Category

No summary

Case and summary Date added Categories
R (Adegun) v SSHD [2019] EWHC 22 (Admin) — "There are two bases of challenge to Mr Adegun's detention which, in broad outline, are as follows. ... There is first an issue, which I shall call the "rule 34 issue", as to whether Mr Adegun declined a medical examination pursuant to rule 34 of the Detention Centre Rules when he was taken into detention. ... The second issue I shall call the "paragraph 55.10 issue". It arises because there is evidence, not disputed by the Secretary of State, that Mr Adegun was suffering from a mental health condition which was not recognised by the Home Office until some time after his admission into detention and was not treated with medication until 19 January 2016. ... I therefore propose to award nominal damages in respect of the early period of Mr Adegun's detention and substantial damages in respect of 40 days' detention." 2019‑01‑12 22:58:23 2019 cases, Cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript


EXB v FDZ [2018] EWHC 3456 (QB) — "This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement. [I]t was thought by those who knew him best ... that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved. ... The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because 'by definition, the Claimant cannot be presented with the information relevant to the decision in order to assess his capacity, as that would make the entire exercise redundant.' Nonetheless, the Claimant has expressed his views on the matter without the exact figure being known to him and there is evidence (particularly in his comment after he left the videoconference room after giving his evidence) that his ability to make this decision is variable and that he could not necessarily sustain over any meaningful period the making of such a decision given his inability to control his impulses and weigh up all the relevant considerations. In those circumstances a declaration as to incapacity in relation to this specific decision is justified. ... This case is the first I can recall when an issue such as that which has arisen has occurred. ... I will send a copy of this judgment to the Deputy Head of Civil Justice and to the Vice-President of the Court of Protection so that they can consider whether any consultation on this issue is required and whether any action needs to be taken as a result." The draft order included the following declarations: "(1) The Claimant lacks the capacity to decide whether or not he should know the amount of the Settlement. (2) It is in the Claimant's best interests that he does not know the amount of the Settlement. (3) It shall be unlawful for any person (whether the Claimant's deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life." 2018‑12‑14 22:43:03 2018 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


R v Kurtz [2018] EWCA Crim 2743 — "The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1)(b) of the Mental Capacity Act 2005 ('MCA 2005) of which the Appellant was convicted. This provision has not previously been considered by the Court of Appeal. ... The essential question at the heart of this appeal is whether, on a prosecution for the offence contrary to s 44(2) read with s 44(1)(b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as 'the lack of capacity requirement'. ... The submission by Ms Wade QC on behalf of the Appellant was that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1)(b) of the MCA 2005 even if she had wilfully neglected her mother. ... Despite our comments in [19] above as to the evidence which suggests that, at a minimum, the Appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge's failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed." 2018‑12‑10 22:06:13 2018 cases, Cases, EPA cases - all, EPA cases - other, ICLR summary, Judgment available on Bailii, No summary, Transcript


SR v A Local Authority [2018] EWCOP 36 — "At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR's contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR's expressed views in relation to euthanasia and other comments made by him from time to time. ... Whilst I accept that JR's comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. ... However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband. I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary." 2018‑11‑29 21:25:14 2018 cases, Cases, No summary, Other capacity cases, Transcript


Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 — "The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction." 2018‑11‑29 21:13:11 2018 cases, Cases, Deprivation of liberty, No summary, Transcript


R (Western Health and Social Care Trust) v Secretary of State for Health [2018] NIQB 67 — "The impugned determination is that of the [Secretary of State for Health of England and Wales] to the effect that a lady whom I shall describe as CM (aged 32 years) is 'ordinarily resident' in Northern Ireland and has been thus since 2009, with the result that the care management and funding responsibilities for her have fallen on the Trust, rather than [the London Borough of Enfield], since that date. In very brief compass, lying at the heart of this challenge is a funding dispute between the Trust and Enfield." 2018‑11‑23 14:24:37 2018 cases, Cases, Community care, No summary, Transcript


Ardron v Sussex Partnership NHS Foundation Trust [2018] EWHC 3157 (QB) — "The Claimant, Dr. Caroline Ardron, is a very experienced consultant psychiatrist employed by the Defendant [Trust]. The Trust considers it appropriate for Dr. Ardron to face disciplinary proceedings for alleged gross misconduct relating to her work at HMP Lewes in late 2015 and early 2016. At that time, Dr. Ardron was the responsible clinician of a young prisoner known as JO, who committed suicide by hanging himself on 12 February 2016. The proposed disciplinary proceedings relate, almost exclusively, to Dr. Ardron's care of JO including her record-keeping in that respect. Dr. Ardron does not suggest that disciplinary proceedings are inappropriate as a matter of principle, or that there is no case of misconduct that could be brought against her. However, she contends that there is no basis for a charge of gross misconduct; a charge which, if established, could potentially lead to the termination of her contract and serious ramifications for her including her prospects of obtaining subsequent employment. On 18 June 2018, an interlocutory injunction was granted by Mr. Pushpinder Saini QC, sitting as a Deputy Judge of the High Court, which restrained the Trust from proceeding until further order with a disciplinary hearing into gross misconduct. The question for resolution now is whether that injunction should be made permanent. That issue depends upon whether Dr. Ardron can prove that the Trust will breach her contract of employment by holding the proposed disciplinary hearing on a charge of gross misconduct. The Trust's intention to proceed to such a hearing was communicated in its letter to Dr. Ardron dated 20 March 2018, and the issue is therefore whether the Trust should be prevented from operating on the basis of that letter. The resolution of that issue depends principally upon the question of whether the facts found in an investigation into Dr. Ardron's conduct could, taken at their highest, amount to gross misconduct." 2018‑11‑23 14:02:05 2018 cases, Cases, Judgment available on Bailii, Miscellaneous, No summary, Transcript


Re HC (A Minor: Deprivation of Liberty) [2018] EWHC 2961 (Fam) — "HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire ("the unit"). By application dated 18th July 2018, the local authority responsible for HC's placement asks that the court determine whether HC's placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. ... Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC's placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate." 2018‑11‑08 02:48:41 2018 cases, Deprivation of liberty, No summary, Transcript


Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance." 2018‑11‑08 02:43:22 2018 cases, Cases, No summary, Other capacity cases, Transcript


Re D (A Child): Liverpool City Council v AM [2018] EWCOP 31 — "However, an extensive search for a therapeutic placement was undertaken throughout the UK with repeated emails being sent to multiple providers. Unfortunately, due to there being a limited number of placements available and demand being high, no offers of placements were made that were remotely suitable to D's identified needs. The Placements Team contacted commissioners in other Local Authorities, requesting any intelligence concerning potentially suitable placements. I have been told that they obtained a Residential Framework Placement list to ensure that they were contacting every possible provider. The case has been heard by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside whose robust and determined case management is clear from the papers. Having failed, entirely, to achieve a placement, over so many months Judge De Haas, yesterday, in desperation and no doubt exasperation, ordered the case to be transferred to me. I have interposed it into my list to be heard, as it has been throughout, in open Court with, I note, the press in attendance." 2018‑11‑08 02:43:22 2018 cases, Cases, No summary, Other capacity cases, Transcript


Gill v Woodall [2009] EWHC B34 (Ch) — "The Claimant disputes the validity of Mrs Gill's will on two grounds. They are: (1) At the time Mrs Gill executed the will she did not know and approve its contents; (2) Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill." 2018‑10‑23 18:37:55 2009 cases, No summary, Testamentary capacity cases, Transcript


Re D (A Child) [2017] EWCA Civ 1695 — "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." 2018‑10‑23 18:24:57 2017 cases, Cases, Deprivation of liberty, Deprivation of liberty - children, Judgment available on Bailii, No summary, Transcript


Re D (A Child) [2017] EWCA Civ 1695 — "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." 2018‑10‑23 18:24:57 2017 cases, Cases, Deprivation of liberty, Deprivation of liberty - children, Judgment available on Bailii, No summary, Transcript


Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10 — "This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, No summary, Transcript


Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10 — "This judgment in long-running proceedings involving a vulnerable young woman, hereafter referred to as 'P', addresses difficult issues concerning her sexual relationships and the covert insertion of a contraceptive device. ... I shall address these issues in the following order: (1) Capacity - general principles. (2) P's capacity other than sexual relations. (3) P's capacity to consent to sexual relations. (4) Best interests: general principles. (5) Best interests: contraception. (6) Best interests: covert treatment (6) Best interests: sexual relationships and supervision. (7) Further issues arising from the draft order." 2018‑10‑22 14:37:50 2018 cases, 39 Essex Chambers summary, Capacity to consent to sexual relations, Cases, E90, No summary, Transcript


PBC v JMA [2018] EWCOP 19 — "PBC is the son of JMA, and was appointed as her sole attorney for property and affairs by a Lasting Power of Attorney ... He seeks the authority of the Court to make from JMA’s estate various gifts together exceeding £7 million. The purpose of such gifting, openly stated from the outset of the application, is to achieve - as long as JMA lives at least a further 3 years - reduction of inheritance tax liabilities. The parties have reached an agreement between themselves. Together, they ask the Court to make orders to give effect to their agreement. The matter was listed for hearing because the Court sought assistance in order to reach a conclusion as to whether or not the terms of that agreement are in the best interests of JMA." 2018‑09‑02 21:58:59 2018 cases, Deputyship cases, No summary, Transcript


Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam) — "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." 2018‑08‑08 20:33:34 2018 cases, Deprivation of liberty, No summary, Transcript


Re A (A Patient, now deceased) (No 4) [2018] EWCOP 17 — "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." 2018‑07‑29 19:19:05 2018 cases, Miscellaneous, No summary, Transcript


Re A (A Patient, now deceased) (No 3) [2018] EWCOP 16 — "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." 2018‑07‑19 15:37:34 2018 cases, COP costs cases, No summary, Transcript


Re FX [2017] EWCOP 36 — "I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions." 2018‑07‑06 21:25:50 2018 cases, No summary, Other capacity cases, Transcript


Royal Borough of Greenwich v CDM [2018] EWCOP 15 — "In this case the patient is CDM, a lady aged 63 years. ... My Conclusions: (i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM. (ii) I conclude that she does not have capacity to make decisions about her residence. ... (iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do. There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment. I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity. (iv) Property and affairs: I am troubled by the lack of evidence on this issue. ... I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area. (v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. ... It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC. ... This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests." 2018‑07‑03 20:15:50 2018 cases, 39 Essex Chambers summary, No summary, Other capacity cases, Transcript


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." 2018‑05‑22 20:51:22 2017 cases, Inherent jurisdiction cases, No summary, Transcript


LB Richmond v W [2001] QB 370 — "These four appeals involve an important issue as to whether charges can be levied by local authorities in relation to accommodation provided by them under section 117 of the Mental Health Act 1983 to persons who have been discharged from detention under section 3 of that Act." 2018‑05‑13 22:46:13 2000 cases, After-care, No summary, Transcript


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." 2018‑04‑27 20:00:41 1996 cases, Miscellaneous, No summary, Transcript


Buckinghamshire County Council v RT [2018] EWCOP 12 — "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." 2018‑04‑25 23:34:51 2018 cases, Deprivation of liberty, No summary, Transcript


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." 2018‑04‑20 19:54:41 2018 cases, Medical treatment cases, No summary, Transcript


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." 2018‑04‑09 00:53:58 2018 cases, COP costs cases, Cases, Judgment available on Bailii, No summary, Transcript


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." 2018‑04‑09 00:53:58 2018 cases, COP costs cases, Cases, Judgment available on Bailii, No summary, Transcript


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." 2018‑04‑09 00:46:17 2018 cases, Deputyship cases, No summary, Transcript


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." 2018‑03‑28 22:40:05 2017 cases, COP costs cases, Medical treatment cases, No summary, Reporting restriction order cases, Transcript


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." 2018‑03‑28 09:45:15 2016 cases, Medical treatment cases, No summary, Transcript


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." 2018‑03‑28 09:35:57 2018 cases, Medical treatment cases, No summary, Transcript


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." 2018‑03‑19 01:09:49 2017 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript


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." 2018‑03‑12 22:55:33 2018 cases, Bias, No summary, Other capacity cases, Transcript


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." 2018‑03‑08 20:27:30 2018 cases, Capacity to consent to sexual relations, No summary, Transcript


DB (as executor of the estate of OE) v SSWP [2018] UKUT 46 (AAC) — "The main grievance of Mr B, who brings this appeal in his capacity as executor of his late Aunt Miss E’s estate, is the Secretary of State’s decision to make Birmingham City Council Miss E’s social security appointee. When the council were made Miss E’s appointee, Mr B held an enduring power of attorney authorising him to deal with her financial affairs. Appointment decisions do not attract a right of appeal to the First-tier Tribunal. Neither that tribunal, nor the Upper Tribunal, has jurisdiction to entertain an ‘appeal’ against an appointment decision. However, I do have some concerns about the way in which the council’s appointment application was handled. I decide to express some views on that subject. My purpose in simply to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly." 2018‑02‑26 22:50:22 2018 cases, No summary, Other capacity cases, Transcript


Re A-F (Children) [2018] EWHC 138 (Fam) — "... [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." 2018‑02‑02 00:19:06 2018 cases, Deprivation of liberty, No summary, Transcript


M v An NHS Trust [2017] MHLO 39 (UT) — "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made." 2018‑01‑27 22:25:39 2017 cases, Cases, Judgment available on MHLO, No summary, Reasons, Transcript, Upper Tribunal decisions


M v An NHS Trust [2017] MHLO 39 (UT) — "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made." 2018‑01‑27 22:25:39 2017 cases, Cases, Judgment available on MHLO, No summary, Reasons, Transcript, Upper Tribunal decisions


Application by Darlington Borough Council in respect of the Adult: AB [2018] ScotSC 4 — "The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian." 2018‑01‑25 21:58:52 2018 cases, No summary, Other capacity cases, Scottish cases, Transcript


Bunting v W [2005] EWHC 1274 (Ch) — "By the Application the Receiver seeks an order against the Respondent, to whom I shall refer as ("Mr W") that the accounts he delivered in his capacity as Receiver of M for the year ending 21st April 1994 and thereafter annually until year ending 21st April 2002 be re-opened or set aside. The application further seeks an order that Mr W deliver fresh accounts verified by affidavit, identifying (amongst other matters) the funds or assets of M used directly or indirectly for the personal benefit of Mr W or his family; that the Receiver be given permission to raise objections and further inquiries as to whether or not Mr W is to be entitled to charge remuneration for the services of himself and his wife in caring for or attending on M and an order that he should pay into the Court of Protection such sums as may be found due on taking the accounts and inquiries. In the event that there is a jurisdictional impediment to an order for payment into court the Receiver seeks an order authorising her pursuant to section 96(1) (i) of MHA 1983 to make an application to the High Court pursuant section 139(2) MHA, 1983 for leave to bring proceedings against Mr W to recover the sums found due on taking the accounts and inquiries." 2017‑11‑26 01:16:02 2005 cases, Deputyship cases, No summary, Transcript


A Local Authority v AT and FE [2017] EWHC 2458 (Fam) — "Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so." 2017‑10‑08 21:47:42 2017 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii


R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin) — "The central question raised in these proceedings is whether either or both of the Defendants has a duty under s117 of the MHA to cover the costs of the Claimant's mother's visits, on the ground that they constitute "after-care services" within the meaning of that provision. ... The specific issues that arise are as follows: (a) Whether the duty to provide after-care services under s117 is triggered when the Claimant is granted leave of absence from the Hospital under s17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely, (i) that he has "ceased to be detained" under s3 of the MHA, and (ii) that he has "left hospital"; (b) If so, whether the after-care services which are to be provided pursuant to s117(6) of the MHA may as a matter of principle include funding to cover the Claimant's mother's transport costs; (c) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s117; (d) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017." 2017‑09‑20 21:41:14 2017 cases, After-care, Cases, Judgment available on Bailii, Mind summary, No summary, Transcript


JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC), [2017] MHLO 28 — "The principal issue in this appeal is whether the First-tier Tribunal (Mental Health) erred in law in its belief that, pursuant to s.72(3) of the Mental Health Act 1983, it could not defer the discharge of a detained patient beyond the date of the order authorising detention. The Appellant patient criticised the tribunal for (a) refusing to defer his discharge until a date after the authority for his detention had expired and (b) failing to give adequate reasons for its decision overall. I have concluded that the tribunal did not err in law with respect to the effect of section 72(3) since its reasons did not assert that a deferred discharge could not exceed the date of the order authorising detention. Though strictly obiter, I have concluded that a deferred discharge cannot exceed the date of the order authorising detention and explain why I have reached that view below. I also concluded that the tribunal’s reasoning in this case was adequate." 2017‑09‑08 13:12:19 2017 cases, Mind summary, No summary, Powers, Transcript, Upper Tribunal decisions


BA v SSHD (2017) UKAITUR IA343212013 — "The Appellant is a citizen of Nigeria born on 26th February 1980. His appeal against a refusal to vary leave was allowed by First-tier Tribunal Judge Abebrese on Article 8 grounds on 23 rd May 2016. ... The Appellant sought permission to appeal against the Article 3 findings only ... On the basis of the factual findings, the opinion in the Amnesty International Report and the opinion of Dr Bell, the Appellant is likely to suffer a breakdown at some point on return to Nigeria whether that be at the airport or some time later. He is likely to come to the attention of the police if he has such a breakdown and he would not be able to access the psychiatric hospital in Lagos because he is unable to afford treatment there. Accordingly, it is likely that he would be held in prison where the conditions for this particular Appellant with his particular condition would result in treatment in breach of Article 3. ... The Applicant would not be at risk of Article 3 treatment because of a heightened risk of suicide. He would, however, be at risk of inhuman and degrading treatment in breach of Article 3 because of the conditions of return. ... The medical evidence indicates that the Appellant is vulnerable to relapse even in the UK and without the threat of removal. His removal to Nigeria is likely to trigger a relapse and his behaviour will draw hostile attention. His treatment by the authorities in detaining him under the Lunacy Act 1958 would amount to inhuman and degrading treatment. There is a reasonable degree of likelihood that he would be detained in a prison, there would be no treatment for his mental health, his situation would deteriorate, the length of detention is indeterminate, there is no right of appeal and there is no requirement for him to consent to treatment. Accordingly, I allow the Appellant's appeal on Article 3 grounds." 2017‑07‑11 18:05:39 2017 cases, No summary, Repatriation cases, Transcript


ABC v St George's Healthcare NHS Trust & Ors [2017] EWCA Civ 336, [2017] MHLO 19 — "The Claimant alleges that the particular circumstances of her case mean that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father's diagnosis, firstly presumed and subsequently confirmed, in the light of her pregnancy. This was her first and only child. It was all along known that she would be a single mother with sole responsibility for the upbringing of the child. If informed of her father's diagnosis she would have sought to be tested for Huntington's Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child might in due course be dependent on a seriously ill single parent or become an orphan, and the risk that in due course her child might inherit the disease. Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a 'wrongful birth' claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case, one way or another." 2017‑05‑18 23:11:50 2017 cases, Miscellaneous, No summary, Transcript


Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 18 — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?" 2017‑05‑10 12:41:50 2017 cases, ICLR summary, No summary, Repatriation cases, Transcript


ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 17 — "In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4." 2017‑05‑09 10:03:37 2017 cases, No summary, Repatriation cases, Transcript


Mole v Parkdean Holiday Parks Ltd [2017] EWHC B10 (Costs), [2017] MHLO 13 — "The issue that arises for determination is whether the First Claimant ('the Claimant') is entitled to recover a success fee pursuant to a costs order against the Defendants in respect of work carried by his solicitors for a period after the Claimant's mother was replaced as a litigation friend by the Official Solicitor. ... In my judgment the analysis in Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18, [2015] MHLO 7 is clear and it leads to the conclusion that the retainer that was first entered into 2006 has remained effective during the course of the claim unaffected by the substitution of a new litigation friend. Accordingly, the claim for costs in the period after the appointment of the Official Solicitor is not dependent upon the Official Solicitor having entered into a new agreement on 1 April 2013 or indeed founded upon any such agreement. There was already in existence an agreement which was sufficient to ground the liability of the Claimant to pay the success fee under the original CFA for the period after the appointment of the Official Solicitor." 2017‑04‑29 22:03:20 2017 cases, No summary, Other capacity cases, Transcript


R (M) v FTT and CICA [2017] UKUT 95 (AAC), [2017] MHLO 12 — "Mr M sought permission to bring judicial review proceedings in respect of three decisions of the First-tier Tribunal (the Tribunal takes a neutral stance in these proceedings). The Upper Tribunal granted Mr M permission to bring judicial review proceedings in respect of two of these decision. In both, the Tribunal had struck out Mr M’s appeals against decisions of the Criminal Injuries Compensation Authority (CICA) not to extend time for applying for review of a decision to refuse to award him compensation. ... In both decisions, the First-tier Tribunal erred in law by failing to consider how to apply the overriding objective of its procedural rules in the light of Mr M’s mental health condition. ... The overriding objective, set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, is to deal with cases fairly and justly. This includes ensuring “so far as practicable, that the parties are able to participate fully in the proceedings”. ... Accordingly, the overriding objective extends to taking such steps as are practicable to enable a party to present his case. This does not mean the First-tier Tribunal has to construct a case for an applicant. But it does call for a Tribunal to consider whether an applicant’s circumstances mean that he faces obstacles in presenting his case that the Tribunal should seek to remove or mitigate to ensure a case is dealt with fairly and justly. The appropriate step or steps to take will be informed by the circumstances of the case but could include: ensuring that an applicant’s liability to detention in a mental health institution does not prevent him attending a hearing; inviting an applicant to consent to the Tribunal obtaining medical records rather than insisting that the applicant supplies them; acting more inquisitorially than it would in the case of a represented applicant or one without a mental health condition. ... Section 5(7) [Rehabilitation of Offenders Act 1974] provided that, where a hospital order under Part III of the Mental Health Act 1983 was imposed on conviction, the rehabilitation period for the conviction (at the end of which it was ‘spent’) was the longer of the following dates: (a) the period of five years from the date of conviction; or (b) the period beginning with the date of conviction and ending two years after the date on which the order ceases to have effect. ... I note that section 5 of the 1974 Act was amended, from 10 March 2014, by section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As amended, section 5 refers to a range of “relevant orders” which include a hospital order under Part III of the Mental Health Act 1983. The rehabilitation period for the conviction that led to a relevant order is “the day provided for by or under the order as the last day on which the order is to have effect”. I suspect the new version of section 5 of the ..→ 2017‑04‑29 21:42:30 2017 cases, No summary, Transcript, Upper Tribunal decisions


LB v BMH [2017] MHLO 10 (UT) — "The First-tier Tribunal decided that the patient should not be discharged from liability to be detained and to make no recommendation pursuant to section 72(3) and (3A) of the 1983 Act. Paragraph 19 of its written decision recorded the following: 'The solicitor representing the patient sought an adjournment as she had concerns about the quality of the evidence regarding the patient's clinical treatment in the past. We have some sympathy with the view that the patient's treatment history is incomplete. A summary of the previous treatments should be available to the panel wherever possible. However, the recent treatment history during the in-patient admission at [this hospital] was available to the panel. There was ample evidence before the panel that the patient is floridly psychotic and in our view the evidence satisfied the criteria for detention. We refused the request for an adjournment.' ... The grounds of appeal argue that the reports before the First-tier Tribunal gave very little information about the patient' s previous placement, nor about the reasons for the transfer, nor about any previous trials with clozapine. The application for an adjournment was made with a view to persuading the First-tier Tribunal to recommend a transfer under section 72(3), which was not possible without further information. This was especially important because the First-tier Tribunal proceedings were by way of reference and the patient was unlikely to appeal himself 'and may remain inappropriately placed for a further three years'. I agree with these grounds and also note that the application to adjourn was not made by or on the instructions of the patient but by an experienced specialist solicitor who had herself been appointed by the tribunal and felt that there was inadequate evidence before the tribunal (which, to an extent, the tribunal itself acknowledged). ... [T]he refusal to adjourn amounted to a breach of the rules of natural justice and fair procedure and for these reasons this appeal is allowed." 2017‑03‑17 21:59:36 2017 cases, No summary, Transcript, Upper Tribunal decisions


White v Philips [2017] EWHC 386 (Ch), [2017] MHLO 9 — "The claimant, Linda Anne White is the testator's widow. They had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contends that at the time he gave instructions and when he signed his will Mr White lacked testamentary capacity with the result that the will is invalid and, since there was no prior will, his estate should be distributed in accordance with the rules relating to intestacy. A pleaded claim to the effect that the execution of the will was obtained by undue influence is no longer being pursued. The only matter for determination therefore is whether at the time Mr White had testamentary capacity." 2017‑03‑06 22:02:49 2017 cases, No summary, Testamentary capacity cases, Transcript


PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC), [2017] MHLO 8 — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity." The Tribunal panel must keep the patient’s capacity in relation to Tribunal rule 11 under review during the hearing, and an appointment may be made for a patient with fluctuating capacity who had previously appointed his own representative. 2017‑02‑23 21:49:05 2017 cases, MHT capacity cases, No summary, Transcript, Upper Tribunal decisions


Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 61 — "This case relates to an elderly lady, NS. She has been represented by the Official Solicitor (OS) throughout these proceedings. ... The case therefore first came to court when the Trust sought to place NS in a residential facility after the hospital admission in May 2016. This was at a time when a stay in hospital was no longer required. The issue in the case was really whether NS should be discharged to a residential facility or to the care of MS with a care package. ... This case therefore involves consideration of a number of questions which I summarise as follows: (i) Is the patient incapable of making a decision regarding the particular issue put before the court? (ii) If so is the plan/treatment proposed in the best interests of the patient? (iii) Is the intervention necessary and proportionate pursuant to Article 8 of the ECHR? (iv) If the plan involves a deprivation of liberty under Article 5 of the ECHR should that be authorised by the court and if so under what terms regarding duration and review?" 2017‑02‑23 21:29:50 2016 cases, Deprivation of liberty, No summary, Northern Irish cases, Transcript


Belfast Health and Social Care Trust v PT [2017] NIFam 1, [2017] MHLO 7 — "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ..→ 2017‑02‑23 21:22:02 2017 cases, Deprivation of liberty, No summary, Northern Irish cases, Transcript


Devon County Council v Manuel Martins and Teresa Kirk [2016] EWCOP 45, [2016] MHLO 60A consent order signed on 9/2/17, which followed an application notice dated 23/1/17 and the death of Manual Martins on 1/2/17, led to the publication of this judgment of 10/6/16, together with the lifting of all reporting restrictions. Extract from judgment: "These proceedings in the Court of Protection concern an 81 year old man called Manuel Martins, now suffering from dementia. He is currently in Portugal, having been taken there by his sister, Teresa Kirk. Previous orders have been made by other judges of this court ordering his immediate return. To date, Mrs Kirk has failed to comply with those orders and it may be therefore that she is in contempt of court as a result. That is not however a matter for this hearing. Because of the passage of time, I considered it appropriate at an earlier hearing to direct a further assessment of where Mr Martins' best interests lay. The fact is that he has now been living in Portugal for some time and I considered that it would be right in the circumstances to direct a further assessment. That assessment having now been carried out, I have today conducted a hearing to determine whether it is in Mr Martins' best interests to return to this country, to reside at a unit hereafter referred to as "A House" in the town where he lived for many years before going to Portugal, or rather to remain in his current residential unit in Portugal. ... I conclude that the balance plainly comes down in favour of a return to this country and a placement at A House." 2017‑02‑14 22:42:29 2016 cases, Best interests, No summary, Transcript


Re DB [2016] EWCOP 30, [2016] MHLO 59 — "DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court." 2017‑02‑12 21:31:18 2016 cases, No summary, Other capacity cases, Transcript


ASK v SSHD [2017] EWHC 196 (Admin), [2017] MHLO 6 — "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 [2016] UKSC 19! 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) [2014] EWCA Civ 45!. 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 'prompt' 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." 2017‑02‑09 21:04:48 2017 cases, No summary, Repatriation cases, Transcript


R v Holloway [2016] EWCA Crim 2175, [2016] MHLO 57 — "The applicant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. ... Subsequently, the judge decided to appoint counsel, a Mr David Malone, to assist the court and the applicant with legal issues. ... Ms Tayo asserts that the judge should have refused to allow the applicant to represent himself. She conceded, as she must, that he had been deemed fit to plead and stand trial and in principle had a right to defend himself but she maintained that the judge was obliged to force legal representation on him because of the nature and extent of his mental illness. ... Our conclusion on ground 1 can be stated shortly. This applicant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. ... It is clear that a defendant who is fit to stand trial cannot dismiss his legal representatives, insist on representing himself and then come to this court claiming he should not have been allowed to represent himself. ... The circumstances in which an advocate is appointed are very restricted. A memorandum dated 19 December 2001 agreed between the then Attorney General and Lord Chief Justice states in clear terms that an amicus will not be appointed for the purposes of cross‑examination in criminal trials and they will not be appointed 'simply because a defendant in criminal proceedings refuses representation'. Her Majesty's Attorney may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. Mr Little invited us to note that in such a situation, it is not the court who appoints the advocate but the Attorney and the advocate does not act on behalf of an accused in cross‑examining witnesses or presenting arguments before a jury. ... It is now accepted that a court has an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. In this case, however, an intermediary was not necessary. HHJ Lyons, with the best of intentions, purported to appoint an amicus 'to assist the court' who in truth was appointed to act as a defence advocate and adviser. We see considerable force in Mr Little's submissions that, save where statute provides, there is no power to appoint an advocate in these circumstances to perform such a role. Further, there is no need for any such power. The court now has ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation has been refused. Accordingly, we can find no basis for the appointment of Mr Malone, as helpful as he undoubtedly was to the court and to the applicant. Through no ..→ 2017‑02‑08 21:06:39 2016 cases, ICLR summary, No summary, Transcript, Unfitness and insanity cases


Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin), [2017] MHLO 5 — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?" 2017‑02‑08 20:31:34 2017 cases, No summary, Repatriation cases, Transcript


AP v Tameside MBC [2017] EWHC 65 (QB), [2017] MHLO 4 — "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant." 2017‑02‑02 19:55:25 2017 cases, Deprivation of liberty, ICLR summary, No summary, Transcript, Unlawful detention cases


R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a ..→ 2017‑01‑26 15:20:11 2017 cases, Deprivation of liberty, ICLR summary, Inquests, Judgment available on Bailii, No summary, Transcript


R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a ..→ 2017‑01‑26 15:20:11 2017 cases, Deprivation of liberty, ICLR summary, Inquests, Judgment available on Bailii, No summary, Transcript


ARF v SSHD [2017] EWHC 10 (QB), [2017] MHLO 1 — "In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4. ... For the avoidance of doubt, I therefore find that the Claimant's detention was unlawful at common law under the Hardial Singh principles from 30 June 2012 (see paragraphs 133 and 137 above). I find that her detention was unlawful by reason of public law error in relation to her report of torture in the Rule 35 report from 2 weeks from the date of receipt of that report, that is 16 March 2012 (see paragraph 144 above) and in respect of her mental illness from receipt of the last of the Part C reports in May 2012 (see paragraph 141 above). I find that. as somebody suffering from serious mental illness, aspects of the Claimant's detention from mid May 2012 amounted to a breach of her Article 3 rights (see paragraph 148 above)." 2017‑01‑22 21:20:58 2017 cases, No summary, Repatriation cases, Transcript


R v GA [2014] EWCA Crim 299, [2014] MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that they did so or were unreasonable in their belief that there was consent. In this particular case, expert evidence was led before the jury on the question of the complainant's capacity. It appears to us that it will inevitably be the case, if capacity is an issue, that an expert will be called to provide evidence which would not otherwise be within the common experience of the jury. It is vitally important that such evidence is 'expert', relevant and only deals with the matter in issue, namely capacity. Having read the transcript of the prosecution expert evidence in this case we regret to say that she exceeded her remit, particularly in articulating her own interpretation of the facts as to whether or not the complainant did consent. It is unfortunate that the witness was not adequately managed in the court process as a whole. What is more, it seems to us that the opinions expressed by the prosecution expert did not reflect the jurisprudence at the time. Therefore, even if not conceded we would have allowed the appeal being certain that decided that the jury's finding was unsafe on two grounds: (i) the judge adopted the wrong standard of proof in his directions to the jury in relation to the issue of capacity; and (ii) the expert evidence not fit for purpose to assist the jury to come to any conclusion at all as to the capacity of by the complainant to consent to sexual relations." 2016‑12‑29 21:08:41 2014 cases, Capacity to consent to sexual relations, Criminal law capacity cases, ICLR summary, No summary, Transcript


SSJ v Staffordshire County Council and SRK [2016] EWCA Civ 1317, [2016] MHLO 55 — "The issue in this case is whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights, it is necessary for a welfare order to be made by the Court of Protection pursuant to the Mental Capacity Act 2005 in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention." 2016‑12‑27 20:47:27 2016 cases, Deprivation of liberty, ICLR summary, No summary, Transcript


Abertawe Bro Morgannwg University LHB v RY [2016] EWCOP 57, [2016] MHLO 54 — "On 12th October this year the applicant Health Board applied to this court for declarations both as to 'capacity' and 'best interests' under the Mental Capacity Act 2005, concerning RY, to permit withdrawal of ventilation, withholding of life-sustaining treatment, and provision of palliative care only. RY's daughter has from the beginning asserted that, when ventilation is removed, life-sustaining treatment should be provided. I am asked to approve an order filed with the consent of all the parties which provides for some life-sustaining treatment, but not CPR or further intensive care. ... However, there have been a number of recent videos taken of RY ... which have led [Dr Badwan] to conclude that RY is not in a vegetative state, but is in a minimally conscious state with some signs of being in upper minimally conscious state. ... This morning the very experienced advocates in this case presented a plan, by agreement, in which it was proposed that RY underwent a tracheostomy under general anaesthetic and, transferred to a suitable unit for further treatment and/or assessment. ... As a Judge sitting in the Court of Protection, I have experience of litigants seeking very extensive assessments and re-assessments, in a way that occurred in the Family Division in Children Act 1989 proceedings, most particularly in public law care proceedings. The reasons for both strike me as similar, namely that the decisions the Court is asked to make are of such great importance and carry such profound consequences that there is, I think, a forensic instinct to leave no stone unturned. I am bound to say however, that I sometimes feel that I am being asked to authorise a petrological survey on the upturned stone. Just as the Family Justice reforms have re-emphasised the real dangers to vulnerable children caused by avoidable delay, so to, it seems to me, practitioners in this field must recognise that delay which is not, on a true analysis, either constructive or purposeful is almost certainly damaging and thus inimical to P's welfare. Though avoidance of delay is not a statutory imperative in the Mental Capacity Act 2005 the principle is now so deeply embedded in the law of England and Wales and across every jurisdiction of law that it should be read into Court of Protection proceedings as a facet of Article 6 and 8 ECHR. It requires to be restated that the Court of Protection Rules provide for the Court to restrict expert evidence and assessment, application must be made by completing form COP9. ... Given the scale of the hypoxic damage, the preponderant evidence suggests that any significant improvement may be rather a forlorn hope. I think RY's family should be under no delusion as to the prospects. That 'flicker of hope', says the Official Solicitor, is one that should be pursued on RY's behalf. Ultimately, I have acceded to that submission but I do so on a very particular basis and that is that the assessment process, which has been outlined in framework ..→ 2016‑12‑18 21:20:13 2016 cases, Medical treatment cases, No summary, Transcript


OH v Craven [2016] EWHC 3146 (QB), [2016] MHLO 52 — "This brings me back to the focus of my concern. The firm of solicitors who have acted in the successful litigation will have established a relationship of trust and confidence with the claimant or the litigation friend. At the successful conclusion of the litigation the person in whom trust is reposed then suggests a further transaction out of which its associate will derive a personal benefit. The adviser suggests that a private trust is the preferable arrangement, and that its associated trust corporation should be appointed trustee and should charge for acting, although there are many other trust corporations who could fulfil the role. So the client is retained for the long term. The solicitors before me suggested that this arrangement was not about an integrated business model (whereby the litigation solicitors secure for their associate the future income stream of management fees, the size of which will be under its control, together with any transactional fees) but was an arrangement for the convenience of clients who wanted a "one stop shop" in personal injury litigation. But this is a shop that stocks only one product. The principled approach to this situation is in my judgment as follows. The law irrebuttably presumes that a solicitor has influence over his client: Etridge [2001] UKHL 44! at [18]. Vesting a large sum of money to which the settlor has recently become absolutely entitled in the settlor's solicitor upon a bare trust for the settlor (but subject to charging and other powers vested in the solicitor) cannot readily be accounted for by ordinary motives. It is a transaction that calls for an explanation (in a way that making a family solicitor the trustee of a family trust or making a partner in the will draftsman's firm the prospective executor simply do not). It gives rise to a rebuttable evidential presumption that the solicitor's influence has been undue. The burden lies on the solicitor to adduce evidence rebutting this presumption. Typically, that evidence will demonstrate that the settlor had independent advice such that the constitution of the bare trust was a spontaneous act undertaken in circumstances which enabled the settlor to weigh matters up and to exercise his or her own free will. How might that be done? In my judgment where the litigation firm proposes the establishment of a "personal injury trust" in relation to a settlement of £1 million or more where its in-house trust corporation is to be a trustee then (drawing on the established practice in applications under the Variation of Trust Act 1958 and in trust compromises) a separate partner in the firm should instruct Chancery Counsel of not less than 5 years' standing to advise the claimant or the litigation friend in writing as to the advantages and disadvantages of the proposed private trust (both as to its strategic advantages and as to its exact provisions, including the advantage of trusts other than bare trusts) and as to the trusteeship arrangements: ..→ 2016‑12‑09 21:19:13 2016 cases, ICLR summary, No summary, Other capacity cases, Transcript


Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, [2016] MHLO 51 — "In the circumstances of the present case, where a party was facing the likelihood of a prison sentence for contempt, but where that party, whom the court accepts had genuine and sincere objections to the welfare determination that had been made, had issued an application for permission to appeal that welfare determination, it was simply premature for the judge to press on with the committal application. The absence of an application for a stay of the order, where it is almost certain that a stay would have been granted pending receipt of the transcript of Baker J's judgment [the welfare determination], should not have been taken as justification for proceeding with the committal application. ... I end with a reminder to contemnors and their representatives of the availability of public funding. ... Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. ...The effect of [a Court of Appeal decision] is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings. Because this is criminal public funding, it can be ordered by the court. ... In the same way, criminal public funding is available in this court." 2016‑12‑06 21:17:17 2016 cases, Contempt of court cases, ICLR summary, No summary, Transcript


Re M: Devon County Council v Teresa Kirk [2016] EWCOP 42, [2016] MHLO 50 — "This is an application made by a Local Authority for committal for contempt of court... The backdrop to this application is a long-running case in the Court of Protection concerning MM. ... The court went on to make declarations. Firstly, that MM lacked capacity. Secondly, that it was in his best interests to live in England, in the area of the South West. Thirdly, that it was not in his best interests to continue to reside at the care home in Portugal; and further ordered at para.7 that, no later than 4pm on 27 June 2016, Mrs. Kirk shall provide to the Local Authority a signed copy of the written declaration of authority... The short point about that provision in the order is that it provided for Mrs. Kirk to sign the written declaration of authority so that MM could be released to the local authority. The order had a penal notice attached to it, the recitals are very clear. ... I apply the criminal standard to the only breach with which I am concerned, which is as set out in the order. I am entirely satisfied and sure - indeed, it is accepted in the face of the court - that Mrs. Kirk has not provided the written declaration of authority... I shall pass a sentence of six months' imprisonment. However, I shall suspend the warrant for a period of seven days only to give Mrs Kirk one last chance to comply..." 2016‑12‑06 20:51:23 2016 cases, Contempt of court cases, No summary, Transcript


JMCA v The Belfast Health and Social Care Trust [2014] NICA 37, [2014] MHLO 147 — "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16. It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced deprivation of liberty legislation into the Mental Capacity Act 2005 providing a mechanism for the lawful restriction on or deprivation of liberty of a person such as the appellant. It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction." 2016‑11‑29 21:00:14 2014 cases, Deprivation of liberty, No summary, Northern Irish cases, Transcript


Re NS (Inherent jurisdiction: patient: liberty: medical treatment) [2016] NIFam 9, [2016] MHLO 49 — "The applications are brought to the court under the inherent jurisdiction of the High Court [in Northern Ireland]. The Trust sought a declaratory order in June to move NS from a hospital to a care home. This was opposed by MS who said that he could care for NS. However, the Trust and the Official Solicitor acting on behalf of NS felt that she would only receive the appropriate care and treatment befitting her needs in the care home. The test in relation to this has been set out by Mr Potter in a skeleton argument. He articulates this as a two-fold test, namely: (a) whether or not NS has the capacity to provide a legally valid consent to the proposed care and treatment; and (b) that the proposed care and treatment is necessary and in her best interests. The consideration of this case falls within the common law jurisdiction." 2016‑11‑29 20:45:51 2016 cases, Deprivation of liberty, No summary, Northern Irish cases, Transcript


Henderson v Dorset Healthcare University NHS Foundation Trust [2016] EWHC 3032 (QB), [2016] MHLO 48 — "On 25 August 2010 the claimant killed her mother. ... She pleaded not guilty of murder, but guilty of manslaughter by reason of diminished responsibility. Those pleas were accepted. ... The claimant remains in detention pursuant to the Mental Health Act. Long before the manslaughter, the claimant had been diagnosed as suffering from paranoid schizophrenia. At the time, she was under the care of the Southbourne Community Mental Health Team, within the defendant NHS Trust. An inquiry later made findings critical of the defendant's conduct. The core criticism was of a failure to act in a timely manner when alerted by a health worker, Ms Loyne, to a significant deterioration in the claimant's condition. In this unusual personal injury claim the claimant seeks damages against the defendant for personal injury in the form of psychiatric harm, and for the consequences of killing her mother. Proceedings were issued on 22 August 2013. The defendant admitted liability for negligence. Judgment on liability in negligence, with damages to be assessed, was entered by consent as long ago as 12 May 2014. By an order of 17 February 2016 Master Cook directed the trial of preliminary issues which had been proposed by the defendant. That trial is listed to take place over 3 days in the week commencing 5 December 2016. The preliminary issues concern the extent to which the claimant's claims for damages are barred by the rule of law which prohibits a person from recovering damages for the consequences of their own illegality. ... It was on Monday 14 November 2016, seven working days before the start of the preliminary issue trial window, that the claimant's solicitors filed her application. It seeks permission to amend by adding (1) claims under the Human Rights Act 1998, alleging infringement of the claimant's rights under Articles 3 and 8 of the Convention, and (2) a claim for an extension of time for bringing those claims, pursuant to s 7(5)(b) of the HRA." 2016‑11‑27 00:24:59 2016 cases, Miscellaneous, No summary, Transcript


Re L: K v LBX [2016] EWHC 2607 (Fam), [2016] MHLO 47 — "In essence, K says that this court should intervene because his son lacks capacity to be able to decide contact. More recently he has made an application to remove Miss O'Connell as a litigation friend for L. ... By the order I made on 15 November 2013, I found that L had capacity to decide about residence and care and I made orders under the inherent jurisdiction regulating what contact there should be between L and his father, as I considered him to be a vulnerable adult, he needed orders being made to ensure he retained his capacity... There is no evidence that L's capacity has changed." 2016‑11‑19 20:35:03 2016 cases, Inherent jurisdiction cases, No summary, Transcript


GW v Gloucestershire County Council [2016] UKUT 499 (AAC), [2016] MHLO 45 — "This appeal is brought with the permission of the First-tier Tribunal against the decision of that tribunal refusing to discharge the patient from guardianship. She was first received into guardianship on 8 January 2013 and the Court of Protection first made a Standard Authorisation on 14 February 2015. The essence of the case before both the First-tier Tribunal and the Upper Tribunal is that the former was no longer necessary in view of the latter." 2016‑11‑12 00:00:27 2016 cases, Deprivation of liberty, No summary, Transcript, Upper Tribunal decisions


V v Associated Newspapers Ltd [2016] EWCOP 29, [2016] MHLO 42 — "As the Applicant indicated might be the case she makes an application that part of her costs be paid by the Respondents on an indemnity basis. The application has been made and resisted on written submissions." 2016‑10‑09 14:42:34 2016 cases, COP costs cases, No summary, Transcript


V v Associated Newspapers Ltd [2016] EWCOP 21, [2016] MHLO 41 — "The application before me is for a reporting restrictions order that extends beyond the period of the reporting restrictions order granted at the first hearing for directions in the case and was not altered by Macdonald J. By its terms it ended on C's death." 2016‑10‑09 14:39:52 2016 cases, No summary, Reporting restriction order cases, Transcript


UCL Hospitals NHS Foundation Trust v G [2016] EWCOP 28, [2016] MHLO 40 — "This brief judgment concerns an application by the Applicant Health Trust for the variation of a reporting restriction order (RRO) made by Hogg J on 11 March 2016 in proceedings concerning the Respondent, Miss G. That order, which is expressed to last until one month after Miss G's death, prohibits her identification or the identification of members of her family, all of whom are adults, as being concerned in these proceedings. The Trust, supported by the family, now asks for the order to be extended indefinitely. That application is opposed by the Official Solicitor on behalf of Miss G and by the Press Association in submissions lodged on its behalf by Mr Dodd." 2016‑10‑09 14:11:26 2016 cases, No summary, Reporting restriction order cases, Transcript


M v Press Association [2016] EWCOP 34, [2016] MHLO 39 — "The hearing had taken place over four days in early November. On 2 November 2015 I made a reporting restriction order, prohibiting the identification of the first respondent and Mrs N in any press reporting 'during her lifetime'. I also decided that, for a period of seven days after her death, the injunction should continue. On 17 December 2015 the applicant, M, applied to vary the RRO to extend its duration until '14 days after the final judgment in the matter of V v Associated Newspapers Ltd' [2016] EWCOP 21!. In that case, to which I will refer below, Charles J was considering the scope and ambit of such Reporting Restriction Orders following the death of P. On 13 January 2016 I varied the order in the terms applied for, no party sought to contest it. On 16 December 2015 Mrs N died. On 25 April 2016 Charles J delivered the judgment in V (supra) and on 4 May 2016 M applied to vary the RRO to extend the duration 'until further order of the court'." 2016‑10‑09 13:55:42 2016 cases, No summary, Reporting restriction order cases, Transcript


Miles v The Public Guardian [2015] EWHC 2960 (Ch), [2015] MHLO 139 — "I have before me two appeals from decisions of Senior Judge Lush sitting in the Court of Protection, one in a case called Re Miles and one in a case called Re Beattie in both of which he was concerned with lasting powers of attorney either for property and financial affairs or for health and welfare matters. In each case the former power of attorney had been drafted by the same solicitor and contained provisions which the Judge was asked to rule on, as to whether they were effective." 2016‑10‑07 22:17:38 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re W (Medical Treatment: Anorexia) [2016] EWCOP 13, [2016] MHLO 35 — "In this case, Miss W, a young woman aged 28, has suffered from a severe and enduring eating disorder for 20 years, with physical, social and psychological consequences of the kind described above. In this judgment I will call her W. Since the age of 11, she has had six admissions for inpatient treatment, spread between five units around the country and amounting to about 10 years in total. Her current admission has lasted for 2½ years and yet, despite the most intensive support, she is barely eating and is losing weight at the rate of 500 g – 1 kg per week. She now weighs less than 30 kg and her BMI is 12.6. If she continues to lose weight at this rate, she will die. ... The outcome is that, accepting the unanimous professional view, I approve the plan of the Health Board. This is that W should now be discharged into the community with a closely thought-out package of support for her and her family. Given W's fragile condition, it is a plan that has only been arrived at after the most anxious consideration by her care team. It will at first seem counterintuitive that someone so ill should be discharged from hospital. The conventional assumption is that hospital treatment is likely to bring benefits, but the evidence has persuaded me that in this case that is not so. The outcome is to some extent in accordance with W's wishes, which I will describe below." 2016‑09‑25 20:53:00 2016 cases, Medical treatment cases, No summary, Transcript


Re CS (Termination of Pregnancy) [2016] EWCOP 10, [2016] MHLO 34 — "This is an application by a Hospital Trust for orders in respect of a young woman, who I will refer to as CS, who is said to lack capacity and in respect of whom the Trust seeks an order that it would be in her best interests to undergo surgery terminating her current pregnancy. This hearing is being conducted in the Court of Protection in open court in accordance with the Rules but subject to a reporting restriction order which I made earlier this afternoon." 2016‑08‑31 21:30:24 2016 cases, Medical treatment cases, No summary, Transcript


Re Clarke [2016] EWCOP 11, [2016] MHLO 33 — "In 2012, I gave three judgments in this matter. ... A written application has now been made by Mr Michael Clarke on 3 September 2015 to vary the order of 9 October 2012 so as to allow the sale of Mrs Clarke’s Blackpool property. There has also been a request by Ms Angela Wilde and Mr Kevin Clarke for access to the property in order to inspect and maintain it, but no application has been issued, despite time being allowed. The application and request are both opposed." 2016‑08‑31 21:17:47 2016 cases, No summary, Other capacity cases, Transcript


The NHS Acute Trust v C [2016] EWCOP 17, [2016] MHLO 32 — "The applicant Trusts provide obstetric and psychiatric care and services to the respondent, C. They have made applications for an order (i) in the Court of Protection to permit the applicants to undertake various steps and measures in respect of C's forthcoming labour; and (ii) a reporting restrictions order." 2016‑08‑31 20:59:57 2016 cases, Medical treatment cases, No summary, Transcript


Re JM [2016] EWCOP 15, [2016] MHLO 31 — "These five cases are examples of cases in which the procedure to be adopted by the Court of Protection (COP) was left open in my judgment in Re NRA [2015] EWCOP 59, [2015] MHLO 66. That judgment contains the references to the decision of the Supreme Court in Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16 and of the President and the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44, which are the essential background to NRA. In short, the five cases were chosen as cases in which it was thought that there was no family member or friend who could be appointed as a Rule 3A representative. That is no longer the position in VE and my reference to the test cases in this judgment are to the remaining four." 2016‑08‑31 20:40:27 2016 cases, Deprivation of liberty, ICLR summary, No summary, Transcript


Re RP [2016] EWCOP 1, [2016] MHLO 30 — "This is a dispute about the appointment of a deputy for property and affairs ..." 2016‑08‑29 21:57:46 2016 cases, Deputyship cases, No summary, Transcript


Re A: C v D [2016] EWCOP 3, [2016] MHLO 29 — "This is a contested application for the appointment of a new deputy for property and affairs and a new trustee." 2016‑08‑29 21:37:35 2016 cases, Deputyship cases, No summary, Transcript


PJV v Assistant Director Adult Social Care Newcastle City Council [2016] EWCOP 7, [2016] MHLO 28 — "I am pleased record that the parties addressed these points [(i) the imposition of a term in a trust directed to the risk that a perpetrator would benefit from the award, (ii) the terms of the appointment of a deputy, (iii) the declaratory relief granted and the discharge of the Deputy, and (iv) the Peters undertaking and a restriction on the powers of the trustees]. I attach in Parts 1 and 2 of the Schedule hereto (i) the wording for the appointment of a deputy that was agreed, and (ii) the terms of the trust that were agreed (anonymised save for the identity of the original trustee). I also record that, as the appointment of the deputy was discharged, it was agreed that there was no need for a Peters undertaking. It seems to me that the agreed wording for the appointment of a deputy should be a useful precedent or starting point in other cases." (CICA case.) 2016‑08‑29 21:22:12 2016 cases, No summary, Other capacity cases, Transcript


WBC v Z [2016] EWCOP 4, [2016] MHLO 27 — "The central issue which arises in this case is whether risks taken by a 20-year old young woman with autism represent 'unwise' decision-making, or evidence her lack of capacity." 2016‑08‑29 21:02:08 2016 cases, No summary, Other capacity cases, Transcript


PJV v Assistant Director Adult Social Care Newcastle City Council [2015] EWCOP 87, [2015] MHLO 138 — "The appeal before me ... relates to the part, if any, that the Court of Protection must play in the finalisation of an award of compensation under the relevant scheme that the Second Respondent (CICA) has decided and the applicant has agreed is to be held on trust." 2016‑08‑29 20:39:18 2015 cases, ICLR summary, No summary, Other capacity cases, Transcript


North Yorkshire County Council v MAG [2016] EWCOP 5, [2016] MHLO 26 — "I have had little difficulty in reaching the conclusion that the applications for permission should be granted and the appeals allowed. ... This appears to be a case in which DJ Glentworth uncharacteristically appears to have allowed her understandable concern about MAG's living circumstances, and her palpable frustration at what she saw as NYCC's tardiness in resolving his accommodation issues, to distract her from following a clear path to outcome. The result is one which I consider is unsupportable, and wrong. Picking six key themes from the arguments, I divide my discussion of the judgment into the following sub-headings: (i) Did the judge ask herself the correct question(s)? (ii) The effect of Re MN on these facts; (iii) Has there has been a breach of Article 5? (iv) Taking a decision which MAG could not take for himself; (v) No alternative option; impermissible pressure; (vi) The factual findings." 2016‑08‑29 19:29:12 2016 cases, Deprivation of liberty, No summary, Transcript


Lucia Benyu v Solicitors Regulation Authority [2015] EWHC 4085 (Admin), [2015] MHLO 137 — "This is the adjourned hearing of the Appellant's appeal brought pursuant to section 49 of the Solicitors Act 1974 against the order of the Solicitors Disciplinary Tribunal ('SDT') dated 3/10/14, striking the Appellant off the Roll of Solicitors and ordering her to pay costs in the sum of £48,000. The decision followed a full three day hearing at which the Appellant was represented by experienced counsel, although she has indicated that she has now made a complaint against that counsel. The SDT found the Appellant to have been dishonest to the criminal standard. But it went on to say that the seriousness of her misconduct was such that it would have struck her off even if it had not made such a finding. ... The Appellant acted in person at the substantive appeal hearing. She has not attended for the hand down of this judgment, although she is fully on notice of it. She invites the court to the set aside the SDT's order; or, alternatively, to strike her off with no dishonesty attached." 2016‑08‑27 22:27:41 2015 cases, Missing from Bailii, No summary, SRA decisions, Transcript


Al-Jeffery v Al-Jeffery (Vulnerable adult, British citizen) [2016] EWHC 2151 (Fam), [2016] MHLO 25 — "There are two applications before the court. One asks the court to make a statutory forced marriage protection order. The other asks the court to make orders, including mandatory orders, in the exercise of the inherent jurisdiction of the High Court to make orders protective of vulnerable adults. ... She now claims that she is being seriously ill-treated by her father and being kept under constraint by him in his flat; and that she is being prevented by him from leaving Saudi Arabia and travelling to Wales or England, which she wishes to do, and is, in the eyes of the law of Wales and England, fully entitled freely to do. ... The father, against whom I [am] asked to make an order, is not a British citizen and owes no allegiance to our Sovereign or this state. Neither of them are present here. Neither of them have lived here for several years. Both of them are citizens of Saudi Arabia and both of them currently live there. There have, indeed, already been recent legal proceedings between them there. Should I, nevertheless, attempt to help her by making the essential order which she seeks for her return here; or should I appreciate that that would be exorbitant and, in my judicial discretion, decline to do so? That is the essential issue and dilemma in this case." 2016‑08‑27 09:09:22 2016 cases, Capacity to consent to sexual relations, Inherent jurisdiction cases, No summary, Transcript


Poole v Everall [2016] EWHC 2126 (Ch), [2016] MHLO 24 — "The claimants are David's brothers ... who had benefited under previous wills prepared with the assistance of the Deputy, including one made on 29 February 2012 of which they seek proof in solemn form, but receive nothing in the December will. They allege that that will was not duly executed, that David lacked testamentary capacity and/or did not know and approve of its contents, and/or that its execution was procured by undue influence on Mr. Everall's part." 2016‑08‑20 21:16:39 2016 cases, No summary, Testamentary capacity cases, Transcript


Re A (A Child) [2016] EWCA Civ 759, [2016] MHLO 22 — "This is an appeal against the making of a declaration by Mrs Justice Parker on 20 June 2016 whereby she declared that: 'It is lawful and in A's best interest to remove his respiratory support by extubating him and, if he becomes unstable, not to reintroduce his respiratory support again but instead generally to furnish such treatment by way of pain relief or sedation and nursing as may be appropriate to ensure that A suffers the least distress and pain at the time and in the manner of his dying.'" 2016‑07‑13 22:02:15 2016 cases, Best interests, No summary, Transcript


R v Orr [2016] EWCA Crim 889, [2016] MHLO 21 — "The appeal concerns the definition of 'fitness to plead' and the process engaged by the trial judge in the instant trial which proceeded after he found the defendant 'unfit to be cross examined'. ... Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly found that the appellant had been fit to participate in his trial up to the point of cross examination and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the 'Pritchard' refined criteria. In these circumstances, the procedure to be adopted was clearly set out by section Criminal Procedure (Insanity) Act 1964, 4A. We agree with the submission that this is a statutory mandatory requirement which cannot be avoided by the court's general discretion to order proceedings otherwise, however beneficial to the defendant they may appear. It follows that, in this case, the jury should not have been allowed to return a verdict, other than a verdict of acquittal if they were not satisfied on the evidence already given in the trial that the appellant did the act charged against him. The appeal against conviction must be allowed." 2016‑07‑09 21:55:06 2016 cases, ICLR summary, No summary, Transcript, Unfitness and insanity cases


McDonald v McDonald [2016] UKSC 28, [2016] MHLO 20 — "This appeal raises three questions. The first is whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights. The second question is whether, if the answer to the first question is yes, the relevant legislation, in particular section 21(4) of the Housing Act 1988, can be read so as to comply with that conclusion. The third question is whether, if the answer to the first and second questions is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. ... The appellant, Fiona McDonald, is aged 45 and, sadly, she has had psychiatric and behavioural problems since she was five. ... In those circumstances, her parents, who are technically the respondents to this appeal, decided to buy a property for her to occupy. ... However, owing to financial difficulties which they unfortunately encountered in their business, they failed to meet all the [loan] interest as it fell due. ... the Receivers served a notice ... indicating that they would be seeking possession of the property." 2016‑06‑20 21:53:27 2016 cases, Miscellaneous, No summary, Transcript


R v Ahmed [2016] EWCA Crim 670, [2016] MHLO 19 — "Saber Ahmed 31, was tried for murder in the Crown Court at Birmingham in 2006 before HHJ Matthews and a jury. On 3 August 2006 he was acquitted of murder and convicted of manslaughter on the grounds of diminished responsibility. On 20 October 2006 HHJ Matthews sentenced him to life imprisonment with a minimum term of 3 years and 6 months, less 462 days spent on remand. The judge recommended deportation. ... We are satisfied that in all the circumstances of this case it is appropriate to impose a hospital order with a restriction order. This is no reflection on the sentencing judge who passed the only sentence available to him on the evidence at the time. We quash the life sentence and we impose orders under Sections 37 and 41 of the Mental Health Act 1983, the latter without limit of time. To that extent the appeal is allowed." 2016‑06‑11 20:34:39 2016 cases, Life sentence cases, No summary, Transcript


Home Office (Central government) (2016) UKICO FS50618706, [2016] MHLO 18 — "The complainant has requested information about police powers under Section 136 of the Mental Health Act to detain mentally disordered persons found in public places. By the date of this notice the Home Office had not responded to the request. The Commissioner’s decision is that by failing to respond to the request, the Home Office breached sections 1(1) and 10(1) of the FOIA. The Commissioner requires the Home Office to take the following steps. to ensure compliance with the legislation: Issue a response to the request under the FOIA by either complying with section 1(1) or issuing a valid refusal notice. The Home Office must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court." The request was: "What qualifies a constable to take decisions regarding the mental health of a member of the public, and how is this not a breach of human rights. This is a particularly important request in the context that police forces are unlawfully detaining innocent members of the public by use of this Act." 2016‑05‑26 13:02:00 2016 cases, Miscellaneous, No summary, Transcript


South Staffordshire and Shropshire Healthcare NHSFT v Hospital Managers of St George's Hospital [2016] EWHC 1196 (Admin), [2016] MHLO 17 — "This is an application for judicial review of a decision by an independent panel on 12 April 2016 to discharge the Interested Party, AU, from detention under the Mental Health Act 1983. It is brought by South Staffordshire and Shropshire Healthcare NHS Foundation Trust and Dr Whitworth (previously AU's responsible clinician). ... To put the case in general terms the claimants are concerned about the Panel's decision to discharge AU in the light of the views of the clinical team and also a decision of the First Tier Tribunal ... which decided on 10 March 2016 not to discharge him from detention. ... The judicial review raises an important point of principle as to the capacity of a body to seek judicial review of a decision which it could have made itself. In broad terms the Trust appointed the Panel and under the 1983 Act it exercised delegated powers. Because AU raised this point in his grounds, Warby J joined Dr Whitworth as a second claimant to the action on 4 May 2016 on the basis that, if the Trust could not seek judicial review, she could. If the Trust and Dr Whitworth can seek judicial review, the grounds they advance against the Panel's decision are, first, that it failed to treat the Tribunal's decision as a relevant consideration and, secondly, that the Panel's decision is irrational in light of the evidence available and the reasons it has given." 2016‑05‑22 22:45:03 2016 cases, Hospital managers hearings, ICLR summary, No summary, Re-sectioning after hearing, Transcript


Re Daniel X [2016] EWFC B31, [2016] MHLO 16 — "This is the final hearing of the care proceedings brought by Thurrock Borough Council in relation to Daniel X, a boy of 10. ... It is also the final hearing of the application by Thurrock Borough Council for me to authorise them to deprive Daniel of his liberty by accommodating him in Y Home. ... The outstanding issue is that of Daniel's liberty, and there is a great deal of consensus on this point too. However, it has been agreed at the bar that it would be helpful if I set out the position in law and how I consider the law applies to Daniel." 2016‑05‑13 21:33:48 2016 cases, Deprivation of liberty, No summary, Transcript


Pennine Care NHS Trust v HMRC [2016] UKFTT 222 (TC), [2016] MHLO 14 — "The Appellant appeals against a decision dated 29 July 2011 issued by the Commissioners of Revenue and Customs that the construction services and materials received by the Appellant in the course of the construction of a mental health residential unit are not subject to zero rating for the purposes of VAT. Both parties agreed that the issue in this appeal is whether Prospect Place Low Secure Mental Health Unit was intended for use as a hospital or similar institution. HMRC contend that it was and therefore the supplies were standard rated. The Appellant contends that the use of the Unit satisfies paragraphs (b) and/or (g) of Note (4) and the exception for use as a hospital or similar institution does not apply; accordingly the supplies were eligible for zero rating." 2016‑05‑04 22:49:59 2016 cases, Miscellaneous, No summary, Transcript


LB Southwark v KA (Capacity to Marry) [2016] EWCOP 20, [2016] MHLO 10 — "These proceedings under the Mental Capacity Act 2005 concern a 29 year old learning disabled man, KA, one of five children of a Bangladeshi family. I am asked to make declarations that KA lacks capacity to make decisions as to: (a) Litigation; (b) Personal care and welfare; (c) Sexual relations; (d) Marry. It is common ground that KA does not have capacity to litigate thus the Official Solicitor is his litigation friend." 2016‑04‑03 21:09:56 2016 cases, Capacity to consent to sexual relations, No summary, Transcript


R v Marcantonio [2016] EWCA Crim 14, [2016] MHLO 9 — "This is the judgment in two cases, an appeal against conviction (R v. Marcantonio) and an application for permission to appeal against conviction (R v. Chitolie), which have in common the submission that the appellant/applicant in each case was unfit to plead, within section 4, Criminal Procedure (Insanity) Act 1964, at the time of his trial, and that this court should therefore quash his conviction and consider the exercise of its powers under section 6, Criminal Appeals Act 1968. A third case (R v. T) was heard at the same time. A separate judgment is handed down in that case which, because of the orders made, is subject to reporting restrictions." 2016‑02‑25 01:02:13 2016 cases, No summary, Transcript, Unfitness and insanity cases


A Local Health Board v Y (A Child) [2016] EWHC 206 (Fam), [2016] MHLO 8 — "In all the circumstances, therefore, I conclude that the course proposed by the clinicians is in Y's best interests. In accordance with the parties' ultimate agreement, I therefore conclude that (1) It is lawful and will be in Y's best interests for him to be extubated at the point where the clinicians, following discussion with Y's family, consider that his condition is optimal for extubation, and that "optimal" for these purposes is likely to mean when (a) he remains on minimal ventilation: (b) he has a body temperature of less than 37.5 and (c) that he has not required CPR for the previous 12 hours; (2) Upon extubation, it is lawful and in his best interests not to re-intubate him if he is unable to support his own respiration. (3) Upon extubation, it is lawful and in his best interests not to receive CPR (save for stimulation, which may be provided) or ventilation or inotropes." 2016‑02‑17 22:02:45 2016 cases, Best interests, No summary, Transcript


A Local Authority v M [2015] EWCOP 69, [2015] MHLO 135 — This judgment dealt with various issues including deputyship, deprivation of liberty, and disclosure. 2016‑02‑08 20:08:33 2015 cases, Deprivation of liberty, Deputyship cases, No summary, Transcript


Re M (Costs): A Local Authority v M [2015] EWCOP 45, [2015] MHLO 134 — Court of Protection costs judgment. 2016‑02‑08 20:04:52 2015 cases, COP costs cases, No summary, Transcript


MM v WL Clinic [2016] UKUT 37 (AAC), [2016] MHLO 3Charles J refused permission to appeal his earlier decision (the main point of which was that, for the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty). The Secretary of State can seek permission from the Court of Appeal [and subsequently did]. 2016‑01‑28 00:16:49 2016 cases, No summary, Transcript, Upper Tribunal decisions


R (Speck) v HM Coroner for District of York [2016] EWHC 6 (Admin), [2016] MHLO 1 — "Drawing these strands together, my conclusions were as follows. First, that the duty of the coroner was limited to a duty to investigate those matters which caused, or at least arguably appeared to him to have caused or contributed to, the death. Secondly, that the claimant was unable to show even an arguable case that any body was at the material time under a duty, statutory or otherwise, to establish a health-based place of safety at a time, and in a location, such that Miss Speck could have been taken to such a facility in June 2011. Thirdly, that the claimant was therefore unable to show even an arguable case that Miss Speck's death was caused or contributed to by a breach of such a duty. Fourthly, that the coroner was therefore correct to decline to investigate issues as to the non-availability of a health-based place of safety: to have done so would have been to investigate matters which fell outside his statutory duty under section 5 of the Coroners and Justice Act 2009. Lastly, that even if I had been persuaded that it was within the coroner's discretion to investigate such matters, I would have found there was no basis on which it could be said that his decision not to do so was a perverse or otherwise unlawful exercise of that discretion." 2016‑01‑17 19:50:20 2016 cases, Inquests, No summary, Transcript


Somerset v MK [2015] EWCOP B1, [2015] MHLO 131 — "In the light of all of this it seems to me that this is plainly a case where the usual order for costs should be departed from to the extent that the Local Authority should pay the costs of all of the other parties involved. The other matter that I should deal with is whether those payments should be on an indemnity basis. ... I am very conscious of the impact of such an order. However, in that same case of G v E [2010] EWHC 3385 (Fam) Mr Justice Baker considered that the local authority's conduct amounted to 'a significant degree of unreasonableness' giving rise to a liability for costs on an indemnity basis. If one reads my judgment in full it is clear that that there was in this case as well a significant degree of unreasonableness both in the Local Authority's approach to the substantive and procedural issues in the case. In those circumstances it seems to me that the argument for indemnity costs is an overwhelming one in this case and that is the order that I intend to make here." 2015‑12‑22 22:31:12 2015 cases, COP costs cases, No summary, Transcript


Somerset v MK [2014] EWCOP B25, [2014] MHLO 146 — "What I intend to do in it is to set out the history of the case and then of the litigation. Then I will deal with the factual issues upon which I have been asked by the local authority to make findings. I will then deal with the central issue in the case, that of where in her best interests should (P), the subject of this application, live. Next I will consider the conduct of the local authority and make findings on the issues as to whether P had been wrongly deprived of her liberty and, if she had, how long did that go on for; and finally what, if any, lessons can be learned from this case. ... These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it." 2015‑12‑22 22:22:55 2014 cases, Best interests, Deprivation of liberty, No summary, Transcript


Re CMW: Public Guardian v AM [2015] EWCOP 86, [2015] MHLO 130 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney ('LPA') for property and affairs. ... I am satisfied that Carla lacks capacity to revoke the LPA herself. ... I am also satisfied that the respondent has behaved in a way that contravenes his authority and is not in the donor's best interests. He has broken virtually every rule in the book and, having exhausted his mother's funds in order to meet his "life's requirements at that time", he blithely expects the taxpayers of Surrey to pick up the tab to meet his mother's care needs now. I have no hesitation in revoking the LPA and directing the Public Guardian to cancel its registration. I shall make a separate order appointing Michael Stirton as Carla's deputy for property and affairs." 2015‑12‑22 21:53:29 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re WP (deceased) and EP [2015] EWCOP 84, [2015] MHLO 129 — "This is an application by two attorneys acting jointly under two separate Enduring Powers of Attorney for the retrospective approval of monthly payments of £150 each that they have made to themselves and to their sister from the donors' funds. ... This application is a composite claim for the payment of an allowance of £150 per month to each attorney in respect of three distinct heads of claim, and I shall deal with these heads of claim in the following order: (1) travelling expenses; (2) remuneration for acting as attorneys; and (3) a 'gratuitous' care allowance. I would prefer not to be cornered into approving any particular mileage rate. If the Public Guardian wishes to give guidance on such matters, that's up to him. What I shall say is simply by way of general observation. ... In my judgment, the business mileage rates quoted by HMRC [45 pence for every business mile for the first 10,000 miles and 25 pence for every business mile thereafter] should be substantially discounted to reflect the fact that these are not 'business' rates but domestic rates. When dealing with the affairs of an elderly and incapacitated relative, attorneys are generally expected to act out of common decency and not to profit from their position. ... I do not propose to allow them any specific remuneration for the actual management of their parents' property and financial affairs. ... I am satisfied in Theresa's case that the care support she provides and the travelling expenses she incurs merit the payment of a sum of £150 a month from her parents' funds. Stephen does slightly less than his sister Theresa in terms of care support, but has to travel a greater distance to perform these functions and, on balance, I am satisfied that he too should continue to pay himself a composite allowance of £150 a month in respect of travelling expenses and care support." 2015‑12‑22 21:50:32 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


V v Associated Newspapers Ltd [2015] EWCOP 88, [2015] MHLO 128 — "I do not propose to say very much in this judgment. The reason I do not propose to say very much is that I am pleased to report that the media respondents have indicated to me that they would wish to put in some further evidence relating to the public interest in identifying C. They would also wish to (and I can understand why they would wish to) put in evidence relating to criticism of an approach by a journalist employed by one of them. Additionally and, to my mind, importantly, they also wish to take the opportunity, if so advised, to put in evidence and/or representations on more general points concerning the mechanics and principles that arise in respect of Court of Protection proceedings that the court directs are to be heard in public and in respect of which the court makes some form of reporting restriction order or anonymity order. ... In those circumstances, it seems to me that it is inevitably appropriate to continue the injunction until 4.30 on the day I hand down judgment. The indication from the Bar is that there will be no need for further oral submissions." 2015‑12‑22 21:37:31 2015 cases, No summary, Other capacity cases, Transcript


V v Associated Newspapers Ltd [2015] EWCOP 83, [2015] MHLO 127 — "MacDonald J ... concluded C did have capacity to refuse the treatment and dismissed the application by the Hospital Trust. C, sadly, died on 28 November 2015. ... I was notified at about 5.45 pm on 2 December 2015 that an application was likely to be made by Mr Vikram Sachdeva Q.C. on behalf of C's daughter, V, for the RRO to be extended after C's death. ... There is no issue between the parties that the court has jurisdiction to extend a RRO in these circumstances. ... I concluded the RRO should be extended for 7 days to enable an effective inter partes hearing to take place." 2015‑12‑22 21:30:33 2015 cases, No summary, Other capacity cases, Transcript


Re JW [2015] EWCOP 82, [2015] MHLO 126 — "This began as an application by a family member to be appointed as a joint deputy for property and affairs with the existing deputy, East Sussex County Council. When it became apparent that the Council was unwilling to act jointly with him, the applicant revised his application and asked the court to remove the Council as deputy and to appoint him in its place. ... I propose to allow Geoffrey's revised application and shall appoint him as Joan's deputy in place of East Sussex County Council. My main reason for appointing him is that I think it would be sensible to repair and renovate the house in Hailsham that Joan inherited from her daughter Daphne so that it can be sold to best advantage, and I am prepared to give it a try. ... Zena Boniface concluded her witness statement by saying that: 'ESCC feel that it would be a conflict of interest for Geoffrey to be appointed deputy, as he stands to make a financial gain from the cost of the building works to his late sister's property and the reimbursement of his time and travel costs in dealing with her estate.' It was entirely reasonable of her to voice this concern and it merits a detailed response. ... I propose to control the conflict between Geoffrey's interests and Joan's by providing the following appropriate and effective safeguards to prevent abuse: ..." 2015‑12‑22 21:15:24 2015 cases, Deputyship cases, No summary, Transcript


King's College Hospital NHS Foundation Trust v C [2015] EWCOP 80, [2015] MHLO 125 — "The question in this difficult and finely balanced case is whether C has the capacity to decide whether or not to consent to the life saving treatment that her doctors wish to give her following her attempted suicide, namely renal dialysis. Without such treatment the almost inevitable outcome will be the death of C. If the treatment is administered the likelihood is that it will save C's life, albeit that there remains an appreciable and increasing possibility that C will be left requiring dialysis for the rest of her life. C now refuses to consent to dialysis and much of the treatment associated with it. ... For the reasons set out above I am not satisfied on the evidence before the court that the Trust has established on the balance of probabilities that C lacks capacity to decide whether or not to accept treatment by way of dialysis. ... [A] capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient and, accordingly, a capacitous patient may refuse treatment even in circumstances where that refusal will lead to his or her death. The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect of growing old, the fear of living with fewer material possessions and the fear that she has lost, and will not regain, 'her sparkle' outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C's decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity. The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign." 2015‑12‑22 20:44:29 2015 cases, No summary, Other capacity cases, Transcript


Re AS [2015] EWCOP 79, [2015] MHLO 124 — "This is YB's application to be appointed as AS's deputy for property and affairs in place of the existing deputy, the London Borough of Islington. ... I have decided to maintain the status quo and to dismiss this application." 2015‑12‑22 20:36:58 2015 cases, Deputyship cases, Missing from Bailii, No summary, Transcript


Re AG [2015] EWCOP 78, [2015] MHLO 123 — "This is an appeal from an order of His Honour Judge Rogers, sitting as a nominated judge of the Court of Protection. Judge Rogers was considering the appropriate welfare arrangements for AG, a young woman born in October 1985. ... DG's grounds of appeal dated 22 September 2013 identify four grounds of appeal. It is said that Judge Rogers: (a) erred in not conducting an adequate assessment of AG's capacity; (b) failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings; (c) made a decision as to where AG should live which by September 2013 was a fait accompli; and (d) acted in breach of Article 8 in directing that DG's contact with AG should be, as it is put, 'heavily' supervised. It is apparent from her counsel's very helpful skeleton arguments ... that the major thrust of DG's case relates to ground (b). ... For these reasons each of DG's grounds of appeal fails. ... Ms Khalique submits, and I am inclined to agree, that the local authority acted unlawfully in removing AG from OG in November 2011 and placing her at HH without having first obtained judicial sanction. Local authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation. Local authorities do not themselves have power to do this. Local authorities also need to appreciate and take appropriate steps to minimise the understandable distress and anger caused to someone in DG's position when initial relief is obtained from the court on the basis of allegations which are not thereafter pursued." 2015‑12‑22 20:31:27 2015 cases, Best interests, No summary, Transcript


Re HNL: ATL v Public Guardian [2015] EWCOP 77, [2015] MHLO 122 — "This is an application regarding the payment of a gratuitous care allowance. To describe the allowance as 'gratuitous' is slightly incongruous, as it is a payment towards the cost of maintenance of a close relative, who provides care and case management services to someone who is severely incapacitated because of an impairment of, or a disturbance in the functioning of, the mind or brain. ... The Public Guardian is currently reviewing all gratuitous care allowances paid by deputies to family members, particularly in cases where the person to whom the proceedings relate has been awarded damages for clinical negligence or personal injury. Because the number of families who are receiving allowances of this kind and are affected by the Public Guardian's review runs into thousands, I have concluded that it would be in the public interest to publish this judgment. ... Having regard to all the circumstances, therefore, I am satisfied that it is in Helen's best interests for Adrian to continue to provide care and case management services to her and that until further order he should be paid an allowance of £23,000 a year, tax-free in accordance with ESM4016. Even though Adrian has not specifically requested it, I propose to give him the option of index-linking future payments of the allowance. ... I understand that the Public Guardian will shortly be issuing a practice note on gratuitous care payments. ... In our initial discussions, the OPG suggested that these payments should be reviewed regularly. However, a review process of this kind is not cheap and, inevitably, it will have a knock-on effect on the amounts sought by claimants in respect of Court of Protection costs in future claims for damages for personal injury and clinical negligence. ... In Helen's case, because of the wide gulf between the commercial value of the services Adrian is providing and the actual payment he is receiving, I consider that it would be disproportionate to go through this process too frequently, and I suggest that Adrian's gratuitous care allowance should be formally reviewed again in 2022 or earlier, if necessary, because of a change in his or Helen's circumstances." 2015‑12‑22 20:25:56 2015 cases, No summary, Other capacity cases, Transcript


Surrey And Sussex Healthcare NHS Trust v Ms AB [2015] EWCOP 50, [2015] MHLO 121 — "This is an application by the Surrey and Sussex Healthcare NHS Trust for the court to give permission for the respondent, Ms AB, undergoing an above the knee amputation of her left leg. ... On the basis of the agreed psychiatric evidence, which I accepted, I was satisfied that Ms AB lacks the capacity to make a decision about her medical treatment and surgery. ... I am completely satisfied that, very sadly, the only best interests decision I can make is to give permission for the above knee amputation of Ms AB's left leg to be undertaken. I approve the use of reasonable restraint before, during and subsequent to surgery as is necessary to safeguard and protect her, including sedation. Further, I authorise the deprivation of her liberty insofar as it is necessary to perform the procedure." 2015‑12‑22 20:17:58 2015 cases, Best interests, No summary, Transcript


Re FT [2015] EWCOP 49, [2015] MHLO 120 — "This is an application for reconsideration of an order made by an authorised court officer appointing two of FT's daughters as his deputies for property and affairs. ... In my judgment, the factor of magnetic importance in this case is that FT named MA and PB to be the executors of his last will ... Accordingly, pursuant to rule 89(5), I affirm the order made on 2 September 2014 appointing the respondents [MA and PB] jointly and severally to act as FT's deputies for property and affairs. ... Costs ... I am singularly unimpressed with the applicants' conduct. Having made the application, they failed to follow it through. ... This is a case in which a departure from the general rule is justified. ... [T]he fact that [DC's] husband is in receipt of ESA and that she has claimed an exemption from the fees, doesn't grant her immunity from an order for costs being made against her. I intend to make an order that the costs are to be assessed on the standard basis and paid by DC, ST and TT in equal shares, and that the deputies are authorised to make an interest-free loan to the applicants from KT's funds to pay the costs, and that the loan will be repayable by the applicants from their respective shares of FT's estate on his death." 2015‑12‑22 20:13:50 2015 cases, COP costs cases, Deputyship cases, No summary, Transcript


Health Service Executive of Ireland v CNWL [2015] EWCOP 48, [2015] MHLO 119 — "Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?" 2015‑12‑21 23:58:58 2015 cases, Deprivation of liberty, No summary, Other capacity cases, Transcript


Ross v A [2015] EWCOP 46, [2015] MHLO 118 — "This is an application by a professional deputy for an order authorising him to apply approximately £17,000 a year from A's damages award towards the payment of her brother's school fees. ... In my judgment, it is in A's best interests for the court to authorise the deputy to pay B's school fees (past, present and future) from her funds ... This judgment is tailored to A's circumstances and should not be construed as an imprimatur for the payment of siblings' school fees from damages awards in other cases." 2015‑12‑21 23:49:50 2015 cases, Deputyship cases, No summary, Transcript


Dorset County Council v PL [2015] EWCOP 44, [2015] MHLO 117 — "The Applicant council seeks declarations that: (a) it is in PL’s best interests to move to ‘OL’, a care home in Lincolnshire, after a period of transition; and (b) it is in PL’s best interests to have restricted and supervised contact with his mother AL at an off-site location. ... The issues for the court to determine were where PL should live, more particularly OL or CC and with whom he should have contact, again more particularly whether contact with AL should be restricted and supervised and take place at an off-site location." 2015‑12‑21 23:38:24 2015 cases, Best interests, No summary, Transcript


GN v Newland [2015] EWCOP 43, [2015] MHLO 116 — "This is an application for reconsideration of an order made on the papers by an authorised court officer ('ACO'). An ACO is not a judge of the Court of Protection, but a civil servant, who, in most cases, has considerable experience of the court's practice and procedure and is authorised to make a number of specified decisions on the non-contentious property and affairs side of the court's business. Over 90% of the applications to the court involve non-contentious property and financial matters, and can potentially be dealt with by an ACO. ... I dismiss GN's application to be appointed as his mother's deputy for three reasons. First, he is the bane of her life and she wants nothing to do with him. Secondly, he would be unable to act fairly and competently on her behalf because he has an interest in her property, which is adverse to hers, and on which he is unwilling to enter into any compromise. And thirdly, I am satisfied that, having regard to all the relevant circumstances, Julia Newland's appointment as her deputy for property and affairs is in CN's best interests. There is no one more suitable who is willing or able to act, and the purpose for which the appointment is required cannot be as effectively achieved in a way that is less restrictive of CN's rights and freedom of action." 2015‑12‑21 23:34:59 2015 cases, Deputyship cases, No summary, Transcript


St George's Healthcare NHS Trust v P and Q [2015] EWCOP 42, [2015] MHLO 115 — "On 20 January 2015 the Health Trust responsible for his care made an application seeking declarations in this very serious medical case. They seek declarations: (i) That he lacks capacity (this is uncontentious); (ii) That it is not in his best interests to receive cardio pulmonary resuscitation (CPR) in the event of cardiac arrest (this is also now uncontentious); and (iii) As to whether it is lawful to continue to provide renal replacement therapy (RRT), the Trust wish to discontinue life sustaining treatment with the inexorable and inevitable consequence that as a result P would quickly die. ... There is almost nothing to rebut the very strong presumption that it is in P's best interests to stay alive. I order and direct that the renal replacement therapy should continue. ... The application was launched, it might be thought, somewhat precipitously, before any SMART testing had been undertaken. ... Therefore in all cases where there is any question of doubt about diagnosis, in order to eliminate mistakes or potential tragedies it is essential that those assessments [such as SMART or WHIM] are carried out in good time so that the diagnosis is clear before the Court, then the Court can conduct its own enquiry and balance." 2015‑12‑21 23:31:30 2015 cases, No summary, Other capacity cases, Transcript


Re OL [2015] EWCOP 41, [2015] MHLO 114 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs because the attorneys have used their power carelessly and irresponsibly. I am satisfied that the attorneys have behaved in a way that contravenes their authority or is not in the donor's best interests. ... Their failure to keep accounts of the transactions carried out on the donor's behalf or to produce any record of her income and expenditure would alone be sufficient to warrant the revocation of their appointment. However, in this case both attorneys, and in particular DA, have compounded their culpability by taking colossal advantage of their position and obtaining personal benefits far in excess of the limited power that attorneys have to make gifts of the donor's property under section 12 of the Mental Capacity Act. DA has also failed to keep the donor's money and property interests separate from her own interests in respect of the property she owns in South Norwood. ... I propose to appoint a panel deputy and authorise them to take such steps as are necessary or expedient to restore OL's estate so far as possible to the position in which it would have been before the attorneys began acting so recklessly and irresponsibly. In view of the attorneys' conduct, I consider that a departure from the general rule as to costs in property and affairs proceedings is justified and shall make no order as to costs." 2015‑12‑21 23:23:11 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


London Borough of Southwark v P [2015] EWCOP 40, [2015] MHLO 113 — "This is an application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). ... I am of the view that the quickest way to deal with this is for me to list the matter for a further one day hearing shortly after the date on which the capacity report is completed. ... I consider that the existing orders should be discharged on the basis of an undertaking by the parents, R and A, that they are not to facilitate, allow or otherwise permit P to undergo any ceremony or purported ceremony of marriage, civil partnership, betrothal or engagement; or from entering into any arrangement in relation to the engagement or matrimony, whether by civil or religious ceremony, of P whether within English jurisdiction or outside it. They are also to undertake not to instruct, encourage or suggest to any other person to do so. They are to undertake not to take him to Bangladesh prior to the next hearing. On that basis I will discharge the forced marriage protection injunction." 2015‑12‑21 23:19:00 2015 cases, Capacity to consent to sexual relations, No summary, Transcript


Bournemouth Borough Council v PS [2015] EWCOP 39, [2015] MHLO 112 — "In this case I have to decide (i) whether the package of care provided to BS ('Ben') is in his best interests; (ii) whether that package amounts to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950; and (iii) what contact Ben should have to his mother, the first respondent. ... In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent. There was no dispute between the applicant and the first respondent concerning issues (i) and (iii). The argument was centrally about the question of deprivation of liberty. ... I cannot say that I know that Ben is being detained by the state when I look at his position. Far from it. I agree with Mr Mullins that he is not. First, he is not under continuous supervision. He is afforded appreciable privacy. Second, he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative. But up to that point Ben is a free man. In my judgment, on the specific facts in play here, the acid test is not met. Ben is not living in a cage, gilded or otherwise. ... I do not criticise this local authority in the slightest for bringing this case. In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers' costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court." 2015‑12‑21 23:10:54 2015 cases, Deprivation of liberty, No summary, Transcript


Re P [2015] EWCOP 37, [2015] MHLO 111 — "This is an application by the Public Guardian for an order revoking an Enduring Power of Attorney ('EPA') on the grounds that, having regard to all the circumstances, H is unsuitable to be his wife's attorney. ... Therefore, having regard to all the circumstances, I am satisfied that H is unsuitable to be P's attorney and I shall by order revoke the EPA. I shall also make a separate order appointing S and D jointly and severally to be P's deputies for property and affairs." 2015‑12‑21 23:04:05 2015 cases, Deputyship cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re X [2015] EWCOP 36, [2015] MHLO 110 — "These proceedings are concerned with X, a young man of 25 who currently lives in a care home. They began as an application by his mother, AY (who is his appointed welfare deputy and has acted throughout without the benefit of legal representation), in respect of his prescribed medication. X was subsequently detained under the Mental Health Act and the issues before the Court were redefined to address AY's concerns as to X's physical health (in particular, the condition of his bowels) and whether the treatment she supported, in the form of dietary exclusion and supplements, fell within the powers of the Mental Health Act or the authority of her deputyship. In the course of proceedings, X has been discharged from detention under the Mental Health Act and the parties have been able to agree a community placement for him, where he is now settled. The issues which remain for the determination of the Court relate to his best interests in relation to diet and whether the welfare deputyship (which is currently suspended) should be restored or discharged. In determining those issues, the Court is asked to reach a series of findings of fact." 2015‑12‑21 23:01:17 2015 cases, Best interests, Deputyship cases, No summary, Transcript


R (Dyer) v Welsh Ministers [2015] EWHC 3712 (Admin), [2015] MHLO 109 — "In this claim, the Claimant challenges an alleged failure by the public authorities responsible for the National Health Service in Wales to discharge the duty imposed upon them by section 3(1) of the National Health Service (Wales) Act 2006 to provide hospital accommodation 'throughout Wales, to such extent as they consider necessary to meet all reasonable requirements'. In particular, she contends that the duty has been breached because no decision has been taken by any authority as to either (i) the 'reasonable requirements' of women in Wales with ASD and LD for secure in-patient assessment and treatment; or (ii) the level of provision necessary to meet the reasonable requirements found to exist. Indeed, the relevant authorities have not only failed to make those decisions, it is said that they have failed to collate the information required to make them; and so they are not even in a position to make properly informed (and, therefore, lawful) decisions. That is the legal basis of the claim. However, the concern of the Claimant and her family underlying the claim is more personal and practical in nature. The last time the Claimant required compulsory detention on account of her mental condition was in August 2014 when, because there was no appropriate and available facility in Wales, she was sent to a hospital in Brighton where she was detained for some weeks. ... However, this court can intervene only if a decision-making authority has acted unlawfully. For the reasons I have given, none of the Defendants has done so in this case." 2015‑12‑21 22:52:10 2015 cases, MHLR summary, Miscellaneous, No summary, Transcript


Henderson v Wilcox [2015] EWHC 3469 (Ch), [2015] MHLO 108 — "The claimant in this case is Ian Henderson. Ian's mother, Mrs Lillian Henderson, died on 2 April 2013 as a result of injuries sustained in a severe assault on her by Ian on the night of 13 March 2013. Ian was convicted of manslaughter at a trial on 15 September 2014, his plea of guilty to that charge and not guilty to murder having been accepted on the basis that he had not intended to kill his mother or cause her really serious injury. He was sentenced (with the agreement of the prosecution) to be detained in hospital under section 37 Mental Health Act 1983, the judge being satisfied that he suffered from a mental disorder such as to make his detention and treatment in hospital appropriate (section 37 (2)), coupled with a restriction order made under section 47 of that Act in order to prevent the public from serious harm if he should be at large. ... Mrs Henderson's will made in 2006 left her entire estate to Ian if he survived her, but it is accepted that by virtue of his having caused her death by his own criminal act prima facie Ian is excluded from benefitting under the will under the common law rule known as the 'forfeiture rule'. The court however has power to modify the application of that rule in certain circumstances pursuant to the Forfeiture Act 1982, and Ian brings this claim seeking, principally, an order under that Act that permits him to inherit his mother's estate." 2015‑12‑20 22:30:47 2015 cases, Miscellaneous, No summary, Transcript


Re RS (Forced Marriage Protection Order) [2015] EWHC 3534 (Fam), [2015] MHLO 105 — "The identified questions for this hearing are whether: (i) RS had mental capacity to marry at the date of his marriage to W; and if not; (ii) whether the court should exercise its power under the inherent jurisdiction to declare that the marriage is not recognised as valid in England and Wales as a precursor to the initiation of formal proceedings to annul the marriage." 2015‑12‑10 12:43:13 2015 cases, Capacity to consent to sexual relations, No summary, Transcript


R (Drammeh) v SSHD [2015] EWHC 2984 (Admin), [2015] MHLO 99 — "This is a claim for judicial review of (i) the Defendant's decision of 6 February 2015 (confirmed after further consideration on 16 June 2015) refusing to accept the Claimant's representations as a fresh asylum and human rights claim, and (ii) the lawfulness of the Claimant's detention under immigration powers from 21 November 2014 to 17 April 2015. The Claimant is a foreign criminal with an appalling immigration history, who is liable to deportation in consequence of having been sentenced to 12 months' imprisonment for being concerned in the supply of class A drugs. He has been diagnosed with schizo-affective disorder, which appears to be well-controlled provided that he takes his anti-psychotic medication. Having exhausted his rights of appeal against the refusal of a very belated claim for asylum, he has done everything within his power to avoid being deported." 2015‑11‑14 20:28:52 2015 cases, No summary, Repatriation cases, Transcript


Re HS [2015] EWCOP 33, [2015] MHLO 96 — "I have been asked to reconsider two orders I made on the papers. The first was an order dated 29 October 2014 revoking HS's Enduring Power of Attorney and the second was an order made on 10 December 2014 appointing Essex County Council to be HS's deputy for property and affairs." 2015‑11‑13 23:06:27 2015 cases, Deputyship cases, No summary, Transcript


The Public Guardian v SR [2015] EWCOP 32, [2015] MHLO 96 — "This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney ('LPA') for property and affairs and directing him to cancel its registration." 2015‑11‑13 23:02:49 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


A Local Health Board v AB [2015] EWCOP 31, [2015] MHLO 95 — "I conclude that: (a) AB lacks capacity to conduct these proceedings herself. (b) AB lacks capacity to make her own decisions about whether to consent to medical treatment for her cardiac condition including dental surgery. (c) Insofar as the jurisdiction of the court is excluded because of the operation of the MHA and MCA, the inherent jurisdiction should be exercised to grant a declaration that it is lawful and in AB's interests to have the proposed medical treatment administered by the Applicant to her. (d) The inherent jurisdiction should be exercised to grant a declaration that it is lawful and in her best interests for AB to be deprived of her liberty to travel to and to remain at the hospital for the proposed medical treatment but that such physical and/or chemical restraint as may be required to deliver the treatment shall bear in mind the need to maintain her dignity to the maximum extent reasonably possible." (Caution: in relation to paragraph [54], on the MCA eligibility test, see An NHS Trust v A [2015] EWCOP 71, [2015] MHLO 91.) 2015‑11‑13 23:00:17 2015 cases, Best interests, Deprivation of liberty, No summary, Transcript


Re AFR [2015] EWCOP 73, [2015] MHLO 93 — "This is an application by the Public Guardian to discharge two joint and several deputies for property and affairs on the grounds that they have behaved in a way that has contravened their authority or is not in their father's best interests." 2015‑11‑12 18:47:24 2015 cases, Deputyship cases, No summary, Transcript


Re DWA [2015] EWCOP 72, [2015] MHLO 92 — "On 1 October 2014 I made an order on the papers revoking a Lasting Power of Attorney ('LPA') for property and financial affairs in respect of one of three attorneys because I was satisfied that the donor was incapable of revoking the appointment herself and that the attorney in question had behaved in a way that contravened her authority or was not in the donor's best interests. This is an application by the attorney whose appointment was revoked for me to reconsider that decision pursuant to rule 89 of the Court of Protection Rules 2007." 2015‑11‑12 18:45:20 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re AMH [2015] EWCOP 70, [2015] MHLO 90 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015‑11‑12 18:23:55 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re H [2015] EWCOP 52, [2015] MHLO 89 — "There are two provisions in the Mental Capacity Act 2005 ('MCA') that seem to contradict each other. Section 16(4)(b) envisages that a deputyship appointment will be of limited duration, whereas section 19(5) facilitates an appointment that could last for decades. ... When it comes to the crunch, section 16(4)(b) trumps section 19(5) because it is a principle to which the court must have regard when deciding whether it in P's best interests to appoint a deputy, while section 19(5) is simply a discretion conferred upon the court, once it has decided to appoint a deputy." 2015‑10‑31 21:06:39 2015 cases, Deputyship cases, No summary, Transcript


Re KW [2015] EWCOP 53, [2015] MHLO 88 — "DW objects to the deprivation of liberty and made the application to the Court of Protection on 5th December 2014 pursuant to Section 21A of the Mental Capacity Act 2005 to challenge the purpose of the standard authorisation. The application was made on the following grounds: (a) LCC failed to make an application to the Court of Protection (despite the recommendations of the Ombudsman). (b) LCC failed to take reasonable steps to plan a move for KW to a more suitable placement, closer to her family and KW has suffered distress as a result. (c) It is not in KW's best interests to be deprived of her liberty at R H therefore one of the qualifying requirements of Schedule 1A is not satisfied." 2015‑10‑31 21:03:27 2015 cases, Deprivation of liberty, No summary, Transcript


P v Surrey County Council [2015] EWCOP 54, [2015] MHLO 87 — "The issues for me to determine are these: (i) Was P's detention at the care home between 5 September 2014 and 23 December 2014 lawful or was it in breach of Article 5 and/or Article 8? (ii) If P's detention during that period was unlawful or in breach of Article 5, does a right to compensation or damages arise and, if so, how much? No claim for compensation or damages is in fact pursued. (iii) Was P's detention at the care home between 23 December 2014 and the date of cessation of detention lawful pursuant to a properly-made standard authorisation? If not, was it in breach of his Article 5 and/or Article 8 rights? (iv) Does a right to compensation or damages arise and, if so, how much? No claim for compensation or damages is in fact pursued." 2015‑10‑31 20:54:14 2015 cases, Deprivation of liberty, No summary, Transcript


Re ARL [2015] EWCOP 55, [2015] MHLO 86 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015‑10‑31 20:50:26 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re RS [2015] EWCOP 56, [2015] MHLO 85 — "The matters before the court proceed as a challenge to the standard authorisation pursuant to Section 21A of the Mental Capacity Act 2005. ... On 28th May ... capacity being the gateway to the jurisdiction of this court a report was ordered pursuant to Section 49 of the Mental Capacity Act 2005 ... I am not prepared to vary or alter the principle behind the original order of 28th May. Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere." 2015‑10‑31 20:48:24 2015 cases, No summary, Other capacity cases, Transcript


Re SF [2015] EWCOP 68, [2015] MHLO 84 — "This is an application by the Public Guardian for the court to revoke an Enduring Power of Attorney ('EPA') and to direct him to cancel its registration." 2015‑10‑31 20:40:13 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re GMP [2015] EWCOP 67, [2015] MHLO 83 — "This is an objection to an application for the appointment of a deputy for property and affairs." 2015‑10‑31 20:38:34 2015 cases, Deputyship cases, No summary, Transcript


Re RG [2015] EWCOP 66, [2015] MHLO 82 — "This is an application by Northamptonshire County Council for the court to revoke an Enduring Power of Attorney ('EPA') and to appoint a professional deputy to manage the donor's property and affairs in place of the attorney." 2015‑10‑31 20:36:37 2015 cases, Deputyship cases, EPA cases - all, EPA cases - other, No summary, Transcript


Aidiniantz v Riley [2015] EWCOP 65, [2015] MHLO 81 — "These proceedings in the Court of Protection are the latest setting for the poisonous feud between the children of Mrs Grace Aidiniantz. On this occasion, they dispute where their mother should live, who should care for her, who should see her, and whether her finances should be investigated." 2015‑10‑31 20:34:19 2015 cases, Best interests, COP costs cases, No summary, Transcript


Re MLJ [2015] EWCOP 63, [2015] MHLO 80 — "This is a contested application for the appointment of an additional deputy to act jointly with the existing deputy for property and affairs." 2015‑10‑31 20:29:16 2015 cases, Deputyship cases, No summary, Transcript


Re AJ [2015] EWCOP 62, [2015] MHLO 79 — "This is an application by the respondent for the court to reconsider two orders that were made on the papers. The first order discharged him as his daughter's deputy for property and affairs and the second order appointed a panel deputy to act in his place." 2015‑10‑31 20:27:01 2015 cases, Deputyship cases, No summary, Transcript


Medway Council v M and T [2015] EWFC B164, [2015] MHLO 78 — "In this judgment, within ongoing care proceedings, I have determined the applications by T and Mother under the Human Rights Act for declarations and damages. I have set out below the alarming history of the unlawful accommodation of T by Medway Council for over 2 years, and my reasons for declarations to that effect and for the award of damages of £20,000 each to T and her Mother for breaches of their rights to respect for their family life under Article 8 and to fair trial under Article 6 of the European Convention on Human Rights. [The following are two paragraphs of the judgment which set out just part of the history.] [24] Instead, again, the Social Worker AT, accompanied by Mother's mental health Social Worker, visited Mother on 3.10.13 and purported to obtain a fresh s20 agreement which they were satisfied she understood and had capacity to make as Mother was able to repeat back to them that it was her consent to Medway Council, that it was voluntary and she accepted she could not care for T then. Medway Council has not been able to provide this document. To its credit, Medway Council does not now attempt to suggest that they obtained a valid s20 agreement from Mother. It is conceded that the August and October 'consents' should not have been relied upon. Clearly Mother should have been properly assessed for her decision-specific capacity, and been fully informed and supported. It is highly unlikely that she would have been assessed as having capacity given her low functioning in combination with her mental illness. [25] In the meantime on 10.9.13, the social work records reveal a note entered by DH, presumably then managing this case as it is headed "Manager's Decisions: Supervision". She wrongly describes T as having been placed in foster care as an "abandoned child when Mother was detained under the MHA". T was not abandoned. Detention in hospital for treatment under the Mental Health Act does not constitute and should never be treated as an abandonment by a parent of their child. DH, however, correctly goes on to say the following: "Mother has signed the Section 20 but Social Worker was concerned whether she fully understood the meaning of this", and with a mixed stab at an accurate understanding of the position wrote: "T cannot remain under Section 20 indefinitely and clear decision making should be made…", continuing under the heading "Actions" she includes this: "Attend a legal gateway meeting to discuss actions regarding long term care plan for child (permanency). The local authority do not have PR and cannot make decisions regarding child under Section 20 without consent from M". These last comments are of course correct, but again such a meeting did not occur and still no steps were taken to address the situation." 2015‑10‑30 23:13:26 2015 cases, Miscellaneous, No summary, Transcript


Re P (Application for Secure Accommodation Order) [2015] EWHC 2971 (Fam), [2015] MHLO 77 — "In my judgment it is clear that the restrictions imposed by reg. 5(2) on making a secure accommodation order under s.25 in respect of a child over the age of 16 are limited to children who are accommodated as a matter of discretion under s.20(5) and do not extend to children who are accommodated as a matter of duty under s.20(3). Where a looked-after child aged between 16 and 18 is accommodated under s.20(3) of the Children Act 1989 the court has the power to make her the subject of a secure accommodation order under s.25. It follows, therefore, that in this circumstances of this case it is appropriate that the local authority's application for a secure accommodation order be adjourned generally with liberty to restore should circumstances arise in which it considers it appropriate to do so." 2015‑10‑30 22:58:10 2015 cases, Deprivation of liberty, No summary, Transcript


CWM TAF University v F [2015] EWHC 2533 (Fam), [2015] MHLO 75 — "This application was issued ... for a declaration under s.15 of the Mental Capacity Act: Firstly, that F lacks capacity; secondly, to make decisions about her clinically assisted nutrition and hydration; and, thirdly, the central issue, that it is not in F's best interests for clinically assisted nutrition and hydration to be continued, that it is lawful and in her best interests for clinically assisted nutrition and hydration to be withdrawn." 2015‑10‑30 22:44:50 2015 cases, Best interests, No summary, Transcript


R (Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin), [2015] MHLO 72 — "This application for judicial review concerns the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2... What this case boiled down to was a consideration of how Article 2 applies to the suicide of mental health patients and an assessment of the (in)adequacy of the Guidance in reflecting the law. I have come to the conclusion that in one material respect the Guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression of what the law is. ... [I]n the absence of a clear recognition that there is a category of case where the investigative duty arises quite irrespective of the existence of arguable breach by the State the Guidance is materially misleading and inaccurate." 2015‑10‑28 23:27:05 2015 cases, ICLR summary, Inquests, No summary, Transcript


Re PAW [2015] EWCOP 57, [2015] MHLO 68 — "This is a contested application for the appointment of a deputy for property and affairs." 2015‑09‑30 20:59:29 2015 cases, Deputyship cases, No summary, Transcript


DGP Law v DGHP [2015] EWCOP 58, [2015] MHLO 67 — "This is a reconsideration of a decision made on the papers on 16 February 2015 by District Judge Bellamy, who dismissed the respondents' objections to the applicant's application to be appointed as her mother's deputy for property and affairs." 2015‑09‑30 20:57:33 2015 cases, Deputyship cases, No summary, Transcript


Re NRA [2015] EWCOP 59, [2015] MHLO 66 — "I have ten cases before me seeking welfare orders under s. 16(2)(a) of the Mental Capacity Act 2005 (the MCA). The welfare orders are sought to authorise the deprivation of liberty that, it is common ground, is being, or will be, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. If it had been thought that the care packages did not result in a deprivation of liberty it is highly likely that the relevant public authorities would have relied on s. 5 of the MCA and no application to the Court of Protection would have been made. When the cases were transferred to me they were regarded as test cases on the directions that should be given for their determination and in particular on whether the subject of the proceedings (P) should be a party." 2015‑09‑30 20:53:15 2015 cases, Deprivation of liberty, No summary, Transcript


Wye Valley NHS Trust v B [2015] EWCOP 60 — "The issue in this case is whether it is lawful for the doctors treating Mr B, a 73-year-old gentleman with a severely infected leg, to amputate his foot against his wishes in order to save his life. Without the operation, the inevitable outcome is that he will shortly die, quite possibly within a few days. If he has the operation, he may live for a few years. Mr B also has a long-standing mental illness that deprives him of the capacity to make the decision for himself. The operation can therefore only be lawfully performed if it is in his best interests. ... Having considered all of the evidence and the parties' submissions, I have reached the clear conclusion that an enforced amputation would not be in Mr B's best interests. Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his "fierce independence", and it is this that is now, as he sees it, under attack." 2015‑09‑30 20:48:32 2015 cases, Cases, Judgment available on Bailii, Medical treatment cases


Re ME [2015] EWCOP 61, [2015] MHLO 64 — "This is an objection to an application for the appointment of a deputy for property and affairs." 2015‑09‑30 20:46:16 2015 cases, Deputyship cases, No summary, Transcript


R (Samadi) v SSHD [2015] EWHC 1806 (Admin), [2015] MHLO 59 — "This is the hearing of the Claimant's claim for damages for what he argues was his unlawful immigration detention for 19 days from 14 May to 1 June 2012. In broad summary his case is that there were breaches of §55.10 of the Defendant's Enforcement Instructions and Guidance (the 'Guidance') which provides for two categories of potential detainees who will normally only be considered suitable for detention in very exceptional circumstances: (a) those suffering from serious mental illness which cannot be satisfactorily managed in detention, and (b) those where there is independent evidence that they have been tortured. It is the Claimant's case that he fell into both those categories; and that in any event the Defendant (c) wrongfully continued to detain him after it had become clear that his removal was no longer imminent." 2015‑08‑07 22:08:10 2015 cases, No summary, Repatriation cases, Transcript


Re EL: Public Guardian v CS [2015] EWCOP 30, [2015] MHLO 56 — "This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney ('LPA') for property and financial affairs and directing him to cancel its registration." 2015‑07‑20 20:54:31 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re HC: Public Guardian v CC [2015] EWCOP 29, [2015] MHLO 55 — "This is an application by the Public Guardian for an order under section 16(8) of the Mental Capacity Act 2005 revoking the appointment of a deputy because he has behaved in a way that contravenes the authority conferred on him by the court or is not in the best interests of the person for whom he acts as deputy." 2015‑07‑20 20:51:39 2015 cases, Deputyship cases, No summary, Transcript


Re SM: Public Guardian v MO [2015] EWCOP 27, [2015] MHLO 54 — "This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015‑07‑20 20:47:12 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re ED: Public Guardian v JD [2015] EWCOP 26, [2015] MHLO 53 — "This is an application by the Public Guardian to revoke an Enduring Power of Attorney." 2015‑07‑20 20:39:32 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re LC: Bedford Borough Council v Mrs C and Mr C [2015] EWCOP 25, [2015] MHLO 52 — "The proceedings concern Mrs C’s best interests in relation to residence and her contact with her husband and a deprivation of her liberty. ... There is also in existence a separate application by the local authority for a deputy for property and affairs to be appointed for her." 2015‑07‑20 20:26:13 2015 cases, Best interests, No summary, Transcript


Newcastle City Council v PV [2015] EWCOP 22, [2015] MHLO 51 — "This judgment considers the role of the Court of Protection in connection with applications to the Criminal Injuries Compensation Authority ('CICA'). In particular, it looks at cases in which the CICA requires a trust to be created in order to exclude any possibility that the assailant may benefit from the compensation award. These cases arise almost exclusively in the context of domestic violence, where the assailant is a family member." [See appeal decision.] 2015‑07‑20 20:19:11 2015 cases, No summary, Other capacity cases, Transcript


The Mental Health Trust v DD [2015] EWCOP 4, [2015] MHLO 50 — "For the reasons set out above, I propose to declare: (i) pursuant to section 15 of the 2005 Act that DD lacks capacity to litigate in relation to the relevant issues; (ii) pursuant to section 15 of the 2005 Act that DD lacks capacity to make decisions in respect of contraception; (iii) pursuant to section 15 of the 2005 Act that it is lawful and in DD's best interests to undergo a therapeutic sterilisation and authorise the applicants' staff to do so, together with the provision of all ancillary care and treatment; Further, (iv) subject to certain safeguards (more fully set out in the care plan and reflected in the proposed draft order) being required, I propose to authorise the applicants to remove DD from her home and take steps to convey her to hospital for the purposes of the sterilisation procedure, and authorise the use of reasonable and proportionate measures to ensure that she is able to receive the said treatment even if any deprivation of liberty is caused by the same; (v) I authorise the applicants to take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry and necessary restraint, and authorise that any interferences with DD's rights under Article 8 of the ECHR as being in her best interests." 2015‑07‑20 20:15:19 2015 cases, Best interests, No summary, Transcript


Re A [2015] EWHC 1709 (Fam), [2015] MHLO 45 — "The Local Authority applies for a secure accommodation order in respect of her under s.25 of the Children Act 1989. The Local Authority's case is that A is a danger to herself and others, and that she is no longer containable in any form of ordinary residential unit. ... Put in lay language, the expert consensus of CAMHS is that A's problems, although recognised as being severe and extreme, are not of a mental health or psychiatric nature; but rather are of a behavioural nature. Therefore, admission to a Young Person's Psychiatric Unit for assessment and potential subsequent treatment is not currently 'on offer' as a way of dealing with A's problems. ... Conventionally, a specific placement is identified before a secure accommodation order is made. However, that is simply not possible here, and both the Local Authority and the Children's Guardian invite me to make the order in general terms, leaving it to the Local Authority, on consultation with the Children's Guardian, to place A at an appropriate unit as and when one is identified. ... A can be seen as falling between two stools. She is not amenable to a psychiatric disposal on the expert report available, but she is unable to be contained in ordinary residential homes. It is clearly unsatisfactory that no secure arrangements can readily be found for her, and that she remains currently at some measure of risk, howsoever hard the staff struggle to contain it, in the ordinary residential unit where she is placed. The Local Authority must, and will, therefore continue its efforts to find secure accommodation. They tell me that funding is not a problem in this case. The Local Authority will also be considering the possibility of obtaining an independent psychiatric report into her situation, which could then be shared with the local CAMHS team to see if it affected their current opinion." 2015‑06‑24 09:59:09 2015 cases, Miscellaneous, No summary, Transcript


AF v Nottinghamshire NHS Trust [2015] UKUT 216 (AAC), [2015] MHLO 43 — "There is nothing in the law that requires the social circumstances report to have been written by a social worker or CPN and not a nurse, or requiring that the nursing report and social circumstances reports must have different authors, and the tribunal therefore did not err in law in having those two reports before it. Nor was there any legal requirement on the report’s author to attend the hearing and so the tribunal did not err in law in allowing another nurse to attend and speak to that report. Further, the question of whether any deficits in the report (assuming there were such) led the tribunal to err in law must be judged on the facts of the individual case. In a case where the tribunal decided that the appellant had not got to the point of being able to be discharged and needed to remain under section, the relevance of any after-care package in place simply falls away. And the tribunal adequately explained why it was not adjourning." 2015‑06‑08 23:16:19 2015 cases, No summary, Transcript, Upper Tribunal decisions


H v USA [2015] EWHC 1066 (Admin), [2015] MHLO 37 — Extradition case with mental health factual background. 2015‑04‑29 21:35:39 2015 cases, No summary, Repatriation cases, Transcript


W City Council v Mrs L [2015] EWCOP 20, [2015] MHLO 35 — "This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer's disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues: (a) whether the care arrangements for the lady (Mrs L) constitute a deprivation of her liberty; (b) if so, then whether the State is responsible for such deprivation of liberty; and (c) if so, then whether such deprivation of liberty should be authorised by the court and what the arrangements for continuing authorisation should be." 2015‑04‑16 10:57:25 2015 cases, Deprivation of liberty, No summary, Transcript


Re D (A Child: deprivation of liberty) [2015] EWHC 922 (Fam), [2015] MHLO 33 — "I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents' consent to his placement there. I am satisfied that, on the particular facts of this case, the consent of D's parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the 'zone of parental responsibility'. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement. In the case of a young person under the age of 16, the court may, in the exercise of the inherent jurisdiction, authorise a deprivation of liberty." 2015‑03‑31 22:47:22 2015 cases, Deprivation of liberty, No summary, Transcript


R v Marshall [2015] EWCA Crim 474, [2015] MHLO 32 — "On 12th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986. On 12th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years. With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order. ... Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal." 2015‑03‑31 22:41:36 2015 cases, Hospital order cases, No summary, Transcript


Donna v Martin [2015] EWCOP 23, [2015] MHLO 31 — "This is an application under rule 89 of the Court of Protection Rules 2007 inviting me to reconsider an order I made on the papers on 27 November 2014. As this is a case in which there is a dispute as to who should act as a deputy, I am required ... to publish this judgment." 2015‑03‑29 18:24:01 2015 cases, Deputyship cases, No summary, Transcript


Re CJ: Public Guardian v MP [2015] EWCOP 21, [2015] MHLO 30 — "This is a reconsideration of a decision made on the papers on 4 November 2104 by District Judge S. E. Rogers, who made an order: (a) revoking the respondent's appointment as his partner's deputy for property and affairs; and (b) inviting a panel deputy to apply to be appointed as deputy in his place. ... I am absolutely certain that there has been no dishonest misappropriation of CJ's funds by MP, but that's not the point. ... To turn a blind eye to MP's wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG's supervision and compliance teams, which cannot possibly be in the public interest. It would also ride roughshod over the court's obligations under international human rights law to ensure that the protective measures it makes contain appropriate and effective safeguards to prevent abuse: United Nations Convention on the Rights of Persons with Disabilities, Article 12.4. ... Accordingly, I confirm District Judge Rogers' order revoking MP's appointment as deputy and inviting a panel deputy to apply to be appointed in his place." 2015‑03‑26 09:54:39 2015 cases, Deputyship cases, No summary, Transcript


Baker v Cambridgeshire and Peterborough NHSFT [2015] EWHC 609 (QB), [2015] MHLO 29 — "This action arises out of the tragic suicide of Philip Baker ... The claim is brought on behalf of his widow, Pauline Baker ... It is alleged that the treatment plan provided by Dr Kabacs on 29 September was inadequate and her decision on 26 October 2010 to discharge Mr Baker to the care of his general practitioner, caused him to take his own life." 2015‑03‑24 21:45:50 2015 cases, Miscellaneous, No summary, Transcript


Re ID (Revocation of LPA) [2015] EWCOP 19, [2015] MHLO 28 — "This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney." 2015‑03‑24 20:22:24 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re AW [2015] EWCOP 16, [2015] MHLO 27 — "These are competing applications by DB and DW to be appointed as AW's deputy for property and affairs." 2015‑03‑24 20:20:35 2015 cases, Deputyship cases, No summary, Transcript


BG v MHTS [2015] CSIH 18, [2015] MHLO 26 — "This is an appeal by JG’s son from a decision of the sheriff principal of Lothian and Borders refusing his appeal against a decision of the Mental Health Tribunal for Scotland. The decision of the MHTS which he had appealed against was a decision to make a compulsory treatment order in relation to his mother." 2015‑03‑24 20:17:50 2015 cases, No summary, Scottish cases, Transcript


Re PL (Objection Hearing) [2015] EWCOP 14, [2015] MHLO 25 — "This is an objection by PL's daughters to his son's application to be appointed as his deputy for property and affairs." 2015‑03‑24 20:14:11 2015 cases, Deputyship cases, No summary, Transcript


A Healthcare NHS Trust v P and Q [2015] EWCOP 15, [2015] MHLO 23 — "The Trust ... applied to the Court for a declaration in P's best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. ... At the same time they also applied for a reporting restriction order with accompanying documentation. When they sought to serve that material on the Press Association through the service known as CopyDirect, but now in fact called the Injunctions Alert Service, the second respondent objected to the disclosure of any identity either of P or of P's family. ... As a result I listed a hearing ... for the Court to consider four questions: (Generally) (1) Whether in applications for reporting restrictions orders the applicant, when notifying the Press of the application, is required to identify the parties and or P. (Specifically in this application) (2) Whether further hearings in these proceedings should be heard in public. (3) Whether there should be any reporting restrictions in relation to these proceedings and if so those restrictions. (4) Such further directions as seemed appropriate to the Court." 2015‑03‑24 19:35:57 2015 cases, No summary, Other capacity cases, Transcript


Re BN [2015] EWCOP 11, [2015] MHLO 22 — "This is an application under rule 89 of the Court of Protection Rules 2007 for me to reconsider an order I made on the papers. ... BN does not lack capacity to revoke the LPAs and, indeed, she has no wish to revoke them, so the court is powerless to intervene. ... CN acted in bad faith, was motivated by spite, and was unsuccessful. BN responded to the application by taking advice from her solicitors, who sensibly narrowed the matter down to a single issue. It would be unjust to expect BN to pay the legal costs she had to incur in order to resist such an unmeritorious application." 2015‑03‑24 17:34:53 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Sekerani v SSHD (2014) UKAITUR DA/00301/2014, [2014] MHLO 144 — "The appellant had claimed asylum on the bases that he fears the ZANU PF in Zimbabwe which claim was rejected in 2003. The appellant no longer relies on his asylum claim but on his claim for humanitarian protection. The appellant claims he cannot return to Zimbabwe because of his mental health problems as he has been diagnosed as suffering from paranoid schizophrenia. He relies on a report from Dr Gillian Wainscott, a consultant psychiatrist dated 27 February 2014. The appellant claims that he has established a family and private life in the United Kingdom because he has a cousin in this country who has been helping him." 2015‑03‑24 17:28:44 2014 cases, No summary, Repatriation cases, Transcript


Re DT: Public Guardian v IT [2015] EWCOP 10, [2015] MHLO 21 — "This is an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney. It is unusual for me to dismiss an application by the Public Guardian, but on this occasion I am not satisfied that the order he is seeking: (a) is proportionate; (b) is less restrictive in terms of DT's rights and freedom of action; (c) respects DT's rights, will and preferences; (d) warrants public interference in his private and family life; or (e) is in his best interests." 2015‑03‑24 17:17:28 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re F [2004] EWHC 725 (Ch) — "This is an appeal from the refusal of Master Lush, the Master of the Court of Protection, to register an enduring power of attorney dated 10th July 2000 which was made by the donor (Mrs F) in favour of her son (Mr A). The Master upheld an objection to registration on grounds of the unsuitability of Mr A to be the donor's attorney, which was lodged by his sister (Mrs B)." 2015‑03‑24 17:09:47 2004 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re GW [2015] EWCOP 9, [2015] MHLO 20 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs because the attorney has behaved in a way that contravenes his authority and is not in the donor's best interests." 2015‑03‑24 16:59:53 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


R v M [2014] EWCA Crim 1641, [2014] MHLO 143 — "The Advice on Appeal submitted on behalf of the applicant contains two grounds: first, that the judge was wrong in principle to make a s45A hospital and limitation direction when the conditions for making a restriction order under section 41 were not met; and second, that a section 37 order was the appropriate order. Those orders and directions refer to the provisions of the Mental Health Act 1983, as amended by the Mental Health Act 2007. The Registrar has also referred the making of the Victim Surcharge Order to the full court on two separate issues." 2015‑02‑12 23:58:04 2014 cases, Hybrid order cases, No summary, Transcript


AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC), [2015] MHLO 17A personal welfare deputy cannot appoint himself (or anyone else) as a representative unless the order appointing him expressly provides for this. This case related to the withdrawal of a tribunal application, and was followed up by Tribunal Policy: Withdrawals (23 Feb 2015) [2015] MHLO 19. 2015‑02‑12 23:42:15 2015 cases, MHT capacity cases, No summary, Transcript, Upper Tribunal decisions


Re SB: Public Guardian v BB [2015] EWCOP 7 [2015] MHLO 15 — "This is an application to revoke a Lasting Power of Attorney for property and financial affairs because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests. It is also a contested application as to who should be appointed as SB's deputy for property and affairs in place of the attorneys." 2015‑02‑12 23:07:50 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Re EG: Public Guardian v GB [2015] EWCOP 6, [2015] MHLO 14 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs ('LPA') because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests." 2015‑02‑12 23:05:52 2015 cases, LPA cases - all, LPA cases - other, No summary, Transcript


Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, [2015] MHLO 12 — "The single issue in this appeal is whether the appellant, a mentally disordered patient unlawfully detained in hospital for some 442 days, is entitled to substantial damages instead of the nominal damages awarded by the judge, in circumstances where he would anyway have been detained lawfully had the defendant NHS trust been aware of the unlawfulness. ... I would dismiss this appeal." 2015‑02‑12 22:58:20 2015 cases, No summary, Transcript, Unlawful detention cases


Border v Lewisham and Greenwich NHS Trust [2015] EWCA Civ 8, [2015] MHLO 8 — "This is an appeal against an order ... which ... dismissed the claimant's claim for damages for clinical negligence. Permission to appeal was granted on a single ground, which relates to the issue of the claimant's consent to a particular medical procedure, namely the insertion of a cannula into her left arm for the purpose of intravenous access. ... A finding of absence of consent to the insertion of the cannula leads inexorably in this case to a finding of breach of duty in inserting it. The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it ... I would dispose of the appeal by (i) granting a declaration that Dr Prenter was in breach of his duty of care by inserting the cannula without the claimant's consent and (ii) remitting the matter to Judge Moloney to determine the outstanding issue of causation and, if liability is thereby established, to reach a final determination with regard to damages." 2015‑01‑31 20:14:53 2015 cases, Miscellaneous, No summary, Transcript


Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18, [2015] MHLO 7 — "This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement ('CFA'). The issue is whether the CFA terminated automatically by reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips J, sitting in the Queen's Bench Division with assessors, held in a clear and cogent judgment that the CFA was not frustrated ... At the conclusion of the hearing of the appeal we announced that the appeal would be dismissed for reasons to be given in writing at a later date. These are my reasons for dismissing it." 2015‑01‑31 20:07:22 2015 cases, No summary, Other capacity cases, Transcript


Re RG: Public Guardian v PB [2015] EWCOP 2, [2015] MHLO 6 — "This is an application for the court to reconsider an order made on the papers, partially revoking an enduring power of attorney." 2015‑01‑30 10:00:31 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


The Mental Health Trust v DD [2014] EWCOP 44, [2014] MHLO 141 — "I do not propose to give a detailed judgment in this case today in light of the large measure of agreement. However, I want to make some comments about the proposed draft order. ... In preparation for this four day hearing, in which I was to be considering questions of long-term contraception or sterilisation of DD, I have read with care ..." 2015‑01‑14 22:52:56 2014 cases, Best interests, No summary, Transcript


R (AMG) v SSHD [2015] EWHC 5 (Admin), [2015] MHLO 1 — Immigration case with mental health background. 2015‑01‑13 16:35:32 2015 cases, No summary, Repatriation cases, Transcript


DD v SSHD [2014] EWHC 3820 (Admin), [2014] MHLO 140 — "Currently, the effects of the [Terrorism Prevention and Investigation Measure] in general, whatever the particular effects of certain restrictions, and the effects of the three most contentious conditions apart from the tag, plainly do not cross that high threshold so as to breach of Article 3. I reach that conclusion recognising that the maintenance of the TPIM and those conditions is significantly worse for DD than for a person who is in normal mental health, and that particular care is required in judging whether a mentally ill and vulnerable person is being treated with proper respect for the fact that he is a human being. The tag as described by Professor Fahy and Dr Deeley is undoubtedly the most severe requirement in its impact on DD, because of his paranoid ideation. DD's delusions about the tag being an explosive device and a camera are very frightening and distressing. He wants to remove it, as voices tell him to, yet knows this would continue with the cycle of breaching the TPIM, facing prison, release, revival of the TPIM and breach. The doctors agree that the removal of the tag would not simply lead to paranoid delusions associated with it being transferred to another object, because of the particular nature of the tag. Its removal would reduce the number and intensity of the stressors he has to cope with, which could increase his ability to handle those which remain. That is a judgment I make, but it is consistent with the medical evidence; indeed it seems obvious. However, I am not persuaded that the effect of the tag, on top of the other TPIM effects, does breach Article 3 in these circumstances in view of the high threshold required to be crossed." 2014‑12‑31 20:49:25 2014 cases, Miscellaneous, No summary, Transcript

More...

Article titles

The following 200 pages are in this category.

(previous page) (next page)

R

(previous page) (next page)