Category

Judgment available on Bailii

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

Case and summary Date added Categories
* EAT capacity and litigation friend Stott v Leadec Ltd (2020) UKEAT 263/19The Employment Appeal Tribunal adjourned for a medical report on litigation capacity and commented on the continuing lack of rules rules containing clearly defined powers in relation to proceedings involving protected parties (as defined in Part 21 of the CPR) in employment tribunals and in the EAT. 2020‑08‑29 17:25:13 Judgment available on Bailii, Cases, 2020 cases, Litigation friend cases


* Conditional discharge and DOL MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC)(1) Although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by "the different hats approach" (the same judge sitting in the COP and the FTT) or "the ducks in a row approach" (adjournment or deferred conditional discharge). (2) This involves no Article 14 discrimination in favour of incapacitous restricted patients as, under SSJ guidance, the equivalent outcome can be reached for capacitous patients by using s17 leave. (3) The FTT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. (4) The UT discharged the patient subject to conditions of residence, supervision and compliance with "all aspects of the care package" (surprisingly, as the care package would amount to a deprivation of liberty), with permission to apply to the FTT for variation on a material change in circumstances (surprisingly, as the MHA sets out when an application may be made). 2020‑07‑24 21:31:01 Judgment available on Bailii


* Insanity legislation and foreign criminals SSHD v MZ [2020] UKUT 225 (IAC)A person sentenced to a hospital order following a finding under CPIA 1964 s5(1)(b) that he "is under a disability and that he did the act or made the omission charged against him" is not subject to s117C Nationality, Immigration and Asylum Act 2002 ("Article 8: additional considerations in cases involving foreign criminals") or paragraphs A398-399 (also concerning deportation of foreign criminals) of the Immigration Rules. 2020‑07‑20 22:39:33 Judgment available on Bailii, Cases, 2020 cases, Repatriation cases


* Restricted hospital order instead of life sentence R v Cleland [2020] EWCA Crim 906Life sentence with 7-year minimum term quashed and substituted with s37/41 restricted hospital order. 2020‑07‑20 22:26:00 Judgment available on Bailii, Cases, 2020 cases, Sentence appeal cases


* Sexual relations and contact with husband Re SF [2020] EWCOP 15(1) SF lacked capacity in relation to some areas (litigation, care, residence, finances, tenancy, contact with strangers and people who are unfamiliar) but did have capacity to consent to sexual relations and to decide on contact with her husband. The psychiatric evidence was that SF would only have episodic memory ("memory for the personally experienced events of a person’s life, with retention of the details of time and situation in which they were acquired") in relation to contact with strangers, but would have semantic memory ("knowledge which is retained irrespective of the circumstances in which it was acquired [deriving] from the 'feeling' around the memory rather than the 'facts' surrounding the memory") in relation to her husband. (2) The court authorised the deprivation of liberty which existed both when living at her home and (on an interim basis until authorised by the placement) when receiving respite care at a residential supported care provision. 2020‑07‑18 20:31:17 2020 cases, Capacity to consent to sexual relations, Cases, Deprivation of liberty, Judgment available on Bailii


* Capacity to make tribunal application SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including on when the hospital managers, IMHA, or the tribunal itself should request the making of a reference. 2020‑07‑10 23:49:01 2020 cases, Cases, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


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


* Habitual residence Re QD [2019] EWCOP 56QD, who had dementia, was living in Spain with his second wife when adult children from his first marriage flew him to England by stealth. The children unsuccessfully argued that: (a) he was now habitually resident in England, so the MCA applied in the usual way; (b) removal was justified under the common law doctrine of necessity; (c) jurisdiction was established on grounds of urgency; (d) even if QD were habitually resident in Spain, orders could be made under the inherent jurisdiction. The judge therefore made a protective measures order under sch 3 MCA 2005 pending a determination by the national authorities in Spain on what should happen next. 2020‑07‑08 14:10:31 2019 cases, Cases, Foreign protective measure cases, Judgment available on Bailii


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


* Recognition of foreign protective measure Health Service Executive of Ireland v Moorgate [2020] EWCOP 12(1) The necessary criteria were met for the recognition and enforcement of protective measures contained in an order made by the Southern Irish High Court which authorised the patient's transfer from a London hospital to a specialist hospital in Leeds. (2) An appendix entitled "Domestic regimes applicable to SM and those in her position" contains the following headings: (a) Application of the MHA; (b) Hospital admission under the MHA; (c) Treatment under the MHA; (d) Representation and support; (e) Challenging detention; (f) Removal of alien patients; (g) Mental Capacity Act 2005 (excluding the provisions of Schedule 3); (h) Inherent jurisdiction of the High Court; (i) Comparison of protections under MHA and under Schedule 3. 2020‑07‑06 14:28:45 2020 cases, Cases, Foreign protective measure cases, Judgment available on Bailii


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


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


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


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


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


* Finely-balanced treatment decision QJ v A Local Authority [2020] EWCOP 3(1) This s21A appeal was adjourned for medical evidence in relation to whether QJ had capacity (a) to decide on whether to receive nutrition and hydration either orally or artificially; (b) to decide more generally on medical treatment; and (c) to decide on admission to hospital. (2) On the day of the hearing QJ had for the first time indicated a willingness to be put on a drip. Even if QJ were now found to have capacity, the case should still come back before the court because: (a) it may very well be a "finely balaced" decision (and so within Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2); and, in any event, (b) where there is already an application in relation to the central issue the matter should only be concluded within court proceedings and not left to clinical decisions. 2020‑07‑03 13:46:57 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


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


* Court of Protection permission Re D: A v B [2020] EWCOP 1(1) The appropriate threshold for permission under MCA 2005 s50 is the same as that applicable in the field of judicial review: to gain permission the claimant or applicant has to demonstrate a good arguable case. (2) In the current case, the decision to be made was "whether a good arguable case has been shown that it is in [D's] best interests for there to be a full welfare investigation of the current contact arrangements" and the judge's conclusion was: "I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted." 2020‑07‑03 10:10:38 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases


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


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


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


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


* Foreign representative powers Re GED [2019] EWCOP 52"[T]hree broad issues have been identified: (1) Is a foreign power of attorney capable of constituting a ‘protective measure’? (2) Is there a capacity threshold to the Court’s jurisdiction? (3) Where there is a valid and operable foreign power of attorney in place, is the jurisdiction of the Court of Protection under section 16 of the Mental Capacity Act 2005 limited?" 2020‑06‑20 20:55:08 2019 cases, Cases, Foreign protective measure cases, Judgment available on Bailii


* Disclosure of documents Re Z [2019] EWCOP 55"This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making of the [court's] order." 2020‑06‑20 20:39:52 2019 cases, Cases, Judgment available on Bailii, Other capacity cases


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


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


* Inquest and DOLS R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738"The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with section 5(2) of the Coroners and Justice Act 2009. ... Jackie was subject to a standard authorisation granted by Blackpool Council pursuant to the Deprivation of Liberty Safeguards set out in Schedule A1 to the Mental Capacity Act 2005. ... Jackie's circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family. She was not there for medical treatment. If she needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care." 2020‑06‑11 20:53:44 2020 cases, Cases, ICLR summary, Inquests, Judgment available on Bailii


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


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


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


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


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


* Residence and care capacity London Borough of Tower Hamlets v A [2020] EWCOP 21(1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment"). 2020‑04‑26 09:02:36 2020 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Other capacity cases


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


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


* Change in status - s3 to guardianship AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC)When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction. 2020‑04‑12 21:40:41 2020 cases, Cases, Change of status after application made, Judgment available on MHLO, Transcript, Upper Tribunal decisions, Judgment available on Bailii


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


* Secure accommodation and inherent jurisdiction A City Council v LS [2019] EWHC 1384 (Fam)"Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is 'no'." 2020‑04‑02 15:08:26 2019 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii


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


* (1) Overlap between different decisions; (2) Sex B v A Local Authority [2019] EWCA Civ 913(1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations. 2020‑04‑02 13:29:07 2019 cases, Capacity to consent to sexual relations, Cases, ICLR summary, Judgment available on Bailii


* Lawfulness and availability of treatment PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot. 2020‑04‑01 21:30:03 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Powers, Transcript, Upper Tribunal decisions


* Interim declarations under s48 MCA 2005 DA v DJ [2017] EWHC 3904 (Fam)In this case Parker J followed the approach of HHJ Marshall QC in Re F [2009] EWHC B30 (Fam)M rather than the approach of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam)B in relation to the correct approach to the threshold test for making an interim order under MCA 2005 s48 (which requires that there is "reason to believe that P lacks capacity in relation to the matter"). There is no need for the the purpose and extent of the capacity assessment to be explained to the person concerned, and the evidence does not need to go so far as to rebut the presumption of capacity. 2020‑03‑21 17:58:13 2017 cases, Cases, Judgment available on Bailii, Other capacity cases


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


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


* Lay advocates in public law family proceedings Re C (Lay Advocates) [2019] EWHC 3738 (Fam)"In my judgment that there is no material difference between the services provided by an interpreter, an intermediary or a lay advocate insofar as they each enable and support parties and witnesses to communicate and understand these proceedings. HMCTS routinely pay for the services of interpreters and intermediaries, I cannot see any principled reason why it should not also pay for the services of lay advocates in an appropriate case. ... Accordingly, I will appoint a lay advocate for the mother and a lay advocate for the father. They cost £30 per hour which I consider to be entirely reasonable. I have assessed the likely number of hours of work on this for the lay advocates to be 50 hours." 2020‑03‑13 22:08:53 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


* Force feeding under s63 MHA 1983 JK v A Local Health Board [2019] EWHC 67 (Fam)"In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s.63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder. However, that does not mean that I by any means accept that force feeding JK would be in his best interests, or critically would be "treatment" that falls within the definition in s.145(4) of the MHA, as being "to alleviate or prevent a worsening of the disorder…". It is apparent that force feeding is a highly intrusive process, which involves sedating the patient whilst the naso-gastric tube is inserted and potentially having to restrain the patient for fairly prolonged periods. This process would be extremely upsetting for any patient, but for JK with his ASD and his aversion to eating in front of other people, the process would be even more traumatic. JK said in oral evidence that he viewed the possibility as abhorrent, and it was clear from that response how incredibly upsetting for all concerned having to go through that process would be. If it came to that stage close consideration would necessarily have to be given to the terms of article 3 ECHR and the caselaw such as Herczegfalvy v Austria [1993] 15 EHRR 437 and the test of medical necessity." 2020‑03‑13 11:40:52 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Haemodialysis under s63 MHA 1983 A Healthcare and B NHS Trust v CC [2020] EWHC 574 (Fam)"By reason of the above, the Court finds that: (i) The physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC's refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983. (ii) CC's capacity to consent to dialysis treatment fluctuates, however his consent is not required in order to be treated, by way of dialysis treatment, under section 63 MHA 1983. (iii) The decision whether it is in CC's best interests to receive dialysis treatment is a matter for CC's responsible clinician (having consulted clinicians attending to his physical health, including the consultant nephrologist), subject to the supervisory jurisdiction of the Court. (iv) Section 58 has no applicability. Section 62 disapplies section 58 in urgent treatment cases such as this where treatment is immediately necessary to save CC's life, to prevent a serious deterioration of his condition, and to alleviate serious suffering. Section 63 is the appropriate course. (v) As section 63 MHA 1983 can be used as authority to provide medical treatment to CC, including by dialysis treatment and by the use of light physical restraint and chemical restraint (if required), it is unnecessary for the court to exercise its discretion and make a contingent declaration pursuant to section 15(1)(c) MCA 2005 that it is lawful to treat CC in accordance with the proposed dialysis treatment plan in the event that he lacks capacity to make a decision regarding dialysis treatment at the relevant time." 2020‑03‑13 11:34:20 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Charitable status of foundation trusts Derby Teaching Hospitals NHS Foundation Trust v Derby City Council [2019] EWHC 3436 (Ch)Seventeen NHS foundation trusts argued that, as foundation trusts, they were entitled under s43(5) Local Government Finance Act 1988 to the four-fifths reduction in non-domestic rates because they were charities and the relevant properties were wholly or mainly used for charitable purposes. The High Court answered the preliminary question "Whether the Lead Claimant is a charity for the purposes of section 43(6) of the Local Government Finance Act 1988?" in the negative. 2020‑03‑04 22:11:56 2019 cases, Cases, Judgment available on Bailii, Miscellaneous


* Sentencing and mental health R v PS [2019] EWCA Crim 2286"These three cases, otherwise unconnected, raise issues about proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders." 2020‑03‑03 09:13:41 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Sentence appeal cases


* Dental treatment - delay Cardiff and Vale University Health Board v P [2020] EWCOP 8"It might seem, from the above account, that some dental assessment was required quickly and now as long ago as November or early December 2019. Plainly, it was. But the application was only made by the Health Board on 20th February 2020. The proposed inspection and/or treatment is not to take place until early March. For anybody who has had toothache, even delay between now and then looks like an eternity. But this young man, it seems, has been suffering, and significantly so, for nearly five months. This is little short of an outrage. It is indefensible. ... An additional complication arose in November when P was taken to the local A&E by his parents with an obvious bruise to his forehead. They believed that his behaviour was so markedly changed that they feared he had some sort of concussion and may have fractured his skull. It is, to my mind, self-evident that there was an urgent medical emergency that should have been investigated within hours or days, but in fact there has, as yet, been no CT scan at all. ... It is, sadly, yet again, a situation in which there has been a fundamental failure to communicate effectively by those responsible for P's care. This message has now been the conclusion of so many reviews, including serious case reviews, that it has become almost trite. There is no point identifying lessons to be learned if they are not, in fact, learned." 2020‑02‑27 23:29:00 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Abortion Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215"The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes. ... [I]n my judgement, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy." 2020‑02‑25 11:10:15 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases


* Abortion An NHS Foundation Trust v AB [2019] EWCOP 26"This is an application by the NHS Trust for an order in respect of a 24 year old woman AB who is 22 weeks pregnant and, who the Trust say lacks capacity and in whose best interests it is said to have a termination of pregnancy. ... I would like to record my unhappiness about the lateness of this application. AB is now estimated to be 22 weeks pregnant and therefore the cut-off date under the Abortion Act 1967 of 24 weeks is imminent. ... I am acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 rights. ... In my view the balance in terms of AB's best interests lies in her having the termination." 2020‑02‑25 10:55:18 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Vulnerable witnesses Re C (Female Genital Mutilation and Forced Marriage: Fact Finding) [2019] EWHC 3449 (Fam)Paragraphs 14-18 deal with "Assessing the Evidence of Vulnerable Witnesses", including the following: "Despite my very considerable sympathy for witnesses with significant vulnerabilities such as the mother in this case, my clear view is that there is one standard of proof which applies without modification irrespective of the characteristics of witnesses, including vulnerable witnesses to whom Part 3A and PD3AA apply. I observe that many vulnerable witnesses are just as likely as anyone else either to tell the truth or to lie deliberately or misunderstand events. It would be unfair and discriminatory to discount a witness's evidence because of their inherent vulnerabilities (including mental and cognitive disabilities) and it would be equally wrong in principle not to apply a rigorous analysis to a witness's evidence merely because they suffer from mental, cognitive or emotional difficulties. To do otherwise would, in effect, attenuate the standard of proof when applied to witnesses of fact with such vulnerabilities. ... Having said that, I offer the following observations, none of them particularly novel, which might assist in assessing the evidence of vulnerable witnesses, particularly those with learning disabilities. First, it is simplistic to conclude that the evidence of such a witness is inherently unreliable. Second, it is probably unfair to expect the same degree of verbal fluency and articulacy which one might expect in a witness without those problems. Third, it is important not to evaluate the evidence of such a witness on the basis of intuition which may or may not be unconsciously biased. Finally, it is important to take into account and make appropriate allowances for that witness's disability or vulnerability, assisted by any expert or other evidence available." 2020‑02‑22 23:44:52 2019 cases, Cases, Judgment available on Bailii, Miscellaneous


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


* Appointeeship, independent appeals, litigation friends RH v SSWP [2018] UKUT 48 (AAC)AACR headnote: "Appointment to act - whether claimant with appointee precluded from bringing an appeal independently - whether First-tier Tribunal having power to appoint a litigation friend" 2020‑02‑19 23:16:46 Cases, Judgment available on Bailii, Litigation friend cases


* DOL and common law R (Jalloh) v SSHD [2020] UKSC 4"The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights. A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR." 2020‑02‑19 23:01:08 2020 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii


* Reconsideration of Parole Board decision Joseph, Application for Reconsideration by [2019] PBRA 43Unsuccessful application by prisoner with mental health background for reconsideration on basis of irrationality and procedural unfairness of Parole Board oral hearing panel's decision not to direct release on licence. 2020‑02‑19 22:52:21 2019 cases, Cases, Judgment available on Bailii, Prison law cases


* ECHR and subordinate legislation RR v SSWP [2019] UKSC 52(1) There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act 1998. (2) On the facts of this case, the public authority should disobey Regulation B13 of the Housing Benefit Regulations 2006 and retrospectively apply the Supreme Court's decision in R (Carmichael) v SSWP [2016] UKSC 58B that the "bedroom tax" was an unjustified discrimination on the ground of disability where there was a transparent medical need for an additional bedroom. 2020‑02‑10 21:24:00 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


* Reviewing appointment of legal representative SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so. 2020‑02‑06 23:08:39 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Mind summary, Powers, Transcript, Upper Tribunal decisions


* Contingent/anticipatory declarations - MCA/inherent jurisdiction - Caesarean section Guy's and St Thomas' NHS Foundation Trust v R [2020] EWCOP 4R had capacity to make decisions as to her ante-natal and obstetric care but there was a risk that she would lose capacity during labour and refuse a Caesarean section. (1) MCA 2005 s16 (Powers to make decisions and appoint deputies: general) applies only to those who currently lack capacity. (2) MCA 2005 s15 (Power to make declarations) is not so limited and so can authorise contingent declarations. (3) Deprivation of liberty cannot be authorised by s15 but the inherent jurisdiction may be utilised to fill that lacuna which would otherwise render the s15 power nugatory. 2020‑01‑30 18:54:37 2020 cases, Cases, Deprivation of liberty, Inherent jurisdiction cases, Judgment available on Bailii, Medical treatment cases


* Testamentary capacity Todd v Parsons [2019] EWHC 3366 (Ch)"The claim was opposed by the third defendant, challenging that will on the grounds of lack of testamentary capacity, want of knowledge and approval and undue influence. ... The traditional test for capacity is that laid down in Banks v Goodfellow (1870) LR 5 QB 549 ... In James v James [2018] WTLR 1313, I held that the traditional test still applied, and had not been replaced by that contained in the Mental Capacity Act 2005. Neither party argued before me that the test should now be that contained in the 2005 Act, although the third defendant reserved the right to argue otherwise on appeal. ... In my judgment the 2008 will is valid." 2019‑12‑14 23:57:03 2019 cases, Cases, Judgment available on Bailii, Testamentary capacity cases


* Proceeding in absence of solicitor and patient DA v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 348 (AAC)The tribunal refused to adjourn the case of a CTO patient who had not attended the hearing, then the solicitor left the hearing because she felt unable to represent the patient in those circumstances. (1) The tribunal's initial decision to proceed in the patient's absence referred to rule 39(1) (whether the party had been notified of the hearing or reasonable steps had been taken to notify the party of the hearing, and whether it was in the interests of justice to proceed with the hearing) and rule 39(2)(a) (whether the patient had decided not to attend the hearing or was unable to attend the hearing for reasons of ill health) but not rule 39(2)(b) (whether a rule 34 medical examination of the patient been carried out or was impractical or unnecessary). However, given the assumption that, as an expert tribunal, it will have got the law right, it was more likely than not that the tribunal decided it was impractical to carry out an examination. (2) The tribunal had not considered making an appointment under rule 11(7), but this was unnecessary as there was no indication that the patient had withdrawn her instructions or lacked capacity. (3) When the solicitor departed, it was incumbent upon the tribunal to make a fresh assessment under rule 39(1) as to whether it was in the interests of justice to proceed with the hearing. Its reasons did not mention the departure and it was unlikely that the tribunal had carried out such an assessment; even if it had done so, the lack of any explanation would have rendered the reasons inadequate. (4) The matter was remitted to the First-tier Tribunal for a re-hearing by a differently-constituted panel. 2019‑11‑18 14:48:18 2019 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Powers, Transcript, Upper Tribunal decisions


* Inherent jurisdiction or s48 interim order CD v London Borough of Croydon [2019] EWHC 2943 (Fam)(1) Cobb J discussed the inherent jurisdiction, setting out the following summary: (a) first the inherent jurisdiction may be deployed for the protection of vulnerable adults, (b) secondly in some cases a vulnerable adult may not be incapacitated within the meaning of the 2005 Mental Capacity Act but may nevertheless be protected under the inherent jurisdiction; (c) third that in some of those cases capacitous individuals may be of unsound mind within the meaning of article 5(i)(e) of the European Rights Convention; (d) fourth, in exercising my powers under the inherent jurisdiction I am bound by the European Convention and the case law under the convention and must only impose orders that are necessary and proportionate and at all times have proper regard to the personal autonomy of the individual; and (e) fifth and finally, that in certain circumstances it may be appropriate for a court to take or maintain interim protective measures while carrying out all necessary investigations. (2) In the end he made an interim order under MCA 2005 s48 enabling the Local Authority to gain access to CD's accommodation in order to provide appropriate care and make it safe for human habitation. (3) CD was a vulnerable adult but the order was made under the MCA because the judge was "satisfied that it is more appropriate, where statute provides a route, that the statute is used". 2019‑11‑03 23:42:40 2019 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Withdrawal of life-sustaining treatment - transfer to Italy Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 (Admin)This judgment related to: (a) the child's (Tafida's) judicial review of the Trust's decision not to agree to transfer her to an Italian hospital; (b) the Trust's application for a specific issue order under s8 Children Act 1989, and for an inherent jurisdiction declaration, that it was in the child's best interests for life-sustaining treatment to be withdrawn. Both applications were dismissed, with the effect that one of the hospitals had to continue life-sustaining treatment and, there being no justification for interfering with Tafida's right (under Article 56 Treaty for the Functioning of the European Union) to receive treatment in another EU state, it was anticipated that the transfer would take place. The judgment provides guidance on dealing with a request by parents of an EU citizen child for transfer for medical treatment in another Member State. 2019‑10‑17 22:42:09 2019 cases, Cases, Deprivation of liberty - children, Inherent jurisdiction cases, Judgment available on Bailii, Medical treatment cases


* Sentence appeal - s45A R v Yuel [2019] EWCA Crim 1693(1) The appellant accepted that the s45A hybrid order was reasonable in the circumstances. The court discussed the mental health sentencing regime (including s45A and restricted hospital orders) at paragraphs 44-47. (2) The trial judge's sentence was 11 years' imprisonment for each of six rapes and three years for breach of a Sexual Harm Prevention Order, to be served concurrently.On appeal this was increased to 14 years with a five-year extended licence period. 2019‑10‑17 22:09:58 2019 cases, Cases, Hybrid order cases, Judgment available on Bailii


* Inherent jurisdiction prevents elderly man from living with son Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam)"The essence of his vulnerability is, in fact, his entirely dysfunctional relationship with his son ... Mr Meyers, I am satisfied, is entirely capable of and has the capacity ... for determining where he wishes to reside and with whom. ... I instinctively recoil from intervening in the decision making of a capacitious adult ... Here Mr Meyers' life requires to be protected and I consider that, ultimately, the State has an obligation to do so. Additionally, it is important to recognise that the treatment of Mr Meyers has not merely been neglectful but abusive and corrosive of his dignity. To the extent that the Court's decision encroaches on Mr Meyers' personal autonomy it is, I believe, a justified and proportionate intervention. The preservation of a human life will always weigh heavily when evaluating issues of this kind. ... The objective here ... is that Mr Meyers be prevented from living with his son, either in the bungalow or in alternative accommodation. I do not compel him to reside in any other place or otherwise limit with whom he should live. ... The impact of the Court's intervention is to limit Mr Meyers's accommodation options but it does not deprive of his physical liberty which is the essence of the right guaranteed by Article 5. ... It is also necessary to restrict the extent of Mr Meyers's contact with his son in order to keep him safe. ... To the extent that this interferes with his Article 8 rights it is, again as I have indicated above, a necessary and proportionate intervention. ... The ideal solution here, it seems to me, would be for Mr Meyers to return to his bungalow with a suitable package of support, his son having been excluded from the property." 2019‑10‑08 18:43:20 2019 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Claimant not told value of settlement DXW v PXL [2019] EWHC 2579 (QB)"In the Application Notice seeking approval of the settlement, the Claimant also sought what has been called an "EXB Order" after the judgment of Foskett J in EXB v FDZ and others [2018] EWHC 3456 (QB)M. In that case, Foskett J made what was a novel form of order to the effect that it was not in the best interests of the claimant to know the amount of a settlement of his personal injuries action in circumstances where the court had also determined that the claimant lacked capacity to decide whether or not he should know the amount of the settlement." 2019‑10‑05 21:24:52 2019 cases, Cases, Judgment available on Bailii, Other capacity cases


* Validity of will Parsonage v Parsonage [2019] EWHC 2362 (Ch)" The validity of the 2011 Will is challenged by D1 on the grounds that BP lacked capacity (1) to know and understand the nature and effect of the 2011 Will, (2) to know and understand the size of her estate, and/or (3) to know and appreciate the claims to which she ought to give effect. The underlying factual basis of the challenge is the severity or extent of BP's dementia and the circumstances in which the 2011 Will was prepared and executed." 2019‑09‑16 22:39:37 2019 cases, Cases, Judgment available on Bailii, Testamentary capacity cases


* Pregnancy - OS out-of-hours representation Guy's and St Thomas' NHS Foundation Trust v X [2019] EWCOP 35(1) Official Solicitor's lack of out-of-hours service: "... I invite the Official Solicitor to urgently review this position and consider putting in place arrangements that will ensure appropriate representation out of normal court hours for those individuals who are the subject of urgent applications that potentially involve serious medical treatment. ... [E]very effort must be made to issue such applications during normal court hours." (2) Pregnancy: "Having considered the submissions of the parties there is, in my judgment, in accordance with s 48 Mental Capacity Act 2005, reason to believe that X lacks capacity in relation to the matter, namely the medical intervention that may be necessary for X to give birth to a baby who is safe and well. On the evidence the court has from Dr Y, which I accept, his assessment is X is unable to reconcile her conflicting beliefs (on the one hand of wanting a natural birth and also wanting a live, well and safely born baby) in a way that she is able to balance the pros and cons. Additionally, there is, in my judgment, a real risk the position is unlikely to change and is more likely to deteriorate. He concluded X showed limited insight in relation to her previous mental ill- health. I have carefully considered the submissions on behalf of the Official Solicitor regarding capacity but looking at all the evidence and information available to the court I am satisfied the interim declaration should be made." 2019‑08‑19 23:28:47 2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Medical treatment cases


* Serious medical treatment - delay in making application Royal Bournemouth and Christchurch Hospitals NHSFT v SE [2018] EWCOP 45"Whilst, of course, it is understood emergencies do arise, in this case the emergency was due to the failure to have any effective system in place for securing legal advice for clinicians in the Trusts. I hope that the procedures now put in place (as set out at the end of this judgment) will be replicated elsewhere to avoid this situation happening again. ... [H]er best interests will be met by this court endorsing the Order that has been agreed and giving the applicants permission to be able to carry out the procedures set out in paragraph 4, namely the amputation of her right leg ... 2019‑08‑10 22:27:25 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Non-legal research by judge JG v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 187 (AAC)Judicial summary from gov.uk website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair." 2019‑08‑01 23:25:11 2019 cases, Bias, Cases, Judgment available on Bailii


* Oral tribunal decision PAA v SSHD [2019] UKUT 13 (IAC)The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above. 2019‑07‑26 21:46:00 2019 cases, Cases, Judgment available on Bailii, Powers, Upper Tribunal decisions


* Immigration tribunal - fair hearing, litigation friends AM (Afghanistan) v SSHD [2017] EWCA Civ 1123In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached." 2019‑07‑26 20:29:51 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Repatriation cases


* Reinstatement JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC)(1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties." 2019‑07‑17 10:54:45 2019 cases, Cases, Judgment available on Bailii, Powers, Upper Tribunal decisions


* Immigration detention R (ASK) v SSHD [2019] EWCA Civ 1239"These appeals raise important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the United Kingdom. In each case, the Appellant is a foreign national who satisfied the statutory criteria for detention pending removal, but who suffered from mental illness such that it is said that, for at least some of the period he was detained, he was not only unfit to be removed and/or detained in an immigration removal centre ("IRC"), but did not have mental capacity to challenge his detention and/or engage with the procedures to which he was subject as a detainee. As a result, it is submitted that, in detaining each Appellant, the Secretary of State acted unlawfully in one or more of the following ways. ..." 2019‑07‑17 10:17:55 2019 cases, Cases, Judgment available on Bailii, Repatriation cases


* Death - wishes and feelings Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21"I am being asked to take today an irreversible decision that will lead inevitably to death sooner rather than later and probably within minutes or seconds of the tube being removed. I am being asked to do so in the face of what I find are the wishes and feelings of TG. ... I have come to the clear decision that it is in the patient's best interests that intubation should continue. I recognise that this places a huge burden on the treating team. It is against their advice and their wishes and of course also those of Dr Newman but I remind myself constantly, this is her life and her wishes as I have found them to be and nobody else's. It may be that if the position were to remain the same in six months' time or no successful tracheostomy had been carried out that different considerations might apply but I am not looking at the future, I am looking at things as they are now and for those reasons I reach my decision and refuse the application." 2019‑07‑08 22:29:31 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Jehovah's Witness - blood transfusion Manchester University NHS Foundation Trust v DE [2019] EWCOP 19"The only issue during the hearing was the degree to which DE's wishes and feelings would be overborne by a decision to allow a blood transfusion, in the light of her being a Jehovah's Witness; and therefore whether there was a disproportionate interference in DE's article 8 rights. However, the evidence even at the oral hearing was that although DE described herself as a Jehovah's Witness she was not someone for whom those beliefs were central to her personality or sense of identity. During the oral hearing I did not get any sense that she would feel deeply upset if an order was made in the form sought, or that she would feel a deep conflict with her religious beliefs. As such she was someone who was in a quite different decision from B in Jackson J's decision, where his religious beliefs were fundamental to B's sense of who he was. The other stark contrast with that case is that DE had been completely clear that she did not want to die. She is also significantly younger than was B." 2019‑07‑08 22:16:16 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Litigation friend LJ v Mercouris [2019] EWHC 1746 (QB)"The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs." 2019‑07‑06 22:29:26 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases


* Summary of MH sentencing guidance - life sentence replaced with s37/41 R v Fisher [2019] EWCA Crim 1066Having summarised the Sentencing Council's Definitive Guideline for Manslaughter (in force 1/11/18) and the relevant available disposals under the MHA, the Court of Appeal revoked sentences of imprisonment and replaced the life sentence with a s37/41 restricted hospital order. 2019‑07‑04 22:52:10 2019 cases, Cases, Judgment available on Bailii, Life sentence cases


* Costs in s21A case BP v London Borough of Harrow [2019] EWCOP 20"The relevant circumstances of the adjournment of the January hearing are that the Respondent, the London Borough of Harrow, offered at the hearing a trial of BP returning home. ... For the Applicant, it is submitted that this is a case where it is appropriate to depart from the usual costs rule and to order the costs of the January hearing be paid by the Respondent because of the Respondent's consistent failure to offer a trial period at home before the start of and for the duration of the proceedings, and its decision to do so only after the January hearing had commenced. ... Overall, I can see the basis on which the Applicant considers an application for costs to be justified. However, this was a finely balanced case on the Applicant's own submissions in position statements, in particular that of 15 June 2018. I bear in mind the authorities on which the parties rely, in particular the Applicant's reliance on the comments of Hooper LJ in the Court of Appeal. I note the circumstances of Manchester City Council v. G, E and F [2010] EWHC 3385 were quite different. On balance and considering the circumstances as a whole, I am not persuaded that it is appropriate to depart from the general rule on this occasion. I decide this based on the chronological position of the parties set out above and all the circumstances. The Respondent's conduct falls short, to what degree is immaterial, of the necessary test. This case does not represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in the Manchester case (paraphrased slightly)." 2019‑06‑15 22:57:39 2019 cases, COP costs cases, Cases, Judgment available on Bailii


* Withdrawal of CANH A Clinical Commissioning Group v P [2019] EWCOP 18"Having given anxious consideration to this very sad case, and with profound regret, for the reasons set out above I am satisfied this court should declare that P lacks capacity to make decisions regarding CANH. Further, in circumstances where I have concluded that P lacks capacity to decide for herself whether or not to continue to receive CANH, I am satisfied that it is in P's best interests to consent on her behalf to the withdrawal of that treatment, a step that I acknowledge will result in her death. ... In all the circumstances, I am satisfied that the sanctity of P's life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014." 2019‑05‑29 21:45:45 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Police use of force Gilchrist v Greater Manchester Police [2019] EWHC 1233 (QB)"I recognise that this was a challenging situation for the police officers. They were faced with an individual who presented as very angry, covered in blood and with whom they were unable to communicate. Prior to Andrew Gilchrist's explanation, their assumption that Michael Gilchrist was an aggressor who, probably, had assaulted someone and needed to be detained, was reasonable. In those circumstances, their initial actions to attempt to bring him under control using CS gas and Taser were justified, reasonable and proportionate. However, once they were appraised of his vulnerability as an autistic man, and his behaviour suggested that he was defensive rather than aggressive, a more cautious approach should have been adopted. The further use of Taser, which had already proved to be ineffective, and following the use of CS gas, was inappropriate. The alternative course mandated by PS Morris, namely, using the force of the officers available to take Mr Gilchrist to the ground and restrain him without using weapons was a reasonable and proportionate response." 2019‑05‑20 12:45:21 2019 cases, Cases, Judgment available on Bailii, Miscellaneous


* Capacity to consent to sex with husband London Borough of Tower Hamlets v NB [2019] EWCOP 17"There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..." 2019‑05‑15 22:02:33 2019 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Capacity and ability to communicate Patel v Arriva Midlands Ltd [2019] EWHC 1216 (QB)"Dr Fleminger's assessment was: 'Whether or not he can understand what information he is given and use and weigh this information in the balance to make decision, he is unable to communicate any decision he has made. Whether or not he regains capacity in the future depends on the outcome of his conversion disorder'. I am satisfied on the balance of probabilities that Dr Fleminger's capacity assessment was made on the basis of incorrect information gleaned from the Claimant's presentation and from what he was told by Chirag Patel of the Claimant's disabilities, namely that the Claimant was unable to communicate any decision he has made. ... In addition ... I do accept Dr Schady's opinion [that there is no conversion disorder]. Once again that leaves the Claimant with a presumption of capacity. ... To summarise: (i) The Claimant is presumed to have capacity. (ii) The court finds that the Claimant has been fundamentally dishonest in respect of his claim, and his litigation friend Chirag Patel has participated in this dishonesty. (iii) The entirety of the claim is dismissed, the court being satisfied that no substantial injustice would be caused in so doing. The court assesses damages for the 'honest part' of the claim at £5750." 2019‑05‑15 21:46:03 2019 cases, Cases, Judgment available on Bailii, Other capacity cases


* Inquest and DOLS R (Maguire) v HM's Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin)"First, the claimant contends that the defendant erred in law by determining at the end of the evidence that article 2 no longer applied under Parkinson, thereby prejudging a matter that should have been left to the jury. Secondly, the Coroner erred in law by determining that the jury should not be directed to consider whether neglect should form part of their conclusion. ... That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the "paradigm example" of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under article 2. ... We agree that a person who lacks capacity to make certain decisions about his or her best interests - and who is therefore subject to DOLS under the 2005 Act - does not automatically fall to be treated in the same way as Lord Dyson's paradigm example. In our judgment, each case will turn on its facts. ... [The Coroner] properly directed himself as to the appropriate test to apply to the issue of neglect and having done so declined to leave the issue to the jury." 2019‑05‑15 21:35:39 2019 cases, Cases, Inquests, Judgment available on Bailii


* Diminished responsibility medical evidence R v Hussain [2019] EWCA Crim 666"The single judge has referred the application for leave to appeal against conviction [for murder] and the extension of time application to the full court. The application for leave to appeal raises again the issue of what a trial judge should do when the sole issue to be determined at trial is the partial defence of diminished responsibility provided by section 2 of the Homicide Act 1957 (as amended) and there is unanimity amongst the psychiatric experts as to the mental health of the killer at the time of the killing." 2019‑05‑10 21:49:38 2019 cases, Cases, Diminished responsibility cases, Judgment available on Bailii


* HBSO, colonoscopy, deception University Hospitals of Derby and Burton NHSFT v J [2019] EWCOP 16"[Anne] is the subject of an application brought by the [Trust] for declarations that it is in Anne's best interests to undergo a hysterectomy and bilateral salpingo-oophorectomy and a colonoscopy, and that, in order to enable those to be undertaken, it is in her best interests for a transfer plan to be implemented which will involve her sedation and a level of deception to ensure her presence at hospital for the procedures to be undertaken. The application arises because it is said that Anne lacks capacity. ... It is entirely right that cases such as this, where medical decisions and the plan for their implementation impact so profoundly on P's personal autonomy, bodily integrity and reproductive rights, should be considered by the Court of Protection at High Court level, and as this case demonstrates, once in the hands of the court and the Official Solicitor they can be dealt with rapidly. I therefore have no hesitation in declaring that it is in Anne's best interests to undergo HBSO and colonoscopy (and associated surgical procedures) and for the care plan to be implemented in its final amended form." 2019‑05‑10 21:41:37 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Suicide burden of proof at inquests R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire [2019] EWCA Civ 809"This appeal involves questions of importance concerning the law and practice of coroners' inquests where an issue is raised as to whether the deceased died by suicide. The questions can be formulated as follows: (1) Is the standard of proof to be applied the criminal standard (satisfied so as to be sure) or the civil standard (satisfied that it is more probable than not) in deciding whether the deceased deliberately took his own life intending to kill himself? (2) Does the answer depend on whether the determination is expressed by way of short-form conclusion or by way of narrative conclusion? Those are the questions falling for decision in this case; but to an extent they have also required some consideration of the position with regard to unlawful killing. ... I conclude that, in cases of suicide, the standard of proof to be applied throughout at inquests, and including both short-form conclusions and narrative conclusions, is the civil standard of proof." 2019‑05‑10 21:35:22 2019 cases, Cases, Inquests, Judgment available on Bailii


* Marriage, prenuptial agreement, information about extent of assets, etc PBM v TGT [2019] EWCOP 6"... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto." 2019‑05‑10 21:29:22 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases


* Capacity to conduct proceedings TB v KB [2019] EWCOP 14"Law applicable to the court's determination of the question of whether P lacks capacity to conduct proceedings is well settled. ... Having regard to that analysis, I am clear that P does lack that capacity. This leaves the question of P's participation in these proceedings." 2019‑05‑09 12:28:53 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases


* Prison Rules and solicitor-client letters R v SSHD, ex p Leech (No 2) [1993] EWCA Civ 12"Section 47 (1) of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. Rule 33 (3) of the Prison Rules 1964 provides as follows: "(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length." The principal question arising on this appeal is whether Rule 33 (3) is ultra vires section 47 (1) of the Act on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they are in truth bona fide communications between a solicitor and client." 2019‑05‑03 13:13:45 1993 cases, Cases, Judgment available on Bailii, Prison law cases


* Nurses' appeal against ill-treatment conviction R v Spencer [1987] UKHL 2Six nurses appealed against convictions for ill-treating a patient contrary to s126 Mental Health Act 1959 (the old equivalent of MHA 1983 s127), three successfully. 2019‑05‑02 13:38:27 1986 cases, Cases, Judgment available on Bailii, Other criminal law cases


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


* LPA witnessed by attorney Re BGO: Office of the Public Guardian v PGO [2019] EWCOP 13"Some time later one of the financial institutions to which the registered property and affairs LPA was sent noticed that BGO’s signature on the instrument had been witnessed by one of the attorneys (MAB), which is contrary to the requirements of Regulations. ... The Public Guardian applied to the Court for a determination as to whether or not the requirements for creation of an LPA were met, and directions as to whether the Public Guardian should cancel the registration of the instrument. ... The wording of paragraph 18 of Schedule 1 is mandatory. Because the requirements of execution have not been met, I must direct the Public Guardian to cancel the registration of BGO’s LPAs. ... For many donors, the failure of their LPA because of a defect in execution can be overcome by the relatively simple step of granting fresh powers, taking care to ensure that the requirements are met – an irritation perhaps and an expense but not an insurmountable hurdle. However, that option is not open to BGO. Sadly, before this defect was identified, BGO’s capacity had deteriorated to the point where she is unable to execute fresh LPAs. ... In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. ... In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect. ... The Respondents are invited to make an application for appointment as property and affairs deputies for BGO. ... If the Respondents, or any of them, seek the appointment of a welfare deputy or deputies for BGO, they should also file at Court within 28 days a COP24 statement which sets out any welfare issues which require decisions to be made, why (having regard to s5 of the Mental Capacity Act 2005) an order is needed and why (having regard to section 16(4) of the Act) the decisions should be taken by a deputy rather than the Court." 2019‑04‑25 22:04:21 2019 cases, Cases, Judgment available on Bailii, LPA cases - all, LPA cases - other


* Death Hounslow Clinical Commissioning Group v RW [2019] EWCOP 12"This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect." 2019‑04‑19 22:50:27 2019 cases, Best interests, Cases, Judgment available on Bailii


* Amputation East Lancashire Hospitals NHS Trust v PW [2019] EWCOP 10"This is an application by East Lancashire NHS Trust for orders under the Mental Capacity Act 2005 that PW lacks capacity "to make a decision regarding whether to undergo the leg amputation surgery to address his high risk of sepsis"; and that it is lawful to carry out that surgery having regard to his best interests. Before dealing with the substantive issues in this case I will deal with the timing of the application." 2019‑04‑19 22:41:55 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Appointment of property and affairs deputy NKR v The Thomson Snell And Passmore Trust Corporation Ltd [2019] EWCOP 15"The application before the Court is for the discharge of the appointment of an existing professional property and affairs deputy, and the appointment of another instead. The discharge of the current deputy is agreed but there is an issue as to who should be appointed instead. ... In the matter of Re AS; SH v LC [2012] MHLO 113 (COP), [2013] COPLR 29 at paragraph 22 Senior Judge Lush set out "generally speaking" an order for preference of various candidates for appointment as deputy. A panel deputy is included "as deputy of last resort," after "a professional adviser, such as the family's solicitor or accountant." ... I am not aware of any previous appointments of a barrister as professional deputy (as distinct from a family member who just happens to be a barrister by profession but is appointed on the usual non-remunerated basis of a family member). Not being considered by the Bar Council as 'a legal service', discharge of the functions of deputyship is apparently not subject to the Bar Council's full regulatory force. However, the risk of property and affairs deputyship lies chiefly in misappropriation of funds. It seems to me beyond debate that misappropriation of MBR's funds whilst acting as deputy would count as "behaviour which diminishes trust and confidence" in Ms. Sood individually and her profession generally, and so Ms. Sood's holding of deputyship appointment would be subject to some professional regulation. ... On the information presently available to me, I am willing to accept that Ms. Sood is personally and professionally a suitable person to hold a deputyship appointment. Her appointment is however not the only option before the Court. A panel deputy has also been identified as willing to act ... Taking all matters into consideration, I conclude that it is in the best interests of MBR for Mr. Kambli to be appointed as replacement deputy upon discharge of the appointment of TSPTC." 2019‑04‑18 22:29:35 2019 cases, Cases, Deputyship cases, Judgment available on Bailii


* Withdrawal of CANH; advance decision NHS Cumbria CCG v Rushton [2018] EWCOP 41"This is an application regarding the proposed withdrawal of clinically assisted nutrition and hydration in respect of Mrs Jillian Rushton, who is now 85 years of age. Since sustaining a traumatic head injury in December 2015, Mrs Rushton has suffered from a prolonged period of disorder of consciousness. Insofar as a label is relevant, the consensus of medical opinion, in respect of which there is no dissent at all, is that she is in a persistent vegetative state (PVS). In their recent guidance, ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’, the Royal College of Physicians and the British Medical Association have noted that the importance of obtaining a precise and definitive diagnosis has reduced. It is recognised by the Courts and clinicians that drawing a firm distinction between vegetative state and minimally conscious state is frequently both artificial and unnecessary. In practice, when assessing best interests, information about the patient’s current condition and prognosis for functional recovery and the level of confidence with which these can be evaluated is invariably of greater importance than a precise diagnosis. ... It perhaps requires to be said, though in my view it should be regarded as axiomatic, that the medical profession must give these advanced decisions the utmost care, attention and scrutiny. I am confident the profession does but I regret to say that I do not think sufficient care and scrutiny took place here. The lesson is an obvious one and needs no amplification. Where advanced decisions have been drawn up and placed with GP records there is an onerous burden on the GP to ensure, wherever possible, that they are made available to clinicians in hospital. By this I mean a copy of the decision should be made available and placed within the hospital records with the objective that the document should follow the patient. It need hardly be said that it will rarely, if ever, be sufficient to summarise an advance decision in a telephone conversation. ... The family have ... made it clear to me that she would not have regarded her present situation as tolerable. Whilst I have no doubt that she would understand the commitment of her son, Tim and his profound resistance to letting her go, I have equally no doubt that she would want to be let go and I have no hesitation in concluding that it is my responsibility to respect this." 2019‑04‑05 21:53:04 2018 cases, Advance decision cases, Cases, Judgment available on Bailii, Medical treatment cases


* Injunction against publication of video Southern Health NHS Foundation Trust v AB [2019] EWCOP 11"This is an application to prevent publication of a video of a patient, AB, in her treating hospital. ... At times she is catatonic and lies in a foetal position on the floor. She has a history during these periods of self-harm, and for that reason she wears protective headgear at all times. In the light of AB's condition and the difficulties in accommodating her appropriately, the Trust has had to adapt the room in which she has been living urgently, and it is true to say that the condition of the room therefore looks somewhat poor. ... On about 20 January 2019, AB's son, W, who is the second respondent, took a video recording of his mother in her room. ... I am clear that it is appropriate in these circumstances to make the order. First of all, having seen the video, it is apparent that AB can be identified, even if pixilated, and would be identifiable from the information that Mail Online intend to publish. ... Secondly, it is clear from Dr Marlowe's statements that AB does not currently have capacity ... Thirdly, I have no doubt, having watched it, that the video would be an interference with AB's privacy and her private life. ... The draft order provides for W being able to apply to the court at a full hearing if he wishes to do so to seek to lift the injunction, and argue that it is in her interests to publish the video. Further, according to Dr Marlowe, AB may well regain capacity herself relatively shortly, i.e. within a matter of weeks, and if she then wishes for publication, that will be a matter for her." 2019‑03‑23 17:33:15 2019 cases, Cases, Judgment available on Bailii, Reporting restriction order cases


* Retrospective authorisation of DNA swab sample DCC v NLH [2019] EWCOP 9"I concluded it would be appropriate to make a declaration (1) that NLH lacked capacity (a) to make decisions as to the provision of buccal swab samples, the testing of such samples and the profiling of his DNA and (b) to conduct these proceedings, and further (2) that it was lawful for the local authority to arrange for the taking of buccal swabs from NLH for the purposes of performing DNA paternity testing in respect of the child. I further concluded it would be appropriate to make an order, by consent, that the court consented on NLH's behalf for the swab sample to be taken and tested and so that his DNA could be profiled to establish whether he was the father of the child. Shortly before the order was made, however, it emerged that a member of staff from the DNA testing company, Lextox, had already attended at the nursing home and taken the sample, with the agreement of NLH's family, but without either the formal consent of NLH (who lack capacity to provide consent) or the approval of the court. ... I therefore agreed to prepare this short judgment to remind practitioners, carers and those involved in taking samples in these circumstances that, where the patient lacks capacity and an application has been made to the Court of Protection for an order authorising the taking of a sample, it will be unlawful for the sample to be taken without the Court's permission. All practitioners and professionals working in this field ought to be aware that there is always a judge of the Family Division on duty available to sit in the Court of Protection twenty-four hours a day, seven days a week, every day of the year, to deal with urgent applications, usually by telephone. Consequently, there is no excuse for any failure to comply with the obligations to obtain the court's permission in circumstances such as these. As stated, no harm arose on this occasion, but any infringement in future will run the risk not only of attracting severe criticism from the Court but also potentially incurring liability for damages if a breach of human rights were to be established." 2019‑03‑20 20:45:21 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Whether child had "sufficient understanding" to conduct appeal without Guardian CS v SBH [2019] EWHC 634 (Fam)"Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm." 2019‑03‑19 22:00:58 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation capacity cases


* Residence, contact, tenancy London Borough of Hackney v SJF [2019] EWCOP 8"SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into." 2019‑03‑18 22:38:32 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases


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


* Disproportionate litigation - legal costs, and LIP costs London Borough of Hounslow v A Father & A Mother [2018] EWCOP 23Judge's headnote: "Costs in the Court of Protection - Disproportionate litigation - Whether a litigant in person is entitled to recover costs including loss of earnings" 2019‑03‑16 20:44:59 2018 cases, COP costs cases, Cases, Judgment available on Bailii


* Medical treatment case King's College Hospital NHS Foundation Trust v FG [2019] EWCOP 7"[T]he King's College Hospital NHS Foundation Trust seeks an order in the following terms in relation to FG: (a) a declaration that FG lacks capacity to make decisions regarding the medical treatment for his physical health conditions; (b) that it is lawful and in FG's best interests for him to undergo an operation to repair his right shoulder fracture/dislocation; and (c) that it is in his best interests to receive any sedation and anaesthesia his clinicians think necessary to allow the operation to be done. The matter has come in front of me today as urgent applications judge." 2019‑03‑15 21:01:36 2019 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Medical treatment cases


* Unfair summary disposal of DOL/residence case CB v Medway Council [2019] EWCOP 5"The simple issue is whether the Judge had sufficient information before her to discount, at this stage, any real possibility of CB returning to her home, supported by the extensive and expensive care package that is being mooted. The language of the Judgment itself, to my mind, answers this question in phrases such as “I very much doubt…. I am very sceptical…. The practicalities are…. likely to be extremely difficult….” I share the Judge’s scepticism and I also very much doubt that even with an extensive package of support a return home will be in CB’s best interest. I note too that Dr Ajiteru expressed himself in cautious terms (see para 10 above). However, scepticism and “doubt” is not sufficient to discount a proper enquiry in to such a fundamental issue of individual liberty. ... It is easy to see why the Judge took the course she did and I have a good deal of sympathy with her. She will have recognised, as do I, that the effluxion of time has had its own impact on the viability of the options in this case. However, what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases." 2019‑03‑15 20:56:19 2019 cases, Cases, Deprivation of liberty, Judgment available on Bailii


* Litigation capacity DM v Dorset County Council [2019] EWCOP 4Unsuccessful challenge to a finding that DM lacked litigation capacity. 2019‑03‑14 14:26:53 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases


* Social media and sexual relations Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3"By this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss B’s life, including her capacity: (i) To litigate in these proceedings...; (ii) To manage her property and affairs...; (iii) To decide where she resides...; (iv) To decide on her package of care...; (v) To decide with whom she has contact...; (vi) To use the internet and communicate by social media; (specifically, it is agreed that the question is ‘whether Miss B has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others’)...; (vii) To consent to sexual relations... It is clear that the information relevant to the decision in this area includes: (i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act; (ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy; (iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse. (iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections; (v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom." 2019‑02‑23 12:12:34 2019 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Social media and internet use Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2"I have reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online ‘contact’ is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. ... It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is as follows: (i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know , without you knowing or being able to stop it; (ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below]; (iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below]; (iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly; (v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm; (vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; [see paragraph below]. With regard to the test above, I would like to add the following points to assist in its interpretation and application: ..." 2019‑02‑23 12:01:31 2019 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Contractual dispute between Health Board and independent hospital company Priory Healthcare Limited v Highland Health Board [2019] CSOH 17A patient from Scotland travelled to England and was detained at a Priory hospital, and for a few months the Highland Health Board paid the £540-per-day fee. When the Health Board decided to stop paying, the Priory unsuccessfully argued that the that the Health Board was contractually obliged to meet the continuing cost of the patient's care. 2019‑02‑21 15:02:19 2019 cases, Cases, Judgment available on Bailii, Miscellaneous


* Litigation friends for children in immigration tribunal proceedings R (JS) v SSHD [2019] UKUT 64 (IAC)The Upper Tribunal provided mainly age-based guidance on whether a child applicant in immigration proceedings requires a litigation friend, and on the role of the litigation friend. 2019‑02‑21 14:41:38 2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Repatriation cases


* Medical treatment, including CPR University Hospitals Birmingham NHSFT v HB [2018] EWCOP 39"When considering what is in HB's best interests, I take account of the fact that the balance of medical evidence would support the view that the treatment set out in the second part of the treatment plan would bring about no significant improvement in HB's underlying condition and, to that end, they might be seen as futile. ... Against that, I have to balance the very clear wishes, expressed by HB to her daughter, that she would want all steps taken to preserve her life ... Where it is not clear whether HB will make an improvement in her neurological condition, it is, in my judgment, contrary to her best interests and premature to rule out the treatments set out in Part 2 of the updated treatment plan, numbers (2) to (6). ... Mr McKendrick submits that it would not be in HB's best interests that the potentially last moments of her life were lived with her undergoing the violent and invasive procedures necessary in providing CPR, that it would be a traumatic scene for her children to witness in her final moments. I entirely accept those submissions and the force in them, but key to the decision must be the wishes and feelings of HB and it is plain that administering CPR in the event of a further collapse and giving her, albeit a very, very small chance of life, is what she would wish. In my judgment, at the moment, it remains in her best interests for that treatment to be provided to her. I entirely accept that there will undoubtedly come a time when such treatments would no longer be in her best interests but I am entirely satisfied that that stage has not been reached yet." 2019‑02‑12 09:31:12 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Settlement of property on trust LCN v KF [2019] EWCOP 1"This is an application under section 18(1)(h) of the Mental Capacity Act 2005 for the settlement of CJF's property on trust. ... By the time of the hearing it was expected that CJF would die in a matter of days. As noted earlier in this judgement, CJF died the following week. ... LCN [CJF's deputy] made an application on 20th November 2018 for the settlement of CJF's assets including his property at 1AY on revocable trust for himself during his lifetime and thereafter for 1AY to pass to EH [CFJ's daughter] and AH [EH's husband] and the residue of CJF's estate to pass to KF [CFJ's mother]. ... By the rules of intestacy, CJF's estate would be divided equally between KF and CJF's biological father, stated by KF to be BJF. This is subject to section 18 of the Family Law Reform Act 1987 which raises a rebuttable presumption that BJF pre-deceased CJF as his name did not appear on CJF's birth certificate. KF was able to contact BJF, but only through social media. That contact was sufficient, in my view, to rebut the presumption. If the court did not approve the settlement of CJF's property, it would be divided equally between KF and BJF with nothing passing to EH and AH. It would be open to EH and AH to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, but the outcome of such an application was uncertain. ... In this case, I consider that there were exceptional circumstance justifying proceeding without BJF being notified. These circumstances were his complete lack of involvement in CJF's life and care and his denial of paternity. There was a genuine urgency and balancing the prejudice of proceeding in the absence of BJF with the prejudice to EH and AH of not proceeding, I considered that the hearing had to take place despite the lack of service on BJF. It was agreed between the parties, and I ordered, that attempts should be made after the hearing to locate BJF and serve him with a copy of the final order so that it would be open to him to apply to set aside or vary it. ... The parties agree, and I find, that the authorities on the making of a statutory will apply to the settlement of CJF's estate in this case. I was advised by Miss Hughes that between 1925 and 1959 the Court had no power to make a statutory will and so would have approved settlement trusts as an alternative. ... All agreed that 1AY should pass to EH and AH and that the residue of the estate should pass to KF. I take that agreement into account and see no reason to depart from it. ... The question remains whether AH and EH should be effectively liable for some of the Inheritance Tax liability or whether the liability should all be borne by the estate, and in effect KF. ... I do not consider that it would be in CJF's best interests for there to be any risk to the security and stability of EH's and AH's home and therefore I consider that they should inherit 1AY effectively free of Inheritance Tax." 2019‑02‑05 13:34:25 2019 cases, Cases, Judgment available on Bailii, Statutory will cases


* Aggravated damages following MCA breaches Esegbona v King’s College Hospital NHS Foundation Trust [2019] EWHC 77 (QB)"The claimant, Dr Gloria Esegbona, brings this claim as administrator of the estate of the deceased, her mother, Christiana Esegbona. The action is brought in negligence and false imprisonment. The amended claim form states that the claimant's claim is a claim in clinical negligence and/or pursuant to the Fatal Accidents Act 1976 and/or the Law Reform (Miscellaneous Provisions) Act 1934. The claimant claims damages for pain, suffering and loss of amenity as well as damages, including aggravated damages, for false imprisonment. It is the claimant's case not only that the medical, nursing and other staff at the defendant’s hospital owed her mother a duty to treat her with reasonable care and skill but also that the defendant had duties under the Mental Capacity Act 2005: to take reasonable steps to establish whether Mrs Esegbona lacked capacity before doing any act in connection with her care or treatment; and further that if the defendant reasonably believed that Mrs Esegbona lacked capacity whether it would be in her best interests for any act in connection with her care or treatment to be done; and to take steps to obtain a court order or the relevant authorisation under schedule A1 to the Act before depriving Mrs Esegbona of her liberty. The claimant says the defendant acted in breach of these duties." 2019‑02‑04 23:30:49 2019 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Transcript, Unlawful detention cases


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


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


* Dishonest solicitor Maitland-Hudson v SRA [2019] EWHC 67 (Admin)"The Appellant appeals against findings of misconduct and dishonesty made against him by ... the Solicitors Disciplinary Tribunal ... Pursuant to those findings, on 2 May 2018 the Appellant was struck off the Roll of Solicitors and ordered to pay the SRA's costs, including £300,000 by way of interim payment. The Tribunal found the Appellant to have been guilty of misconduct "at the highest level", characterised as "deliberate, calculated and repeated… over a number of years". It was aggravated by the Appellant's dishonesty and attempts to defend his conduct. The appeal is based on grounds of alleged procedural unfairness, specifically that the Appellant, a litigant in person, was substantially impaired in his ability to defend himself, to the extent that he admitted himself to hospital. Despite the fact that consultant psychiatrist experts on both sides found that the Appellant was unable to represent himself, the Tribunal refused to dismiss the proceedings on the basis of "incurable unfairness" or even to stay or adjourn their remainder." 2019‑02‑01 09:02:50 2019 cases, Cases, Judgment available on Bailii, SRA decisions


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


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


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


* Damages for unlawful immigration detention R (Adegun) v SSHD [2019] EWHC 22 (Admin)"There are two bases of challenge to Mr Adegun's detention which, in broad outline, are as follows. ... There is first an issue, which I shall call the "rule 34 issue", as to whether Mr Adegun declined a medical examination pursuant to rule 34 of the Detention Centre Rules when he was taken into detention. ... The second issue I shall call the "paragraph 55.10 issue". It arises because there is evidence, not disputed by the Secretary of State, that Mr Adegun was suffering from a mental health condition which was not recognised by the Home Office until some time after his admission into detention and was not treated with medication until 19 January 2016. ... I therefore propose to award nominal damages in respect of the early period of Mr Adegun's detention and substantial damages in respect of 40 days' detention." 2019‑01‑12 22:58:23 2019 cases, Cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript


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


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


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


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


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


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


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


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


* Contact SR v A Local Authority [2018] EWCOP 36"At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary." 2018‑11‑29 21:25:14 2018 cases, Cases, Judgment available on Bailii, Other capacity cases


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


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


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


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


* Tracheostomy tube, escalation, morphine Leeds Teaching Hospitals NHS Trust v JF [2018] EWCOP 32"... N suffered a cardiac arrest in the taxi as she was arriving at Leeds General Infirmary and as a result for some 20 minutes or so ceased breathing and suffered a severe hypoxic injury. In consequence she has suffered a very significant and severe brain injury. The position now and since then has remained that she is essentially unconscious. ... The issues before me have been threefold. First, whether or not the tracheostomy tube should be removed. ... The second issue has rather retreated in significance. I have to consider whether or not N should receive an escalation of invasive care or treatment, in particular vasoactive drugs, renal replacement therapy, ventilation treatment that requires central venous action or CPR. ... That brings me on to morphine, and that is a difficult issue." 2018‑11‑12 21:50:46 2018 cases, 39 Essex Chambers summary, Cases, E90, Judgment available on Bailii, Medical treatment cases


* DOL of child Re HC (A Minor: Deprivation of Liberty) [2018] EWHC 2961 (Fam)"HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire ("the unit"). By application dated 18th July 2018, the local authority responsible for HC's placement asks that the court determine whether HC's placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. ... Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC's placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate." 2018‑11‑08 02:48:41 2018 cases, Cases, Deprivation of liberty, Judgment available on Bailii


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


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


* Sexual exploitation, restrictions where adults have capacity Manchester City Council Legal Services v LC [2018] EWCOP 30After a circuit judge endorsed a care plan which led to the repeated sexual exploitation by strangers of a young woman with autism and significant learning disabilities (who had capacity to consent to sexual relations but lacked capacity to make decisions on her contact with men), Hayden J provided guidance that 'where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection'. 2018‑11‑07 13:41:36 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, Judgment available on Bailii


* DOL damages Atudorei v Romania 50131/08 [2014] ECHR 947Breach of Articles 5 and 8, but not Article 8, relating to hospital admission. 2018‑11‑03 23:16:39 2014 cases, Cases, Deprivation of liberty, Judgment available on Bailii, MHLR summary


* Novel treatment University College London Hospitals v KG [2018] EWCOP 29"In this case the University College London Hospitals NHS Foundation Trust seeks the court's authority to administer a treatment known as PRN100 to a patient KG. KG is represented by the Official Solicitor. KG, the Official Solicitor on his behalf, his family and the Trust all ask for the court's approval. The matter is before the court because PRN100 has never been tested on or administered to any person anywhere. It is thus a completely novel treatment." 2018‑10‑31 22:26:36 2018 cases, 39 Essex Chambers summary, Cases, E90, Judgment available on Bailii, Medical treatment cases


Gill v Woodall [2009] EWHC B34 (Ch) — "The Claimant disputes the validity of Mrs Gill's will on two grounds. They are: (1) At the time Mrs Gill executed the will she did not know and approve its contents; (2) Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill." 2018‑10‑23 18:37:55 2009 cases, Judgment available on Bailii, No summary, Testamentary capacity cases, Transcript


* DOL Re D (A Child) [2017] EWCA Civ 1695"This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D [2016] EWCOP 8M, [2016] PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam)M, [2016] 1 FLR 142B. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms." 2018‑10‑23 18:24:57 2017 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


* Residence, wishes and feelings LB Islington v AA [2018] EWCOP 24"These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge." 2018‑10‑22 15:39:21 2018 cases, 39 Essex Chambers summary, Best interests, Cases, E90, Judgment available on Bailii


* Claim following decision not to admit under MHA Griffiths v Chief Constable of Suffolk Police, and Norfolk and Suffolk NHSFT [2018] EWHC 2538 (QB)"This case arises out of the murder of Mary Griffiths by John McFarlane on 6 May 2009 in Bury St Edmunds, Suffolk. The Claimants are her three daughters, suing by their father and litigation friend. They seek damages from the Chief Constable of the Suffolk Police, the 'Suffolk Police', and North and Suffolk NHS Foundation Trust, the 'NHS Trust', the first and second Defendants. ... The claim, put very shortly, is that the NHS Trust assessment under the Mental Health Act, MHA, was flawed in a number of respects, and that Mr McFarlane ought to have been admitted to hospital, voluntarily or compulsorily, on 3 May 2009, which would have prevented him being in a position to murder Ms Griffiths on 6 May. In any event, the NHS Trust should have warned her that Mr McFarlane was a danger to her, and they ought also to have communicated with the Suffolk Police. This would have affected the way in which they, in turn, addressed Ms Griffiths' concerns when she telephoned them on 5 May 2009. The Suffolk Police, in any event, ought to have graded Ms Griffiths' call as more serious than they did, and ought to have sent someone round that night. That person would have realised that the situation was more threatening than had the call-taker, and steps would have been taken to protect Ms Griffiths, who faced a real and immediate risk from Mr McFarlane, to remove her from danger, or to warn or detain Mr McFarlane." 2018‑10‑22 15:23:23 2018 cases, 39 Essex Chambers summary, Cases, E90, Judgment available on Bailii, Miscellaneous


* Sex and covert contraception Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10"This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." ... Given the serious infringement of rights involved in the covert insertion of a contraceptive device, it is in my judgement highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of best interests, with P having the benefit of legal representation and independent expert advice. 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, Judgment available on Bailii


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


* Secure accommodation Re T (A Child) [2018] EWCA Civ 2136"This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)." 2018‑10‑15 20:15:07 2018 cases, 39 Essex Chambers summary, Cases, Deprivation of liberty - children, E89, Judgment available on Bailii


* LPA wording - euthanasia and multiple attorneys Public Guardian v DA [2018] EWCOP 26"This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment." 2018‑10‑15 20:03:20 2018 cases, 39 Essex Chambers summary, Cases, E89, ICLR summary, Judgment available on Bailii, LPA cases - all, LPA cases - other, Transcript


* Gifts PBC v JMA [2018] EWCOP 19"PBC is the son of JMA, and was appointed as her sole attorney for property and affairs by a Lasting Power of Attorney ... He seeks the authority of the Court to make from JMA’s estate various gifts together exceeding £7 million. The purpose of such gifting, openly stated from the outset of the application, is to achieve - as long as JMA lives at least a further 3 years - reduction of inheritance tax liabilities. The parties have reached an agreement between themselves. Together, they ask the Court to make orders to give effect to their agreement. The matter was listed for hearing because the Court sought assistance in order to reach a conclusion as to whether or not the terms of that agreement are in the best interests of JMA." 2018‑09‑02 21:58:59 2018 cases, Cases, Deputyship cases, Judgment available on Bailii


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


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


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


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


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


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


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


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


* Statutory demands set aside John Blavo v Law Society [2017] EWHC 561 (Ch)"In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums." 2018‑07‑11 12:23:54 2017 cases, Cases, ICLR summary, Judgment available on Bailii, SRA decisions


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


* Fluctuating capacity Royal Borough of Greenwich v CDM [2018] EWCOP 15"In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests." 2018‑07‑03 20:15:50 2018 cases, 39 Essex Chambers summary, Cases, Deprivation of liberty, E89, Judgment available on Bailii, Other capacity cases


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


* Inherent jurisdiction Mazhar v Lord Chancellor [2017] EWHC 2536 (Fam)"This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar. ... Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law. ... The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal." 2018‑05‑22 20:51:22 2017 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, No summary, Transcript


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


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


R v Press Complaints Commission, ex parte Ian Stewart-Brady [1996] EWCA Civ 986 — "This is a renewed application for leave to apply for judicial review in relation to an adjudication of the Press Complaints Commission. ... The application arises out of a publication in The Sun newspaper on 26 July 1995. The publication contained an article relating to the applicant, Ian Brady, who was convicted of murder and is now a patient at the Ashworth Hospital. The effect of the article was that he was being treated in a way which was wholly inappropriate having regard to the very serious crimes which he had committed. No complaint, however, is made about the article. Although Mr Beloff certainly does not approve of its contents, he accepts that he cannot say that there was any justification for complaining about the article. His complaint is that the article has alongside it a substantial photograph of the applicant, albeit a photograph which is indistinct and does not show Mr Brady clearly. ... Looking at the matter as a whole, I do not think there is any prospect of this application succeeding and therefore I would dismiss it." 2018‑04‑27 20:00:41 1996 cases, Judgment available on Bailii, Miscellaneous, No summary, Transcript


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


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


* Withdrawal of CANH NHS Windsor, Ascot and Maidenhead CCG v SP (Withdrawal of CANH) [2018] EWCOP 11"Windsor, Ascot and Maidenhead CCG have applied to the court for a personal welfare order in respect of SP. The order sought is for a Declaration and Order that it is not in SP's best interests for Clinically Assisted Nutrition and Hydration (CANH) to be continued. In tandem with the withdrawal of CANH palliative care will be provided. The consequence is an expectation that SP will die within 7-14 days. ... In early 2015 she was diagnosed as being in a continuing vegetative state and in April 2015 as being in a permanent vegetative state (PVS). She has been in receipt of CANH since October 2014." 2018‑04‑20 19:54:41 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


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


* COP costs NHS Dorset CCG v LB [2018] EWCOP 7"In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision." 2018‑04‑09 00:53:58 2018 cases, COP costs cases, Cases, Judgment available on Bailii


* Deputy - remuneration Re AR [2018] EWCOP 8"The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy." 2018‑04‑09 00:46:17 2018 cases, Cases, Deputyship cases, Judgment available on Bailii


* Litigation friend under employment tribunal rules Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong." 2018‑03‑28 22:58:54 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Powers


* Medical treatment, costs, anonymity Re SW [2017] EWCOP 7(1) "[A]s matters stand, the transplant being proposed cannot proceed, whatever the court may say or do. As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor." (2) "As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. ... [B]oth Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs." (3) "There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour." 2018‑03‑28 22:40:05 2017 cases, Anonymisation cases, COP costs cases, Cases, Judgment available on Bailii, Medical treatment cases, Reporting restriction order cases


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


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


Re AB [2016] EWCOP 66 — "I am asked to, and I do approve, a treatment regime for AB, which involves the administration of medication to her on a basis of deception. Not merely passive deception, which, to use a legal phrase might be characterised as suppressio veri, but active deception, which lawyers might describe as suggestio falsi. It is debateable whether there is in fact much moral difference between the two types of deception, but what is being proposed here is a treatment regime, an administration of medication, on the basis of active deception of AB. I only have to state this for the unusual nature of the case to be revealed, but the circumstances in which these facts arise demonstrate that such a course is manifestly required in the best interests of AB, notwithstanding that her personal wishes and feelings would be entirely contrary to the course that is going to ensue. AB is infected with HIV. ... The order will provide, however, that if the truth emerges to AB and she moves to a position of active resistance then the matter will have to be reviewed, and the Court will have to consider, in that situation, whether to move to forced administration of these drugs, which would be a very difficult decision to make, because it would not be a one-off administration of treatment, but would be a quotidian administration of treatment, which is a very different state of affairs to that which is normally encountered in this Court." 2018‑03‑28 09:45:15 2016 cases, Judgment available on Bailii, Medical treatment cases, No summary, Transcript


* Nerve agent poisoning SSHD v Skripal [2018] EWCOP 6"On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Mr and Ms Skripal remain in hospital under heavy sedation. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. The fact of their exposure to a nerve agent has already had significant consequences on the wider domestic and international stage which I need not go into for the purposes of this judgment. However central to the application before me is the fact that on 14 and 16 March 2018 the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom 'to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).' This in effect is to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries the OPCW wish to: (i) Collect fresh blood samples from Mr and Ms Skripal to (a) undertake their own analysis in relation to evidence of nerve agents, (b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal; (ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018; (iii) Re-test the samples already analysed by Porton Down. Because Mr Skripal and Ms Skripal are unconscious and neither are in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust have quite properly confirmed to the UK Government that a court order would be required to authorise (a) and (b) above." 2018‑03‑28 09:35:57 2018 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Sentencing guidance, including s37 and s45A R v Edwards [2018] EWCA Crim 595These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s37/41 and s45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle. 2018‑03‑28 09:21:34 2018 cases, Cases, Judgment available on Bailii, Sentence appeal cases


* Vexatious COP application Re SW (No 2) [2017] EWCOP 30"This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place." 2018‑03‑19 01:09:49 2017 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


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


* COP bias Re M: A v Z [2018] EWCOP 4"This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests." 2018‑03‑12 22:55:33 2018 cases, Bias, Cases, Judgment available on Bailii, Other capacity cases


* Declaration of non-marriage in English law Re M: AB v HT [2018] EWCOP 2"These complex and difficult proceedings in the Court of Protection concern a 37-year-old woman, hereafter referred to as M, who (as I have found, for reasons set out below) at present lacks capacity by virtue of a combination of psychotic illness and acquired brain injury. The parties to the proceedings are the applicant, M's father, hereafter referred to as AB; her aunt, hereafter referred to as HT; the local authority for the area where HT, and currently M, live, namely the London Borough of Hammersmith and Fulham; and a man hereafter referred to as MS, with whom M went through a religious ceremony of marriage in 2013. A dispute has arisen concerning a number of issues about her past, present and future which has necessitated a lengthy and unusual fact-finding hearing. This judgment sets out my conclusions on the disputed matters of fact, together with an analysis as to her capacity, and orders made following my findings." 2018‑03‑08 20:27:30 2018 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Social security appointeeship DB (as executor of the estate of OE) v SSWP [2018] UKUT 46 (AAC)"The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly." 2018‑02‑26 22:50:22 2018 cases, Cases, Judgment available on Bailii, Other capacity cases, Welfare benefits cases


* Withdrawal of CANH M v A Hospital [2017] EWCOP 19"This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs [2017] EWCA Civ 1169B, it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her." 2018‑02‑16 23:28:05 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases


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


* Costs against Parole Board R (Gourlay) v Parole Board [2017] EWCA Civ 1003"Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?" 2018‑02‑13 01:41:11 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Prison law cases


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


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


* Insanity Loake v CPS [2017] EWHC 2855 (Admin)"For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity." 2018‑02‑04 16:28:33 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Unfitness and insanity cases


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


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


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


* Scottish capacity case Application by Darlington Borough Council in respect of the Adult: AB [2018] ScotSC 4"The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian." 2018‑01‑25 21:58:52 2018 cases, Cases, Foreign protective measure cases, Judgment available on Bailii, Scottish cases


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


* After-care Richards v Worcestershire County Council [2017] EWCA Civ 1998Executive summary and conclusion from judgment: "The claimant has a long history of mental illness, following frontal lobe injury which he sustained in a road traffic accident 33 years ago. He received damages following the accident, which his deputy administers. The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he has received various after-care services. The claimant's deputy funded the services between 2004 and 2013. The defendants have funded those services since 2013. The claimant by his deputy now seeks to recover the costs of the after-care services between 2004 and 2013 (including 18 months residential placement) on the grounds that the defendants are liable for the costs under section 117 of the 1983 Act. The defendants applied to strike out the claim as an abuse of process. The judge rejected that application. The defendants now appeal on two grounds: first, the claimant should have brought his claim by judicial review; secondly, the defendants' alleged non-compliance with section 117 of the 1983 Act does not entitle the claimant to recover damages for unjust enrichment or restitution. The first ground of appeal raises a clean point of law, capable of resolution on the basis of the pleadings. I decide that point against the defendants. The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out. In the result, therefore, if my Lords agree, this appeal will be dismissed." 2017‑12‑13 23:00:29 2017 cases, After-care, Cases, Judgment available on Bailii


* Withdrawal of CANH NHS Trust v Y [2017] EWHC 2866 (QB)"This is a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient's family are agreed that it is not in the patient's best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn." 2017‑11‑26 01:18:30 2017 cases, Cases, ICLR summary, Medical treatment cases, Judgment available on Bailii


Bunting v W [2005] EWHC 1274 (Ch) — "By the Application the Receiver seeks an order against the Respondent, to whom I shall refer as ("Mr W") that the accounts he delivered in his capacity as Receiver of M for the year ending 21st April 1994 and thereafter annually until year ending 21st April 2002 be re-opened or set aside. The application further seeks an order that Mr W deliver fresh accounts verified by affidavit, identifying (amongst other matters) the funds or assets of M used directly or indirectly for the personal benefit of Mr W or his family; that the Receiver be given permission to raise objections and further inquiries as to whether or not Mr W is to be entitled to charge remuneration for the services of himself and his wife in caring for or attending on M and an order that he should pay into the Court of Protection such sums as may be found due on taking the accounts and inquiries. In the event that there is a jurisdictional impediment to an order for payment into court the Receiver seeks an order authorising her pursuant to section 96(1) (i) of MHA 1983 to make an application to the High Court pursuant section 139(2) MHA, 1983 for leave to bring proceedings against Mr W to recover the sums found due on taking the accounts and inquiries." 2017‑11‑26 01:16:02 2005 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript


* After-care payments and double recovery Tinsley v Manchester City Council [2017] EWCA Civ 1704"The question in this appeal is whether a person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released from detention but still requires "after-care services" is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor." 2017‑11‑08 21:55:03 2017 cases, After-care, Cases, ICLR summary, Judgment available on Bailii


* Disposal of Ian Brady's body Oldham MBC v Makin [2017] EWHC 2543 (Ch)"This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady, one of the infamous Moors murderers." 2017‑11‑05 23:42:48 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous

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