Category

2020 cases

This year's cases have all been entered into the new database: see 2020 cases.


The old category structure shown on this page is comprehensive as it contains every case. The new database structure introduced in 2019 contains fewer cases but is easier to search: see Special:Drilldown/Cases.
The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Unlawful DOL damages London Borough of Haringey v Emile [2020] MHLO 70 (CC)The local authority commenced proceedings seeking payment of £80,913.38 outstanding care fees, and were successful, but ended up also being ordered to pay damages of £130,000 (uplifted to £143,000) for 7 years and 10 months of unlawful deprivation of liberty, and costs following their refusal of an offer to settle. It appealed from the District Judge to a Circuit Judge, unsuccessfully. 2021‑02‑11 23:06:24 2020 cases, Cases, Deprivation of liberty, Judgment available on MHLO, Transcript, Unlawful detention cases


* Capacity to discontinue proceedings Wickham v Riley [2020] EWHC 3711 (Fam)(1) When the claimant served notice of discontinuance of this Inheritance (Provision for Family and Dependants) Act 1975 claim he had capacity to do so, and was not subject to duress or undue influence, so the notice was effective. (2) The court gave permission to issue a second set of proceedings notwithstanding the expiry of the limitation period (one factor being that the decision to discontinue was not a decision taken by a commercial entity after careful consideration but was the almost-certainly unwise decision of a vulnerable just 18 year old under the influence of and on the advice of his mother who was his primary carer). 2021‑01‑30 22:28:50 2020 cases, Cases, Judgment available on Bailii, Other capacity cases


* Southern Irish criminal appeal DPP v Kenna (2020) IECA 265"The appellant seeks to overturn the conviction on the basis that the evidence given by the prosecution’s expert - to the effect that the appellant was not legally insane at the time of the incident - was devoid of cogency, was contradicted by the other evidence, and was otherwise unworthy of any credit. In those circumstances, it is argued that no reasonable jury could have convicted the appellant thereby making the verdict perverse and the appellant’s conviction unsafe." 2021‑01‑29 22:49:45 2020 cases, Cases, Judgment available on Bailii, Miscellaneous


* Southern Irish habeas corpus case SM v Governor of Cloverhill Prison (2020) IEHC 639"This case concerns the circumstances in which otherwise legal detention can be rendered unlawful by a failure to provide appropriate medical treatment, thus entitling an applicant to an order of habeas corpus under Article 40.4 of the Constitution. ... I am not persuaded that, to the extent the applicant’s rights of bodily integrity are breached by the current failure to admit him to the CMH, such a breach is sufficiently egregious or exceptional or fundamental to render unlawful his detention." 2021‑01‑29 22:45:50 2020 cases, Cases, Judgment available on Bailii, Miscellaneous


* Private law restitution claim between public bodies Surrey County Council v NHS Lincolnshire CCG [2020] EWHC 3550 (QB)The local authority successfully brought a private law claim in restitution against the CCG to recover accommodation and care costs of JD, a young autistic man, on the basis that the CCG had made an error of public law when it twice declined to assess whether JR was eligible for NHS care. 2020‑12‑28 21:56:13 2020 cases, Cases, Community care and after-care, Judgment available on Bailii


* Death and religion JB v University Hospitals Plymouth NHS Trust [2020] EWCA Civ 1772The COP had decided that it was in RS's best interests not to receive life-sustaining treatment, including artificial ventilation, nutrition and fluids. On appeal, his niece argued that the decision was unjust because of serious procedural error in that it was taken with an insufficient degree of inquiry into how RS would have wanted to be treated against the backdrop of the tenets of his Roman Catholic faith (and also that the judge breached natural justice and Article 6 by prohibiting cross-examination of RS's wife on the grounds that she was distressed and/or by permitting her to communicate additional evidence by a confidential letter to the judge which was not disclosed to the parties). Permission to appeal was not granted. 2020‑12‑28 21:42:58 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* DOL of child at unregulated placement Lancashire County Council v G (No 3) [2020] EWHC 3280 (Fam)(1) The judge authorised deprivation of liberty at a sub-optimal placement as there was no other option but discharge into the community where she would almost certainly cause herself possibly fatal harm. (2) The judge noted the following points from the Children's Commissioner's November 2020 report entitled "Who are they? Where are they? 2020 - Children Locked Up": "(i) There continues to be a group of children who are being deprived of their liberty in settings which are not deemed appropriate. These children are in need of a placement that can manage the high level of risk that they present whilst holding them securely but there are no such placements available. (ii) There is no official data on the numbers of children who find themselves in this position but it would appear that at there are a significant number of extremely vulnerable children who professionals have decided are in need of a bed in a secure accommodation unit but who are instead are placed in unregulated placement. (iii) There is evidence that, with high numbers of children waiting to be placed, perverse incentives exist for placements to take the children who pose the least risk rather than the children who have the most need. (iv) There are a group of children who fall between the gaps of all placement settings, children for whom secure accommodation is not available or appropriate but who also do not meet the criteria under the Mental Health Act 1983 for admission to a mental health ward." 2020‑12‑12 11:20:32 2020 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* DOL of child at unregulated placement Lancashire County Council v G (No 2) [2020] EWHC 3124 (Fam)(1) The judge concluded that "once again with deep reservations, I am remain satisfied on balance that it is in G's best interests to authorise the deprivation of her liberty in her current placement notwithstanding that the placement is plainly sub-optimal from the perspective of meeting G's identified and highly complex welfare needs and is an unregulated placement". (2) The following observations by the Children's Commissioner in a briefing paper entitled "The children who no-one knows what to do with" (published in November 2020 after the previous judgment in this case) were noted: (a) no work is being done to forecast and co-ordinate provision of secure accommodation and regulated placements in order to match need; (b) there are some 200 children awaiting a place in secure accommodation; (c) during 2018/2019 12,800 children spent some time accommodated in unregulated placements with no regulatory oversight by OFSTED. 2020‑12‑12 11:11:54 2020 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Care, and deputyship Essex County Council v CVF [2020] EWCOP 65The court dealt with three issues: (1) the amount of care and support CVF needed; (2) whether the local authority should replace CVF's mother, JF, as property and affairs deputy (yes); (3) whether JF should be appointed as personal welfare deputy (no). 2020‑12‑12 10:35:19 2020 cases, Best interests, Cases, Deputyship cases, Judgment available on Bailii


* Hybrid order or restricted hospital order R v Nelson [2020] EWCA Crim 1615The Court of Appeal considered the differences between a hybrid order (s45A) and a restricted hospital order (s37/41), the guidance from caselaw and the Sentencing Council's Guideline on "Sentencing offenders with mental disorders, developmental disorders or neurological impairment" which came into effect on 1/10/20. 2020‑12‑03 22:27:05 2020 cases, Cases, Hybrid order cases, ICLR summary, Judgment available on Bailii


* Competence/capacity and puberty blockers Bell v Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)(1) The relevant information that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers, would be as follows: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking puberty blockers go on to cross-sex hormones and therefore that he or she is on a pathway to much greater medical interventions; (iii) the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery; (iv) the fact that cross-sex hormones may well lead to a loss of fertility; (v) the impact of cross-sex hormones on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain. (2) Gillick competence is treatment- and person-specific but the court gave clear guidance that it is highly unlikely that a child aged 13 or under, and very doubtful that a child aged 14 or 15, would ever be Gillick competent to give consent to being treated with puberty blockers. (3) There is a presumption that young people aged 16 or over have capacity to consent but, given the long-term and potentially irreversible consequences and the experimental nature of the treatment, clinicians may well consider that it is not appropriate to move to treatment such as puberty blockers or cross-sex hormones without the involvement of the court, and it would be appropriate to involve the court when there may be any doubt about long-term best interests. 2020‑12‑03 22:16:30 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Unlawful refusal to adjourn telephone hearing GL v Elysium Healthcare [2020] UKUT 308 (AAC)It was wrong for the tribunal to have proceeded with the telephone hearing because: (1) the tribunal had, without investigation, assumed that the patient's flatmate (with whom he was self-isolating to avoid coronavirus) could not overhear; (2) the tribunal had improperly dealt with the patient's anxiety: either it had concluded, without investigation, that the anxiety was without foundation (when he had in fact previously been assaulted because other patients discovered his history), or it had believed the same anxiety would arise at a future hearing (when in fact it arose from the specific circumstances that day); the tribunal should have considered whether his anxiety was genuine and, if so, the impact on his ability to participate; (3) the tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (i.e. telephone) rather than the fear of being overheard that day. 2020‑12‑03 11:19:12 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other Tribunal cases, Transcript, Upper Tribunal decisions


* Expert evidence guidance AMDC v AG [2020] EWCOP 58The court was critical of the jointly-instructed psychiatric reports in this case and provided detailed guidance on how experts' reports on capacity can best assist the court. 2020‑11‑21 23:29:52 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases


* Ex turpi causa Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43The respondent admitted negligently failing to return the appellant to hospital on the basis of her manifest psychotic state, which led to her stabbing her mother to death. The Supreme Court held that the previous case of Gray v Thames Trains Ltd [2009] UKHL 33M could not be distinguished, and should not be departed from, and that therefore the claim was barred by the doctrine of ex turpi causa non oritur actio (illegality). 2020‑11‑09 12:05:39 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous


* Inherent jurisdiction - dispensing with service A Local Authority v B [2020] EWHC 2741 (Fam)It was proper to dispense with service of proceedings on B's father in relation to inherent jurisdiction proceedings seeking a declaration authorising the deprivation of B's liberty at a community therapeutic placement following discharge from section 2 detention in hospital. 2020‑10‑29 22:26:17 2020 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Inherent jurisdiction and DOL Lancashire County Council v G [2020] EWHC 2828 (Fam)A 16-year-old girl was inappropriately placed on an adult mental health ward, there was no secure placement or regulated non-secure placement was available in the UK, the only placement was an unregulated placement that was not prepared to apply to OFSTED for registration, and the alternative was discharge with nowhere to go and a very high risk of fatal self-harm. The judge authorised deprivation of liberty at the unauthorised placement but noted grave reservations about whether the court was really exercising its welfare jurisdiction or simply being forced by mere circumstance to make an order irrespective of welfare considerations. The judge directed the judgment be sent to the Children's Commissioner for England, the Secretary of State for Education, the Chair of the Residential Care Leadership Board, the Minister for Children, the Chief Social Worker, OFSTED and SWCU. 2020‑10‑29 22:10:24 2020 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Inherent jurisdiction Mazhar v Birmingham Community Healthcare Foundation NHS Trust [2020] EWCA Civ 1377Mr Mazhar was removed from his home to hospital without warning by police and paramedics in the middle of the night under the High Court's inherent jurisdiction on the basis of an out-of-hours application. (1) The Trust's application for, and the granting of, the order for which there was no proper evidence and without giving Mr Mazhar the opportunity to be heard amounted to a clear breach of his Article 6 rights and was a flagrant denial of justice. (2) It was unnecessary to decide whether the inherent jurisdiction extends to the making of an order that has the effect of depriving a vulnerable adult of liberty provided the provisions of Article 5 are met. (3) The President of Family Division was invited to consider whether fresh guidance should be given to practitioners and judges about applications of this sort, and the court set out a list of seven clear lessons to be learnt. 2020‑10‑29 21:49:16 2020 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii


* Condition removed from conditional discharge Re E [2020] MHLO 52 (FTT)The tribunal added a condition to the written reasons which was not stated at the hearing: "Abide by the rules applicable to such accommodation in particular to sleep there every night and not to have overnight guests." There had been a clear error of law and the condition was removed: (a) the tribunal had failed to address in its decision why it had made the conditions it made; (b) it was required to provide a brief explanation; (c) it was also required to announce the conditions that the patient was subject to in exact terms, which was crucial given that the patient was being conditionally discharged immediately. [First-tier Tribunal decisions are useful but not binding.] 2020‑10‑20 22:08:33 2020 cases, Cases, First-tier Tribunal decisions, Judgment available on MHLO, Reasons, Transcript


* Video tribunal hearing set aside Re D [2020] MHLO 51 (FTT)(1) The decision in this case was set aside because it was not clear whether or not the patient had a reasonable opportunity to hear all the evidence that was given at the hearing: it was not possible to be sure that the patient had a fair hearing. (2) The patient's microphone had been muted for much of the time after giving her evidence at the outset because she "would not stop talking", but this did not amount to exclusion under Tribunal rule 38. [First-tier tribunal decisions are useful but not binding.] 2020‑10‑20 21:42:23 2020 cases, Cases, First-tier Tribunal decisions, Judgment available on MHLO, Other Tribunal cases, Transcript


* Remote pre-hearing examinations are practicable Re C [2020] MHLO 48 (FTT)(1) A salaried tribunal judge initially refused to allow a pre-hearing examination (PHE) because the coronavirus Pilot Practice Direction states: "During the Covid-19 pandemic it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place, due to the health risk such examinations present." (2) Having treated the rule 46 application for permission to appeal as a rule 6 challenge, a different salaried tribunal judge decided that: (a) the practice direction is subordinate to the rules and overriding objective; (b) in video-enabled hearings with a full panel a PHE is practicable by that means; (c) hearings and PHEs should be conducted remotely as, even if the hospital would allow access, the tribunal will not put its members at risk of contracting or spreading coronavirus; (d) in this case, the PHE would take place by video link on the morning of the hearing. [First-tier Tribunal decisions are not binding.] 2020‑09‑03 23:37:18 2020 cases, Cases, First-tier Tribunal decisions, Judgment available on MHLO, Powers, Transcript


* EAT capacity and litigation friend Stott v Leadec Ltd (2020) UKEAT 263/19The Employment Appeal Tribunal adjourned for a medical report on litigation capacity and commented on the continuing lack of rules rules containing clearly defined powers in relation to proceedings involving protected parties (as defined in Part 21 of the CPR) in employment tribunals and in the EAT. 2020‑08‑29 17:25:13 2020 cases, Cases, Judgment available on Bailii, Litigation friend cases


* Conditional discharge and DOL MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC)(1) Although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by "the different hats approach" (the same judge sitting in the COP and the FTT) or "the ducks in a row approach" (adjournment or deferred conditional discharge). (2) This involves no Article 14 discrimination in favour of incapacitous restricted patients as, under SSJ guidance, the equivalent outcome can be reached for capacitous patients by using s17 leave. (3) The FTT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. (4) The UT discharged the patient subject to conditions of residence, supervision and compliance with "all aspects of the care package" (surprisingly, as the care package would amount to a deprivation of liberty), with permission to apply to the FTT for variation on a material change in circumstances (surprisingly, as the MHA sets out when an application may be made). 2020‑07‑24 21:31:01 2020 cases, Cases, Deprivation of liberty, Discharge conditions, Judgment available on Bailii, Judgment available on MHLO, Transcript, Upper Tribunal decisions


* Insanity legislation and foreign criminals SSHD v MZ [2020] UKUT 225 (IAC)A person sentenced to a hospital order following a finding under CPIA 1964 s5(1)(b) that he "is under a disability and that he did the act or made the omission charged against him" is not subject to s117C Nationality, Immigration and Asylum Act 2002 ("Article 8: additional considerations in cases involving foreign criminals") or paragraphs A398-399 (also concerning deportation of foreign criminals) of the Immigration Rules. 2020‑07‑20 22:39:33 2020 cases, Cases, Judgment available on Bailii, Repatriation cases


* Restricted hospital order instead of life sentence R v Cleland [2020] EWCA Crim 906Life sentence with 7-year minimum term quashed and substituted with s37/41 restricted hospital order. 2020‑07‑20 22:26:00 2020 cases, Cases, Judgment available on Bailii, Sentence appeal cases


* Sexual relations and contact with husband Re SF [2020] EWCOP 15(1) SF lacked capacity in relation to some areas (litigation, care, residence, finances, tenancy, contact with strangers and people who are unfamiliar) but did have capacity to consent to sexual relations and to decide on contact with her husband. The psychiatric evidence was that SF would only have episodic memory ("memory for the personally experienced events of a person’s life, with retention of the details of time and situation in which they were acquired") in relation to contact with strangers, but would have semantic memory ("knowledge which is retained irrespective of the circumstances in which it was acquired [deriving] from the 'feeling' around the memory rather than the 'facts' surrounding the memory") in relation to her husband. (2) The court authorised the deprivation of liberty which existed both when living at her home and (on an interim basis until authorised by the placement) when receiving respite care at a residential supported care provision. 2020‑07‑18 20:31:17 2020 cases, Capacity to consent to sexual relations, Cases, Deprivation of liberty, Judgment available on Bailii


* Capacity to make tribunal application SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)(1) This majority decision confirmed that the test for capacity to make a tribunal application stated in the VS case was correct (that the patient must understand that she is being detained against her wishes and that the First-tier Tribunal is a body that will be able to decide whether she should be released). (2) In a dissenting judgment Sarah Johnston DCP stated that the test should be: "Does the patient want to be free to leave?" (3) The Upper Tribunal decided (again by a majority) that tribunal panel had not erred in striking out the patient's case, and gave detailed procedural guidance, including: (a) if a patient regains capacity then the tribunal should consider inviting the patient to make a fresh application and, having abridged any procedural obligations, proceed to hear the case; (b) anyone can request that the Secretary of State make a reference, including when a patient lacks capacity and wishes to leave hospital: this includes not only the hospital managers and IMHA, but also the tribunal itself, which could adjourn for this purpose instead of immediately striking out the case. 2020‑07‑10 23:49:01 2020 cases, Cases, ICLR summary, Judgment available on Bailii, MHT capacity cases, Upper Tribunal decisions


* Habitual residence Re QD (No.2) [2020] EWCOP 14A legal deadlock had arisen: (a) the English court did not have primary jurisdiction, as QD was habitually resident in Spain; (b) the Spanish court would not exercise its jurisdiction unless QD were in Spain; (c) there was no obligation to return QD there. The coronavirus travel bans meant an "urgent" decision under MCA 2005 sch 3 that he be returned could not be made, so the decision was adjourned for 3-4 months. 2020‑07‑08 14:46:59 2020 cases, Cases, Foreign protective measure cases, Judgment available on Bailii


* Capacity - DOL Sunderland City Council v AS [2020] EWCOP 13(1) The court decided that a CTO patient lacked capacity in all relevant areas (litigation, residence, care and contact). When giving oral evidence the jointly-instructed psychologist changed her mind on: litigation capacity (initially she thought AS had litigation capacity while not having subject matter capacity), residence (she placed insufficient weight on 'structure and routine', which is an integral part of the information relevant to a decision on residence in supported as opposed to independent living), and fluctuating capacity. The judge noted with approval the approach in NICE guidance on "Decision-making and mental capacity" to people with executive dysfunction. (2) The court authorised the deprivation of liberty (there was a high level of supervision throughout the day and night, in the accommodation and community). 2020‑07‑07 16:47:31 2020 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Litigation capacity cases, Other capacity cases


* Recognition of foreign protective measure Health Service Executive of Ireland v Moorgate [2020] EWCOP 12(1) The necessary criteria were met for the recognition and enforcement of protective measures contained in an order made by the Southern Irish High Court which authorised the patient's transfer from a London hospital to a specialist hospital in Leeds. (2) An appendix entitled "Domestic regimes applicable to SM and those in her position" contains the following headings: (a) Application of the MHA; (b) Hospital admission under the MHA; (c) Treatment under the MHA; (d) Representation and support; (e) Challenging detention; (f) Removal of alien patients; (g) Mental Capacity Act 2005 (excluding the provisions of Schedule 3); (h) Inherent jurisdiction of the High Court; (i) Comparison of protections under MHA and under Schedule 3. 2020‑07‑06 14:28:45 2020 cases, Cases, Foreign protective measure cases, Judgment available on Bailii


* Treatment despite religious delusions Sherwood Forest Hospitals NHS Foundation Trust v C [2020] EWCOP 10(1) Having previously undergone two hysteroscopies, and initially consented to removal of her ovaries and fallopian tubes, C disengaged, expressed religious views (such as that only God could cure her cancer), and was assessed as lacking capacity. The judge decided that "she clearly lacked capacity and her rejection of the treatment, which is clinically so manifestly in her best interests, is predicated on a delusional belief structure which manifests itself in the language of religion". (2) The delay in this case, which was attributable to the treating clinicians not initially knowing C had paranoid schizophrenia, and their reluctance to contemplate coercion, should not have happened and likely stressed C and her family, but had not led to neglect of the cancer. 2020‑07‑06 13:47:32 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Deputies and litigation Re ACC [2020] EWCOP 9This case concerned whether, and in what circumstances, a property and affairs deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings. The applicant deputies from Irwin Mitchell wanted to know when a professional deputy may instruct a legal firm with which it is associated and recover the costs from P. The court gave detailed guidance, including a summary of conclusions in an appendix. 2020‑07‑03 22:27:38 2020 cases, Cases, Deputyship cases, Judgment available on Bailii


* Capacity and nutrition/hydration QJ v A Local Authority [2020] EWCOP 7QJ had capacity to decide about nutrition and hydration despite his reluctance to answer certain questions. He was in agreement with the care plan, which included (a) Fortisip; (b) weighing; (c) discharge to a care home; (d) no readmission to hospital if he refuses to accept food or water. 2020‑07‑03 15:34:04 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Medical treatment delay Sherwood Forest Hospitals NHS Foundation Trust v H [2020] EWCOP 5Noting that the delay in bringing the case to court "may mean that a life is lost that could well have been saved", the judge authorised surgical excision under general anaesthetic of a squamous cell carcinoma on Mrs H's left cheek. 2020‑07‑03 14:39:07 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Finely-balanced treatment decision QJ v A Local Authority [2020] EWCOP 3(1) This s21A appeal was adjourned for medical evidence in relation to whether QJ had capacity (a) to decide on whether to receive nutrition and hydration either orally or artificially; (b) to decide more generally on medical treatment; and (c) to decide on admission to hospital. (2) On the day of the hearing QJ had for the first time indicated a willingness to be put on a drip. Even if QJ were now found to have capacity, the case should still come back before the court because: (a) it may very well be a "finely balanced" decision (and so within Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2); and, in any event, (b) where there is already an application in relation to the central issue the matter should only be concluded within court proceedings and not left to clinical decisions. 2020‑07‑03 13:46:57 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Serious medical treatment guidance Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2"This practice guidance sets out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the Court of Protection. The procedure is currently being reviewed within the revised MCA Code. That will, in due course, be subject to public consultation and Parliamentary scrutiny. This guidance is intended to operate until such time as it is superseded by the revised Code." 2020‑07‑03 10:25:21 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases


* Court of Protection permission Re D: A v B [2020] EWCOP 1(1) The appropriate threshold for permission under MCA 2005 s50 is the same as that applicable in the field of judicial review: to gain permission the claimant or applicant has to demonstrate a good arguable case. (2) In the current case, the decision to be made was "whether a good arguable case has been shown that it is in [D's] best interests for there to be a full welfare investigation of the current contact arrangements" and the judge's conclusion was: "I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted." 2020‑07‑03 10:10:38 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Other capacity cases


* Non-application of forfeiture rule Re W [2020] UKUT 155 (AAC)The forfeiture rule ("the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing") can be modified in the interests of justice but not following a conviction for murder. The Secretary of State initially argued that W had been convicted of murder. The Crown Court had found that, in relation to his wife's killing, W was unfit to plead but had done the act. The Upper Tribunal equated this with a finding of not guilty by reason of insanity, which for forfeiture rule purposes amounts to an acquittal, so there was no conviction and the forfeiture rule did not apply. 2020‑06‑25 22:12:27 2020 cases, Cases, Judgment available on Bailii, Miscellaneous


* Protected party - litigation friend Hinduja v Hinduja [2020] EWHC 1533 (Ch)(1) Medical evidence on capacity to conduct proceedings is not required under the CPR, and in this case to require it would not be necessary or in accordance with the overriding objective. The court decided that SP was a protected party. (2) The defendants argued that the proposed litigation friend failed both limbs of the relevant test (ability fairly and competently to conduct proceedings and having no adverse interest). Having considered the tests (including noting that "[w]hether the existence of a financial interest on the part of the litigation friend should debar [her] from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend conducting the proceedings fairly and competently on the protected party's behalf") the court made the appointment sought. 2020‑06‑25 21:33:31 2020 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases


* Inquest determination and findings quashed Rushbrooke v HM Coroner for West London [2020] EWHC 1612 (Admin)The applicant, who had been the deceased's Relevant Person's Representative under a DOLS authorisation successfully argued for the inquest's determination and findings to be quashed. 2020‑06‑25 21:10:36 2020 cases, Cases, Inquests, Judgment available on Bailii


* Change from s3 to s37 during tribunal proceedings GM v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 152 (AAC)The First-tier Tribunal had been right to strike out proceedings arising from a s3 reference when the patient was subsequently made subject to a s37 hospital order. It would be contrary to statutory policy if the tribunal were to retain jurisdiction under an application or reference that was made before the date of the hospital order. 2020‑06‑25 20:55:05 2020 cases, Cases, Change of status after application made, Judgment available on Bailii


* Parole Board representation for those lacking capacity R (EG) v Parole Board [2020] EWHC 1457 (Admin)(1) The Parole Board Rules 2019 introduced a power to appoint a representative "where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner's best interests for the prisoner to be represented". In the absence of anything similar to the accreditation system operating in the MHT (and the LAA's pragmatic approach to the regulation preventing providers from making an application for Legal Aid) a solicitor cannot "assume the dual role of legal representative and litigation friend" and so this appointment power cannot be exercised. (2) The 2019 rules, although silent on the matter, allow for the appointment of a litigation friend because: (a) "other representative" in the expression "solicitor, barrister or other representative" includes litigation friend; and, if that is wrong, (b) as with the 2016 rules, it is allowed when necessary under the general power to make directions. (3) In the absence of an accreditation scheme or other litigation friend, the prisoner needed the Official Solicitor to act if his parole review was to progress; (obiter) the OS has the statutory power to act in Parole Board proceedings. (4) The judge limited her decision to issues concerning EG individually, and criticised counsel for EG and the EHRC for continuing the trend in public law litigation of grounds of challenge evolving during proceedings in a way which lacked procedural rigour (in this case, by raising wider issues including the identification and assessment of non-capacitous prisoners and the Public Sector Equality Duty). 2020‑06‑16 13:07:57 2020 cases, Cases, Judgment available on Bailii, Litigation friend cases, Prison law cases


* Capacity in family case CS v FB [2020] EWHC 1474 (Fam)The judge in this international children law case made an interim declaration that the mother lacked capacity to litigate, to enable the Official Solicitor to be appointed as litigation friend and, with the benefit of legal aid, to investigate for final determination the mother's capacity to conduct these proceedings. 2020‑06‑11 21:03:26 2020 cases, Cases, Judgment available on Bailii, Other capacity cases


* Inquest and DOLS R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738"The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with section 5(2) of the Coroners and Justice Act 2009. ... Jackie was subject to a standard authorisation granted by Blackpool Council pursuant to the Deprivation of Liberty Safeguards set out in Schedule A1 to the Mental Capacity Act 2005. ... Jackie's circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family. She was not there for medical treatment. If she needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care." 2020‑06‑11 20:53:44 2020 cases, Cases, ICLR summary, Inquests, Judgment available on Bailii


* Capacity and sexual relations A Local Authority v JB [2020] EWCA Civ 735"The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations." 2020‑06‑11 20:43:02 2020 cases, Capacity to consent to sexual relations, Cases, Judgment available on Bailii


* Appeal against IPP R v Stredwick [2020] EWCA Crim 650"In this appeal the appellant invites the court to quash the sentence of imprisonment for public protection imposed in 2008 and make an order pursuant to section 37 of the Mental Health Act 1983 ("the 1983 Act") for his admission or continued detention at Ty Gwyn Hall Hospital, Abergavenny. The appellant also invites the court to make an accompanying Restriction Order without limit of time under section 41 of the 1983 Act. The Crown does not oppose this appeal, nor the orders sought." 2020‑05‑21 21:51:40 2020 cases, Cases, Judgment available on Bailii, Sentence appeal cases


* Section status and aftercare Tees, Esk and Wear Valleys NHS Foundation Trust (19 012 290a) [2020] MHLO 21 (LGSCO)"Summary: The Ombudsmen find there was fault by a Trust in giving a family incorrect information about a mental health patient’s status. When this came to light it caused the patient’s wife considerable stress which has not yet been fully addressed. The Ombudsmen also find that fault by a Council meant the patient’s wife suffered this stress for too long. The Ombudsmen has recommended small financial payments to act as an acknowledgement of the outstanding injustice." 2020‑05‑21 21:47:57 2020 cases, After-care, Cases, LGO decisions


* Testamentary capacity Clitheroe v Bond [2020] EWHC 1185 (Ch)"This is a bitter family dispute between the Claimant brother and Defendant sister as to whether their mother, the deceased, had testamentary capacity to make each of her two wills and in addition or in the alternative whether either or both wills resulted from fraudulent calumny." 2020‑05‑21 21:42:00 2020 cases, Cases, Judgment available on Bailii, Testamentary capacity cases


* Successful s45A appeal R v Westwood [2020] EWCA Crim 598"In the circumstances of this case there was a sound reason for departing from the need to impose a sentence with a "penal element". In view of the low level of the appellant's "retained responsibility", the likelihood that for the rest of his life he will need psychiatric treatment and supervision that can most effectively be provided through orders under sections 37 and 41 of the Mental Health Act, and the likely advantages in this case of the regime for and on his release under such orders when compared to an order under section 45A, we consider that that is the right disposal here." 2020‑05‑07 21:54:27 2020 cases, Cases, Hybrid order cases, Judgment available on Bailii


* Direction for postponement of CTO hearing set aside Re B [2020] MHLO 18 (FTT)The initial decision indefinitely to postpone a CTO patient's hearing (in accordance with Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20)) was set aside by the First-tier Tribunal. 2020‑04‑30 10:45:25 2020 cases, Cases, First-tier Tribunal decisions, Powers


* Access to records of deceased patient Re AB [2020] EWHC 691 (Fam)The Access to Health Records Act 1990 states that "[a]n application for access to a health record, or to any part of a health record, may be made to the holder of the record by ... where the patient has died, the patient's personal representative and any person who may have a claim arising out of the patient's death" but limits this as follows: "access shall not be given ... to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death." The two categories are disjunctive and the reference to "a claim arising out of the patient's death" is expressly tied to the second, and not to a personal representative. 2020‑04‑28 19:20:43 2020 cases, Cases, ICLR summary, Judgment available on Bailii, Medical records cases


* Residence and care capacity London Borough of Tower Hamlets v A [2020] EWCOP 21(1) Residence and care decisions are usually considered as individual domains of capacity, in keeping with the MCA's "issue-specific" approach; residence and care decisions involve overlapping information and are not made in separate "silos"; overlap does not mean that a residence decision incorporates a care decision: it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. What was required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her. Although it was agreed that A lacked capacity to decide how she was cared for, it was decided that she had capacity to decide whether to continue to live in residential care or return to live in her own flat with a care package. (2) Legal Aid would have ended had the DOLS standard authorisation ended: in a postscript the judge decided that, as A had no choice until the home care package was available, "the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1 (that "[t]he relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment"). 2020‑04‑26 09:02:36 2020 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Other capacity cases


* Audio recording of neuropsychological testing MacDonald v Burton [2020] EWHC 906 (QB)(1) The defendant was allowed to carry its neuropsychological examination of the claimant without being subjected to any kind of recording of that examination: a level playing field could not be achieved where the claimant had not recorded the examination and testing by his own expert but where the examination testing by the defendant's expert was so recorded. (2) The judge discussed the question of any privilege which may exist in any recordings that are made. (3) The judge hoped that the forthcoming British Psychological Association guidance would recognise the competing interests and would not merely state that psychological examinations and testing should never be recorded. 2020‑04‑23 21:38:21 2020 cases, Cases, Judgment available on Bailii, Miscellaneous


* Direction for all-female panel Re A [2020] MHLO 14 (FTT)In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut. 2020‑04‑14 20:19:50 2020 cases, Cases, First-tier Tribunal decisions, Other Tribunal cases


* All-male and all-female panels CB v SSWP [2020] UKUT 15 (AAC)(1) It was unlawful of the tribunal to hear the ESA appeal in the applicant's absence; the decision was set aside and the case remitted to a new panel. (2) The judgment contains obiter comments about the request for an all-female panel. 2020‑04‑14 14:47:35 2020 cases, Cases, Judgment available on Bailii, Miscellaneous


* Change in status - s3 to guardianship AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC)When the patient had been transferred from s3 detention to s7 guardianship, the tribunal had been wrong to strike out her case for want of jurisdiction. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction. 2020‑04‑12 21:40:41 2020 cases, Cases, Change of status after application made, Judgment available on Bailii, Judgment available on MHLO, Transcript, Upper Tribunal decisions


* Inherent jurisdiction and DOL Hertfordshire CC v K [2020] EWHC 139 (Fam)"In this matter, the question before the court is whether it should grant a deprivation of liberty order (hereafter a DOL order) under the inherent jurisdiction of the High Court in respect of AK, born in 2003 and now aged 16." 2020‑04‑02 15:27:37 2020 cases, Cases, Deprivation of liberty, Inherent jurisdiction cases, Judgment available on Bailii


* Withholding life-sustaining treatment from baby Rotherham Metropolitan Borough Council v ZZ [2020] EWHC 185 (Fam)"It is impossible not to feel that X's life is one of nothing but suffering. As is set out in the cases above, life itself is precious and there is a very strong presumption in favour of preserving life. But X's life is a truly tragic one and certainly reaches a threshold of intolerability. ... His life expectancy is probably no more than a year on the basis of the literature. ... For all these reasons I am clear that it is not in X's best interests that he should be resuscitated or that he should be given life sustaining treatment." 2020‑04‑02 14:48:15 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* Lawfulness and availability of treatment PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)The tribunal had been wrong to find that appropriate medical treatment was "available" for a CTO patient for whom the lack of a SOAD certificate meant that two days after the hearing her treatment could not lawfully be given (unless she were to be recalled to hospital and the administration of her depot were to become immediately necessary). This was the case even though the treatment could have been given on the hearing date: the tribunal should look at the whole course of treatment, not merely a snapshot. 2020‑04‑01 21:30:03 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Powers, Transcript, Upper Tribunal decisions


* Diminished responsibility sentencing R v Rodi [2020] EWCA Crim 330Unsuccessful appeal against s45A and 10-year sentence, in which the November 2018 sentencing guidelines for diminished responsibility manslaughter were applied. 2020‑03‑16 21:51:46 2020 cases, Cases, Diminished responsibility cases, Judgment available on Bailii


* Disclosure of patient's medical information ABC v St George's Healthcare NHS Trust [2020] EWHC 455 (QB)"By this claim brought against three NHS trusts, the claimant contends that the defendants breached a duty of care owed to her and/or acted contrary to her rights under Article 8 of the European Convention on Human Rights in failing to alert her to the risk that she had inherited the gene for Huntington's disease in time for her to terminate her pregnancy." 2020‑03‑16 21:28:33 2020 cases, Cases, Judgment available on Bailii, Medical records cases


* Dental treatment - delay Cardiff and Vale University Health Board v P [2020] EWCOP 8"It might seem, from the above account, that some dental assessment was required quickly and now as long ago as November or early December 2019. Plainly, it was. But the application was only made by the Health Board on 20th February 2020. The proposed inspection and/or treatment is not to take place until early March. For anybody who has had toothache, even delay between now and then looks like an eternity. But this young man, it seems, has been suffering, and significantly so, for nearly five months. This is little short of an outrage. It is indefensible. ... An additional complication arose in November when P was taken to the local A&E by his parents with an obvious bruise to his forehead. They believed that his behaviour was so markedly changed that they feared he had some sort of concussion and may have fractured his skull. It is, to my mind, self-evident that there was an urgent medical emergency that should have been investigated within hours or days, but in fact there has, as yet, been no CT scan at all. ... It is, sadly, yet again, a situation in which there has been a fundamental failure to communicate effectively by those responsible for P's care. This message has now been the conclusion of so many reviews, including serious case reviews, that it has become almost trite. There is no point identifying lessons to be learned if they are not, in fact, learned." 2020‑02‑27 23:29:00 2020 cases, Cases, Judgment available on Bailii, Medical treatment cases


* DOL and common law R (Jalloh) v SSHD [2020] UKSC 4"The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights. A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR." 2020‑02‑19 23:01:08 2020 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii


* Reviewing appointment of legal representative SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC)The tribunal appointed a representative under Tribunal rule 11(7)(b) and later refused to put on record another representative who stated that he was acting on instructions. (1) The initial appointment was unlawful because Form 6b was deficient: the rubric did not mention the 14-day time limit for challenging a delegated decision under Tribunal rule 4. If it had done then the patient's attempt to have a new representative put on record might not have been made too late to be resolved before the hearing. (2) By basing its refusal to review the appointment purely on the appointed solicitor's objection, the tribunal had abdicated its decision-making responsibility and had not given sufficient weight to the presumption of capacity in the face of new evidence of instruction. (3) The decision of the tribunal panel in not discharging the patient was not flawed in any material respect. (4) Neither of the unlawful decisions were set aside as the patient had since been discharged. (5) No damages were awarded as the Upper Tribunal has no power to do so. 2020‑02‑06 23:08:39 2020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Mind summary, Powers, Transcript, Upper Tribunal decisions


* Contingent/anticipatory declarations - MCA/inherent jurisdiction - Caesarean section Guy's and St Thomas' NHS Foundation Trust v R [2020] EWCOP 4R had capacity to make decisions as to her ante-natal and obstetric care but there was a risk that she would lose capacity during labour and refuse a Caesarean section. (1) MCA 2005 s16 (Powers to make decisions and appoint deputies: general) applies only to those who currently lack capacity. (2) MCA 2005 s15 (Power to make declarations) is not so limited and so can authorise contingent declarations. (3) Deprivation of liberty cannot be authorised by s15 but the inherent jurisdiction may be utilised to fill that lacuna which would otherwise render the s15 power nugatory. 2020‑01‑30 18:54:37 2020 cases, Cases, Deprivation of liberty, Inherent jurisdiction cases, Judgment available on Bailii, Medical treatment cases


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