October 2009 update


  • KD and LD v LB Havering [2009] EW Misc 7 (EWCOP)At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article 6, and arguably Article 8, in that P's mother was not in court to provide instructions and there was a distinct possibility that she lacked litigation capacity. Considering the difficulties involved, including delay, it was no answer to allow the mother to bring parallel proceedings by way of an application to vary. (4) It was procedurally unfair to to proceed without awaiting the OS's instructions. (5) The judge was minded to consider that the outstanding expert report was no longer appropriate, but it was a wrongful exercise of discretion and procedurally unfair not to allow representations as to why nonetheless it was appropriate to wait. (6) It was wrong to make such a sweeping order delegating unfettered future management power, without the necessary review procedures; it was particularly wrong to do so without warning to or hearing from the parties, which in the mother's case was a disproportionate breach of Article 8. (7) The personal welfare deputy was appointed without a proper examination of the statutory and procedural requirements, in breach of the procedural rights of the mother as they then appeared; it was also unsatisfactory that instructions from the OS were not awaited.§
  • R (E) v Governing Body of JFS (No 2) [2009] UKSC 1If the LSC decide fund a successful litigant, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party; the LSC's decision not to continue funding without a protective costs order against the appellent was unlawful and public funding was therefore to continue.§
  • R (C) v SSJ (2009) EWHC x (Admin)The decision to make C subject to polygraph testing as a condition of his licence did not breach the his Article 8 rights given the seriousness of his offences and his attitude to them; that the scheme was a pilot in his geographical area did not amount to discrimination under Article 14.§
  • R v Ghulam (2009) WLR (D) 303 — Click on link to view page.§
  • ITW v Z [2009] EWHC 2525 (Fam) — Click on link to view page.§
  • AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC)An application made while a patient is detained under section 2 or 3 does not lapse when the patient is made subject to a CTO, as s72(1) (powers of tribunals) should be given a literal construction. Preliminary points: (1) Discussion on Law Society guidance and cases where client lacks full capacity. The Upper Tribunal has no power to appoint a litigation friend or equivalent, and the OS's powers and duties apply to court proceedings not tribunals; in any event, justice did not require a litigation friend as the potential "best interests" argument was argued by other parties. (2) It was not unlawful for a First-tier Tribunal judge to consider an application for permission to appeal from, or a review of, his own decision.§
  • R (PP) v SSJ (2009) 2464 (Admin) — Click on link to view page.§
  • R (X) v SSJ [2009] EWHC 2465 (Admin)The Secretary of State had rejected an application for escorted community leave because of the nature of the index offence and the perspective of the victim's family. (1) The decision was quashed because neither the question of risk to others nor the positive benefits to the patient had been considered (irrationality, failure to take into account relevant considerations and considering irrelevant ones). (2) The reasons presented in the summary grounds of defence were patently not the reasons for the decision.§
  • R (McKinnon) v SSHA [2009] EWHC 2449 (Admin)Asperger's Syndrome hacker extradition case: no permission to apply for JR on Article 8 grounds; no certificate on points of law of general public importance on the Article 3 grounds; no permission to appeal.§
  • R (AB) v SSJ [2009] EWHC 2220 (Admin)Continued detention of pre-operative male-to-female transsexual in male prison breached Article 8 and was Wednesbury unreasonable.§
  • ‎SCA Packaging Ltd v Boyle [2009] UKHL 37Under the Disability Discrimination Act 1995 an impairment which is treated or corrected is counted (in law) as causing disability if it (in fact) would be likely to cause disability if untreated or uncorrected: "likely" here does not mean "probable" but means "could well happen". The employee was therefore disabled and the employer was under a duty to make reasonable adjustments.§
  • ‎R v Pedley, Martin and Hamadi [2009] EWCA Crim 840(1) Guidance on the proper construction of the 'significant risk' test created by section 225 Criminal Justice Act 2003 for passing sentences of imprisonment for public protection (IPP) or other indeterminate sentences. (2) Such sentences are Convention compliant.§
  • ‎Jansons v Latvia [2009] EWHC 1845 (Admin)It would be oppressive under s25 Extradition Act 2003, and contrary to his Article 8 rights, for the Latvian criminal to be extradited, because there was a substantial risk that he would commit suicide.§
  • ‎Dzikowski v GMC [2009] EWHC 1090 (Admin)The GMC's decision that it was necessary for the protection of patients and in the public interest for the appellant consultant psychiatrist's name to be erased from the Medical Register was lawful.§
  • ‎Cheltenham Borough Council v Laird [2009] EWHC 1253 (QB)The council unsuccessfully sued its former employee for damages for making, by failing to disclose her full psychiatric history, fraudulent or negligent misrepresentations in a job application.§
  • ‎Bury Metropolitan Borough Council v D [2009] EWHC 446 (Fam)It was lawful for the local authority to remove a child from its mother immediately at birth without informing the mother of its intentions.§
  • ‎Stockton On Tees Borough Council v Aylott (2009) UKEAT 0401/08/1103The decision in Malcolm on the correct comparator in disability-related discrimination cases also applies to employment cases.§
  • R v Grant [2008] EWCA Crim 1870Based on recently-obtained medical evidence that the appellant's significant learning disability and unfitness to plead was masked by his external demeanour and physical appearance, his conviction (and 3-year community order) was quashed and substituted with a verdict of not guilty by reason of insanity (and a 2-year supervision order).§
  • NHS Hospital Trust v A (a child) [2007] EWHC 1696 (Fam)Bone marrow transplant on baby lawful despite parents' refusal to consent.§
  • W v Egdell [1989] EWCA Civ 13Independent psychiatrist owes a duty to the public as well as a duty of confidence to the patient. (Independent doctor disclosed his unfavourable report directly to the RMO. Claim for breach of confidence dismissed.)§


Legal aid

  • "Civil bid rounds for 2010 contracts - Q&A available" - All questions submitted by Friday 6 November will be answered in a final version of the Q&A document to be published on Friday 13/11/09. Version 10 of the Q&A is dated 30/10/09. See Legal Aid#CLS News
  • "Tendering timetable: 2010 civil and crime legal aid contracts" - The new civil legal aid contract will come into effect on 1 October 2010. The bid round for non-immigration civil work is planned for the week beginning 8 February 2010, and will be open for seven weeks. See Legal Aid#CLS News
  • "New matter starts - guidance to firms approaching their contract limit" - The LSC are running out of money so will remove matter starts from firms unlikely to use them; if they can afford it these will be reallocated; consideration will be given to modest increases for firms at imminent risk of running out, but generally they will look at "access to services" across the procurement area as a whole as opposed to individual provider level. See Legal Aid#CLS News


  • Dept of Health's list of supervisory body contact details updated again on 30/10/09. See DOLS
  • Dept of Health updated their list of IMCA organisations. See IMCA


  • The books section was offline for a while but is now working again. See Books