and (c) crucially, it would lead to a significant risk of the family being identified. (4) In an unreported judgment in May it was ordered that E should return to F's care immediately, and residence and family contact there had been successful. (5) A further judgment will be delivered dealing with: (a) arrangements as to E's future care; (b) whether to appoint G and F as deputies; and (c) whether the OS should be replaced as E's Litigation Friend. (6) A further hearing will deal with: (a) whether the Court of Protection can award damages for human rights breaches; if so, whether to do so; if not, whether to leave or transfer that claim to another jurisdiction; and (b) whether to make a contact order against MCC and if so on that terms. 2010‑08‑04 22:36:32 2010 cases, Deprivation of liberty, Detailed summary, Transcript


Re HM; PM v KH [2008] EWHC 2824 (Fam)It was in the best interests of a young lady without capacity to determine questions of treatment, care and medical treatment to reside at a specialist placement rather than with her father. 2010‑07‑20 16:47:50 2008 cases, Best interests, Detailed summary, Missing from Bailii, Transcript


G v E [2010] EWCA Civ 822The judge was right to reject the appellant's submission that Article 5 places distinct threshold conditions which have to be satisfied before a person lacking capacity can be detained in his best interests under the MCA 2005. The MCA generally, and the DOLS in particular, plug the Bournewood gap and are Article 5 compliant. 2010‑07‑18 00:30:09 2010 cases, Deprivation of liberty, Detailed summary, Transcript


R (OM (Algeria)) v SSHD [2010] EWHC 65 (Admin)OM was a failed asylum seeker facing deportation at the end of a criminal sentence. The Secretary of State's operational guidance stated that the mentally ill are normally considered suitable for detention in only very exceptional circumstances: he was unable to justify the detention according to this policy, and therefore it was unlawful. Detention was also unlawful because the claimant had not been notified of his in-country right of appeal. 2010‑07‑12 20:13:27 2010 cases, Detailed summary, Repatriation cases, Transcript


R (Smith) v Secretary of State for Defence [2010] UKSC 29 — The ECHR does not apply to soldiers serving abroad. 2010‑07‑09 20:36:58 2010 cases, Detailed summary, ICLR summary, Inquests, Transcript


R (Noone) v HMP Drake Hall [2010] UKSC 30In calculating release dates, the provisions of the Criminal Justice Act 1991 apply to sentences of under 12 months provided that these are not imposed concurrently or consecutively with sentences of 12 months or over, and the CJA 2003 apply to sentences of under 12 months that are imposed concurrently or consecutively with sentences of 12 months or over. 2010‑07‑09 20:19:44 2010 cases, Detailed summary, ICLR summary, Prison law cases, Transcript


Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698Health trusts do not have the Article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a "real and immediate" risk of death. [Caution.] 2010‑07‑08 22:17:17 2010 cases, Detailed summary, ICLR summary, Inquests, Transcript


Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam)The circumstances of the domestic care of A and C by their families in the family home did not involve a deprivation of liberty engaging the protection of Article 5. 2010‑07‑08 21:55:07 2010 cases, Deprivation of liberty, Detailed summary, Transcript


TTM v LB Hackney [2010] EWHC 1349 (Admin)(1) There was a division of opinion in the treating team so it was considered ‘impracticable’ to obtain two medical recommendations from doctors with previous acquaintance of the patient: this was lawful as a reasonable and proper exercise of judgment of what was in the patient’s best interests. (2) The hospital were entitled to rely on the s6(3) protection (that any application which appears to be duly made etc may be acted upon without further proof) because the managers were entitled to rely on the AMHP’s confirmation that there had been no objection from the NR and because there had been no breach of s12(2). (3) As an AMHP is treated as acting on behalf of the LSSA the relevant council is vicariously liable for any lack of care or bad faith on the part of an AMHP: the council was therefore the correct defendant. (4) The proposed claim was based on the AMHP’s mistaken belief that the NR had not objected. A duty of care existed but there was no reasonable prospect of success in any negligence claim: therefore leave under s139(2) was not given. (5) Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow. The claimant’s detention was lawful until prospectively declared unlawful in the habeas corpus proceedings. It followed that the detention was not unlawful in domestic law so that there was no breach of Article 5, and so no claim for compensation under Article 5(5). (6) In the circumstances there is no Convention incompatibility in either s139 or s6(3). [Caution.] 2010‑06‑12 20:31:05 2010 cases, Consulting NR, Detailed summary, Miscellaneous, Transcript


R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)RB was conditionally discharged with a condition that he should not leave a care home without an escort; the MoJ sought a review on the basis that the condition constituted a deprivation of liberty and there was therefore no lawful discharge; the Regional Tribunal Judge set aside the conditional discharge, remitted the case to the First-tier Tribunal, and refused permission to appeal to the Upper Tribunal. (1) It is only appropriate for the First-tier Tribunal to exercise its set-aside powers where there has been a clear error of law; where the legal points are contentious the case should be allowed to proceed to the Upper Tribunal. (2) The RTJ's decisions were quashed/set aside, and permission was given to the MoJ to appeal against the conditional discharge. 2010‑06‑09 23:29:56 2010 cases, Detailed summary, Discharge conditions, Transcript, Upper Tribunal decisions


R (MJ (Angola)) v SSHD [2010] EWCA Civ 557(1) The MHA regime and the Immigration Act 1971 run in parallel in relation to a person who is both an immigrant and mentally ill, so the SSHD was entitled to decide to deport MJ notwithstanding that he was still subject to s37/41. (2) There is no express statutory limitation on the SSJ's power to discharge under the MHA; it can be used in order to facilitate deportation; the protection for the patient is that the power must be exercised rationally and without breaching his Convention rights. (3) For a settled migrant who has lawfully spent all or most of his childhood in the host country, especially where he committed the relevant offences as a juvenile, very serious reasons are required to justify expulsion; the AIT had not appreciated that very serious reasons were needed so the appeal was granted. 2010‑05‑22 08:57:19 2010 cases, Detailed summary, ICLR summary, Repatriation cases, Transcript


Re MP; LBH v GP (2009) FD08P01058(1) MP, who suffered from a learning disability and lacked capacity as to residence and contact, was removed from his mother's accommodation and conveyed by the police to a care home. On the facts, there was presently no deprivation of liberty and it was in MP's best interests to remain at the care home with the existing contact regime continuing. (2) Guidance was given, subsequently approved by the President of the Family Division and Court of Protection, for cases where a vulnerable or incapacited adult requires to be removed from premises with the help of the police. 2010‑05‑13 20:00:21 2009 cases, Deprivation of liberty, Detailed summary, Transcript


Re HM; PM v KH [2010] EWHC 870 (Fam)The case involved the abduction of P by his father to Israel in contravention of a best interests declaration. The judgment describes the various orders which were made to secure the return of P. Discussion of court's powers in relation to adults lacking capacity. The court has exactly the same powers when it is concerned to locate the whereabouts of a missing or abducted adult lacking capacity as when concerned to locate the whereabouts of a missing or abducted child. 2010‑05‑11 21:48:31 2010 cases, Best interests, Detailed summary, Transcript


Link Lending Ltd v Bustard sub nom Link Lending Ltd v Hussein [2010] EWCA Civ 424(1) The defendant to these possession proceedings was "a person in actual occupation" for the purpose of entitlement to an overriding interest within the meaning of the Land Registration Act 2002 despite her involuntary residence in hospital under s3 MHA, as there was a sufficient degree of continuity and permanence of occupation and a persistent intention to return home when possible. (2) There is no single test but relevant factors from case law are: the degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it, and the nature of the property and personal circumstances of the person. 2010‑05‑01 23:20:03 2010 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


G v E [2010] EWHC 621 (Fam)E lacked capacity and was being deprived of his liberty at a residential unit by the local authority. They had breached his Article 5 rights by doing so without seeking a DOLS authorisation or court order, and had breached his Article 8 rights by actions including a failure properly to involve his carer. However, the court authorised continuing deprivation of liberty at the residential unit pending the final hearing as this was in his best interests. There is no threshold condition for an order under s16 depriving someone of his liberty, other than that P lacks the relevant capacity. When considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. Hearsay from an incompetent witness is admissible but no weight would be given to E's statements. 2010‑03‑31 22:32:14 2010 cases, Deprivation of liberty, Detailed summary, Transcript


Independent News and Media Ltd v A [2010] EWCA Civ 343The judge's decision (that designated representatives of the media could attend the hearing in the Court of Protection and thereafter apply to the judge for authorisation to publish information disclosed in the proceedings) was upheld, but his approach (that article 10 was not engaged when the media's application was made but rather when the court decided that there was "good reason" under Rule 93(1)(a)) was not. 2010‑03‑31 22:01:28 2010 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript


Key v Key [2010] EWHC 408 (Ch)Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval. 2010‑03‑06 16:26:15 2010 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript


CV v South London and Maudsley NHS Foundation Trust [2010] EWHC 742 (Admin)(1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case 2010‑02‑09 19:11:27 2010 cases, Consulting NR, Detailed summary, Transcript


R (Degainis) v SSJ [2010] EWHC 137 (Admin)In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of Article 5(4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 HRA 1998 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness of the original offence is not. 2010‑02‑05 20:51:38 2010 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript, Tribunal delay


R (D and M) v SSWP [2010] EWCA Civ 18(1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date. [Caution.] 2010‑01‑27 19:00:36 2010 cases, Detailed summary, ICLR summary, Transcript, Welfare benefits cases


Re Allen (2009) COP 21/7/09Under MCA 2005 s4(7) any best interests decision-maker "must take into account, if it is practicable and appropriate to consult them, the views of" various categories of individuals. Where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P’s best interests, and it would be neither practicable nor appropriate to embark on that process in the first place. 2009‑12‑14 20:31:21 2009 cases, Best interests, Detailed summary, No transcript


R (Miller) v Independent Assessor [2009] EWCA Civ 609The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder). 2009‑12‑09 23:35:49 2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript


GJ v The Foundation Trust [2009] EWHC 2972 (Fam)(1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. (2) In deciding whether P is within the scope of the MHA, the eligibility assessor must ask whether, in his own opinion, P could be detained under the MHA. (3) With respect to objections, what matters is whether P objects generally to what is proposed. (4) The correct overall approach for the eligibility assessor is to (a) look at the reality of the situation, rather than the words of the authorisation, (b) separate the mental treatment from the purely physical treatment, and (c) apply a "but for" test, i.e. whether, but for the physical treatment, P should be detained (and whether the only effective reason for detention is physical treatment); if "no" (and "yes", respectively) then P isn't ineligible for DOLS. (5) On the facts, but for his diabetes, P would not have been detainable, so he was not ineligible. It is worth reading the full summary page and the judgment. 2009‑11‑24 07:53:19 2009 cases, Detailed summary, Other capacity cases, Transcript


EBR Attridge Law LLP v Coleman (2009) UKEAT 0071/09The Disability Discrimination Act 1995 should be interpreted so as to prohibit discrimination against employees who, although not themselves disabled, were treated less favourably or harassed on the ground of their association with a person who was disabled. 2009‑11‑09 21:28:38 2009 cases, Detailed summary, Disability discrimination, ICLR summary, Transcript


KD and LD v LB Havering (2009) EW Misc 7 (EWCOP)At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article 6, and arguably Article 8, in that P's mother was not in court to provide instructions and there was a distinct possibility that she lacked litigation capacity. Considering the difficulties involved, including delay, it was no answer to allow the mother to bring parallel proceedings by way of an application to vary. (4) It was procedurally unfair to to proceed without awaiting the OS's instructions. (5) The judge was minded to consider that the outstanding expert report was no longer appropriate, but it was a wrongful exercise of discretion and procedurally unfair not to allow representations as to why nonetheless it was appropriate to wait. (6) It was wrong to make such a sweeping order delegating unfettered future management power, without the necessary review procedures; it was particularly wrong to do so without warning to or hearing from the parties, which in the mother's case was a disproportionate breach of Article 8. (7) The personal welfare deputy was appointed without a proper examination of the statutory and procedural requirements, in breach of the procedural rights of the mother as they then appeared; it was also unsatisfactory that instructions from the OS were not awaited. 2009‑10‑29 20:34:57 2009 cases, Best interests, Detailed summary, Transcript


Anderson v Scottish Ministers (2001) UKPC D5Section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 is not incompatible with Article 5(1)(e): the continued detention of restricted patients in a hospital on grounds of public safety is not dependent on their condition being capable of treatment. 2009‑10‑24 10:56:05 2001 cases, Detailed summary, Transcript, Treatability test and psychopathic disorder


R (E) v Governing Body of JFS (No 2) [2009] UKSC 1If the LSC decide fund a successful litigant, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party; the LSC's decision not to continue funding without a protective costs order against the appellent was unlawful and public funding was therefore to continue. 2009‑10‑24 09:35:01 2009 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


R v Ghulam [2009] EWCA Crim 2285Under CPIA 1964 s4 the court must not make a determination that the defendant is unfit to plead without medical evidence from two medical practitioners; however, where the medical evidence of unfitness to plead is only available from one medical practitioner, the judge is not bound to adjourn the trial but can make a determination that the defendant is fit to plead. 2009‑10‑24 08:54:16 2009 cases, Detailed summary, ICLR summary, Transcript, Unfitness and insanity cases


Bury Metropolitan Borough Council v D [2009] EWHC 446 (Fam)It was lawful for the local authority to remove a child from its mother immediately at birth without informing the mother of its intentions. 2009‑10‑08 18:51:17 2009 cases, Best interests, Detailed summary, Transcript


R (Purdy) v DPP [2009] UKHL 45(1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy. 2009‑08‑01 18:38:02 2009 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript


Re Brammall; W Primary Care Trust v TB [2009] EWHC 1737 (Fam)TB was eligible to be deprived of her liberty under the Mental Capacity Act 2005 (either under DOLS provisions or s16 court order): she might have been ineligible under Case E, but she was not a "mental health patient" because her care home did not fall within the definition of a hospital. 2009‑07‑23 22:08:17 2009 cases, Deprivation of liberty, Detailed summary, Transcript


R (Betteridge) v Parole Board [2009] EWHC 1638 (Admin)(1) Article 5(4) requires a speedy hearing to determine the lawfulness of detention, independently of any consideration of arbitrariness under Article 5(1). (2) The delay in listing the claimant's Parole Board hearing, due to a lack of panel members, breached his Article 5(4) right to a speedy hearing; however, as there had been no chance of release, there was no claim in damages. (3) The steps being taken to fix the systemic failures, and the ongoing problems, mean that further Article 5(4) delay claims are not appropriate unless in very special circumstances. 2009‑07‑07 21:32:08 2009 cases, Detailed summary, Prison law cases, Transcript


R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623An inquest into the death of a patient who was detained in a hospital under s3 had to satisfy the enhanced requirements of Article 2 2009‑07‑05 17:10:55 2009 cases, Detailed summary, ICLR summary, Inquests, Transcript


Gray v Thames Trains Ltd [2009] UKHL 33The principle of ex turpi causa prevented the claimant from recovering for damage which was the consequence of his committing the offence of manslaughter. 2009‑06‑21 22:24:07 2009 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


R (Takoushis) v HM Coroner for Inner North London [2005] EWCA Civ 1440Where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. The present system complied with Article 2. Inquest verdict quashed and new inquest ordered. 2009‑04‑12 22:13:23 2005 cases, Detailed summary, Inquests, Miscellaneous, Transcript


R (Fitzpatrick) v MHRT (2005) CO/2778/2004Delay between deferred conditional discharge and eventual absolute discharge; Tribunal conceded judicial review against conditional discharge decision made without hearing, but disputed damages; damages of £4000 awarded by judge (frustration and distress, probability of earlier discharge). 2009‑04‑12 20:13:37 2005 cases, Detailed summary, No transcript, Tribunal delay


Wall v Sweden 41403/98 [1997] ECHR 201The detention of an alcoholic under Article 5(1)(e) did not breach Article 5(1): the authorities continuously considered less severe measures, they strictly scrutinised the necessity for subjecting the applicant to compulsory care, and the total length of the applicant’s detention was not extended beyond a period reasonable to the aim pursued by domestic law, namely to motivate the applicant in such a way that he become capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse. 2009‑04‑10 21:58:49 1997 cases, Detailed summary, ECHR, Transcript


Varbanov v Bulgaria 31365/96 [2000] ECHR 457(1) Violation of Article 5(1): Deprivation of liberty was not justified under Art 5(1)(e) and had no basis in domestic law which, moreover, did not provide the required protection against arbitrariness as it did not require the seeking of a medical opinion. (2) Violation Article 5(3): The applicant could only appeal to prosecutors and so was deprived of his right to have the lawfulness of his detention reviewed by a court. 2009‑04‑10 21:52:47 2000 cases, Detailed summary, ECHR, Transcript


Naumenko v Ukraine 42023/98 [2004] ECHR 68Enforced medical treatment of prisoner did not violate Article 3. 2009‑04‑10 15:12:37 2004 cases, Challenges to compulsory treatment, Detailed summary, ECHR, Transcript


Keenan v UK 27229/95 [2001] ECHR 242The applicant's son had committed suicide while serving a prison sentence. Her Article 2 complaint was rejected (the authorities responded in a reasonable way to his conduct, placing him in hospital care and under watch when he evinced suicidal tendencies) but her Article 3 complaint was accepted (lack of effective monitoring and informed psychiatric input into his assessment and treatment, together with the imposition of punishments including seven days' segregation). 2009‑04‑10 14:06:42 2001 cases, Detailed summary, ECHR, Transcript


Clunis v UK 45049/98 [1998] ECHR 116The failures in providing care prior to the claimant's offence did not breach Article 8 as there was no inevitable link between the failures and the offence; although he lost his negligence action against the local authority (partly on the basis of ex turpi causa) there had been no breach of Article 6 in the procedure. 2009‑04‑09 21:55:43 1998 cases, Detailed summary, ECHR, Transcript


R v Wood (No 2) [2009] EWCA Crim 651The fact that a defendant was convicted of manslaughter on the grounds of diminished responsibility did not preclude a sentence of imprisonment for life. In assessing the seriousness of such an offence with a view to fixing a minimum term, the court could take into account the guidance in Sch 21 of the Criminal Justice Act 2003, subject to the specific element of reduced culpability consequent on diminished responsibility. [ICLR] 2009‑04‑05 10:35:31 2009 cases, Detailed summary, Diminished responsibility cases, ICLR summary, Transcript


R v Wood (No 1) [2008] EWCA Crim 1305In addressing a plea of diminished responsibility in the context of alcohol dependency syndrome, the jury must consider whether it had been established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness, and, if that were established, whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. [ICLR] 2009‑04‑05 10:35:22 2008 cases, Detailed summary, Diminished responsibility cases, ICLR summary, Transcript


Re S and S (Protected Persons); C v V [2008] EWHC B16 (Fam)(1) Under the Mental Capacity Act 2005, there is a presumption in favour of implementing P's wishes unless they are irrational, impractical, or irresponsible (with reference to resources), or there is a sufficiently countervailing consideration. (2) The appointment of donees jointly (rather than jointly and severally) under a power of attorney created the presumption that the donors wanted decisions made jointly or by neither appointee. (3) Mr and Mrs S's wishes (that if both daughters were unable to act jointly then neither should act singly) would be implemented, and an independent Deputy would be appointed. 2009‑02‑22 14:14:41 2008 cases, Best interests, Detailed summary, Transcript


R (Purdy) v DPP [2009] EWCA Civ 92The absence of a crime-specific policy relating to assisted suicide (identifying the facts and circumstances where it will not be in the public interest to prosecute) does not make the operation and effect of section 2(1) of the Suicide Act 1961 Act unlawful nor mean that it is not in accordance with law for the purposes of Article 8(2). [Overturned on appeal.] 2009‑02‑22 12:53:00 2009 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript


Re P [2009] EWHC 163 (Ch)The Court of Protection is not bound by the substituted judgment approach from the previous legislation, including the Mental Health Acts 1959 and 1983, but must apply the Mental Capacity Act 2005 best interests approach (the general philosophy of which is discussed) 2009‑02‑11 01:13:49 2009 cases, Detailed summary, ICLR summary, Statutory will cases, Transcript


R (B) v DPP [2009] EWHC 106 (Admin)The decision to discontinue a prosecution for wounding with intent and witness intimidation, on the basis that the victim's mental illness meant he could not be placed before the jury as a credible witness, was irrational on the facts; s49A Disability Discrimination Act 1995 added nothing to the ordinary position under public law principles; there had been a breach the positive obligation under Article 3 (which includes the duty to provide a legal system for bringing to justice those who commit serious acts of violence against others) and £8000 was awarded in compensation. 2009‑02‑02 22:06:04 2009 cases, Detailed summary, ICLR summary, Other criminal law cases, Transcript


Austin v Commissioner of Police of the Metropolis [2009] UKHL 5(1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical injuries and property damage therefore did not engage Article 5; if Article 5 had been engaged then the deprivation of liberty could not have been justified under Article 5(1)(a) to (e) for each individual in the crowd. 2009‑01‑29 23:21:14 2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Transcript


R (Black) v SSJ [2009] UKHL 1The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court. 2009‑01‑28 22:33:40 2009 cases, Detailed summary, ICLR summary, Prison law cases, Transcript


Adorian v Commissioner of Police of the Metropolis [2009] EWCA Civ 18Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court. 2009‑01‑28 22:00:30 2009 cases, Detailed summary, ICLR summary, Miscellaneous, Transcript


R (Abu-Rideh) v SSHD [2007] EWHC 2237 (Admin)The claimant's appeal under s10(1) of the Prevention of Terrorism Act 2005 against the modification of his control order (that the cumulative effect in his changed circumstances, in particular because he now lives alone and his perceived declining mental health, had led to breaches of Articles 5, 3 and 8) failed. 2009‑01‑19 20:58:06 2007 cases, Deprivation of liberty, Detailed summary, Transcript


A v A Health Authority [2002] EWHC 18 (Fam)The nature of the case determined the court in which a case concerning the welfare of children or incompetent adults should be litigated: the review of a decision of a public authority by way of JR in the Admin Court; best interests cases in the Family Division. In best interests proceedings the court cannot compel a public authority to exercise its public law functions in a certain way. 2008‑12‑30 22:08:33 2002 cases, Best interests, Detailed summary, Missing from Bailii, Transcript


Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549, (2000) 1 FCR 193It would not be in the best interests of A, who lacked capacity to make the decision, to be sterilised, while the current level of supervision continued; best interests are not limited to best medical interests but encompass medical, emotional and all other welfare issues. 2008‑12‑30 20:30:38 2000 cases, Best interests, Detailed summary, Transcript


Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254(1) The operation to separate Siamese twins, both of whom would otherwise shortly die, would clearly be in Jodie's best interests, but would kill Mary; the court must perform a balancing exercise in determining what was in the twins' best interests, regardless of the parents' religious objections; the scales come down heavily in Jodie's favour. (2) The operation would be lawful in criminal law, under the doctrine of necessity, and as the primary purpose was not to kill Mary 2008‑12‑30 19:19:33 2000 cases, Best interests, Detailed summary, Transcript


R (MN) v MHRT [2008] EWHC 3383 (Admin)Tribunal application made under s70 when patient subject to s47/49 (restricted transfer direction) lapses when s49 (restriction direction) lapses; to avoid delay, the application can be treated as if it were an application under s69(2)(a). 2008‑12‑22 22:41:33 2008 cases, Change of status after application made, Detailed summary, Transcript


Re C (Mental Patient: Habeas Corpus) [2002] EWHC 243 (Admin)The application for the issue of a writ of habeas corpus was premature and without any prospect of success; the proper course was to judicially review the Tribunal decision 2008‑12‑21 15:38:30 2002 cases, Detailed summary, Transcript, Unimportant cases


S v Floyd [2008] EWCA Civ 201Floyd's decision to withhold payment of rent had nothing to do with his disablity, so the Disability Discrimination Act 1995 could not be used to resist a possession order under the Housing Act 1988. 2008‑12‑14 21:35:12 2008 cases, Detailed summary, Disability discrimination, Transcript


R (DB) v Nottingham Healthcare NHS Trust [2008] EWCA Civ 1354A hospital order under s37 ceases to have effect if the offender is not admitted to the named hospital within 28 days; unless the offender is to be immediately conveyed from court to hospital, the "place of safety" power in s37(4) must be expressly exercised. 2008‑12‑03 13:16:27 2008 cases, Detailed summary, Hospital order cases, Transcript


Re MAB; X City Council v MB [2006] EWHC 168 (Fam)MAB's parents had wanted to arrange a marriage for him in Pakistan. It was declared that MAB did not have capacity to marry; therefore any marriage, even if valid in Pakistan, would not be recognised as valid in English law. His parent's undertakings not to take him to a wedding or out of Britain were accepted and his passport was returned. Any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This involved a low level of understanding, which must be same in its essentials as required by the criminal law under the Sexual Offences Act 2003. 2008‑11‑29 13:45:10 2006 cases, Capacity to consent to sexual relations, Detailed summary, Transcript


R (F) v SSJ [2008] EWHC 2912 (Admin)The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.] 2008‑11‑28 18:01:23 2008 cases, Detailed summary, Transcript, Unlawful detention cases


Brand v The Netherlands 49902/99 [2004] ECHR 196Transfer from prison to a clinic was delayed for 14 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded. 2008‑11‑28 07:05:25 2004 cases, Detailed summary, ECHR, ECHR deprivation of liberty cases, Transcript


R (IT) v SSJ (2008) EWHC 1707Recall of patient unlawful where no new relevant information available to MoJ after discharge by MHRT; the element of the discharge plan requiring leave to be escorted was a temporary measure and so did not amount to continuing deprivation of liberty. 2008‑11‑03 16:41:04 2008 cases, Detailed summary, Discharge conditions, Ministry of Justice, Transcript, Unlawful detention cases


R (Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545 — The decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8, and he is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out. (...) 2008‑10‑15 19:33:28 2001 cases, Challenges to compulsory treatment, Detailed summary, Transcript


St Helens Borough Council v Manchester PCT, re PE [2008] EWCA Civ 931It was for the primary care trust acting on behalf of the Secretary of State for Health and not for the local authority to decide whether the care needs of a woman with dissociative identity disorder were primarily for health care or for care which a social services authority should provide. The trust was required to define in its decision the services which the social services authority was required to provide to the woman, whose mental and psychological conditions required constant and expensive care. It was not satisfactory for the two parties to resolve the issue by costly litigation, since the money for the care and the litigation all came from the public purse. 2008‑10‑10 18:38:49 2008 cases, Community care, Detailed summary, Permission hearings, Transcript


LLBC v TG [2007] EWHC 2640 (Fam) — Best interests/deprivation of liberty case. 2008‑10‑06 16:07:24 2007 cases, Deprivation of liberty, Detailed summary, Transcript


Bailey v Warren [2006] EWCA Civ 51PRACTICE — Parties — Mental capacity — Action for damages for personal injuries compromised by claimant before proceedings commenced — Subsequent lack of mental capacity leading to appointment of litigation friend — Whether valid approval of compromise — CPR Pt 21. The established principles relating to mental incapacity and the conduct of litigation were to be applied to the compromise of an action by a claimant before he became a “patient” within the meaning of CPR r 21.1 and which was made before any proceedings were commenced. (ICLR summary.) 2008‑09‑25 14:40:27 2006 cases, Detailed summary, Other capacity cases, Transcript


R v B [2008] EWCA Crim 1997CRIME— Plea — Fitness to plead — Two among several defendants found unfit to plead — Jury yet to be empanelled — Judge finding single jury incapable in principle of hearing case against fit and unfit defendants together — Whether such conclusion correct. Where one of several defendants in the same criminal proceedings became unfit to stand trial before a jury had been empanelled there was nothing in principle to prevent a single empanelled jury subsequently proceeding to hear the trial of all the defendants, although in the case of the unfit defendant the jury would now be looking to the question whether he had committed the actus reus of the relevant offence. 2008‑09‑23 12:11:00 2008 cases, Detailed summary, Transcript, Unfitness and insanity cases


R (A) v Harrow Crown Court [2003] EWHC 2020 (Admin)The court order detaining the claimant under s37/41 MHA 1983 following a finding of unfitness to plead was irregular (as ultra vires s5 CPIA 1964 as then enacted) and was quashed; however, the detention was in accordance with a procedure prescribed by law and was not arbitrary, so there was no breach of Article 5. 2008‑09‑22 06:13:47 2003 cases, Detailed summary, Transcript, Unfitness and insanity cases


R (Brooke) v Parole Board [2008] EWCA Civ 29The Parole Board did not have the independence from the executive that was required for its judicial role in determining whether convicted prisoners should be released on licence. 2008‑09‑21 17:24:07 2008 cases, Detailed summary, ICLR summary, Prison law cases, Transcript


KC v City of Westminster Social and Community Services Department [2008] EWCA Civ 198 — Muslim marriage where groom lacked capacity was not recognised in English law. 2008‑09‑13 07:54:46 2008 cases, Detailed summary, Other capacity cases, Transcript


R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176The statutory scheme dealing with the referral of the case of a recalled mental patient to a mental health review tribunal was not incompatible with the patient’s rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, whether because of the timescale envisaged or for lack of a right of direct access to a court. 2008‑09‑13 07:51:48 2008 cases, Detailed summary, Ministry of Justice, Transcript


Adorian v Commissioner of Police of the Metropolis [2008] EWHC 1081 (QB)Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court; Seal v. Chief Constable of South Wales Police [2007] UKHL 31 distinguished because of differences from s139 MHA 1983; permission now granted.' 2008‑09‑13 07:49:15 2008 cases, Detailed summary, Miscellaneous, Transcript


R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin)HUMAN RIGHTS — Right to respect for private and family life — Smoking ban — Claimants detainees at high security psychiatric hospital — Regulation providing mental health units temporary exemption from smoking ban — Whether regulation to be read as providing mental health units with permanent exemption — Whether interference with claimants’ Convention rights — Human Rights Act 1998, s 3(1), Sch 1, Pt 1, arts 8, 14 — Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765), reg 10(3). A provision which had the effect of prohibiting smoking in a high security psychiatric hospital was not incompatible with the human rights of detained mental patients and was not unlawful. 2008‑09‑13 07:48:22 2008 cases, Detailed summary, ICLR summary, Miscellaneous, Smoking, Transcript


London Borough of Lewisham v Malcolm [2008] UKHL 43The claim for possession under the Housing Act 1988 was not discriminatory under the Disability Discrimination Act 1995 since the landlord did not know of the disability and the tenant's schizophrenia was not causally responsible for his sub-letting of the premises in breach of tenancy. 2008‑09‑13 07:45:04 2008 cases, Detailed summary, Disability discrimination, Transcript


R v Aisling Murray [2008] EWCA Crim 1792A sentence of life imprisonment and conviction for murder was quashed, and substituted with a conviction for manslaughter on the grounds of diminished responsibility and a restricted hospital order; this was even though the appellant had pleaded guilty to murder, as her decision to plead guilty was affected by her medical condition, which also substantially reduced her responsibility for the killing. 2008‑09‑13 07:43:42 2008 cases, Detailed summary, Life sentence cases, Transcript


R (Thompson) v SSHD [2003] EWHC 538 (Admin)Home Office policy of always making restriction direction except in specified circumstances was lawful and applied lawfully in the claimant's case; no legitimate expectation arose from a civil servant's erroneous statement of the law. 2008‑09‑12 17:43:04 2003 cases, Detailed summary, Other criminal law cases, Transcript


Sheffield City Council v E [2004] EWHC 2808 (Fam)HUSBAND AND WIFE — Marriage — Capacity to marry — Alleged patient wanting to marry — Local authority wishing to prevent marriage — Whether jurisdiction to apply best interests test. Since to establish capacity to marry required only the ability to understand the nature of the marriage contract and the duties and responsibilities that normally attached to marriage, there was no jurisdiction to consider whether any particular marriage was in an alleged patient's best interests. [ICLR summary.] 2008‑09‑12 17:06:17 2004 cases, Capacity to consent to sexual relations, Detailed summary, Transcript


LGO decision: Medway Council 06/B/12248 and Wigan Metropolitan Borough Council 06/B/12247 (29/4/08) — After funding under s117. 2008‑08‑21 14:38:56 2008 cases, Detailed summary, LGO decisions, Transcript


LGO decision: North Yorkshire County Council 05/C/13158 (24/7/07) — After funding under s117 (top-ups). 2008‑08‑21 14:34:17 2007 cases, Detailed summary, LGO decisions, Transcript


LGO decision: Poole Borough Council 06/B/7542 (5/9/07) — Duties under s117. 2008‑08‑21 14:27:53 2007 cases, Detailed summary, LGO decisions, Transcript


LGO decision: Bath and North East Somerset Council 06/B/16774 (12/12/07) — Duties under s117. 2008‑07‑31 12:14:55 2007 cases, Detailed summary, LGO decisions, Transcript


R (Care Principles Ltd) v MHRT; R (AL) v Care Principles Ltd [2006] EWHC 3194 (Admin)The MHRT's decision to discharge from s2 was not flawed; the subsequent decision to re-detain under s3 was unjustified and unlawful. 2008‑02‑22 21:11:17 2006 cases, Detailed summary, Re-sectioning after hearing, Transcript


R (N) v Dr M [2002] EWCA Civ 1789 — Challenge to compulsory treatment. 2008‑02‑22 15:29:10 2002 cases, Challenges to compulsory treatment, Detailed summary, Transcript


London Borough of Lewisham v Malcolm [2007] EWCA Civ 763A possession order cannot be made if it would amount to unlawful discrimination under the DDA 1995, even where the court would otherwise have no discretion to refuse the order. 2008‑02‑22 14:32:44 2007 cases, Detailed summary, Disability discrimination, Transcript


Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375Appeal allowed: it was not necessary to show gross negligence. "In order to establish a breach of article 2, on the assumed facts the appellant must show that at the material time the Trust knew or ought to have known of the existence of a real and immediate risk to the life of Mrs Savage from self-harm and that it failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk." 2007‑12‑27 18:04:11 2007 cases, Detailed summary, Miscellaneous, Transcript


R (SSHD) v MHRT, re JC [2007] EWHC 2224 (Admin)Deferred conditional discharge decision was unlawful: (1) the decision on the statutory criteria was irrational; (2) the conditions were unlawful - by requiring satisfactory trial leave and consent from third parties they were pre-conditions to discharge rather than conditions of discharge. 2007‑10‑30 21:27:25 2007 cases, Detailed summary, Reasons, Transcript


R (B) v MHRT [2003] EWHC 815 (Admin)It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness 2007‑09‑16 11:59:57 2003 cases, Detailed summary, Powers, Transcript


R (Brooke) v Parole Board [2007] EWHC 2036 (Admin)The Parole Board lacks independence for the purposes of Article 5(4) ECHR because of the sponsorship relationship with the Ministry of Justice which is a party to its proceedings. 2007‑09‑16 11:05:58 2007 cases, Detailed summary, Prison law cases, Transcript


R (Miah) v SSHD [2004] EWHC 2569 (Admin)Criminal sentence continues after s47 (notional s37) transfer, and after discharge from section; as does any licence period and power to recall for breach. 2007‑09‑13 21:54:33 2004 cases, Detailed summary, Prison law cases, Transcript


R (MH) v Secretary of State for the Department of Health [2005] UKHL 60Mental disorder — Mental health review tribunal — Discharge of patient — Detained patient incompetent to apply for own discharge — Extension of detention pending determination of approved social worker's application to displace nearest relative — Whether statutory scheme incompatible with patient's Convention right to liberty — Mental Health Act 1983, ss 2, 29(4) — Human Rights Act 1998, Sch 1, Pt I, art 5(4). The scheme for the review of a patient's detention under the 1983 Act was capable of being operated so as to give practical effect to the patient's right, guaranteed by art 5(4) of the European Convention on Human Rights, to take proceedings to have the lawfulness of her detention speedily decided by a court and for review thereafter at reasonable intervals. 2007‑07‑17 17:47:41 2005 cases, Detailed summary, Displacement, Transcript


Seal v. Chief Constable of South Wales Police [2007] UKHL 31MENTAL DISORDER — Leave to bring proceedings — Civil proceedings — Police officers removing claimant to place of safety — Claimant bringing action against officers without obtaining leave of High Court — Whether failure to obtain leave rendering proceedings nullity — Mental Health Act 1983, s 139(2). It was a mandatory requirement to obtain the leave of the High Court, pursuant to s 139(2) of the Mental Health Act 1983, before bringing civil proceedings in respect of any act purporting to be done in pursuance of that Act, and proceedings issued without obtaining such leave first were rendered a nullity. 2007‑07‑17 17:27:27 2007 cases, Detailed summary, Miscellaneous, Transcript


Seal v Chief Constable of South Wales Police [2005] EWCA Civ 586Mental disorder — Practice — Leave to bring proceedings — Claim by patient for damages against police officers — Failure to obtain leave to bring proceedings — Whether proceedings rendered nullity — Whether subsequent grant of leave permissible — Mental Health Act 1983, s139(2). It was a mandatory requirement to seek leave from the High Court under s 139(2) of the Mental Health Act 1983 to bring civil proceedings for actions purported to be done under that Act. Failure to seek leave rendered the proceedings a nullity. 2007‑07‑17 17:26:22 2005 cases, Detailed summary, Miscellaneous, Transcript


R (Rayner and Marsh) v SSHD [2007] EWHC 1028 (Admin)(1) Section 75 provides an independent legal device by which the detainee may appear before a judge which is not dependent on the good will of the detaining authority and thus is Article 5 compliant; in any event, the section cannot be incompatible as means exist to operate it compatibly. (2) In order for s75 to be compatible the Secretary of State ought to refer the case of a recalled patient at once (in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. (3) On the facts the delay in making the reference breached Article 5(4). 2007‑05‑20 10:43:59 2007 cases, Detailed summary, Ministry of Justice, Transcript


R (SH) v MHRT [2007] EWHC 884 (Admin)Condition "that the patient shall comply with medication" was lawful. 2007‑05‑17 21:39:39 2007 cases, Detailed summary, Discharge conditions, Transcript


R (RD) v MHRT [2007] EWHC 781 (Admin)(1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate. 2007‑04‑18 22:08:05 2007 cases, Bias, Detailed summary, Transcript


Ward v Commissioner of Police for the Metropolis [2005] UKHL 32Mental disorder — Place of safety order — Validity of detention — Warrant naming health professionals to accompany constable — Named persons absent when warrant executed — Whether warrant and execution valid — Whether power in magistrate to specify names — Mental Health Act 1983 (as amended by Police and Criminal Evidence Act 1984, s 119(1)(2), Sch 7, Pt I), s 135(1). A condition imposed by a magistrate issuing a warrant under s135 of the Mental Health Act 1983 specifying named persons to accompany the constable executing the warrant had been invalid. 2007‑02‑07 21:08:18 2005 cases, Detailed summary, Miscellaneous, Transcript


R (IH) v SSHD [2003] UKHL 59A deferred conditional discharge is a provisional decision; the MHRT can reconvene to reconsider the case. 2007‑02‑07 20:58:29 2003 cases, Deferred conditional discharge, Detailed summary, Transcript


HM v Switzerland 39187/98 [2002] ECHR 157 — HM was admitted to a nursing home because of neglect. She argued that neglect was not a ground for deprivation of liberty, and that she did not fall into the vagrancy category under Article 5(1). The ECHR held that there had been no deprivation of liberty and so no breach of Article 5(1). HM had capacity to object but was undecided; the clinic were entitled to infer consent from the lack of objection. [Summary required; detailed external summary available.] 2007‑02‑07 20:35:52 2002 cases, Detailed summary, ECHR, ECHR deprivation of liberty cases, Transcript


HL v UK 45508/99 [2004] ECHR 471 — 'Informal' compliant incapacitated patient was deprived of his liberty, with lack of procedural safeguards or access to court, in breach of Art 5(1) and (4). 2007‑02‑07 20:29:00 2004 cases, Detailed summary, ECHR, ECHR deprivation of liberty cases, Transcript


R (KB) v MHRT [2003] EWHC 193 (Admin)Damages hearing following KB and B delay cases 2007‑02‑06 18:28:06 2003 cases, Detailed summary, Transcript, Tribunal delay


R (P) v SSHD [2003] EWHC 2953 (Admin)The ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4). 2007‑01‑28 16:17:40 2003 cases, Detailed summary, Prison law cases, Transcript


JE v DE and Surrey County Council [2006] EWHC 3459 (Fam)In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority 2007‑01‑20 11:09:41 2006 cases, Deprivation of liberty, Detailed summary, Other capacity cases, Transcript


R (IH) v SSHD [2001] EWHC Admin 1037Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate. 2007‑01‑07 11:46:41 2001 cases, Deferred conditional discharge, Detailed summary, Transcript


R (M) v MHRT [2005] EWHC 2791 (Admin)There was no appearance of bias where the sentencing judge, who had imposed the hospital order with restrictions, heard the subsequent MHRT appeal; the patient knew the relevant facts and unequivocally decided not to object at the time, so had waived his right to object 2006‑12‑27 12:24:56 2005 cases, Bias, Detailed summary, Transcript


R (East London and the City MH NHS Trust) v MHRT, re IH [2005] EWHC 2329 (Admin)The Tribunal failed properly to deal with s72(2)(a) when directing discretionary discharge; should have adjourned for information to satisfy itself that appropriate aftercare would be in place; and failed to consider their s72(2) power to recommend transfer. 2006‑12‑23 11:27:16 2005 cases, Detailed summary, Reasons, Transcript


R (O) v MHRT [2006] EWHC 2659 (Admin)Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing. [Caution.] 2006‑10‑25 18:42:19 2006 cases, Detailed summary, Powers, Transcript


R (OS) v SSHD [2006] EWHC 1903 (Admin)Home Office decision not to approve unescorted community leave following MHRT deferred conditional discharge was not unlawful; HO entitled to rely upon separate factors than those considered by MHRT, including absconsion risk flowing from immigration status. 2006‑07‑30 11:40:20 2006 cases, Detailed summary, Ministry of Justice, Transcript


JT v UK 26494/95 [2000] ECHR 133Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR where reasonably objected; and to allow exclusion of certain persons from acting as NR. 2006‑05‑03 21:56:24 2000 cases, Detailed summary, Displacement, ECHR, Transcript


R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616MHRT granted absolute discharge without considering conditional discharge criteria; High Court quashed decision, so patient became detained restricted patient again; Home Office refused to grant s17 leave until next MHRT; Court of Appeal partially quashed MHRT decision but declared patient entitled to be conditionally discharged pending MHRT determination of appropriate discharge type. 2006‑05‑03 21:33:30 2005 cases, Absolute or conditional discharge, Detailed summary, Transcript


R (M) v South Thames MHRT [1997] EWHC Admin 797Tribunal application made while under s2 does not fall if the patient is subsequently placed under s3; patient maintains his separate right to apply under while s3. 2006‑04‑20 20:45:23 1997 cases, Change of status after application made, Detailed summary, Transcript


R (SR) v MHRT [2005] EWHC 2923 (Admin)MHRT application appealing against s3 falls when patient subsequently made subject to s25A; fresh application required. 2006‑04‑19 19:00:27 2005 cases, Change of status after application made, Detailed summary, Transcript


R (H) v MHRT North and East London Region [2001] EWCA Civ 415Section 73 incompatible with Article 5 because burden of proof was placed on patient. 2006‑04‑16 11:54:12 2001 cases, Burden and standard of proof, Detailed summary, Transcript


R (KB) v MHRT [2002] EWHC Admin 639Lack of speedy Tribunal hearings breached Article 5(4). 2006‑04‑16 11:46:11 2002 cases, Detailed summary, Transcript, Tribunal delay


R (Wooder) v Dr Feggetter [2002] EWCA Civ 554SOAD should give reasons. 2006‑04‑16 11:41:35 2002 cases, Challenges to compulsory treatment, Detailed summary, Transcript


R (PD) v West Midlands and North West MHRT [2003] EWHC 2469 (Admin)No appearance of bias just becuase MHRT medical member was employed by same Trust as detained the patient. 2006‑04‑16 11:30:50 2003 cases, Bias, Detailed summary, Transcript


R (Tagoe-Thompson) v The Hospital Managers of the Park Royal Centre [2003] EWCA Civ 330Panel of three hospital managers must be unanimous in order to discharge patient. 2006‑04‑16 10:59:55 2003 cases, Detailed summary, Hospital managers hearings, Transcript


R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) — Sections 26 and 29 incompatible with Article 8. 2006‑04‑15 20:00:04 2003 cases, Detailed summary, Displacement, Transcript


Reid v Secretary of State for Scotland [1998] UKHL 43(1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational. 2006‑04‑15 19:52:23 1998 cases, Absolute or conditional discharge, Detailed summary, Scottish cases, Transcript, Treatability test and psychopathic disorder


R (Huzzey) v Riverside MH Trust [1998] EWHC Admin 465Managers must consider dangerousness criterion when reviewing detention after RMO's barring order, and in almost all circumstances discharge if not satisfied of that criterion. 2006‑04‑15 19:46:53 Detailed summary, Hospital managers hearings, Other NR cases, Transcript


R (AL) v SSHD [2005] EWCA Civ 2The Secretary of State's powers to continue the recall of a patient who had originally been detained following an acquittal of murder on grounds of insanity and pursuant to s 5(1)(a) of the 1964 Act, but was recalled pursuant to s 42(3) of the 1983 Act, differed from such powers as were granted under s 37 of the 1983 Act. 2006‑04‑13 22:03:15 2005 cases, Detailed summary, ICLR summary, Other classification cases, Transcript


R (O) v West London MH NHS Trust [2005] EWHC 604 (Admin)Hospital managers are under a common law duty to provide both oral and written reasons at the time of the decison; the decision is legally defective if the reasons are inadequate; this defect cannot be cured by later evidence giving a proper explanation of the reasons; the supplementary evidence was more than mere elucidation so was not accepted. 2006‑04‑13 21:53:23 Detailed summary, Hospital managers hearings, Transcript


R (B) v Dr SS [2006] EWCA Civ 28MENTAL HEALTH — Compulsory detention — Consent to treatment — Convicted rapist detained in secure mental hospital — Refusal to consent to treatment — Whether compulsory treatment in breach of human rights — Mental Health Act 1983 (c 20), s 58 — Human Rights Act 1998, Sch 1, Pt I, arts 3, 8, 14. The compulsory treatment of a mental patient under s58(3)(b) of the Mental Health Act 1983 did not infringe the patient’s human rights under arts 3, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Provided such treatment was medically necessary, it was not necessary also to show that it was required to prevent the patient causing harm to himself or others. 2006‑04‑12 21:17:38 2006 cases, Challenges to compulsory treatment, Detailed summary, Transcript


R (B) v Dr SS [2005] EWHC 1936 (Admin) — This was the second of two JRs involving the same parties. Challenge to compulsory treatment. 2006‑04‑12 21:16:00 2005 cases, Challenges to compulsory treatment, Detailed summary, Transcript


R (K) v West London MH NHS Trust [2006] EWCA Civ 118MENTAL DISORDER — Secretary of State’s powers — Leave of absence — Patient granted leave of absence by registered medical officer — Patient wishing to make trial transfer to private sector medium security hospital — Secretary of State refusing to fund transfer — Whether Secretary of State (or his delegate) obliged to fund placement — Whether opinion of registered medical officer binding on Secretary of State — National Health Service Act 1977, s 3 — Mental Health Act 1983, s17. A mental health trust was not obliged to fund a placement for trial leave which a patient’s registered medical officer had decided under s 17 of the Mental Health Act 1983 was clinically appropriate. The opinion of a registered medical officer on a matter of clinical judgment was not binding on the Secretary of State for Health (or his delegate) performing functions under s 3 of the National Health Service Act 1977. 2006‑04‑12 20:32:19 2006 cases, Detailed summary, Ministry of Justice, Transcript


R (B) v Ashworth Hospital Authority [2005] UKHL 20A patient detained for treatment under the Mental Health Act 1983 could be treated compulsorily under s 63 of that Act for any disorder from which he suffered, and not only for the particular form of disorder from which he was classified as suffering under the application or order which authorised his detention. 2006‑04‑12 20:01:41 2005 cases, Detailed summary, ICLR summary, Other classification cases, Transcript


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