Difference between revisions of "Mental health caselaw archive"

 
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[[R (C) v SSHD (2002) EWCA Civ 647]] - HO could not exercise discretion to refer case under s71 after MHRT without good reason; evidence lacking at MHRT hearing was not good reason on the facts; following IH (CA) MHRT remains fully seised of case after a D/C/D; decision to refer quashed (rough summary)  
 
[[R (C) v SSHD (2002) EWCA Civ 647]] - HO could not exercise discretion to refer case under s71 after MHRT without good reason; evidence lacking at MHRT hearing was not good reason on the facts; following IH (CA) MHRT remains fully seised of case after a D/C/D; decision to refer quashed (rough summary)  
  
[[R (Harry) v SSHD (1998) EWHC Admin 420]] - Home Secretary not obliged to follow MHRT recommendations as to transfer of restricted patient to lower security; can look further afield for information and advice; but had to act in a procedurally fair manner, which he had not done
+
[[R v SSHD, ex p Harry (1998) EWHC Admin 420]] - Home Secretary not obliged to follow MHRT recommendations as to transfer of restricted patient to lower security; can look further afield for information and advice; but had to act in a procedurally fair manner, which he had not done
  
 
== Deprivation of liberty ==
 
== Deprivation of liberty ==

Latest revision as of 21:28, 22 May 2020

The case law section of the website was reorganised in September 2008. This index page is now obsolete and no longer updated, but retained for archive purposes as it might still be of some use. The current index page is Mental health case law.


Mental health caselaw, sorted into categories.

  • Bold links contain comprehensive summaries. (Feel free to edit)
  • Plain blue links contain only very brief summaries. (Expand on them)
  • Red links relate to pages which do not yet exist. (Write them)
  • Please add new cases which are not listed. (See help page. The dates have to be in round brackets because of the software.)

Searching: Use the table of contents and/or use your browser to search this page (patients' initials are usually within brackets, or following the word "re").

2008 Cases

LGO decision: Medway Council 06/B/12248 and Wigan Metropolitan Borough Council 06/B/12247 (29/4/08) - from After-care section

R v Francis [2008] NICA 6 - from Crime/restriction orders section

Not yet summarised or categorised

A Primary Care Trust v AH [2008] EWHC 1403 (Fam) - Judiciary website (MCA)

Roberts v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 (QB) - Bailii (Data Protection Act)

R v Leslie Norman [2008] EWCA Crim 1810 - Bailii (criminal appeal)

R (Juncal) v SSHD [2008] EWCA Civ 869 - Bailii (appeal from R (Juncal) v SSHD [2007] EWHC 3024 (Admin))

R v Aisling Murray [2008] EWCA Crim 1792 - Bailii (criminal appeal)

London Borough of Lewisham v Malcolm [2008] UKHL 43 - Bailii (appeal from London Borough of Lewisham v Malcolm [2007] EWCA Civ 763)

R (SSJ) v MHRT, re Rafiq [2008] EWHC 598 (Admin) - Bailii (Tribunal reasons)

X v An NHS Trust [2008] EWHC 986 (Admin) - Bailii (s37)

G v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) - Bailii (smoking ban)

Adorian v Commissioner of Police of the Metropolis [2008] EWHC 1081 (QB) - Bailii (provision similar to s139)

AK v Central and NW London Mental Health NHS Trust [2008] EWHC 1217 (QB) - Bailii (negligence)

SSJ v Daniel Rayner [2008] EWCA Civ 176 - Bailii (Tribunal references)

R v Diamond [2008] EWCA Crim 923 - Bailii (criminal appeal)

RP v Nottingham City Council [2008] EWCA Civ 462 - Bailii (Official Solicitor)

KC v City of Westminster Social and Community Services Department [2008] EWCA Civ 198 - Bailii (capacity to marry and validity of marriage)

B v Cygnet Healthcare (2008) All ER (D) 35 (Mar) (neutral citation unknown) - MHLA summary (consultation under s11)

2007 Cases

These cases are listed here in the order in which they have been added to this site, and also are listed in their relevant sections as shown below:

LGO decision: North Yorkshire County Council 05/C/13158 (24/7/07) - from After-care section

LGO decision: Poole Borough Council 06/B/7542 (5/9/07) - from After-care section

LGO decision: Bath and North East Somerset Council 06/B/16774 (12/12/07) - from After-care section

R v Simpson [2007] EWCA Crim 2666 - from Crime/restriction orders section

Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 - from Miscellaneous section

McGee, Re Judicial Review [2007] NICA 38 - from Re-sectioning after hearing section

City of Sunderland v PS [2007] EWHC 623 (Fam) - from Miscellaneous section (inherent jurisdiction)

Decision of the Social Security Commissioner (2007) UKSSCSC CIS_3760_2006 - from After-care section

Decision of the Social Security Commissioner (2007) UKSSCSC CSS_239_2007 - from Miscellaneous section (Benefits)

R v Ukpabio [2007] EWCA Crim 2108 - from Crime/restriction orders section

R (Cawley) v Parole Board [2007] EWHC 2649 (Admin) - from Prison law section

R (Buckowicki) v Northamptonshire County Council [2007] EWHC 310 (Admin) - from Crime/restriction orders section

London Borough of Lewisham v Malcolm [2007] EWCA Civ 763 - from Miscellaneous section (Housing/DDA)

R (Holloway) v Oxfordshire County Council [2007] EWHC 776 (Admin) - from Nearest relative section

R (Surat Singh) v Stratford Magistrates Court [2007] EWHC 1582 (Admin) - from Crime/restriction orders section

CPS v P [2007] EWHC 946 (Admin) - from Crime/restriction orders section

R v Dean Johnston [2007] EWCA Crim 1978 - from Crime/restriction orders section

R (Juncal) v SSHD [2007] EWHC 3024 (Admin) - from Crime/restriction orders section

R v Chal [2007] EWCA Crim 2647 - from Crime/restriction orders section

Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375 - from Miscellaneous section

R (SSHD) v MHRT, re JC [2007] EWHC 2224 (Admin) - from Tribunal - Reasons section

R (Brooke) v Parole Board [2007] EWHC 2036 (Admin) - from Prison law section

R (Page) v Secretary of State for Justice [2007] EWHC 2026 (Admin) - from Prison law section

M v UK 30357/03 [2007] ECHR 206 - from Displacement section

R (N) v MHRT [2007] EWHC 1524 (Admin) - from Psychopathic disorder section

YL v. Birmingham City Council [2007] UKHL 27 - from After-care section

Seal v. Chief Constable of South Wales Police [2007] UKHL 31 - from Miscellaneous section

R (MM) v SSHD [2007] EWCA Civ 687 - from Ministry of Justice section

R (RD) v MHRT [2007] EWHC 781 (Admin) - from Medical member's role section

R (SH) v MHRT [2007] EWHC 884 (Admin) - from Discharge conditions section

R (Rayner and Marsh) v SSHD [2007] EWHC 1028 (Admin) - from Ministry of Justice section

Hospital Managers' Hearings

R (Tagoe-Thompson) v The Hospital Managers of the Park Royal Centre [2003] EWCA Civ 330 - Panel of three hospital managers must be unanimous in order to discharge patient.

R (Huzzey) v Riverside MH Trust [1998] EWHC Admin 465 - Managers must consider dangerousness criterion when reviewing detention after RMO's barring order, and in almost all circumstances discharge if not satisfied of that criterion.

R (SR) v Huntercombe Maidenhead Hospital [2005] EWHC 2361 (Admin) - Usually the managers should discharge if they disagree with the RMO's barring report, but there can be exceptions; they have an unfettered discretion.

R (O) v West London MH NHS Trust [2005] EWHC 604 (Admin) - Hospital managers are under a common law duty to provide both oral and written reasons at the time of the decison; the decision is legally defective if the reasons are inadequate; this defect cannot be cured by later evidence giving a proper explanation of the reasons; the supplementary evidence was more than mere elucidation so was not accepted.

Mental Health Review Tribunals

Change of status after application made

R (M) v South Thames MHRT [1997] EWHC Admin 797 - Tribunal application made while under s2 does not fall if the patient is subsequently placed under s3; patient maintains his separate right to apply under while s3.

R (SR) v MHRT [2005] EWHC 2923 (Admin) - MHRT application appealing against s3 falls when patient subsequently made subject to s25A; fresh application required.

Discharge conditions

R (SH) v MHRT [2007] EWHC 884 (Admin) - Condition "that the patient shall comply with medication" was lawful

R (SSHD) v MHRT, re PH [2002] EWCA Civ 1868 - Conditions of discharge are lawful so long as they do not amount to a deprivation of liberty: in this case, a condition that the patient could not leave a hostel unescorted was lawful; so too could be a condition of residence at a hospital - no bailii

R (SSHD) v MHRT, re MP (2004) EWHC 2194 - Conditions attached to conditional discharge of restricted patients must not be so severe as to deprive the patient of his liberty (as opposed to merely restricting it). In this case the condition that the patient may not leave a hostel without escorts deprived him of his liberty. Re PH distinguished: the purpose of the restrictions (and the hope in PH that the need for them might diminish) was different.

R (G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin) - The Tribunal were right to conclude that the conditions which the claimant patient contended for (continued residence at Thornford Park) would be a deprivation, rather than a restriction, of his liberty. The patient's consent to this continuing deprivation of liberty would not confer jurisdiction on the Tribunal.

See also the section on Deprivation of Liberty

R (Hall) v MHRT [1999] EWCA Civ 2052 - Appeal allowed. Decision of Tribunal restored.

Absolute or conditional discharge

R (SSHD) v MHRT, re BR [2005] EWCA Civ 1616 - MHRT granted absolute discharge without considering conditional discharge criteria; High Court quashed decision, so patient became detained restricted patient again; Home Office refused to grant s17 leave until next MHRT; Court of Appeal partially quashed MHRT decision but declared patient entitled to be conditionally discharged pending MHRT determination of appropriate discharge type. (No Bailii judgment.)

R (SSHD) v MHRT, re Wilson [2004] EWHC 1029 (Admin) - MHRT found that patient did not suffer from psychopathic disorder and directed absolute discharge; their decision was quashed because they had failed to consider conditional discharge criteria (i.e. whether patient should remain liable to be recalled for further treatment). Also: MHRT had no power to defer absolute discharge; had failed to explain why they rejected the RMO's evidence; and had misunderstood the legal definition of treatability.

See also the Reid case in the treatability section.

Deferred conditional discharge

R (IH) v SSHD [2003] UKHL 59 - D/C/D is provisional decision; can reconvene and reconsider Bailii

  • R (IH) v SSHD [2001] EWHC Admin 1037 - Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate.

Johnson v UK 22520/93 [1997] ECHR 88 - Article 5 and D/C/D (pre-IH) - Bailii

Burden and standard of proof

R (H) v MHRT North and East London Region [2001] EWCA Civ 415 - Section 73 incompatible with Article 5 because burden of proof placed on patient. Following this case, the Mental Health Act 1983 (Remedial) Order 2001 remedied the situation.

  • Insert EWHC case here

R (AN) v MHRT [2005] EWCA Civ 1605 - MHRT should apply the standard of proof on the balance of probabilities to all the issues it has to determine

Bias

R (M) v MHRT [2005] EWHC 2791 (Admin) - There was no appearance of bias where the sentencing judge, who had imposed the hospital order with restrictions, heard the subsequent MHRT appeal; the patient knew the relevant facts and unequivocally decided not to object at the time, so had waived his right to object

R (PD) v West Midlands and North West MHRT [2004] EWCA Civ 311 - No appearance of bias when Tribunal medical member was employed by same Trust.

Re-sectioning after hearing

McGee, Re Judicial Review [2007] NICA 38 - The detention of the claimant under Article 7 of the Mental Health (NI) Order 1986 (similar to s5(2) MHA 1983) following a MHRT decision to discharge was lawful: (1) the authorities had formed the bona fide opinion that his mental state had since deteriorated; (2) Article 7 applied since the claimant had not divested himself of his in-patient status.

R (Care Principles Ltd) v MHRT; R (AL) v Care Principles Ltd [2006] EWHC 3194 (Admin) - The MHRT's decision to discharge from s2 was not flawed; the subsequent decision to re-detain under s3 was unjustified and unlawful

R (Ashworth) v MHRT; R (H) v Ashworth [2002] EWCA Civ 923 - Appeal on MHRT decision dismissed; appeal on re-sectioning allowed

  • R (Ashworth) v MHRT; R (H) v Ashworth [2001] EWHC Admin 901 - JR of MHRT discharge: immediate discharge when no aftercare available; decision irrational; reasons inadequate. JR of subsequent re-sectioning: lawful, considering Brandenburg CA decision; legal advice on lawfulness of MHRT decision relevant; stay ineffective when discharge was immediate

R (von Brandenburg) v East London and City MH NHS Trust [2003] UKHL 58 - An ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.

Publicity

R (T) v MHRT [2002] EWHC Admin 247 - Discretion to give MHRT decision/reasons to victim should have been considered

R (Mersey Care NHS Trust) v MHRT, re Brady [2004] EWHC 1749 (Admin) - Tribunal decision to allow public hearing was flawed.

Powers

R (O) v MHRT [2006] EWHC 2659 (Admin) - Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing

R (B) v MHRT [2003] EWHC 815 (Admin) - It is lawful to defer discharge in dangerous criterion cases where the deferral is relevant to considerations of dangerousness

R (Hempstock) v MHRT [1997] EWHC Admin 664 - Tribunal have same powers when reconvening after unfulfilled recommendations as at original hearing.

R (MP) v Nottingham Healthcare NHS Trust [2003] EWHC 1782 (Admin) - Tribunal powers with respect to restricted patients - Bailii

R (X) v MHRT [2003] EWHC 1272 (Admin) - Adjournment - Bailii

Reasons

R (SSHD) v MHRT, re JC [2007] EWHC 2224 (Admin) - Deferred conditional discharge decision was unlawful: (1) the decision on the statutory criteria was irrational; (2) the conditions were unlawful - by requiring satisfactory trial leave and consent from third parties they were pre-conditions to discharge rather than conditions of discharge.

R (SSHD) v MHRT, re CH [2005] EWHC 746 (Admin) - No discernible reasons given for preferring patient's evidence to RMO's; material reason given in subsequent witness statement which had not originally been recorded

R (KW) v Avon and Wiltshire MH Partnership NHS Trust [2003] EWHC 919 (Admin) - No reasons given for rejecting RMO's evidence; Tribunal gave no indication during hearing of Tribunal doctor's provisional opinion. Decision quashed

R (East London and the City MH NHS Trust) v MHRT, re IH [2005] EWHC 2329 (Admin) - The Tribunal failed properly to deal with s72(2)(a) when directing discretionary discharge; should have adjourned for information to satisfy itself that appropriate aftercare would be in place; and failed to consider their s72(2) power to recommend transfer.

R (LI) v MHRT [2004] EWHC 51 (Admin) - Successful reasons challenge.

R (Smith) v MHRT South Thames Region [1998] EWHC Admin 832 - Tribunal need only be satisfied of either nature or degree (i.e. not necessarily both) for detention to continue

R (SSHD) v MHRT, re DH [2003] EWHC 2864 (Admin) - Tribunal satisfied disorder of a nature although not degree; did not separately consider necessity test. Misdirection re nature/degree so decision to discharge quashed

R (Warren) v MHRT London North and East Region [2002] EWHC 811 (Admin) - In the circumstances, the brief reasons were sufficient, and the error of law (that the patient was under s47/49 rather than notional s37) did not affect the outcome

R (Manns) v London North and East MHRT [1999] EWHC 497 (Admin) - unsuccessful reasons challenge - Bailii

R (Booth) v MHRT Merseyside [1997] EWHC Admin 816 - unsuccessful reasons challenge - Bailii

R (Demetri) v South West Thames MHRT [1997] EWHC Admin 622 - Bailii

Tribunal delay

R (KB) v MHRT [2002] EWHC 639 (Admin) - Lack of speedy hearings breached Article 5(4).

R (B) v MHRT [2002] EWHC 1553 (Admin) - Lack of speedy hearing breached Article 5(4).

R (KB) v MHRT [2003] EWHC 193 (Admin) - Damages hearing following KB and B cases.

R (C) v MHRT London South and South West Region [2001] EWCA Civ 1110 - Policy of always listing s3 cases after uniform specified period unlawful

Medical member's role

R (RD) v MHRT [2007] EWHC 781 (Admin) - (1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate

R (S) v MHRT [2002] EWHC 2522 (Admin) - medical member's role - Bailii

Other

R (CS) v MHRT [2004] EWHC 2958 (Admin) - Challenge to Tribunal's decision not to discharge patient who was on long-term s17 leave. Claim dismissed.

R (Mersey Care NHS Trust) v MHRT, re D [2003] EWHC 1182 (Admin) - Unsuccessful reasons challenge; RMO can represent Trust, as well as appear as witness, if he notifies MHRT at outset (rough summary)

R (Kelly) v MHRT Merseyside [1997] EWHC Admin 398 - breach of rules of natural justice - Bailii

R (SSHD) v MHRT, re Ogden [2004] EWHC 650 (Admin) - HO not notified of hearing so decision to discharge quashed - Bailii

Classification

Treatability test

Reid v Secretary of State for Scotland [1998] UKHL 43 - (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.

Insert Canons Park case here.

Hutchinson Reid v UK 50272/99 [2003] ECHR 94 - Treatability test not necessary for Article 5(1) compliance (re Scottish removal of this test); breaches of Article 5(4) due to onus being on patient and the delay for the case to come to the House of Lords

R (MacDonald) v MHRT North West Region [1997] EWHC Admin 716 - pre-Reid challenge to non-discharge of untreatable psychopath

Treatment, discharge and recall

R (B) v Ashworth Hospital Authority [2005] UKHL 20 - Can treat for non-'classfied' mental disorder.

R (SC) v MHRT [2005] EWHC 17 (Admin) - In deciding not to discharge, Tribunal can consider disorders from which client is not suffering. Section 75 is compatible with ECHR.

R (AL) v SSHD [2005] EWCA Civ 2 - Can be recalled for a mental disorder of any classification.

R (Hagan) v Anglia and Oxfordshire MHRT [1998] EWHC Admin 1113 - Tribunal found that patient suffered from detainable PD but non-detainable MI; however, they refused to reclassify. Decision not to reclassify quashed, and the matter remitted to Tribunal with a direction that they reach the proper decision

Reclassification

R (Wey) v Pathfinder NHS Trust [1999] EWHC Admin 672 - When the Tribunal has decided on classification, the RMO cannot subsequently reclassify unless there is some change in circumstance of a significant kind which would enable a tribunal to take a different view if the matter were referred to them again. The remedy to the doctor and to the Trust would instead be to apply for judicial review of the decision of the Tribunal

Psychopathic disorder

R (N) v MHRT [2007] EWHC 1524 (Admin) - The Tribunal must ask (1) is the patient suffering from psychopathic disorder (see s1(2))? If yes, (2) is that finding based solely on the fact of sexual deviancy (see s1(3))? Behaviour exhibited when exhibiting sexual deviancy may in part be basis for diagnosis. In this case, there were also separate symptoms. The decision not to adjourn was lawful - Bailii

Ministry of Justice

N.B. On 9 May 2007 the Department of Constitutional Affairs was renamed the Ministry of Justice and took over, amongst other things, the Home Office's Mental Health Unit. Judgments given before that date still refer to the Home Office.

R (X) v SSHD [2000] EWCA Civ 311 - Home Office can repatriate using either Immigration Act 1971 or Mental Health Act 1983 - Bailii

R (Rayner and Marsh) v SSHD [2007] EWHC 1028 (Admin) - (1) Section 75 provides an independent legal device by which the detainee may appear before a judge which is not dependent on the good will of the detaining authority and thus is Article 5 compliant; in any event, the section cannot be incompatible as means exist to operate it compatibly. (2) In order for s75 to be compatible the Secretary of State ought to refer the case of a recalled patient at once (in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. (3) On the facts the delay in making the reference breached Article 5(4).

R (OS) v SSHD [2006] EWHC 1903 (Admin) - Home Office decision not to approve unescorted community leave following MHRT deferred conditional discharge was not unlawful; HO entitled to rely upon separate factors than those considered by MHRT, including absconsion risk flowing from immigration status.

R (RA) v SSHD [2002] EWHC 1618 (Admin) - Power to grant/refuse permission for leave after deferred conditional discharge - Bailii

R (MM) v SSHD [2007] EWCA Civ 687 - Home Secretary has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient, and must have up-to-date medical evidence, but there is no general test laid down by the court. (Appeal dismissed.)

  • R (MM) v SSHD [2006] EWHC 3056 (Admin) - "If, on the basis of medical evidence and other information which the Secretary of State has, he reasonably reaches the opinion that deterioration in the mental condition of the patient is likely to occur in the near future unless he is recalled to hospital, and that such deterioration would put the health and safety of the patient or others at risk, he is entitled to order recall."

R (K) v West London MH NHS Trust [2006] EWCA Civ 118 - The Secretary of State for Health is not obliged to use his best endeavours to give effect to a decision by an RMO to grant leave under s17.

Benjamin and Wilson 28212/95 [2002] ECHR 636 - technical lifer status breached ECHR

R (IR) v Dr Shetty [2003] EWHC 3152 (Admin) - technical lifer status - Bailii

R (Stewart) v Managers of the NW London MH NHS Trust [1997] EWCA Civ 2201 - Part II (civil) and Part III (criminal) powers can co-exist and operate independently of each other. "If he were discharged by the tribunal it would be a discharge in relation to his liability to detention under Section 3 which would in no way affect the Secretary of State’s powers to recall him as a restricted patient"

R (C) v SSHD [2002] EWCA Civ 647 - HO could not exercise discretion to refer case under s71 after MHRT without good reason; evidence lacking at MHRT hearing was not good reason on the facts; following IH (CA) MHRT remains fully seised of case after a D/C/D; decision to refer quashed (rough summary)

R v SSHD, ex p Harry [1998] EWHC Admin 420 - Home Secretary not obliged to follow MHRT recommendations as to transfer of restricted patient to lower security; can look further afield for information and advice; but had to act in a procedurally fair manner, which he had not done

Deprivation of liberty

JE v Surrey County Council, re DE [2006] EWHC 3459 (Fam) - In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority

HL v UK 45508/99 [2004] ECHR 471 - 'Informal' compliant incapacitated patient was deprived of his liberty, with lack of procedural safeguards or access to court, in breach of Art 5(1) and (4)

R (L) v Bournewood Community and Mental Health NHS Trust [1998] UKHL 24

Storck v Germany 61603/00 [2005] ECHR 406 - Breach of Arts 5, 8 for detention in private clinic

Rakevich v Russia 58973/00 [2003] ECHR 558 - Detention and Article 5

Ashingdane v UK 8225/78 [1985] ECHR 8 - Article 5 is concerned with deprivation of liberty rather than mere restriction on liberty (in this case the failure to transfer the patient from high to medium security)

Guzzardi v Italy 7367/76 [1980] ECHR 5 - Article 5(1) is not concerned with mere restrictions on liberty of movement; the starting point must be the concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure; the difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.

Nielsen v Denmark 33488/96 [2000] ECHR 81 - Article 5 and child's admission to a psychiatric ward which had been arranged by his mother

HM v Switzerland 39187/98 [2002] ECHR 157 - HM had capacity to object but was undecided; the clinic were entitled to infer consent from the lack of objection

Challenges to compulsory treatment

R (JB) v Dr Haddock [2006] EWCA Civ 961

R (B) v Dr SS [2005] EWHC 86 (Admin) - 1st JR

R (B) v Dr SS [2005] EWCA Civ 28 - Appeal of 2nd JR

R (PS) v Dr G [2003] EWHC 2335 (Admin)

R (N) v Dr M [2002] EWCA Civ 1789

R (Taylor) v Dr Haydn-Smith [2005] EWHC 1668 (Admin)

R (S) v Collins [1998] EWCA Civ 1349

Nearest relative

Displacement

R (Holloway) v Oxfordshire County Council [2007] EWHC 776 (Admin) - The without-notice interim displacement order under s29, and the subsequent detention under s3, were lawful: (1) neither the culpable failure of the council to inform the NR, nor the failure of the judge to enquire into this, deprived the court of jurisdiction; (2) the safeguards in the Act meant that the interim relief did not cause irreversible prejudice, thus Article 6 was not engaged; (3) (obiter) s6(3) would have provided the Trust with a defence to false imprisonment.

JT v UK (Application no. 26494/95) - Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR where reasonably objected; and to allow exclusion of certain persons from acting as NR.

M v UK 30357/03 [2007] ECHR 206 - Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR on specified grounds

R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) - Sections 26 and 29 incompatible with Article 8

Lewis v Gibson [2005] EWCA Civ 587 - Appeal of interim s29 displacement order. Appeal dismissed - Bailii

London Borough of Barnet v Robin [1998] EWCA Civ 1630 - Unsuccessful appeal against s29 displacement order - Bailii

Extension of s2

R (MH) v Secretary of State for the Department of Health [2005] UKHL 60 - Section 29(4), which extends detention under section 2 during displacement proceedings, can be operated compatibly with Article 5 and so cannot be non-compliant

Consulting NR

R (E) v Bristol City Council [2005] EWHC 74 (Admin) - s11 and practicability of informing NR

Re Briscoe (habeas corpus) [1998] EWHC Admin 771 - "The essence of consultation is the communication of a genuine invitation to give advice and genuine consideration of that advice." Merely informing the NR of s3 admission would not suffice for the purposes of s11(4)

Re Julie John (habeas corpus) [1998] EWHC Admin 472 - Challenge to the use of s2 in an apparent attempt to get round the requirement for consultation before s3. Application dismissed as judicial review was the appropriate form of proceedings

Other

R (PG) v London Borough of Ealing [2002] EWHC 250 (Admin) - The Admin court, following the supercession of RSC Order 53 by CPR Part 54, still retains the power to receive oral evidence and order the cross-examination of witnesses on their witness statements and affidavits

R (SSG) v Liverpool CC (2002) - Gay partner can qualify as nearest relative under six-month residence provision in s26(6) - no bailii judgment

See also the dangerousness criterion cases under "Challenges to hospital managers".

After-care

LGO decision: Medway Council 06/B/12248 and Wigan Metropolitan Borough Council 06/B/12247 (29/4/08) - s117

LGO decision: North Yorkshire County Council 05/C/13158 (24/7/07) - s117

LGO decision: Poole Borough Council 06/B/7542 (5/9/07) - s117

LGO decision: Bath and North East Somerset Council 06/B/16774 (12/12/07) - s117

YL v. Birmingham City Council [2007] UKHL 27 - A care home, when providing accommodation and care to a resident, pursuant to arrangements made with a local authority under ss21 and 26 of the National Assistance Act 1948, is not performing "functions of a public nature" for the purposes of s6(3)(b) of the Human Rights Act 1998 and is thus in that respect not a "public authority" obliged to act compatibly with Convention rights under section 6(1) of that Act - Bailii

Decision of the Social Security Commissioner (2007) UKSSCSC CIS_3760_2006 - Refund of charges wrongfully made by social services authority for s117 residential after-care was not "arrears of income support", so was to be taken into acount as capital in determining the claimant's entitlement to benefit after the date of the payment; the claimant therefore lost her entitlement to income support.

R (B) v London Borough of Lambeth [2006] EWHC 2362 (Admin) - The council's decision to postpone an offer of re-housing until shortly before possession proceedings which it had instituted was putting off the inevitable and amounted to a breach of s117

R (B) v London Borough of Camden [2006] EWCA Civ 246 - Permission to appeal refused - no Bailii link

R (W) v Doncaster Metropolitan Borough Council [2004] EWCA Civ 378

R (Hall) v MHRT [1999] EWCA Civ 2052 - Bailii

Kolanis v UK 517/02 [2005] ECHR 411 - (Conditional discharge/Article 5) - Bailii

See also the cases on Deferred Conditional Discharge above.

s135 warrant

Ward v Commissioner of Police for the Metropolis [2005] UKHL 32 - No power in s135 to insist that named professionals are there when the police officer executes the warrant. Names were surplus to requirements and had no effect on legality

  • Ward v Commissioner of Police for the Metropolis [2003] EWCA Civ 1152 - Implied power for magistrate to impose 'any condition which can sensibly relate to the execution of a warrant in a way which protects the interests of the person liable to be removed whilst furthering the object of the grant of the warrant'. The conditions were not followed so the removal and detention was unlawful

Miscellaneous

Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 - No public interest justification for disclosure of journalist's source

City of Sunderland v PS [2007] EWHC 623 (Fam) - Under inherent jurisdiction the court made orders that (1) PS could lawfully be prevented from leaving residential care unit (2) a receiver would be appointed without the need for a separate application to the Court of Protection.

Local Authority X v MM [2007] EWHC 2003 (Fam) - Inherent jurisdiction case re vulnerable adult

London Borough of Lewisham v Malcolm [2007] EWCA Civ 763 - A possession order cannot be made if it would amount to unlawful discrimination under the DDA 1995, even where the court would otherwise have no discretion to refuse the order

Decision of the Social Security Commissioner (2007) UKSSCSC CSS_239_2007 - Appeal against the removal of entitlement to Severe Disablement Allowance by Social Security (Hospital In-Patients) Regulations 2005 was unsuccessful

Michael Stone v South East Coast Strategic Health Authority [2006] EWHC 1668 (Admin) - The public interest required publication in full of the Michael Stone inquest report; the decision to publish was justified and proportionate, and did not constitute an unwarranted interference with Article 8; no breach of the DPA was involved.

Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375 - Appeal allowed: it was not necessary to show gross negligence. "In order to establish a breach of article 2, on the assumed facts the appellant must show that at the material time the Trust knew or ought to have known of the existence of a real and immediate risk to the life of Mrs Savage from self-harm and that it failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."

Seal v. Chief Constable of South Wales Police [2007] UKHL 31 - Appeal dismissed 3:2 - Bailii

Trust A v H (An Adult Patient) [2006] EWHC 1230 (Fam) - H lacked capacity to decide about medical treatment for her gynaecological condition; it was in her best interests to receive that treatment; appropriate sedation and restraint for pre- and post-operative treatment was lawful

R (T) v Nottinghamshire Healthcare NHS Trust [2006] EWHC 800 (Admin) - unsuccessful challenge to s19 transfer from Rampton to Broadmoor - no Bailii link

R (Wooder) v Dr Feggetter [2002] EWCA Civ 554 - SOAD should give reasons.

R (Munjaz) v Ashworth Hospital Authority [2005] UKHL 58 - The Code of Practice is guidance rather than instruction, but must not be departed from in the absence of cogent reasons; the Ashworth seclusion policy, although deviating from the standards in the Code of Practice, was lawful.

Megyeri v Germany 13770/88 [1992] ECHR 49 - Importance of legal representation - Bailii

R (D) v SSHD [2004] EWHC 2857 (Admin)

W v Egdell (1990) 1 Ch 359 - Independent psychiatrist owes a duty to the public as well as a duty of confidence to the patient. ...

R (Duncan and Mackintosh) v Legal Aid Board [2000] EWHC Admin 294 - JR of LSC

R (P) v SSHD [2003] EWHC 2953 (Admin) - No need for single tribunal to carry out functions of MHRT and Parole Board - Bailii

R (P) v MHRT East Midlands and North East Region [2002] EWCA Civ 697 - Psychopathic disorder can persist for years without causing any abnormally aggressive or seriously irresponsible conduct; it is enough that the disorder of mind has done so in the past and that there is a real risk that, if treatment in hospital is discontinued, it will do so in the future.

  • R (P) v MHRT East Midlands and North East Region [2002] EWCA Civ 260 - Permission to appeal granted on the basis that onus of proof had arguably been placed on the patient; permission to argue that the definition of psychopathic disorder requires the current commission by the patient of either abnormally aggressive conduct or seriously irresponsible conduct.

R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) - The decision of the private psychiatric hospital to change the focus of a ward was a decision "in relation to the exercise of a public function" and so susceptible to JR; the managers were a public authority for HRA purposes. Permission granted

Sheffield City Council v E [2004] EWHC 2808 (Fam) - Capacity to marry

Winterwerp v Netherlands 6301/73 [1979] ECHR 4 - In the court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – this is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.

Crime/restriction orders

Prison law

R (Cawley) v Parole Board [2007] EWHC 2649 (Admin) - The portion of the delay in arranging a hearing which was attributable to the shortage of Parole Board members, a shortage not peculiar to this case, was unjustified under Article 5(4), but no order for damages would be made; the majority of the delay was the claimant's own fault.

R (Brooke) v Parole Board [2007] EWHC 2036 (Admin) - The Parole Board lacks independence for the purposes of Article 5(4) ECHR because of the sponsorship relationship with the Ministry of Justice which is a party to its proceedings

R (Page) v Secretary of State for Justice [2007] EWHC 2026 (Admin) - Challenge to decision not to release early - Bailii

R (Miah) v SSHD [2004] EWHC 2569 (Admin) - Criminal sentence continues after s47 (notional s37) transfer, and after discharge from section; as does any licence period and power to recall for breach.

R (P) v SSHD [2003] EWHC 2953 (Admin) - The ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4).

R (Evans) v Brockhill Prison [2000] UKHL 48

Appeals etc

R v Francis [2008] NICA 6 - Both hospital orders to which the claimant was subject were quashed, on the basis that when sentenced he had not been suffering from severe mental impairment as defined in the Mental Health (Northern Ireland) Order 1986.

R v Ukpabio [2007] EWCA Crim 2108 - The Youth Justice and Criminal Evidence Act 1999 provide the complete statutory scheme for providing evidence via video link, and the court had no jurisdiction to direct that a defendant's evidence be given by video link (NB the 1999 Act has since been amended); however, in exceptional circumstances, it might be appropriate for a defendant to participate by video link, but this did not apply in this case and the refusal of video link facilities did not cause any prejudice; the restriction order was appropriate.

CPS v P [2007] EWHC 946 (Admin) - (1) The fact that a court of 'higher authority' has previously held that a person is unfit to plead does not make it an abuse of process to try that person for subsequent criminal acts. The issue of the child's ability to participate effectively must be decided afresh. (2) Where the court decides to proceed to decide whether the person did the acts alleged, the proceedings are not a criminal trial (3) The court may consider whether to proceed to decide the facts at any stage. It may decide to do so before hearing any evidence or it may stop the criminal procedure and switch to the fact-finding procedure at any stage (4) The DJ should not have stayed the proceedings at the outset as he did without considering the alternative of allowing the trial to proceed while keeping P's situation under constant review. (5) If the court proceeds with fact-finding only, the fact that the defendant does not or cannot take any part in the proceedings does not render them unfair or in any way improper; the defendant's Article 6 rights are not engaged by that process.

R (Surat Singh) v Stratford Magistrates Court [2007] EWHC 1582 (Admin) - (1) The common law defence of insanity is available in the magistrates' court and prevents conviction (though does not necessarily lead to acquittal); (2) section 37(3) allows the magistrate, if satisfied that the accused did the act or made the omission charged, to abstain from convicting or acquitting or considering the issue of insanity, and instead to make a hospital or guardianship order.

R v Dean Johnston [2007] EWCA Crim 1978 - The M'Naghten Rules did not make the insanity defence available where the defendant knew his actions were legally wrong, even if he felt they were morally justified

R (Juncal) v SSHD [2007] EWHC 3024 (Admin) - (1) The common law principle of legality meant that subordinate legislation could not impose arbitrary detention without the authorisation of the enabling act. However, the Order in Council conferring a mandatory hospital order on those unfit to stand trial (without any investigation of the facts of the alleged offence) did not impose arbitrary detention: on the facts, medical evidence had been considered, and, in general, the court could postpone consideration of fitness to stand trial until after the prosecution case if it was likely that there was no case to answer. (2) The detention occurred before the coming into force of the HRA 1998 so any ECHR claim would necessarily fail.

R v Chal [2007] EWCA Crim 2647 - Hearsay evidence admissible in s4A Criminal Procedure (Insanity) Act 1964 proceedings

R v Simpson [2007] EWCA Crim 2666 - Discretionary life sentence with 6 year tariff quashed and substituted with s37/41 order

R (Buckowicki) v Northamptonshire County Council [2007] EWHC 310 (Admin) - The judge's decision to impose a guardianship order is subordinate to the willingness of the local authority to accept the guardianship; the local authority has a wide discretion and were entitled to take the claimant's propensity to be violent and disruptive into account

Beatty v R [2006] EWCA Crim 2349 - Technical lifer's sentence quashed and substituted with s37/41

R v Paula Staines [2006] EWCA Crim 15 - Court of Appeal refused to substitute s37/41 order for discretionary life sentence and s45A

R v Golding [2006] EWCA Crim 1965 - Imposition of restriction order was justified on the facts - no bailii

R v IA [2005] EWCA Crim 2077 - Life sentence or s37/41

Narey v HM Customs and Excise [2005] EWHC 784 (Admin) - s5 CPIA 1964 - Bailii

R v Lomey [2004] EWCA Crim 3014 - CCRC appeal against life sentence; unable now to substitute with s37/41 as no bed and MI no longer of nature or degree; substitution with absolute discharge not justified - Bailii

R (Bartram) v Southend Magistrates Court [2004] EWHC 2691 (Admin) - s37 - Bailii

R (Thompson) v SSHD [2003] EWHC 538 (Admin) - Bailii

Odds and sods

Permission hearings

Re MB [2005] EWCA Civ 1293 - No permission to appeal (Part VII case)

R (Wirral Health Authority) v MHRT [2001] EWCA Civ 1572 - permission to appeal granted

R (J) MHRT North London and East Region [2001] EWCA Civ 1705 - permission to appeal granted

R (P) v MHRT East Midlands and North East Region [2002] EWCA Civ 260 - permission to appeal granted

R (SSHD) v MHRT, re Grey [2002] EWCA Civ 1053 - permission to appeal refused (unexplained delay)

Unimportant cases

R (Kalibala) v MHRT [1996] EWHC Admin 201 - application for leave to move for judicial review adjourned (applicant appeared in person; grounds appeared "scurrilous and vexatious")

R (Baptiste) v Anglia and Oxfordshire Regional MHRT [1997] EWHC Admin 858 - hearing adjourned

R (Warren) v Oxfordshire MHRT [1997] EWCA Civ 1311 - application for leave to move refused (applicant appeared in person; no arguable grounds)

Graham v East London and City MH NHS Trust [2004] EWCA Civ 690 - no evidence of unlawful intent to deprive applicant of her liberty; application refused

Other

Law Society v Legal Services Commission [2007] EWHC 1848 (Admin) - the Law Society cannot find their copy of this, but it's on Bailii