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Drilldown: Cases

Not many cases (185) have been added to the database so far. To see the full list of cases (2016) go to the Mental health case law page.

Cases > Judges : Arden or Lieven or McFarlane or Munby

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Showing below up to 16 results in range #1 to #16.

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Page name Sentence Summary
Djaba v West London Mental Health NHS Trust (2017) EWCA Civ 436 ECHR and tribunal criteria "[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention."
East Lancashire Hospitals NHS Trust v PW (2019) EWCOP 10 Amputation "This is an application by East Lancashire NHS Trust for orders under the Mental Capacity Act 2005 that PW lacks capacity "to make a decision regarding whether to undergo the leg amputation surgery to address his high risk of sepsis"; and that it is lawful to carry out that surgery having regard to his best interests. Before dealing with the substantive issues in this case I will deal with the timing of the application."
Manchester University NHS Foundation Trust v DE (2019) EWCOP 19 Jehovah's Witness - blood transfusion "The only issue during the hearing was the degree to which DE's wishes and feelings would be overborne by a decision to allow a blood transfusion, in the light of her being a Jehovah's Witness; and therefore whether there was a disproportionate interference in DE's article 8 rights. However, the evidence even at the oral hearing was that although DE described herself as a Jehovah's Witness she was not someone for whom those beliefs were central to her personality or sense of identity. During the oral hearing I did not get any sense that she would feel deeply upset if an order was made in the form sought, or that she would feel a deep conflict with her religious beliefs. As such she was someone who was in a quite different decision from B in Jackson J's decision, where his religious beliefs were fundamental to B's sense of who he was. The other stark contrast with that case is that DE had been completely clear that she did not want to die. She is also significantly younger than was B."
PW v Chelsea and Westminster Hospital NHS Foundation Trust (2018) EWCA Civ 1067 Best interests/transparency "Two central criticisms are made of the judgment below, and the judge's determination of best interests. First, that the judge failed to appreciate and therefore give any or any adequate weight to RW's wishes and feeling. These were, contrary to her findings, ascertainable; they pointed to the fact that he was a "fighter", to the value he ascribed to life and to his desire to "hold fast to it" no matter how "poor" or "vestigial" in nature it was. Secondly, the judge overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide would remove or mitigate that risk. In the result, and in any event, it is submitted the judge's overall analysis of what was in RW's best interests failed adequately to address the relevant issues and evidence, and was a flawed one. In my view neither criticism is well-founded." Another aspect of this case related to the transparency order/reporting restrictions.
R (VC) v SSHD (2018) EWCA Civ 57 Immigration detention "There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention."
Re A (A Patient, now deceased) (No 3) (2018) EWCOP 16 COP costs "I have before me an application [which] relates to certain costs orders against Mr Fitzgerald dated 22 and 24 March 2016 which I made in the Court of Protection, as President of the Court of Protection, in proceedings (95908524), to which Mr Fitzgerald was a party. Those proceedings related to Mr Fitzgerald's now deceased aunt A, a patient whose affairs were under the control of the Court of Protection until her death on 5 March 2018. Central to Mr Fitzgerald's application are the circumstances in which, in the course of those proceedings, SJ Lush, by an order dated 28 May 2013, had appointed her niece, C, to be A's deputy for property and affairs."
Re A (A Patient, now deceased) (No 4) (2018) EWCOP 17 Miscellaneous "On 24 July 2018, Mr Fitzgerald issued an application in the Family Division of the High Court of Justice, under number FD13P90056, seeking an order that, as President of the Family Division, I 'withdraw from public record Judgement EWCOP16 [2018] on the grounds that: (1) It is not given in any recognised court or jurisdiction; (2) It misrepresents the evidence presented in Application; (3) It displays transparent bias and injudicious prejudice.' ... Mr Fitzgerald's latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order."
Re A-F (Children) (2018) EWHC 138 (Fam) DOL - children "... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the comparison should be made with a 'typical' child of the same age who is subject to a care order. The answer in my judgment is quite clearly, No. ... I turn to matters of process and procedure."
Re A-F (Children) (No 2) (2018) EWHC 2129 (Fam) DOL - children "The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases."
Re D (A Child) (2017) EWCA Civ 1695 DOL "This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D [2016] EWCOP 8!, [2016] PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam)!, [2016] 1 FLR 142!. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms."
Re SW (2017) EWCOP 7 Medical treatment, costs, anonymity (1) "[A]s matters stand, the transplant being proposed cannot proceed, whatever the court may say or do. As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor." (2) "As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. ... [B]oth Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs." (3) "There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour."
Re SW (No 2) (2017) EWCOP 30 Vexatious COP application "This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place."
Re T (A Child) (2018) EWCA Civ 2136 Secure accommodation "This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)."
Southern Health NHS Foundation Trust v AB (2019) EWCOP 11 Injunction against publication of video "This is an application to prevent publication of a video of a patient, AB, in her treating hospital. ... At times she is catatonic and lies in a foetal position on the floor. She has a history during these periods of self-harm, and for that reason she wears protective headgear at all times. In the light of AB's condition and the difficulties in accommodating her appropriately, the Trust has had to adapt the room in which she has been living urgently, and it is true to say that the condition of the room therefore looks somewhat poor. ... On about 20 January 2019, AB's son, W, who is the second respondent, took a video recording of his mother in her room. ... I am clear that it is appropriate in these circumstances to make the order. First of all, having seen the video, it is apparent that AB can be identified, even if pixilated, and would be identifiable from the information that Mail Online intend to publish. ... Secondly, it is clear from Dr Marlowe's statements that AB does not currently have capacity ... Thirdly, I have no doubt, having watched it, that the video would be an interference with AB's privacy and her private life. ... The draft order provides for W being able to apply to the court at a full hearing if he wishes to do so to seek to lift the injunction, and argue that it is in her interests to publish the video. Further, according to Dr Marlowe, AB may well regain capacity herself relatively shortly, i.e. within a matter of weeks, and if she then wishes for publication, that will be a matter for her."
SSHD v KE (Nigeria) (2017) EWCA Civ 1382 Deportation following hospital order "This is an appeal [which] gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is 'a foreign criminal who has been sentenced to a period of imprisonment of at least four years' for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights to deport him."
WB v W District Council (2018) EWCA Civ 928 Homelessness "This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996. ... The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need..."

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