Updates

If you have anything which is not yet on the internet (e.g. court results or transcripts) then please send it in (see Help page). As well as reading the website, you can keep up to date by subscribing to the CPD scheme, email updates, email discussion list, and the various other options listed at the top of each page.

Recent updates on website

For details of any news item, click on the relevant link below.

  • 10/06/18 (1): Tribunal consultation documents. The following two documents, which were obtained under the Freedom of Information Act by the charity Rethink Mental Illness, relate to the proposal to abolish pre-hearing examinations and have paper reviews in certain cases. They provide information on the rationale behind the proposals which did not appear in the final version of the consultation document - including saving money and promoting flexibility in panel composition (judge-only hearings, including for all s2 cases, and judge-only paper reviews, including for many reference cases). (1) https://www.dropbox.com/s/ry330tp7pluhdhp/MHT%20TPC%20Brieifng%20Note.pdf?dl=0 (2) https://www.dropbox.com/s/i0aph7x855qno1n/TPC%20Meeting%20Minutes.pdf
  • 06/06/18 (11): Event. Edge Training: BIA Legal Update (Annual Refresher) - London, 13/7/18 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: consider the latest DoLS news, research and guidance; examine the latest case law relevant to DoLS and the BIA role; reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Cost: £140 plus VAT. See Edge Training website for further details and booking information
  • 06/06/18 (10): Event. Edge Training: DOLS Authorised Signatories - London, 21/9/18 — This course aims to provide guidance on the role of signatories and to update designated signatories in relation to the latest case law around their specific role within the DOLS procedures. Please note: this course is not designed for BIAs but specifically for the role of local authority managers acting as authorised signatories. Speaker: Steven Richards. Cost: £140 plus VAT. See Edge website for further details and booking information.
  • 06/06/18 (9): Event. Edge Training: COP Report Writing Skills - London, 28/9/18 — This course aims to identify key aspects of mental capacity law with reference to statute and the Code and to establish frameworks for the accurate recording of essential evidence. It will ensure staff are clear on good and bad recording techniques and will identify the key law to guide completion of the COP forms. Speaker: Sophy Miles. Cost: £140 plus VAT. See Edge website for further details and booking information.
  • 06/06/18 (8): Event. Edge Training: Deprivation of Liberty in the Community - London, 8/10/18 — This one-day course is designed to enable participants to identify when applications need to be made to the Court of Protection to authorise deprivation of liberty and to comply with the requirements set down by the Court for making such applications. Speaker: Sophy Miles. Cost: £140 plus VAT (£168). See Edge website for further details and booking information.
  • 06/06/18 (7): Event. Edge Training: Hoarding and the Law - London, 12/10/18 — This one-day interactive course for mental health and social care professionals reviews the different manifestations of hoarding and the possible origins of this behaviour, and then considers a range of possible responses under the law and where each one might be appropriate. Speaker: Simon Foster. Cost: £130 plus VAT (£156). See Edge website for further details and booking information.
  • 06/06/18 (6): Event. Edge Training: BIA Report Writing - London, 15/10/18 — This course is targeted specifically at qualified Best Interests Assessors (BIAs) and aims to provide them with the knowledge and skills needed to ensure robust and legally defensible assessments under the Deprivation of Liberty Safeguarding (DoLS). Speaker: Piers McNeil. Price: £140 plus VAT. See Edge website for further details and booking information.
  • 06/06/18 (4): Event. Edge Training: BIA Legal Update (Annual Refresher) - London, 12/11/18 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: consider the latest DoLS news, research and guidance; examine the latest case law relevant to DoLS and the BIA role; reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Cost: £140 plus VAT. See Edge Training website for further details and booking information
  • 06/06/18 (3): Event. Edge Training: MHA and MCA Interaction - London, 23/11/18 — This course aims to enable health and social care staff to consider the impact of the Mental Capacity Act 2005 on their work and its relationship to the use and application of the Mental Health Act 1983. Speaker: Steven Richards. Price: £140 plus VAT. See Edge website for further details and booking information.
  • 06/06/18 (2): Event. Edge Training: DOLS Authorised Signatories Training Course - Sheffield, 30/11/18 — This course aims to provide guidance on the role of signatories and to update designated signatories in relation to the latest case law around their specific role within the DOLS procedures. Please note: this course is not designed for BIAs but specifically the role of local authority managers acting as authorised signatories. Speaker: Steven Richards. Price: £140 plus VAT. See Edge website for further details and booking information.
  • 06/06/18 (1): Event. Edge Training: DOLS Authorised Signatories Training Course - London, 14/12/18 — This course aims to provide guidance on the role of signatories and to update designated signatories in relation to the latest case law around their specific role within the DOLS procedures. Please note: this course is not designed for BIAs but specifically for the role of local authority managers acting as authorised signatories. Speaker: Steven Richards. Cost: £140 plus VAT. See Edge website for further details and booking information.
  • 05/06/18 (1): Event. Edge Training: DOLS MH Assessor Annual Refresher Course - London, 16/7/18 — This refresher course has been designed to meet the needs of DOLS Mental Health Assessors. It will cover key topics that cause uncertainty or dilemmas for MH Assessors and go over the main basic requirements of this challenging role. Common Mental Health Act and DOLS interface issues will also be addressed such as the law around the provision of mental health treatment under DOLS. Speaker: Aasya Mughal. Price: £195 + VAT. See Edge website for further information and booking details.
  • 22/05/18 (1): Event. Edge Training: BIA Legal Update Course (Annual Refresher) - London, 15/6/18 — This course aims to provide an essential update on case law in relation to the role of the BIA. Learning outcomes: consider the latest DoLS news, research and guidance; examine the latest case law relevant to DoLS and the BIA role; reflect on how the information covered affects BIA practice. Speaker: Aasya Mughal. Cost: £140 plus VAT. See Edge website for further details and booking information
  • 22/05/18 (2): Inherent jurisdiction case. Mazhar v Lord Chancellor [2017] EWHC 2536 (Fam) — "This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar. ... Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law. ... The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal."
  • 22/05/18 (1): Best interests/transparency case. PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067 — "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.
  • 18/05/18 (1): Law Society panel concerns cont'd. On 8/5/18 the Head of Accreditations responded to a further email to say that the Law Society is currently reviewing its requirements and, in order to provide clarity for its members, hopes to send information suitable for publication in June. See Law Society mental health accreditation scheme - CPD requirements
  • 10/05/18 (3): Event. MHLA: Panel course - London, 25/6/18 and 26/6/18 — The Mental Health Lawyers Association is an approved provider of the two-day course which must be attended by prospective members of the Law Society’s mental health accreditation scheme. Price: £300 (MHLA members); £390 (non-members); £270 (group discount). See MHLA website for further details and booking information.
  • 10/05/18 (2): Event. MHLA: Legal Aid supervision - London, 7/6/18 — This course is aimed at experienced supervisors looking to refresh their skills, or those considering applying for supervisor status, and will cover the Legal Aid Agency supervisor standards and procedures. Cost: £150 (MHLA members); £195 (non-members). See MHLA website for further details and booking information.
  • 10/05/18 (1): Event. CCJHR and IMHLA: Annual Conference 2018 - Cork, 12/5/18 — The Centre for Criminal Justice & Human Rights (School of Law, University College Cork) and the Irish Mental Health Lawyers Association are holding their Annual Conference on Mental Health Law and Capacity Law from 10 am to 2 pm. Cost: €120 (€50 for NGOs, academics, devilling barristers and trainee solicitors, and free for students). See UCC website for further details and booking information.
  • 27/04/18 (2): Homelessness case. WB v W District Council [2018] EWCA Civ 928 — "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..."
  • 27/04/18 (1): Old Ian Brady case. R v Press Complaints Commission, ex parte Ian Stewart-Brady [1996] EWCA Civ 986 — "This is a renewed application for leave to apply for judicial review in relation to an adjudication of the Press Complaints Commission. ... The application arises out of a publication in The Sun newspaper on 26 July 1995. The publication contained an article relating to the applicant, Ian Brady, who was convicted of murder and is now a patient at the Ashworth Hospital. The effect of the article was that he was being treated in a way which was wholly inappropriate having regard to the very serious crimes which he had committed. No complaint, however, is made about the article. Although Mr Beloff certainly does not approve of its contents, he accepts that he cannot say that there was any justification for complaining about the article. His complaint is that the article has alongside it a substantial photograph of the applicant, albeit a photograph which is indistinct and does not show Mr Brady clearly. ... Looking at the matter as a whole, I do not think there is any prospect of this application succeeding and therefore I would dismiss it."
  • 26/04/18 (1): Deprivation of liberty case. Buckinghamshire County Council v RT [2018] EWCOP B12 — "I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. ... RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place]. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night. ... Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. ... It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year. RT's 18th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18th birthday which in particular will enable him to have a say at that point."
  • 21/04/18 (1): Parole Board delay case. LV v UK 50718/16 [2018] MHLO 22 — "Complaint: The applicant complains under Article 5(4) of the Convention that she did not have a speedy review of the legality of her detention. In particular, she contends that her right to a speedy review was violated both by delays on the part of the Public Protection Casework Section and the Parole Board, and from the unnecessary two-stage Tribunal/Parole Board process. Question to the Parties: Was the review of the applicant’s detention which commenced on 24 May 2011 and concluded on 21 March 2013 conducted 'speedily' within the meaning of Article 5(4) of the Convention?" (The first paragraph of the decision is wrong as the applicant's solicitor works for Campbell Law Solicitors.)
  • 20/04/18 (4): Newsletter. Mind, 'Legal Newsletter' (March 2018) — This newsletter contains news under the following headings: (1) Brick by Brick; (2) Chief Constable of Norfolk v Coffey UKEAT/0260/16/BA; (3) DL-H v West London Mental Health Trust & Another [2017] UKUT 387 (AAC); (4) JMcG v Devon Partnership NHS [2017] UKUT 348 (AAC); (5) Mind research - the impact of legal aid cuts on people with mental health problems; (6) Leaving hospital; briefing on discharge from mental health inpatient services; (7) Monitoring the Mental Health Act: 2016/17.
  • 20/04/18 (3): Covert medication case. M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC) — "This case concerns disclosure to a patient in mental health tribunal proceedings of information that he had been covertly medicated. This is an issue that has previously been considered by the Upper Tribunal but this case differs from the existing case law in that it involves a patient who lacked the mental capacity to appoint a representative. I decide that the Mental Health Review Tribunal for Wales’ direction prohibiting disclosure of covert medication information involved an error on a point of law. Briefly, this was because the Tribunal did not consider the extent to which the patient, despite his impaired mental capacity, was nevertheless capable of participating in the proceedings. That issue should have been addressed before the Tribunal decided whether, having regard to the interests of justice, it was proportionate to withhold covert medication information from the patient."
  • 20/04/18 (2): Medical treatment case. NHS Windsor, Ascot and Maidenhead CCG v SP (Withdrawal of CANH) [2018] EWCOP 11 — "Windsor, Ascot and Maidenhead CCG have applied to the court for a personal welfare order in respect of SP. The order sought is for a Declaration and Order that it is not in SP's best interests for Clinically Assisted Nutrition and Hydration (CANH) to be continued. In tandem with the withdrawal of CANH palliative care will be provided. The consequence is an expectation that SP will die within 7-14 days. ... In early 2015 she was diagnosed as being in a continuing vegetative state and in April 2015 as being in a permanent vegetative state (PVS). She has been in receipt of CANH since October 2014."
  • 20/04/18 (1): Law Society panel concerns cont'd. Law Society mental health accreditation scheme - guidance documents — This page contains links to what is believed to be every version of the guidance documents dated from December 2011 to October 2017 inclusive (plus an old document from May 2002). The creation dates are taken from the PDF files. The download dates relate to when a version was downloaded from the Law Society website. At any time only one version was available for download. Publication dates can be assumed to lie somewhere between the creation date (or, if later, the download date for a previous version) and the download date inclusive. Further notes will be added - in particular, setting out how the requirements changed in each version.
  • 15/04/18 (1): Book chapter uploaded. Larry Gostin, Mental Health Services: Law and Practice (Shaw & Sons, supplement issue no 18, June 2000). Chapter 20 - The therapeutic relationship: treatment and confidentiality. See Gostin
  • 10/04/18 (1): Sentence appeal case. R v Thompson [2018] EWCA Crim 639 — "These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983."
  • 09/04/18 (4): Panel JR announcement. GT Stewart Solicitors and Advocates, 'GT Stewart file claim for judicial review in the High Court challenging decision of the Law Society' (6/4/18) — This announcement concludes: "The Law Society has not published detailed guidance on what areas are accepted to be mental health law-‘related’. However, in its published ‘expected standards of competence’, applicants are expected to have sufficient knowledge of areas of law, such as mental capacity, community care and human rights, which are relevant to advising and representing clients in proceedings before the First-tier Tribunal. Rebecca maintains that the courses which she undertook came squarely within the competencies required and that the Law Society’s decision to refuse her application for reaccreditation to the Mental Health Accreditation Scheme is unlawful."
  • 09/04/18 (3): Law Society panel concerns cont'd. On 6/4/18, (a) the 28/2/18 email from MHLO to the Law Society was published, (b) the Law Society replied stating that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year", and (c) MHLO sought a further email responding to each of the four points raised in the original email. If anyone has been adversely affected then please get in touch. See Law Society mental health accreditation scheme - CPD requirements to read the emails.
  • 09/04/18 (2): COP costs case. NHS Dorset CCG v LB [2018] EWCOP 7 — "In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision."
  • 09/04/18 (1): Deputyship case. Re AR [2018] EWCOP 8 — "The main reason why this application has been transferred to me is that it raises issues relating to the validity of the orders relied on by Mr Cawthorn to enable him to charge remuneration as a deputy."
  • 06/04/18 (1): Law Society panel concerns. Law Society mental health accreditation scheme - CPD requirements — During late 2017 and early 2018 the Law Society has been retrospectively operating an unpublished policy of disallowing certain CPD topics (including mental capacity law) for the mental health accreditation scheme. On 28/2/18 an email was sent from Mental Health Law Online, setting out the background and stating that the following steps ought to be taken urgently: (1) the previous, normal definition of "mental health law" should be re-adopted; (2) in any event, the current policy should be published on the Law Society's website and circulated by email among all current panel members; (3) if that policy narrowly defines "mental health law" then it should apply only from the date of publication and not retrospectively; (4) the cases of those who have been adversely affected should be revisited. On 4/4/18, judicial review proceedings were issued against the Law Society by a former panel member, Rebecca Hill of GT Stewart Solicitors and Advocates, against refusal of reaccreditation. On 6/4/18 the Law Society replied stating that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year, providing that this is structured training (for example: courses and webinars, where there is a defined syllabus which we may peruse on request)". It is now also thought that that the Law Society are retrospectively other CPD requirements. On 8/5/18 the Head of Accreditations responded to a further email to say that the Law Society is currently reviewing its requirements and, in order to provide clarity for its members, hopes to send information suitable for publication in June. The MHLO scheme contains 6 hours of structured, MHA CPD tests per year, but before October 2015 the 12 annual tests were each split between MHA and MCA (see CPD scheme MHA/MCA breakdown for details). If anyone has been adversely affected by any of these issues then please get in touch.
  • 28/03/18 (9): Litigation friend case. Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong."
  • 28/03/18 (8): Vexatious COP application case. Re SW (No 2) [2017] EWCOP 30 — "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."
  • 28/03/18 (7): Medical treatment case. Re SW [2017] EWCOP 7 — (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."
  • 28/03/18 (5): Extradition case. Cash v Court of First Instance, Strasbourg, France [2018] EWHC 579 (Admin) — "At the conclusion of the hearing on 13 March 2018 I allowed the Appellant's appeal and quashed the extradition order made by District Judge Grant on 15 March 2017. I did so on the grounds that it would be unjust and oppressive to extradite the Appellant because he is currently unfit to stand trial and is seriously mentally ill with paranoid schizophrenia, and thus the judge should have decided that extradition is barred by s 25 of the Extradition Act 2003."
  • 28/03/18 (4): Variation of Trusts Act case. ET v JP [2018] EWHC 685 (Ch) — "This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958. ... The way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act."
  • 28/03/18 (3): HIV treatment case. Re AB [2016] EWCOP 66 — "I am asked to, and I do approve, a treatment regime for AB, which involves the administration of medication to her on a basis of deception. Not merely passive deception, which, to use a legal phrase might be characterised as suppressio veri, but active deception, which lawyers might describe as suggestio falsi. It is debateable whether there is in fact much moral difference between the two types of deception, but what is being proposed here is a treatment regime, an administration of medication, on the basis of active deception of AB. I only have to state this for the unusual nature of the case to be revealed, but the circumstances in which these facts arise demonstrate that such a course is manifestly required in the best interests of AB, notwithstanding that her personal wishes and feelings would be entirely contrary to the course that is going to ensue. AB is infected with HIV. ... The order will provide, however, that if the truth emerges to AB and she moves to a position of active resistance then the matter will have to be reviewed, and the Court will have to consider, in that situation, whether to move to forced administration of these drugs, which would be a very difficult decision to make, because it would not be a one-off administration of treatment, but would be a quotidian administration of treatment, which is a very different state of affairs to that which is normally encountered in this Court."
  • 28/03/18 (3): Nerve agent case. SSHD v Skripal [2018] EWCOP 6 — "On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Mr and Ms Skripal remain in hospital under heavy sedation. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. The fact of their exposure to a nerve agent has already had significant consequences on the wider domestic and international stage which I need not go into for the purposes of this judgment. However central to the application before me is the fact that on 14 and 16 March 2018 the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom 'to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).' This in effect is to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries the OPCW wish to: (i) Collect fresh blood samples from Mr and Ms Skripal to (a) undertake their own analysis in relation to evidence of nerve agents, (b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal; (ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018; (iii) Re-test the samples already analysed by Porton Down. Because Mr Skripal and Ms Skripal are unconscious and neither are in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust have quite properly confirmed to the UK Government that a court order would be required to authorise (a) and (b) above."
  • 28/03/18 (2): Sentence appeal case. R v Edwards [2018] EWCA Crim 595These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s.37/41 and s.45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle.
  • 19/03/18 (2): COP case. Re SW (No 2) [2017] EWCOP 30 — "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."
  • 19/03/18 (1): Protective measure case. Re JMK [2018] EWCOP 5 — "The application before the Court is for an order to recognise a Canadian Power of Attorney pursuant to Schedule 3 of the Mental Capacity Act 2005. The issue for determination is whether such an instrument amounts to 'a protective measure' for the purposes of Schedule 3."
  • 12/03/18 (1): COP bias case. Re M: A v Z [2018] EWCOP 4 — "This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests."
  • 08/03/18 (2): COP case. Re M: AB v HT [2018] EWCOP 2 — "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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