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|Djaba v West London Mental Health NHS Trust (2018) MHLO 76 (SC)||ECHR and tribunal criteria||On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons.|
|Maitland-Hudson v SRA (2019) EWHC 67 (Admin)||Dishonest solicitor||"The Appellant appeals against findings of misconduct and dishonesty made against him by ... the Solicitors Disciplinary Tribunal ... Pursuant to those findings, on 2 May 2018 the Appellant was struck off the Roll of Solicitors and ordered to pay the SRA's costs, including £300,000 by way of interim payment. The Tribunal found the Appellant to have been guilty of misconduct "at the highest level", characterised as "deliberate, calculated and repeated… over a number of years". It was aggravated by the Appellant's dishonesty and attempts to defend his conduct. The appeal is based on grounds of alleged procedural unfairness, specifically that the Appellant, a litigant in person, was substantially impaired in his ability to defend himself, to the extent that he admitted himself to hospital. Despite the fact that consultant psychiatrist experts on both sides found that the Appellant was unable to represent himself, the Tribunal refused to dismiss the proceedings on the basis of "incurable unfairness" or even to stay or adjourn their remainder."|
|McCann v State Hospitals Board for Scotland (2017) UKSC 31||Scottish smoking ban||"This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. ... Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. ... [T]he prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. ... [B]ut for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCann’s article 8 right to respect for his private life. ... The article 14 challenge ... fails."|
|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 (ASK) v SSHD (2017) EWHC 196 (Admin)||Immigration detention||"The issue in this case concerns an allegation that in 2013 the Claimant - 'ASK' - was unlawfully detained in an Immigration Removal Centre pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts. The case raises a number of issues. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department! and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) !. In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained? Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law? Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends? Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 what is meant by?'"`UNIQ--nowiki-00000049-QINU`"'?prompt?'"`UNIQ--nowiki-0000004A-QINU`"'? transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee? Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports."|
|R (Bate) v Parole Board (2018) EWHC 2820 (Admin)||Damages for Parole Board delay||"Four grounds of claim were pleaded in detail. They can be summarised as challenging: (i) a failure, in violation of Art 5(4), to provide a parole hearing within a reasonably speedy interval; (ii) a systemic failure to maintain and operate a system for speedy and prompt parole reviews; (iii) an unlawful policy for prioritisation of listing which ignores support for release and prospects of release which are identified as realistic, and/or ignores a legitimate expectation given as to the timetable for a deferred hearing; (iv) an unlawful failure, by the decision letter of 2nd December 2016, to direct expedition in the listing of Mr Bate's deferred hearing. ... For the reason I have given, I would find in Mr Bate's favour on ground 1 and ground 4, and would award him damages on the basis indicated in paragraphs 77, 88 and 89 above. I would refuse relief in respect of grounds 3 and 4."|
|R v C (2009) UKHL 42||Sexual consent||For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.|
|SSJ v MM (2018) UKSC 60||The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient.|
|Welsh Ministers v PJ (2018) UKSC 66||(1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), but if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review.|