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Drilldown: Cases

Not many cases (230 of them) have been added to the database so far. To see the full list of cases (2057) go to the Mental health case law page.

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Cases > Date: January 2018 & Court : Court of Protection or High Court (Administrative Court) or High Court (Chancery Division) or Supreme Court

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Page name Sentence Summary
James v James (2018) EWHC 43 (Ch)

Banks v Goodfellow test for testamentary capacity survives MCA

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

NHS Trust v Y (2018) UKSC 46

Court order not always necessary for withdrawal of CANH

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

R (Mitocariu) v Central and North West London NHS Foundation Trust (2018) EWHC 126 (Admin)

Hospital pocket money

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

Re KT (2018) EWCOP 1

Role of COP Visitor in DOL cases

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

Re M: AB v HT (2018) EWCOP 2

Declaration of non-marriage in English law

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

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