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[[Category:Case law - transcript or no transcript]]
[[Category:Case law - transcript or no transcript]]

Revision as of 21:52, 5 October 2008

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.

Page and summaryDate added to siteCategories
West Sussex County Council (24 017 091) [2025] MHLO 15 (LGSCO) — 
No complaint without consent Ombudsman's summary: "We will not investigate this complaint about the Council’s response to safeguarding and other actions relating to Mrs X’s mental capacity assessment. This is because we do not have consent from Mrs X to investigate, and nor do we believe Mrs Y can make a complaint about these actions, on Mrs X’s behalf, as her representative."

External links

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2025-07-032025 cases, Cases, Judgment available on MHLO, Miscellaneous cases, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Sophie Cotton (Durham Constabulary) [2025] MHLO 14 (PFD) — 
"Right Care Right Person" PFD report The police refused three times to carry out a welfare check, under "Right Care Right Person" (and another time refusing a 999 call because there had been no suicide threat that day). The family then forced their own way into the home and found the deceased hanging by a ligature. The matters of concern (paraphrased) were that: the police refused to attend even when a family member was expressing the view that there was a real and immediate risk to life; the family were advised to contact mental health services who lacked power to enter locked premises; the refusal continued despite four calls and three callers (including two professional callers); the procedure for supervisor review of negative RCRP decisions causes additional delay.
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2025-06-302025 cases, Cases, Inquest cases - PFD reports, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Re Pellumb Olaj (Islington Council) [2025] MHLO 13 (PFD) — 
Potentially preventable suicide The matters of concern are: "Mr Olaj had paranoid schizophrenia and had attempted to kill himself in the past, including by trying to jump from a high window on more than one occasion, but Islington Council failed to take that into account in 2020 when housing him in a sixth floor property. I heard at inquest that, in preparing for inquest (not immediately following Mr Olaj’s death), Islington has now recognised the need to take such matters into account, but I am not clear that it has mapped a way to do this for new and existing tenants."

CASES DATABASE

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2025-06-122025 cases, Cases, Inquest cases - PFD reports, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Spivak v Ukraine 21180/15 [2025] ECHR 136 — 
Conditions and review of detention Breaches of Article 3 and Article 5 arising from psychiatric detention. This extract shows how much better oral hearings in hospital are in principle compared with court or paper-based hearings held elsewhere: "The applicant did not attend any of the court hearings; each time he signed a pre-typed request for the case to be considered in his absence. According to him, he - like other patients - had been forbidden by the Dnipro hospital administration to attend the court hearings and had been forced to sign waivers of his right to participate."

Essex search<mw:editsection page="Category:Transcript" section="1">Essex search</mw:editsection>

This case's neutral citation number appears in the following newsletters:
2025-06-122025 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Miscellaneous cases, Pages using DynamicPageList3 parser function, Transcript
KH v Nottinghamshire Healthcare NHS Foundation Trust [2025] UKUT 128 (AAC) — {{Case

|Date=2025-04-10 |NCN=[2025] UKUT 128 (AAC)M |ICLR=[2025] WLR(D) 308B |ICLR ID=2025003726 |Essex issue=151 |Essex page=30 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=Nottinghamshire Healthcare NHS Foundation Trust, Avon and Wiltshire Mental Health Partnership NHS Trust, Law Society, KH, AH |Sentence=Discharge of rule 11(7)(b) appointments |Summary=(1) In KH's case the representative asked for the rule 11(7)(b) appointment to be discharged on the basis that the patient had capacity and objected. The tribunal's reasons for refusing were inadequate: it was not clear that the RC or the tribunal had applied the appropriate capacity test; using the words "As such..." following a recitation of the conflicting evidence on capacity was insufficient in the absence of any analysis or evaluation; no reasons were given on best interests; no thought was given to the potential for causing distress by imposing an unwanted representative; there was no indication that the matter was kept under review. The decision had the unintended effect of reducing the effective participation of the patient, as he could not cross-examine and it appeared that neither did the representative. (2) In AH's case the tribunal did discharge the appointment, on the basis of objection and distress, but its reasons were inadequate because it failed to consider whether the patient might regain capacity with support and whether an adjournment might achieve greater participation. An adjournment cannot be used to see whether improvement will increase chances of discharge, but can be to facilitate ability to participate meaningfully. (3) In each case it could not be said with confidence that the outcome would otherwise have been the same, so the error was material and the appeal allowed. |Detail===Thanks== Thanks to Amy Romero (Bisons Solicitors) for providing the judgment.

2025-05-152025 cases, Cases, ICLR summary, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Pages using DynamicPageList3 parser function, Transcript
Medway Council (24 010 714) [2025] MHLO 6 (LGSCO) — 
Complaint about MHA assessment not upheld LGSCO Summary: "We will not investigate Miss X’s complaint about the decision to detain her under the Mental Health Act, or about how staff entered her home and transported her to hospital. This is because it would have been reasonable for Miss X to appeal to the mental health tribunal about the decision, and because we are unlikely to add to the responses she has already received from the Council."
2025-03-122025 cases, Cases, Judgment available on MHLO, Miscellaneous cases, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Devon County Council (24 005 923) [2025] MHLO 5 (LGSCO) — 
Section 117 complaint not upheld LGSCO's summary: "We found no fault on the part of a Council, Trust and Integrated Care Board in terms of their handling of Miss X’s section 117 aftercare."
2025-03-122025 cases, After-care, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
R v Ansell [2023] EWCA Crim 1529 — 
Appeal against life sentence The unrepresented appellant sought to appeal his life sentence, essentially on the basis that his mental health problems had not properly been addressed at trial, and sought an extension of time of over 20 years as "I did not know until now I could appeal under the Mental Health Act". He was unsuccessful: his mental health problems were known at the time, diminished responsibility had not been raised at trial, and he had been convicted of murder for which the only possible sentence is life.

Thanks

Thanks to Rossi Keogh (Crimeline) for providing the judgment.

CASES DATABASE

Full judgment: ..→

2025-02-132023 cases, Cases, Judgment available on MHLO, Judgment missing from Bailii, Pages using DynamicPageList3 parser function, Sentence appeal cases, Transcript
R (Gould) v Devon County Council [2025] EWHC 96 (Admin) — 
Closure of drop-in facilities This challenge to the council's decided to North Devon Link Service, which provided drop-in facilities for adults with mental health difficulties, was made on the basis that it had failed to take account of statutory duties (under under ss2, 3, and 5 Care Act 2014 and s2B National Health Service Act 2006) and its policies and strategies, and was irrational.

External links

CASES DATABASE

Full judgment: BAILII
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2025-02-102025 cases, Cases, Community care, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript
Knowsley Metropolitan Borough Council (24 013 803) [2024] MHLO 7 (LGSCO) — 
No Ombudsman investigation during court proceedings Ombudsman's summary: "We will not investigate Mr X’s complaint about the Council’s decisions or its assessments about Ms Y’s care and support needs. The matter is being considered by the Court of Protection and the law will not allow us to consider a complaint where court action has already started."

External links

CASES DATABASE

Full judgment: No Bailii link (neutral citation is unknown or not applicable)
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2025-02-072024 cases, Cases, Community care, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Buckinghamshire Council (24 003 060) [2024] MHLO 6 (LGSCO) — 
Section 117 top-up fees Ombudsman's summary: "Mrs X complained about top-up fees for accommodation without [there being offered] a suitable and affordable alternative. We did not find fault with the accommodation the Council offered. We found fault with some communication and recommended the Council and the NHS Trust apologise for any distress this caused to Mrs X."
2025-02-052024 cases, After-care, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
IN v St Andrew's Healthcare [2024] UKUT 411 (AAC) — {{Case

|Date=2024-11-10 |NCN=[2024] UKUT 411 (AAC)M |Essex issue=147 |Essex page=16 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=IN, West London NHS Trust, Law Society |Sentence=Rule 11(7)(a) and lack of express instructions |Summary=The patient had not appointed a representative but did not wish to conduct his own case, so a representative was appointed under rule 11(7)(a). The patient refused to engage or provide instructions. The solicitor sought an adjournment and said she would not remain as an observer if it were refused, but the tribunal refused to adjourn. The Upper Tribunal said that: (1) Such appointments operate as a retainer (citing a previous case which did not say that). The solicitor should have acted upon inferred instructions to test the detaining authority’s case for his continued detention, because that is the whole purpose of a hearing of a s68(2) reference and the patient preferred to be represented. It was appropriate to seek an adjournment but inappropriate to leave or threaten to leave. (2) When capacity to provide instructions is in issue, the tribunal is not precluded from relying on evidence from the RC or other witnesses, but must consider potential conflicts of interest and the witness's understanding of the relevant issues. (3) The Tribunal’s failure to explain (a) how it balanced the competing factors for and against granting an adjournment, and (b) why it was in the interests of justice to proceed with the hearing in the absence of both the patient and his representative, rendered its reasons for refusing the adjournment application inadequate. The Legal Aid implications were not mentioned. |Detail===Judicial summary==

Judicial Summary

The right of a detained psychiatric patient to have their detention reviewed timeously is a very important right, as is the right to a fair hearing. The Mental Health Act 1983 and the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 contain important safeguards to protect those rights. This case demonstrates how tensions can arise between them.

This decision concerns a tribunal’s decision making around whether to adjourn or to proceed with a hearing from which both the patient and the patient’s appointed representative are absent, as well as what the tribunal must say in its reasons to clear the required hurdle of ‘adequacy’.

I give guidance to the First-tier Tribunal, and to parties and representatives in the First-tier Tribunal, about what to do when a patient with a representative appointed under Rule 11(7)(a) of the first-tier tribunal rules makes a capacious decision not to engage with their representative to provide instructions. I say that the patient should not be left unrepresented and the representative should conduct the hearing on the basis that their implicit instructions are to test the legal test for the patient’s continued detention.

I decide that where a patient’s liberty is at stake, and where the patient will be neither present nor represented at the hearing, there is a significant risk that the disposal of the proceedings will involve an unlawful interference with the patient’s Article 5(4) rights. In such circumstances, if a tribunal is to proceed to dispose of the appeal, it must explain specifically how and why it concluded that doing so was in the interests of justice. It is not enough to simply state that it decided that it was so.

2025-02-052024 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Other Tribunal cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Wirral Metropolitan Borough Council (23 010 463) [2024] MHLO 5 (LGSCO) — 
Clozapine management - MHA assessments Ombudsman's summary: "We uphold Mr X’s complaint about his brother, Mr Y’s, care and treatment. There was a short break in Mr Y’s medication management. We also found Mr X was not informed [as NR] about one of Mr Y’s Mental Health Act assessments. However, we have not found a significant injustice arising from these actions. There was fault with the Trust and the Council’s complaint handling, but sufficient steps have already been taken to address this."
<div class="medium-4 columns noexcerpt" style="border-left:1px solid ..→
2025-01-302024 cases, Cases, Consulting NR, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Leeds City Council (24 001 390) [2024] MHLO 4 (LGSCO) — 
Section 117 charging Ombudsman's summary: "Mr X complained the Council had started to charge him for transport services although he believed he was eligible for s117 aftercare and should not pay charges. The Council has provided evidence he was not eligible for free aftercare. Following an investigation into Mr X’s complaint about the unreliability of the transport service, and his decision to arrange alternative provision, the Council has now waived all charges. The complaint will not be investigated further as there is no outstanding injustice."

External links

2025-01-302024 cases, After-care, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
JB v Elysium Healthcare [2025] UKUT 9 (AAC) — 
Mistake of fact - availability of treatment Audio recordings made by the patient immediately after the tribunal showed that the RC had lied about intending to resume psychological therapy. On the basis of those recordings, the UT set aside its original refusal to grant permission to appeal, and now decided that the tribunal had been labouring under a mistake of fact amounting to an error of law. It was not clear what the decision would otherwise have been (the tribunal referred to other treatment but attached particular importance to psychology) so the error was not immaterial. The case was remitted for re-hearing by a new tribunal. The UT noted, from previous authority, that: (1) appropriate medical treatment cannot be said to be "available" to a patient if the detaining authority is unwilling to provide it; (2) to establish a mistake of fact amounting to an error of law: (a) the mistake must be on an existing fact (including ..→
2025-01-212025 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other Tribunal cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
AM v Greater Manchester Mental Health NHS Foundation Trust [2024] UKUT 438 (AAC) — 
Non-disclosure of victim's statement except to patient's lawyers (1) An interim non-disclosure order was made under rule 5 allowing disclosure of the victim's statement only to AM's lawyers. That order was continued under rule 14(2), but the tribunal failed properly to consider either limb of that rule (involving likelihood of serious harm and the interests of justice respectively). This procedural irregularity was capable of making a material difference to the outcome or the fairness of the proceedings (by restricting the ability of AM’s representatives to cross-examine and obtain evidence about an proposed exclusion zone variation) so was an error of law. (2) In relation to materiality, the UT judge stated that there are three "possibilities" in relation to procedural and other irregularities: "(a) the irregularity made a difference; (b) it did not make a difference; and (c) it ..→
2025-01-152024 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Non-disclosure, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Dr A Malik v Cygnet Behavioural Health Ltd (reconsideration) [2021] MHLO 7 (ET) — 
Unfair dismissal and whistleblowing The claimant sought reconsideration as the original decision contained no specific decision in relation to one of the argued detriments, part 1 of which was her suspension in relation to administration of covert medication, and part 2 of which was the inadequate appeal against dismissal. Part 1 was presented out of time but part 2 was presented in time. The tribunal rejected the respondent's argument that its Article 6 rights would be breached by a finding being made months after the trial, but went on to decide that the appeal was part of the dismissal so was excluded as a detriment and, an any event, was not motivated by the public interest disclosures.

External links

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2024-12-022022 cases, Cases, Judgment available on MHLO, Miscellaneous cases, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Leonard Leonard [2024] EWHC 321 (Ch) — 
Testamentary capacity Detailed discussion of the test for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549.

CASES DATABASE

Full judgment: BAILII
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Date: 20 February 2024 ..→

2024-10-192024 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Testamentary capacity cases, Transcript
AC v Southern Health NHS Foundation Trust [2024] UKUT 297 (AAC) — 
Change in status - C/D to recalled An application to the tribunal was made by a conditionally discharged patient. The tribunal lost its jurisdiction on the application when the patient was recalled.

Judicial summary

AC was a conditionally discharged restricted patient who made an application to the First-tier Tribunal but was then recalled by the Secretary of State before the application had been decided. The First-tier Tribunal lost its jurisdiction on the application.


External links

2024-10-012024 cases, Cases, Change of status cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript
Re G (absolute discharge) [2023] MHLO 4 (FTT) — {{Case

|Date=2023-02-24 |Court=First-tier Tribunal |Judges=K Chahal, P Egleston |Parties=G |Sentence=Absolute discharge of imprisoned conditionally discharged patient |Summary=In this decision the First-tier Tribunal sets out its reasons for absolutely discharging a conditionally discharged patient who at the time was an imprisoned lifer many years pre-tariff. Permission to publish this decision was subsequently granted by the FTT. |Detail===Thanks== Thanks to Joseph Railton (patient's representative) of Conroys Solicitors for providing the judgment.

2024-06-032023 cases, Absolute or conditional discharge cases, Cases, First-tier Tribunal decisions, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Re A (publication of MHT decision) [2023] MHLO 3 (FTT) — {{Case

|Date=2023-03-24 |Court=First-tier Tribunal |Judges=Sarah Johnston |Parties=A |Judicial history first case=Re A (all-female panel) [2020] MHLO 14 (FTT) |Sentence=Open justice in the First-tier Tribunal |Summary=Permission to publish the First-tier Tribunal decision (which was an interlocutory decision setting aside the initial refusal of the patient's request for an all-female panel) was granted. The Deputy Chamber President took into account that "departing from the open justice principle can only be justified in exceptional circumstances when [it is] strictly necessary to secure the proper administration of justice" and that "in circumstances where the patient wants the decision to be published on the website and thereby waives her privacy, the balance falls in favour of publication". She noted that there were no exceptional circumstances for departing from the open justice principle, that she had taken into account the contents and nature of the decision and the level of redaction and anonymity, and that all cases will be considered on their own merits. The patient's argument that permission to publish was not necessary was rejected. |Detail===Note== The Deputy Chamber President has asked that the following statement be published: "Permission has been granted by the First Tier Tribunal to publish this case on the MHLO website. This is not a reported judgement. The decision is only made in relation to this case and as a decision of the FTT, there is no obligation on any other FTT judge or panel to follow this."

2024-06-022023 cases, Cases, First-tier Tribunal decisions, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
SS v Cornwall Partnership NHS Foundation Trust [2023] UKUT 258 (AAC) — {{Case

|Date=2023-10-22 |NCN=[2023] UKUT 258 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=SS, Cornwall Partnership NHS Foundation Trust |Cites=AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73# R (Ashworth) v MHRT; R (H) v Ashworth [2001] EWHC Admin 901 |Sentence=Adjournment for aftercare evidence |Summary=At a s3 tribunal the evidence was that the patient had been well enough for discharge for some time, if a suitable robust package of care and support could be provided, but that for bureaucratic and other reasons it had been difficult to discharge him from the PICU ward. That tribunal panel adjourned for further aftercare information but seven weeks later, in similar circumstances, despite some progress, the next panel refused to adjourn again. The patient appealed that refusal, and all three grounds of appeal were successful. (1) This was not a case where aftercare information would have been irrelevant to the decision (AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 distinguished); rather it was a case in which the tribunal should have adjourned owing to "uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends" (R (H) v Ashworth Hospital Authority [2002] EWCA Civ 923 applied). (2) The common law requires that a party should not be disadvantaged by an absence of evidence which is under the control of another party (especially where the party who controls the evidence is a State agency with duties to provide the evidence in relation to an individual whom it is detaining) and his Article 5 rights can only be protected effectively if the tribunal has the information it needs; the decision not to adjourn was procedurally unfair because it deprived SS of the opportunity to mount an effective challenge to his detention. (3) The tribunal relied on the possibility of a further application in the near future, but the periodic right to apply might not be exercised and could not in any event remedy procedural unfairness in the existing proceedings; its decision amounted to an abdication of its role, and rather than avoiding delay it was kicking the can down the road for the next tribunal to deal with. In his concluding remarks the UT judge stated: "The only reasons not to adjourn for aftercare information would be either because it is not relevant because the patient had not reached the stage at which discharge was a realistic prospect, or because there was no realistic prospect of such aftercare information being produced." The case was remitted to the FTT with directions for further evidence. |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors) for providing the judgment.

2023-11-152023 cases, After-care, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions
ML v Priory Healthcare Limited [2023] UKUT 237 (AAC) — 
Discharge to MCA detention A s47/49 post-tariff lifer sought a notification that if he were a s37/41 patient he would be entitled to conditional discharge (with 24-hour support and medication being governed by the MCA) and a recommendation that he remain in hospital pending release. The MHT refused, believing that "the only environment where his medication regime can be enforced is in hospital". This refusal was based on errors of law: (1) the tribunal was under the misapprehension that there was no way for it to coordinate the MHA proceedings with an MCA authorisation, and it made its decision on the s72(1)(b) detention criteria without reference to the possibility that an alternative framework for managing the patient was available; (2) its reasons were inadequate as it had ignored the central argument that there was a less restrictive alternative to hospital detention.

==Judicial summary from ..→
2023-10-102023 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Reasons, Transcript, Upper Tribunal decisions
SF v Avon and Wiltshire Mental Health Partnership NHS Trust [2023] UKUT 205 (AAC) — {{Case

|Date=2023-08-16 |NCN=[2023] UKUT 205 (AAC)M |ICLR=[2023] WLR(D) 438B |ICLR ID=2023005387 |Essex issue=134 |Essex page=48 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=SF, Avon and Wiltshire Mental Health Partnership NHS Trust, RB |Sentence=Appropriate medical treatment |Summary=The First-tier Tribunal erred in law in deciding that "appropriate medical treatment" was available because its decision was based on two misunderstandings: (a) that interventions which had the purpose merely of containing risk of physical harm were capable of amounting to "medical treatment"; and (b) that medical treatment may be "appropriate" even where it is "not tailored to [the patient's] diagnosis", and where treatment that is "essential" is not available. |Detail===Thanks== Thanks to Angela Wall (Butler Solicitors, solicitor for SF) for providing the judgment.

2023-08-242023 cases, Cases, ICLR summary, Judgment available on Bailii, Judgment available on MHLO, Other Tribunal cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
AC v Cornwall Partnership NHS Foundation Trust [2023] MHLO 1 (UT) — {{Case

|Date=2023/03/22 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Wikeley |Parties=AC, Cornwall Partnership NHS Foundation Trust |Sentence=Adjournment and recommendations |Summary=The tribunal panel refused the s3 patient's adjournment request (which was on the basis of a lack of aftercare planning) though it indicated that it would be revisited if aftercare information proved necessary to decide on discharge. It refused to make a statutory recommendation but made an extra-statutory recommendation about transferring hospital and appropriate accommodation. Permission to appeal having been refused by the FTT and UT, the patient now renewed her application for permission. (1) The patient argued that the adjournment refusal was procedurally unfair, but the UT decided that: (a) in high-level terms, case management rulings should only be interfered with when "plainly wrong"; and (b) specifically, the panel's decision was consistent with caselaw in the mental health jurisdiction. (2) The patient also argued that the type of recommendation made undermined the purpose of the statute, given that a statutory recommendation was possible, but the Upper Tribunal decided that the panel had concisely explained a rational basis for its decision and was entitled to take the view that it should not get involved in the onward supervision of the patient's care. (3) The UT set out the test to be applied for permission to appeal: "I must find that the proposed grounds of appeal are arguable, in the sense that there is a realistic prospect of success in showing that the First-tier Tribunal went wrong in law in some way." [The Court of Appeal has expressed this differently: "The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. ... The court can grant the application even if it is not so satisfied. ... For example ... public interest ... or ... the law requires clarifying."] (4) The UT noted the courts' approach to expert tribunals' decisions: (a) it is probable that such a tribunal got the law right, decisions should be respected unless it is quite clear the tribunal misdirected itself on the law, and courts should not rush to find misdirections just because of the tribunal's conclusions on the facts (the UT judge christened this "the Lady Hale principle"); and (b) judicial restraint should be exercised when reasons are being examined, and the court should not assume a misdirection too readily just because not every step in its reasoning is fully set out (christened "the Lord Hope principle"). |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors, patient's representative) for providing the judgment.

2023-03-222023 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions
PC v Cornwall Partnership NHS Foundation Trust [2023] UKUT 64 (AAC) — {{Case

|Date=2023/03/02 |NCN=[2023] UKUT 64 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=PC, Cornwall Partnership NHS Foundation Trust |Sentence=Hearing in patient's absence |Summary=The tribunal panel refused an adjournment request and proceeded in the patient's absence. (1) The panel found, under rule 39(1)(a) and (b) respectively, that reasonable steps had been taken to notify the patient of the hearing and that it was in the interests of justice to proceed. However, it made no findings, under rule 39(2)(a)(i) and (ii) respectively, in relation to whether the patient had decided not to attend the hearing or was unable to attend for reasons of ill health, and it was not self-evident that either requirement was satisfied. Proceeding in the patient's absence was therefore an error of law. (2) The First-tier Tribunal judge refusing the appeal had used an out-of-date version of the rules (though this did not affect her reasoning) and had misunderstood the rules, confusing rule 39(1)(a) and rule 39(2)(a). (3) The Upper Tribunal concluded: "A tribunal must always operate within its rules of procedure and that is particularly important when liberty is at stake. This is why I have dealt not only with the tribunal’s reasoning but also with the reasoning in the refusal of permission." |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors, patient's representative) for providing the judgment.

2023-03-222023 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other Tribunal cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re F [2021] MHLO 6 (FTT) — {{Case

|Date=2021/12/04 |Court=First-tier Tribunal |Judges=Birrell |Parties=F |Sentence=Order of evidence |Summary=The tribunal, without first consulting the patient's representative, directed that the patient give evidence first in a video hearing, and rejected a submission that the responsible authority should be heard first. The representative stated that the judge had referred to a policy which required this order of evidence in CVP hearings (the panel judge accepted it was possible she used the term 'policy'). On review, the STJ decided that there was a clear error of law: if the justification for the direction on the order of evidence included reference to a policy, whether that was intended to convey a tribunal wide policy or a policy specific to this judge it would constitute an unlawful fetter of the tribunal's discretionary powers. There is no policy that patients must give evidence first in CVP hearings. |Detail===Note== The Deputy Chamber President has asked for this statement to be published: "Permission has been granted by the First Tier Tribunal to publish this case on the MHLO website. This is not a reported judgement. The decision is only made in relation to this case and as a decision of the FTT, there is no obligation on any other FTT judge or panel to follow this."

2022-10-172021 cases, Cases, First-tier Tribunal decisions, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
K v N Council [2022] MHLO 1 (COP) — {{Case

|Date=2022/07/23 |Court=Court of Protection |Judges=Kate Buckingham |Parties=K, N Council, N ICB, G |Sentence=Residence |Summary=The court had to decide where K (who only spoke Polish) should reside: (a) her current culturally Polish case home, where all staff and residents could speak Polish; or (b) a care home proposed by her Polish family which was much closer to them, enabling regular visits, but at which Polish staff were only sometimes on duty. The "magnetic factor" was the need for K to be able to communicate freely 24/7, unhindered by any language barrier, so it was in her best interests to remain where she was. |Detail===Thanks== Thanks to Ian Campbell (Campbell Law Solicitors, K's ALR) for providing the judgment.

2022-08-052022 cases, Best interests, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
DD v Sussex Partnership NHS Foundation Trust [2022] UKUT 166 (AAC) — {{Case

|Date=2022/06/23 |NCN=[2022] UKUT 166 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=DD, Sussex Partnership NHS Foundation Trust, Secretary of State for Justice, Mind |Sentence=Change of status - s37/41 to conditional discharge |Summary=DD applied to the MHT while subject to a s37/41 restricted hospital order but, before the hearing, was conditionally discharged: the MHT decided that it ceased to have jurisdiction. He appealed to the UT but, before that hearing, was absolutely discharged: the UT decided that it retained jurisdiction and should decide the case despite it being academic. The UT concluded that the MHT retain jurisdiction when a s37/41 patient is conditionally discharged. |Detail===Thanks== Thanks to Adam Marley (GT Stewart Solicitors & Advocates, solicitor for the patient) for providing the judgment.

2022-07-112022 cases, Cases, Change of status cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Guidance: Judicial visits to 'P' [2022] EWCOP 5 — 
Guidance on judicial visits This guidance was issued by Hayden J following Re AH [2021] EWCA Civ 1768, and contains information under three headings: (1) Introduction; (2) Principles; and (3) Practicalities. Contained in an appendix is guidance entitled "Facilitating participation of 'P' and vulnerable persons in Court of Protection proceedings" which was originally issued on 14/11/16 by Charles J.

[2022] EWCOP 5.pdf

Essex

Essex newsletter 120.pdf
This case has been summarised on page 10 of 39 Essex Chambers, 'Mental Capacity Report' (issue 120, March 2022).

<span class="mw-headli ..→

2022-02-102022 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
CS v Elysium Healthcare [2021] UKUT 186 (AAC) — {{Case

|Date=2021-06-29 |NCN=[2021] UKUT 186 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Mitchell |Parties=CS, Elysium Healthcare, Secretary of State for Justice, S |Sentence=Change in status - s47/49 to s37/41 |Summary=The patient applied to the MHRT for Wales while subject to a s47/49 restricted transfer direction; then the Court of Appeal quashed the underlying Imprisonment for Public Protection sentence, replacing it with a s37/41 restricted hospital order; then the MHRT decided that following the change in status it lacked jurisdiction to consider the application. The Upper Tribunal set aside the MHRT's decision, on the basis that the patient had remained a restricted patient throughout, and remade it accordingly. Elysium Healthcare was criticised for its "lamentable" failure to comply with case management directions, which delayed proceedings (as did the Upper Tribunal's own inefficient administration). |Detail===Dates== The judgment states that it was made on 29/6/21. It was first published on the Gov.uk website on 23/8/21. The Gov.uk website states that the decision was made on 29/7/21.

2021-08-242021 cases, Cases, Change of status cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
R v Mbatha (1985) 7 Cr App R (S) 373 — 
Life sentence or hospital order The appellant used further evidence about manic depressive psychosis to persuade the Court of Appeal to grant a restricted hospital order instead of the life sentence imposed by the trial judge for rape and buggery.

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Subject(s):

  • Life sentence cases🔍

Date: 18 November ..→

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R v Birch (1990) 90 Cr App R 78 — 
Guidance on making restriction order For the court to impose a restriction order it is the harm which must be serious (rather than just the risk of committing further offences).

Judgment

IN THE COURT OF APPEAL
CRIMINAL DIVISION


Royal Courts of Justice
The Strand London WC2
3 May 1989



B e f o r e:
LORD JUSTICE MUSTILL
MR JUSTICE SAVILLE
and
MR JUSTICE MCKINNON
____________________

R E G I N A
-v-
BEULAH BIRCH

____________________


Nemone Lethbridge (assigned by the Registrar of Criminal Appeals) appeared on behalf of the Appellant.
Timothy Langdale appeared on behalf of the Crown.
Hearing dates: 7 March 1989 and 3 May 1989


____________________

© Crown Copyright

MUSTILL LJ:


  1. On 4 August 4 1988, in the Crown Court at Southwark, Beulah Birch pleaded not guilty to a charge of ..→
2021-07-021989 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Restriction order cases, Transcript
R v Mitchell (1997) 1 Cr App R (S) 90 — 
Life sentence or hospital order The trial judge had followed R v Fleming (1993) 14 Cr App R (S) 151 in imposing a life sentence rather than a restricted hospital order despite medical opinions being unanimous and a bed being available in a secure hospital, on the basis that the appellant absconding from an earlier hospital order and killing again amounted to exceptional circumstances. The Court of Appeal held that Fleming had been wrongly decided (the Court had believed that the Home Secretary released from a life sentence when in fact it was the Parole Board) and allowed the appeal in this case.

Note

For more recent guidance see R v Edwards [2018] EWCA Crim 595.
2021-06-281996 cases, Cases, Judgment available on MHLO, Life sentence cases, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
R v Fleming (1993) 14 Cr App R (S) 151 — 
Life sentence or hospital order Previous authority had established that where medical opinions are unanimous and a bed is available in a secure hospital a restricted hospital order should be made, but in this case the trial judge had imposed a hospital order. The Court of Appeal dismissed the appeal given the exceptional circumstances, in particular that the appellant had killed again having been discharged from an earlier hospital order.

Appeal note

Not followed in the later case of R v Mitchell (1997) 1 Cr App R (S) 90.

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Re Sean Kay (PFD report sent to NHS Norfolk and Waveney CCG) [2021] MHLO 4 — 
Gaps in service The coroner's concern was that a gap in service provision meant Sean fell between services and did not receive appropriate care. He had been referred by his GP to mental health services. The Early Intervention in Psychosis Team (EIPT) assessed him as not meeting their criteria for first episode of psychosis but as being in the 'at risk mental state' (ARMS) cohort of patients, which meant that his level of risk was now too high for continued work with the Wellbeing Services. He also did not meet the criteria for the Community Mental Health Team, the Crisis Team, or the charity Mind. An Interface Team Meeting did not take place because of an administrative error so at the time of his suicide six days later he was waiting to hear whether and from whom he would receive support. In neighbouring Suffolk (and many other areas) ARMS patients would have met the EIPT criteria.

==Metadata from ..→
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Re Alan Massam (PFD report sent to SSHSC, Greater Manchester Health and Social Care Partnership and CQC) [2021] MHLO 3 — 
Discharge to care home The coroner's concerns included: (1) there was no clear agreement or arrangement between agencies as to how effectively to share information in complex cases such as this; (2) there was no national guidance/protocol about what an acute trust should do if attempts to contact a home are unsuccessful or about the obligation to ensure the home can accept the patient back (the care home had not answered the phone but, owing to his needs, would not have accepted him if asked; no observations were made before discharge and no discharge notice was sent with him); (3) there was no defined escalation process in the care home to ensure that the risk presented by his refusal of medication and fluids was recognised and acted upon; (4) there was a national shortage of suitable beds within the adult care sector for complex cases so, after the care home served notice on the family, he remained in a home where staff felt ..→
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Re Susan Adams (PFD report sent to St George's Hospital, Stafford) [2021] MHLO 2 — 
PFD report The matter of concern was: Susan needed regular psychiatric assistance from secondary mental health services but there were significant difficulties because, living in Staffordshire but 50 feet from the border with Warwickshire, her home address and GP practice were in different counties; she could access the crisis team in Staffordshire but long-term treatment was supposedly to be provided in Warwickshire. The coroner wondered what could be done to facilitate arrangements in these circumstances.

Metadata from Judiciary website

23 April 2021 - Prevention of Future Deaths-Alcohol, drug and medication related deaths - Hospital Death (Clinical Procedures and medical management) related deaths - Mental Health related deaths - PFD Report - Coroner

Date of report: 21 April 2021

Ref: 2021-0116

Deceased name: Susan Adams

Coroner name: Andrew Haigh

Coroner Area: Staffordshire ..→
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Re Mary Gwanyama (PFD report sent to Surrey and Borders Partnership) [2021] MHLO 1 — {{Case

|Date=2021/04/21 |Court=Coroner |Judges=Caroline Topping |Parties=Mary Gwanyama, Surrey and Borders Partnership NHS Foundation Trust, Mary Nabilia Gwanyama |Sentence=PFD report |Summary=The matters of concern in this Preventing Future Deaths report included: (1) there was no policy to prevent a vulnerable patient being discharged into homelessness from the Abraham Cowley Unit (Mary had been discharged without a discharge planning meeting and with no housing plan beyond 7 days in a Travel Lodge); (2) there was no policy mandating when or if a patient should be subject to face-to-face review by a consultant psychiatrist after discharge (Mary was not subject to a medical review between discharge on 28/3/18 and suicide on 26/5/18); (3) no formal risk assessment was undertaken, and no risk assessment was recorded; (4) informal risk assessments arrived at an incorrect assessment of risk having ignored the impact of discharge with an inchoate housing plan; (5) in part because the imperative to discharge took precedence over discharge planning and assessment, Mary was discharged prematurely with severe depression before sufficient time had been taken to observe the effectiveness of her prescribed medication, in breach of the CPA; (6) Mary was discharged on ineffective medication, without any coherent care plan, without her care coordinator being involved, in breach of the CPA; (7) there was no policy governing how often a patient should be seen in the community to review the risk assessment and monitor medication compliance (Mary was placed out of area which made community treatment and support difficult, and was not seen by her care co-ordinator in the 35 days before she died). |Detail===Metadata from Judiciary website== 23 April 2021 - Prevention of Future Deaths - Community health care and emergency services related deaths - Hospital Death (Clinical Procedures and medical management) related deaths - Mental Health related deaths - Railway related deaths - Suicide (from 2015) - PFD Report - Coroner

Date of report: 21 April 2021

Ref: 2021-0117

Deceased name: Mary Gwanyama

Coroner name: Caroline Topping

Coroner Area: Surrey

Category: Hospital Death (Clinical Procedures and medical management) related deaths - Mental Health related deaths - Community health care - Railway related deaths - Suicide (from 2015)

This report is being sent to: Surrey and Borders Partnership

2021-04-242021 cases, Cases, Inquest cases - PFD reports, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
R (Worcestershire County Council v SSHSC [2021] EWHC 682 (Admin) — 
Ordinary residence and s117 The patient was detained under s3 in Worcestershire (Area 1), discharged to residential care in Swindon (Area 2), detained again under s3 in Swindon and discharged again. The DHSC argued that Worcestershire retained s117 responsibility throughout, based on three propositions: (a) the patient remains ordinarily resident in Area 1, applying R (Cornwall Council v SSH [2015] UKSC 46; (b) in the alternative, "immediately before being detained" in s117 means "immediately before being first detained"; (c) in the further alternative, Area 1's duty continued throughout the second detention. The High Court rejected all three propositions (in relation to the third, noting that a s117 duty continues until a s117(2) decision, even during a second detention, but that the continuation does not affect the position upon leaving hospital).

See also

  • Ordinary residence and ..→
2021-03-232021 cases, After-care, Cases, Community care, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript
London Borough of Haringey v Emile [2020] MHLO 70 (CC) — 
Unlawful DOL damages 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.

Thanks

Thanks to Sophy Miles (Doughty Street Chambers) for providing the judgment.

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EB v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 362 (AAC) — {{Case

|Date=2020/12/16 |NCN=[2020] UKUT 362 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Farbey, Jacobs, Ramshaw |Parties=EB, Dorset Healthcare University NHS Foundation Trust |Sentence=PHEs: "exceptional" merely refers to an exception to the deeming provision |Summary=The Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) (APPD) deems that PHEs are not "practicable" within the meaning of rule 34, unless an authorised judge directs that "in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". EB appealed against a refusal to allow a PHE. The Upper Tribunal held that: (1) the APPD cannot override the terms of the rule, and has to be interpreted, if possible, so as to be valid; (2) circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable [in other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34]; (3) health and safety concerns would be relevant to practicability even if there had been no pandemic; (4) the overriding objective is also relevant, although it does not allow the tribunal to refuse a PHE for any reason unrelated to practicability (in particular, the amended practice direction can make no change to the existence of the r34 duty, the cases to which it applies, or the purpose of the examination; and the patient’s ability to participate in the hearing is not relevant); (5) the availability of the requisite technology for PHEs is relevant to the overriding objective and "[w]here that exists, a PHE need not necessarily have (and may well not have) any material impact on the tribunal’s resources" [the decision does not state that the current practice of holding PHEs via CVP and on the hearing day is necessary]; (6) on the facts, the FTT had unlawfully misinterpreted the APPD by considering reasons unrelated to practicability; were EB still detained the decision would have been set aside. |Detail===See also==

2020-12-302020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions
GL v Elysium Healthcare [2020] UKUT 308 (AAC) — 
Unlawful refusal to adjourn telephone hearing 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 ..→
2020-12-032020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other Tribunal cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re E [2020] MHLO 52 (FTT) — {{Case

|Date=2020-09-09 |Court=First-tier Tribunal |Parties=E |Sentence=Condition removed from conditional discharge |Summary=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.] |Detail===Thanks== Thanks to Karen Wolton (Wolton & Co Solicitors) for providing the decision.

2020-10-202020 cases, Cases, Discharge conditions cases, First-tier Tribunal decisions, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Re D [2020] MHLO 51 (FTT) — {{Case

|Date=2020/10/15 |Court=First-tier Tribunal |Judges=Jo Briggs |Parties=D |Sentence=Video tribunal hearing set aside |Summary=(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.] |Detail===Note== The Deputy Chamber President has asked for this statement to be published: "Permission has been granted by the First Tier Tribunal to publish this case on the MHLO website. This is not a reported judgement. The decision is only made in relation to this case and as a decision of the FTT, there is no obligation on any other FTT judge or panel to follow this."

2020-10-202020 cases, Cases, Coronavirus cases, First-tier Tribunal decisions, Judgment available on MHLO, Neutral citation unknown or not applicable, Other Tribunal cases, Pages using DynamicPageList3 parser function, Transcript
AR v West London NHS Trust [2020] UKUT 273 (AAC) — {{Case

|Date=2020/09/10 |NCN=[2020] UKUT 273 (AAC)M |Essex issue=109 |Essex page=38 |Other citations=[2021] PTSR 405, [2020] MHLO 49 (UT) |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=AR, West London NHS Trust |Cites=AH v West London MH NHS Trust [2010] UKUT 264 (AAC)# AH v West London MH NHS Trust [2011] UKUT 74 (AAC) |Sentence=Public hearing and capacity |Summary=(1) The four factors set out in AH which must be considered in any application for a public hearing under Tribunal rule 38 are merely factors relevant to the ultimate test of whether a public hearing is in the interests of justice. The first factor ("whether it is consistent with the subjective and informed wishes of the patient (assuming that he is competent to make an informed choice") does not mean that a patient must have capacity in order to be allowed a public hearing, although the wisdom of the patient's wishes is relevant to the application of rule 38. (2) The relevant "matter" for the purposes of assessing capacity is not merely the public hearing application but conduct of the proceedings generally, although lack of capacity in relation to the former entails lack of capacity in relation to the latter. (3) The First-tier Tribunal had restricted its capacity assessment to the decision to apply for a public hearing, and had concluded that "[w]ithout being able to make an informed choice [the patient] cannot have a public hearing", so had erred in relation to both points. |Detail===Thanks== Thanks to Kate Luscombe (Abbotstone Law) for providing the judgment.

2020-09-292020 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, MHT public hearing cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re C [2020] MHLO 48 (FTT) — {{Case

|Date=2020/08/21 |Other citations=[2020] MHLO 48 (FTT) |Court=First-tier Tribunal |Judges=Birrell |Parties=C |Sentence=Remote pre-hearing examinations are practicable |Summary=(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.] |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors) for providing the decision.

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Re Lee [2019] MHLO 73 (Coroner) — 
Article 2 inquests and community patients The coroner, following the Administrative Court decision that she had failed properly to address the Article 2 operational duty as set out in the Rabone case, in this decision sets out reasons for concluding that the operational duty was neither engaged nor breached.

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MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC) — 
Conditional discharge and DOL (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" ..→
2020-07-242020 cases, Cases, Deprivation of liberty, Discharge conditions cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
AD'A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC) — {{Case

|Date=2020/03/30 |NCN=[2020] UKUT 110 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Jacobs |Parties=AD'A, Cornwall Partnership NHS Foundation Trust |Cites=R (SR) v MHRT [2005] EWHC 2923 (Admin) |Sentence=Change in status - s3 to guardianship |Summary=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. |Detail===Thanks== Thanks to Ben Conroy (Conroys Solicitors) for providing the judgment.. Also: Thanks to Roger Pezzani (Garden Court Chambers) for providing the judgment.

2020-04-122020 cases, Cases, Change of status cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC) — {{Case

|Date=2020-03-05 |NCN=[2020] UKUT 69 (AAC)M |Essex issue=103 |Essex page=36 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Thomas Church |Parties=PM, Midlands Partnership NHS Foundation Trust |Sentence=Lawfulness and availability of treatment |Summary=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. |Detail===Judicial summary from Gov.uk website== Mental Health – s.72(1)(c)(iv) – When Appropriate Medical Treatment is Available - considers the relevance of legal impediments to administering medical treatment to the issue of whether medical treatment can be said to be “appropriate” and “available”. Gives guidance on the meaning of “appropriate”, “available” and “medical treatment”.

2020-04-012020 cases, CTO cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
SB v South London and Maudsley NHS Foundation Trust [2020] UKUT 33 (AAC) — {{Case

|Date=2020/01/30 |NCN=[2020] UKUT 33 (AAC)M |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Wikeley |Parties=SB, South London and Maudsley NHS Foundation Trust |Sentence=Reviewing appointment of legal representative |Summary=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. |Detail===Case report== The following case report was kindly provided by Matthew Seligman of Campbell Taylor Solicitors (solicitor for the claimant):

Keywords: Mental Capacity Act 2005 – Rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care) Rules 2008 – appointment of a representative by the Tribunal – Form MH6b – R (oao H) v. SSH [2005] UKHL 60M – VS v St. Andrews Healthcare [2018] UKUT 250 (ACC) – Senior President’s Practice Statement on the Delegation of Functions – presumption of capacity remains relevant after appointment

The Appellant was deemed to lack capacity and a representative appointed by the Tribunal under Rule 11(7)(b) – Subsequently he and his mother, who was his Nearest Relative, wished to change the appointed representative and contacted the Tribunal – The Tribunal did not re-consider or rescind the original appointment, giving the reason that the appointed representative objected – That was unlawful – Even after a patient is deemed to lack capacity and a representative appointed under Rule 11(7)(b), he is entitled to have his expressed wish to change the appointed representative lawfully considered – The presumption of capacity in s1(2) MCA 2005 remains relevant, even after the appointment – Further the Form MH6b communicating the appointment decision failed to advise of a right to apply within 14 days for the decision to be considered afresh, which undermined both the process and the decision.

The Appellant SB was detained under s3 of the Mental Health Act 1983 at the Respondent’s Dennis Hill Unit at The Royal Bethlem Hospital in October 2018. At the end of his initial 6 months of detention, on 1 April, 2019, the Respondent referred SB’s case to the Tribunal and stated that they considered he lacked capacity to appoint a representative. On 16 April, the Tribunal therefore issued Form MH3 for an assessment of the Appellant’s capacity and contacted a firm to see if they would be prepared to be appointed to represent SB. On receipt of the completed form, and confirmation of the firm’s availability, the Tribunal the next day appointed a representative for SB under Rule 11(7)(b) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care) Rules 2008 (“the HESC Rules”) and subsequently listed the matter to be heard on 15 May, 2019.

Prior to the hearing, SB decided he would prefer his former solicitors to represent him. However, the Tribunal refused on 10 May, 2019 to rescind the appointment, on the basis that the newly appointed solicitors objected to the change. At that point, three working days before the hearing, the former solicitors withdrew to avoid further disruption. The hearing went ahead with SB represented by the appointed solicitors and he was not discharged. The former solicitors then entered an appeal on SB’s behalf.

The Appellant contended that it had been unlawful of the Tribunal to refuse to rescind the appointment simply because the appointed solicitor objected. His former solicitors, whom SB wished to appoint, had visited SB in hospital and on the basis of the lower test for capacity to instruct a representative set out in VS v St. Andrews Healthcare [2018] UKUT 250 (ACC) considered him to have the relevant capacity to do so. He had completed a ‘Change of Solicitor’ form and further his mother, who was both his nearest relative under the Mental Health Act 1983 and his carer and attorney for the purposes of s4(7) of the Mental Capacity Act 2005, had counter-signed and actioned the request. The presumption of capacity in s1(2) of the Mental Capacity Act 2005 also applied. The Tribunal’s failure to take these matters properly into account simply on the basis of an objection by the appointed solicitor was unlawful.

In granting permission to appeal, Judge Gledhill also ordered disclosure and this led to Supplementary Grounds of Appeal being entered, based on criticisms of the Form MH3 which had been completed when SB was initially deemed incapacitous.

In giving Directions in the appeal, Judge Wikeley allowed the Supplementary Grounds and held that the matters complained of did fall within the Upper Tribunal’s appellate jurisdiction, notwithstanding that they related almost entirely to pre-hearing case management decisions by the Tribunal Office. (NOTE 1: Judge Wikely’s exposition in the substantive decision (paras 13-15, 24-25) of the source of Tribunal Officers’ powers under Rule 11(7), which originated from a delegation under Rule 4 of the HESC Rules and the Senior President’s Practice Statement on the Delegation of Functions, sets this in context. Accordingly, a mistaken operation of delegated judicial powers by a Tribunal Officer could amount to a legal error capable of being appealed.) The Respondent took no part in the appeal. In deciding the appeal on the papers, and allowing it in part, Judge Wikeley held:-

1. Form MH6b, 17 April, 2019: It was not necessary for the Court to deal with the criticisms of the Form MH3 on this occasion. However, Form MH6b was defective; in failing to notify the relevant 14-day time-limit it “failed to impress on the Appellant the urgency of mounting a challenge to the Rule 11(7)(b) appointment.” That was a material omission as a result of which the decision to appoint a representative was unlawful. (NOTE 2: It would seem to follow from this that appointed solicitors should ensure that the Form MH6b notifying the appointment decision is given to the incapacitous patient and/or his Nearest Relative, so that there is effective notice of the right to apply for a reconsideration within 14 days);
2. Tribunal decision of 10 May, 2019: In the absence of oral argument, the Court would not deal with matters raised under the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities on this occasion. However, the Tribunal’s refusal to rescind the appointment was held to be unlawful because:-
  • The failure properly to notify the right to a review under Rule 4(3) of the HESCR Rules was material, and indicated a lack of due process;
  • There was a failure to accord sufficient weight to the presumption of capacity in s1(2) of the Mental Capacity Act 2005;
  • The Tribunal’s approach appeared to fail to apply the lower test of capacity set out in the authorities – see R (oao H) v. SSH [2005] UKHL 60M and VS v St. Andrews Healthcare [2018] UKUT 250 (ACC);
  • The reason given by the Tribunal, that the appointed solicitors objected, was insufficient. “It cannot be right that a prior appointment under Rule 11(7)(b) necessarily trumps any other consideration.” Other important considerations included having regard to the patient’s wishes and feelings and those of his nearest relative under s4 of the Mental Capacity Act 2005 and the requirements of the overriding objective in Rule 2(2)(c) of the HESC Rules: “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.” Judge Wikeley held that:
“The effect of the Tribunal’s decision was to abdicate decision-making responsibility and to accept the default position based on the existing solicitors’ assessment of the Appellant’s capacity – the very issue which should have been determinative of the question as to whether the rule 11(7)(b) appointment should remain in place.”
  • The cumulative effect of the above was that the Tribunal decision of 10 May, 2019 was tainted by fundamental unfairness.
3. Tribunal decision of 15 May, 2019: None of the above rendered the Tribunal’s decision at the hearing on 15 May, 2019 unlawful.

The Appellant SB had subsequently been discharged and returned to live with his mother. It was not therefore necessary as a matter of discretion to set any of the above decisions aside, events long since having overtaken them.

Finally, the Upper Tribunal has no power to award damages. Such a remedy would have to be sought elsewhere.

Case-Report: Matthew Seligman

Appellant’s Solicitors: Campbell-Taylor Solicitors, London

Incident Dates: 17 April, 10 May, 15 May, 2019

Judgment Date: 30 January, 2020

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DA v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 348 (AAC) — 
Proceeding in absence of solicitor and patient The tribunal refused to adjourn the case of a CTO patient who had not attended the hearing, then the solicitor left the hearing because she felt unable to represent the patient in those circumstances. (1) The tribunal's initial decision to proceed in the patient's absence referred to rule 39(1) (whether the party had been notified of the hearing or reasonable steps had been taken to notify the party of the hearing, and whether it was in the interests of justice to proceed with the hearing) and rule 39(2)(a) (whether the patient had decided not to attend the hearing or was unable to attend the hearing for reasons of ill health) but not rule 39(2)(b) (whether a rule 34 medical examination of the patient been carried out or was impractical or unnecessary). However, given the assumption that, as an expert tribunal, it will have got the law right, it was more ..→
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Staffordshire County Council (18 004 809) [2019] MHLO 41 (LGSCO) — 
Failure to carry out DOLS assessments LGSCO decision: "The Council has acted with fault in deciding not to assess low and medium priority Deprivation of Liberty Safeguards applications. The Council is also taking too long to deal with urgent applications. This is causing a potential injustice to the thousands of people in its area who are being deprived of their liberty without the proper checks that the restrictions they are subject to are in their best interests." The final sentence of the conclusion states: "[I]t is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die."

Summary from LGSCO website

Category: Adult care services > Assessment and care plan

Decision: Upheld

Decision date: 08 Mar 2019

Summary: Since May 2016 the Council unlawfully decided not to carry out assessments of low and medium priority ..→
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Djaba v West London Mental Health NHS Trust [2018] MHLO 76 (SC) — 
ECHR and tribunal criteria On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons.

Thanks

Court order provided by Djaba's solicitor, Kate Luscombe of Abbotstone Law.

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The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2018 are available here: MHLR 2018.

Jasmin Djaba and (1) West London Mental Health Trust (2) Secretary of State for Justice - Supreme Court, – [2018] MHLR 104

Point: Whilst permission to appeal was not granted on the question of whether the ..→
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Harrow CCG v IPJ [2018] EWCOP 44 — 
Residence and care "The Court is asked to determine where AJ should live and how he should be cared for. The applicant CCG has proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third party broker. JA's parents, who are the Second and Third Respondents, do not agree the proposals and seek the dismissal of the application.

Thanks

Thanks to Will Whitaker (Bindmans) for providing the judgment.

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R (LV) v SSJ [2012] EWHC 3899 (Admin) — 
MHT/Parole Board delay "This is a renewed application for permission to apply for judicial review challenging delay, it is said, on the part of the Secretary of State for Justice and the Parole Board in fixing a hearing of the Parole Board."

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Esegbona v King’s College Hospital NHS Foundation Trust [2019] EWHC 77 (QB) — 
Aggravated damages following MCA breaches "The claimant, Dr Gloria Esegbona, brings this claim as administrator of the estate of the deceased, her mother, Christiana Esegbona. The action is brought in negligence and false imprisonment. The amended claim form states that the claimant's claim is a claim in clinical negligence and/or pursuant to the Fatal Accidents Act 1976 and/or the Law Reform (Miscellaneous Provisions) Act 1934. The claimant claims damages for pain, suffering and loss of amenity as well as damages, including aggravated damages, for false imprisonment. It is the claimant's case not only that the medical, nursing and other staff at the defendant’s hospital owed her mother a duty to treat her with reasonable care and skill but also that the defendant had duties under the Mental Capacity Act 2005: to take reasonable steps to establish whether Mrs Esegbona lacked capacity before doing any act in connection with ..→
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A Local Authority v BF [2018] EWCA Civ 2962 — 
Inherent jurisdiction to authorise DOL of vulnerable adult An interim order made on 10/12/18 required BF to reside at a care home, over Christmas, and not at his own or his son's home, despite BF's having capacity to make decisions about his residence and wanting to return home. The order was expressed to last until a further hearing to take place no later than 31/1/19 (later fixed for 16/1/19) when the judge could hear full argument on what relief could be granted pursuant to the inherent jurisdiction. The local authority appealed on the basis that the order infringed Article 5. Permission to appeal was refused: (1) BF is a vulnerable adult (old, blind, infirm, in a squalid and dangerous home, with undue influence present in relationship with son) who needs protection despite not lacking capacity. (2) The test of "unsound mind" is different from the test of capacity, and there is prima facie evidence that he may be of ..→
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R (Adegun) v SSHD [2019] EWHC 22 (Admin) — 
Damages for unlawful immigration detention "There are two bases of challenge to Mr Adegun's detention which, in broad outline, are as follows. ... There is first an issue, which I shall call the "rule 34 issue", as to whether Mr Adegun declined a medical examination pursuant to rule 34 of the Detention Centre Rules when he was taken into detention. ... The second issue I shall call the "paragraph 55.10 issue". It arises because there is evidence, not disputed by the Secretary of State, that Mr Adegun was suffering from a mental health condition which was not recognised by the Home Office until some time after his admission into detention and was not treated with medication until 19 January 2016. ... I therefore propose to award nominal damages in respect of the early period of Mr Adegun's detention and substantial damages in respect of 40 days' detention."
<div class="medium-4 columns ..→
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Lord Chancellor v Blavo and Co Solictors Ltd [2018] EWHC 3556 (QB) — 
John Blavo personally ordered to repay Legal Aid claims The High Court gave judgment for the Lord Chancellor against John Blavo in the sum of £22,136,001.71 following the allegation that Blavo & Co made dishonest claims for payment on the legal aid fund for thousands of cases where it was not entitled to any fee.

External links

Summary of Blavo case. Paul Bracchi, 'How DID they let this legal aid lawyer con us all out of £22m?' (Daily Mail, 11/1/19) — The following quotation is from this detailed article: "In another ludicrous example, investigators found that the mental health facility in question had closed (in 2008) and burnt down (in 2010), so was not operational at the time the tribunal supposedly took place. The officials who checked this nonsense must have wondered if the person who put it on paper was a solicitor or a comedian."
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John Blavo v Law Society [2018] EWCA Civ 2250 — 
Intervention costs statutory demands The Law Society successfully appealed against a decision to set aside two statutory demands (of £151,816.27 and £643,489.20) which had been served on John Blavo in relation to costs incurred in respect of the intervention into his practice.

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[2018] WLR(D) 637B

Court of Appeal

Blavo v Law Society

[2018] EWCA Civ 2250M

2018 May 15, 16; Oct 16

Patten, Lewison, Moylan LJJ

Bankruptcy— Debt— Statutory demand— Law Society issuing statutory demands requiring solicitor to pay costs incurred during intervention into his practice— Whether debt claimed “liquidated sum”— Whether demands to be set aside— Solicitors Act 1974 (c 47), Sch 1, para ..→
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R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 — 
The patient's mother drove weekly to accompany her son on escorted community leave bus trips. When he turned 18, the Children Act 1989 funding ceased and she sought judicial review of the refusal to fund her travel costs under MHA 1983 s117. (1) The patient did not "cease to be detained" or "leave hospital" within the meaning of s117(1) when on leave and so was not a person to whom s117 applied, and also the services provided did not constitute "after-care services" within the meaning of s117(6). (2) In other cases, such as a patient living in the community on a either a full-time or part-time trial basis, the s117 duty could arise. (3) (Obiter) It was difficult to see how s117 could have covered the mother's costs as there was no evidence that she was authorised to provide services on behalf of any CCG or LA. (4) The MHA Code of Practice is analogous to delegated legislation (which can only be used as an aid to interpretation ..→
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Re AB (Inherent Jurisdiction: Deprivation of Liberty) [2018] EWHC 3103 (Fam) — 
Inherent jurisdiction authorises DOL during conditional discharge AB had capacity to consent to the care, support and accommodation arrangements which were provided as part of his conditional discharge but, following the MM case, there was an unlawful deprivation of liberty. The High Court extended the inherent jurisdiction to regularise the position of a capacitous detained mental health patient subject to restrictions as part of his conditional discharge which satisfied the objective elements of a deprivation of liberty (firstly, it was clear that there was no legislative provision governing this situation in that the Mental Health Act provided no remedy; secondly, it was in the interests of justice; and, thirdly, there were sound and strong public policy justifications). The court order: authorised the deprivation of liberty for 12 months; required the applicant to apply to court if the ..→
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Welsh Ministers v PJ [2018] UKSC 66 — 
CTO and DOL (1) There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. (2) The patient's situation may be relevant to the tribunal's discharge criteria, and the tribunal may explain the true legal effect of a CTO (for the RC to act on that information), but if a patient is being unlawfully detained then the remedy is either habeas corpus or judicial review.

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EXB v FDZ [2018] EWHC 3456 (QB) — 
"This case came before me on 23 April 2018 for the purpose of considering whether to approve the proposed settlement of a personal injuries action reached between the Claimant's Litigation Friend (his mother) and the Third and Fourth Defendants. The settlement required the approval of the court pursuant to CPR Part 21.10 because the Claimant was (and remains) a protected party. I gave my approval to the settlement. [I]t was thought by those who knew him best ... that it would be in the Claimant's best interests not to be told the amount at which the settlement had been achieved. ... The primary question, however, is whether I can conclude, on the balance of probabilities, that the Claimant cannot make for himself the decision about whether he should be told the value of the award. As Ms Butler-Cole says, this is difficult in the present case because 'by definition, the Claimant cannot be presented with the information relevant to the ..→
2018-12-142018 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 — 
"The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989, and is in the interim care of Northumberland County Council. ... RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. ... The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. ... The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD's deprivation of liberty ... If I find that ..→
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SSJ v MM [2018] UKSC 60 — 
DOL discharge conditions The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient.

==See ..→
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R (Western Health and Social Care Trust) v Secretary of State for Health [2018] NIQB 67 — 
Funding dispute "The impugned determination is that of the [Secretary of State for Health of England and Wales] to the effect that a lady whom I shall describe as CM (aged 32 years) is 'ordinarily resident' in Northern Ireland and has been thus since 2009, with the result that the care management and funding responsibilities for her have fallen on the Trust, rather than [the London Borough of Enfield], since that date. In very brief compass, lying at the heart of this challenge is a funding dispute between the Trust and Enfield."

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CQC v Hillgreen Care Ltd [2018] MHLO 50 — {{Case

|Date=2018/11/15 |Court=Magistrates' Court |Judges=Susan F Williams |Parties=Care Quality Commission, Hillgreen Care Ltd |Sentence=Prosecution of care home provider |Summary=(1) The care home provider charged with failing between 1/4/15 and 1/12/15 to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by failing to provide care and treatment in a safe way for service users (reg 12) and failing to put in place, and operate effectively, systems and processes to protect service users from abuse, including sexual abuse (reg 13). The provider had known since 2004 that its resident XX posed risk a of causing sexual abuse. Following an allegation of anal rape of a woman in 2008 his care plan stated that he "identifies with both male and female around his sexual orientation" and that he "needs to be supported at all times and not to be left alone unsupervised when around other service users and when in the community". XX admitted to having sex with two other residents, neither of whom had capacity to consent: a female resident AA in April 2015 and a male resident YY on 1/11/18. The provider had not followed the care plan and the district judge concluded that "[t]he incident with YY could not have happened had there been an extra member of staff on duty to watch XX and where he went." It was found guilty of both charges and was fined £300,000. (2) The judgement states that the CQC's inspection of the care home and seizure of documents took place on 27/7/17: this is the same day as a critical article in the Times (Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17)). Information about the chronology can be found in the CQC's subsequent report (CQC, 'CQC publishes independent investigation into its regulation of 14 Colne Road' (press release, 13/6/18)). |Detail===CQC summary==

A care home provider has been fined £300,000 for allowing a man in its care with a history of sexual assaults the freedom to prey on vulnerable people.

The Care Quality Commission brought the case against Hillgreen Care Limited for not providing the constant, one-to-one supervision required for the man, who was described in court as XX.

CQC prosecuted Hillgreen Care Limited for failing in its duty to protect people in its care, exposing them to the risk of sexual abuse. District Judge Susan Williams also awarded CQC £141,000 in costs. The judge ruled that residents at the care home must not be identified.

She added: “There was a failure to provide appropriate care and a high level of culpability because the risks were well known to the company.” She said there was a “woefully inadequate system of care” in place.

The judge said that although Hillgreen was subject to insolvency proceedings, this should not affect the sentence and that the “fine would serve to mark society’s condemnation” of Hillgreen’s failure to protect vulnerable people in its care.

The CQC brought the case against Hillgreen Care Limited, for failing in its duty to protect people in its care, exposing them to the risk of sexual abuse. Hillgreen Care Limited was not present in court at any time during the proceedings.

Highbury Corner Magistrates’ Court was told that on 1 November 2015, an autistic man was assaulted at Hillgreen’s care home at Colne Road, in Enfield, north London. At the time there were only two care staff on duty to look after six people.

One of the residents, who was described as non-verbal, with limited mental capacity, was followed up to his room by XX, and, allegedly, raped. The incident was eventually reported to the police, but partly because of the alleged victim’s mental capacity and a lack of evidence, no prosecution ensued.

The alleged perpetrator had been under the care of Hillgreen Limited for 10 years. Mr Paul Greaney QC, representing CQC said that: “XX is a predatory and opportunistic sex offender” and was a risk to both sexes. Numerous allegations involving vulnerable adults and children had been made against XX dating back to his childhood.

The court heard from expert witness, Chartered Clinical Psychologist, Dr Neil Sinclair, who said that it should have been apparent to Hillgreen Care Limited that there was an extremely high risk of XX committing sexual offences. XX needed to be monitored at all times.

Dr Sinclair said that if that monitoring been carried out, the alleged attack would probably never have happened. Residents at Colne Road were exposed to potential and actual harm.

A number of care workers who had worked at Colne Road gave evidence - although nobody from the senior Hillgreen management team.

A support care worker, who said she had not been given any instructions about watching XX, said that she walked in on XX while he was assaulting another service user, described as YY, on 1 November 2015.

Following the alleged sexual assault Colne Road Home Manager, said that the home was no longer a place he wanted to work after the incident. He said that staffing levels were inadequate and that he had raised the matter with senior Hillgreen management, but that nothing had been done about it.

A statement was read out in court from YY’s mother in which she said she had no doubt that YY would have been incapable of providing informed consent to sexual activity, given the nature and extent of his disabilities.

Paul Greaney QC said: “YY plainly needed to be protected from abuse. One only needs to think for a moment about the situation that existed in that care home, a vulnerable man, in an environment in which a predatory sexual offender was largely free to roam, to realise that YY needed protection.”

CQC began the process to cancel the registration of the Colne Road service in February 2016. The registration of Hillgreen Care Ltd was cancelled altogether in September 2017.

Andrea Sutcliffe, CQC's Chief Inspector of Adult Social Care, welcomed the judgment and sentence: "As the judge has made clear, Hillgreen Care Limited utterly failed in their duty of care for the people they were responsible for supporting. YY should never have been exposed to the potential of sexual abuse from XX and the impact on him and his family is heartbreaking. My thoughts are with them today.

"It has taken a long time to bring this prosecution to a conclusion but the outcome proves that it has been worth the effort and dedication of CQC's inspection and legal teams. Providers should be clear that if people are exposed to harm through their failure of care we will take every step we can to hold them to account."

2018-11-172018 cases, Cases, Judgment available on MHLO, Miscellaneous cases, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Gill v Woodall [2009] EWHC B34 (Ch) — "The Claimant disputes the validity of Mrs Gill's will on two grounds. They are: (1) At the time Mrs Gill executed the will she did not know and approve its contents; (2) Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill." 2018-10-232009 cases, Judgment available on Bailii, No summary, Testamentary capacity cases, Transcript
Mazhar v Lord Chancellor [2017] EWHC 2536 (Fam) — 
Inherent jurisdiction "This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar. ... Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person ..→
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LB Richmond v W [2001] QB 370 — "These four appeals involve an important issue as to whether charges can be levied by local authorities in relation to accommodation provided by them under section 117 of the Mental Health Act 1983 to persons who have been discharged from detention under section 3 of that Act." 2018-05-132000 cases, After-care, Judgment available on MHLO, Judgment missing from Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
R v Press Complaints Commission, ex parte Ian Stewart-Brady [1996] EWCA Civ 986 — "This is a renewed application for leave to apply for judicial review in relation to an adjudication of the Press Complaints Commission. ... The application arises out of a publication in The Sun newspaper on 26 July 1995. The publication contained an article relating to the applicant, Ian Brady, who was convicted of murder and is now a patient at the Ashworth Hospital. The effect of the article was that he was being treated in a way which was wholly inappropriate having regard to the very serious crimes which he had committed. No complaint, however, is made about the article. Although Mr Beloff certainly does not approve of its contents, he accepts that he cannot say that there was any justification for complaining about the article. His complaint is that the article has alongside it a substantial photograph of the applicant, albeit a photograph which is indistinct and does not show Mr Brady clearly. ... Looking at the matter as a whole, I do not think there is any prospect of this ..→2018-04-271996 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
R v Thompson [2018] EWCA Crim 639 — 
Guidance on sentencing on appeal "These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983."
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Re SW (No 2) [2017] EWCOP 30 — 
Vexatious COP application "This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place."

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2018-03-192017 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
M v An NHS Trust [2017] MHLO 39 (UT) — 
Tribunal reasons "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from ..→
2018-01-272017 cases, CTO cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Bunting v W [2005] EWHC 1274 (Ch) — "By the Application the Receiver seeks an order against the Respondent, to whom I shall refer as ("Mr W") that the accounts he delivered in his capacity as Receiver of M for the year ending 21st April 1994 and thereafter annually until year ending 21st April 2002 be re-opened or set aside. The application further seeks an order that Mr W deliver fresh accounts verified by affidavit, identifying (amongst other matters) the funds or assets of M used directly or indirectly for the personal benefit of Mr W or his family; that the Receiver be given permission to raise objections and further inquiries as to whether or not Mr W is to be entitled to charge remuneration for the services of himself and his wife in caring for or attending on M and an order that he should pay into the Court of Protection such sums as may be found due on taking the accounts and inquiries. In the event that there is a jurisdictional impediment to an order for payment into court the Receiver seeks an order ..→2017-11-262005 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
BA v SSHD [2017] UKAITUR IA343212013 — 
Article 3 immigration case "The Appellant is a citizen of Nigeria born on 26th February 1980. His appeal against a refusal to vary leave was allowed by First-tier Tribunal Judge Abebrese on Article 8 grounds on 23 rd May 2016. ... The Appellant sought permission to appeal against the Article 3 findings only ... On the basis of the factual findings, the opinion in the Amnesty International Report and the opinion of Dr Bell, the Appellant is likely to suffer a breakdown at some point on return to Nigeria whether that be at the airport or some time later. He is likely to come to the attention of the police if he has such a breakdown and he would not be able to access the psychiatric hospital in Lagos because he is unable to afford treatment there. Accordingly, it is likely that he would be held in prison where the conditions for this particular Appellant with his particular condition would result in treatment in breach of Article ..→
2017-07-112017 cases, Cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Repatriation cases, Transcript
LB v BMH [2017] MHLO 10 (UT) — 
Refusal to adjourn set aside "The First-tier Tribunal decided that the patient should not be discharged from liability to be detained and to make no recommendation pursuant to section 72(3) and (3A) of the 1983 Act. Paragraph 19 of its written decision recorded the following: 'The solicitor representing the patient sought an adjournment as she had concerns about the quality of the evidence regarding the patient's clinical treatment in the past. We have some sympathy with the view that the patient's treatment history is incomplete. A summary of the previous treatments should be available to the panel wherever possible. However, the recent treatment history during the in-patient admission at [this hospital] was available to the panel. There was ample evidence before the panel that the patient is floridly psychotic and in our view the evidence satisfied the criteria for detention. We refused the request for an adjournment.' ... ..→
2017-03-172017 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Victoria Wadsworth (strike off) [2017] MHLO 51 (SDT) — 
Solicitor struck off - imaginary expert reports Since 2007 Victoria Wadsworth had been in charge of a law firm's mental health department, and had invented another firm called "Healthy Minds" to pretend to write medical reports for clients, at the Legal Services Commission's expense. In the Crown Court she had admitted to obtaining £25,000 between 2007 and 2012 (though the law firm stated it had repaid £181,887.72, and the Legal Aid Agency statement referred to a value exceeding £134,000 being repaid). At the time of the hearing, she was in prison having been sentenced to three years (reduced to two on appeal) for fraud, but the Solicitors Disciplinary Tribunal proceeded in her absence. The Tribunal agreed that the rule 5(2) allegations which had commenced its proceedings had been superseded by the conviction and should lie on file. The Tribunal found breaches of Principle 1 (which requires a solicitor to uphold the rule ..→
2017-02-112017 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, SRA decisions, Transcript
R v GA [2014] EWCA Crim 299, [2014] MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that ..→2016-12-292014 cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
JMCA v The Belfast Health and Social Care Trust [2014] NICA 37, [2014] MHLO 147 — "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in Cheshire West and Chester Council v P [2014] UKSC 19. It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced ..→2016-11-292014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Northern Irish cases, Transcript
P v A Local Authority [2015] EWCOP 89 — 
Discharge from DOLS "This is an application by P (the Applicant) acting through his litigation friend, the Official Solicitor, for an order under section 21A of the Mental Capacity Act 2005 (MCA) discharging the standard authorisation made on 24 June 2015 which authorises a deprivation of liberty in his current accommodation (the placement)."

Thanks

Transcript originally provided by Richard Charlton of Richard Charlton Solicitors (it's now also on BAILII).
2016-11-242015 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript
Miles v The Public Guardian [2015] EWHC 2960 (Ch), [2015] MHLO 139 — "I have before me two appeals from decisions of Senior Judge Lush sitting in the Court of Protection, one in a case called Re Miles and one in a case called Re Beattie in both of which he was concerned with lasting powers of attorney either for property and financial affairs or for health and welfare matters. In each case the former power of attorney had been drafted by the same solicitor and contained provisions which the Judge was asked to rule on, as to whether they were effective." 2016-10-072015 cases, Judgment available on Bailii, LPA cases - substitute attorneys, No summary, Transcript
PJV v Assistant Director Adult Social Care Newcastle City Council [2015] EWCOP 87, [2015] MHLO 138 — "The appeal before me ... relates to the part, if any, that the Court of Protection must play in the finalisation of an award of compensation under the relevant scheme that the Second Respondent (CICA) has decided and the applicant has agreed is to be held on trust." 2016-08-292015 cases, ICLR summary, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Lucia Benyu v Solicitors Regulation Authority [2015] EWHC 4085 (Admin), [2015] MHLO 137 — "This is the adjourned hearing of the Appellant's appeal brought pursuant to section 49 of the Solicitors Act 1974 against the order of the Solicitors Disciplinary Tribunal ('SDT') dated 3/10/14, striking the Appellant off the Roll of Solicitors and ordering her to pay costs in the sum of £48,000. The decision followed a full three day hearing at which the Appellant was represented by experienced counsel, although she has indicated that she has now made a complaint against that counsel. The SDT found the Appellant to have been dishonest to the criminal standard. But it went on to say that the seriousness of her misconduct was such that it would have struck her off even if it had not made such a finding. ... The Appellant acted in person at the substantive appeal hearing. She has not attended for the hand down of this judgment, although she is fully on notice of it. She invites the court to the set aside the SDT's order; or, alternatively, to strike her off with no dishonesty ..→2016-08-272015 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Pages using DynamicPageList3 parser function, SRA decisions, Transcript
R v Orr [2016] EWCA Crim 889 — 
Fitness to plead "The appeal concerns the definition of 'fitness to plead' and the process engaged by the trial judge in the instant trial which proceeded after he found the defendant 'unfit to be cross examined'. ... Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly found that the appellant had been fit to participate in his trial up to the point of cross examination and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the 'Pritchard' refined criteria. In these circumstances, the procedure to be adopted was clearly set out by section Criminal Procedure (Insanity) Act 1964, 4A. We agree with the submission that this is a statutory mandatory requirement which cannot be avoided by the court's general discretion to order proceedings otherwise, however beneficial to the defendant they may appear. It follows that, ..→
2016-07-092016 cases, Cases, ICLR summary, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Unfitness and insanity cases
Public Law Project v Lord Chancellor [2015] EWCA Civ 1193, [2015] MHLO 136 — The proposed Legal Aid residence test was lawful (the High Court had been wrong to decide it to be ultra vires and unjustifiably discriminatory). The proposed test is described as follows in the judgment: "To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days). There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for ..→2016-02-212015 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Transcript
A Local Authority v M [2015] EWCOP 69, [2015] MHLO 135 — This judgment dealt with various issues including deputyship, deprivation of liberty, and disclosure. 2016-02-082015 cases, Deprivation of liberty, Deputyship cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
Re M (Costs): A Local Authority v M [2015] EWCOP 45, [2015] MHLO 134 — Court of Protection costs judgment. 2016-02-082015 cases, COP costs cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
Lord Chancellor v John Blavo [2016] EWHC 126 (QB), [2016] MHLO 6 — 
Freezing order continued There was a strongly arguable case that John Blavo was party to an arrangement whereby false claims were submitted to the LAA in many thousands of cases, there was evidence of a less than scrupulous approach to his duty of disclosure to the Court, and evidence of a recent attempt improperly to put property beyond the reach of the Lord Chancellor. Taking these matters together there was a real risk that any judgment would go unsatisfied because of disposal of assets. Given the sums of money involved and the admitted financial difficulties it was just and convenient in all the circumstances to continue the freezing order. (The precursor to the official investigation was an audit during which 49 files were passed to the LAA's counter-fraud team, whose conclusions included: "In respect of 42 of these 49 files HMCTS have confirmed that they have no record of there having been tribunal proceedings either in ..→
2016-02-022016 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Miscellaneous cases, Pages using DynamicPageList3 parser function, Transcript
R v Fletcher [2015] EWCA Crim 2007, [2015] MHLO 133 — The appellant unsuccessfully sought a restricted hospital order in place of an IPP sentence. 2016-01-282015 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
WH v Partnerships in Care [2015] UKUT 695 (AAC), [2015] MHLO 132 — The tribunal, having decided that the appropriate treatment test in s72(1)(b)(iia) was met, refused to discharge a patient who had a diagnosis of dissocial personality disorder. (1) The Upper Tribunal allowed the appeal on the following grounds: (a) The appropriate treatment test relates only to the treatment that a patient is receiving at the detaining hospital, so the tribunal erred in law by considering the test met because treatment was available elsewhere. (b) The tribunal also erred in law by providing inadequate reasons: (i) the reasons were not set out by reference to the relevant criteria; (ii) the tribunal failed to address any of the solicitor's submissions about appropriate treatment; (iii) it was unclear what evidence was accepted or rejected, and why; (iv) the tribunal made findings which were wholly unsupported by the evidence. (2) The Upper Tribunal also stated that: (a) The tribunal is required to evaluate the evidence and reach its own conclusions, so was not ..→2016-01-032015 cases, Brief summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Somerset v MK [2015] EWCOP B1, [2015] MHLO 131 — "In the light of all of this it seems to me that this is plainly a case where the usual order for costs should be departed from to the extent that the Local Authority should pay the costs of all of the other parties involved. The other matter that I should deal with is whether those payments should be on an indemnity basis. ... I am very conscious of the impact of such an order. However, in that same case of G v E [2010] EWHC 3385 (Fam) Mr Justice Baker considered that the local authority's conduct amounted to 'a significant degree of unreasonableness' giving rise to a liability for costs on an indemnity basis. If one reads my judgment in full it is clear that that there was in this case as well a significant degree of unreasonableness both in the Local Authority's approach to the substantive and procedural issues in the case. In those circumstances it seems to me that the argument for indemnity costs is an overwhelming one in this case and that is the order that I intend to make ..→2015-12-222015 cases, COP costs cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
Somerset v MK [2014] EWCOP B25, [2014] MHLO 146 — "What I intend to do in it is to set out the history of the case and then of the litigation. Then I will deal with the factual issues upon which I have been asked by the local authority to make findings. I will then deal with the central issue in the case, that of where in her best interests should (P), the subject of this application, live. Next I will consider the conduct of the local authority and make findings on the issues as to whether P had been wrongly deprived of her liberty and, if she had, how long did that go on for; and finally what, if any, lessons can be learned from this case. ... These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them ..→2015-12-222014 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Re CMW: Public Guardian v AM [2015] EWCOP 86, [2015] MHLO 130 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney ('LPA') for property and affairs. ... I am satisfied that Carla lacks capacity to revoke the LPA herself. ... I am also satisfied that the respondent has behaved in a way that contravenes his authority and is not in the donor's best interests. He has broken virtually every rule in the book and, having exhausted his mother's funds in order to meet his "life's requirements at that time", he blithely expects the taxpayers of Surrey to pick up the tab to meet his mother's care needs now. I have no hesitation in revoking the LPA and directing the Public Guardian to cancel its registration. I shall make a separate order appointing Michael Stirton as Carla's deputy for property and affairs." 2015-12-222015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re WP (deceased) and EP [2015] EWCOP 84, [2015] MHLO 129 — "This is an application by two attorneys acting jointly under two separate Enduring Powers of Attorney for the retrospective approval of monthly payments of £150 each that they have made to themselves and to their sister from the donors' funds. ... This application is a composite claim for the payment of an allowance of £150 per month to each attorney in respect of three distinct heads of claim, and I shall deal with these heads of claim in the following order: (1) travelling expenses; (2) remuneration for acting as attorneys; and (3) a 'gratuitous' care allowance. I would prefer not to be cornered into approving any particular mileage rate. If the Public Guardian wishes to give guidance on such matters, that's up to him. What I shall say is simply by way of general observation. ... In my judgment, the business mileage rates quoted by HMRC [45 pence for every business mile for the first 10,000 miles and 25 pence for every business mile thereafter] should be substantially discounted ..→2015-12-222015 cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Re JW [2015] EWCOP 82, [2015] MHLO 126 — "This began as an application by a family member to be appointed as a joint deputy for property and affairs with the existing deputy, East Sussex County Council. When it became apparent that the Council was unwilling to act jointly with him, the applicant revised his application and asked the court to remove the Council as deputy and to appoint him in its place. ... I propose to allow Geoffrey's revised application and shall appoint him as Joan's deputy in place of East Sussex County Council. My main reason for appointing him is that I think it would be sensible to repair and renovate the house in Hailsham that Joan inherited from her daughter Daphne so that it can be sold to best advantage, and I am prepared to give it a try. ... Zena Boniface concluded her witness statement by saying that: 'ESCC feel that it would be a conflict of interest for Geoffrey to be appointed deputy, as he stands to make a financial gain from the cost of the building works to his late sister's property and ..→2015-12-222015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re AS [2015] EWCOP 79, [2015] MHLO 124 — "This is YB's application to be appointed as AS's deputy for property and affairs in place of the existing deputy, the London Borough of Islington. ... I have decided to maintain the status quo and to dismiss this application." 2015-12-222015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re AG [2015] EWCOP 78, [2015] MHLO 123 — "This is an appeal from an order of His Honour Judge Rogers, sitting as a nominated judge of the Court of Protection. Judge Rogers was considering the appropriate welfare arrangements for AG, a young woman born in October 1985. ... DG's grounds of appeal dated 22 September 2013 identify four grounds of appeal. It is said that Judge Rogers: (a) erred in not conducting an adequate assessment of AG's capacity; (b) failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings; (c) made a decision as to where AG should live which by September 2013 was a fait accompli; and (d) acted in breach of Article 8 in directing that DG's contact with AG should be, as it is put, 'heavily' supervised. It is apparent from her counsel's very helpful skeleton arguments ... that the major thrust of DG's case relates to ground (b). ... For these reasons each of DG's grounds of appeal fails. ... Ms Khalique submits, and I am inclined to agree, that the local authority ..→2015-12-222015 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Re HNL: ATL v Public Guardian [2015] EWCOP 77, [2015] MHLO 122 — "This is an application regarding the payment of a gratuitous care allowance. To describe the allowance as 'gratuitous' is slightly incongruous, as it is a payment towards the cost of maintenance of a close relative, who provides care and case management services to someone who is severely incapacitated because of an impairment of, or a disturbance in the functioning of, the mind or brain. ... The Public Guardian is currently reviewing all gratuitous care allowances paid by deputies to family members, particularly in cases where the person to whom the proceedings relate has been awarded damages for clinical negligence or personal injury. Because the number of families who are receiving allowances of this kind and are affected by the Public Guardian's review runs into thousands, I have concluded that it would be in the public interest to publish this judgment. ... Having regard to all the circumstances, therefore, I am satisfied that it is in Helen's best interests for Adrian to ..→2015-12-222015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Surrey And Sussex Healthcare NHS Trust v Ms AB [2015] EWCOP 50, [2015] MHLO 121 — "This is an application by the Surrey and Sussex Healthcare NHS Trust for the court to give permission for the respondent, Ms AB, undergoing an above the knee amputation of her left leg. ... On the basis of the agreed psychiatric evidence, which I accepted, I was satisfied that Ms AB lacks the capacity to make a decision about her medical treatment and surgery. ... I am completely satisfied that, very sadly, the only best interests decision I can make is to give permission for the above knee amputation of Ms AB's left leg to be undertaken. I approve the use of reasonable restraint before, during and subsequent to surgery as is necessary to safeguard and protect her, including sedation. Further, I authorise the deprivation of her liberty insofar as it is necessary to perform the procedure." 2015-12-222015 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Re FT [2015] EWCOP 49, [2015] MHLO 120 — "This is an application for reconsideration of an order made by an authorised court officer appointing two of FT's daughters as his deputies for property and affairs. ... In my judgment, the factor of magnetic importance in this case is that FT named MA and PB to be the executors of his last will ... Accordingly, pursuant to rule 89(5), I affirm the order made on 2 September 2014 appointing the respondents [MA and PB] jointly and severally to act as FT's deputies for property and affairs. ... Costs ... I am singularly unimpressed with the applicants' conduct. Having made the application, they failed to follow it through. ... This is a case in which a departure from the general rule is justified. ... [T]he fact that [DC's] husband is in receipt of ESA and that she has claimed an exemption from the fees, doesn't grant her immunity from an order for costs being made against her. I intend to make an order that the costs are to be assessed on the standard basis and paid by DC, ST and TT in ..→2015-12-222015 cases, COP costs cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Health Service Executive of Ireland v CNWL [2015] EWCOP 48, [2015] MHLO 119 — "Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?" 2015-12-212015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Ross v A [2015] EWCOP 46, [2015] MHLO 118 — "This is an application by a professional deputy for an order authorising him to apply approximately £17,000 a year from A's damages award towards the payment of her brother's school fees. ... In my judgment, it is in A's best interests for the court to authorise the deputy to pay B's school fees (past, present and future) from her funds ... This judgment is tailored to A's circumstances and should not be construed as an imprimatur for the payment of siblings' school fees from damages awards in other cases." 2015-12-212015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Dorset County Council v PL [2015] EWCOP 44, [2015] MHLO 117 — "The Applicant council seeks declarations that: (a) it is in PL’s best interests to move to ‘OL’, a care home in Lincolnshire, after a period of transition; and (b) it is in PL’s best interests to have restricted and supervised contact with his mother AL at an off-site location. ... The issues for the court to determine were where PL should live, more particularly OL or CC and with whom he should have contact, again more particularly whether contact with AL should be restricted and supervised and take place at an off-site location." 2015-12-212015 cases, Best interests, Judgment available on Bailii, No summary, Transcript
GN v Newland [2015] EWCOP 43, [2015] MHLO 116 — "This is an application for reconsideration of an order made on the papers by an authorised court officer ('ACO'). An ACO is not a judge of the Court of Protection, but a civil servant, who, in most cases, has considerable experience of the court's practice and procedure and is authorised to make a number of specified decisions on the non-contentious property and affairs side of the court's business. Over 90% of the applications to the court involve non-contentious property and financial matters, and can potentially be dealt with by an ACO. ... I dismiss GN's application to be appointed as his mother's deputy for three reasons. First, he is the bane of her life and she wants nothing to do with him. Secondly, he would be unable to act fairly and competently on her behalf because he has an interest in her property, which is adverse to hers, and on which he is unwilling to enter into any compromise. And thirdly, I am satisfied that, having regard to all the relevant circumstances, Julia ..→2015-12-212015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
St George's Healthcare NHS Trust v P and Q [2015] EWCOP 42, [2015] MHLO 115 — "On 20 January 2015 the Health Trust responsible for his care made an application seeking declarations in this very serious medical case. They seek declarations: (i) That he lacks capacity (this is uncontentious); (ii) That it is not in his best interests to receive cardio pulmonary resuscitation (CPR) in the event of cardiac arrest (this is also now uncontentious); and (iii) As to whether it is lawful to continue to provide renal replacement therapy (RRT), the Trust wish to discontinue life sustaining treatment with the inexorable and inevitable consequence that as a result P would quickly die. ... There is almost nothing to rebut the very strong presumption that it is in P's best interests to stay alive. I order and direct that the renal replacement therapy should continue. ... The application was launched, it might be thought, somewhat precipitously, before any SMART testing had been undertaken. ... Therefore in all cases where there is any question of doubt about diagnosis, in ..→2015-12-212015 cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Re OL [2015] EWCOP 41, [2015] MHLO 114 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs because the attorneys have used their power carelessly and irresponsibly. I am satisfied that the attorneys have behaved in a way that contravenes their authority or is not in the donor's best interests. ... Their failure to keep accounts of the transactions carried out on the donor's behalf or to produce any record of her income and expenditure would alone be sufficient to warrant the revocation of their appointment. However, in this case both attorneys, and in particular DA, have compounded their culpability by taking colossal advantage of their position and obtaining personal benefits far in excess of the limited power that attorneys have to make gifts of the donor's property under section 12 of the Mental Capacity Act. DA has also failed to keep the donor's money and property interests separate from her own interests in respect of the ..→2015-12-212015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
London Borough of Southwark v P [2015] EWCOP 40, [2015] MHLO 113 — "This is an application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). ... I am of the view that the quickest way to deal with this is for me to list the matter for a further one day hearing shortly after the date on which the capacity report is completed. ... I consider that the existing orders should be discharged on the basis of an undertaking by the parents, R and A, that they are not to facilitate, allow or otherwise permit P to undergo any ceremony or purported ceremony of marriage, civil partnership, betrothal or engagement; or from entering into any arrangement in relation to the engagement or matrimony, whether by civil or religious ceremony, of P whether within English jurisdiction or outside it. They are also to undertake not to instruct, encourage or suggest to any other person to do so. They are to undertake not to take him to Bangladesh prior to the next hearing. On that basis I will discharge the ..→2015-12-212015 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
Bournemouth Borough Council v PS [2015] EWCOP 39, [2015] MHLO 112 — "In this case I have to decide (i) whether the package of care provided to BS ('Ben') is in his best interests; (ii) whether that package amounts to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950; and (iii) what contact Ben should have to his mother, the first respondent. ... In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent. There was no dispute between the applicant and the first respondent concerning issues (i) and (iii). The argument was centrally about the question of deprivation of liberty. ... I cannot say that I know that Ben is being detained by the ..→2015-12-212015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Re P [2015] EWCOP 37, [2015] MHLO 111 — "This is an application by the Public Guardian for an order revoking an Enduring Power of Attorney ('EPA') on the grounds that, having regard to all the circumstances, H is unsuitable to be his wife's attorney. ... Therefore, having regard to all the circumstances, I am satisfied that H is unsuitable to be P's attorney and I shall by order revoke the EPA. I shall also make a separate order appointing S and D jointly and severally to be P's deputies for property and affairs." 2015-12-212015 cases, Deputyship cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Re X [2015] EWCOP 36, [2015] MHLO 110 — "These proceedings are concerned with X, a young man of 25 who currently lives in a care home. They began as an application by his mother, AY (who is his appointed welfare deputy and has acted throughout without the benefit of legal representation), in respect of his prescribed medication. X was subsequently detained under the Mental Health Act and the issues before the Court were redefined to address AY's concerns as to X's physical health (in particular, the condition of his bowels) and whether the treatment she supported, in the form of dietary exclusion and supplements, fell within the powers of the Mental Health Act or the authority of her deputyship. In the course of proceedings, X has been discharged from detention under the Mental Health Act and the parties have been able to agree a community placement for him, where he is now settled. The issues which remain for the determination of the Court relate to his best interests in relation to diet and whether the welfare deputyship ..→2015-12-212015 cases, Best interests, Deputyship cases, Judgment available on Bailii, No summary, Transcript
R (Dyer) v Welsh Ministers [2015] EWHC 3712 (Admin), [2015] MHLO 109 — "In this claim, the Claimant challenges an alleged failure by the public authorities responsible for the National Health Service in Wales to discharge the duty imposed upon them by section 3(1) of the National Health Service (Wales) Act 2006 to provide hospital accommodation 'throughout Wales, to such extent as they consider necessary to meet all reasonable requirements'. In particular, she contends that the duty has been breached because no decision has been taken by any authority as to either (i) the 'reasonable requirements' of women in Wales with ASD and LD for secure in-patient assessment and treatment; or (ii) the level of provision necessary to meet the reasonable requirements found to exist. Indeed, the relevant authorities have not only failed to make those decisions, it is said that they have failed to collate the information required to make them; and so they are not even in a position to make properly informed (and, therefore, lawful) decisions. That is the legal basis ..→2015-12-212015 cases, Judgment available on Bailii, MHLR summary, Miscellaneous cases, No summary, Pages using DynamicPageList3 parser function, Transcript
Henderson v Wilcox [2015] EWHC 3469 (Ch), [2015] MHLO 108 — "The claimant in this case is Ian Henderson. Ian's mother, Mrs Lillian Henderson, died on 2 April 2013 as a result of injuries sustained in a severe assault on her by Ian on the night of 13 March 2013. Ian was convicted of manslaughter at a trial on 15 September 2014, his plea of guilty to that charge and not guilty to murder having been accepted on the basis that he had not intended to kill his mother or cause her really serious injury. He was sentenced (with the agreement of the prosecution) to be detained in hospital under section 37 Mental Health Act 1983, the judge being satisfied that he suffered from a mental disorder such as to make his detention and treatment in hospital appropriate (section 37 (2)), coupled with a restriction order made under section 47 of that Act in order to prevent the public from serious harm if he should be at large. ... Mrs Henderson's will made in 2006 left her entire estate to Ian if he survived her, but it is accepted that by virtue of his having ..→2015-12-202015 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Health Service Executive of Ireland v PA [2015] EWCOP 38, [2015] MHLO 107 — "I turn to the specific orders in these three cases. In each case, I conclude that the individual – PA, PB and PC – is an adult within the meaning of paragraph 4 of the Schedule. I conclude that each is habitually resident in the Republic of Ireland. Having considered the orders of the Irish Court, and the provisions in each order that amount to "protective measures" within the meaning of Schedule 3, (including, in each case, the provision that each individual shall be placed and detained at St Andrew's and the various ancillary orders to facilitate and support the placement and detention), I conclude that there are no grounds for refusing to recognise the measures under paragraph 19(3) or (4). I conclude in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); that in each case the individual – PA, PB and PC – satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; that the orders ..→2015-12-182015 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
AM v Partnerships in Care Ltd [2015] UKUT 659 (AAC), [2015] MHLO 106 — The First-tier Tribunal, on the basis of their finding that the patient had committed two rapes, refused to discharge because sexual understanding and treatment work had not been undertaken. The Upper Tribunal held: (1) The tribunal had made a mistake of fact which undermined its conclusion as to the rapes, which was a fundamental error in the light of which the tribunal’s decision not to discharge could not stand. (2) The tribunal’s decision was made in error of law because of its failure to take into account relevant considerations. It had not scrutinised the evidence carefully or addressed features of the evidence which may cast doubt on the allegations; rather, the reasons gave the impression that, having found that AM lacked credibility generally, the tribunal simply and illogically accepted that the rape allegations were true because they were viewed as credible at the time. (3) A decision as to risk must involve findings of fact, not merely suspicion that an act was done ..→2015-12-172015 cases, Brief summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re RS (Forced Marriage Protection Order) [2015] EWHC 3534 (Fam), [2015] MHLO 105 — "The identified questions for this hearing are whether: (i) RS had mental capacity to marry at the date of his marriage to W; and if not; (ii) whether the court should exercise its power under the inherent jurisdiction to declare that the marriage is not recognised as valid in England and Wales as a precursor to the initiation of formal proceedings to annul the marriage." 2015-12-102015 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
Winspear v City Hospitals Sunderland NHSFT [2015] EWHC 3250 (QB), [2015] MHLO 104 — (1) The core principle of prior consultation before a DNACPR decision is put into place on the case file applies in cases both of capacity and absence of capacity. If it is both practicable and appropriate to consult before doing so then, in the absence of some other compelling reason against consultation, it would be procedurally flawed to proceed without consultation. It would not meet the requirements of MCA 2005 s4(7); it would accordingly not be in accordance with the law. It would be an interference with Article 8(1) that is not justified under Article 8(2). (2) The claimant (patient's mother) sought damages both personally and as personal representative. The judge was not persuaded that she has any personal claim for damages, and decided that a declaration reflecting the procedural breach of Article 8 was sufficient. 2015-11-292015 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
R (Howard League for Penal Reform) v Lord Chancellor [2015] EWCA Civ 819, [2015] MHLO 101 — This was an appeal against the refusal of permission to apply for judicial review of changes introduced to criminal legal aid for prison law by the Criminal Legal Aid (General) (Amendment) Regulations 2013. (1) The 'lack of consultation' challenge was unarguable. (2) The appellants also challenged the removal of criminal legal aid funding in seven principal areas of prison law (including pre-tariff reviews and return to open condition cases before the Parole Board) on the basis that they either impact upon the liberty of the prisoner or they engage his or her Article 8 Convention rights in a way that is systemically unfair. The Court of Appeal accepted that it was arguable that, without appropriate assistance, the system could carry an unacceptable risk of unlawful decision making in relation to those with mental health, learning or other difficulties which effectively deprive them of the ability effectively to participate in the relevant decisions. 2015-11-142015 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
R v Brown (formerly Latham) [2015] EWCA Crim 1328, [2015] MHLO 100 — "The central ground of appeal is that the appellant's conviction is unsafe because the ruling of the judge – viz. that the appellant's conferences at court with his lawyers were to take place in the presence of two nurses from Rampton Hospital – breached his right at common law to consult privately with his lawyers and under Article 6(3)(c) European Convention on Human Rights to "defend himself through legal assistance of his own choosing" (with the concomitant right to private discussions with his lawyers). ... In our judgment, by way of an additional common law qualification or exception to the inviolable nature of legal professional privilege, and in what is likely to be an extremely narrow band of cases, it will be appropriate to impose a requirement that particular individuals can be present at discussions between an individual and his lawyers if there is a real possibility that the meeting is to be misused for a purpose, or in a manner, that involves impropriety amounting ..→2015-11-142015 cases, ICLR summary, Judgment available on Bailii, MHLR summary, Other criminal law cases, Pages using DynamicPageList3 parser function, Transcript
R (Drammeh) v SSHD [2015] EWHC 2984 (Admin), [2015] MHLO 99 — "This is a claim for judicial review of (i) the Defendant's decision of 6 February 2015 (confirmed after further consideration on 16 June 2015) refusing to accept the Claimant's representations as a fresh asylum and human rights claim, and (ii) the lawfulness of the Claimant's detention under immigration powers from 21 November 2014 to 17 April 2015. The Claimant is a foreign criminal with an appalling immigration history, who is liable to deportation in consequence of having been sentenced to 12 months' imprisonment for being concerned in the supply of class A drugs. He has been diagnosed with schizo-affective disorder, which appears to be well-controlled provided that he takes his anti-psychotic medication. Having exhausted his rights of appeal against the refusal of a very belated claim for asylum, he has done everything within his power to avoid being deported." 2015-11-142015 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
XZ v The Public Guardian [2015] EWCOP 35, [2015] MHLO 98 — "This is an application regarding the effectiveness of some provisions contained in a Lasting Power of Attorney ('LPA') for property and financial affairs. It is not a type of application for which permission would normally be given for a judgment to be published. However, paragraph 16 of the Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5, says that "permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest." I can't imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication. ... XZ wants his attorneys to act only when he lacks capacity. In his LPA he has described in intricate detail the ..→2015-11-132015 cases, Brief summary, Judgment available on Bailii, Other LPA cases, Transcript
L v NG [2015] EWCOP 34, [2015] MHLO 97 — Headnote from judgment: "Application by the sister of NG to be appointed as his deputy for property and affairs together with her sons – Even if NG lacked capacity to manage his property and affairs it was not in his best interests to appoint a deputy to manage his property and affairs." The main part of the decision is the following: "Section 16(4) of the Act provides that when deciding whether it is in the relevant person's interests to appoint a deputy, the court must have regard to section 4 (best interests) and the principle that a decision by the court is to be preferred to the appointment of a deputy to make a decision. The fact that a person generally lacks capacity to manage their property and affairs does not automatically mean that it is in their best interests to appoint a deputy to manage their property and affairs. The best interests requirements of section 4 require the court to consider the wishes, feelings, beliefs and values of the person concerned. One of the ..→2015-11-132015 cases, Brief summary, Deputyship cases, Judgment available on Bailii, Transcript
Re HS [2015] EWCOP 33, [2015] MHLO 96 — "I have been asked to reconsider two orders I made on the papers. The first was an order dated 29 October 2014 revoking HS's Enduring Power of Attorney and the second was an order made on 10 December 2014 appointing Essex County Council to be HS's deputy for property and affairs." 2015-11-132015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
The Public Guardian v SR [2015] EWCOP 32, [2015] MHLO 96 — "This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney ('LPA') for property and affairs and directing him to cancel its registration." 2015-11-132015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
A Local Health Board v AB [2015] EWCOP 31, [2015] MHLO 95 — "I conclude that: (a) AB lacks capacity to conduct these proceedings herself. (b) AB lacks capacity to make her own decisions about whether to consent to medical treatment for her cardiac condition including dental surgery. (c) Insofar as the jurisdiction of the court is excluded because of the operation of the MHA and MCA, the inherent jurisdiction should be exercised to grant a declaration that it is lawful and in AB's interests to have the proposed medical treatment administered by the Applicant to her. (d) The inherent jurisdiction should be exercised to grant a declaration that it is lawful and in her best interests for AB to be deprived of her liberty to travel to and to remain at the hospital for the proposed medical treatment but that such physical and/or chemical restraint as may be required to deliver the treatment shall bear in mind the need to maintain her dignity to the maximum extent reasonably possible." (Caution: in relation to paragraph [54], on the MCA eligibility ..→2015-11-132015 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
A Hospital NHS Trust v CD [2015] EWCOP 74, [2015] MHLO 94 — CD was willing to have the total abdominal hysterectomy, in order to remove two very large ovarian growths, which the medical experts recommended. (1) Mostyn J held that she lacked capacity in relation to this but that it was in her best interests to have the surgery. (2) The correct way to interpret the MCA ineligibity rules is as follows: "if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn't (obviously) so she isn't ineligible." (3) In relation to deprivation of liberty the judge noted: "In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054M at para 32 the Court of Appeal stated 'even if Cheshire West is wrong, there is nothing confusing about it'. It may seem that way from the lofty heights of ..→2015-11-132015 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript
Re AFR [2015] EWCOP 73, [2015] MHLO 93 — "This is an application by the Public Guardian to discharge two joint and several deputies for property and affairs on the grounds that they have behaved in a way that has contravened their authority or is not in their father's best interests." 2015-11-122015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re DWA [2015] EWCOP 72, [2015] MHLO 92 — "On 1 October 2014 I made an order on the papers revoking a Lasting Power of Attorney ('LPA') for property and financial affairs in respect of one of three attorneys because I was satisfied that the donor was incapable of revoking the appointment herself and that the attorney in question had behaved in a way that contravened her authority or was not in the donor's best interests. This is an application by the attorney whose appointment was revoked for me to reconsider that decision pursuant to rule 89 of the Court of Protection Rules 2007." 2015-11-122015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
An NHS Trust v A [2015] EWCOP 71, [2015] MHLO 91 — A patient detained under MHA 1983 s3 was not ineligible to be deprived of his liberty in a general hospital under the MCA 2005 for the purpose of physical treatment (and the previous case on this point, A Local Health Board v AB [2015] EWCOP 31, [2015] MHLO 95, should be read as if the judge accidentally omitted a negative and inadvertently and mistakenly stated the law wrongly). 2015-11-122015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript
Re AMH [2015] EWCOP 70, [2015] MHLO 90 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015-11-122015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re H [2015] EWCOP 52, [2015] MHLO 89 — "There are two provisions in the Mental Capacity Act 2005 ('MCA') that seem to contradict each other. Section 16(4)(b) envisages that a deputyship appointment will be of limited duration, whereas section 19(5) facilitates an appointment that could last for decades. ... When it comes to the crunch, section 16(4)(b) trumps section 19(5) because it is a principle to which the court must have regard when deciding whether it in P's best interests to appoint a deputy, while section 19(5) is simply a discretion conferred upon the court, once it has decided to appoint a deputy." 2015-10-312015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re KW [2015] EWCOP 53, [2015] MHLO 88 — "DW objects to the deprivation of liberty and made the application to the Court of Protection on 5th December 2014 pursuant to Section 21A of the Mental Capacity Act 2005 to challenge the purpose of the standard authorisation. The application was made on the following grounds: (a) LCC failed to make an application to the Court of Protection (despite the recommendations of the Ombudsman). (b) LCC failed to take reasonable steps to plan a move for KW to a more suitable placement, closer to her family and KW has suffered distress as a result. (c) It is not in KW's best interests to be deprived of her liberty at R H therefore one of the qualifying requirements of Schedule 1A is not satisfied." 2015-10-312015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
P v Surrey County Council [2015] EWCOP 54, [2015] MHLO 87 — "The issues for me to determine are these: (i) Was P's detention at the care home between 5 September 2014 and 23 December 2014 lawful or was it in breach of Article 5 and/or Article 8? (ii) If P's detention during that period was unlawful or in breach of Article 5, does a right to compensation or damages arise and, if so, how much? No claim for compensation or damages is in fact pursued. (iii) Was P's detention at the care home between 23 December 2014 and the date of cessation of detention lawful pursuant to a properly-made standard authorisation? If not, was it in breach of his Article 5 and/or Article 8 rights? (iv) Does a right to compensation or damages arise and, if so, how much? No claim for compensation or damages is in fact pursued." 2015-10-312015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Re ARL [2015] EWCOP 55, [2015] MHLO 86 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015-10-312015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re RS [2015] EWCOP 56, [2015] MHLO 85 — "The matters before the court proceed as a challenge to the standard authorisation pursuant to Section 21A of the Mental Capacity Act 2005. ... On 28th May ... capacity being the gateway to the jurisdiction of this court a report was ordered pursuant to Section 49 of the Mental Capacity Act 2005 ... I am not prepared to vary or alter the principle behind the original order of 28th May. Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere." 2015-10-312015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re SF [2015] EWCOP 68, [2015] MHLO 84 — "This is an application by the Public Guardian for the court to revoke an Enduring Power of Attorney ('EPA') and to direct him to cancel its registration." 2015-10-312015 cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Re GMP [2015] EWCOP 67, [2015] MHLO 83 — "This is an objection to an application for the appointment of a deputy for property and affairs." 2015-10-312015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re RG [2015] EWCOP 66, [2015] MHLO 82 — "This is an application by Northamptonshire County Council for the court to revoke an Enduring Power of Attorney ('EPA') and to appoint a professional deputy to manage the donor's property and affairs in place of the attorney." 2015-10-312015 cases, Deputyship cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Aidiniantz v Riley [2015] EWCOP 65, [2015] MHLO 81 — "These proceedings in the Court of Protection are the latest setting for the poisonous feud between the children of Mrs Grace Aidiniantz. On this occasion, they dispute where their mother should live, who should care for her, who should see her, and whether her finances should be investigated." 2015-10-312015 cases, Best interests, COP costs cases, Judgment available on Bailii, No summary, Transcript
Re MLJ [2015] EWCOP 63, [2015] MHLO 80 — "This is a contested application for the appointment of an additional deputy to act jointly with the existing deputy for property and affairs." 2015-10-312015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re AJ [2015] EWCOP 62, [2015] MHLO 79 — "This is an application by the respondent for the court to reconsider two orders that were made on the papers. The first order discharged him as his daughter's deputy for property and affairs and the second order appointed a panel deputy to act in his place." 2015-10-312015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Medway Council v M and T [2015] EWFC B164, [2015] MHLO 78 — "In this judgment, within ongoing care proceedings, I have determined the applications by T and Mother under the Human Rights Act for declarations and damages. I have set out below the alarming history of the unlawful accommodation of T by Medway Council for over 2 years, and my reasons for declarations to that effect and for the award of damages of £20,000 each to T and her Mother for breaches of their rights to respect for their family life under Article 8 and to fair trial under Article 6 of the European Convention on Human Rights. [The following are two paragraphs of the judgment which set out just part of the history.] [24] Instead, again, the Social Worker AT, accompanied by Mother's mental health Social Worker, visited Mother on 3.10.13 and purported to obtain a fresh s20 agreement which they were satisfied she understood and had capacity to make as Mother was able to repeat back to them that it was her consent to Medway Council, that it was voluntary and she accepted she ..→2015-10-302015 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Re P (Application for Secure Accommodation Order) [2015] EWHC 2971 (Fam), [2015] MHLO 77 — "In my judgment it is clear that the restrictions imposed by reg. 5(2) on making a secure accommodation order under s.25 in respect of a child over the age of 16 are limited to children who are accommodated as a matter of discretion under s.20(5) and do not extend to children who are accommodated as a matter of duty under s.20(3). Where a looked-after child aged between 16 and 18 is accommodated under s.20(3) of the Children Act 1989 the court has the power to make her the subject of a secure accommodation order under s.25. It follows, therefore, that in this circumstances of this case it is appropriate that the local authority's application for a secure accommodation order be adjourned generally with liberty to restore should circumstances arise in which it considers it appropriate to do so." 2015-10-302015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
CWM TAF University v F [2015] EWHC 2533 (Fam), [2015] MHLO 75 — "This application was issued ... for a declaration under s.15 of the Mental Capacity Act: Firstly, that F lacks capacity; secondly, to make decisions about her clinically assisted nutrition and hydration; and, thirdly, the central issue, that it is not in F's best interests for clinically assisted nutrition and hydration to be continued, that it is lawful and in her best interests for clinically assisted nutrition and hydration to be withdrawn." 2015-10-302015 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Re AB (A child: deprivation of liberty) [2015] EWHC 3125 (Fam), [2015] MHLO 74 — "There is a large measure of agreement between the parties on the relevant factual matrix and the legal principles applicable to the issues I am asked to determine, namely: (1) Whether AB is deprived of his liberty at X. (2) If so, are the parents and/or the local authority entitled to consent to the same? (3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction? (4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases." 2015-10-302015 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript
R (MM and DM) v SSWP (Costs) [2015] UKUT 566 (AAC), [2015] MHLO 73 — Tribunals Judiciary website summary: "When a case is transferred to the Upper Tribunal by the High Court in the exercise of its discretion, the Upper Tribunal will apply the approach to costs taken under CPR." 2015-10-302015 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
R (Letts) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin), [2015] MHLO 72 — "This application for judicial review concerns the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2... What this case boiled down to was a consideration of how Article 2 applies to the suicide of mental health patients and an assessment of the (in)adequacy of the Guidance in reflecting the law. I have come to the conclusion that in one material respect the Guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression of what the law is. ... [I]n the absence of a clear recognition that there is a category of case where the investigative duty arises quite irrespective of the existence of arguable breach by the State the Guidance is materially misleading and inaccurate." 2015-10-282015 cases, ICLR summary, Inquest cases, Judgment available on Bailii, No summary, Transcript
Rochdale MBC v KW [2015] EWCA Civ 1054, [2015] MHLO 71 — (1) The judge (in his second decision) had misinterpreted the consent order (on appeal from his first decision) when he said that the Court of Appeal had not decided that KW was being deprived of her liberty. Therefore, this second appeal would be allowed. (2) The judge was also wrong to say that the Court of Appeal had taken "a procedurally impermissible route" so that its decision was "ultra vires". An order of any court is binding until it is set aside or varied: it is futile and inappropriate for a judge to seek to undermine a binding order by complaining that it was ultra vires or wrong for any other reason. In any event, the consent order was made by a procedurally permissible route: the appeal court has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. If the appeal court is satisfied that (i) the parties' consent to the allowing of the appeal is ..→2015-10-232015 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
North Yorkshire County Council v MAG [2015] EWCOP 64, [2015] MHLO 69 — The Council sought a declaration that it was in MAG's best interests (a) to be deprived of his liberty and reside in his current placement, and (b) for the Corporate Director of Health and Adult services to enter into a tenancy agreement on MAG's behalf in relation to the current placement. (1) The reference in Re MN (An Adult) [2015] EWCA Civ 411 to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. (2) The placement at which MAG had been deprived of his liberty for 9 years did not meet his needs (for instance, there was insufficient room to manoeuvre a wheelchair indoors, so he had to mobilise on his hands and knees causing physical problems including bursitis and a recurring fungal infection in his thigh) and the council had not taken ..→2015-10-072015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript
Re PAW [2015] EWCOP 57, [2015] MHLO 68 — "This is a contested application for the appointment of a deputy for property and affairs." 2015-09-302015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
DGP Law v DGHP [2015] EWCOP 58, [2015] MHLO 67 — "This is a reconsideration of a decision made on the papers on 16 February 2015 by District Judge Bellamy, who dismissed the respondents' objections to the applicant's application to be appointed as her mother's deputy for property and affairs." 2015-09-302015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re NRA [2015] EWCOP 59, [2015] MHLO 66 — "I have ten cases before me seeking welfare orders under s. 16(2)(a) of the Mental Capacity Act 2005 (the MCA). The welfare orders are sought to authorise the deprivation of liberty that, it is common ground, is being, or will be, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. If it had been thought that the care packages did not result in a deprivation of liberty it is highly likely that the relevant public authorities would have relied on s. 5 of the MCA and no application to the Court of Protection would have been made. When the cases were transferred to me they were regarded as test cases on the directions that should be given for their determination and in particular on whether the subject of the proceedings (P) should be a party." 2015-09-302015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Re ME [2015] EWCOP 61, [2015] MHLO 64 — "This is an objection to an application for the appointment of a deputy for property and affairs." 2015-09-302015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
PJ v A Local Health Board [2015] UKUT 480 (AAC) — 
CTO DOL condition The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then ..→
2015-09-102015 cases, CTO cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Commissioner of the Police of the Metropolis v Ahsan [2015] EWHC 2354 (Admin), [2015] MHLO 62 — The Commissioner of Police of the Metropolis applied for an order to impose notification requirements for a period of 15 years on Syed Talha Ahsan under the Counter-Terrorism Act 2008. The notification order would require him for that period to attend police stations to provide, and update, information about his living arrangements and to provide details about his travel plans, for which permission can be refused; breach of the requirements is punishable with imprisonment of up to 5 years. (1) Ahsan had been convicted in the United States of providing material assistance for the Taliban, while they were harbouring Osama bin Laden, through his involvement in a US-hosted website, but he argued that this did not constitute an act which "would have constituted an offence… if it had been done in any part of the United Kingdom…" because it was in fact done within the United Kingdom. The judge decided that (a) Parliament must have intended that the notification requirements should ..→2015-08-232015 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
SL v Ludlow Street Healthcare [2015] UKUT 398 (AAC) — The patient was living outside hospital on s17 leave but was required to attend hospital for fortnightly psychology sessions and a monthly ward round. He challenged the tribunal's decision that it remained appropriate for him to be liable to be detained in hospital under s3 for medical treatment. This was unsuccessful as the tribunal had applied the correct legal test and had applied it properly. The UT judge added that medical treatment includes rehabilitation under medical supervision, which meant that the s17 leave and the rehabilitation provided outside hospital, both of which operated under medical supervision, were themselves part of the treatment plan. 2015-08-072015 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
R (Samadi) v SSHD [2015] EWHC 1806 (Admin), [2015] MHLO 59 — "This is the hearing of the Claimant's claim for damages for what he argues was his unlawful immigration detention for 19 days from 14 May to 1 June 2012. In broad summary his case is that there were breaches of §55.10 of the Defendant's Enforcement Instructions and Guidance (the 'Guidance') which provides for two categories of potential detainees who will normally only be considered suitable for detention in very exceptional circumstances: (a) those suffering from serious mental illness which cannot be satisfactorily managed in detention, and (b) those where there is independent evidence that they have been tortured. It is the Claimant's case that he fell into both those categories; and that in any event the Defendant (c) wrongfully continued to detain him after it had become clear that his removal was no longer imminent." 2015-08-072015 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
Case HM/0339/2015 [2015] MHLO 57 (UT) — After the case had been adjourned part-heard, the patient's withdrawal was agreed by a tribunal clerk. The panel judge spoke with a salaried tribunal judge, who then set aside the decision to consent to withdrawal, and the tribunal reconvened without discharging the patient. The salaried tribunal judge's decision was unlawful and the tribunal therefore had no jurisdiction to continue with the hearing. (Under the subsequent Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 (27/4/15) the original decision would not have been made by a clerk.) 2015-07-262015 cases, Brief summary, Judgment available on MHLO, MHLR summary, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re EL: Public Guardian v CS [2015] EWCOP 30, [2015] MHLO 56 — "This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney ('LPA') for property and financial affairs and directing him to cancel its registration." 2015-07-202015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re HC: Public Guardian v CC [2015] EWCOP 29, [2015] MHLO 55 — "This is an application by the Public Guardian for an order under section 16(8) of the Mental Capacity Act 2005 revoking the appointment of a deputy because he has behaved in a way that contravenes the authority conferred on him by the court or is not in the best interests of the person for whom he acts as deputy." 2015-07-202015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re SM: Public Guardian v MO [2015] EWCOP 27, [2015] MHLO 54 — "This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015-07-202015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re ED: Public Guardian v JD [2015] EWCOP 26, [2015] MHLO 53 — "This is an application by the Public Guardian to revoke an Enduring Power of Attorney." 2015-07-202015 cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Re LC: Bedford Borough Council v Mrs C and Mr C [2015] EWCOP 25, [2015] MHLO 52 — "The proceedings concern Mrs C’s best interests in relation to residence and her contact with her husband and a deprivation of her liberty. ... There is also in existence a separate application by the local authority for a deputy for property and affairs to be appointed for her." 2015-07-202015 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Newcastle City Council v PV [2015] EWCOP 22, [2015] MHLO 51 — "This judgment considers the role of the Court of Protection in connection with applications to the Criminal Injuries Compensation Authority ('CICA'). In particular, it looks at cases in which the CICA requires a trust to be created in order to exclude any possibility that the assailant may benefit from the compensation award. These cases arise almost exclusively in the context of domestic violence, where the assailant is a family member." [See appeal decision.] 2015-07-202015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
The Mental Health Trust v DD [2015] EWCOP 4, [2015] MHLO 50 — "For the reasons set out above, I propose to declare: (i) pursuant to section 15 of the 2005 Act that DD lacks capacity to litigate in relation to the relevant issues; (ii) pursuant to section 15 of the 2005 Act that DD lacks capacity to make decisions in respect of contraception; (iii) pursuant to section 15 of the 2005 Act that it is lawful and in DD's best interests to undergo a therapeutic sterilisation and authorise the applicants' staff to do so, together with the provision of all ancillary care and treatment; Further, (iv) subject to certain safeguards (more fully set out in the care plan and reflected in the proposed draft order) being required, I propose to authorise the applicants to remove DD from her home and take steps to convey her to hospital for the purposes of the sterilisation procedure, and authorise the use of reasonable and proportionate measures to ensure that she is able to receive the said treatment even if any deprivation of liberty is caused by the same; (v) ..→2015-07-202015 cases, Best interests, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
SSJ v KC [2015] UKUT 376 (AAC) — 
Conditional discharge and DOL (1) A conditional discharge may include conditions which will, on an objective assessment, give rise to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA. (2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no Article 5 deprivation of liberty.

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2015-07-152015 cases, Cases, Deprivation of liberty, Discharge conditions cases cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re MOD (Deprivation of Liberty) [2015] EWCOP 47, [2015] MHLO 48 — Nine cases which had been issued under the Re X streamlined procedure were listed for directions before DJ Marin. (1) One case (ML) would require a best interests hearing so never really belonged in the Re X procedure, but orders under the Re X procedure would or would potentially have been made in the other cases. (2) The Court of Appeal in Re X had (obiter, and without referring to new rule 3A) decided that P should be a party in every deprivation of liberty case. (3) Party status would entail the need for a litigation friend but, except for an IMCA in one case (MOD), no-one suitable had been identified: (a) in most of these cases, the family may be said to have an adverse interest to the person concerned; (b) there must be a question in every case as to whether family members have the required expertise; (c) the Official Solicitor refused to act as his COP Health & Welfare team was already "fire-fighting" at an unsustainable level owing to budgetary constraints; (d) IMCAs in one ..→2015-07-122015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Transcript
R (MT) v Oxford City Council [2015] EWHC 795 (Admin), [2015] MHLO 47 — The claimant's application via his deputy to the defendant as homeless was rejected on the basis that his lack of capacity to make such an application meant that there was no duty under Part 7 of the Housing Act 1996. (1) The claimant's argument that Article 14 (with Article 8) meant the otherwise-binding House of Lords decision in Garlick should not be followed was unsuccessful. (2) In any event, it is not discriminatory to provide two different systems for provision of accommodation (the system potentially available to MT was at that time s21 National Assistance Act 1948). 2015-06-262015 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
Re A [2015] EWHC 1709 (Fam), [2015] MHLO 45 — "The Local Authority applies for a secure accommodation order in respect of her under s.25 of the Children Act 1989. The Local Authority's case is that A is a danger to herself and others, and that she is no longer containable in any form of ordinary residential unit. ... Put in lay language, the expert consensus of CAMHS is that A's problems, although recognised as being severe and extreme, are not of a mental health or psychiatric nature; but rather are of a behavioural nature. Therefore, admission to a Young Person's Psychiatric Unit for assessment and potential subsequent treatment is not currently 'on offer' as a way of dealing with A's problems. ... Conventionally, a specific placement is identified before a secure accommodation order is made. However, that is simply not possible here, and both the Local Authority and the Children's Guardian invite me to make the order in general terms, leaving it to the Local Authority, on consultation with the Children's Guardian, to place A ..→2015-06-242015 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44 — This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (MCA 2005 s53), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, ..→2015-06-172015 cases, Deprivation of liberty, Detailed summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
AF v Nottinghamshire NHS Trust [2015] UKUT 216 (AAC), [2015] MHLO 43 — "There is nothing in the law that requires the social circumstances report to have been written by a social worker or CPN and not a nurse, or requiring that the nursing report and social circumstances reports must have different authors, and the tribunal therefore did not err in law in having those two reports before it. Nor was there any legal requirement on the report’s author to attend the hearing and so the tribunal did not err in law in allowing another nurse to attend and speak to that report. Further, the question of whether any deficits in the report (assuming there were such) led the tribunal to err in law must be judged on the facts of the individual case. In a case where the tribunal decided that the appellant had not got to the point of being able to be discharged and needed to remain under section, the relevance of any after-care package in place simply falls away. And the tribunal adequately explained why it was not adjourning." 2015-06-082015 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions
KD v A Borough Council [2015] UKUT 251 (AAC), [2015] MHLO 42 — "Permission to bring this appeal was granted by the First-tier Tribunal (the FTT) because in the view of the judge it raises points upon which guidance is needed. Those points concern the relationship between the functions and powers of the FTT under the Mental Health Act 1983 (the MHA) and those of the Court of Protection, managing authorities and supervisory bodies under the Mental Capacity Act 2005 (the MCA) and its Deprivation of Liberty Safeguards (DOLS). The most relevant provisions of the MHA in this case are those relating to guardianship." This judgment includes guidance under the headings "The approach to be taken by the parties and the FTT on an application to discharge a guardianship under s. 72 of the MHA on the basis that an alternative has the consequence that the guardianship is no longer necessary as it is not the least restrictive way of achieving what is in the patient’s best interests" and "A check list for FTT’s when an issue involving an argument that an ..→2015-06-082015 cases, 39 Essex Chambers summary, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
LB Redbridge v G (No 6) [2015] EWCA Civ 446, [2015] MHLO 40 — The Official Solicitor unsuccessfully appealed against an order that Associated Newspapers Limited should pay (only) 30% of his costs. (1) The primary ground of appeal - that the COP Rules did not apply - was described by the Court of Appeal as "simply a device to suggest that the costs presumption should be reversed". (2) The alternative ground was that if the COP Rules did apply then the judge had erred in the exercise of his discretion in the proportionate costs order that he made. In relation to this the Court of Appeal held that (a) given that inaccurate letters from the OS (stating that that ANL were prevented from visiting G) had triggered ANL's application, and that the OS had not understood the public importance of the media's general role, a proportionate costs order was unsurprising; and (b) multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. 2015-05-232015 cases, 39 Essex Chambers summary, Brief summary, COP costs cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
H v USA [2015] EWHC 1066 (Admin), [2015] MHLO 37 — Extradition case with mental health factual background. 2015-04-292015 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
W City Council v Mrs L [2015] EWCOP 20, [2015] MHLO 35 — "This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer's disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues: (a) whether the care arrangements for the lady (Mrs L) constitute a deprivation of her liberty; (b) if so, then whether the State is responsible for such deprivation of liberty; and (c) if so, then whether such deprivation of liberty should be authorised by the court and what the arrangements for continuing authorisation should be." 2015-04-162015 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
NM v Kent County Council [2015] UKUT 125 (AAC), [2015] MHLO 34 — NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS ..→2015-04-102015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
R v Marshall [2015] EWCA Crim 474, [2015] MHLO 32 — "On 12th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986. On 12th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years. With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order. ... Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal." 2015-03-312015 cases, Hospital order cases, Judgment available on Bailii, No summary, Transcript
Donna v Martin [2015] EWCOP 23, [2015] MHLO 31 — "This is an application under rule 89 of the Court of Protection Rules 2007 inviting me to reconsider an order I made on the papers on 27 November 2014. As this is a case in which there is a dispute as to who should act as a deputy, I am required ... to publish this judgment." 2015-03-292015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Re CJ: Public Guardian v MP [2015] EWCOP 21, [2015] MHLO 30 — "This is a reconsideration of a decision made on the papers on 4 November 2104 by District Judge S. E. Rogers, who made an order: (a) revoking the respondent's appointment as his partner's deputy for property and affairs; and (b) inviting a panel deputy to apply to be appointed as deputy in his place. ... I am absolutely certain that there has been no dishonest misappropriation of CJ's funds by MP, but that's not the point. ... To turn a blind eye to MP's wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG's supervision and compliance teams, which cannot possibly be in the public interest. It would also ride roughshod over the court's obligations under international human rights law to ensure that the protective measures it makes contain appropriate and effective safeguards to prevent abuse: United Nations Convention on the Rights of Persons with Disabilities, Article 12.4. ... Accordingly, I confirm District Judge Rogers' ..→2015-03-262015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Baker v Cambridgeshire and Peterborough NHSFT [2015] EWHC 609 (QB), [2015] MHLO 29 — "This action arises out of the tragic suicide of Philip Baker ... The claim is brought on behalf of his widow, Pauline Baker ... It is alleged that the treatment plan provided by Dr Kabacs on 29 September was inadequate and her decision on 26 October 2010 to discharge Mr Baker to the care of his general practitioner, caused him to take his own life." 2015-03-242015 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Re ID (Revocation of LPA) [2015] EWCOP 19, [2015] MHLO 28 — "This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney." 2015-03-242015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re AW [2015] EWCOP 16, [2015] MHLO 27 — "These are competing applications by DB and DW to be appointed as AW's deputy for property and affairs." 2015-03-242015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
BG v MHTS [2015] CSIH 18, [2015] MHLO 26 — "This is an appeal by JG’s son from a decision of the sheriff principal of Lothian and Borders refusing his appeal against a decision of the Mental Health Tribunal for Scotland. The decision of the MHTS which he had appealed against was a decision to make a compulsory treatment order in relation to his mother." 2015-03-242015 cases, Judgment available on Bailii, No summary, Scottish cases, Transcript
Re PL (Objection Hearing) [2015] EWCOP 14, [2015] MHLO 25 — "This is an objection by PL's daughters to his son's application to be appointed as his deputy for property and affairs." 2015-03-242015 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
Rochdale MBC v KW [2015] EWCOP 13, [2015] MHLO 24 — (1) The Court of Appeal's decision to allow an appeal against the judge's earlier decision (that KW was not being deprived of her liberty at home) by consent, and without an oral hearing or judgment, was procedurally impermissible. (2) Although the Court of Appeal had set aside the decision, it had not actually declared that KW was deprived of her liberty: therefore, her status will be in limbo until the judge decides the matter at an oral 12-month review hearing. (3) The provisions for a review on the care plan becoming more restrictive would only be triggered if the changes amount to bodily restraint comparable to that which obtained in Cheshire West, as any restrictions short of that would amount to no more than arrangements for her care in her own home and would not amount to state detention. (4) The judge concluded that: "In this difficult and sensitive area, where people are being looked after in their own homes at the ..→2015-03-242015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
A Healthcare NHS Trust v P and Q [2015] EWCOP 15, [2015] MHLO 23 — "The Trust ... applied to the Court for a declaration in P's best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. ... At the same time they also applied for a reporting restriction order with accompanying documentation. When they sought to serve that material on the Press Association through the service known as CopyDirect, but now in fact called the Injunctions Alert Service, the second respondent objected to the disclosure of any identity either of P or of P's family. ... As a result I listed a hearing ... for the Court to consider four questions: (Generally) (1) Whether in applications for reporting restrictions orders the applicant, when notifying the Press of the application, is required to identify the parties and or P. (Specifically in this application) (2) Whether further hearings in these proceedings should be heard in public. (3) Whether there should be any reporting restrictions in relation to these ..→2015-03-242015 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re BN [2015] EWCOP 11, [2015] MHLO 22 — "This is an application under rule 89 of the Court of Protection Rules 2007 for me to reconsider an order I made on the papers. ... BN does not lack capacity to revoke the LPAs and, indeed, she has no wish to revoke them, so the court is powerless to intervene. ... CN acted in bad faith, was motivated by spite, and was unsuccessful. BN responded to the application by taking advice from her solicitors, who sensibly narrowed the matter down to a single issue. It would be unjust to expect BN to pay the legal costs she had to incur in order to resist such an unmeritorious application." 2015-03-242015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Sekerani v SSHD [2014] UKAITUR DA/00301/2014, [2014] MHLO 144 — "The appellant had claimed asylum on the bases that he fears the ZANU PF in Zimbabwe which claim was rejected in 2003. The appellant no longer relies on his asylum claim but on his claim for humanitarian protection. The appellant claims he cannot return to Zimbabwe because of his mental health problems as he has been diagnosed as suffering from paranoid schizophrenia. He relies on a report from Dr Gillian Wainscott, a consultant psychiatrist dated 27 February 2014. The appellant claims that he has established a family and private life in the United Kingdom because he has a cousin in this country who has been helping him." 2015-03-242014 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
Re DT: Public Guardian v IT [2015] EWCOP 10, [2015] MHLO 21 — "This is an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney. It is unusual for me to dismiss an application by the Public Guardian, but on this occasion I am not satisfied that the order he is seeking: (a) is proportionate; (b) is less restrictive in terms of DT's rights and freedom of action; (c) respects DT's rights, will and preferences; (d) warrants public interference in his private and family life; or (e) is in his best interests." 2015-03-242015 cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Re F [2004] EWHC 725 (Ch) — "This is an appeal from the refusal of Master Lush, the Master of the Court of Protection, to register an enduring power of attorney dated 10th July 2000 which was made by the donor (Mrs F) in favour of her son (Mr A). The Master upheld an objection to registration on grounds of the unsuitability of Mr A to be the donor's attorney, which was lodged by his sister (Mrs B)." 2015-03-242004 cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
Re GW [2015] EWCOP 9, [2015] MHLO 20 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs because the attorney has behaved in a way that contravenes his authority and is not in the donor's best interests." 2015-03-242015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
R v M [2014] EWCA Crim 1641, [2014] MHLO 143 — "The Advice on Appeal submitted on behalf of the applicant contains two grounds: first, that the judge was wrong in principle to make a s45A hospital and limitation direction when the conditions for making a restriction order under section 41 were not met; and second, that a section 37 order was the appropriate order. Those orders and directions refer to the provisions of the Mental Health Act 1983, as amended by the Mental Health Act 2007. The Registrar has also referred the making of the Victim Surcharge Order to the full court on two separate issues." 2015-02-122014 cases, Hybrid order cases, Judgment available on Bailii, No summary, Transcript
YA v Central and NW London NHSFT [2015] UKUT 37 (AAC), [2015] MHLO 18 — This case concerned the appointment and duties of a legal representative appointed by the tribunal under rule 11(7). There is a distinction between the rule 11 test (capacity to ‘appoint a representative’) and capacity to conduct proceedings, but this is ‘theoretical rather than real’. The judge decided this as otherwise (given the wording of the rule 11 test) there would be cases where the tribunal could not make an appointment. The role of an appointed legal representative is akin to the role of the litigation friend in civil proceedings – ‘to provide that a patient has an effective role in the proceedings and his best interests are advanced and considered by them’. The representative should ‘advance all arguable points to test the bases for the detention in hospital’ unless he disagrees with the patient’s wishes, in which case he should ‘advance such arguments as [he] properly can in support of the patient’s expressed views…’. Having been appointed ..→2015-02-122015 cases, Detailed summary, Judgment available on Bailii, MHT capacity cases, Transcript, Upper Tribunal decisions
AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC) — 
Deputyship and MHT A personal welfare deputy cannot appoint himself (or anyone else) as a representative unless the order appointing him expressly provides for this. This case related to the withdrawal of a tribunal application, and was followed up by Tribunal Policy: Withdrawals (23/2/15).

AACR summary

The following is the summary from [2015] AACR 31Not on Bailii!:

Mr Justice Charles CP

HM/1885/2014

4 February 2015

Mental health – assessment of capacity – whether a welfare deputy had power to withdraw an appeal

The appellant suffered serious brain damage following an accident, which affected his behaviour, memory and executive functioning. If unable to remember past events he would confabulate, making his recollection of them unreliable. The appellant had been admitted to hospital on numerous occasions on mental health grounds. His mother was his ..→
2015-02-122015 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, MHT capacity cases, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re SB: Public Guardian v BB [2015] EWCOP 7 [2015] MHLO 15 — "This is an application to revoke a Lasting Power of Attorney for property and financial affairs because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests. It is also a contested application as to who should be appointed as SB's deputy for property and affairs in place of the attorneys." 2015-02-122015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re EG: Public Guardian v GB [2015] EWCOP 6, [2015] MHLO 14 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs ('LPA') because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests." 2015-02-122015 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
R (Kent CC) v SSH [2015] EWCA Civ 81, [2015] MHLO 13 — "This case concerns the question of which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the National Assistance Act 1948. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere." 2015-02-122015 cases, Community care, ICLR summary, Judgment available on Bailii, Transcript
Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, [2015] MHLO 12 — "The single issue in this appeal is whether the appellant, a mentally disordered patient unlawfully detained in hospital for some 442 days, is entitled to substantial damages instead of the nominal damages awarded by the judge, in circumstances where he would anyway have been detained lawfully had the defendant NHS trust been aware of the unlawfulness. ... I would dismiss this appeal." 2015-02-122015 cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript, Unlawful detention cases
Re AJ (DOLS) [2015] EWCOP 5, [2015] MHLO 11 — "This case raises a number of issues about the provisions of the Mental Capacity Act 2005, and in particular the amendments that were introduced into that Act by the Mental Health Act 2007 concerning the procedures to be followed in cases of deprivation of liberty. The provisions under consideration include the selection and appointment of relevant person's representatives under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty." 2015-02-122015 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Transcript
MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10 — (1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a ..→2015-01-312015 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
Cambridgeshire County Council (13 016 935) [2015] MHLO 9 (LGO) — 
Capacity assessment - maladministration "The Council failed to act in accordance with the Mental Capacity Act. It did not conduct adequate mental capacity assessments or properly consider best interests. The Council did not fulfil its obligations under the Choice of Accommodation Directions."

Summary of report from LGO website

Category: Adult care services > Residential care

Decision: Upheld

Decision date: 20 Jan 2015

Summary

Complaint from a woman that the council moved her husband into a residential home against both his and her wishes. She says she was forced to accept this course of action and the council failed to properly consider her preference of care home.

The complaint

Complaint from a woman that the council moved her husband into a residential home against both his and her wishes. ..→

2015-01-312015 cases, Cases, Community care, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
Border v Lewisham and Greenwich NHS Trust [2015] EWCA Civ 8, [2015] MHLO 8 — "This is an appeal against an order ... which ... dismissed the claimant's claim for damages for clinical negligence. Permission to appeal was granted on a single ground, which relates to the issue of the claimant's consent to a particular medical procedure, namely the insertion of a cannula into her left arm for the purpose of intravenous access. ... A finding of absence of consent to the insertion of the cannula leads inexorably in this case to a finding of breach of duty in inserting it. The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it ... I would dispose of the appeal by (i) granting a declaration that Dr Prenter was in breach of his duty of care by inserting the cannula without the claimant's consent and (ii) remitting the matter to ..→2015-01-312015 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Re RG: Public Guardian v PB [2015] EWCOP 2, [2015] MHLO 6 — "This is an application for the court to reconsider an order made on the papers, partially revoking an enduring power of attorney." 2015-01-302015 cases, Judgment available on Bailii, No summary, Other EPA cases, Transcript
R v Wells [2015] EWCA Crim 2, [2015] MHLO 5 — "In each appeal and application before the court, the defendant has been found unfit to plead: that is to say, based on medical evidence, the court has found that one or more of the following criteria is satisfied namely that he or she does not have the ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror, to understand the evidence. ... Where a defendant's disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances." 2015-01-302015 cases, ICLR summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Unfitness and insanity cases
LB Hillingdon v PS [2015] MHLO 3 (COP) — Faced with an impasse about contact between PS and M, Hillingdon asked the court to determine what was in PS's best interests. Permission was required under MCA 2005 s50 and CS objected to the grant of permission. The factors in s50 required for permission were satisfied. Also, the court could give effect to the rules in accordance with the overriding objective (dealing with the case justly, including having regard to proportionality). The judge gave the following directions: (a) M to be served with a copy of the application and joined as a party; (b) CS to be joined as party; (c) permission to the attorneys to intervene; (d) final hearing listed and provision made for statements to be filed; (e) Court of Protection Visitor to visit PS to ascertain his wishes and feelings and to gather information relevant to the issue of contact in the same way Cafcass would report in a children's case; (f) costs reserved. 2015-01-292015 cases, Best interests, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript
Essex County Council v RF [2015] EWCOP 1, [2015] MHLO 2 — (1) A final declaration was made that P lacked capacity to make decisions in relation to his residence and care arrangements, but retained capacity to make decisions in relation to contact with others. (2) In considering quantum for unlawful detention there is a difference between procedural breaches (which would have made no difference to P's living or care arrangements) and substantive breaches (where P would not have been detained if the authority had acted lawfully). (3) The judge approved the following compromise agreement: (a) a declaration that ECC unlawfully deprived P of his liberty for approximately 13 months; (b) £60,000 damages; (c) care home fees to be waived (around £23-25,000); (d) damages to be excluded from means testing for community care costs; (e) costs to be paid (may exceed £64,000). (4) The judge described the situation as follows: "It is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91 year old gentleman in the final ..→2015-01-212015 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript
The Mental Health Trust v DD [2014] EWCOP 44, [2014] MHLO 141 — "I do not propose to give a detailed judgment in this case today in light of the large measure of agreement. However, I want to make some comments about the proposed draft order. ... In preparation for this four day hearing, in which I was to be considering questions of long-term contraception or sterilisation of DD, I have read with care ..." 2015-01-142014 cases, Best interests, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
R (AMG) v SSHD [2015] EWHC 5 (Admin), [2015] MHLO 1 — Immigration case with mental health background. 2015-01-132015 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
DD v SSHD [2014] EWHC 3820 (Admin), [2014] MHLO 140 — "Currently, the effects of the [Terrorism Prevention and Investigation Measure] in general, whatever the particular effects of certain restrictions, and the effects of the three most contentious conditions apart from the tag, plainly do not cross that high threshold so as to breach of Article 3. I reach that conclusion recognising that the maintenance of the TPIM and those conditions is significantly worse for DD than for a person who is in normal mental health, and that particular care is required in judging whether a mentally ill and vulnerable person is being treated with proper respect for the fact that he is a human being. The tag as described by Professor Fahy and Dr Deeley is undoubtedly the most severe requirement in its impact on DD, because of his paranoid ideation. DD's delusions about the tag being an explosive device and a camera are very frightening and distressing. He wants to remove it, as voices tell him to, yet knows this would continue with the cycle of breaching ..→2014-12-312014 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Lazariu v Romania 31973/03 [2014] ECHR 1219, [2014] MHLO 139 — Detention in psychiatric hospital breached Article 5(1) and (4). 2014-12-312014 cases, Deprivation of liberty, ECHR, Judgment available on Bailii, No summary, Transcript
Lucia Benyu (strike off) and Ronnie Benyu (section 43 order) [2014] MHLO 138 (SDT) — (1) In relation to Lucia Shingirai Benyu, née Ndoro, who at the material time practised as a sole practitioner under the style of Peters & Co Solicitors, the Solicitors Disciplinary Tribunal concluded that: "The First Respondent had admitted a lack of integrity and had had several allegations of dishonesty proved against her. The Tribunal had heard a litany of the most ruthless exploitation of an obviously vulnerable individual and had disbelieved much of what the First Respondent had to say whilst giving evidence on oath. In cases where dishonest misappropriation of client’s funds had been found then it was well-established that that would invariably lead to strike off. There were no circumstances put before the Tribunal that might lead it to mitigate that penalty. The First Respondent would be struck off the Roll of Solicitors. Indeed, the seriousness of her misconduct was such that this would have been the appropriate sanction even if she had not been found to be dishonest." ..→2014-12-312014 cases, Brief summary, Judgment available offline, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, SRA decisions, Transcript
AG's reference (no 91 of 2014) sub nom R v Joseph Williams [2014] MHLO 137 (CA) — The trial judge had imposed a sentence of 14 years' imprisonment, together with with a s45A hospital order and limitation direction, on an offender (W) who had pleaded guilty to attempted murder. Following an AG's reference the Court of Appeal held that: (1) The appropriate range was 17-25 years, the starting point was 20 years after a trial, and the judge was not at fault for reducing the sentence by six years given the unusual facts of the case that related to W's mental health. (2) It was not certain that the offence was motivated by antipathy to V's sexual orientation; it could equally have been the case that W did not want to share his flat with anyone. (3) As the judge considered that W's dangerousness was not confined to his mental illness, he should have passed an extended sentence to protect the public in the event that the criteria for the hospital order and restrictions were no longer satisfied, but the offender remained a risk to the public. (4) An extended period of ..→2014-12-312014 cases, Brief summary, Hybrid order cases, Neutral citation unknown or not applicable, Sentence appeal cases, Transcript
Kicks v Leigh [2014] EWHC 3926 (Ch), [2014] MHLO 136 — "The Claimants claim that the transfer by Mrs Smith to the Defendant of the Proceeds should be set aside on either of two grounds, namely that: (1) Mrs Smith lacked the mental capacity to make such a gift or transfer; (2) The gift or transfer was procured by the Defendant's exercise of undue influence over Mrs Smith." 2014-12-312014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Hysaj v SSHD [2014] EWCA Civ 1633, [2014] MHLO 135 — In each of these three cases, which were heard together, the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time. The mental health case involved a nearest relative who had been awarded costs after displacement proceedings and who (nearly six years out of time) wished to appeal against the sum ordered by the judge. The Court of Appeal, having held that the guidance in the Mitchell and Denton cases applied to applications for extensions of time for filing a notice of appeal, dealt with some questions of general importance (public law cases, shortage of funds, litigants in person, the merits). In the mental health case, the extension of time was refused. 2014-12-312014 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWCA Civ 1350, [2014] MHLO 134 — This appeal by Aster Healthcare was unsuccessful. 2014-12-312014 cases, Community care, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Aster Healthcare Ltd v The Estate of Mohammed Shafi [2014] EWHC 77 (QB), [2014] MHLO 133 — "This is an appeal from the decision ... to grant summary judgment to the Claimant in a claim against the Estate of the late Mr Mohammed Shafi for outstanding care home fees. It raises interesting and important issues about the relationship between section 7 of the Mental Capacity Act 2005 and the provisions of Part III of the National Assistance Act 1948, Part III of the National Health Service and Community Care Act 1990, and related statutes, regulations and guidance that concern the obligations or powers of a local authority to provide residential accommodation and care services for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. ... The total amount claimed is £62,199.94. The key issue is who, if anyone, is legally liable for payment of fees to the Claimant? There are only two candidates; the Estate of the late Mr Shafi (represented by his wife), and Brent." 2014-12-312014 cases, Community care, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
R (Guntrip) v Parole Board [2014] EWHC 4180 (Admin), [2014] MHLO 132 — (1) When the prisoner was transferred to psychiatric hospital an unlawful and unfair decision was taken to cancel (rather than adjourn) a Parole Board hearing. (2) The delay of 12 months breached Article 5(4) and damages of £2,500 were awarded. 2014-12-312014 cases, Brief summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Prison law cases, Transcript
Re BM [2014] EWCOP B20, [2014] MHLO 131 — "This is a case in which there is a dispute as to who should be appointed as BM’s deputy for property and affairs." 2014-12-312014 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
LB Tower Hamlets v TB [2014] EWCOP 53, [2014] MHLO 130 — "All parties are agreed that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues that I have to decide are these: (i) Where should TB live in her best interests? ... (ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests? (iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does. (iv) Whatever I decide about residence does her care regime amount to a deprivation of liberty within the terms of Article 5?" 2014-12-312014 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
The Public Guardian v VT [2014] EWCOP 52, [2014] MHLO 129 — This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs on the ground that the donee of the power has behaved in a way that contravenes her authority or is not in the donor's best interests. 2014-12-312014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
The Public Guardian v CT [2014] EWCOP 51, [2014] MHLO 128 — "This is the first occasion on which a respondent has sought an order for costs against the Public Guardian in respect of a safeguarding application regarding the respondent's conduct as the donee of a Lasting Power of Attorney." 2014-12-312014 cases, COP costs cases, Judgment available on Bailii, No summary, Other LPA cases, Transcript
Royal Free NHSFT v AB [2014] EWCOP 50, [2014] MHLO 127 — "The Trust seeks three declarations that: (a) AB lacks capacity to consent to medical treatment, including to a Caesarean Section; (b) AB lacks capacity to monitor and regulate her own intake of food and/or drink; (c) AB lacks capacity to decide whether to comply with her regime of diabetic medication." 2014-12-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Gloucestershire CCG v AB [2014] EWCOP 49, [2014] MHLO 126 — "All parties are now agreed that AB's life is futile, in the sense of that word used by Lord Goff in the Bland case. ... AB has no awareness. He merely exists. There is no prospect of recovery. This court accepts the fundamental importance of the sanctity of life, but, as Butler-Sloss P noted in the passage cited above, that is not an absolute principle and does not impose an obligation to provide treatment where life is futile. ... I unhesitatingly conclude that ... it would be in his best interests for artificial nutrition and hydration to be withdrawn, provided this is carried out in an appropriate fashion by nursing staff trained in the provision of palliative care. In his final report, Professor Wade makes a number of recommendations as to the management of the withdrawal of artificial nutrition and hydration and subsequent treatment ... and I endorse those recommendations." 2014-12-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2014] MHLO 125 — "Two cases that I heard on consecutive days last month illustrate the problem of delay and expense in proceedings in the Court of Protection. In Case A, the proceedings lasted for 18 months. ... In Case B, the proceedings lasted for five years. ... Each case therefore generated legal costs at a rate of approximately £9,000 per month. ... The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case ..→2014-12-302014 cases, COP costs cases, Judgment available on Bailii, No summary, Transcript
The Public Guardian v Marvin [2014] EWCOP 47, [2014] MHLO 125 — "This is an application by the Public Guardian to revoke two Lasting Powers of Attorney – an LPA for property and financial affairs and an LPA for health and welfare. The attorney concedes that he has contravened his authority and failed to act in the donor's best interests in respect of the donor's property and affairs, and has no objection to court revoking the LPA for property and financial affairs. However, he does not consider that he has contravened his authority or failed to act in the donor's best interests with regard to the donor's health and welfare." 2014-12-302014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Barnsley MBC v GS [2014] EWCOP 46, [2014] MHLO 124 — "I very respectfully do not agree with the reasoning in paragraph 6 of the guidance [which was issued jointly by the Ofsted and the President of the Court of Protection on 12/2/14]. There is nothing in either the legislation, or the regulations, or the [National Minimum Standards for Children's Homes] which has the effect that a children's home, which is not an approved secure children's home, is 'unable' to deprive a person of his liberty. ... The NMS 3.19 and 12.7 themselves state that 'No children's home/school ... restricts the liberty of any child as a matter of routine...' Whilst never a matter of routine, those very standards clearly contemplate that a home or school may have to restrict liberty as a matter of non-routine. Such restraint may involve a deprivation of liberty as now understood and, in my view, the unqualified proposition in paragraph 4 of the guidance that there is no purpose to be served in seeking an order of the Court of Protection goes too far. So, ..→2014-12-302014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Rochdale MBC v KW [2014] EWCOP 45, [2014] MHLO 123 — The judge in this case decided that KW was not deprived of her liberty, stating as follows: "I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged. I am of the view that the matter should be reconsidered by the Supreme Court." Permission to appeal to the Court of Appeal was granted, and an appeal against the decision was allowed by consent. 2014-12-302014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
An English Local Authority v SW and A Scottish Local Authority [2014] EWCOP 43, [2014] MHLO 122 — "The issue in this case is where an adult ('SW'), who lacks capacity, is habitually resident. This is for the purposes of determining whether the English court has jurisdiction to deal with applications under the Mental Capacity Act 2005. ... The parties' respective positions are as follows. The Official Solicitor submits that SW is habitually resident in England and Wales. The [English Local Authority] and the [Scottish Local Authority] submit that she is habitually resident in Scotland." 2014-12-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Derbyshire County Council v AC [2014] EWCOP 38, [2014] MHLO 121 — "In inviting the Court of Protection to exercise its jurisdiction, the Local Authority asserts that AC lacks capacity in the following areas: (i) to litigate in these proceedings; (ii) to make choices about her future care, therapeutic and educational needs; (iii) in relation to contact with others; and (iv) in making informed decisions about her future residence. In respect of (i)-(iii) above, the Local Authority invites me to make final declarations under section 15 of the Mental Capacity Act 2005. In respect of (iv) it invites me to make an interim declaration under section 48 of the 2005 Act, pending further capacity assessments of AC. The Local Authority has invited the court to consider AC's capacity to consent to sexual relations; it invites me to conclude that she does have capacity in this regard. The Local Authority further invites me to make limited best interests decisions following on from the capacity declarations. Specifically, and importantly, it invites me to declare ..→2014-12-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Sex and marriage cases, Transcript
Milton Keynes Council v RR [2014] EWCOP 34, [2014] MHLO 120 — "MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified. Accordingly the Applicant shall pay the 2nd respondent’s costs of the proceedings to date to be subject to detailed assessment unless agreed between the parties. The costs order shall include a detailed ..→2014-12-302014 cases, COP costs cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
A Local Authority v M [2014] EWCOP 33, [2014] MHLO 119 — (1) Legal Aid: "One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy." (2) Disclosure: "In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. ... This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure." (3) ..→2014-12-302014 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
NHS Trust v FG [2014] EWCOP 30 — "I have been invited by the Official Solicitor to give guidance on the steps to be taken when a local authority and/or medical professionals are concerned about and dealing with a pregnant woman who has mental health problems and, potentially lacks capacity to litigate and to make decisions about her welfare or medical treatment. There is concern that in a number of recent cases there has not been a full appreciation or understanding of: (a) the planning to be undertaken in such cases; (b) the procedures to be followed; (c) the timing of an application to the Court of Protection and/or the Family Division of the High Court; and (d) the evidence required to support an application to the court." 2014-12-302014 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
TX v A Local Authority [2014] EWCOP 29, [2014] MHLO 117 — "X is a retired lawyer who has suffered, or appears to have suffered, from Korsakoff's syndrome, a mental illness related to the over-consumption of alcohol. ... An urgent authorisation was obtained on 1st May and a standard authorisation to detain him on 13th May. ... X appealed that standard authorisation, hence the case being listed before me in late May. ... X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end." 2014-12-302014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
The Public Guardian v AW (Application to revoke LPA) [2014] EWCOP 28, [2014] MHLO 116 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney ... Having regard to all the circumstances, therefore, I shall revoke AW's appointment as attorney because I am satisfied that: (a) OB lacks capacity to revoke the LPA herself; and (b) AW has contravened her authority by taking advantage of her position." 2014-12-302014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
OG v Latvia 66095/09 [2014] ECHR 989, [2014] MHLO 115 — Involuntary psychiatric hospital admission breached Article 5(1) and (4) in this case. 2014-12-302014 cases, Deprivation of liberty, ECHR, Judgment available on Bailii, No summary, Transcript
BCZ v SSHD [2014] EWHC 3585 (Admin), [2014] MHLO 114 — "This case concerns the position of a person in detention facing deportation who refuses food and fluid with a view to pressurising the SSHD into giving him leave to remain but who, in consequence, is at risk of suffering a serious neurological condition. Cases such as these highlight acute conflicting public interest considerations. On the one hand the State has in place an immigration policy which it seeks, and is entitled, to enforce vigourously and which includes detention pending removal as an important protective component. On the other hand detention is an acute deprivation of a person's civil liberties and, ordinarily, should be used only exceptionally where other courses short of detention are unavailable." 2014-12-302014 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
Graves v Capital Home Loans Ltd [2014] EWCA Civ 1297, [2014] MHLO 113 — "Mr Graves has permission to appeal on the question whether the provisions of ss.140A and 140B apply to the mortgage in this case and, if so, whether the relationship between himself and CHL was unfair because of (a) the inclusion of clause 9.1.6 of the mortgage; and/or because of (b) the way in which CHL exercised or enforced its rights under the agreement in the light of its knowledge of Mr Graves' mental disability." (Section 140A Consumer Credit Act 1974 is entitled "Unfair relationships between creditors and debtors" and s140B "Powers of court in relation to unfair relationships".) 2014-12-302014 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Re DM [2014] EWHC 3119 (Fam), [2014] MHLO 112 — "This Claimant local authority sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult, which contemplated: (i) interference with the mother/baby relationship following the birth, to a degree which involved some unspecified level of forced separation and, potentially, removal of the child; (ii) that the mother should not be informed of key aspects of the plan. I phrase the ambit of the relief sought carefully, because it seems to me that, whilst the local authority thought long and hard about the birth plan, it had not managed to reflect fully on the practicalities, extent of their intervention or the proportionality of the measures required." 2014-12-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
R (Alemi) v SSHD [2014] EWHC 3858 (Admin), [2014] MHLO 111 — "I have reached the conclusion that no reasonable Secretary of State could have concluded that detention within a detention centre was in accordance with her published guidance once confronted with the contents of Dr Thomas's report. ... I cannot be precise about the time which would have elapsed, necessarily, before all necessary steps had been taken transfer to the Claimant but it seems reasonable to estimate that the process would have taken at least two weeks. In the result I conclude that the Claimant was unlawfully detained from midnight 23 May 2013 until his transfer to the psychiatric unit on 16 August 2013. ... At the commencement of the hearing before me I made it clear that I would adjudicate upon the issue of liability alone. I make it clear that nothing in this judgment precludes the Defendant from seeking to argue that the Claimant is entitled to nominal as opposed to substantial damages. All issues relating to damages will be considered, as appropriate, after a trial in ..→2014-12-302014 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
Bradbury v Paterson [2014] EWHC 3992 (QB), [2014] MHLO 110 — "The application before me raises a novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor's costs ceases to be available." 2014-12-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
LBX v K, L and M [2012] EWHC 439 (Fam) — 
Residence "The central issue that I have to determine is whether it is in L’s best interests that he should remain in supported living accommodation or return home. He has been living in supported accommodation called the J placement, on a trial basis, since 24th August 2011. The LBX submit that L should remain in supported living accommodation; this is supported by the OS on behalf of L and by M. K contends that L should return to live with him as this accords with his wishes or his wishes are difficult to determine and all the stated benefits that are relied on to support the decision for L to live in supported living accommodation can be achieved by L living at home, with all the additional benefits that living within the family brings L."

Thanks

Thanks to Kathren Quinn (Clerk to Theis J) for providing the judgment.
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2014-11-082012 cases, Cases, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
LBX v K, L and M [2011] EWHC 2419 (Fam) — 
Residence "The issues to be determined at this hearing are: (i) whether it is in L’s best interest to move to supported living accommodation on a trial basis; (ii) whether the hearing listed in September 2011 is required and, (iii) any further directions."

Thanks

Thanks to Kathren Quinn (Clerk to Theis J) for providing the judgment.

CASES DATABASE

Full judgment: Possible Bailii link (not there when checked last night, but might have appeared since)
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2014-11-082011 cases, Cases, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Re PC: Public Guardian v AC [2014] EWCOP 41, [2014] MHLO 109 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs and to direct him to cancel its registration." 2014-11-062014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re PMB [2014] EWCOP 42, [2014] MHLO 108 — "This is a dispute amongst siblings over the appointment of a deputy to manage their mother's financial affairs." 2014-11-062014 cases, Deputyship cases, Judgment available on Bailii, No summary, Transcript
NL v Hampshire CC [2014] UKUT 475 (AAC), [2014] MHLO 107 — The patient was deprived of his liberty and appealed against the tribunal's refusal to exercise its discretion to discharge him from guardianship. (1) Upper Tribunal Judge Jacobs stated that the cause of deprivation of liberty was the care plan, not the guardianship, adding in relation to guardianship powers generally: "I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty." (2) He dismissed the appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. (3) The approach to discretionary discharge in the GA case (relating to CTOs) was equally relevant to guardianship or detention: "it is difficult to imagine a case in which the tribunal could properly exercise its discretion to discharge without there being appropriate safeguards to ensure the ..→2014-11-042014 cases, Deprivation of liberty, Detailed summary, Judgment available on Bailii, Judgment available on MHLO, Powers, Transcript, Upper Tribunal decisions
Derbyshire County Council v Kathleen Danby [2014] EWCOP B26, [2014] MHLO 106 — "Today was listed to give Mrs Danby the opportunity of persuading me that the sentence I imposed in April was wrong, that I should reduce it, mitigate it or even quash it, and she has failed to avail herself of that opportunity. So, in the circumstances, I have no alternative other than to leave the sentence outstanding, together with the warrant of arrest. If Mrs Danby is arrested pursuant to that warrant she can apply to purge her contempt and I will see her as soon as is possible to look at the matter." 2014-11-042014 cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Public Guardian v Miles [2014] EWCOP 40, [2014] MHLO 105 — "This is an application by the Public Guardian for the court to determine the validity of a provision in a Lasting Power of Attorney... The question I am required to answer is whether the donor of an LPA can appoint more than one attorney to act jointly with survivorship by expressly re-appointing the continuing attorney or attorneys." 2014-11-042014 cases, Judgment available on Bailii, LPA cases - substitute attorneys, No summary, Transcript
R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin) — In this case Essex argued that VC lacked capacity to have consented to her place of residence, and therefore had not been resident in Essex for the purposes of s117. The result would be either that VC had no place of residence, or remained resident at the last place she lived in before she lost capacity to decide for herself. They were unsuccessful. Extract from judgment: "I do not however read these passages as deciding that a person cannot acquire residence in a place unless he does so voluntarily. Still less do they decide that residence may only be acquired as a result of a decision made by a person with capacity, or lawfully on his behalf by someone else. ... The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention. There may be reasons to conclude that he has not lost an ..→2014-11-032014 cases, After-care, Brief summary, Judgment available on Bailii, Transcript
K v Hospital Managers of the Kingswood Centre [2014] EWCA Civ 1332, [2014] MHLO 102 — A nearest relative sent an order for discharge to the hospital's fax machine. She had not used one of the three prescribed methods of service (delivery to an authorised officer; pre-paid post; or, with the managers' agreement, internal mail) so the 72-hour period began to run when the part-time MHA Administrator considered it on her return to work four days later. 2014-11-022014 cases, ICLR summary, Judgment available on Bailii, Other NR cases, Pages using DynamicPageList3 parser function, Transcript
K v Hospital Managers of the Kingswood Centre [2014] EWHC 2271 (Admin), [2014] MHLO 101 — Service of nearest relative's order for discharge of s3 patient. 2014-11-022014 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other NR cases, Transcript
BIM v MD [2014] EWCOP 39, [2014] MHLO 100 — Dispute over who should act as property and affairs deputy. 2014-10-302014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re X (Deprivation of Liberty) (No 2) [2014] EWCOP 37, [2014] MHLO 98 — "I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16). For ease of reference I set out those questions again: '(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?' These ..→2014-10-162014 cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
Re JL (Revocation of LPA) [2014] EWCOP 36, [2014] MHLO 97 — "I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL's best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her. With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL's best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds." 2014-10-092014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
An NHS Foundation Trust v Ms X [2014] EWCOP 35, [2014] MHLO 96 — An NHS Foundation Trust sought declarations that: (a) it is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life; (b) it is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply. The judge decided that X should not be compelled to have treatment for her anorexia, and made the declarations, but expressed the hope that she would realise the benefit of treatment. 2014-10-092014 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
HK v Llanarth Court Hospital [2014] UKUT 410 (AAC), [2014] MHLO 95 — (1) Guidance for tribunals on writing reasons. (2) First-tier Tribunal decision set aside for inadequate reasons. 2014-09-252014 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions
Re DG: David v Peter [2014] EWCOP 31, [2014] MHLO 94 — Contested application for the appointment of a deputy for property and affairs. 2014-09-092014 cases, Judgment available on Bailii, Judgment available on MHLO, No summary, Other capacity cases, Transcript
MAP v RAP [2013] EWHC 4784 (Fam), [2013] MHLO 151 — A 'consent order' was challenged under the Family Procedure Rules. (1) Under the FPR, where the ground of attack against an order is that there was no true consent, either because it had been withdrawn (which was said to be the case here) or because one of the parties purportedly giving consent was incapacitated, instead of an appeal (which had been made here) an application for revocation should be made to the court which made the order. (2) A consent order made by a party who is in fact incapacitated (even if this is unknown to everybody including the court) is not valid and should be set aside. (3) The principal claims (that the appellant withdrew consent, and that she lacked capacity) were arguable but should properly be tried at first instance. 2014-08-242013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
Re MM [2013] MHLO 150 (UT) — (1) The tribunal did not misdirect itself by applying the s2 criteria to a s3 case. (2) However, the tribunal's reasoning was inadequate. The tribunal stated that all the evidence was to the effect that MM's mental disorder 'warrants his treatment in hospital' (this is language from the s2 criteria), but it was only (part of) the medical evidence in which there was any confusion as to the criteria. The findings of fact (that the condition was chronic and relapsing etc) did not show that the mental disorder warranted detention (or made it appropriate). The only finding that could support the tribunal's decision was the medical evidence, which was affected by reference to the wrong legal test. In those circumstances the tribunal should have (a) shown that they had applied the correct criteria and not made the same mistake as the doctor, and (b) shown by precise findings of fact that the s3 criteria were satisfied. A blanket reference to a possibly-contaminated report did not ..→2014-08-172013 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
N v E [2014] EWCOP 27, [2014] MHLO 91 — "This judgment relates primarily to the costs of the proceedings and, in particular, whether M should be made to pay her own costs or whether they should be assessed and paid from E's estate. ... The judgment concludes with a brief discussion of how the court was able to salvage E's preferences for medical treatment at the end of her life from the wreckage caused by the termination of the appointment of her health-care proxy. This aspect of the proceedings was uncontested and reflects the consensus of all parties." 2014-08-152014 cases, COP costs cases, Judgment available on Bailii, No summary, Transcript
NMcM v SSWP (DLA) [2014] UKUT 312 (AAC), [2014] MHLO 88 — "What is meant by the statutory expression 'a state of arrested development or incomplete physical development of the brain'? This is one, but only one, of a number of tightly defined conditions which must be satisfied under the 'severe mental impairment' rules in order to qualify for the higher rate of the mobility component of disability living allowance. It is the main issue arising on this appeal. Social Security Commissioner’s decision R(DLA) 2/96 has long been recognised as authority for the proposition that the human brain is fully developed before an adult reaches the age of 30. On that basis it has been consistently held that a person who suffers from what would otherwise be regarded as 'a state of arrested development or incomplete physical development of the brain' does not qualify under the SMI rules if that condition first occurs after the age of 30 (e.g. as a result of traumatic brain injury). I refer to this as the 'age 30 cut-off rule'. In the light of the expert ..→2014-08-082014 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
R v Ali [2014] EWCA Crim 1658, [2014] MHLO 87 — Confiscation order case with mental health background. One of the three principal issues was: "Whether the judge erred in not adjourning the appellant's case before proceeding with the confiscation hearing in order to seek further medical evidence about his re-admission to hospital and in refusing to stay the proceedings as an abuse of process in the light of the appellant's circumstances and mental health." 2014-08-082014 cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
LBX v K, L and M [2013] EWHC 4170 (Fam) — 
Vulnerable adult "In the judgment I handed down this morning I concluded that L has capacity in relation to decisions about where he should live, the care he receives and contact with his family. Having made that decision I then considered the question as to whether I should invoke the inherent jurisdiction as L was a vulnerable adult. ... I accept this is a difficult balance but, in this case, I am entirely satisfied that because of the vulnerability that this particular person has, and the very clear psychiatric evidence dating back to Dr. Halstead's report in 2007, endorsed by the various witnesses that gave evidence earlier this week, that he remains vulnerable to overwhelming emotional issues which could compromise his capacity. He needs to be able to retain his capacity in circumstances where he has emotional safety. That can only be where there is a proportionate structure in place that enables him to be able to ..→
2014-08-072013 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript
LBX v K, L and M [2013] EWHC 3230 (Fam) — 
Capacity "The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. ... Having considered all the evidence and the submissions that have been made, I have reached the conclusion that there does need to be a further assessment as to L’s capacity."

Thanks

Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.

Essex

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2014-08-072023 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Bostridge v Oxleas NHS Foundation Trust [2014] EWCA Civ 1005, [2014] MHLO 85 — The judge had awarded only nominal damages because the patient had suffered no loss as a result of his unlawful detention. The Court of Appeal gave permission to appeal, stating as follows: "Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been ..→2014-08-062014 cases, 39 Essex Street summary, Judgment available on MHLO, Judgment missing from Bailii, Pages using DynamicPageList3 parser function, Transcript, Unlawful detention cases
LBX v TT [2014] EWCOP 24, [2014] MHLO 84 — (1) Consideration of evidence relevant to the capacity of TT to litigate, to make decisions about residence, contact and her package of care, and her capacity to consent to sexual relations, and findings in that regard. (2) Consideration of "(i) How I should approach a 'best interests' decision at an interim hearing (MCA 2005 s48) which has been set up for the calling of reasonably extensive oral evidence; (ii) What factors should influence the exercise of the court's discretion in deciding whether there should be a finding of fact hearing at an interim (or final) hearing?" (3) Findings of fact. (4) Best interests and declarations. 2014-08-062014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Sandwell and West Birmingham Hospitals NHS Trust v CD [2014] EWCOP 23, [2014] MHLO 83 — (1) Capacity and best interests in relation to life-sustaining treatment. (2) Guidance regarding out-of-hours applications involving medical treatment. 2014-08-052014 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
LB Bexley v V [2014] EWHC 2187 (Fam), [2014] MHLO 82 — "This matter is listed for a directions hearing at my direction in light of the contumelious failure of the London Borough of Bexley to comply with directions set out in an order of 12 May 2014. By paragraph 19 of that order the local authority were to file their final evidence by 4.00pm on 2 June. ... I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make ..→2014-08-052014 cases, 39 Essex Street summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Transcript
JP v SSWP (DLA) [2014] UKUT 275 (AAC), [2014] MHLO 81 — "This [welfare benefits] appeal raises the issue of whether the claimant, who was 12 years old at the date of the hearing, should have been allowed to give evidence to the tribunal or at least to attend the hearing. I have decided that the approach to children, whether as witnesses or as persons present in the hearing room, has to be updated in order to be consistent with the international obligations on the rights of children, the right to a fair hearing and the right to family life. This approach is reflected in decisions of the Court of Appeal and Supreme Court in family cases. Doing so, requires some modification to the guidance given by the Tribunal of Commissioners in R(DLA) 3/06 and some care in applying the Senior President’s Practice Direction." 2014-08-032014 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
LB Islington v QR [2014] EWCOP 26, [2014] MHLO 80 — "This is an application originally made by Camden & Islington NHS Foundation Trust for an order that QR’s current tenancy of a property owned by the London Borough of Islington be terminated due to QR's lack of capacity to make such decision for herself. ... In my judgment QR lacks capacity to make the decisions which are at issue in the case. ... Is this one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity? ... It would fly in the face of my own experience of dealing with the case to find that QR lacks capacity to litigate. ... Removing a person’s capacity to litigate is a significant interference. I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate." 2014-08-012014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
R (SA (Holland)) v SSHD [2014] EWHC 2570 (Admin), [2014] MHLO 79 — 'In these proceedings the claimant SA challenges his detention by the defendant under immigration powers. ... Permission was granted ... on what were then grounds 1 and 3 of the grounds of claim: that the defendant made public law errors in the application of her policy for detention of the mentally ill (ground 1) and that the claimant's detention was in breach of the Hardial Singh principles ... (ground 3). Ground 2 claimed that the policy on the detention of the mentally ill was itself unlawful. ... in the light of the decision of the Court of Appeal in R (Das) v SSHD the claimant no longer pursues that ground.' 2014-08-012014 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
Re UF (No 2) [2014] EWCOP 18, [2014] MHLO 78 — "The proceedings were launched by AF, UF's youngest daughter, in August 2013 as a challenge under section 21A MCA 2005 to the standard authorisation of deprivation of liberty. The remit of my enquiry at this hearing was defined by order of Charles J in May 2014, thus: (i) Is it in UF's best interests to return to her home to live with a contingency plan of maintaining her current placement for a period of time? (ii) Should direction be given to the LPA finance about releasing equity from UF's property to pay for her care? (iii) Should the LPA finance be replaced by a Deputy appointed by the Court? (iv) Would any care regime at home still represent a deprivation of liberty?" 2014-08-012014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Re A (A Child) [2014] EWCOP 920, [2014] MHLO 77 — "A, the young person with whom I am concerned, will be 16 years old in June of this year. At the time I am hearing this application, brought by an NHS Foundation Trust, A weighs just 5 ½ stones and has been in hospital for 10 months. ... On the 9th January 20014 the Trust applied for declarations inter alia (i) that it is lawful and in the best interest of A to have a Nasojejunal tube inserted and reinserted on any occasion that it is removed; (ii) it is lawful and in the interest of A to receive fluids, nutrition and medications through a Nasojejunal tube; (iii) it is lawful and in A's best interest to receive treatment (to include psychiatric, psychological and medication as prescribed by her consultant treating psychiatrist) and assessment by the child and adolescent mental health team." 2014-08-012014 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Re RGS (No 3) [2014] EWCOP B12, [2014] MHLO 76 — "The primary issue was whether it continued to be in RGS's best interests to reside at X Care Home having regard to the fact that he had been injured there. The two secondary issues concerned contempt of court and reporting restrictions." 2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re RGS (No 2) [2013] MHLO 147 (COP) — "On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended." 2014-08-012013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Norfolk CC v PB [2014] EWCOP 14, [2014] MHLO 75 — "The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection. 2014-08-012014 cases, 39 Essex Street summary, Best interests, Deprivation of liberty, Judgment available on Bailii, Transcript
Re P (capacity to tithe inheritance) [2014] EWCOP B14, [2014] MHLO 74 — Headnote from judgment: 'Application by the local authority deputy for property and affairs - Whether P has capacity to tithe 10% of his inheritance to the Church of the Latter Day Saints - Mental Capacity Act 2005 test and the common law test in Re Beaney - Whether such a gift is in P's best interests - Whether P has litigation capacity' 2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Derbyshire County Council v Kathleen Danby [2014] EWCOP B22, [2014] MHLO 73 — "Before me today the local authority contends that this Respondent Grandmother, Kathleen Danby, is in breach to a significant degree of the injunction granted by Her Honour Judge Thomas. ... Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has. I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment. ... In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months' imprisonment concurrently. I shall issue a warrant for her arrest and list the matter for review, I think in two months' time, unless Miss Cavanagh tells me that it is a wrong date to choose, in which case I shall ..→2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
A Local Authority v TZ (No 2) [2014] EWCOP 973, [2014] MHLO 72 — "The principal focus of the latest assessments has been the issues that may arise as TZ endeavours to meet, and form intimate relations with, other men. TZ is clear that he wishes to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question is whether he had the capacity in respect of decisions that may have to be made when that opportunity arises. Following discussion at the hearing, it was agreed that the issues now arising can be summarised as follows: (1) What is the relevant decision in respect of which the question of capacity arises? (2) Does TZ lack capacity in respect of that decision? (3) If yes, what orders should be made in TZ's best interests? (4) Should the court appoint the local authority to act as TZ's welfare deputy?" 2014-08-012014 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
A Local Authority v B, F and G [2014] EWCOP B21, [2014] MHLO 71 — "The local authority seeks that the father and grandmother should not have any contact with her save by indirect supervised telephone calls once every four weeks and no other. The local authority takes the view that that position should continue for a period of five years. ... However, should the restriction of applications to Court be as long as five years? I have borne in mind the very careful submissions of Ms. Lattimer, and I bear in mind, too, that B wants to see her father, even though she does not appreciate the dire emotional effects he appears to have had on her. I have concluded that it would be right to restrict applications to vary the injunction for a period of four years only. That is still a very substantial period and quite outside the norm." 2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
A Local Authority v B, F and G [2014] EWCOP B18, [2014] MHLO 70 — "This case raises the novel point as to whether or not a Hadkinson order can be granted in the Court of Protection and whether or not, in the circumstances of this particular case, it should be. I am unaware of there being any previous such orders in the Court of Protection, though it seems to me that that is no impediment to one being made in a case like this involving contempt, such as this." 2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re DP: Public Guardian v John Marney [2014] EWCOP 7, [2014] MHLO 69 — "The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had "behaved in a way that has both contravened his authority and has not been in DP's best interests. ... At the end of the day the issue is really very simple. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge's findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be ..→2014-08-012014 cases, Judgment available on Bailii, No summary, Other LPA cases, Transcript
Press Association v Newcastle Upon Tyne Hospitals Foundation Trust [2014] EWCOP 6, [2014] MHLO 68 — "This application arising from proceedings in the Court of Protection raises questions about the continued confidentiality after a person's death of information gathered during litigation occurring during her lifetime. The first question is whether an order that preserving the person's anonymity (and hence the confidentiality of information about her) can continue to have effect after her death. If such a power exists, the second question is whether it should be exercised in the present case. For the reasons set out below, I consider that the court does have the power to preserve the anonymity of the protected person after death but that in this case the balance falls in favour of lifting that anonymity." 2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Liverpool City Council v SG [2014] EWCOP 10, [2014] MHLO 67 — "This case raises the following question: Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children's home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children's Homes Regulations 2001 (as amended)? Both parties and their counsel in these proceedings submit that the answer is 'yes'. I agree with them that the answer is 'yes'." 2014-08-012014 cases, 39 Essex Street summary, Deprivation of liberty, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
LB Redbridge v G (No 4) [2014] EWCOP 5, [2014] MHLO 66 — "Stripped of all rhetoric, the essential point here is very simple: it is that [Associated Newspapers Limited] made an application, to be joined in proceedings in which it had no legally recognised interest, which was seemingly unprecedented (para 52 of my previous judgment), which was, as I said, misconceived and which failed completely. The question at the end of the day is whether in all the circumstances, and having regard in particular to the matters referred to in CoPR 2007 rule 159, it is right to depart from the general rule in rule 157. In my judgment it is, given the way in which I have characterised ANL's application and the reasons why it failed. But that does not mean that ANL should necessarily have to pay all the costs, and I have concluded that that would be to go too far. There are, in my judgment, three factors which, taken in combination, justify this conclusion: first, the public importance of the issues; secondly, the stance adopted beforehand in particular by the ..→2014-08-012014 cases, COP costs cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
County Durham and Darlington NHSFT v PP [2014] EWCOP 9, [2014] MHLO 65 — "The Trust seeks the Courts authority, and corresponding declarations, as to P's treatment, in particular the possible withdrawal, or non-escalation of, life-sustaining treatment as part of an end of life care package. The Trust contends (and interim declarations have been made to this effect already) that P lacks the capacity to litigate, and to make decisions in relation to the serious medical treatment in issue in this application. Specifically the Trust seeks the following declarations pursuant to section 15(1)(c) of the Mental Capacity Act 2005: (a) That it is lawful and in P's best interests to continue to receive artificial hydration via subcutaneous injection. (b) That it is lawful and in P's best interests that the Trust's treating clinicians shall be permitted: (i) Not to provide artificial nutrition by a percutaneous endoscopic gastrostomy tube or via an alternative artificial feeding regime; and (ii) Not to resuscitate her in the event of either a cardiac or respiratory ..→2014-08-012014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript
Re EU (Appointment of deputy) [2014] EWCOP 21, [2014] MHLO 64 — "EU's sons, JU and TU, have objected to an application by Suffolk County Council to be appointed as his deputy for property and financial affairs. ... Having regard to all the circumstances, therefore, I am satisfied that it is in EU's best interests to appoint Suffolk County Council to be his deputy for property and affairs and to dismiss his sons' objections." 2014-08-012014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re VH (Revocation of Lasting Power of Attorney) [2014] EWCOP 15, [2014] MHLO 63 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney for property and financial affairs. ... Because of DH's lack of credibility, his inexperience in assessing capacity, his vested interest in the outcome, and because of the complicated nature and effect of the particular transaction that he required VH to enter into, I prefer the Special Visitor's opinion that she probably lacked capacity to DH's bold assertion that his mother 'fully understood what she was doing' when she entered into the mortgage and handed over to him the money that had been advanced by Barclays Bank. I am not satisfied that on 21 October 2011 VH had the capacity to enter into the transaction, which not only severely depleted her capital but also had adverse impact on her income, and I am not prepared retrospectively to approve the gift because it was neither reasonable nor affordable. VH may need these funds in future to pay for her care, either in ..→2014-08-012014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
The Mental Health Trust v DD [2014] EWCOP 13, [2014] MHLO 62 — "By judgment dated 4 July 2014 ... I set out my reasons for determining that it is in the best interests of DD, a pregnant woman who lacks capacity to make the decision for herself, for her baby to be delivered imminently by caesarean section. Further to a scheduled hearing which took place in the following week, I now consider: (i) Whether it is in DD's best interests that the Applicants should be authorised (a) to provide DD with education in relation to contraception, and then (b) to assess her capacity to make decisions in relation to contraception; ... (ii) Whether I should authorise the Applicants to take such necessary and proportionate steps to give effect to the best interests declaration in (i) above, to include forced entry into her home, and to use such restraint as is deemed necessary to convey her to an appropriate place to provide the opportunity for such education and assessment; (iii) Whether there is reason to believe (per section 48 Mental Capacity Act 2005) that DD ..→2014-08-012014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
The Mental Health Trust v DD [2014] EWCOP 11, [2014] MHLO 61 — "DD is 36 years old. She is at an advanced stage of pregnancy. She has had an extraordinary and complex obstetric history and is now expecting her sixth baby. She has a mild to borderline learning disability, and an autistic spectrum disorder. By application dated 23 May 2014, the Applicants seek declarations and orders in relation to the care and health of DD during the final stage of her current pregnancy, and in the safe delivery of the unborn baby. Specifically, and significantly, they seek a declaration as to the lawfulness in arranging for DD's baby to be delivered by planned caesarean section. The Applicants seek a further order authorising the conduct of an assessment of DD's capacity to make decisions about contraception, following the imminent birth. DD's five older children are all cared for by permanent substitute carers; four of the children have been adopted." 2014-08-012014 cases, 39 Essex Street summary, Best interests, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
The Mental Health Trust v DD [2014] EWCOP 8, [2014] MHLO 60 — "The issues for decision relate to DD, a woman in her mid thirties with diagnoses of autistic spectrum disorder and borderline learning disabilities. In summary they are: (a) Whether DD lacks capacity to make decisions in relation to her healthcare and, in particular, lacks capacity to consent to a placental localisation scan and an ante natal assessment; (b) Whether it is in her best interests to undergo such a scan and assessment; (c) Whether the Applicants should be authorised to take such necessary and proportionate steps so as to give effect to the 'best interests' declaration to include forced entry, restraint and sedation. This brief judgment is given for two reasons (i) to set out my capacity and best interests' determinations and (ii) for the benefit of Cobb J who is to be the allocated judge at two further hearings." 2014-08-012014 cases, Best interests, Judgment available on Bailii, No summary, Transcript
GW v A Local Authority [2014] EWCOP 20, [2014] MHLO 59 — "In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of ..→2014-08-012014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
An NHS Trust v J [2014] EWCOP 2675, [2014] MHLO 58 — "This application concerns an elderly lady of 79 years whom I shall call 'Mrs J'. She has longstanding mental health problems and now also cancer. Many professionals concerned for her welfare have with much care and diligence come to the view that it is in her best interests for her to have investigations and to receive treatment; but she is resistant and, in spite of all professional efforts and advice, not willing to consent. Accordingly, on 3rd July 2014, the relevant NHS Trust issued a notice of application in the Court of Protection seeking declarations: (1) that Mrs J lacks capacity to litigate in these proceedings; (2) that she lacks capacity to take decisions about the proposed medical investigations and treatment; and (3) that it is in her best interests to have those investigations and treatment. ... Taking all aspects of the case into account and weighing them up, I have come to the conclusion that Mrs J's best interests would be served by the proposed investigations and ..→2014-08-012014 cases, Best interests, Judgment available on Bailii, No summary, Transcript
R (Whapples) v Birmingham CCG [2014] EWHC 2647 (Admin), [2014] MHLO 57 — "The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant has an obligation under section 3 of the National Health Service Act 2006 to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS. ... The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits." 2014-08-012014 cases, Community care, ICLR summary, Judgment available on Bailii, Transcript
AG's ref (no 34 of 2014) sub nom R v Jenkin [2014] EWCA Crim 1394, [2014] MHLO 56 — Criminal sentencing case with mental health background (a s45 hybrid order had been given in conjunction with life sentences). The Court of Appeal clarified that if a sentencing court "chooses to work with the currency of minimum terms, as it generally will do in homicide cases involving mandatory or discretionary life sentences, it does not need to have regard to the early release provisions". In this case, the judge should not have halved the 12-year minimum term to 6 years. A minimum term of 13 years 4 months was substituted. 2014-07-282014 cases, Brief summary, Judgment available on Bailii, Sentence appeal cases, Transcript
Re AB (Revocation of Enduring Power of Attorney) [2014] EWCOP 12, [2014] MHLO 55 — "This is an application for the court to revoke an Enduring Power of Attorney on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor's attorneys. ... MD and WD have breached their fiduciary duties in several ways and in the circumstances I am satisfied that they are unsuitable to be AB's attorneys, and I shall revoke the EPA. As far as the choice of deputy is concerned, the appointment of an independent professional deputy or panel deputy would be disproportionate. What is left of AB's estate would rapidly be eroded by the professional deputies' costs. I agree with Miss Cooper that Brent Council is best placed to act as deputy, as AB is in a residential care home and the Council is already funding the lion's share of her care fees." 2014-07-282014 cases, 39 Essex Street summary, EPA cases - revocation and suitability, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Transcript
X County Council v M [2014] EWHC 2262 (Fam) — "On 16 May 2014 I heard two applications by the Applicant local authority, namely: (i) an application under the inherent jurisdiction of the High Court for permission not to disclose to the First Respondent, M, the care plan for her unborn child namely to remove the child at birth; and (ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court. I granted those applications at a hearing on 20 May at which further evidence in support of the applications had been filed. I reserved judgment." 2014-07-282014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
LB Redbridge v G (No 5) [2014] EWCOP 17, [2014] MHLO 53 — (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or ..→2014-07-282014 cases, 39 Essex Street summary, Judgment available on Bailii, LPA cases - revocation, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
R (MD) v SSHD [2014] EWHC 2249 (Admin), [2014] MHLO 52 — "In my judgment, the Claimant's detention was unlawful from the 21st October 2011 until her release on the 13th September 2012 by reason of a breach of the third Hardial Singh principle and from the 16th February 2012 until her release on the 13th September 2012 due to the failure of the Defendant to properly understand and apply her policy regarding the detention of those with serious mental illness to the circumstances of the Claimant's case. So the Claimant's detention was unlawful both at common law and under Article 5 of the ECHR. I have also found that the Claimant's treatment by the Defendant by detaining her in the circumstances I have set out above amounted to inhuman and degrading treatment in breach of Article 3 of the ECHR." 2014-07-242014 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16, [2014] MHLO 51 — "The critical decision is whether it is in N's best interests to continue invasive, risk laden, medical care as would be involved in a further attempt at artificial feeding. I am utterly convinced that it would not. Accordingly, I declare that it is lawful and in her best interests for the clinicians (a) not to make any further attempt to secure a means of providing artificial nutrition; (b) to withdraw the provision of intravenous fluids and dextrose; and (c) to provide such palliative care and related treatment (including pain relief) as considered appropriate to ensure she suffers the least distress and retains the greatest dignity until such time as her life comes to an end." 2014-07-232014 cases, 39 Essex Street summary, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
R (M) v Kingston Crown Court [2014] EWHC 2702 (Admin), [2014] MHLO 50 — M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it. 2014-07-222014 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
R (L) v West London MH NHS Trust [2014] EWCA Civ 47, [2014] MHLO 49 — (1) There was no challenge to the first instance judge's finding that the common law duty of procedural fairness applies to decisions to transfer from medium to high security. (2) However, the judge had gone beyond what fairness requires, by requiring an overly-adversarial procedure. (3) Relief should not have been given on the facts of L's case, including because he had been able to put across his side of a disputed incident and had ceased objecting to transfer. (4) The ability of the decision-making process to achieve fairness has an undesirable element of fortuity. The decision-making process should therefore be "amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the 'gists' of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided ..→2014-07-222014 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
MH v MHRT for NI [2014] NIQB 87, [2014] MHLO 48 — The patient challenged the MHRT's decision on the grounds that "(i) the approach of the MHRT was unlawful and that the MHRT had not adopted the narrow focused based approach required under Article 77(1) and Article 2(4) of the Order and, (ii) the MHRT had misunderstood the meaning of "discharge" and had failed to take into account the applicant's stated intention which was to remain in hospital as a voluntary patient if discharged from detention". These challenges were rejected. The tribunal's decision was the only reasonable one on the evidence. 2014-07-222014 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Transcript
R (O) v SSHD [2014] EWCA Civ 990, [2014] MHLO 47 — "This issue on this appeal is whether the Secretary of State for the Home Department ("the Secretary of State") could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. ... Accordingly, I would dismiss this appeal. The new diagnosis of Dr Agnew-Davies proposed a new treatment for curing her illness but her condition could still be satisfactorily managed in detention. She could still be held in an acceptable stable mental condition in detention under the existing treatment. In any event, there was a risk of reoffending and absconding. While these would have diminished with the passage of time, there still needed to be safeguards if O was released into the community and these were not put in place to the satisfaction of the court until 6 July 2011 when she was in fact released on bail." 2014-07-172014 cases, ICLR summary, Judgment available on Bailii, Repatriation cases, Transcript
R (Public Law Project) v SSJ [2014] EWHC 2365 (Admin), [2014] MHLO 46 — The proposed legal aid 'residence test' was unlawful: (1) the statutory instrument containing it was ultra vires and unlawful, as LASPO did not permit such a criterion to be introduced by secondary legislation; (2) residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 LASPO. 2014-07-172014 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Bostridge v Oxleas NHS Foundation Trust [2014] MHLO 42 (CC) — A tribunal’s deferred discharge from s3 took place just before a CTO was purportedly imposed. Recall from that (non-existent) CTO, and subsequent detention, had been unlawful; however, because no loss had been shown, following Lumba (a Supreme Court decision on immigration detention), only nominal damages were awarded in this county court case. (The Court of Appeal gave permission to appeal.) 2014-06-172014 cases, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript, Unlawful detention cases
Re X (A Child) [2014] EWHC 1871 (Fam), [2014] MHLO 41 — "Some time ago I heard an urgent application relating to a girl who at the date of the hearing before me was aged 13 years and 9 months. She was at the time the subject of ongoing care proceedings being heard by another judge. She was approximately 14 weeks pregnant. The father of the unborn child was aged 14. The issue before me was whether or not the pregnancy should be terminated. The care proceedings have not yet come to a conclusion but I do not think that I should further delay giving judgment explaining my decision and my reasons for it. ... Given that X's expressed wishes at the end of the hearing thus accorded with my assessment of her best interests, it was clearly appropriate for me to supply the necessary consent to enable the termination to proceed." 2014-06-132014 cases, Best interests, Judgment available on Bailii, No summary, Transcript
R (ZYN) v Walsall MBC [2014] EWHC 1918 (Admin), [2014] MHLO 40 — "The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives. ... For the reasons given, I find that the Council's policy on charging for the cost of social care services is unlawful insofar as it takes account of any of the capital derived from the claimant's personal injury settlement." 2014-06-122014 cases, Community care, Judgment available on Bailii, No summary, Other capacity cases, Transcript
North Somerset Council v LW [2014] EWCOP 3, [2014] MHLO 39 — "At the conclusion of the hearing on 23 April an issue about costs arose. ... I am in no doubt that, on the evidence before me, UHBT fell well short in meeting their duties to LW and her unborn child. ... The cumulative effect of these factors is that part of the hearing on 15 April and the whole of the hearing on 16 April, were completely ineffective. Accordingly I am satisfied that in the premises the court is justified in departing from the general rule that there be no order as to costs: rr 157 & 159. ... Accordingly I propose to order that UHBT pay the whole of the Official Solicitor's costs of 15 and 16 April. In contrast the hearing of 23 April was an effective hearing albeit I ultimately made no order on the full evidence then before the court. Thus the usual rule will apply in respect of the hearing on 23 April, namely UHBT will pay one half of the Official Solicitor's costs for that hearing. Those costs are to be assessed, if not agreed, on a standard basis. In respect of ..→2014-06-102014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
North Somerset Council v LW [2014] EWHC 1670 (Fam), [2014] MHLO 38 — "In those circumstances I am satisfied that if the mother were to learn of the plan to remove her child at birth there is a very real risk she would harm herself and a very very real risk that she would cause physical harm to her baby. ... On the exceptional facts of this case I was wholly satisfied that the balance fell decisively in favour of making the [Reporting Restrictions Order]. It was the only proportionate course to be taken to secure the safety of the mother and of the child. ... At the hearing on 6 May it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order. ... I am in no doubt that the only order I can make in EW's welfare best interests is an interim care order." 2014-06-102014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Sheffield Teaching Hospitals NHS Foundation Trust v TH [2014] EWCOP 4, [2014] MHLO 37 — "On the 14th May 2014 I granted declarations in respect of TH, a 52 year old man presently in a minimally conscious state at what has been described as the lower end of the spectrum of that condition (i.e. a very profound disorder of consciousness). There is no doubt TH lacks capacity to litigate in these proceedings and also lacks the capacity to give or withhold consent to his medical treatment. ... In relation to withdrawal of nutrition and hydration I am persuaded that the correct course is to adjourn this issue to provide for a structured clinical assessment to evaluate whether there is evidence that TH's primary neurological pathways are sufficiently intact to permit any evidence of awareness to be detected and fully to assess, over a set period of time, TH's general awareness, responsiveness and capacity to experience pain. The National Clinical Guidelines have been drawn to my attention in some detail and Professor Barnes has highlighted the benefits of a standard assessment ..→2014-06-102014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
An NHS Foundation Hospital v P [2014] EWHC 1650 (Fam), [2014] MHLO 35 — "This short judgment explains the reasons for an order I have just made as the out of hours judge in the middle of the night on 13th and 14th May 2014 on an extremely urgent application by a hospital foundation trust for a declaration that it is lawful for its doctors to treat a seventeen-year-old girl following a drug overdose notwithstanding her refusal to consent to that treatment." 2014-06-082014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
The Public Guardian v JW [2014] EWCOP B24 , [2014] MHLO 34 (COP) — "In his application to the court, the Public Guardian sought two orders. The first was for the revocation of the LPA and the second was for the appointment of a panel deputy." 2014-06-082014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
Re Gladys Meek [2014] EWCOP 1, [2014] MHLO 32 — "This is the hearing of an application by Mr Hugh Adrian Scott Jones, the property and affairs deputy for Gladys Meek, for: (i) authority pursuant to section 18(1)(i) of the Mental Capacity Act 2005 to execute a statutory will on behalf of Mrs Meek; and (ii) consequential directions in relation to Mrs Meek’s property and affairs, and in particular: (a) an order calling in the £275,000 security bond of Mrs Meek’s two former property and affairs deputies, Mrs Janet Miller and Mrs Margaret Phyllis Johnson; and (b) a direction as to whether the deputy should refer the conduct of Mrs Miller and Mrs Johnson to the police." 2014-05-182014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Northamptonshire Healthcare NHS Foundation Trust v ML [2014] EWCOP 2, [2014] MHLO 31 — "The Applicants seek declarations that: (i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence; (ii) it would be in ML's best interest to reside at Bestwood Hospital; (iii) it would be in ML's best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, ..→2014-05-182014 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Milton Keynes Council v RR [2014] EWCOP B19, [2014] MHLO 30 — Having described the council's conduct as "woefully inadequate from the start" the judge declared that there had been breaches of Article 5 and Article 8. 2014-05-182014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
LB Redbridge v G (No 3) [2014] EWCOP 1361, [2014] MHLO 29 — "These are personal welfare proceedings in the Court of Protection. They relate to an elderly lady, G, who is 94 years old. She is represented by the Official Solicitor as her litigation friend. The proceedings were launched, in circumstances I describe below, by the London Borough of Redbridge. The two other parties to the proceedings are G's two carers, C and F. I have before me an application by Associated Newspapers Limited (ANL), publishers of the Daily Mail." 2014-05-102014 cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
LB Redbridge v G (No 2) [2014] EWCOP 959, [2014] MHLO 28 — "It seems to me that, weighing these matters one against the other, it is not in G's best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G's capacity to make such relationships with the press it is, in my judgment, clearly in G's best interests that I should make an interim order that she should not make such communications. ... The second matter which I have been invited to adjudicate upon is what, if any, role should be played by the Applicant authority in the interim period between now and the 2nd May hearing. ... I therefore propose to accede to the application of ..→2014-05-102014 cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Re MRJ (Reconsideration of Order) [2014] EWCOP B15, [2014] MHLO 27 — "This is an application to reconsider an order I made on 27 September 2013: (a) suspending the applicants from acting as MRJ's attorneys under a Lasting Power of Attorney ('LPA') for property and financial affairs until further order; and (b) appointing the authorised officer of Suffolk County Council as MRJ's interim deputy with instructions to investigate the applicants' management of her finances. ... In my judgment, the revocation of the LPA is in MRJ's best interests. It is in accordance with the law, and it is a necessary and proportionate response for the prevention of crime and for the protection of MRJ's right to have her financial affairs managed competently, honestly and for her benefit." 2014-05-102014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26 — The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life." 2014-05-102014 cases, Brief summary, Consulting NR, ICLR summary, Judgment available on Bailii, Transcript
The Local Authority v HP [2013] EWCOP B40, [2013] MHLO 145 — "The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. ... They now accept that it is not necessary for a declaration in respect of capacity to marry. ... The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment." 2014-05-022013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 (COP), [2014] MHLO 22 — A detained patient (RC) was self-harming by cutting and had made an advance decision refusing blood transfusions. (1) RC had capacity to refuse blood transfusions and sometimes had capacity to lacerate himself. (2) The advance decision was valid and applicable. (3) The self-harming was a symptom or manifestation of mental disorder so a blood transfusion would be treatment under s63 MHA 1983. (4) Where the consequences of a decision not to impose s63 treatment may be life-threatening the Trust should apply to the High Court for declaratory relief and (just as with a decision to impose treatment) the hearing will involve a 'full merits review'. (5) It would be lawful to withhold blood transfusions despite the s63 power (indeed, the judge stated that given RC's current capacity and advance decision it would be 'an abuse of power ... even to think about imposing a blood transfusion' and that it 'would be a denial of a most basic freedom'). 2014-05-022014 cases, Advance decision cases, Brief summary, Judgment available on Bailii, Transcript
Julia Lomas v AK (gift application) [2014] EWHC B11 (COP), [2014] MHLO 21 — AK's financial deputy sought the court's approval of a £150,000 gift to AK's parents to allow them to build a suitably-adapted house for when AK stayed in Pakistan each year; she sought a gift as it would be unrealistic in Pakistan to obtain receipts for all expenditure and expensive to translate those received. The Official Solicitor supported the proposed gift only if it proved impossible for AK instead to purchase an interest in the land or part of it. The judge decided that it would be in AK's best interests for a 10-year interest-free £150,000 loan to be made to his parents, and authorised the deputy to make annual gifts of £15,000, from any surplus, to AK's parents to assist them in repaying this loan. This arrangement was preferable to a gift because AK would retain the capital as part of his estate, and it was more likely to ensure that his parents actually carried out the building work; coincidentally, it should avoid inheritance tax. 2014-04-272014 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1136 (COP), [2014] MHLO 20 — A detained patient with a severe personality disorder was self-harming by cutting and had to be mechanically restrained to prevent this. (1) He had made an advance decision, apparently with capacity to do so, refusing blood transfusions because of his religious beliefs: the court ruled that this was valid and applicable, but only on an interim basis since the document did not state that it was signed by the maker and the witness in each other's presence. (2) The Responsible Clinician accepted that a blood transfusion would be medical treatment for mental disorder under s63 MHA 1983, and therefore the advance decision could be overridden; however, because the patient's wishes were religious, she did not want to impose treatment: the Trust therefore sought the protection of a court declaration that her decision was lawful. (3) The court was unwilling to make the declaration, without hearing both sides of the argument, because of the importance of the issues (including the right to ..→2014-04-272014 cases, Advance decision cases, Brief summary, Judgment available on Bailii, Transcript
Wandsworth CCG v IA [2014] EWHC 990 (COP), [2014] MHLO 19 — This case illustrates the difficulties in assessing capacity where: (a) the cognitive difficulties of the subject are multi-factorial; (b) there is evidence that the subject displayed strong and challenging pre-morbid personality traits; and (c) there is no doubt that he plainly has capacity in relation to decision-making in some domains of his life. Having heard oral evidence for the jointly-instructed expert neuro-psychiatrist, the court decided that IA had capacity in relation to (a) ongoing medical treatment; (b) future residence and care; and (c) management of his property and affairs. 2014-04-272014 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
R (LH) v Shropshire Council [2014] EWCA Civ 404, [2014] MHLO 18 — "This is an appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre. LH is 63 years old, has a learning disability, has been assessed as having substantial care needs and has been using the services of Hartleys Day Centre in Shrewsbury. Shropshire Council has decided to close that day centre as a result of its re-thinking of day centre care in the county; that re-thinking is itself a result partly of budgetary constraints and partly of encouragement from central Government to give disabled people their own personalised budget for spending in relation to their disability. The Council contends that it consulted generally about the new system which it brought in and made clear that some day centres would close; LH contends by JL (her litigation friend and sister) that LH and others should have been consulted in relation to the closure of Hartleys itself before it occurred. ..→2014-04-072014 cases, Community care, Judgment available on Bailii, No summary, Transcript
Cheshire West and Chester Council v P [2014] UKSC 19 — (1) The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person's compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty. 2014-03-202014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
The Local Authority v Mrs D [2013] EWHC B34 (COP), [2013] MHLO 140 — "These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR. ... However, despite this non-admission of liability, the Local Authority had offered in compromise: (a) an apology to Mrs D for the delay in bringing these proceedings; (b) to pay a sum of £15,000 to Mrs D; (c) to pay the reasonable costs of the action incurred by Mrs D's litigation friend; (d) to pay a sum of £12,500 to her husband Mr D; (e) to pay Mr D's reasonable costs of the action. ... For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of ..→2014-03-052013 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Newcastle upon Tyne Hospitals Foundation Trust v LM [2014] EWHC 454 (COP), [2014] MHLO 14 — "On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah's Witness. ...At the end of the hearing I granted the application and made the following declaration: 'It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.' ... I find that LM made a decision that the doctors rightly considered must be respected. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. ..→2014-03-052014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
LB Redbridge v G [2014] EWHC 485 (COP), [2014] MHLO 13 — "Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. ... I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction. ... The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare. It is my intention to so direct. ... Rule 90 (3) allows me to authorise any person or class of ..→2014-03-052014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
JS v KB and MP (Property And Affairs Deputy for DB) [2014] EWHC 483 (COP), [2014] MHLO 12 — "This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for: (i) the financial and emotional vulnerability of the person who lacks capacity; and (ii) the requirements for formal, and legal, authorisation for the family's actions, specifically in relation to property and financial affairs. ... For the reasons set out above, the order I make is that: (i) JS shall pay four-fifths of the deputy's litigation costs to date; (ii) JS shall pay two-thirds of the litigation costs of KB. Given the possibility that JS will be unable to fund the costs within a reasonable time, either from the sale of the Spanish property or otherwise, I propose to allow MP to explore the mechanics of an equity release scheme to permit JS to discharge her liability for costs by way of a loan against the equity in Beech Avenue. I give MP leave to apply for such a scheme. ... I give further leave to MP to ..→2014-03-052014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Westminster City Council v Sykes [2014] EWHC B9 (COP), [2014] MHLO 11 — "It is my view that it is in Ms S's best interests to attempt a one-month trial of home-based care. Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed. ... Having thought about the issue carefully, I have decided on balance - and it is quite finely balanced - that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence." 2014-03-042014 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Re ES: Kent County Council v PLC and AJS [2014] EWHC B6 (COP), [2014] MHLO 10 — "Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs. ... I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed." 2014-03-042014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), [2014] MHLO 9 — "My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her." 2014-03-042014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re DP (Revocation of LPA): OPG v John Marney [2014] EWHC B4 (COP), [2014] MHLO 8 — "Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP's best interests. Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP's property and affairs." 2014-03-042014 cases, Judgment available on Bailii, LPA cases - revocation, No summary, Transcript
RC v CC [2014] EWHC 131 (COP), [2014] MHLO 7 — "For the reasons he set out, in a judgment that is detailed and careful, Judge Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist's report she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements 'on the basis that the material contained therein is not divulged to RC without further leave of the court.' ... In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal's order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment." 2014-03-042014 cases, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript
Re X, Y and Z (Minors) [2014] EWCOP 87 — "On 20th and 29th November 2013, sitting as a judge in the Family Division and in the Court of Protection, I made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother who is a person lacking capacity within the meaning of the 2005 Act. This judgment sets out the reasons for making those orders." 2014-03-042014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5 — "The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)." 2014-03-042014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re PW (Court of Protection Order) [2014] EWHC B8 (COP), [2014] MHLO 4 — "The applicant in this matter, Sunderland City Council, brings these proceedings for committal against Lindsey M for breach of an order which this court made on 14th October 2013. ... Lindsey M admits that on 28th October she breached the order which the court had made and therefore brought herself within breach of the suspended order for imprisonment which the court had made on 14th October. Upon that date the court made a suspended order, which was suspended upon the basis that she complied with the previous court order and that she did not seek to have contact, or go into the property of PW. ... In all the circumstances, it seems to me that before I determine what is an appropriate sentence in all the circumstances it would be preferable to see whether Miss M, in fact, does carry out what she says to the court she will do, namely not to have a relationship with PW. I make it clear for Miss M's sake that if there are no further breaches then I will deal with the admitted breach by ..→2014-03-042014 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
AB v LM [2013] EWHC 1234 (COP), [2013] MHLO 139 — "I find on paying close attention to Dr P's advice, but also considering the contribution of Dr G, that Lisa does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been full to sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for Lisa would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality." 2014-02-152013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Sex and marriage cases, Transcript
Republic of South Africa v Dewani [2014] EWHC 153 (Admin), [2014] MHLO 3 — If the RSA government were to give a suitable undertaking, it would not be oppressive or unjust to return Dewani to the RSA for trial. The undertaking would need to be to the following effect: "In the event of the appellant being found unfit to be tried, he will be free to return to the UK, unless there is found to be a realistic prospect of his being tried within a year (or other stated reasonable period) of that finding and the trial takes place within the period. In any event the appellant must be free to return in the event a Court in South Africa, having found him unfit to be tried, embarked on the process of determining under the Criminal Procedure Act 1977 whether he did the act." 2014-02-052014 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript
IM v LM [2014] EWCA Civ 37, [2014] MHLO 1 — "On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".] 2014-01-312014 cases, ICLR summary, Judgment available on Bailii, Sex and marriage cases, Transcript
Arshad v Court of Magistrates Malta [2013] EWHC 3619 (Admin), [2013] MHLO 138 — Extradition case with mental health background. 2013-12-302013 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
R v Yusuf (Nadia Ali) [2013] EWCA Crim 2077, [2013] MHLO 137 — The appellant sought a restricted hospital order in place of an IPP sentence, but was unsuccessful as her medical evidence addressed the current situation rather than the situation at the time of sentencing. 2013-12-302013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
R (McKay) v SSJ [2013] EWHC 3728 (Admin), [2013] MHLO 136 — Permission to apply for judicial review of the decision to refer the claimant prisoner to a prison Dangerous and Severe Personality Disorder (DSPD) unit for assessment was refused because it was 'a classic example of a situation in which two experts disagree' and it was not for the court to interfere and substitute its own view. 2013-12-302013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
R v Kenyon (Lindsay) [2013] EWCA Crim 2123, [2013] MHLO 135 — Unsuccessful appeal against eight-month sentence for eight offences of neglect of a person who lacks capacity contrary to MCA 2005 s44. 2013-12-302013 cases, Brief summary, Criminal law capacity cases, Judgment available offline, Judgment missing from Bailii, Transcript
R v Anderson (Darren Gabriel) [2013] EWCA Crim 2212, [2013] MHLO 134 — Appellant sought restricted hospital order, in place of IPP and s45A hybrid order, but was unsuccessful. 2013-12-302013 cases, Brief summary, Hybrid order cases, Judgment available on MHLO, Judgment missing from Bailii, Transcript
Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133 — Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area). 2013-12-302013 cases, Best interests, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Transcript
R (MM) v SSWP [2013] EWCA Civ 1565, [2013] MHLO 132 — (1) The Court of Appeal upheld the Upper Tribunal's decision that the process for assessing eligibility for Employment Support Allowance (involving the claimant completing a questionnaire and attending a face to face interview) placed mental health patients at a 'substantial disadvantage' (under the Equality Act 2010) when compared with other claimants. (2) In relation to the proposal that obtaining further medical evidence in such cases would be a 'reasonable adjustment', the UT had adjourned for further evidence, directing the SSWP to investigate its reasonableness: the adjournment was lawful but the directions were quashed. 2013-12-302013 cases, Brief summary, ICLR summary, Judgment available on Bailii, Transcript, Welfare benefits cases
R v Odiowei [2013] EWCA Crim 2253, [2013] MHLO 131 — The appellant sought a restricted hospital order in place of a life sentence, relying on two recent medical reports which were critical of previous reports. The matter was adjourned for six weeks to obtain responses from the previous reports' authors. 2013-12-302013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Life sentence cases, Transcript
R v G (A) [2013] EWCA Crim 2256, [2013] MHLO 130 — Unsuccessful appeal against restriction order. 2013-12-302013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Restriction order cases, Transcript
Obrey v SSWP [2013] EWCA Civ 1584, [2013] MHLO 129 — (1) The Upper Tribunal had not erred in law in finding that the cessation of Housing Benefit after 52 weeks as a hospital patient (which indirectly discriminated against the mentally ill) was justified . (2) The Court of Appeal discussed the limitations on appeals against the specialist Upper Tribunal. 2013-12-302013 cases, Brief summary, Judgment available on Bailii, Transcript, Welfare benefits cases
RGB v Cwm Taf Health Board [2013] EWHC B23 (COP), [2013] MHLO 128 (COP) — At a time when she had been assessed to have capacity, Mrs B left her husband and did not wish him to see her. On the basis of these wishes, when she was admitted to hospital with dementia Mr B was refused access. The husband unsuccessfully sought a declaration that the Health Board had acted unlawfully. 2013-12-302013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
R v Fry (David George) [2013] EWCA Crim 2337, [2013] MHLO 126 — Unsuccessful appeal against conviction. Summary from judgment: "The central complaints are that his legal team (a) failed to ensure that he was mentally and/or emotionally able to decide whether or not on give evidence; (b) failed to ensure that he properly understood that an adverse inference might be drawn by the jury if he did not give evidence; (c) failed to ensure that he properly understood that if he did not give evidence the jury would have no account from him as to the allegation made by SB, given that he had declined to answer questions during his police interview about those allegations; (d) failed to make the judge aware of his mental difficulties before she decided whether or not the jury should be directed that they might, subject to various conditions, draw an adverse inference from his failure to give evidence; (e) failed to place evidence of his mental condition before the jury to explain his failure to give evidence; and (f) in the circumstances to which we have ..→2013-12-302013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other criminal law cases, Transcript
A Local Authority v C [2013] EWHC 4036 (Fam), [2013] MHLO 125 — C had long-standing mental health problems and her two children had previously been removed from her. (1) Under the inherent jurisdiction Parker J made an anticipatory declaration that it was lawful for C's third baby to be removed immediately upon delivery, in order to safeguards the child's interests, on the understanding that the local authority would apply for an emergency protection order or an interim care order at the first possible moment. (2) No evidence was heard from C, and a litigation friend was not appointed, in order to avoid C being informed, the judge (and local authority solicitor) thinking that that (a) Official Solicitor would become C's solicitor so the solicitor-client duty of disclosure would apply, and (b) the only exception to that duty is when the client consents. 2013-12-222013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Oluku v CQC (2012) UKFTT 275, [2012] MHLO 183 — A carer at Dormers Wells Lodge secretly recorded ill-treatment, which led to the conviction of two staff (Sonika Limbu, 25, of Hayes, and Pashi Sahota, 57, of Southall) under MCA 2005 s44. The manager appealed against the CQC's cancellation of her registration as a manager, but the tribunal found that she was not fit to be registered as a manager. In relation to one allegation (although technically there was no breach as at the relevant time she was not yet registered), the tribunal noted: "the necessary paperwork was not present in the form of a Deprivation of Liberty for a number of service users, and in that respect the appellant did not have suitable arrangements in place to protect service users against the risk of such control or restraint being unlawful or otherwise excessive as required under regulation 11(2) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, since proper assessment and recording was not being carried out." 2013-12-212012 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
R (Greenough) v SSJ [2013] EWHC 3112 (Admin), [2013] MHLO 124 — The decision not to authorise exceptional Legal Aid funding for representation at an inquest into the death of Paul Shovelton (who died in his own home on the day following his discharge from hospital) was lawful. 2013-12-212013 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
R (Muhammad) v SSHD [2013] EWHC 3157 (Admin), [2013] MHLO 123 — Immigration case mentioning the inherent jurisdiction in relation to 'vulnerable adults'. Interim relief (immediate and unconditional release from immigration detention) refused. 2013-12-212013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Repatriation cases, Transcript
Kirklees MBC (11 004 229) [2013] MHLO 122 (LGO) — {{Case

|Date=2013-11-20 |Court=Local Government Ombudsman |Sentence=Maladministration |Summary=Ombudsmen find maladministration in case involving deprivation of liberty. |Detail===Note== Joint report of the Local Government Ombudsman and the Parliamentary and Health Service Ombudsman

2013-12-212013 cases, Cases, Community care, Deprivation of liberty, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing. 2013-12-202013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
Re Whiting [2013] EWHC B27 (COP), [2013] MHLO 119 — Social services sought to have Leslie Whiting committed to prison for breach of a Court of Protection injunction. The alleged breaches were in August-December 2012 and the court application was made in January 2013 but, owing to procedural irregularities, the hearing did not take place until December 2013. The lack of an intellectually rigorous relationship between the lawyers and the social workers meant that three of the four allegations were inadequately drafted and based on insufficient evidence to meet the criminal standard of proof. Despite the fourth allegation being established, the judge declined to take any action because a year had passed and there had been no subsequent allegations. The injunction, however, was continued for a further 12 months. 2013-12-202013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, [2013] MHLO 118 — The facts can be found in the summary of the Court of Appeal's judgment. The Supreme Court allowed Dr Chhabra's appeal, granting an order restraining the Trust from (a) pursuing any of the confidentiality concerns contained in the Trust's letter of 12 August 2011 as matters of gross misconduct and (b) pursuing any confidentiality concerns without first re-starting and completing an investigation under its policy D4A. 2013-12-192013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
G v Scottish Ministers sub nom G v MHTS [2013] UKSC 79, [2013] MHLO 117 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The tribunal's decision to make no order was lawful. The Supreme Court took the opportunity to clarify the nature of decision-making under section 264(2) Mental Health (Care and Treatment) (Scotland) Act 2003, and the factors which are relevant to the proper application of that section and of other provisions of the Act. 2013-12-182013 cases, Brief summary, Judgment available on Bailii, Scottish cases, Transcript
Re P (A Child) [2013] EWHC 4048 (Fam), [2013] MHLO 116 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - full judgment, including detailed chronology. 2013-12-172013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4037 (Fam), [2013] MHLO 115 — Decision of Munby P on reporting restrictions in 'forced caesarian' case - initial brief judgment. 2013-12-172013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
YLA v PM [2013] EWHC 4020 (COP), [2013] MHLO 114 — There was a very significant possibility that PM married YLA and had a child with her for reasons solely to do with his immigration status. Parker J made interim declarations including that YLA lacked capacity to consent to sexual relations or marriage, or to decide where she should live, and provided general guidance on such forced marriage cases. 2013-12-162013 cases, Brief summary, Judgment available on Bailii, Sex and marriage cases, Transcript
R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD [2013] EWCA Civ 1561, [2013] MHLO 113 — Unsuccessful appeal in hunger strike deportation case. 2013-12-162013 cases, ICLR summary, Judgment available on Bailii, Repatriation cases, Transcript
R (Muaza) v SSHD [2013] EWHC 3764 (Admin), [2013] MHLO 112 — "These two cases raise common issues over the lawfulness of the exercise by the Secretary of State for the Home Department of her powers of detention in respect of immigration detainees whose refusal to take food and fluids causes them life threatening physical conditions, and over whether there comes a stage at which such a detainee's continued detention after the refusal to take food or fluids involves a breach of rights under Articles 2 and 3 of the European Convention on Human Rights." 2013-12-152013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Repatriation cases, Transcript
R v Fort [2013] EWCA Crim 2332, [2013] MHLO 111 — (1) The sentencing judge erred in concluding that the appellant would continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated, and therefore erred in imposing a sentence of custody for life as opposed to a s37/41 hospital order. (2) The judge's order under s45A was unlawful, because such an order could not be made on someone who was under 21 at the time of conviction (and was thus being considered for a sentence of custody for life, as opposed to a sentence of imprisonment, as would be the case on a person over 21 at the date of conviction). 2013-12-152013 cases, Brief summary, Hybrid order cases, Judgment available on Bailii, Life sentence cases, Transcript
Re PO: JO v GO [2013] EWHC 3932 (COP), [2013] MHLO 110 — Judgment relating to Hague Convention on the International Protection of Adults 2000 and MCA 2005 sch 3. 2013-12-132013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Cuthbertson v Rasouli (2013) SCC 53, [2013] MHLO 109 — Canadian Supreme Court's consideration of a patient in persistent vegetative state, where physicians wished to remove his support and to provide palliative care, but the statutory 'substitute decision maker' refused to consent. 2013-12-122013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
R v Farooqi [2013] EWCA Crim 1649, [2013] MHLO 108 — Unsuccessful criminal appeal based partly on the misconduct of a trial advocate, in which the Lord Chief Justice comments on the advocate's role. 2013-12-122013 cases, Brief summary, Judgment available on Bailii, Other criminal law cases, Transcript
Re Devillebichot (deceased) [2013] EWHC 2867 (Ch), [2013] MHLO 107 — The testator had capacity to make his will and (although subject to persuasion) had not been under undue influence. 2013-12-122013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Transcript
Re P (A Child) [2013] EWHC 4383 (Fam), [2013] MHLO 106 — Decision of Charles J on reporting restrictions in 'forced caesarian' case. 2013-12-112013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
UF v A Local Authority [2013] EWHC 4289 (COP), [2013] MHLO 105 — Under Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, Legal Aid for MCA 2005 s21A appeals is non-means-tested for as long as the relevant DOLS standard authorisation is in force. In this case the Ministry of Justice and the Legal Aid Agency confirmed that Legal Aid could continue if the court extends the standard authorisation for the duration of the case. 2013-12-092013 cases, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript
Re AA [2012] EWHC 4378 (COP), [2012] MHLO 182 — Judgment of Mostyn J in 'Italian forced caesarian' case. 2013-12-042012 cases, Best interests, Judgment available on Bailii, No summary, Transcript
Re P (A Child) [2013] EW Misc 20 (CC), [2013] MHLO 103 — Care proceedings judgment in 'Italian forced caesarian' case. 2013-12-032013 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
R v Edgington [2013] EWCA Crim 2185, [2013] MHLO 102 — The appellant had been sentenced to life imprisonment for murder and attempted murder, with a minimum term of 37 years. (1) Appeal against conviction dismissed, as the judge was not wrong to prevent counsel from re-examining the defence expert on whether she would 'as a matter of practice ... ever be released' from a hospital order. (2) Appeal against sentence dismissed as it was not manifestly excessive. 2013-12-032013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
Equilibrium Health Care v AK [2013] UKUT 543 (AAC), [2013] MHLO 101 — A tribunal medical member had referred the RC to the GMC in 2010 in relation to the RC's evidence at a tribunal. The RC argued, following the adjournment of a 2013 hearing, that this medical member should recuse himself because of bias. He was unsuccessful as there was no real possibility of bias, or actual bias, at either the 2010 hearing or the 2013 hearing. Obiter: decisions on recusal are best challenged after the proceedings are concluded. 2013-11-272013 cases, Bias cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
R (Z) v Camden and Islington NHS Foundation Trust [2013] EWCA Civ 1425, [2013] MHLO 100 — Unsuccessful challenge to (1) detention under s2 (a subsequent tribunal decision to discharge was consistent with a lawful initial detention) and (2) decision not to hold hospital managers' hearing (it was reasonable to wait a few days for the tribunal). 2013-11-192013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Miscellaneous cases, Transcript
Re VT (minimally conscious state): An NHS Foundation Trust v VT [2013] EWHC B26 (Fam), [2013] MHLO 99 (COP) — The Trust obtained a declaration covering a decision not to provide intensive care or resusistation in specified circumstances. 2013-11-192013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
R (Antoniou) v Central and North West London NHS Foundation Trust [2013] EWHC 3055 (Admin), [2013] MHLO 98 — "This claim for judicial review arises out of the suicide of Mrs Jane Antoniou... At the time she was a patient detained ... under section 3 of the Mental Health Act 1983... For the reasons given above, we have concluded that, given all the circumstances of this case, in particular the fact that there was a properly constituted and conducted Inquest, there was no obligation under Article 2 of the ECHR to have, in addition, a separate independent investigation into the death of JA, either from the outset or from any time thereafter. We have also concluded that, taken as a whole, the investigation process into the death of JA was independent, effective and prompt. Lastly, we have concluded that there was no unlawful discrimination against JA or the claimant by any of the defendants in the way that JA's death was investigated." 2013-11-192013 cases, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript
Re M (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP), [2013] MHLO 97 — "These Court of Protection proceedings under Section 21A of the Mental Capacity Act 2005 were brought in May 2013 on behalf of a 67-year-old lady named M. ... M wants to return to her own home, a bungalow that, until she went into residential care, she had shared for much of the time with her partner of 30 years." 2013-11-122013 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
A Local Authority v SY [2013] EWHC 3485 (COP), [2013] MHLO 96 — "It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage." 2013-11-122013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
Aintree University Hospitals NHS Foundation Trust v David James [2013] UKSC 67, [2013] MHLO 95 — "This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?" 2013-10-312013 cases, Best interests, Judgment available on Bailii, No summary, Transcript
MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94 — (1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case ..→2013-10-232013 cases, Brief summary, Displacement, ECHR, Judgment available on Bailii, Transcript
DL-H v Partnerships in Care [2013] UKUT 500 (AAC), [2013] MHLO 93 — This is the latest in a series of cases considering personality disorder, refusal to engage in treatment, and the question of whether the 'appropriate medical treatment is available' test in s72 is met. (1) Refusal to engage is not decisive but is potentially a relevant factor that has to be taken into consideration - although a patient may well continue to satisfy the conditions for detention despite refusing to engage. (2) In this case, the tribunal did not seem to have asked itself whether the deterioration after recall might not have been a response to detention rather than a manifestation of his mental disorder: this was relevant to the questions of 'nature/degree' and of whether the available treatment was appropriate, so the decision was set aside. 2013-10-232013 cases, Brief summary, Judgment available offline, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions
A Local Authority v ED [2013] EWHC 3069 (COP), [2013] MHLO 92 — "The issues: (1) Does she have litigation capacity? (2) Does she have capacity to make decisions as to: (i) Where she should live; (ii) Contact; (iii) Her personal care needs; (iv) The removal of her pubic hair; (v) Whether or not she can consent to give an Achieving Best Evidence interview. (3) If the answer to any of the above is 'no', what are her best interests in respect of each? (4) Should there be a protocol governing the enquiries to be made, (which could be used in the investigation by the police/Local Authority and/or Official Solicitor if in post), of purported allegations made by her as to, for example, physical assaults upon her? If yes, what should be the operative terms and conditions of such a protocol?" 2013-10-232013 cases, Best interests, COP costs cases, Judgment available on Bailii, No summary, Transcript
A Local Authority v TZ [2013] EWHC 2322 (COP), [2013] MHLO 91 — "The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations." 2013-10-042013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
R (Moosa) v LSC [2013] EWHC 2804 (Admin), [2013] MHLO 90 — In Court of Protection proceedings, the patient's mother was financially ineligible for Legal Aid (the equity in her home was about £65,000 over the £100,000 limit) so the patient's brother was added as a party purely because he would be financially eligible. The LSC refused him funding, for reasons including that the mother should fund the case. Permission to apply for judicial review of that decision was refused. 2013-09-172013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Neary v LB Hillingdon [2013] MHLO 87 (SEC) — Mark Neary's appeal against Hillingdon's decision to end Housing Benefit was unsuccessful: as he was estranged from his wife, who lived separately in a jointly-owned property, his share of the property counted towards the statutory limit for Housing Benefit purposes. 2013-09-082013 cases, Brief summary, Judgment available on MHLO, Miscellaneous cases, Neutral citation unknown or not applicable, Transcript
R (EH) v SSHD (2012) EWHC 2569, [2012] MHLO 181 — Immigration/mental health case. 2013-09-072012 cases, Detailed summary, Judgment available on Bailii, Repatriation cases, Transcript
R (LV) v SSJ [2013] EWCA Civ 1086 — 
MHT/PB delay The applicant had been given an IPP sentence then transferred to hospital under s47/49. On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of Article 5(4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court's refusal of permission to apply for judicial review).
2013-08-302013 cases, Cases, Deprivation of liberty, Judgment available on MHLO, Judgment missing from Bailii, Pages using DynamicPageList3 parser function, Prison law cases, Transcript
MK v JK [2013] EWHC 4334 (COP), [2013] MHLO 81 — "MK made an application to the court to be appointed Personal Welfare Deputy for JK and that is how these proceedings commenced. However, all parties accept that the one issue is residence and that it is to be determined by a court ... it is in his best interests to move to the CNC Home on the basis that his placement at the Home will be retained for eight weeks so that he has somewhere to return should the move to the CNC Home fail... I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like ... Article 8 of the Convention rights ... I do think that putting in place a State-appointed decision-maker – which is what a Deputy is – is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to ..→2013-08-302013 cases, Best interests, Judgment available on Bailii, No summary, Transcript
AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC) — {{Case

|Date=2013-08-06 |NCN=[2013] UKUT 365 (AAC)M |Other citations=[2014] AACR 13B, [2013] MHLO 80 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Charles |Parties=AM, South London and Maudsley NHS Foundation Trust, Secretary of State for Health |Sentence=Discharge to DOLS |Summary=It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. (Nobody knows what the judge's third point means in practice.) The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. |Detail===Detailed summary== In this case it was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally under s131 MHA 1983 and that, as she lacked capacity, assessment/treatment could be carried out under s5 MCA 2005 instead (and under DOLS if the circumstances required it).

The gist of the case is that the tribunal (and other decision makers) should ask three questions once it is established that admission to hospital (as opposed to treatment elsewhere) is warranted:

1. Does the relevant person have the capacity to consent to the arrangements referred to in s131 MHA?
If the person has capacity then only the MHA is relevant.
If the person lacks capacity then consider question 2.
2. Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the relevant person?
There are two issues here:
(a) Is P eligible for DOLS? He is ineligible if he objects.
i. If the person is a non-compliant incapacitated patient then only the MHA is relevant.
ii. If the person is a compliant incapacitated patient, then consider the next issue.
iii. [The situation where the person objects to some but not all treatment was left undecided.]
(b) Would DOLS be required? It is required 'when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty'.
If either answer is 'No' (non-compliant or DOLS not required) then only the MHA is relevant.
If the answers are 'Yes' (compliant and DOLS required) then consider question 3.
3. How should the existence of a choice between reliance on the MHA and the MCA and its DOLS be taken into account?
In considering the MHA 'necessity' test consider the following:
(a) Is the MCA regime actually available in practice?
(b) When would it be available? (Relevant to deferring discharge.)
(c) Which regime involves the least restrictive way of best achieving the proposed assessment or treatment?
i. Relevant considerations include fluctuating capacity and the likelihood of continued compliance.
ii. Ignore the GJ principle (about the MHA having primacy) here.
iii. If DOLS is less restrictive then it will 'generally but not always' be more appropriate.

On the compliance issue the tribunal had concluded: 'We are satisfied that if the order were discharged, [AM] would be taken home by her daughters although she appeared to be quite happy in the hospital environment herself.' The Upper Tribunal decided the tribunal's various findings had not properly address the question of whether AM would be compliant with informal admission. The decision was therefore unlawful and the case was remitted to a differently-constituted tribunal.

2013-08-242013 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
A Local Authority v WMA [2013] EWHC 2580 (COP), [2013] MHLO 79 — "The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty. ... there is no doubt in my mind it is WMA's best interests to move to B ... if one looks at WMA's isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. ... I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty ... The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the ..→2013-08-242013 cases, Best interests, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
An NHS Trust v DE [2013] EWHC 2562 (Fam), [2013] MHLO 78 (COP) — "In my judgment it is overwhelmingly in DE’s best interests to have a vasectomy. That being said the court does not make such an order lightly, conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non-medical reasons requires strong justification." 2013-08-162013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Pearce v Beverley [2013] EW Misc 10 (CC) — "This is a claim by the Claimant, Colette Pearce following the death of her father, John Pearce on 23rd July 2008. Colette Pearce seeks to challenge a number of transactions made by her father which are said to be subject to the undue influence of the Defendant, Elizabeth Beverley or are otherwise voidable. She also challenges the validity of the will he purported to make on 20th June 2007. ... In the circumstances Elizabeth Beverley has not satisfied me that John Pearce had the capacity to make a will on 20th June 2007." 2013-08-162013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
An NHS Trust v L [2012] EWHC 4313 (Fam), [2012] MHLO 180 (COP) — "By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided. ... I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust's application. ... Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L's death and not to prolong, in any meaningful way, his life. I repeat Dr Bell's powerful analysis - It would result in Mr L's death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit." 2013-08-142012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
R (JG) v LSC [2013] EWHC 804 (Admin), [2013] MHLO 76 — Payment for expert evidence. 2013-08-122013 cases, Detailed summary, Judgment available on MHLO, Judgment missing from Bailii, Miscellaneous cases, Transcript
AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73 — The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal. 2013-08-102013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Powers, Transcript
Harrison v South Tyneside Council (2013) EWLandRA 2012 0866, [2013] MHLO 72 — "For some years prior to his death, Mr. Jackson suffered from dementia... By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation... In doing so, the council was acting under Part III of the National Assistance Act 1948. Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity. It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute. I would add that if that were not the case, then ..→2013-08-082013 cases, Detailed summary, Judgment available on Bailii, Other capacity cases, Transcript
Loughlin v Singh [2013] EWHC 1641 (QB), [2013] MHLO 71 — "On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved. ... The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and affairs. ... Therefore, I conclude, notwithstanding the legal presumption in favour of capacity, that the Claimant does not have capacity within the relevant legal definition. ... Annex: Professor Barnes' evidence is so unreliable that it should be rejected for the following reasons... District Judge Eldergill was unaware, when he made the order on 28 April 2010 appointing Mr Hugh Jones as the Claimant's deputy, that there was any medical evidence to the effect that the Claimant had capacity. He was not told about Dr Huddy's report, nor did he have any inkling of the ..→2013-08-082013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
R v Turbill [2013] EWCA Crim 1422, [2013] MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions." 2013-08-082013 cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, Transcript
RC v CC [2013] EWHC 1424 (COP), [2013] MHLO 68 — "The main application before the court is in fact not by CC but by her birth Mother RC. There was indirect contact between CC and RC until 2010/11 at a rate of 6 or 12 monthly letters, drawings, photographs and cards organised by the adoption agency [Birmingham City Council] through the adoptive Mother. That indirect contact stopped when the adoptive parents separated. By her application dated 2nd October 2012 to the Court of Protection RC applies to reintroduce such indirect contact. I suspect [but have not been formally told] that she would of course like direct contact in due course were it feasible. The case is highly unusual in that ordinarily a birth parent cannot by application to a court reintroduce herself to a birth child after adoption. It is only CC's incapacity that enables an application to be made." 2013-08-082013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
An NHS Foundation Trust v M and K [2013] EWHC 2402 (COP), [2013] MHLO 67 — "The painful and difficult issues now to be faced by M's family, the medical team that have cared for him so diligently over many years, and ultimately this court, is to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation in the event that there is a further deterioration in his condition." 2013-08-082013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
R v Ahmed [2013] EWCA Crim 1393, [2013] MHLO 66 — Appellant unsuccessfully sought restricted hospital order in place of an IPP sentence. 2013-08-082013 cases, Brief summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Sentence appeal cases, Transcript
R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961, [2013] MHLO 65 — Assisted suicide. 2013-08-082013 cases, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
Republic of South Africa v Dewani [2013] EW Misc 8 (MC) — Immigration case. 2013-08-082013 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
R (T (Sri Lanka)) v SSHD [2013] EWHC 1093 (Admin), [2013] MHLO 62 — Immigration case. 2013-08-082013 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
R (Faulkner) v SSJ [2013] UKSC 23, [2013] MHLO 60 — Quantum of compensation for delayed Parole Board hearing. 2013-08-082013 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Prison law cases, Transcript
TW v LB Enfield [2013] EWHC 1180 (QB), [2013] MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that ..→2013-08-082013 cases, Brief summary, Consulting NR, Judgment available on Bailii, Transcript
A Local Authority v HS [2013] EWHC 2410 (COP), [2013] MHLO 58 — "These applications for costs against the local authority are made by the Official Solicitor on behalf of the First Respondent and by the Third Respondent, HLS, who is the brother of the First Respondent." 2013-08-012013 cases, COP costs cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Transcript
Re Joan Treadwell (Deceased); OPG v Colin Lutz [2013] EWHC 2409 (COP), [2013] MHLO 57 — "This judgment concerns an application by the Public Guardian to enforce a security bond in respect of unauthorised gifts made by the late Mrs Joan Treadwell’s deputy for property and affairs, Colin Lutz." 2013-08-012013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
SSJ v SB [2013] UKUT 320 (AAC), [2013] MHLO 56 — Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty. 2013-08-012013 cases, Brief summary, Discharge conditions, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Sandwell MBC v RG [2013] EWHC 2373 (COP), [2013] MHLO 55 — "I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. ... Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled." 2013-07-302013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
R (Lee-Hirons) v SSJ [2013] EWHC 1784 (Admin) — 
Reasons for recall "For the detailed reasons set out above I am satisfied that the decision to recall the Claimant was lawful because there had been a deterioration in his mental health since the hearing before the Tribunal. I find that there is a duty to give the patient who is being recalled oral reasons for that decision. I am satisfied that the Claimant was told of the reasons for his recall. I therefore dismiss the claim for damages for false imprisonment and breaches of article 5 of the ECHR, and I dismiss the claim for a declaration."

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case ..→
2013-07-202013 cases, Cases, Judgment available on MHLO, Judgment missing from Bailii, MHLR summary, Ministry of Justice cases, Pages using DynamicPageList3 parser function, Transcript
SRA decision: Nnadozie Okpokiri of Dozie and Co Solicitors [2013] MHLO 53 (SRA) — The SRA closed down Dozie and Co on the grounds that (1) it had reason to suspect dishonesty on the part of Nnadozie Okpokiri (director) and (2) it was satisfied that he had failed to comply with the conduct and accounts rules. 2013-07-192013 cases, Brief summary, Judgment available offline, SRA decisions, Transcript
Re Clarke [2013] EWCA Civ 811, [2013] MHLO 52 — On 14/1/13 Mr Clarke had been committed to prison for 3 months by HHJ Pelling QC for breach of injunctions prohibiting him from publicising matters to do with this Court of Protection case; as a result he decided to remain in Spain and wished to appeal the committal. (1) There was no merit in his separate appeal against an earlier costs order, so permission to appeal was refused. (2) His request for the costs appeal to be adjourned and considered alongside the future appeal against committal (the delay on this being because it took until June to obtain a transcript) was rejected as this would merely complicate matters. 2013-07-152013 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
GA v Betsi Cadwaladr University Local Health Board [2013] UKUT 280 (AAC), [2013] MHLO 50 — (1) Although the patient argued that he was not giving true consent to depot medication on a CTO, the tribunal decided that he was in fact consenting (this finding was not addressed on appeal). (2) If the tribunal have found that the statutory criteria are met (in CTO cases, effectively that the patient requires treatment and should be subject to recall), then, before granting a discretionary discharge, the tribunal must be satisfied that the identified needs for treatment and protection can be properly catered for, as otherwise the decision would be self-contradictory and perverse. [A more detailed summary is available on the case page.] 2013-07-042013 cases, CTO cases, Detailed summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions
Re SK [2013] MHLO 49 — "This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order." [Summary required, but detailed external summary available.] 2013-07-042013 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Other capacity cases, Transcript
Y County Council v ZZ [2012] EWHC B34 (COP), [2012] MHLO 179 (COP) — "This is an application made by Y County Council in the Court of Protection in relation to Mr ZZ, a man of young middle age. I am invited to make a number of declarations in relation to Mr ZZ. First, I am asked to find that he lacks litigation capacity on the issues in this case. Second, I am invited to declare that he lacks capacity to decide upon the restrictions relevant to supporting his residence and care. Finally, I am asked to declare that he is being deprived of his liberty, but that it is lawful as in his best interests pursuant to schedule A1 of the Mental Capacity Act 2005. Mr ZZ is represented by the Official Solicitor. He has been present throughout the hearing and has conducted himself with dignity throughout. Indeed, he gave unsworn, oral evidence before me in an entirely courteous and helpful way." 2013-06-062012 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Transcript
Re SB (A Patient: Capacity To Consent To Termination) [2013] EWHC 1417 (COP), [2013] MHLO 48 — SB's desire for an abortion coincided with her stopping her medication for bipolar affective disorder, which led to the Trust seeking decisions on capacity and best interests. (1) Even if aspects of her decision-making were influenced by paranoid thoughts in relation to lack of support from her husband and her mother, SB also had a range of rational reasons, and had capacity to make the decision. (2) Interesting aspects to the case include: (a) the judge disagreed with the two psychiatrists who believed SB lacked capacity; (b) he appeared to consider the question of being 'unable' to make a decision separately in relation to its ordinary meaning (whether SB had in fact made a decision, para 38) and its legal meaning by reference to MCA 2005 s3(1) (whether she could understand the relevant information etc, para 39); (c) the Official Solicitor asked for his appointment as litigation friend to be ended, and this request was granted (para 30); (d) the judge granted this request ..→2013-06-032013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
EC v Birmingham and Solihull Mental Health NHS Trust [2013] EWCA Civ 701, [2013] MHLO 47 — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.] 2013-05-122013 cases, Brief summary, Judgment available on Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Powers, Transcript
Pitt v Holt [2013] UKSC 26, [2013] MHLO 46 — As receiver under the MHA 1983 (old equivalent to deputy under the MCA 2005) for her husband, Mrs Pitt set up a settlement trust which overlooked the impact of inheritance tax; Futter's case did not involve the mental capacity. (1) The court considered the Hastings-Bass rule, and dismissed Mrs Pitt's appeal on this point (she had not breached her fiduciary duty so the settlement would not be set aside on this basis). (2) The court considered the test for setting aside a voluntary disposition on the ground of mistake, and allowed Mrs Pitt's appeal on this point. 2013-05-112013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
SL v Westminster City Council [2013] UKSC 27, [2013] MHLO 45 — "The short issue raised by this appeal is whether the respondent (SL), a failed asylum-seeker, was at the relevant time in need of 'care and attention', requiring the provision of accommodation by the local authority under section 21(1)(a) of the National Assistance Act 1948. Burnett J decided that he was not, but that decision was reversed by the Court of Appeal ... I consider that Burnett J reached the right result for substantially the right reasons." 2013-05-112013 cases, Community care, Judgment available on Bailii, No summary, Transcript
Re GM: MJ and JM v The Public Guardian [2013] EWHC 2966 (COP), [2013] MHLO 44 — "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place." 2013-05-072013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
PS v LP [2013] EWHC 1106 (COP), [2013] MHLO 43 — (1) It was in LP's best interests not to see her estranged family: before losing capacity due to a cerebral aneurism, she had taken the decision that her future was with her new partner and that she wished to break with the past. (2) Contact should only commence in future if LP becomes capable of expressing a view to that effect, and the family should be kept informed in relation to this approximately every six months. 2013-05-052013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
R v Dixon [2013] EWCA Crim 465, [2013] MHLO 42 — (1) Despite the appellant's intellect and condition the judge was entitled to permit the jury to draw an adverse inference from his failure to give evidence. (2) The appellant argued that fresh medical evidence showed the judge's decision was wrong, but this evidence was not admitted. (3) The appellant had been able meaningfully to participate in his trial, which was fair, and the conviction was safe. (4) The minimum term of the appellant's detention at Her Majesty's pleasure was reduced from 14 to 13 years. 2013-05-052013 cases, Brief summary, Judgment available on Bailii, MHLR summary, Other criminal law cases, Pages using DynamicPageList3 parser function, Transcript
R (T) v LSC [2013] EWHC 960 (Admin), [2013] MHLO 41 — The LSC's decision in care proceedings to agree prior authority for a multi-disciplinary assessment at a lower amount than that sought was unlawful because of the lack of reasons given, and was quashed. 2013-05-052013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
R v Foye [2013] EWCA Crim 475, [2013] MHLO 40 — The rule in s2(2) Homicide Act 1957 that the burden of establishing diminished responsibility lies on the defendant, on the balance of probabilities, is not incompatible with the presumption of innocence contained in Article 6(2). 2013-05-052013 cases, Brief summary, Diminished responsibility cases, Judgment available on Bailii, Transcript
Bialek v Circuit Court in Warsaw Poland [2013] EWHC 930 (Admin), [2013] MHLO 39 — Extradition case with psychiatric element. 2013-05-052013 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Repatriation cases, Transcript
Stoke City Council v Maddocks [2013] EWHC 1137 (COP), [2013] MHLO 38 — (1) As a result of his Alzheimer's Disease and vascular dementia, JM lacked capacity to litigate, or make decisions as to his residence, care plan, contact with his family, or dealing with his property and financial affairs. (2) It was in JM's best interests to remain at the AH care home; it was not in his best interests to be cared for by his daughter WM, either in the UK or Turkey, in particular because of her psychological profile and failure to provide a detailed proposed care plan. (3) In light of a recent development (JM had been taken out of the care home in breach of an injunction), contact by family members could be suspended, and resinstated at the discretion of the local authority. (4) A local authority deputy was appointed to sell the home and administer the finances, because if WM were deputy she would refuse to meet the local authority's fees. (5) JM's passport could not be returned to the family and would remain with the Official Solicitor until further review. (6) ..→2013-05-042013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
R v AJR [2013] EWCA Crim 591, [2013] MHLO 37 — The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989. 2013-05-042013 cases, Brief summary, ICLR summary, Judgment available on Bailii, Sentence appeal cases, Transcript
Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] MHLO 36 — "Mr Leslie Stolkin ..., some seven weeks before his death, executed a codicil. This case concerns the validity of that document. ...[O]ne of the deceased's sons, Mr Gary Stolkin ... disputes the validity of the Disputed Codicil on two grounds: (i) Want of testamentary capacity; and (ii) Want of knowledge and approval. ... In my judgment, the Disputed Codicil is valid, and it should be admitted to probate." 2013-05-042013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Coombs v North Dorset NHS PCT [2013] EWCA Civ 471, [2013] MHLO 35 — "Can an involuntary patient detained in a mental hospital under the provisions of the Mental Health Act 1983 pay for his care or treatment, or is such a possibility denied the patient (or his family on his behalf) by the provisions of that Act (the "MHA 1983") and/or public policy? ... In these circumstances, it seems to me that there is nothing inherent in the structure or wording of the MHA 1983 or the 2006 Act, and nothing by way of public policy, to exclude absolutely the possibilities of detained patients (or their family or others holding responsibility for looking after their assets) paying for or contributing in part to the cost of their treatment or care. Presumably, private patients detained in a private hospital do exactly that. Detained patients who are being looked after by an NHS authority will have most, if not all, of their costs funded by the state: but even in their case, it may be possible, as in the case of any patient within the NHS system, to purchase private ..→2013-05-032013 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
RC v NHS Islington [2013] UKUT 167 (AAC), [2013] MHLO 34 — "This is an appeal by a patient, brought with my leave, against a decision of the Mental Health Review Tribunal for Wales refusing an application for the postponement of the hearing of the patient’s appeal. ... The grounds of appeal argue that the ... policy on which the decision was based, of not postponing hearings other than to a fixed date, was unlawful and in any case there was nothing to prevent the tribunal from fixing a new date for the hearing even if the postponement was granted. ... The result of what I have held to be a flawed approach by the tribunal in relation to the patient’s application for a postponement in this case may have had serious consequences. Rather than proceed with a hopeless appeal, the patient was forced to withdraw his application to the tribunal. Although his subsequent appeal was successful, the tribunal’s refusal of the initial postponement application may have resulted in the patient’s detention for longer than would otherwise have been ..→2013-04-222013 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions
Baker Tilley (A Firm) v Makar [2013] EWHC 759 (QB), [2013] MHLO 33 — During a detailed assessment costs hearing M became tearful and distressed and lay on the floor screaming. M refused to grant access to her medical files and at a further hearing, in the absence of medical evidence, the master decided that M was a protected person for the purposes of CPR Part 21, and stayed procedings pending the appointment of a litigation friend. Held: The master put more weight on the incident than necessary, and should have taken account of M's ability to take part in other litigation. In the absence of medical evidence the court should be cautious before concluding that a litigant is suffering from a disturbance of the mind. 2013-04-052013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [2013] MHLO 32 — The tribunal decision stated that 'there are cases (and this is one of them) where it is impossible to escape the impact of risk in relation to all aspects of the statutory criteria' and that 'both the high likelihood of harm occurring, and the grave consequences of such harm if it occurred, especially when considered together, can pervade across all aspects of the case'. The patient argued that, while risk is relevant to the 'nature/degree' and 'necessity' tests, it is irrelevant to the 'appropriate treatment' test. (1) The tribunal's findings (including that that the patient's disorder was potentially responsive to treatment and that he had sometimes engaged) were sufficient to satisfy the 'appropriate treatment' test, whether or not risk was relevant. (2) (Obiter) Risk is not necessarily relevant to the issue whether appropriate treatment is available for a patient, but it can be: the treatment that is appropriate for a particular patient is determined by the patient’s medical ..→2013-04-052013 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
DD v Durham County Council [2013] EWCA Civ 96, [2013] MHLO 31 — DD wished to bring proceedings against local authorities arguing that (a) the two assessing AMHPs owed a duty to him (a legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held); (b) that by making the application for admission, each was in breach of duty; and (c) that the county council was responsible vicariously for that breach of duty. (1) The Court of Appeal (reversing the High Court decision in this respect) decided that the argument was sufficient for leave under s139 to bring proceedings to be granted. (2) DD should not have been made responsible for the costs of Middlesbrough City Council. 2013-03-282013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
DD v Durham County Council & Anor [2013] EWCA Civ 96, [2013] MHLO 31 — "DD appeals against the decision refusing leave and that part of the order relating to the payment of Middlesbrough City Council's costs. There is no appeal against the decision that Durham would be the body liable for any breach of duty or infringement of the Human Rights Act by the second AMHP. ... It was contended by Ms Lieven QC, on behalf of DD, that the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty. It was Ms Lieven QC's primary case that under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps ..→2013-03-282013 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
R (Copson) v Dorset Healthcare University NHS Foundation Trust [2013] EWHC 732 (Admin), [2013] MHLO 30 — "This is a claim by the claimant, Rosalind Copson, for an order quashing the decision of the defendant, Dorset Healthcare University NHS Foundation Trust, on 14 June 2012 to implement its Mental Health Urgent Care Services Project for the reconfiguration of mental health services in the west of Dorset. ... The claim is put on two grounds. First, it is said that the defendant failed, before reaching its decision, to carry out an adequate consultation with users of its mental health services, chiefly in that it failed to provide to those users sufficient information to enable them to engage meaningfully with the proposals. Second, it is said that the defendant failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard, in the exercise of its functions, to the need to advance equality of opportunity. ... The claimant is a user of mental health facilities in Bridport, Dorset. The facilities that she uses include the in-patient facility at the Hughes Unit ..→2013-03-282013 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
R v Ahmed [2012] EWCA Crim 99, [2012] MHLO 178 — (1) The appellant sought a s37/41 restricted hospital order in place of an IPP sentence. (2) The Responsible Clinician argued for a s45A hybrid order, for reasons summarised by the court as follows: 'The appellant is an illegal immigrant. In order to be discharged from hospital he would have to undergo a period of controlled supervision. This would be in appropriate accommodation. Dr Swinton tells us that this is not an option open to an illegal immigrant like the appellant. Thus he cannot be discharged into the community because he cannot undertake the necessary conditioning which would satisfy the hospital that he was safe to be left in the community on his own. As a consequence he has to remain in hospital and he will take up a bed, apparently permanently. This is damaging to the wider public interest. If a section 45A order were made, then although the appellant would receive precisely the same treatment under a section 47 transfer as he currently does, a discharge can ..→2013-03-282012 cases, Brief summary, Judgment available on Bailii, Sentence appeal cases, Transcript
R (Chatting) v Viridian Housing [2012] EWHC 3595 (Admin), [2012] MHLO 177 — "This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. ... On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted. On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes ..→2013-03-282012 cases, Community care, Judgment available on Bailii, No summary, Other capacity cases, Transcript
R (Z) v Whittington Hospital [2013] EWHC 358 (Admin), [2013] MHLO 29 — "The claimant, Mrs Z, who very ably represented herself, was sectioned under the Mental Health Act shortly after giving birth to her first baby after a prolonged and very difficult labour. ... Miss Z says that looking at the reasons that were given at the time, which are recorded in a document signed by both doctors (Form A3, that is the formal sectioning document) the reasons that are there recorded are insufficient reasons to warrant her detention under the Mental Health Act." 2013-03-282013 cases, Judgment available on MHLO, Judgment missing from Bailii, MHLR summary, Miscellaneous cases, Pages using DynamicPageList3 parser function, Transcript
A County Council v E [2012] EWHC 4161 (COP), [2012] MHLO 176 — "This case involves the personal welfare of two young women, E and K. E is 26 years old and K is 24. Both have a diagnosis of Fragile X syndrome and associated learning disabilities, as confirmed by a consultant psychiatrist in a report of 7 August 2010. E is selectively mute. K also has a diagnosis of Attention Deficit Hyperactivity Disorder ('ADHD')." 2013-03-282012 cases, Best interests, Judgment available on Bailii, No summary, Transcript
HT v CK [2012] EWHC 4160 (COP), [2012] MHLO 175 — "This decision deals with residence, contact and financial arrangements for CK ('C' or 'Ms K'). In particular, the court must decide whether it is in her best interests to remain where she is living and the appropriate contact arrangements" 2013-03-282012 cases, Best interests, Judgment available on Bailii, No summary, Transcript
PB v RB [2012] EWHC 4159 (COP), [2012] MHLO 174 — "This decision deals with a fact-finding hearing held on 10-12 September 2012. ... The local authority sought to prove 13 alleged facts ... " 2013-03-282012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
Re RGS [2012] EWHC 4162 (COP), [2012] MHLO 173 — "RGS is the person concerned in these proceedings ('P'). The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure." 2013-03-282012 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
R (Das) v SSHD [2013] EWHC 682 (Admin), [2013] MHLO 28 — "The Claimant's submission in these proceedings is that at the time of the second period of detention she suffered from a mental illness, in the form of depression and post traumatic stress disorder ("PTSD"), and that in detaining her the Secretary of State acted contrary to, or without having proper regard to, his own policy regarding detention of persons suffering from mental illness. This means that her detention was unlawful, as being in breach of the Claimant's legitimate expectation that the Secretary of State would take into account and abide by his policy in this regard. ... The Claimant is entitled to a declaration that the entire second period of detention was unlawful. However, she is only entitled to nominal damages for false imprisonment in relation to that detention." 2013-03-282013 cases, Judgment available on Bailii, No summary, Repatriation cases, Transcript
R v Caress [2013] EWCA Crim 218, [2013] MHLO 27 — "In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence [a restricted hospital order] was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence." 2013-03-272013 cases, Judgment available on MHLO, Judgment missing from Bailii, MHLR summary, Pages using DynamicPageList3 parser function, Sentence appeal cases, Transcript
JP v South London and Maudsley NHS Foundation Trust [2012] UKUT 486 (AAC) — "The grounds of appeal related to the Tribunal’s finding that he suffered from a mental disorder; the insufficiency of the Tribunal’s reasons for their decision that the appellant was to continue to be detained under section 2, and to his view that there had been a breach of his right to a fair hearing under Article 6 of the European Convention on Human Rights. He made seven specific submissions on this which I shall address hereafter. At the hearing the appellant also raised a breach of Article 9 of the Convention – his right to freedom of thought, and submitted that the Mental Health Act 1983 was flawed." 2013-03-272012 cases, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions
MA v SSH [2012] UKUT 474 (AAC), [2012] MHLO 171 — The inability of a nearest relative of a patient detained under s2 (in contrast to s3) to apply to the tribunal following the RC's barring of his order for the patient's discharge did not breach Article 5, 6, 8 or 12. 2013-03-272012 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC), [2013] MHLO 25 — The patient had been visited by an independent doctor but did not rely on a report from him. The hospital argued that the tribunal should infer that the doctor had been instructed to prepare a tribunal report, that this report was not favourable to the patient, and that it concurred with the clinical team's opinion. The patient appealed, arguing that (in light of the hospital's argument) the panel should have recused themselves for there to be a fair hearing. (1) In relation to the hospital's argument: (a) as a matter of practical reasoning, it could never succeed (invalid inferences); (b) as a matter of law, it may not be permissible (requiring inferences to be drawn from other inferences); and (c) it failed to take into account the context: 'The First-tier Tribunal always has medical evidence from the clinical team. The medical member of the panel will have interviewed the patient. And the patient may have produced medical evidence in support of the application. I cannot imagine ..→2013-03-272013 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
MS v North East London Foundation Trust [2013] UKUT 92 (AAC), [2013] MHLO 24 — In this case it was argued that the tribunal had addressed the s3 criteria for a patient who was detained under s2. (1) The Upper Tribunal decided that the First-tier Tribunal had not misdirected itself in this way. (2) However, the judge considered the criteria: he set out why he considered them different (primarily the different purpose of each section) but did not define how they were different. He concluded: 'This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.' (3) The tribunal decision was set aside because, faced with a medical report which had wrong language and a confused focus, the tribunal had failed to analyse the evidence to ensure ..→2013-03-272013 cases, Brief summary, Judgment available on Bailii, Transcript, Upper Tribunal decisions
R v Coley [2013] EWCA Crim 223, [2013] MHLO 23 — "We have heard these three cases in succession because they have some features in common. Each raises a (different) question connected with the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism. Each calls, however, for consideration of its very particular facts. Neither individually nor collectively do they provide an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally. We know that this area of the law is under active consideration by the Law Commission, which work will, we think, be of value. Although there have historically been very few cases which raise insanity, that has been because the statutory provisions governing the disposal orders which must be made if there is a verdict of insanity have historically inhibited attempts to rely on it. More recent changes in those disposal provisions may well lead to an increase in numbers. Any review must, ..→2013-03-272013 cases, Judgment available on Bailii, No summary, Transcript, Unfitness and insanity cases
SRA decision: Billy Chucks of Chris Solicitors [2013] MHLO 22 (SRA) — "It is reported that whilst employed by various legal practices: Mr Chucks failed to comply with restrictions on his attendance imposed by a number of hospital trusts, and that he prepared a “consent to disclosure” request at a hospital for a client who has confirmed that he had not instructed Mr Chucks to act on his behalf, and that he improperly removed clients’ files/documentation without authority from a former employer. Those papers have not yet been returned. ... I FIND that Mr Billy Chucks, (Date of birth: 23 August 1975) of [London] who is or was involved in legal practice but is not a solicitor has, in the Society’s opinion occasioned or been a party to, with or without the connivance of a solicitor, an act or default in relation to a legal practice which involved conduct on his part of such a nature that in the Society’s opinion it would be undesirable for him to be involved in a legal practice in one or more of the ways mentioned in sub-section (1A) of Section 43. ..→2013-03-272013 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, SRA decisions, Transcript
R v Smith (Mark John) [2012] EWCA Crim 2566, [2012] MHLO 170 — "This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act." 2013-03-262012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Sentence appeal cases, Transcript
NT v FS [2013] EWHC 684 (COP), [2013] MHLO 18 — "This is an application by NT ("the Deputy") for authority to execute a statutory will on behalf of FS ("F"). There is no dispute that F lacks the capacity to make such a will. There is equally no dispute that it is in his best interests that such a will be made. There are a large number of Respondents to the application each of whom are potential beneficiaries under such a will. There are, however significant disputes between them as to the provisions of such a will." 2013-03-262013 cases, Judgment available on Bailii, No summary, Statutory will cases, Transcript
Aintree University Hospitals NHS Foundation Trust v David James [2013] EWCA Civ 65, [2013] MHLO 17 — "On 6th December 2012 Mr Justice Peter Jackson ... declined to make the declarations sought by the appellant, the hospital treating DJ, that subject to the agreement of his clinical team, it would be lawful, being in his best interests, for the following treatment to be withheld in the event of a clinical deterioration: cardiopulmonary resuscitation; invasive support for circulatory problems; renal replacement therapy in the event of deterioration in renal function." The Court of Appeal allowed the Trust's appeal. 2013-03-262013 cases, Best interests, Judgment available on Bailii, No summary, Transcript
R (Children's Rights Alliance for England) v SSJ [2013] EWCA Civ 34, [2013] MHLO 16 — "This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ([2012] EWHC Admin 8B), by which he dismissed the appellant's application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom." 2013-03-262013 cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Mihailovs v Latvia 35939/10 [2013] ECHR 65, [2013] MHLO 15 — "The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights." 2013-03-262013 cases, ECHR, Judgment available on Bailii, MHLR summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Lashin v Russia 33117/02 [2013] ECHR 63, [2013] MHLO 14 — "The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry." 2013-03-262013 cases, ECHR, Judgment available on Bailii, MHLR summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript
Durham County Council v Dunn [2012] EWCA Civ 1654, [2012] MHLO 169 — "On 17 December 2007, the claimant's solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s. The letter included a request for the disclosure of certain documents. Some documents were disclosed in redacted form. On 25 March 2011, the claimant issued these proceedings. This appeal is concerned with the ambit of the Council's duty of disclosure. ... In particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR)." 2013-03-262012 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript
Re Buckley: The Public Guardian v C [2013] EWHC 2965 (COP), [2013] MHLO 13 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. ... Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA." 2013-03-262013 cases, Judgment available on Bailii, Judgment available on MHLO, LPA cases - revocation, No summary, Transcript
WCC v AB [2012] MHLO 168 (COP) — Whether AB's aunt should be appointed as litigation friend. 2013-03-262012 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Other capacity cases, Transcript
R v Nightingale [2012] EWCA Crim 2734, [2012] MHLO 167 — The appellant, having pleaded guilty to possession of (a) a Glock 9mm pistol and (b) the following live ammunition: 122 x 9mm, 40 x 7.62mm, 50 x 9mm (frangible), 50 x .338 (armour piercing), 2 x .308, 74 x 5.56mm, had been sentenced to 18 months for the Glock and 6 months concurrently for the ammunition. On appeal against sentence, as 'these offences were committed in exceptional circumstances by an exemplary soldier', this was reduced to 12 months, suspended for 12 months. 2013-03-262012 cases, Brief summary, Judgment available on Bailii, Sentence appeal cases, Transcript
LB Waltham Forest v WD [2010] MHLO 195 — "The issues which I have to consider are four fold: first, WD’s future accommodation and residence; secondly, his contact arrangements with other members of his family; thirdly, the application by the Local Authority for the appointment of a deputy under the Mental Capacity Act 2005; and fourthly, whether or not these proceedings should now come to an end. Other matters of the care plan are fully agreed between the parties. As I have said, the plan put before me is comprehensive and this court is happy to endorse it." 2013-03-262010 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Other capacity cases, Transcript
A Local Authority v AK [2012] EWHC B29 (COP), [2012] MHLO 166 — "This is an application by a Local Authority for the determination of an issue as to whether a severely brain damaged man ('AK') had the capacity to enter into a marriage in November 2010." 2013-03-262012 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
A Local Authority v K [2013] EWHC 242 (COP), [2013] MHLO 11 — "K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K's social welfare) for a best interests' determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family)." 2013-03-262013 cases, Judgment available on Bailii, No summary, Sex and marriage cases, Transcript
Turner v Phythian [2013] EWHC 499 (Ch), [2013] MHLO 10 — "Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. ... The second ground is that Iris lacked mental capacity to make the will. ... The third ground is that Iris did not know or approve of the contents of the will. ... I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will." 2013-03-252013 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript
ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69, [2013] MHLO 9 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. The police unsuccessfully appealed against the judge's findings on liability (assault, battery and false imprisonment, DDA 1995, ECHR Articles 3, 5, and 8). [Detailed external summary available.] 2013-03-252013 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript
SSJ v MP [2013] UKUT 25 (AAC), [2013] MHLO 8 — "The Secretary of State had two grounds of appeal. One related to the tribunal’s finding on diagnosis; the other related to the decision not impose any conditions. ... I can only decide that, despite the errors of law, the tribunal’s decision should not be set aside. The result is that this decision provides in effect a declaration of the errors made in the tribunal’s decision." 2013-03-252013 cases, Judgment available on Bailii, No summary, Reasons, Transcript, Upper Tribunal decisions
DO v LBH [2012] EWHC 4044 (Admin), [2012] MHLO 165 — "I have before me listed two applications for permission to bring judicial review proceedings and/or for directions against a local authority (LBH) and another interested party, ostensibly in the name of DO, by his sister (EC), the applicant as his Litigation Friend in one of the applications and by both as claimants in respect of the other. ... EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings." 2013-03-252012 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Other capacity cases, Transcript
B v R [2013] EWCA Crim 3, [2013] MHLO 7 — "This appellant was convicted of counts of rape and common assault upon his partner and of a minor offence of criminal damage to her house. There was clear evidence that at the time of the offences he had been mentally ill, affected by paranoid schizophrenia and harbouring a number of delusional beliefs. His appeal certainly raises the question what if any impact his mental illness had on the issues before the jury. It is said more generally to raise the question whether, when considering the issue of a defendant's reasonable belief in the complainant's consent to sexual intercourse, account can or cannot be taken of the mental condition of the defendant." 2013-03-252013 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript
A PCT v LDV [2013] EWHC 272 (Fam) — {{Case

|Date=2013/02/18 |NCN=[2013] EWHC 272 (Fam)M |Essex issue=31 |Essex page=3 |Other citations=[2013] MHLO 6 |Court=Court of Protection |Judges=Baker |Parties=A Primary Care Trust, LDV, CC, B Healthcare Group |Sentence=Informal admission |Summary="The two questions considered at the hearing, which form the subject of this judgment, are (1) Do L's current circumstances amount objectively to a deprivation of liberty? (2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?" |Detail===Thanks== Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.

2013-03-252013 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript
R (S) v Mental Health Tribunal [2012] MHLO 164 (UT) — S unsuccessfully challenged by judicial review (a) the decision of the FTT setting aside its own decision that she be discharged and (b) her continued detention by the hospital. 2013-02-082012 cases, Judgment available on MHLO, Neutral citation unknown or not applicable, No summary, Transcript, Upper Tribunal decisions
An NHS Trust v Dr A [2013] EWHC 2442 (COP), [2013] MHLO 4 — Dr A was refusing food in protest at a UK Border Agency decision. (1) He was suffering from a delusional disorder which impaired the functioning of his brain by affecting his ability to use or weigh up information relevant to his decision whether or not to accept nourishment. (2) It was in his best interests for the court to make an order permitting the forcible administration of artificial nutrition and hydration. (3) (a) That treatment would involve deprivation of liberty, but Dr A was ineligible to be deprived of his liberty under the MCA because he was already detained under the MHA. (b) However, he could not be given the treatment under the MHA because it was not for a mental disorder, but a physical disorder; although the physical disorder was in part a consequence of the mental disorder, it was not obviously either a manifestation or a symptom of the mental disorder. (c) The solution to the problem was to authorise treatment under the High Court’s inherent jurisdiction as ..→2013-01-302013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
Re AW (Permanent Vegetative State); The NHS Trust v AW [2013] EWHC 78 (COP), [2013] MHLO 3 — AW was in a permanent vegetative state, having suffered a spontaneous, severe intra-cerebral haemorrhage in 2008. The NHS Trust responsible for AW's care sought a declaration that it would be lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, even though this would lead to AW's death. The application was supported by AW's family, by all the medical staff who looked after her, by the evidence of the expert witnesses provided reports, and by the Official Solicitor on behalf of AW herself. (1) The judge's findings were as follows: (a) AW is in a permanent vegetative state; (b) there will be no change or improvement in her condition; (c) there is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and (d) the suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan ..→2013-01-292013 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
West London MH NHS Trust v Dr Chhabra [2013] EWCA Civ 11, [2013] MHLO 2 — (1) Various complaints had been made against Dr Chhabra, including in relation to breaches of patient confidentiality, and the case investigator's report stated that Dr Chhabra admitted to reading CPA notes and dictating reports on public transport. (2) Upon reading the case investigator's report the case manager decided to convene a disciplinary panel to consider the following allegations and to consider them as potential gross misconduct which could lead to dismissal: (a) that Dr Chhabra breached patient confidentiality whilst reading notes and discussing patients whilst on public transport (the complaint being made by another passenger who happened to be Head of Secure Services Policy at the Department of Health); (b) that she undertook dictation on at least two occasions whilst completing Mental Health Tribunal reports whilst on public transport (the complaint being made by a member of secretarial staff); (c) that whilst travelling to work on public transport she would often ..→2013-01-272013 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Re P (abortion) [2013] EWHC 50 (COP), [2013] MHLO 1 — (1) The solicitor who was one of P's deputies queried whether P had capacity in relation to whether to continue with her pregnancy or have an abortion. (2) Hedley J held that she manifestly lacked litigation capacity but did have capacity in relation to continuing the pregnancy. (3) Generally courts and health officials should not try to decide whether P would be able to bring up a child but should instead concentrate solely on whether the pregnancy itself is in her best interests (the reasoning being that once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that). (4) The judge also stated that '[t]he purpose of [mental capacity legislation] is not to dress an incapacitated person in cotton wool but to allow them to make the same mistakes that all other human beings are able to make and not infrequently do'. [Summary based on press article; judgment now available.] 2013-01-252013 cases, Best interests, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Transcript
AC v Partnerships in Care Ltd [2012] UKUT 450 (AAC), [2012] MHLO 163 — AC appealed against the tribunal's rejection of his application for a notification under s74 that, if subject to a s37/41 hospital order rather than a s47/49 prison transfer direction, he would be entitled to a conditional discharge. (1) The tribunal failed to explain why it rejected Dr Kahtan's independent evidence which supported discharge: (a) although it stated that the RC had more experience of the patient, this is not of itself a reason for preferring evidence but rather is the background to almost every case, and it does not always follow that greater knowledge means greater insight; (b) the tribunal's criticisms of Dr Kahtan's evidence on the link between the index offences and AC's mental state did not necessarily undermine his views on discharge. (2) The tribunal was right not to consider the conditions which might be imposed by the Parole Board (and any consequent diminution of risk on release) and only to consider conditions possible with a conditional discharge: (a) the ..→2013-01-232012 cases, Brief summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions
R v Fletcher [2012] EWCA Crim 2777, [2012] MHLO 161 — IPP sentence quashed and a restricted hospital order substituted in its place: the judge had not properly been informed as to the appellant's mental state, because the original reports focussed on mental illness (which the appellant did not suffer from) rather than learning disability (which he did). 2013-01-072012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
Selwood v Durham CC [2012] EWCA Civ 979, [2012] MHLO 160 — "This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it ..→2012-12-232012 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript
Re L; The NHS Trust v L [2012] EWHC 2741 (COP), [2012] MHLO 159 — The Trust sought a declaration that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared (to paraphrase) that: (1) L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, specifically, (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes. (2) L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores. (3) In L's best interests, the clinicians were permitted: (a) to provide nutrition and hydration and medical treatment where L complies; (b) to administer dextrose solution to L despite her objections where immediately necessary to save life; (c) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L's co-operation having been taken); (d) to provide palliative ..→2012-12-232012 cases, Best interests, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Transcript
R v Channer [2012] EWCA Crim 1667, [2012] MHLO 157 — IPP sentence with minimum term of 23 months quashed and restricted hospital order substituted in its place. 2012-12-212012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
R v Searles [2012] EWCA Crim 2685, [2012] MHLO 156 — Custodial sentence of two years' detention in a young offender institution quashed and unrestricted hospital order substituted in its place. 2012-12-212012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
R v Searles [2012] EWCA Crim 1839, [2012] MHLO 155 — Criminal appeal adjourned for second medical report in relation to the making of a hospital order. 2012-12-212012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Sentence appeal cases, Transcript
RAR v GGC [2012] EWHC 2338 (QB), [2012] MHLO 154 — (1) In relation to limitation the court held as follows: 'I am satisfied that it would be fair and just to invoke the discretion afforded to the court by section 33 of the 1980 Act and permit this trial to proceed. I do so for the following reasons: (i) Having read the lengthy report of Dr Roychowdhury, it is clear that as a result of the abuse perpetrated upon her, the mental health of the claimant has been adversely affected. It has fluctuated over the years, at its worst, it has entailed compulsory hospitalisation. I find that the mental health of the claimant played a real part in the delay which has occurred in the bringing of the civil claim. I accept that the nature of the matters to be explored in this case are of themselves a deterrent for a person in the position of the claimant in bringing such a claim. (ii) In 1977/1978 the defendant had cause to consider allegations of sexual assault upon the claimant by reason of the criminal proceedings. That he did so, and that his ..→2012-12-212012 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
R (D) v SSHD [2012] EWHC 2501 (Admin), [2012] MHLO 153 — Immigration case with mental health background. (1) D was entitled to damages for unlawful detention for breach of paragraph 55.10 of the Enforcement Instructions and s149 Equality Act 2010, or alternatively for breach of the Hardial Singh principles. (2) Nominal damages for the period during which, had regard been paid to the relevant matters, he would still have been detained. (3) Breaches of Article 3 and 8. 2012-12-212012 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript
Southend-on-Sea BC v Armour [2012] EWHC 3361 (QB), [2012] MHLO 152 — The recorder's decision to refuse to grant a possession order (on the basis that by the time of the delayed hearing possession was no longer appropriate because there had been full compliance with the terms of the tenancy for the 12 months prior to the hearing) was upheld on appeal. 2012-12-202012 cases, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Miscellaneous cases, Transcript
Southend-on-Sea BC v AR [2012] EW Misc 25 (CC) — The claimant local authority sought possession of an introductory tenancy on the basis of the defendant's antisocial behaviour. (1) The procedure was followed properly so there was no defence to the claim under the Housing Act 1996. (2) The original decision to seek possession was a necessary and proportionate interference with the defendant's Article 8 rights: in particular, the diagnosis of Aspergers and depression (which led to lack of litigation capacity and appointment of a litigation friend) did not explain the defendant's conduct and was properly considered by the claimant. (3) However, there had been full compliance with the terms of the tenancy for the 12 months prior to the delayed final hearing, so possession was no longer proportionate. (4) No order for costs (despite the claimant seeking costs). 2012-12-202012 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript
NHS Trust v K [2012] EWHC 2922 (COP), [2012] MHLO 150 — The Trust proposed to carry out surgery on K which could potentially cure her of cancer but which itself (given her co-morbidities including her 20-stone weight) raised a considerable risk of death. (1) K lacked capacity due to her chronic mental illness, and in particular her delusional belief that she did not have cancer, to make informed decisions about major medical treatment. (2) Orders were made that certain specified treatment would be lawful, subject to powers of veto given to specified people. 2012-12-202012 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
R (O) v SSHD [2012] EWHC 2899 (Admin), [2012] MHLO 149 — Another immigration case with mental health background. 2012-12-202012 cases, Judgment available on MHLO, Judgment missing from Bailii, No summary, Repatriation cases, Transcript
AG's reference (no 3 of 1998) [1999] EWCA Crim 835 — "The Court of Appeal is asked to give its opinion on the following point of law: What has to be proved when an inquiry is embarked upon under the Trial of Lunatics Act 1883, to determine whether the Defendant 'did the act or made the omission charged'?" 2012-12-202012 cases, Judgment available on Bailii, No summary, Transcript, Unfitness and insanity cases
R (BA) v LB Hillingdon [2012] EWHC 3050 (Admin), [2012] MHLO 148 — "This is a claim for interim relief brought on behalf of BA by his litigation friend, the official solicitor, against the London Borough of Hillingdon and Hillingdon National Health Service Primary Care Trust. The relief sought is first, an order that the claimant be provided with community care services under section 117 of the Mental Health Act 1983 against both defendants and/or section 21 of the National Assistance Act 1948 against the first defendant, and secondly an order that the defendants jointly carry out assessments of his need of community care services under section 47 of the National Health Service and Community Care Act 1990." 2012-12-202012 cases, After-care, Judgment available on MHLO, Judgment missing from Bailii, No summary, Transcript
Wiltshire Council (09 005 439) [2012] MHLO 147 (LGO) — 
Section 117 complaint not upheld "Citing section 117 of the Mental Health Act, which makes provision for patients who have been compulsorily detained under the Act to receive free aftercare, Miss M complained it was wrong for Mrs M to have funded her own care during the five years she spent as a resident of the care home. The Ombudsmen did not uphold any of Miss M’s complaints. Although they found there was no doubt Mrs M had had a severe and enduring mental illness over many years, they could not conclude that her period of residence in a care home, in the last years of her life, was linked to aftercare arising from compulsory detention in hospital some 15 years earlier. Because Mrs M’s general deterioration could not be definitely attributed to her mental health problems, the Ombudsmen could not therefore conclude that the care home’s fees should have been met from public funds. They also found that, despite some ..→
2012-12-202012 cases, After-care, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript
R (Tracey) v Cambridge University Hospital NHS Foundation [2012] EWHC 3670 (Admin), [2012] MHLO 146 — "This is a claim for judicial review and a claim pursuant to section 7 Human Rights Act 1998 in respect of: (i) the failure by the first defendant to treat the claimant's late wife, Janet Tracey lawfully; (ii) the failure by the first defendant to treat Janet Tracey in a manner that respected her rights under Articles 2, 3 and 8 ECHR, and in a manner that respected the claimant's rights under Article 8 ECHR; and (iii) the failure by the first defendant to have in place and to operate lawfully an appropriate policy on the use of Do Not Attempt Cardio-Pulmonary Resuscitation orders; (iv) the failure by the second defendant effectively to promulgate any clear policy or guidance on the use of DNACPRs, which is accessible to patients and their families, and which properly informs them of their rights and legitimate expectations in respect of the use of DNACPRs by hospitals such as that operated by the first defendant." 2012-12-202012 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript

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