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Drilldown: Cases

Not many cases (180) have been added to the database so far. To see the full list of cases (2013) go to the Mental health case law page.

Cases > Subject : Litigation capacity cases or Reporting restriction order cases

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Showing below up to 7 results in range #1 to #7.

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Page name Sentence Summary
CS v SBH (2019) EWHC 634 (Fam) Whether child had "sufficient understanding" to conduct appeal without Guardian "Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm."
DM v Dorset County Council (2019) EWCOP 4 Litigation capacity Unsuccessful challenge to a finding that DM lacked litigation capacity.
LJ v Mercouris (2019) EWHC 1746 (QB) Litigation friend "The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs."
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.
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."
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."
TB v KB (2019) EWCOP 14 Capacity to conduct proceedings "Law applicable to the court's determination of the question of whether P lacks capacity to conduct proceedings is well settled. ... Having regard to that analysis, I am clear that P does lack that capacity. This leaves the question of P's participation in these proceedings."

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