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Drilldown: Cases

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Cases > Parties : Ball_(Kenneth) or CD or CM

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Page name Sentence Summary
An NHS Foundation Trust v AB (2019) EWCOP 26

Abortion

"This is an application by the NHS Trust for an order in respect of a 24 year old woman AB who is 22 weeks pregnant and, who the Trust say lacks capacity and in whose best interests it is said to have a termination of pregnancy. ... I would like to record my unhappiness about the lateness of this application. AB is now estimated to be 22 weeks pregnant and therefore the cut-off date under the Abortion Act 1967 of 24 weeks is imminent. ... I am acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 rights. ... In my view the balance in terms of AB's best interests lies in her having the termination."

CB v Medway Council (2019) EWCOP 5

Unfair summary disposal of DOL/residence case

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

CD v London Borough of Croydon (2019) EWHC 2943 (Fam)

Inherent jurisdiction or s48 interim order

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

CM v Derbyshire Healthcare NHS Foundation Trust (2011) UKUT 129 (AAC)

Nature and degree

(1) The Tribunal's decision not to discharge was made in error of law, and was set aside, (a) because there was no real evidence to support its view that non-compliance with medication and the risk of consequent relapse in the near future would probably occur, (b) because it did not establish that in these circumstances it had complied with the 'least restriction principle', (c) because of the irrationality in paragraph 21 of its decision (in that as the risk was of what might eventually happen it was hard to see how the envisaged leave regime could test that risk), and (d) because continued detention for the purposes of avoiding a chaotic lifestyle or drug taking or the absence of drug counselling is not permitted by law on the facts of this case. (2) The judgment contains a discussion of the 'nature' and 'degree' tests.

Re AB (Termination of Pregnancy) (2019) EWCA Civ 1215

Abortion

"The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes. ... [I]n my judgement, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy."

Re CM (Judicial Review) (2013) CSOH 143

Scottish smoking ban

"The petitioner asks the court to declare that the respondents' 'policy of a complete smoking ban and prohibition of possession of tobacco products by patients at the State Hospital' is unlawful; and also to declare that the respondents' policy has breached the petitioner's human rights, specifically article 8 of the European Convention on Human Rights (right to respect for private life and home) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination) and the first protocol, article 1 ECHR (right not to be deprived of property) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination). ... I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way. In that it relied on compulsion, the decision was contrary to the national policy which it purported to implement. The decision should have been made with reference to the section 1 principles of the 2003 Act but was not, and was in contravention of the obligations imposed by section 1 on the respondents. The respondents did not, for example, take account of the petitioner's wishes, or provide him with the requisite information; and on no reasonable view could they have reached the conclusion that the smoking ban, to the extent that it was necessary, was implemented in 'the manner that involves the minimum restriction on the freedom of' the petitioner. Whether or not consultation is a legal requirement, if it is embarked on it must be carried out properly. I am satisfied that the compulsory 'comprehensive smoke-free' regime was a foregone conclusion and that the consultation exercise was not a meaningful one... If article 8 ECHR is engaged, and I hold that it is, it is for the respondents to justify interfering with the petitioner's right to make his own decision about smoking. They have failed to do so satisfactorily. Indeed, I am satisfied that the decision to stop the petitioner smoking in the hospital grounds constituted interference with the petitioner's article 8 ECHR rights without lawful warrant - because it was not made in accordance with section 1 principles - and because it went further than was necessary to achieve the legitimate aim in question, namely to protect third parties from the petitioner's cigarette smoke. The respondents have also failed to demonstrate an 'objective and reasonable justification' for treating the petitioner differently from adult, long-term prisoners, who can smoke if they wish. Going further, on the material presented to me and in the absence of any other suggestion, it appears that the only justification for imposing a smoking ban on mental health detainees like the petitioner and not on penal detainees is that it is feasible to compel mental health detainees to stop smoking because of their vulnerability. This is not a legitimate justification. Accordingly I hold that there has been a violation of the petitioner's right not to be discriminated against in the enjoyment of his article 8 ECHR rights contrary to article 14 ECHR."

Re Z (2019) EWCOP 55

Disclosure of documents

"This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making of the [court's] order."

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