Category

Other capacity cases

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Page and summaryDate added to siteCategories
Re DB [2016] EWCOP 30, [2016] MHLO 59 — "DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court." 2017-02-122016 cases, No summary, Other capacity cases, Transcript
OH v Craven [2016] EWHC 3146 (QB), [2016] MHLO 52 — "This brings me back to the focus of my concern. The firm of solicitors who have acted in the successful litigation will have established a relationship of trust and confidence with the claimant or the litigation friend. At the successful conclusion of the litigation the person in whom trust is reposed then suggests a further transaction out of which its associate will derive a personal benefit. The adviser suggests that a private trust is the preferable arrangement, and that its associated trust corporation should be appointed trustee and should charge for acting, although there are many other trust corporations who could fulfil the role. So the client is retained for the long term. The solicitors before me suggested that this arrangement was not about an integrated business model (whereby the litigation solicitors secure for their associate the future income stream of management fees, the size of which will be under its control, together with any transactional fees) but was an ..→2016-12-092016 cases, ICLR summary, No summary, Other capacity cases, Transcript
Re Clarke [2016] EWCOP 11, [2016] MHLO 33 — "In 2012, I gave three judgments in this matter. ... A written application has now been made by Mr Michael Clarke on 3 September 2015 to vary the order of 9 October 2012 so as to allow the sale of Mrs Clarke’s Blackpool property. There has also been a request by Ms Angela Wilde and Mr Kevin Clarke for access to the property in order to inspect and maintain it, but no application has been issued, despite time being allowed. The application and request are both opposed." 2016-08-312016 cases, No summary, Other capacity cases, Transcript
PJV v Assistant Director Adult Social Care Newcastle City Council [2016] EWCOP 7, [2016] MHLO 28 — "I am pleased record that the parties addressed these points [(i) the imposition of a term in a trust directed to the risk that a perpetrator would benefit from the award, (ii) the terms of the appointment of a deputy, (iii) the declaratory relief granted and the discharge of the Deputy, and (iv) the Peters undertaking and a restriction on the powers of the trustees]. I attach in Parts 1 and 2 of the Schedule hereto (i) the wording for the appointment of a deputy that was agreed, and (ii) the terms of the trust that were agreed (anonymised save for the identity of the original trustee). I also record that, as the appointment of the deputy was discharged, it was agreed that there was no need for a Peters undertaking. It seems to me that the agreed wording for the appointment of a deputy should be a useful precedent or starting point in other cases." (CICA case.) 2016-08-292016 cases, No summary, Other capacity cases, Transcript
WBC v Z [2016] EWCOP 4, [2016] MHLO 27 — "The central issue which arises in this case is whether risks taken by a 20-year old young woman with autism represent 'unwise' decision-making, or evidence her lack of capacity." 2016-08-292016 cases, No summary, Other capacity cases, Transcript
PJV v Assistant Director Adult Social Care Newcastle City Council [2015] EWCOP 87, [2015] MHLO 138 — "The appeal before me ... relates to the part, if any, that the Court of Protection must play in the finalisation of an award of compensation under the relevant scheme that the Second Respondent (CICA) has decided and the applicant has agreed is to be held on trust." 2016-08-292015 cases, ICLR summary, No summary, Other capacity cases, Transcript
V v Associated Newspapers Ltd [2015] EWCOP 88, [2015] MHLO 128 — "I do not propose to say very much in this judgment. The reason I do not propose to say very much is that I am pleased to report that the media respondents have indicated to me that they would wish to put in some further evidence relating to the public interest in identifying C. They would also wish to (and I can understand why they would wish to) put in evidence relating to criticism of an approach by a journalist employed by one of them. Additionally and, to my mind, importantly, they also wish to take the opportunity, if so advised, to put in evidence and/or representations on more general points concerning the mechanics and principles that arise in respect of Court of Protection proceedings that the court directs are to be heard in public and in respect of which the court makes some form of reporting restriction order or anonymity order. ... In those circumstances, it seems to me that it is inevitably appropriate to continue the injunction until 4.30 on the day I hand down ..→2015-12-222015 cases, No summary, Other capacity cases, Transcript
V v Associated Newspapers Ltd [2015] EWCOP 83, [2015] MHLO 127 — "MacDonald J ... concluded C did have capacity to refuse the treatment and dismissed the application by the Hospital Trust. C, sadly, died on 28 November 2015. ... I was notified at about 5.45 pm on 2 December 2015 that an application was likely to be made by Mr Vikram Sachdeva Q.C. on behalf of C's daughter, V, for the RRO to be extended after C's death. ... There is no issue between the parties that the court has jurisdiction to extend a RRO in these circumstances. ... I concluded the RRO should be extended for 7 days to enable an effective inter partes hearing to take place." 2015-12-222015 cases, No summary, Other capacity cases, Transcript
King's College Hospital NHS Foundation Trust v C [2015] EWCOP 80, [2015] MHLO 125 — "The question in this difficult and finely balanced case is whether C has the capacity to decide whether or not to consent to the life saving treatment that her doctors wish to give her following her attempted suicide, namely renal dialysis. Without such treatment the almost inevitable outcome will be the death of C. If the treatment is administered the likelihood is that it will save C's life, albeit that there remains an appreciable and increasing possibility that C will be left requiring dialysis for the rest of her life. C now refuses to consent to dialysis and much of the treatment associated with it. ... For the reasons set out above I am not satisfied on the evidence before the court that the Trust has established on the balance of probabilities that C lacks capacity to decide whether or not to accept treatment by way of dialysis. ... [A] capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends ..→2015-12-222015 cases, No summary, Other capacity cases, Transcript
Re HNL: ATL v Public Guardian [2015] EWCOP 77, [2015] MHLO 122 — "This is an application regarding the payment of a gratuitous care allowance. To describe the allowance as 'gratuitous' is slightly incongruous, as it is a payment towards the cost of maintenance of a close relative, who provides care and case management services to someone who is severely incapacitated because of an impairment of, or a disturbance in the functioning of, the mind or brain. ... The Public Guardian is currently reviewing all gratuitous care allowances paid by deputies to family members, particularly in cases where the person to whom the proceedings relate has been awarded damages for clinical negligence or personal injury. Because the number of families who are receiving allowances of this kind and are affected by the Public Guardian's review runs into thousands, I have concluded that it would be in the public interest to publish this judgment. ... Having regard to all the circumstances, therefore, I am satisfied that it is in Helen's best interests for Adrian to ..→2015-12-222015 cases, No summary, Other capacity cases, Transcript
Health Service Executive of Ireland v CNWL [2015] EWCOP 48, [2015] MHLO 119 — "Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?" 2015-12-212015 cases, Deprivation of liberty, No summary, Other capacity cases, Transcript
St George's Healthcare NHS Trust v P and Q [2015] EWCOP 42, [2015] MHLO 115 — "On 20 January 2015 the Health Trust responsible for his care made an application seeking declarations in this very serious medical case. They seek declarations: (i) That he lacks capacity (this is uncontentious); (ii) That it is not in his best interests to receive cardio pulmonary resuscitation (CPR) in the event of cardiac arrest (this is also now uncontentious); and (iii) As to whether it is lawful to continue to provide renal replacement therapy (RRT), the Trust wish to discontinue life sustaining treatment with the inexorable and inevitable consequence that as a result P would quickly die. ... There is almost nothing to rebut the very strong presumption that it is in P's best interests to stay alive. I order and direct that the renal replacement therapy should continue. ... The application was launched, it might be thought, somewhat precipitously, before any SMART testing had been undertaken. ... Therefore in all cases where there is any question of doubt about diagnosis, in ..→2015-12-212015 cases, No summary, Other capacity cases, Transcript
Health Service Executive of Ireland v PA [2015] EWCOP 38, [2015] MHLO 107 — "I turn to the specific orders in these three cases. In each case, I conclude that the individual – PA, PB and PC – is an adult within the meaning of paragraph 4 of the Schedule. I conclude that each is habitually resident in the Republic of Ireland. Having considered the orders of the Irish Court, and the provisions in each order that amount to "protective measures" within the meaning of Schedule 3, (including, in each case, the provision that each individual shall be placed and detained at St Andrew's and the various ancillary orders to facilitate and support the placement and detention), I conclude that there are no grounds for refusing to recognise the measures under paragraph 19(3) or (4). I conclude in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); that in each case the individual – PA, PB and PC – satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; that the orders ..→2015-12-182015 cases, ICLR summary, Other capacity cases, Transcript
Winspear v City Hospitals Sunderland NHSFT [2015] EWHC 3250 (QB), [2015] MHLO 104 — (1) The core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity. If it is both practicable and appropriate to consult before doing so then, in the absence of some other compelling reason against consultation, it would be procedurally flawed to proceed without consultation. It would not meet the requirements of MCA 2005 s4(7); it would accordingly not be in accordance with the law. It would be an interference with Article 8(1) that is not justified under Article 8(2). (2) The claimant (patient's mother) sought damages both personally and as personal representative. The judge was not persuaded that she has any personal claim for damages, and decided that a declaration reflecting the procedural breach of Article 8 was sufficient. 2015-11-292015 cases, ICLR summary, Other capacity cases, Transcript
Re RS [2015] EWCOP 56, [2015] MHLO 85 — "The matters before the court proceed as a challenge to the standard authorisation pursuant to Section 21A of the Mental Capacity Act 2005. ... On 28th May ... capacity being the gateway to the jurisdiction of this court a report was ordered pursuant to Section 49 of the Mental Capacity Act 2005 ... I am not prepared to vary or alter the principle behind the original order of 28th May. Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere." 2015-10-312015 cases, No summary, Other capacity cases, Transcript
Newcastle City Council v PV [2015] EWCOP 22, [2015] MHLO 51 — "This judgment considers the role of the Court of Protection in connection with applications to the Criminal Injuries Compensation Authority ('CICA'). In particular, it looks at cases in which the CICA requires a trust to be created in order to exclude any possibility that the assailant may benefit from the compensation award. These cases arise almost exclusively in the context of domestic violence, where the assailant is a family member." [See appeal decision.] 2015-07-202015 cases, No summary, Other capacity cases, Transcript
R (MT) v Oxford City Council [2015] EWHC 795 (Admin), [2015] MHLO 47 — The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the Housing Act 1996. (1) The claimant's argument that Article 14 (with Article 8) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 National Assistance Act 1948). 2015-06-262015 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
A Healthcare NHS Trust v P and Q [2015] EWCOP 15, [2015] MHLO 23 — "The Trust ... applied to the Court for a declaration in P's best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. ... At the same time they also applied for a reporting restriction order with accompanying documentation. When they sought to serve that material on the Press Association through the service known as CopyDirect, but now in fact called the Injunctions Alert Service, the second respondent objected to the disclosure of any identity either of P or of P's family. ... As a result I listed a hearing ... for the Court to consider four questions: (Generally) (1) Whether in applications for reporting restrictions orders the applicant, when notifying the Press of the application, is required to identify the parties and or P. (Specifically in this application) (2) Whether further hearings in these proceedings should be heard in public. (3) Whether there should be any reporting restrictions in relation to these ..→2015-03-242015 cases, No summary, Other capacity cases, Transcript
YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18 — This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed ..→2015-02-122015 cases, Detailed summary, Other capacity cases, Transcript, Upper Tribunal decisions
MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10 — (1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a ..→2015-01-312015 cases, Brief summary, ICLR summary, Other capacity cases, Transcript
Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18, [2015] MHLO 7 — "This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement ('CFA'). The issue is whether the CFA terminated automatically by reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips J, sitting in the Queen's Bench Division with assessors, held in a clear and cogent judgment that the CFA was not frustrated ... At the conclusion of the hearing of the appeal we announced that the appeal would be dismissed for reasons to be given in writing at a later date. These are my reasons for dismissing it." 2015-01-312015 cases, No summary, Other capacity cases, Transcript
Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB), [2014] MHLO 142 — "These costs appeals raise the question of whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor's retainer. The question is currently of particular importance for solicitors conducting personal injury claims pursuant to conditional fee agreements entered into before 1 April 2013, in respect of which success fees continue to recoverable from defendants ... If such an agreement is found to have terminated by reason of the supervening incapacity of the claimant ... it would not now be possible to replicate the effect of the original contractual arrangements between solicitor and client given that success fees are not generally recoverable in respect of agreement made on or after 1 April 2013 ... No matter how short the period of incapacity ... nor how quickly a deputy was appointed by the Court of Protection in respect of the claimant, the original CFA would be lost and could ..→2015-01-312014 cases, ICLR summary, Other capacity cases, Transcript
Kicks v Leigh [2014] EWHC 3926 (Ch), [2014] MHLO 136 — "The Claimants claim that the transfer by Mrs Smith to the Defendant of the Proceeds should be set aside on either of two grounds, namely that: (1) Mrs Smith lacked the mental capacity to make such a gift or transfer; (2) The gift or transfer was procured by the Defendant's exercise of undue influence over Mrs Smith." 2014-12-312014 cases, No summary, Other capacity cases, Transcript
Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWCA Civ 1350, [2014] MHLO 134 — This appeal by Aster Healthcare was unsuccessful. 2014-12-312014 cases, Community care, No summary, Other capacity cases, Transcript
Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWHC 77 (QB), [2014] MHLO 133 — "This is an appeal from the decision ... to grant summary judgment to the Claimant in a claim against the Estate of the late Mr Mohammed Shafi for outstanding care home fees. It raises interesting and important issues about the relationship between section 7 of the Mental Capacity Act 2005 and the provisions of Part III of the National Assistance Act 1948, Part III of the National Health Service and Community Care Act 1990, and related statutes, regulations and guidance that concern the obligations or powers of a local authority to provide residential accommodation and care services for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. ... The total amount claimed is £62,199.94. The key issue is who, if anyone, is legally liable for payment of fees to the Claimant? There are only two candidates; the Estate of the late Mr Shafi (represented by his wife), and Brent." 2014-12-312014 cases, Community care, ICLR summary, Other capacity cases, Transcript
Royal Free NHSFT v AB [2014] EWCOP 50, [2014] MHLO 127 — "The Trust seeks three declarations that: (a) AB lacks capacity to consent to medical treatment, including to a Caesarean Section; (b) AB lacks capacity to monitor and regulate her own intake of food and/or drink; (c) AB lacks capacity to decide whether to comply with her regime of diabetic medication." 2014-12-302014 cases, No summary, Other capacity cases, Transcript
Gloucestershire CCG v AB [2014] EWCOP 49, [2014] MHLO 126 — "All parties are now agreed that AB's life is futile, in the sense of that word used by Lord Goff in the Bland case. ... AB has no awareness. He merely exists. There is no prospect of recovery. This court accepts the fundamental importance of the sanctity of life, but, as Butler-Sloss P noted in the passage cited above, that is not an absolute principle and does not impose an obligation to provide treatment where life is futile. ... I unhesitatingly conclude that ... it would be in his best interests for artificial nutrition and hydration to be withdrawn, provided this is carried out in an appropriate fashion by nursing staff trained in the provision of palliative care. In his final report, Professor Wade makes a number of recommendations as to the management of the withdrawal of artificial nutrition and hydration and subsequent treatment ... and I endorse those recommendations." 2014-12-302014 cases, No summary, Other capacity cases, Transcript
An English Local Authority v SW and A Scottish Local Authority [2014] EWCOP 43, [2014] MHLO 122 — "The issue in this case is where an adult ('SW'), who lacks capacity, is habitually resident. This is for the purposes of determining whether the English court has jurisdiction to deal with applications under the Mental Capacity Act 2005. ... The parties' respective positions are as follows. The Official Solicitor submits that SW is habitually resident in England and Wales. The [English Local Authority] and the [Scottish Local Authority] submit that she is habitually resident in Scotland." 2014-12-302014 cases, No summary, Other capacity cases, Transcript
Derbyshire County Council v AC [2014] EWCOP 38, [2014] MHLO 121 — "In inviting the Court of Protection to exercise its jurisdiction, the Local Authority asserts that AC lacks capacity in the following areas: (i) to litigate in these proceedings; (ii) to make choices about her future care, therapeutic and educational needs; (iii) in relation to contact with others; and (iv) in making informed decisions about her future residence. In respect of (i)-(iii) above, the Local Authority invites me to make final declarations under section 15 of the Mental Capacity Act 2005. In respect of (iv) it invites me to make an interim declaration under section 48 of the 2005 Act, pending further capacity assessments of AC. The Local Authority has invited the court to consider AC's capacity to consent to sexual relations; it invites me to conclude that she does have capacity in this regard. The Local Authority further invites me to make limited best interests decisions following on from the capacity declarations. Specifically, and importantly, it invites me to declare ..→2014-12-302014 cases, Capacity to consent to sexual relations, No summary, Other capacity cases, Transcript
A Local Authority v M [2014] EWCOP 33, [2014] MHLO 119 — (1) Legal Aid: "One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy." (2) Disclosure: "In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. ... This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure." (3) ..→2014-12-302014 cases, Brief summary, Other capacity cases, Transcript
NHS Trust v FG [2014] EWCOP 30, [2014] MHLO 118 — "I have been invited by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment. There is concern that in a number of recent cases there has not been a full appreciation or understanding of: (a) the planning to be undertaken in such cases; (b) the procedures to be followed; (c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and (d) the evidence required to support an application to the court." 2014-12-302014 cases, ICLR summary, Other capacity cases, Transcript
Re DM [2014] EWHC 3119 (Fam), [2014] MHLO 112 — "This Claimant local authority sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult, which contemplated: (i) interference with the mother/baby relationship following the birth, to a degree which involved some unspecified level of forced separation and, potentially, removal of the child; (ii) that the mother should not be informed of key aspects of the plan. I phrase the ambit of the relief sought carefully, because it seems to me that, whilst the local authority thought long and hard about the birth plan, it had not managed to reflect fully on the practicalities, extent of their intervention or the proportionality of the measures required." 2014-12-302014 cases, No summary, Other capacity cases, Transcript
Bradbury v Paterson [2014] EWHC 3992 (QB), [2014] MHLO 110 — "The application before me raises a novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor's costs ceases to be available." 2014-12-302014 cases, No summary, Other capacity cases, Transcript
LBX v K, L and M [2012] EWHC 439 (Fam), [2012] MHLO 185 — "The central issue that I have to determine is whether it is in L’s best interests that he should remain in supported living accommodation or return home. He has been living in supported accommodation called the J placement, on a trial basis, since 24th August 2011. The LBX submit that L should remain in supported living accommodation; this is supported by the OS on behalf of L and by M. K contends that L should return to live with him as this accords with his wishes or his wishes are difficult to determine and all the stated benefits that are relied on to support the decision for L to live in supported living accommodation can be achieved by L living at home, with all the additional benefits that living within the family brings L." 2014-11-082012 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
LBX v K, L and M [2011] EWHC 2419 (Fam) — "The issues to be determined at this hearing are: (i) whether it is in L’s best interest to move to supported living accommodation on a trial basis; (ii) whether the hearing listed in September 2011 is required and, (iii) any further directions." 2014-11-082011 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
LBX v K, L and M [2010] EWHC 2422 (COP) — A summary will be added when the judgment has been located. 2014-11-082010 cases, Missing from Bailii, No summary, No transcript, Other capacity cases
Derbyshire County Council v Kathleen Danby [2014] EWCOP B26, [2014] MHLO 106 — "Today was listed to give Mrs Danby the opportunity of persuading me that the sentence I imposed in April was wrong, that I should reduce it, mitigate it or even quash it, and she has failed to avail herself of that opportunity. So, in the circumstances, I have no alternative other than to leave the sentence outstanding, together with the warrant of arrest. If Mrs Danby is arrested pursuant to that warrant she can apply to purge her contempt and I will see her as soon as is possible to look at the matter." 2014-11-042014 cases, No summary, Other capacity cases, Transcript
BIM v MD [2014] EWCOP 39, [2014] MHLO 100 — Dispute over who should act as property and affairs deputy. 2014-10-302014 cases, No summary, Other capacity cases, Transcript
Re DG: David v Peter [2014] EWCOP 31, [2014] MHLO 94 — Contested application for the appointment of a deputy for property and affairs. 2014-09-092014 cases, No summary, Other capacity cases, Transcript
MAP v RAP [2013] EWHC 4784 (Fam), [2013] MHLO 151 — A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance. 2014-08-242013 cases, Brief summary, Other capacity cases, Transcript
LBX v K, L and M [2013] EWHC 3230 (Fam), [2013] MHLO 148 — "The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. ... Having considered all the evidence and the submissions that have been made, I have reached the conclusion that there does need to be a further assessment as to L’s capacity." 2014-08-072013 cases, 39 Essex Street summary, Other capacity cases, Transcript
LBX v TT [2014] EWCOP 24, [2014] MHLO 84 — (1) Consideration of evidence relevant to the capacity of TT to litigate, to make decisions about residence, contact and her package of care, and her capacity to consent to sexual relations, and findings in that regard. (2) Consideration of "(i) How I should approach a 'best interests' decision at an interim hearing (MCA 2005 s48) which has been set up for the calling of reasonably extensive oral evidence; (ii) What factors should influence the exercise of the court's discretion in deciding whether there should be a finding of fact hearing at an interim (or final) hearing?" (3) Findings of fact. (4) Best interests and declarations. 2014-08-062014 cases, 39 Essex Street summary, Other capacity cases, Transcript
LB Islington v QR [2014] EWCOP 26, [2014] MHLO 80 — "This is an application originally made by Camden & Islington NHS Foundation Trust for an order that QR’s current tenancy of a property owned by the London Borough of Islington be terminated due to QR's lack of capacity to make such decision for herself. ... In my judgment QR lacks capacity to make the decisions which are at issue in the case. ... Is this one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity? ... It would fly in the face of my own experience of dealing with the case to find that QR lacks capacity to litigate. ... Removing a person’s capacity to litigate is a significant interference. I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate." 2014-08-012014 cases, 39 Essex Street summary, Other capacity cases, Transcript
Re RGS (No 3) [2014] EWCOP B12, [2014] MHLO 76 — "The primary issue was whether it continued to be in RGS's best interests to reside at X Care Home having regard to the fact that he had been injured there. The two secondary issues concerned contempt of court and reporting restrictions." 2014-08-012014 cases, No summary, Other capacity cases, Transcript
Re RGS (No 2) [2013] MHLO 147 (COP) — "On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended." 2014-08-012013 cases, No summary, Other capacity cases, Transcript
Re P (capacity to tithe inheritance) [2014] EWCOP B14, [2014] MHLO 74 — Headnote from judgment: 'Application by the local authority deputy for property and affairs - Whether P has capacity to tithe 10% of his inheritance to the Church of the Latter Day Saints - Mental Capacity Act 2005 test and the common law test in Re Beaney - Whether such a gift is in P's best interests - Whether P has litigation capacity' 2014-08-012014 cases, No summary, Other capacity cases, Transcript
Derbyshire County Council v Kathleen Danby [2014] EWCOP B22, [2014] MHLO 73 — "Before me today the local authority contends that this Respondent Grandmother, Kathleen Danby, is in breach to a significant degree of the injunction granted by Her Honour Judge Thomas. ... Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has. I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment. ... In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months' imprisonment concurrently. I shall issue a warrant for her arrest and list the matter for review, I think in two months' time, unless Miss Cavanagh tells me that it is a wrong date to choose, in which case I shall ..→2014-08-012014 cases, No summary, Other capacity cases, Transcript
A Local Authority v B, F and G [2014] EWCOP B21, [2014] MHLO 71 — "The local authority seeks that the father and grandmother should not have any contact with her save by indirect supervised telephone calls once every four weeks and no other. The local authority takes the view that that position should continue for a period of five years. ... However, should the restriction of applications to Court be as long as five years? I have borne in mind the very careful submissions of Ms. Lattimer, and I bear in mind, too, that B wants to see her father, even though she does not appreciate the dire emotional effects he appears to have had on her. I have concluded that it would be right to restrict applications to vary the injunction for a period of four years only. That is still a very substantial period and quite outside the norm." 2014-08-012014 cases, No summary, Other capacity cases, Transcript
A Local Authority v B, F and G [2014] EWCOP B18, [2014] MHLO 70 — "This case raises the novel point as to whether or not a Hadkinson order can be granted in the Court of Protection and whether or not, in the circumstances of this particular case, it should be. I am unaware of there being any previous such orders in the Court of Protection, though it seems to me that that is no impediment to one being made in a case like this involving contempt, such as this." 2014-08-012014 cases, No summary, Other capacity cases, Transcript
Press Association v Newcastle Upon Tyne Hospitals Foundation Trust [2014] EWCOP 6, [2014] MHLO 68 — "This application arising from proceedings in the Court of Protection raises questions about the continued confidentiality after a person's death of information gathered during litigation occurring during her lifetime. The first question is whether an order that preserving the person's anonymity (and hence the confidentiality of information about her) can continue to have effect after her death. If such a power exists, the second question is whether it should be exercised in the present case. For the reasons set out below, I consider that the court does have the power to preserve the anonymity of the protected person after death but that in this case the balance falls in favour of lifting that anonymity." 2014-08-012014 cases, No summary, Other capacity cases, Transcript
Re EU (Appointment of deputy) [2014] EWCOP 21, [2014] MHLO 64 — "EU's sons, JU and TU, have objected to an application by Suffolk County Council to be appointed as his deputy for property and financial affairs. ... Having regard to all the circumstances, therefore, I am satisfied that it is in EU's best interests to appoint Suffolk County Council to be his deputy for property and affairs and to dismiss his sons' objections." 2014-08-012014 cases, No summary, Other capacity cases, Transcript
GW v A Local Authority [2014] EWCOP 20, [2014] MHLO 59 — "In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of ..→2014-08-012014 cases, 39 Essex Street summary, Other capacity cases, Transcript
X County Council v M [2014] EWHC 2262 (Fam), [2014] MHLO 54 — "On 16 May 2014 I heard two applications by the Applicant local authority, namely: (i) an application under the inherent jurisdiction of the High Court for permission not to disclose to the First Respondent, M, the care plan for her unborn child namely to remove the child at birth; and (ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court. I granted those applications at a hearing on 20 May at which further evidence in support of the applications had been filed. I reserved judgment." 2014-07-282014 cases, No summary, Other capacity cases, Transcript
LB Redbridge v G (No 5) [2014] EWCOP 17, [2014] MHLO 53 — (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or ..→2014-07-282014 cases, 39 Essex Street summary, LPA cases - all, LPA cases - other, Other capacity cases, Transcript
United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16, [2014] MHLO 51 — "The critical decision is whether it is in N's best interests to continue invasive, risk laden, medical care as would be involved in a further attempt at artificial feeding. I am utterly convinced that it would not. Accordingly, I declare that it is lawful and in her best interests for the clinicians (a) not to make any further attempt to secure a means of providing artificial nutrition; (b) to withdraw the provision of intravenous fluids and dextrose; and (c) to provide such palliative care and related treatment (including pain relief) as considered appropriate to ensure she suffers the least distress and retains the greatest dignity until such time as her life comes to an end." 2014-07-232014 cases, 39 Essex Street summary, Other capacity cases, Transcript
R (ZYN) v Walsall MBC [2014] EWHC 1918 (Admin), [2014] MHLO 40 — "The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives. ... For the reasons given, I find that the Council's policy on charging for the cost of social care services is unlawful insofar as it takes account of any of the capital derived from the claimant's personal injury settlement." 2014-06-122014 cases, Community care, No summary, Other capacity cases, Transcript
North Somerset Council v LW [2014] EWCOP 3, [2014] MHLO 39 — "At the conclusion of the hearing on 23 April an issue about costs arose. ... I am in no doubt that, on the evidence before me, UHBT fell well short in meeting their duties to LW and her unborn child. ... The cumulative effect of these factors is that part of the hearing on 15 April and the whole of the hearing on 16 April, were completely ineffective. Accordingly I am satisfied that in the premises the court is justified in departing from the general rule that there be no order as to costs: rr 157 & 159. ... Accordingly I propose to order that UHBT pay the whole of the Official Solicitor's costs of 15 and 16 April. In contrast the hearing of 23 April was an effective hearing albeit I ultimately made no order on the full evidence then before the court. Thus the usual rule will apply in respect of the hearing on 23 April, namely UHBT will pay one half of the Official Solicitor's costs for that hearing. Those costs are to be assessed, if not agreed, on a standard basis. In respect of ..→2014-06-102014 cases, No summary, Other capacity cases, Transcript
North Somerset Council v LW [2014] EWHC 1670 (Fam), [2014] MHLO 38 — "In those circumstances I am satisfied that if the mother were to learn of the plan to remove her child at birth there is a very real risk she would harm herself and a very very real risk that she would cause physical harm to her baby. ... On the exceptional facts of this case I was wholly satisfied that the balance fell decisively in favour of making the [Reporting Restrictions Order]. It was the only proportionate course to be taken to secure the safety of the mother and of the child. ... At the hearing on 6 May it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order. ... I am in no doubt that the only order I can make in EW's welfare best interests is an interim care order." 2014-06-102014 cases, No summary, Other capacity cases, Transcript
Sheffield Teaching Hospitals NHS Foundation Trust v TH [2014] EWCOP 4, [2014] MHLO 37 — "On the 14th May 2014 I granted declarations in respect of TH, a 52 year old man presently in a minimally conscious state at what has been described as the lower end of the spectrum of that condition (i.e. a very profound disorder of consciousness). There is no doubt TH lacks capacity to litigate in these proceedings and also lacks the capacity to give or withhold consent to his medical treatment. ... In relation to withdrawal of nutrition and hydration I am persuaded that the correct course is to adjourn this issue to provide for a structured clinical assessment to evaluate whether there is evidence that TH's primary neurological pathways are sufficiently intact to permit any evidence of awareness to be detected and fully to assess, over a set period of time, TH's general awareness, responsiveness and capacity to experience pain. The National Clinical Guidelines have been drawn to my attention in some detail and Professor Barnes has highlighted the benefits of a standard assessment ..→2014-06-102014 cases, No summary, Other capacity cases, Transcript
LB Haringey v CM [2014] EWCOP B23, [2014] MHLO 36 — "This is an objection by a family member to the London Borough of Haringey's application to be appointed as GW's deputy for property and affairs. ... I allow Haringey's application and dismiss CM's objection, and shall make an order appointing the authorised officer of Haringey Council as GW's deputy for property and affairs on the understanding that it is in GW's best interests, and less restrictive of his rights and freedom of action, for him to retain control over his own expenditure to a limit of £200 a week. I am surprised that CM persisted with her application to manage her uncle's property and finances after he had expressed such trenchant opposition to her in his interview with the Special Visitor. ... Nevertheless, GW's views have not always been consistent and this matter was listed for an attended hearing on 22 May 2014, anyway, and in the circumstances I see no reason to depart from the usual order for costs..." 2014-06-102014 cases, No summary, Other capacity cases, Transcript
An NHS Foundation Hospital v P [2014] EWHC 1650 (Fam), [2014] MHLO 35 — "This short judgment explains the reasons for an order I have just made as the out of hours judge in the middle of the night on 13th and 14th May 2014 on an extremely urgent application by a hospital foundation trust for a declaration that it is lawful for its doctors to treat a seventeen-year-old girl following a drug overdose notwithstanding her refusal to consent to that treatment." 2014-06-082014 cases, No summary, Other capacity cases, Transcript
Re Gladys Meek [2014] EWCOP 1, [2014] MHLO 32 — "This is the hearing of an application by Mr Hugh Adrian Scott Jones, the property and affairs deputy for Gladys Meek, for: (i) authority pursuant to section 18(1)(i) of the Mental Capacity Act 2005 to execute a statutory will on behalf of Mrs Meek; and (ii) consequential directions in relation to Mrs Meek’s property and affairs, and in particular: (a) an order calling in the £275,000 security bond of Mrs Meek’s two former property and affairs deputies, Mrs Janet Miller and Mrs Margaret Phyllis Johnson; and (b) a direction as to whether the deputy should refer the conduct of Mrs Miller and Mrs Johnson to the police." 2014-05-182014 cases, No summary, Other capacity cases, Transcript
LB Redbridge v G (No 3) [2014] EWCOP 1361, [2014] MHLO 29 — "These are personal welfare proceedings in the Court of Protection. They relate to an elderly lady, G, who is 94 years old. She is represented by the Official Solicitor as her litigation friend. The proceedings were launched, in circumstances I describe below, by the London Borough of Redbridge. The two other parties to the proceedings are G's two carers, C and F. I have before me an application by Associated Newspapers Limited (ANL), publishers of the Daily Mail." 2014-05-102014 cases, No summary, Other capacity cases, Transcript
LB Redbridge v G (No 2) [2014] EWCOP 959, [2014] MHLO 28 — "It seems to me that, weighing these matters one against the other, it is not in G's best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G's capacity to make such relationships with the press it is, in my judgment, clearly in G's best interests that I should make an interim order that she should not make such communications. ... The second matter which I have been invited to adjudicate upon is what, if any, role should be played by the Applicant authority in the interim period between now and the 2nd May hearing. ... I therefore propose to accede to the application of ..→2014-05-102014 cases, No summary, Other capacity cases, Transcript
The Local Authority v HP [2013] EWCOP B40, [2013] MHLO 145 — "The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. ... They now accept that it is not necessary for a declaration in respect of capacity to marry. ... The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment." 2014-05-022013 cases, No summary, Other capacity cases, Transcript
Julia Lomas v AK (gift application) [2014] EWHC B11 (COP), [2014] MHLO 21 — AK's financial deputy sought the court's approval of a £150,000 gift to AK's parents to allow them to build a suitably-adapted house for when AK stayed in Pakistan each year; she sought a gift as it would be unrealistic in Pakistan to obtain receipts for all expenditure and expensive to translate those received. The Official Solicitor supported the proposed gift only if it proved impossible for AK instead to purchase an interest in the land or part of it. The judge decided that it would be in AK's best interests for a 10-year interest-free £150,000 loan to be made to his parents, and authorised the deputy to make annual gifts of £15,000, from any surplus, to AK's parents to assist them in repaying this loan. This arrangement was preferable to a gift because AK would retain the capital as part of his estate, and it was more likely to ensure that his parents actually carried out the building work; coincidentally, it should avoid inheritance tax. 2014-04-272014 cases, Brief summary, Other capacity cases, Transcript
Wandsworth CCG v IA [2014] EWHC 990 (COP), [2014] MHLO 19 — This case illustrates the difficulties in assessing capacity where: (a) the cognitive difficulties of the subject are multi-factorial; (b) there is evidence that the subject displayed strong and challenging pre-morbid personality traits; and (c) there is no doubt that he plainly has capacity in relation to decision-making in some domains of his life. Having heard oral evidence for the jointly-instructed expert neuro-psychiatrist, the court decided that IA had capacity in relation to (a) ongoing medical treatment; (b) future residence and care; and (c) management of his property and affairs. 2014-04-272014 cases, Brief summary, Other capacity cases, Transcript
Newcastle upon Tyne Hospitals Foundation Trust v LM [2014] EWHC 454 (COP), [2014] MHLO 14 — "On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. ...At the end of the hearing I granted the application and made the following declaration: 'It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.' ... I find that LM made a decision that the doctors rightly considered must be respected. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. ..→2014-03-052014 cases, No summary, Other capacity cases, Transcript
LB Redbridge v G [2014] EWHC 485 (COP), [2014] MHLO 13 — "Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. ... I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction. ... The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare. It is my intention to so direct. ... Rule 90 (3) allows me to authorise any person or class of ..→2014-03-052014 cases, No summary, Other capacity cases, Transcript
JS v KB and MP (Property And Affairs Deputy for DB) [2014] EWHC 483 (COP), [2014] MHLO 12 — "This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for: (i) the financial and emotional vulnerability of the person who lacks capacity; and (ii) the requirements for formal, and legal, authorisation for the family's actions, specifically in relation to property and financial affairs. ... For the reasons set out above, the order I make is that: (i) JS shall pay four-fifths of the deputy's litigation costs to date; (ii) JS shall pay two-thirds of the litigation costs of KB. Given the possibility that JS will be unable to fund the costs within a reasonable time, either from the sale of the Spanish property or otherwise, I propose to allow MP to explore the mechanics of an equity release scheme to permit JS to discharge her liability for costs by way of a loan against the equity in Beech Avenue. I give MP leave to apply for such a scheme. ... I give further leave to MP to ..→2014-03-052014 cases, No summary, Other capacity cases, Transcript
Re ES: Kent County Council v PLC and AJS [2014] EWHC B6 (COP), [2014] MHLO 10 — "Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs. ... I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed." 2014-03-042014 cases, No summary, Other capacity cases, Transcript
Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), [2014] MHLO 9 — "My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her." 2014-03-042014 cases, No summary, Other capacity cases, Transcript
RC v CC [2014] EWHC 131 (COP), [2014] MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment." 2014-03-042014 cases, ICLR summary, Other capacity cases, Transcript
Re X, Y and Z (Minors) [2014] EWHC 872 (COP), [2014] MHLO 6 — "On 20th and 29th November 2013, sitting as a judge in the Family Division and in the Court of Protection, I made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother who is a person lacking capacity within the meaning of the 2005 Act. This judgment sets out the reasons for making those orders." 2014-03-042014 cases, No summary, Other capacity cases, Transcript
Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5 — "The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)." 2014-03-042014 cases, No summary, Other capacity cases, Transcript
Re PW (Court of Protection Order) [2014] EWHC B8 (COP), [2014] MHLO 4 — "The applicant in this matter, Sunderland City Council, brings these proceedings for committal against Lindsey M for breach of an order which this court made on 14th October 2013. ... Lindsey M admits that on 28th October she breached the order which the court had made and therefore brought herself within breach of the suspended order for imprisonment which the court had made on 14th October. Upon that date the court made a suspended order, which was suspended upon the basis that she complied with the previous court order and that she did not seek to have contact, or go into the property of PW. ... In all the circumstances, it seems to me that before I determine what is an appropriate sentence in all the circumstances it would be preferable to see whether Miss M, in fact, does carry out what she says to the court she will do, namely not to have a relationship with PW. I make it clear for Miss M's sake that if there are no further breaches then I will deal with the admitted breach by ..→2014-03-042014 cases, No summary, Other capacity cases, Transcript
Re P (Caesarian) [2013] MHLO 127 (COP) — The press has reported this case as follows: Peter Jackson J decided that, in the event of a Caesarian scar rupturing during labour, it was in P's best interests that doctors could intervene and perform a Caesarean section. 2013-12-302013 cases, No summary, No transcript, Other capacity cases
R (Muhammad) v SSHD [2013] EWHC 3157 (Admin), [2013] MHLO 123 — Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused. 2013-12-212013 cases, Brief summary, Other capacity cases, Repatriation cases, Transcript
TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing. 2013-12-202013 cases, Brief summary, Other capacity cases, Transcript
Re Whiting [2013] EWHC B27 (COP), [2013] MHLO 119 — Social services sought to have Leslie Whiting committed to prison for breach of a Court of Protection injunction. The alleged breaches were in August-December 2012 and the court application was made in January 2013 but, owing to procedural irregularities, the hearing did not take place until December 2013. The lack of an intellectually rigorous relationship between the lawyers and the social workers meant that three of the four allegations were inadequately drafted and based on insufficient evidence to meet the criminal standard of proof. Despite the fourth allegation being established, the judge declined to take any action because a year had passed and there had been no subsequent allegations. The injunction, however, was continued for a further 12 months. 2013-12-202013 cases, Brief summary, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4048 (Fam), [2013] MHLO 116 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - full judgment, including detailed chronology. [Summary required.] 2013-12-172013 cases, No summary, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4037 (Fam), [2013] MHLO 115 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment. [Summary required.] 2013-12-172013 cases, Brief summary, Other capacity cases, Transcript
Re PO: JO v GO [2013] EWHC 3932 (COP), [2013] MHLO 110 — Judgment relating to Hague Convention on the International Protection of Adults 2000 and MCA 2005 sch 3. [Summary required.] 2013-12-132013 cases, No summary, Other capacity cases, Transcript
Cuthbertson v Rasouli (2013) SCC 53, [2013] MHLO 109 — Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent. 2013-12-122013 cases, Brief summary, Other capacity cases, Transcript
Re Devillebichot (deceased) [2013] EWHC 2867 (Ch), [2013] MHLO 107 — The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence. 2013-12-122013 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4383 (Fam), [2013] MHLO 106 — Decision of Charles J on reporting restrictions in 'forced caesarian' case. [Summary required.] 2013-12-112013 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
An NHS Trust v DE [2013] EWHC 2562 (Fam), [2013] MHLO 78 (COP) — "In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification." [Summary required.] 2013-08-162013 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
Pearce v Beverley (2013) EW Misc 10 (CC), [2013] MHLO 77 — "This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. ... In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007." [Summary required.] 2013-08-162013 cases, No summary, Other capacity cases, Transcript
An NHS Trust v L [2012] EWHC 4313 (Fam), [2012] MHLO 180 (COP) — "By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. ... I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust's application. ... Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L's death and not to prolong, in any meaningful way, his life. I repeat Dr Bell's powerful analysis - It would result in Mr L's death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit." [Summary required.] 2013-08-142012 cases, No summary, Other capacity cases, Transcript
Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, [2013] MHLO 72 — "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then ..→2013-08-082013 cases, Detailed summary, Other capacity cases, Transcript
Loughlin v Singh [2013] EWHC 1641 (QB), [2013] MHLO 71 — "On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the ..→2013-08-082013 cases, No summary, Other capacity cases, Transcript
RC v CC [2013] EWHC 1424 (COP), [2013] MHLO 68 — "The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC's incapacity that enables an application to be made." [Summary required.] 2013-08-082013 cases, No summary, Other capacity cases, Transcript
An NHS Foundation Trust v M and K [2013] EWHC 2402 (COP), [2013] MHLO 67 — "The painful and difficult issues now to be faced by M's family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition." [Summary required.] 2013-08-082013 cases, No summary, Other capacity cases, Transcript
Re Joan Treadwell (Deceased); OPG v Colin Lutz [2013] EWHC 2409 (COP), [2013] MHLO 57 — "This judgment concerns an application by the Public Guardian to enforce a security bond in respect of unauthorised gifts made by the late Mrs Joan Treadwell’s deputy for property and affairs, Colin Lutz." [Summary required.] 2013-08-012013 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
Re Clarke [2013] EWCA Civ 811, [2013] MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters. 2013-07-152013 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Re SK [2013] MHLO 49 — "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.] 2013-07-042013 cases, No summary, Other capacity cases, Transcript
Pitt v Holt [2013] UKSC 26, [2013] MHLO 46 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point. 2013-05-112013 cases, Brief summary, Other capacity cases, Transcript
Re GM: MJ and JM v The Public Guardian [2013] EWHC 2966 (COP), [2013] MHLO 44 — "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place." [Summary required.] 2013-05-072013 cases, No summary, Other capacity cases, Transcript
Stoke City Council v Maddocks [2013] EWHC 1137 (COP), [2013] MHLO 38 — (1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) ..→2013-05-042013 cases, Brief summary, Other capacity cases, Transcript
Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] MHLO 36 — "Mr Leslie Stolkin ..., some seven weeks before his death, executed a codicil. This case concerns the validity of that document. ...[O]ne of the deceased's sons, Mr Gary Stolkin ... disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. ... In my judgment, the Disputed Codicil is valid, and it should be admitted to probate." [Summary required.] 2013-05-042013 cases, No summary, Other capacity cases, Transcript
Baker Tilley (A Firm) v Makar [2013] EWHC 759 (QB), [2013] MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. 2013-04-052013 cases, Brief summary, Other capacity cases, Transcript
R (Chatting) v Viridian Housing [2012] EWHC 3595 (Admin), [2012] MHLO 177 — "This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. ... On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes ..→2013-03-282012 cases, Community care, No summary, Other capacity cases, Transcript
PB v RB [2012] EWHC 4159 (COP), [2012] MHLO 174 — "This decision deals with a fact-finding hearing held on 10-12 September 2012. ... The local authority sought to prove 13 alleged facts ... " [Summary required.] 2013-03-282012 cases, No summary, Other capacity cases, Transcript
Re RGS [2012] EWHC 4162 (COP), [2012] MHLO 173 — "RGS is the person concerned in these proceedings ('P'). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure." [Summary required.] 2013-03-282012 cases, No summary, Other capacity cases, Transcript
Mihailovs v Latvia 35939/10 [2013] ECHR 65, [2013] MHLO 15 — "The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights." 2013-03-262013 cases, ECHR, MHLR summary, Other capacity cases, Transcript
Lashin v Russia 33117/02 [2013] ECHR 63, [2013] MHLO 14 — "The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry." [Summary required; detailed external summary available.] 2013-03-262013 cases, ECHR, MHLR summary, Other capacity cases, Transcript
WCC v AB [2012] MHLO 168 (COP) — Whether AB's aunt should be appointed as litigation friend. [Summary required; detailed external summary available.] 2013-03-262012 cases, No summary, Other capacity cases, Transcript
LB Waltham Forest v WD [2010] MHLO 195 — "The issues which I have to consider are four fold: first, WD’s future accommodation and residence; secondly, his contact arrangements with other members of his family; thirdly, the application by the Local Authority for the appointment of a deputy under the Mental Capacity Act 2005; and fourthly, whether or not these proceedings should now come to an end. Other matters of the care plan are fully agreed between the parties. As I have said, the plan put before me is comprehensive and this court is happy to endorse it." [Summary required.] 2013-03-262010 cases, No summary, Other capacity cases, Transcript
Turner v Phythian [2013] EWHC 499 (Ch), [2013] MHLO 10 — "Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. ... The second ground is that Iris lacked mental capacity to make the will. ... The third ground is that Iris did not know or approve of the contents of the will. ... I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will." [Summary required.] 2013-03-252013 cases, No summary, Other capacity cases, Transcript
ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69, [2013] MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.] 2013-03-252013 cases, Brief summary, Other capacity cases, Transcript
DO v LBH [2012] EWHC 4044 (Admin), [2012] MHLO 165 — "I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings." [Summary required.] 2013-03-252012 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
A PCT v LDV [2013] EWHC 272 (Fam), [2013] MHLO 6 — "The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?" [Summary required; detailed external summary available.] 2013-03-252013 cases, Deprivation of liberty, No summary, Other capacity cases, Transcript
Re P (fair trial); Knowsley MBC v P [2013] MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' ..→2013-02-102013 cases, Brief summary, No transcript, Other capacity cases
J Council v GU [2012] EWHC 3531 (COP), [2012] MHLO 137 — "Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts." [Detailed summary available.] 2012-12-192012 cases, Detailed summary, Other capacity cases, Transcript
Calvert v Clydesdale Bank Plc [2012] EWCA Civ 962, [2012] MHLO 131 — There is no requirement for a mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. Accordingly, the bank were entitled to enforce their mortgage (by the appointment of receivers who sold the property) despite the mortgagor's lack of capacity. 2012-12-182012 cases, Brief summary, Other capacity cases, Transcript
X v Finland 34806/04 [2012] ECHR 1371, [2012] MHLO 128 — "The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication." [Detailed summary available via external link.] 2012-12-182012 cases, Detailed summary, ECHR, Other capacity cases, Transcript
Dunhill v Burgin [2012] EWHC 3163 (QB), [2012] MHLO 115 — The 'compromise rule' in the Civil Procedure Rules provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court. (1) The rule applies to a claim settled at the door of the court where at the time of the settlement the claimant was not known to lack capacity. (2) The claimant was a protected party ('a party, or an intended party, who lacks capacity to conduct the proceedings') and the Court of Appeal had decided that she lacked capacity to settle her claim. (3) The compromise in this case was invalid; the judgment based on it must be set aside, and the substantive claim should proceed to a trial on the merits. (4) The judge granted a certificate under s12 Administration of Justice Act 1969 to enable an application to be made to the Supreme Court for permission to bring a 'leapfrog' appeal from this decision. ..→2012-11-172012 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript
Re AS; SH v LC [2012] MHLO 113 (COP) — AS's niece objected to a panel solicitor's application to be appointed deputy with specific authority to sell a property. (1) Generally speaking the order of preference for the appointment of a deputy is: (a) P's spouse or partner; (b) any other relative who takes a personal interest in P’s affairs; (c) a close friend; (c) a professional adviser, such as the family's solicitor or accountant; (d) a local authority's Social Services Department; and finally (e) a panel deputy, as deputy of last resort. (2) The court prefers to appoint a family member or close friend because of: (a) familiarity with P’s affairs, wishes and communication methods; (b) likely greater ability to consult with P and encourage participation; (c) reasons of economy; (d) the concept of deputyship of last resort. (3) The appointment of a family member will generally be a less restrictive alternative, though the question remains as to whether this will achieve the desired objective as effectively as the ..→2012-11-122012 cases, Brief summary, Other capacity cases, Transcript
A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112 — The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, ..→2012-11-122012 cases, Brief summary, LPA cases - all, LPA cases - capacity to make an LPA, Missing from Bailii, Other capacity cases, Transcript
Stoke City Council v Maddocks [2012] EWHC B31 (COP), [2012] MHLO 111 — (1) One of JM's children, WM, had breached court orders by, amongst other things, (a) arranging for JM to be taken from the care home to hear judgment delivered, and separately to see a solicitor, (b) discussing the possibility of moving back home with him, (c) harassing her father and employees of the local authority and care home. (2) WM was sentenced to five months' imprisonment for contempt because (a) there had been a considerable number of breaches of court orders, and (b) she had no intention, unless restrained by a severe measure by the court, of obeying the orders herself. 2012-11-112012 cases, Brief summary, Other capacity cases, Transcript
Re CA (A Baby); Coventry City Council v C [2012] EWHC 2190 (Fam), [2012] MHLO 110 — The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge ..→2012-11-082012 cases, Detailed summary, Other capacity cases, Transcript
Re Clarke [2012] EWHC 2947 (COP), [2012] MHLO 109 — (1) Michael Clarke's application that the court postpone a decision on costs (and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian) was refused. (2) The costs of the other family members and the deputy would be charged from Ann Clarke's estate. (3) In the light of the one-sided publicity that Michael Clarke gives to the affairs of the family, the three judgments were placed into the public domain. 2012-10-292012 cases, Brief summary, Other capacity cases, Transcript
Re Clarke [2012] EWHC 2714 (COP), [2012] MHLO 108 — Michael Clarke objected to the deputy selling of his elderly mother's (Ann Clarke's) house to pay for future care as he considered it to be his. (1) No party asked for an oral hearing and the judge was satisfied that there was nothing to be gained by that. (2) Thre was a balance to be struck between the consequences of (a) retaining the property and leaving Ann Clarke on a low income, or (b) selling the property and maintaining a higher standard of living for Ann Clarke until the funds are exhausted, with her having no familiar home and, if she lived long enough, no money either. (3) Mrs Clarke's Blackpool property shall not be sold or charged during her lifetime without an order of this Court. (4) The deputyship was therefore discharged. (5) Publication of the judgments was authorised as, given Michael Clarke's comprehensive and long-standing breaches of his mother's entitlement to privacy, the court's reasons should be made known. 2012-10-292012 cases, Brief summary, Other capacity cases, Transcript
Re Clarke [2012] EWHC 2256 (COP), [2012] MHLO 107 — Following an accident, Ann Clarke suffered brain injuries and was awarded damages of £775,000. This money was used to pay for care and buy a home in Blackpool which was worth £200-250,000. The deputy proposed to sell the house to pay for care when the remainder of the money ran out, but Michael Clarke (son and carer) applied to court to prevent this. (1) Ann Clarke had the mental capacity to make a will (in particular, one leaving the house to the applicant and nothing to his siblings). (2) Whether or not Ann Clarke had mental capacity to manage her state pension and benefits it was lawful and in her best interests for these to be paid to her carer(s) to be applied for her benefit. (3) Ann Clarke did not have the mental capacity to decide whether or not her Blackpool property should be sold. 2012-10-292012 cases, Brief summary, Other capacity cases, Transcript
RP v UK 38245/08 [2012] ECHR 1796, [2012] MHLO 102 — The appointment of the Official Solicitor (who decided, against RP's wishes, not to oppose the making of a care order and a placement order) did not breach RP's Article 6 or Article 8 rights. 2012-10-132012 cases, Brief summary, ECHR, Other capacity cases, Transcript
Re SK [2012] EWHC 1990 (COP), [2012] MHLO 98 — "This is an application by the parties to certain Queen's Bench personal injury proceedings who seek in effect to be joined in these Court of Protection proceedings. The subject of both sets of proceedings is SK, a mentally incapacitated adult aged 55. The issue which arises one way or another in both sets of proceedings is as to his care, accommodation and rehabilitation. The two applicants for joinder to these proceedings are (a) CK, aged 52, brother of SK and (b) GA Group PLC, a bus company whose bus struck SK in November 2008, causing him severe lasting brain and physical injuries. That company is the defendant in the Queen's Bench proceedings." [Summary required.] 2012-09-302012 cases, No summary, Other capacity cases, Transcript
Re KK; CC v KK [2012] EWHC 2136 (COP), [2012] MHLO 89 — KK was moved to a care home against her wishes, subject to a DOLS standard authorisation, and appealed under MCA 2005 s21A. (1) Having heard her oral evidence, the judge disagreed with the unanimous expert evidence that she lacked capacity to make decisions about her residence and care. (2) In light of the case law and the facts of the case, she had not been deprived of her liberty. 2012-09-272012 cases, Brief summary, Deprivation of liberty, Other capacity cases, Transcript
Re BS; SC v BS [2012] MHLO 78 (COP) — The jointly-instructed psychiatrist, although an expert in autism, did not have experience of applying the test for capacity in the context of litigation in the Court if Protection, so the court directed that an alternative expert be instructed. 2012-08-172012 cases, Brief summary, Other capacity cases, Transcript
Re DS; A Local Authority v DS [2012] EWHC 1442 (Fam), [2012] MHLO 68 — In this case the President of the Family Division gave guidance on LSC prior authority for expert evidence in the Family Division, and suggested wording for court orders. 2012-06-232012 cases, Brief summary, Other capacity cases, Transcript
Sedge v Prime [2012] MHLO 66 (QB) — "This is an application for an interim payment of £300,000 to enable the Claimant to move from the 'Little Oyster' residential care home, Sheerness, Kent where he currently lives into his own accommodation with a 24 hour care regime. At first this is to be by way of a trial run in a bungalow which has already been rented for one year and adapted for him. If the trial is successful then permanent renting or purchase of a home are the options. If not, return to a residential home is likely." [Summary required.] 2012-06-232012 cases, No summary, Other capacity cases, Transcript
Re G [2012] EWCA Civ 431, [2012] MHLO 52 — The local authority issued proceedings under the court's inherent jurisdiction in relation to a 30-year-old with Downs Syndrome history who was in the exclusive care of her mother. This decision relates to an unsuccessful appeal against case management orders. [Summary required.] 2012-05-052012 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
Verlander v Rahman [2012] EWHC 1026 (QB), [2012] MHLO 49 — Personal injury quantum judgment including the following issues: (1) whether and to what extent the claimant's disabilities were due to frontal lobe brain damage (and are now incapable of significant improvement) or due depression or psychological factors (which may well improve over time); (2) whether the claimant had capacity to manage her properties and affairs. 2012-05-052012 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
LB Haringey v FG (No. 1) [2011] EWHC 3932 (COP) — "In this case there are a number of matters: does H have capacity to conduct litigation; does she have capacity to decide where she should live, or capacity to decide where she should be educated, or capacity to decide on the extent of the contact and relationship she should have with her natural family; capacity to deal with her financial affairs, or to enter into what has been described as a tenancy agreement, and capacity in a sense to judge her own best interests in those respects?" [Summary required.] 2012-05-052011 cases, Missing from Bailii, No summary, Other capacity cases, Transcript
Dunhill v Burgin [2012] EWCA Civ 397, [2012] MHLO 33 — (1) In deciding whether the claimant had capacity to settle a claim for £12,500 (at hearing it would have been worth at least £800,000) the question was not whether she had capacity to enter into that settlement but whether she had capacity to litigate. (2) On the facts, she had lacked capacity, and the compromise would never have been approved by the court. 2012-04-132012 cases, Brief summary, No transcript, Other capacity cases
Re EB; IB v RC [2011] EWHC 3805 (COP) — "This is an application by the applicant, IB, for the removal of the respondent as his mother's deputy for property and affairs. There is also a counter-application by the respondent, RC, for orders that the applicant sign letters of authority in relation to two bank accounts that are held in the joint names of EB and the applicant." [Summary required.] 2012-03-282011 cases, No summary, Other capacity cases, Transcript
DL v A Local Authority [2012] EWCA Civ 253, [2012] MHLO 32 — The local authority brought proceedings under the High Court’s inherent jurisdiction to protect his parents from DL; these proceedings could not have been brought under the MCA 2005 as the parents did not lack capacity under that Act; DL argued that the MCA, by establishing a comprehensive scheme for adults, had displaced the inherent jurisdiction. (1) The inherent jurisdiction of the High Court in relation to vulnerable adults survives the implementation of the MCA 2005, which only relates to adults who lack capacity as defined in the Act. (2) The absence of any express provision in relation to the inherent jurisdiction implies that it continues to be available, as 'the great safety net', where the Act does not apply; in any event, there is a strong policy justification, the protection of vulnerable adults, for this conclusion. (3) The jurisdiction is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason ..→2012-03-282012 cases, Brief summary, ICLR summary, Other capacity cases, Transcript
Seaton v Seddon [2012] EWHC 735 (Ch), [2012] MHLO 28 — Chancery case partly involving, in relation to the fourth claimant, consideration of the effect of mental incapacity on statutory limitation periods. (1) If a claimant is under one disability (minority) when the cause of action accrued, and subsequently under a second overlapping disability (mental incapacity), the limitation period does not run until he is no longer under the second disability. (2) The question of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced (in this case: whether he was 'of unsound mind [meaning that he] by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing or administering his property and affairs' rather than the new test of whether he 'lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings'. (3) On the facts, the fourth claimant was not 'of unsound mind'; hence he would not meet the new test ..→2012-03-242012 cases, Brief summary, Other capacity cases, Transcript
ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. (1) The police actions constituted assault, battery and false imprisonment. There was no need for the police to be aware of the Mental Capacity Act 2005 for the defence in ss5-6 to be made out, but on the facts it was not. When the MCA applies, the common law defence of necessity has no application, but had it applied it would have failed. (2) There was a breach of the DDA 1995 duty to make reasonable adjustments to the normal practice, policy or procedure, and the defence of justification failed. (3) The inhuman or degrading treatment breached Article 3. (4) Even treating purpose and intention as relevant, there was a ..→2012-03-232012 cases, Brief summary, Other capacity cases, Transcript
Long v Rodman [2012] EWHC 347 (Ch), [2012] MHLO 12 — The general guardian (under an order made by a court in Nevada) sought to be appointed deputy in place of the existing deputy. Variation or discharge under s16(7) must be done in accordance with P's best interests; in this case a change of deputy would not be in P's best interests. 2012-03-012012 cases, Brief summary, Other capacity cases, Transcript
Re M [2011] EWHC 3590 (COP) — Under MCA 2005 s63 and schedule 3, which incorporates the Hague Convention on the International Protection of Adults 2000 into domestic law, the High Court recognised and gave effect to an order of the Southern Irish High Court which required M's transfer to and treatment at an English psychiatric hospital. 2012-02-042011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC), [2012] MHLO 5 — The UT judge reviewed his previous decision because he had overlooked a legislative provision which could have had a material effect on the decision: in this case MCA 2005 s7, which provides that 'If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.' (1) Although the purported tenancy agreement between P and her father was void because the lack of capacity was known, under s7 P was still 'liable to make payments in respect of the dwelling which she occupies as her home' so she was entitled to benefits under the Housing Benefits Regulations 2006. (2) Even if 'services' in s7 is not wide enough to cover the provision of accommodation, the common law rules as to necessaries survive and the provision of accommodation is an obvious necessary. 2012-02-042012 cases, Brief summary, Other capacity cases, Transcript
Re H; A Local Authority v H [2012] EWHC 49 (COP), [2012] MHLO 3 — "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.] 2012-01-272012 cases, Capacity to consent to sexual relations, No summary, Other capacity cases, Transcript
DM v Doncaster MBC [2011] EWHC 3652 (Admin) — DM sought to avoid the care home fees for her husband FM who was subject to the deprivation of liberty safeguards: the main argument was that the s22 National Assistance Act 1948 charging provision did not apply because the DOLS created a duty to accommodate within the meaning of s21(8). The court held that: (1) the MCA 2005 did not create either a duty or power to accommodate FM; (2) FM fell within the terms of s21 NAA and was not excluded from its scope by the operation of s21(8); (3) s3 HRA 1998 gave no reason to read down s21(8) to reach any other conclusion; (4) FM's accommodation had thus to be paid for by him or on his behalf, in accordance with s22 and regulations made under it; (5) this is not discriminatory upon an application of Article 14 read with Article 1 of Protocol 1 (FM was not materially in the same position as those who receive after-care under s117 MHA and the State would in any event have offered sufficient justification for the result); (6) ..→2012-01-222011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1 — (1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded. 2012-01-172012 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Other capacity cases, Transcript
Re C; C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP) — C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship. 2012-01-052011 cases, Detailed summary, Other capacity cases, Transcript
Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam) — "The Claimant, whom I shall call Ms B, seeks declarations from the High Court in its exercise of the inherent jurisdiction. She claims that the invasive treatment which is currently being given by the respondent by way of artificial ventilation is an unlawful trespass. The respondent is the NHS Hospital Trust (the Trust) responsible for the hospital which is currently caring for Ms B, (the Hospital). At the request of the court the Official Solicitor instructed Mr Peter Jackson QC to act as Advocate to the Court. The main issue is whether Ms B has the capacity to make her own decision about her treatment in hospital. Underlying this important issue is the tragic story of an able and talented woman of 43 who has suffered a devastating illness which has caused her to become tetraplegic and whose expressed wish is not to be kept artificially alive by the use of a ventilator." [Paras 1 and 2 of judgment.] 2012-01-052002 cases, No summary, Other capacity cases, Transcript
Re AB; AB v LCC (A Local Authority) [2011] EWHC 3151 (COP) — There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P's); (iii) the RPR can and is willing to act as litigation friend in P's best interests; and (iv) the procedure as set out in COP rule 143 is complied with. The judge set out the pros and cons of this course of action; in this case, he appointed the RPR to as P's litigation friend. 2011-12-082011 cases, Brief summary, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 1) [2010] EWHC 2423 (Fam) — This case under the inherent jurisdiction concerned RB's best interests in relation to residence and contact. Of the 16 issues considered by the judge, he found for RB's partner MF in relation to one sub-issue (which was a 'saddening example of the institutional inability of some bureaucracies ever to admit that something has gone wrong') but against him in relation to all others (most of which were MF's unfounded criticisms of almost everybody involved in the case: the judge's own criticisms of Dr Kahtan and the MP are worth reading). Had she not died during the hearing, it would have been, given MF's inability to cooperate with any community care package, in RB's best interests to continue residing at the care home. 2011-12-032011 cases, Brief summary, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 2) [2011] EWHC 112 (Fam) — MF's applications for permission to appeal and for a re-trial were refused as being devoid of merit. 2011-12-032011 cases, Brief summary, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 3) [2011] EWHC 2576 (Fam) — (1) MF's claim for compensation was dismissed as it had no factual foundation; it also had no legal basis. (2) MF sought costs from the local authority; the Official Solicitor sought costs against MF (from a certain date) and the local authority (to the extent that costs were increased by their stance): there was no order for costs, except that MF was to pay 20% of the Official Solicitor's costs between certain dates, to reflect the time spent on the peripheral issues which MF had raised and the 'extravagant, strident and on occasions vicious way in which he chose to pursue them'. 2011-12-032011 cases, Brief summary, COP costs cases, Other capacity cases, Transcript
Re RB (Adult); A London Borough v RB (Adult) (No 4) [2011] EWHC 3017 (Fam) — There is no statutory provision regulating the publication or reporting of judgments given or handed down in the Family Division in proceedings under the inherent jurisdiction in respect of adults, so it is not a contempt of court to publish or report a judgment (whether in whole or in part) merely because it was given or handed down in private (in chambers) and not in open court. 2011-11-212011 cases, Brief summary, Other capacity cases, Transcript
R v Heaney [2011] EWCA Crim 2682 — The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character. 2011-11-212011 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, Other capacity cases, Transcript
De Louville De Toucy v Bonhams 1793 Ltd (2011) All ER (D) 32 (Nov) — (1) There was no inconsistency between the Insolvency Rules (defining an 'incapacitated person') and the CPR (defining a 'protected party'). (2) The registrar should not have declared the claimant bankrupt: he ought to have (a) been aware that the claimant was incapable, (b) adjourned the case for a representative or litigation friend to be appointed, and (c) heard representations from such a person. (3) On the evidence, the financial situation was complex and, without proper investigation, it was impossible to be sure that it was appropriate to make a bankruptcy order, so the order was set aside and the matter referred to the registrar to be heard again. [Summary based on All ER (D) report.] 2011-11-142011 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
Re HM: SM v HM [2011] EWHC B30 (COP) — 'The issue is whether it is ever, and if so in what circumstances, appropriate for the Court (ie the Court of Protection) to authorise the creation of a trust – in particular a personal injury trust - of P’s assets as the means of administering those assets for him, rather than appointing a deputy for him under s 16 of the 2005 Act.' [Summary required.] 2011-11-092011 cases, No summary, Other capacity cases, Transcript
Sharma v Hunters [2011] EWHC 2546 (COP) — Unsuccessful application by Hunters Solicitors against wasted costs order in the Court of Protection. 2011-10-132011 cases, Brief summary, Other capacity cases, Transcript
Quigley v Masterson [2011] EWHC 2529 (Ch) — The defendant's application to the Court of Protection qualified as a notice of severance served under section 36(2) of the Law of Property Act 1925. 2011-10-132011 cases, Brief summary, Other capacity cases, Transcript
Re PH; PH v A Local Authority [2011] EWHC 1704 (COP) — The following declarations were made: (1) PH lacks capacity in relation to the question on whether or not he should be accommodated at Y Court for the purposes of being given care and treatment; and (2) PH lacks capacity to make a decision as to his residence and care (the second declaration to remain in force for six months). 2011-07-232011 cases, Brief summary, Other capacity cases, Transcript
P v Independent Print Ltd [2011] EWCA Civ 756 — Whether the Independent Newspaper should be authorised to attend the substantive hearing which would determine the living arrangements to be made for a young man who lacks capacity. [Summary required.] 2011-07-202011 cases, No summary, Other capacity cases, Transcript
R v Hopkins; R v Priest [2011] EWCA Crim 1513 — Prosecution under MCA 2005 s44. [Summary required.] 2011-07-182011 cases, Criminal law capacity cases, Missing from Bailii, No summary, Other capacity cases, Transcript
KY v DD [2011] EWHC 1277 (Fam) — Guidance on without notice applications. [Summary required.] 2011-07-182011 cases, No summary, Other capacity cases, Transcript
Wychavon District Council v EM (HB) [2011] UKUT 144 (AAC) — (1) The tenant lacked capacity so the tenancy contract was not valid, which meant that there was no liability to pay rent and therefore no entitlement to Housing Benefit. (2) The contract was void, not voidable, because the landlord knew the tenant lacked sufficient mental capacity to reach such an agreement. [Caution.] 2011-06-222011 cases, Brief summary, Other capacity cases, Transcript
SMBC v WMP [2011] EWHC B13 (COP) — HSG's application to be discharged as a party in a forced marriage protection order case was refused because there was good cause to believe that he may lack capacity (the test for interim orders). The judge set out a list of lessons learnt for future cases. [Summary required.] 2011-06-192011 cases, No summary, Other capacity cases, Transcript
Re M; W v M [2011] EWHC 1197 (COP) — Reporting-restriction orders and non-contact injunctions. 2011-05-262011 cases, Detailed summary, Other capacity cases, Transcript
A Local Authority v DL [2011] EWHC 1022 (Fam) — The inherent jurisdiction survives the Mental Capacity Act 2005. 2011-04-302011 cases, Detailed summary, Other capacity cases, Transcript
Re CM; LBB v JM (2010) COP 5/2/10 — "The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified." 2011-04-302010 cases, Detailed summary, No transcript, Other capacity cases
V v R [2011] EWHC 822 (QB) — Litigation capacity. The experts agreed that, as a result of her impulsive nature, V lacked capacity to manage her financial affairs; however, they disagreed on whether she had litigation capacity. The critical future decisions would be in connection with settlement offers (including the global value of the claim, provisional damages and periodical payments) albeit in the conext of the common understanding that she would not have unfettered access to the money. V would have difficulties in weighing the evidence and making decisions, but they could be ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates: the decisions would be made in the presence of her mother and lawyers; there was no suggestion that V would be left to make decisions on her own. On balance she did not lack capacity to ligitate. 2011-04-092011 cases, Brief summary, Missing from Bailii, Other capacity cases, Transcript
Re Hunt (2008) (Preston county court, 12/6/08) — Mr Hunt suffered from Huntington's disease and had shut himself off from the world, in his home; he had ignored demands for payment of council tax; the court (not knowing his condition) made a bankruptcy order, then an order that he be arrested and brought before the court for failure to attend for public examination. (1) Under rules 7.43-7.44 Insolvency Rules 1986 (since amended to reflect the MCA) an 'incapacitated person' was one who is incapable of managing and administering his property and affairs either (a) by reason of mental disorder within the meaning of the Mental Health Act 1983, or (b) due to physical affliction or disability; the court may appoint a representative for such a person. (2) A bankruptcy order may be annulled if the order 'ought not to have been made' at the time. (3) The onus cannot lie on the debtor to establish lack of capacity because lack of capacity would itself render the debtor unable to do so: courts should investigate capacity where there is ..→2011-03-292008 cases, Brief summary, Other capacity cases, Transcript
R (W) v LB Croydon [2011] EWHC 696 (Admin) — The local authority decided, in order to reduce costs and promote independence, to transfer W from his residential placement to supported living. (1) In principle, the council would be entitled to terminate W's residential placement on grounds of costs, or needs, subject to consultation. (2) On the facts, the consultation with W's parents and the professional carers (as required by MCA 2005 s4) had been inadequate, so the decision was quashed. 2011-03-292011 cases, Brief summary, Other capacity cases, Transcript
Dunhill v Burgin [2011] EWHC 464 (QB) — The claimant had settled a PI claim on unfavourable terms and now sought to have the consent order declared void for want of capacity; this judgment involves a consideration of litigation capacity. (1) In considering the issue of capacity historically, rather than prospectively, the court should confine itself to examining the decisions actually required of the claimant and should not expand its consideration to hypothetical circumstances (i.e. had she been advised differently). (2) On the facts, the presumption that she had capacity to enter into the agreement had not been rebutted. [Caution.] 2011-03-292011 cases, Brief summary, Other capacity cases, Transcript
Pitt v Holt [2011] EWCA Civ 197 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax (the linked case of Futter case did not involve mental capacity so is not summarised here). (1) The court considered the Hastings-Bass rule, including the distinction that an act in the exercise of a dispositive discretion is (a) void if done by trustees outside the scope of the relevant power, but may be (b) voidable if done within the terms of their power but in breach of a fiduciary duty (the same principles apply to others in a fiduciary position, including receivers). (2) Mrs Pitt's acts were within the terms of the power conferred by the Court of Protection, so were not void. They were not voidable either, as she had taken professional advice (albeit inadequate advice) from a proper source as to the advantages and disadvantages of the various courses open to her. (3) For a voluntary disposition to be set ..→2011-03-182011 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript
Haworth v Cartmel and HMRC [2011] EWHC 36 (Ch) — Disability Discrimination Act, and lack of capacity, used to annul bankruptcy order. 2011-02-242011 cases, Detailed summary, Missing from Bailii, Other capacity cases, Transcript
Hill v Fellowes Solicitors LLP [2011] EWHC 61 (QB) — Professional negligence claim including an allegation that a solicitor's firm negligently failed to make enquiries as to the client's capacity to understand the sale of her house. 2011-02-242011 cases, Detailed summary, Other capacity cases, Transcript
Re JP; DP v JCP (2010) COP 11692737 — DP's application to be appointed financial deputy for her father JP was opposed by her siblings, who also disputed DP's claim to the ownership of their mother's ashes. Guidance was given as to the ownership of the ashes. DP was capable of acting as deputy but did not have the necessary independence so a panel deputy was appointed. [Summary based on Eld LJ case report.] 2011-01-232010 cases, Brief summary, Other capacity cases, Transcript
Re KS (2010) COP 99162476 — Costs under the Court of Protection Rules. [Summary required.] 2010-12-202010 cases, No summary, Other capacity cases, Transcript
Re MM; City of Sunderland v MM [2011] 1 FLR 712 — P's partner's Article 8 rights were breached by the denial of contact between them. [Summary required.] 2010-12-162010 cases, No summary, Other capacity cases, Transcript
Perrins v Holland [2010] EWCA Civ 1398 — Unsuccessful costs appeal. [No summary.] 2010-12-092010 cases, No summary, Other capacity cases, Transcript
LBL v RYJ [2010] EWHC 2665 (COP) — RYJ had capacity in relation to care, contact, residential education and residence, and was not vulnerable as a result of external factors so as to invoke the inherent jurisdiction; discussion of mother's status as appointee and her application to SENDIST. [Summary required.] 2010-11-262010 cases, Brief summary, Other capacity cases, Transcript
Singellos v Singellos [2010] EWHC 2353 (Ch) — (1) The approach in Parker v Felgate (1883) 8 PD 171 (that if a testator gives instructions when he has capacity, the will stands good even though at the time of execution he only understands that he is executing the will which he has instructed) applies also to dispositions inter vivos. (2) Mrs Singellos had the necessary capacity when she gave instructions to her accountant, but when she signed the multiple documents involved she only understood that she was giving effect to her instructions: the documents were declared to be validly executed. 2010-11-182010 cases, Brief summary, Other capacity cases, Transcript
Re P and OM (2008) COP 26/11/08 — The Court: (1) granted a worldwide freezing injunction over the assets of a son alleged to have to wrongfully obtained the proceeds of the sale of a house belonging to his incapacitated mother; and (2) made a declaration requiring the son to return his mother, a British citizen now in Guyana, to the United Kingdom for the purposes of assessment of her capacity, inter alia, to make decisions concerning her health and welfare. The Court determined (it appears for the first time) that it had the jurisdiction under paragraph 7 of Schedule 3 to the Mental Capacity Act 2005 to make decisions regarding the health and welfare of an incapacitated adult in a foreign country on the basis that they were habitually resident in England and Wales. [Summary from 39 Essex Street website.] 2010-11-172008 cases, Brief summary, No transcript, Other capacity cases
YA(F) v A Local Authority [2010] EWHC 2770 (COP) — P and his mother brought claims under s7 HRA in the Court of Protection; the other parties asserted that only declaratory relief was possible as the CoP had no jurisdiction to hear and deal with (a) any of the mother's HRA claim or (b) the son's HRA damages claim, and that the claim should have been in the Queen's Bench Division. (1) The common ground that the CoP has jurisdiction to deal with P's HRA claim and grant declaratory relief was correct. (2) The CoP has jurisdiction (a) to hear argument on behalf of the mother that acts done in relation to P constitute breaches of her Convention rights and (b) to make declarations as to the lawfulness of such acts. (3) The CoP is a 'court which has power to award damages... in civil proceedings' under s8(1) HRA 1998 when exercising its HRA jurisdiction either because (a) in exercising its jurisdiction the CoP has the same powers as the High Court, which can award damages in such cases, or because (b) the CoP has power to award damages ..→2010-11-032010 cases, Brief summary, Other capacity cases, Transcript
A Local Authority v DL [2010] EWHC 2675 (Fam) — Scope of inherent jurisdiction. [Summary required.] 2010-10-252010 cases, No summary, Other capacity cases, Transcript
G v E [2010] EWHC 2512 (COP) — Unsuccessful applications for (1) deputies to be appointed and (2) sister to become Litigation Friend in place of Official Solicitor. [Official summary available.] 2010-10-182010 cases, No summary, Other capacity cases, Transcript
Perrins v Holland [2010] EWCA Civ 840 — Unsuccessful appeal against decision to pronounce in favour of a will. Summary of decision below: The testator had testamentary capacity at the time that he gave instructions for the will, but not when he executed it; however, when he executed the will he believed that it gave effect to his previous instructions, it did in fact do so, and the instructions remained his testamentary wishes. Therefore the court pronounced in favour of the will. [Summary of appeal required.] 2010-10-062010 cases, No summary, Other capacity cases, Transcript
Re S (statutory will); D v R (the deputy of S) [2010] EWHC 2405 (COP) — S's financial deputy started an action in S's name seeking a declaration that gifts of money totalling over £500,000 made by S to D were procured by undue influence; S wanted the Chancery proceedings to be discontinued, so D sought a declaration that S had the capacity to do so. (1) Detailed consideration was given to the law (including that whether a decision is unwise or foolish is a relevant consideration in deciding on capacity, in particular where there is a marked contrast between the unwise nature of the decision and the former attitude when capacity was not in question) and to the conflicting medical evidence. (2) In order to have capacity: S must be able to understand, as a minimum, the nature and extent of the relationship of trust and confidence which he arguably reposed in Mrs D, the extent to which it may be said that his gifts to her cannot readily be accounted for by ordinary motives, and the general nature of the evidential burden resting on her to rebut any ..→2010-10-052010 cases, Brief summary, Other capacity cases, Transcript
Peters v East Midlands SHA [2009] EWCA Civ 145 — [Summary required.] 2010-10-042009 cases, No summary, Other capacity cases, Transcript
EG v RS [2010] EWHC 3073 (COP) — EG had to pay the costs of her application for permission to apply to be appointed RS's health and welfare deputy: she ought to have known that her application was doomed to fail because her role as RS's brother-in-law's solicitor, in an acrimonious family dispute, conflicted with the duty to act in RS's best interests. 2010-10-042010 cases, Brief summary, Other capacity cases, Transcript
Re MN [2010] EWHC 1926 (Fam) — Whether (and, if so, according to what criteria) the Court of Protection should recognise and enforce an order of a court of competent jurisdiction in California requiring the return of MN to that state. (1) The basis of jurisdiction is habitual residence: the key to that decision is whether the agent (like an English deputy) had authority to remove MN to England. (2) If she had, then MN is likely habitually resident in England and the English court has jurisdiction. The Californian order could only be enforced if indicated by a full best interests enquiry on the evidence. (3) If she did not have the authority, then MN remains habitually resident in California and its courts should exercise primary jurisdiction. The Californian order would likely be recognised and enforced, unless the carrier or the independent doctor advised otherwise; the best interests enquiry would be confined to the journey; however, a full best interests jurisdiction could be adopted at the invitation of the ..→2010-08-092010 cases, Detailed summary, Missing from Bailii, Other capacity cases, Transcript
Re Mark Reeves (2010) COP 5/1/10 — The Council, relying on a recent Court of Appeal judgment in relation to double recovery, compelled P's deputy to make an application to the Court of Protection for authorisation to apply for public funding. (1) The application was misconceived in seeking to apply the recent CA decision to this case which had been determined six years previously; (2) the Court of Protection is not an appropriate forum to adjudicate on double recovery in personal injury proceedings. 2010-08-082010 cases, Brief summary, No transcript, Other capacity cases
Saulle v Nouvet [2007] EWHC 2902 (QB) — (1) The claimant had capacity to conduct litigation and manage his own property and affairs. (2) The definition of and approach to capacity to be adopted by the Queen's Bench Division of the High Court in deciding whether a person is a protected party, or a protected beneficiary, is the MCA 2005 statutory definition. 2010-08-082007 cases, Brief summary, Other capacity cases, Transcript
Gale v Gale [2010] EWHC 1575 (Ch) — The 2002 and 2004 codicils to a will were forgeries; also, the testatrix did not have testamentary capacity at the time of the 2004 codicil; in any event, neither was signed on the date it purported to be signed but was backdated from a time when the testatrix did not retain testamentary capacity. 2010-08-072010 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
Gorjat v Gorjat [2010] EWHC 1537 (Ch) — Adult children unsuccessfully challenged the deceased's transfer of funds, to a joint account with his second wife, on the grounds of mental incapacity and undue influence. 2010-07-272010 cases, Brief summary, Other capacity cases, Transcript
SH v NB (Marriage: Consent) [2009] EWHC 3274 (Fam) — The marriage between a 27-year-old Pakistani man and a 16-year-old English girl would be valid only if both of the parties had, according to the law of their respective ante-nuptial domiciles, validly consented to marry the other: (1) under Pakistani law the marriage was invalid; (2) under English law, the court declared that the marriage was invalid because the girl's free will had been overborne as a result of the pressure exerted upon her; it was voidable but now too late to issue a decree of nullity. 2010-07-232009 cases, Brief summary, Missing from Bailii, No transcript, Other capacity cases
Pitt v Holt [2010] EWHC 45 (Ch) — The principle in Hastings-Bass, originally applied only to trustees, applies equally to receivers under the MHA 1983. Therefore Mrs Pitt, who as a receiver had put her husband's money into a settlement without considering the inheritance tax position, could have the settlement set aside as an ineffective transaction. (The principle in Hastings-Bass has been summarised as: "Where trustees act under a discretion given to them by the terms of the trust, in circumstances in which they are free to decide whether or not to exercise that discretion, but the effect of the exercise is different from that which they intended, the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account.") [Caution.] 2010-04-122010 cases, Brief summary, ICLR summary, Other capacity cases, Transcript
Independent News and Media Ltd v A [2010] EWCA Civ 343 — The judge's decision (that designated representatives of the media could attend the hearing in the Court of Protection and thereafter apply to the judge for authorisation to publish information disclosed in the proceedings) was upheld, but his approach (that article 10 was not engaged when the media's application was made but rather when the court decided that there was "good reason" under Rule 93(1)(a)) was not. 2010-03-312010 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript
Key v Key [2010] EWHC 408 (Ch) — Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval. 2010-03-062010 cases, Detailed summary, ICLR summary, Other capacity cases, Transcript
Salford City Council v BJ [2009] EWHC 3310 (Fam) — Following a final hearing concerning deprivation of liberty the previous year, the judge now had to determine: (a) the nature and timing of future reviews by the court, (b) the nature and timing of future internal reviews by the local authority, and (c) whether the proceedings should now be transferred to the Court of Protection. 2009-12-172009 cases, Brief summary, Other capacity cases, Transcript
Re McDougall or Muldoon (Guardianship Order) (2005) ScotSC 6 — "This is an application under the Adults with Incapacity (Scotland) Act 2000, in which the Applicant, Paul Muldoon, seeks an order under section 57 of the Act appointing him as guardian with powers relating to both the welfare of, and the property and financial affairs of, his mother, Mrs Mona McDougall or Muldoon (hereafter, "the adult"). The welfare powers sought are (a) to decide where the adult should live, (b) to have access to confidential documents, and (c) to consent to, or withhold consent to, medical treatment." [Summary required.] 2009-11-302005 cases, No summary, Other capacity cases, Scottish cases, Transcript
GJ v The Foundation Trust [2009] EWHC 2972 (Fam) — (1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. (2) In deciding whether P is within the scope of the MHA, the eligibility assessor must ask whether, in his own opinion, P could be detained under the MHA. (3) With respect to objections, what matters is whether P objects generally to what is proposed. (4) The correct overall approach for the eligibility assessor is to (a) look at the reality of the situation, rather than the words of the authorisation, (b) separate the mental treatment from the purely physical treatment, and (c) apply a "but for" test, i.e. whether, but for the physical treatment, P should be detained (and whether the only effective reason for detention is physical treatment); if "no" (and "yes", respectively) then P isn't ineligible for DOLS. (5) On the facts, but for his diabetes, P would not have been detainable, so he was not ineligible. It is ..→2009-11-242009 cases, Detailed summary, Other capacity cases, Transcript
Independent News and Media Ltd v A [2009] EWHC 2858 (Fam) — The media sought, not that the CoP hearing be public, but that they be authorised to attend the hearing and be subject to reporting restrictions. CoP proceedings are excluded from the general 'open justice principle' so the media's Article 10 rights are not automatically engaged, and the court must rather adopt a two-stage approach: (1) Whether a 'good reason' (a gatekeeping test from the Rules, the standard for which is not high) for making the order can be established; (2) If there is a 'good reason', a balancing test must be applied to P's Article 8 rights and the media's Article 10 rights. On the facts: (1) There was a 'good reason' as (a) the issues were already in the public domain, (b) the court's powers can preserve privacy, and (c) it is the public interest to understand how the court operates; (2) The media would be allowed to attend, as the concerns for privacy and publicity could both be met by permitting some reporting but requiring the media to demonstrate what ..→2009-11-122009 cases, Brief summary, ICLR summary, Other capacity cases, Transcript
Baker v H [2009] EWHC B31 (Fam) — (1) The judgment sets out a structured general approach to considering the setting of security and its interplay with the terms of appointment of a deputy; (2) On the facts, the level of security was reduced from £750k to £175k. 2009-11-092009 cases, Brief summary, Other capacity cases, Transcript
Masterman-Lister v Brutton and Co [2002] EWCA Civ 1889 — Unsuccessful appeal against decision that M was fully capable of managing and administering his property and affairs. [Summary required.] 2009-10-302002 cases, No summary, Other capacity cases, Transcript
Masterman-Lister v Jewell [2002] EWHC 417 (QB) — M was fully capable of managing and administering his property and affairs. [Summary required.] 2009-10-302002 cases, No summary, Other capacity cases, Transcript
Re F [2009] EWHC B30 (Fam) — The "gateway" test for the engagement of the court’s powers under s48 (Interim orders and directions) is lower than that of evidence sufficient, in itself, to rebut the presumption of capacity. The proper test in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made. 2009-08-162009 cases, Brief summary, Other capacity cases, Transcript
Perrins v Holland [2009] EWHC 1945 (Ch) — The testator had testamentary capacity at the time that he gave instructions for the will, but not when he executed it; however, when he executed the will he believed that it gave effect to his previous instructions, it did in fact do so, and the instructions remained his testamentary wishes. Therefore the court pronounced in favour of the will. 2009-08-012009 cases, Brief summary, Other capacity cases, Transcript
Re BS [2009] NIFam 5 — A medical examination of BS in the context of an application for a Controller to be appointed in respect of her affairs would not breach Article 8 and should take place. 2009-04-122009 cases, Brief summary, Northern Irish cases, Other capacity cases, Transcript
Re MB (Caesarean Section) [1997] EWCA Civ 1361 — The claimant lacked capacity on a temporary basis because of her fear of needles; in an emergency the doctors would be free to administer anaesthetic if that were in her best interests. 2009-04-111997 cases, No summary, Other capacity cases, Transcript
Lindsay v Wood [2006] EWHC 2895 (QB) — The claimant was unable to deal with the advice he was likely to receive (in relation to offers to settle his PI claim) or to give reliably rational instructions based on that advice, and therefore was a patient within the meaning of CPR Part 21. 2009-01-172006 cases, Brief summary, Other capacity cases, Transcript
Folks v Faizey [2006] EWCA Civ 381 — The challenge to the appointment of a litigation friend for the claimant in a PI claim failed: the appointment, which followed a bona fide application based on adequate evidence and agreement of the patient and litigation friend, would not prejudice the other party and had minimal importance to the outcome of the litigation. 2009-01-172006 cases, Brief summary, Other capacity cases, Transcript
RP v UK 38245/08 [2008] ECHR 1124 — Statement of facts and questions to the parties. (1) Did the appointment of the Official Solicitor give rise to a breach of RP’s procedural rights guaranteed by Article 8 of the Convention? (2) Did the same circumstances give rise to a breach of Article 6 as regards the fairness of the court proceedings? 2009-01-152008 cases, Brief summary, ECHR, Other capacity cases, Transcript
Salford City Council v GJ, re GJ NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam) — The appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention. 2008-12-282008 cases, Brief summary, Deprivation of liberty, Other capacity cases, Transcript
R v C [2008] EWCA Crim 1155 — If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity. [Overturned on appeal.] 2008-12-142008 cases, Brief summary, Criminal law capacity cases, Missing from Bailii, No transcript, Other capacity cases
KC v City of Westminster Social and Community Services Department [2007] EWHC 3096 (Fam) — Muslim marriage where groom lacked capacity was not recognised in English law. 2008-12-142007 cases, Brief summary, Other capacity cases, Transcript
London Borough of Newham v BS [2003] EWHC 1909 (Fam) — High Court exercising inherent jurisdiction to determine the best interests of mentally impaired adult. Total lack of road sense and a tendency to rush into the road without looking not seriously irresponsible conduct for purposes of mental impairment. [Caution.] 2008-10-152003 cases, No summary, Other capacity cases, Transcript
Re F (Adult Patient: Court's Jurisdiction) [2000] EWCA Civ 192 — Hight Court had power to grant declarations to protect vulnerable adult who lacked capacity from abuse. [Summary required.] 2008-10-152000 cases, No summary, Other capacity cases, Transcript
Re SK [2007] EWHC 3289 (Fam) — Applications by mother in the course of proceedings concerning the best interests of a vulnerable adult, SK. Applications refused. 2008-10-062007 cases, Brief summary, Other capacity cases, Transcript
A Local Authority v E [2007] EWHC 2396 (Fam) — Application by a local authority under the inherent jurisdiction of the court for directions as to the future of a vulnerable person who has been in care and has now reached 18. 2008-10-062007 cases, Brief summary, Other capacity cases, Transcript
Bailey v Warren [2006] EWCA Civ 51 — PRACTICE — Parties — Mental capacity — Action for damages for personal injuries compromised by claimant before proceedings commenced — Subsequent lack of mental capacity leading to appointment of litigation friend — Whether valid approval of compromise — CPR Pt 21. The established principles relating to mental incapacity and the conduct of litigation were to be applied to the compromise of an action by a claimant before he became a “patient” within the meaning of CPR r 21.1 and which was made before any proceedings were commenced. (ICLR summary.) 2008-09-252006 cases, Detailed summary, Other capacity cases, Transcript
London Borough of Ealing v KS [2008] EWHC 636 (Fam) — Applications by local authority seeking declarations that a vulnerable adult lacked capacity, among other things, to marry; consent to medical treatment; have sexual relations or decide her place of residence. 2008-09-212008 cases, Brief summary, Capacity to consent to sexual relations, Other capacity cases, Transcript
KC v City of Westminster Social and Community Services Department [2008] EWCA Civ 198 — Muslim marriage where groom lacked capacity was not recognised in English law. 2008-09-132008 cases, Detailed summary, Other capacity cases, Transcript
RP v Nottingham City Council [2008] EWCA Civ 462 — Role of Official Solicitor considered. 2008-09-132008 cases, Brief summary, Other capacity cases, Transcript
A Primary Care Trust v AH [2008] EWHC 1403 (Fam) — Reasons given for making an interim order under the Mental Capacity Act 2005 relating to a 22 year old adult male suffering from severe epilepsy. 2008-09-132008 cases, Brief summary, Other capacity cases, Transcript
Re PS (An Adult); City of Sunderland v PS [2007] EWHC 623 (Fam) — Under inherent jurisdiction the court made orders that (1) PS could lawfully be prevented from leaving residential care unit (2) a receiver would be appointed without the need for a separate application to the Court of Protection. 2008-02-232007 cases, Brief summary, Deprivation of liberty, Other capacity cases, Transcript
Trust A v H (An Adult Patient) [2006] EWHC 1230 (Fam) — H lacked capacity to decide about medical treatment for her gynaecological condition; it was in her best interests to receive that treatment; appropriate sedation and restraint for pre- and post-operative treatment was lawful. 2008-02-222006 cases, Brief summary, Other capacity cases, Transcript
JE v DE and Surrey County Council [2006] EWHC 3459 (Fam) — In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority 2007-01-202006 cases, Deprivation of liberty, Detailed summary, Other capacity cases, Transcript

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