Category:2017 cases
The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019, and is more potentially useful than the old categorisation system: it includes all cases since January 2016 (browse at Special:Drilldown/Cases) but only a minority of older cases. Asterisks below mark those cases which have been added to the new database structure.
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.
| Case and summary | Date added | Categories |
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| * Interim declarations under s48 MCA 2005 DA v DJ [2017] EWHC 3904 (Fam) — In this case Parker J followed the approach of HHJ Marshall QC in Re F [2009] EWHC B30 (Fam)M rather than the approach of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam)B in relation to the correct approach to the threshold test for making an interim order under MCA 2005 s48 (which requires that there is "reason to believe that P lacks capacity in relation to the matter"). There is no need for the purpose and extent of the capacity assessment to be explained to the person concerned, and the evidence does not need to go so far as to rebut the presumption of capacity. | 2020‑03‑21 17:58:13 | 2017 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Immigration tribunal - fair hearing, litigation friends AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 — In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached." | 2019‑07‑26 20:29:51 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * Statutory demands set aside John Blavo v Law Society [2017] EWHC 561 (Ch) — "In November 2015 the Law Society served a statutory demand on Mr Blavo claiming that he owed it £151,816.27. In February 2016 the Law Society served a second statutory demand on Mr Blavo claiming that he owed it a further £643,489.20. On 14 December 2015 Mr Blavo applied to set aside the first statutory demand. On 11 March 2016 Mr Blavo applied to set aside the second statutory demand. ... It is the costs of the intervention, from 15 October 2015 to 20 January 2016, into the company and Mr Blavo's practice which are the underlying subject matter of the statutory demands. ... It follows from all I have said that I have concluded that the statutory demands in this case should be set aside because the debts in question are not for liquidated sums." | 2018‑07‑11 12:23:54 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, SRA decisions, Judgment missing from Bailii, 2017 cases
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| * Capacity - residence, care, contact and finances Re FX [2017] EWCOP 36 — "I am concerned with capacity issues in respect of FX. The proceedings are brought by FX through his litigation friend the Official Solicitor. ... The proceedings commenced by application dated 16 September 2016 as a challenge to a standard authorisation which authorised the deprivation of FX's liberty at Care Home A. ... During the course of these proceedings FX has asserted that he has capacity to make decisions in respect of residence, care, contact and finances. ... It is not argued by any party that he lacks capacity in respect of contact. There is no dispute that FX lacks capacity to litigate these proceedings. ... FX is 32 years of age. He has a diagnosis of Prader-Willi Syndrome PWS. ... I am satisfied that FX has capacity to make the relevant decisions in respect of residence and care [and finances: paras 41 and 47] as are required at this time. Should a situation arise where there are complex decisions to be made it may be necessary to reconsider issues of capacity in light of those decisions." | 2018‑07‑06 21:25:50 | 2017 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Inherent jurisdiction Mazhar v Lord Chancellor [2017] EWHC 2536 (Fam) — "This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar. ... Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law. ... The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal." | 2018‑05‑22 20:51:22 | 2017 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| * Litigation friend under employment tribunal rules Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17 — Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong." | 2018‑03‑28 22:58:54 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Powers, Judgment available on Bailii, 2017 cases
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| * Medical treatment, costs, anonymity Re SW [2017] EWCOP 7 — (1) "[A]s matters stand, the transplant being proposed cannot proceed, whatever the court may say or do. As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor." (2) "As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. ... [B]oth Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs." (3) "There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour." | 2018‑03‑28 22:40:05 | 2017 cases, Anonymisation cases, COP costs cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Reporting restriction order cases, Judgment available on Bailii, 2017 cases
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| * Vexatious COP application Re SW (No 2) [2017] EWCOP 30 — "This is another utterly misconceived application by a son (the son) in relation to his mother, SW. ... The son's application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge's order striking out the original application remains in place." | 2018‑03‑19 01:09:49 | 2017 cases, Cases, Judgment available on Bailii, No summary, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii
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| * Withdrawal of CANH M v A Hospital [2017] EWCOP 19 — "This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs [2017] EWCA Civ 1169B, it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her." | 2018‑02‑16 23:28:05 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Costs against Parole Board R (Gourlay) v Parole Board [2017] EWCA Civ 1003 — "Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?" | 2018‑02‑13 01:41:11 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Prison law cases, Judgment available on Bailii, 2017 cases
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| * Insanity Loake v CPS [2017] EWHC 2855 (Admin) — "For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity." | 2018‑02‑04 16:28:33 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unfitness and insanity cases, Judgment available on Bailii, 2017 cases
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| * Tribunal reasons M v An NHS Trust [2017] MHLO 39 (UT) — "[T]he tribunal's decision was made in error of law, but not [set aside]. In my grant of permission, I identified two possible errors of law. ... One of those errors was that the tribunal's reasons might be inadequate for being 'long on history and evidence but short on discussion.' ... There is, in truth, only one thing that really has to be said about the quality of reasons, which is that they must be adequate. Everything else is merely application of that principle to the circumstances of a particular case. ... [T]he second possible error [is] that the 'tribunal's reasoning shows that it was confused about its role and the [relevance] of a community treatment order'. ... [T]he reasons at least leave open the possibility that the tribunal may have strayed outside its proper remit. ... The first three sentences read: 'A cardinal issue of this application is whether the patient should be discharged from hospital by a CTO. This issue involves knowledge of the nature of a CTO. A CTO may only be imposed by the patient's RC ...' It may be that the judge did not express himself clearly, but that passage appears to begin by suggesting, and to continue by denying, that the tribunal had power to make Mr M subject to an order or was being asked to approve that course. The judge did then make a distinction between discharge from hospital and discharge from the liability to be detained. So it is possible that his reference to 'discharge from hospital by a CTO' may have been intended, not as a direction about the tribunal's powers on the application, but as a statement of how the responsible clinician envisaged Mr M's eventual progress. This interpretation would be consistent with what the tribunal said later ... In view of Mr M's current status [he had been discharged], I do not have to decide whether those reasons do or do not show that the tribunal misdirected itself. I limit myself to saying that it is risky if reasons can be read in a way that indicates a misdirection. ... Given that Mr M is no longer liable to be detained, I can see no need to venture outside the appropriate role of the Upper Tribunal in mental health cases and state, even in the form of a narrative declaration, that the tribunal should have exercised its power to discharge him. That is why I have exercised my power to refuse to set aside the tribunal's decision regardless of any error of law that it may have made." | 2018‑01‑27 22:25:39 | 2017 cases, CTO cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions, 2017 cases
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| * After-care Richards v Worcestershire County Council [2017] EWCA Civ 1998 — Executive summary and conclusion from judgment: "The claimant has a long history of mental illness, following frontal lobe injury which he sustained in a road traffic accident 33 years ago. He received damages following the accident, which his deputy administers. The claimant was compulsorily detained in hospital under section 3 of the Mental Health Act 1983 in 2004. Following his discharge from hospital he has received various after-care services. The claimant's deputy funded the services between 2004 and 2013. The defendants have funded those services since 2013. The claimant by his deputy now seeks to recover the costs of the after-care services between 2004 and 2013 (including 18 months residential placement) on the grounds that the defendants are liable for the costs under section 117 of the 1983 Act. The defendants applied to strike out the claim as an abuse of process. The judge rejected that application. The defendants now appeal on two grounds: first, the claimant should have brought his claim by judicial review; secondly, the defendants' alleged non-compliance with section 117 of the 1983 Act does not entitle the claimant to recover damages for unjust enrichment or restitution. The first ground of appeal raises a clean point of law, capable of resolution on the basis of the pleadings. I decide that point against the defendants. The second ground of appeal (despite its formulation as a point of law) raises questions of fact which are hotly contested. This is not, therefore, suitable for resolution on an application to strike out. In the result, therefore, if my Lords agree, this appeal will be dismissed." | 2017‑12‑13 23:00:29 | 2017 cases, After-care, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Withdrawal of CANH NHS Trust v Y [2017] EWHC 2866 (QB) — "This is a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient's family are agreed that it is not in the patient's best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn." | 2017‑11‑26 01:18:30 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * After-care payments and double recovery Tinsley v Manchester City Council [2017] EWCA Civ 1704 — "The question in this appeal is whether a person who has been compulsorily detained in a hospital for mental disorder under section 3 of the Mental Health Act 1983 and has then been released from detention but still requires "after-care services" is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor." | 2017‑11‑08 21:55:03 | 2017 cases, After-care, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * Disposal of Ian Brady's body Oldham MBC v Makin [2017] EWHC 2543 (Ch) — "This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady, one of the infamous Moors murderers." | 2017‑11‑05 23:42:48 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2017 cases
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| * JR of decision not to resume inquest R (Silvera) v HM Senior Coroner for Oxfordshire [2017] EWHC 2499 (Admin) — "In this claim for judicial review Muhammad Silvera challenges the decision of the Senior Coroner for Oxfordshire not to resume the inquest into the death of his mother, Ms Vittoria Baker. It is submitted that the decision of the Senior Coroner not to resume the inquest and thereby to hold a full inquest into this death was unlawful. It is submitted that the Senior Coroner breached the investigative duty under Article 2 of the European Convention on Human Rights and was irrational and in breach of the duty at common law to fully investigate this death. ... The Senior Coroner refers in his letter of February 2016 to the 'Crown Court Trial' together with the two reports as being sufficient to satisfy Article 2 of the Convention. There was, in fact, no Crown Court trial. At an early hearing an acceptable plea was tendered and 'K' was made the subject of a hospital order. The two other investigations comprised an internal NHS Trust investigation that was carried out in private and the DHR was expressed to be private and confidential. ... In all the circumstances, this claim for judicial review should be allowed." | 2017‑10‑23 22:37:24 | 2017 cases, Cases, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Religious beliefs and tribunal expertise DL-H v West London MH NHS Trust [2017] UKUT 387 (AAC) — Judicial summary from Gov.uk website: (1) "In deciding whether a patient is manifesting religious beliefs or mental disorder, a tribunal is entitled to take account of evidence from both religious and medical experts." (2) "A tribunal is entitled to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision." | 2017‑10‑13 22:09:08 | 2017 cases, Cases, Judgment available on Bailii, Mind summary, Pages using DynamicPageList3 parser function, Reasons, Upper Tribunal decisions, Judgment available on Bailii, 2017 cases
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| * Child, no approved secure accommodation available, deprivation of liberty A Local Authority v AT and FE [2017] EWHC 2458 (Fam) — "Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so." | 2017‑10‑08 21:47:42 | 2017 cases, Cases, Deprivation of liberty - children, Judgment available on Bailii, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * R (CXF) v Central Bedfordshire Council [2017] EWHC 2311 (Admin) — "The central question raised in these proceedings is whether either or both of the Defendants has a duty under s117 of the MHA to cover the costs of the Claimant's mother's visits, on the ground that they constitute "after-care services" within the meaning of that provision. ... The specific issues that arise are as follows: (a) Whether the duty to provide after-care services under s117 is triggered when the Claimant is granted leave of absence from the Hospital under s17 of the MHA for an escorted bus trip. This issue turns on the question whether, when granted such leave of absence, the Claimant satisfies the two pre-conditions set out in s. 117(1), namely, (i) that he has "ceased to be detained" under s3 of the MHA, and (ii) that he has "left hospital"; (b) If so, whether the after-care services which are to be provided pursuant to s117(6) of the MHA may as a matter of principle include funding to cover the Claimant's mother's transport costs; (c) If so, whether on the facts of this case there is a duty to provide the funding sought as an after-care service under s117; (d) If so, whether the duty to provide the services falls on the First and Second Defendants jointly, or in fact falls on the First Defendant jointly with Bedfordshire Clinical Commissioning Group, which was originally joined as a Defendant to these proceedings, but against which proceedings were discontinued in March 2017." | 2017‑09‑20 21:41:14 | 2017 cases, After-care, Cases, Judgment available on Bailii, Mind summary, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Deportation following hospital order SSHD v KE (Nigeria) [2017] EWCA Civ 1382 — "This is an appeal [which] gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is 'a foreign criminal who has been sentenced to a period of imprisonment of at least four years' for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights to deport him." | 2017‑09‑20 21:35:34 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * Deferred discharge beyond current authority for detention JMcG v Devon Partnership NHS Trust [2017] UKUT 348 (AAC) — The Upper Tribunal stated (probably wrongly) that the date of a deferred discharge cannot exceed the date of the order authorising detention. This was only obiter and seems to have been based on the false premise that a deferred discharge beyond the date on which the authority for the patient’s detention expires would have the effect of extending the period of detention. | 2017‑09‑08 13:12:19 | 2017 cases, Cases, Judgment available on Bailii, Mind summary, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2017 cases
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| * Damages following unlawful arrest (Barrymore) Parker v Chief Constable of Essex Police [2017] EWHC 2140 (QB) — "The Defendant founds its submission that the Claimant is entitled to nominal damages only on the decision of the Supreme Court in Lumba (WL) v SSHD [2011] UKSC 12. Lumba has been considered and applied by the Supreme Court in R (Kambadzi) v SSHD [2011] UKSC 23B and by the Court of Appeal in Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, [2015] MHLO 12. The Defendant relies upon Kambadzi and Bostridge as well as Lumba. ... Applying the basic principles of compensatory damages in tort, the counterfactual (i.e. what would have happened if the tort had not been committed) in Lumba was that the Secretary of State would have detained the claimants lawfully pursuant to the published policy. ... In Bostridge the finding of the trial judge was that the appellant would have been detained as and when he was if his illness had been correctly addressed via section 3 of the Mental Health Act, as it should have been; and that he would then have received precisely the same treatment and been discharged when he was. The Court of Appeal held that the fact that this counterfactual necessarily included steps being taken by persons other than the Defendant did not prevent the application of the principles set out in Lumba. The appellant therefore recovered only nominal damages. It is not enough for a Defendant in the position of the Secretary of State in Lumba or the Defendant in the present case to show that the counterfactual could have resulted in the same outcome as had been caused by the tort: the Defendant must go on to show that it would have done so. ... It follows that I reject the Defendant's submission that the principles set out in Lumba are applicable if the unlawfully arrested Claimant was "arrestable", meaning that he could have been lawfully arrested: it is necessary for the Defendant also to show that he would have been lawfully arrested. The principles set out in Lumba lead to an award of nominal damages if no loss has been suffered because the results of the counterfactual are the same as the events that happened. If and to the extent that they diverge (e.g. because a lawful arrest would not have occurred at the time but would have occurred later) the Court will have to decide on normal tortious compensatory principles whether and to what extent a substantial award of damages is merited for the divergence in outcome. What is the appropriate counterfactual in a given case will be acutely fact-sensitive." | 2017‑08‑28 22:29:49 | 2017 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Unlawful detention cases, Judgment available on Bailii, 2017 cases
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| * Article 3 immigration case BA v SSHD [2017] UKAITUR IA343212013 — "The Appellant is a citizen of Nigeria born on 26th February 1980. His appeal against a refusal to vary leave was allowed by First-tier Tribunal Judge Abebrese on Article 8 grounds on 23 rd May 2016. ... The Appellant sought permission to appeal against the Article 3 findings only ... On the basis of the factual findings, the opinion in the Amnesty International Report and the opinion of Dr Bell, the Appellant is likely to suffer a breakdown at some point on return to Nigeria whether that be at the airport or some time later. He is likely to come to the attention of the police if he has such a breakdown and he would not be able to access the psychiatric hospital in Lagos because he is unable to afford treatment there. Accordingly, it is likely that he would be held in prison where the conditions for this particular Appellant with his particular condition would result in treatment in breach of Article 3. ... The Applicant would not be at risk of Article 3 treatment because of a heightened risk of suicide. He would, however, be at risk of inhuman and degrading treatment in breach of Article 3 because of the conditions of return. ... The medical evidence indicates that the Appellant is vulnerable to relapse even in the UK and without the threat of removal. His removal to Nigeria is likely to trigger a relapse and his behaviour will draw hostile attention. His treatment by the authorities in detaining him under the Lunacy Act 1958 would amount to inhuman and degrading treatment. There is a reasonable degree of likelihood that he would be detained in a prison, there would be no treatment for his mental health, his situation would deteriorate, the length of detention is indeterminate, there is no right of appeal and there is no requirement for him to consent to treatment. Accordingly, I allow the Appellant's appeal on Article 3 grounds." | 2017‑07‑11 18:05:39 | 2017 cases, Cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Repatriation cases, Transcript, Judgment available on Bailii
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| * Appeal against life sentence R v Kitchener [2017] EWCA Crim 937 — "On 22 November 2002 at the Crown Court at Cardiff before the Recorder of Cardiff His Honour Judge Griffith-Williams QC the applicant, then aged 20, pleaded guilty to attempted murder contrary to s.1(1) of the Criminal Attempts Act 1981. On 2 December 2002, he was sentenced by the same judge to custody for life with a minimum term of 4 years and 8 months less 4 months on remand in custody. His applications for an extension of time of about 14 years, for leave to appeal against sentence and to call fresh psychiatric evidence have been referred to the full Court by the single judge. The basis for the application for leave to appeal against sentence is that the applicant contends that he should have been sentenced to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 rather than to custody for life. The basis for the application for an extension of time is that the psychiatric report of Dr Sobia Khan dated 26 October 2015 was not available at the time of sentence. That report is said to satisfy the conditions for the admission of fresh evidence under section 23 of the Criminal Appeal Act 1968. The admission of the report is said to be both necessary and expedient in the interests of justice." | 2017‑07‑08 19:55:47 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Life sentence cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Needs assessment; accommodation change R (JF) v London Borough of Merton [2017] EWHC 1519 (Admin) — "The Claimant has the benefit of anonymity and will be referred to as JF. He has Autism Spectrum Disorder and severe learning difficulties. As a result, he requires adult residential care with specialist support. ... The Claimant relies upon two grounds of review, contending that: (i) LBM failed to undertake a lawful assessment of his needs in breach of statutory duties under the Care Act 2014 and associated Regulations, namely the Care and Support (Assessment) Regulations 2014 SI 2827, and the Care and Support (Choice of Accommodation) Regulations 2014 SI 2670. (ii) LBM has unlawfully decided to change or to propose to change his accommodation from the David Lewis College in Cheshire, where he has resided since 2012 to Aspen Lodge in Sussex, a residence run by Sussex Health Care. The Claimant contends that LBM has based its decision to prefer the Lodge unlawfully and predominantly upon a Pre-Admission Assessment dated 26 February 2016 and prepared by the Lodge. That document contains the conclusion that the Lodge is suitable and can adequately meet JF's needs. The Claimant alleges that it is an inadequate basis for moving him from his current accommodation." | 2017‑07‑04 22:52:00 | 2017 cases, Cases, Community care, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * ECHR and tribunal criteria Djaba v West London Mental Health NHS Trust [2017] EWCA Civ 436 — "[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention." | 2017‑07‑02 23:01:01 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, 2017 cases, Judgment available on Bailii
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| * Scottish smoking ban McCann v State Hospitals Board for Scotland [2017] UKSC 31 — "This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. ... Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. ... [T]he prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. ... [B]ut for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCann’s article 8 right to respect for his private life. ... The article 14 challenge ... fails." | 2017‑06‑15 11:45:10 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * Choice of representative R (Brady) v Lord Chancellor [2017] EWHC 410 (Admin) — To obtain Legal Aid funding, a representative must have a contract under LASPO 2012 covering mental health law, and there is no ECHR right to publicly-funded representation for a lawyer of choice. "In this case, Ian Stewart Brady applies for permission to bring a claim for judicial review of two decisions relating to his legal representation in proceedings before the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health. The Claimant wishes to be represented at those proceedings by a solicitor, Mr Robin Makin, and is seeking public funding for that representation. The decisions challenged are: (1) The decision of the Lord Chancellor dated 3 November 2016, the First Defendant, effectively not to make available or facilitate the public funding of Mr Makin as the Claimant's solicitor in the Proceedings. (2) The decision of the Tribunal, the Second Defendant, dated 4 October 2016 declining to appoint Mr Makin as the Claimant's legal representative under Rule 11(7)(a) of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008." | 2017‑06‑10 00:03:09 | 2017 cases, Cases, Judgment available on Bailii, Other Tribunal cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Diminished responsibility: schizophrenia and voluntary intoxication R v Joyce and Kay [2017] EWCA Crim 647 — "These two appeals have been heard together because each involves a consideration of the judgments in R v Stewart [2009] EWCA Crim 593, [2009] 2 Cr App R 30 and AG's ref (no 34 of 2014) sub nom R v Jenkin [2014] EWCA Crim 1394, [2014] MHLO 56, [2014] 2 Cr App R (S) 84. Both appellants suffered from schizophrenia and killed whilst under the influence of alcohol and or drugs." | 2017‑05‑25 23:27:47 | 2017 cases, Cases, Diminished responsibility cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sentence appeal cases, Judgment missing from Bailii, 2017 cases
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| * Disclosure of patient's medical information ABC v St George's Healthcare NHS Trust [2017] EWCA Civ 336 — "The Claimant alleges that the particular circumstances of her case mean that the Defendants owed her a duty of care. She says it was critical that she should be informed of her father's diagnosis, firstly presumed and subsequently confirmed, in the light of her pregnancy. This was her first and only child. It was all along known that she would be a single mother with sole responsibility for the upbringing of the child. If informed of her father's diagnosis she would have sought to be tested for Huntington's Disease. If her own diagnosis was confirmed, she would have terminated the pregnancy rather than run the risk that her child might in due course be dependent on a seriously ill single parent or become an orphan, and the risk that in due course her child might inherit the disease. Her diagnosis would have precluded any subsequent pregnancy. The claim therefore includes a 'wrongful birth' claim in respect of the child. The child has an accepted risk of 50 per cent of contracting the disease, but it is not yet possible to reach a diagnosis in her case, one way or another." | 2017‑05‑18 23:11:50 | 2017 cases, Cases, Judgment available on Bailii, Medical records cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Extradition Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin) — "This extradition appeal involves essentially two questions: (i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 ('EA')? (ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?" | 2017‑05‑10 12:41:50 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * DOL discharge conditions SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194 — (1) MM wanted to be conditionally discharged into circumstances which would meet the objective component of Article 5 deprivation of liberty. The Court of Appeal decided that: (a) the tribunal has no power to impose a condition that is an objective deprivation of liberty; (b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation; (c) purported consent, even if valid, could not provide the tribunal with jurisdiction. (2) PJ argued that his CTO should be discharged as it could not lawfully authorise his deprivation of liberty. The Court of Appeal decided that a CTO provides the power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme. | 2017‑05‑07 23:52:25 | 2017 cases, CTO cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * DOLS funding case R (Liverpool City Council) v SSH [2017] EWHC 986 (Admin) — "By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine." | 2017‑05‑06 23:09:09 | 2017 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Transfer to Broadmoor R (YZ) v Oxleas NHS Foundation Trust [2017] EWCA Civ 203 — "This case involves a challenge by way of judicial review to the decision made by a psychiatrist at the Oxleas NHS Foundation Trust (Oxleas), the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital (operated by the second respondent to whom I shall refer to as Broadmoor) and the decision of Broadmoor to accept him. ... He challenged the decision made to transfer him to Broadmoor on the basis that it was unlawful and in breach of his rights under the European Convention on Human Rights. He contended that he should have been transferred to a Medium Secure Unit." | 2017‑04‑29 22:17:07 | 2017 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2017 cases
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| * CICA R (M) v FTT and CICA [2017] UKUT 95 (AAC) — "Mr M sought permission to bring judicial review proceedings in respect of three decisions of the First-tier Tribunal (the Tribunal takes a neutral stance in these proceedings). The Upper Tribunal granted Mr M permission to bring judicial review proceedings in respect of two of these decision. In both, the Tribunal had struck out Mr M’s appeals against decisions of the Criminal Injuries Compensation Authority (CICA) not to extend time for applying for review of a decision to refuse to award him compensation. ... In both decisions, the First-tier Tribunal erred in law by failing to consider how to apply the overriding objective of its procedural rules in the light of Mr M’s mental health condition. ... The overriding objective, set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, is to deal with cases fairly and justly. This includes ensuring “so far as practicable, that the parties are able to participate fully in the proceedings”. ... Accordingly, the overriding objective extends to taking such steps as are practicable to enable a party to present his case. This does not mean the First-tier Tribunal has to construct a case for an applicant. But it does call for a Tribunal to consider whether an applicant’s circumstances mean that he faces obstacles in presenting his case that the Tribunal should seek to remove or mitigate to ensure a case is dealt with fairly and justly. The appropriate step or steps to take will be informed by the circumstances of the case but could include: ensuring that an applicant’s liability to detention in a mental health institution does not prevent him attending a hearing; inviting an applicant to consent to the Tribunal obtaining medical records rather than insisting that the applicant supplies them; acting more inquisitorially than it would in the case of a represented applicant or one without a mental health condition. ... Section 5(7) '"`UNIQ--nowiki-00000159-QINU`"'Rehabilitation of Offenders Act 1974'"`UNIQ--nowiki-0000015A-QINU`"' provided that, where a hospital order under Part III of the Mental Health Act 1983 was imposed on conviction, the rehabilitation period for the conviction (at the end of which it was ‘spent’) was the longer of the following dates: (a) the period of five years from the date of conviction; or (b) the period beginning with the date of conviction and ending two years after the date on which the order ceases to have effect. ... I note that section 5 of the 1974 Act was amended, from 10 March 2014, by section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As amended, section 5 refers to a range of “relevant orders” which include a hospital order under Part III of the Mental Health Act 1983. The rehabilitation period for the conviction that led to a relevant order is “the day provided for by or under the order as the last day on which the order is to have effect”. I suspect the new version of section 5 of the 1974 Act will apply if the First-tier Tribunal considers it necessary to determine whether Mr M’s conviction, for which he was made subject to a hospital order, was spent when he made his original application for compensation. That is because section 141 of the 1974 Act generally gives retrospective effect to the amendments made to section 5 by the 1974 Act (see G v First-tier Tribunal (interested party: CICA) [2016] UKUT 196 (AAC)B)." | 2017‑04‑29 21:42:30 | 2017 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Upper Tribunal decisions, Judgment available on Bailii, 2017 cases
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| * Best interests and available options N v ACCG [2017] UKSC 22 — "So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'." | 2017‑04‑27 22:59:08 | 2017 cases, Best interests, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, 2017 cases, Judgment available on Bailii
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| * Refusal to adjourn set aside LB v BMH [2017] MHLO 10 (UT) — "The First-tier Tribunal decided that the patient should not be discharged from liability to be detained and to make no recommendation pursuant to section 72(3) and (3A) of the 1983 Act. Paragraph 19 of its written decision recorded the following: 'The solicitor representing the patient sought an adjournment as she had concerns about the quality of the evidence regarding the patient's clinical treatment in the past. We have some sympathy with the view that the patient's treatment history is incomplete. A summary of the previous treatments should be available to the panel wherever possible. However, the recent treatment history during the in-patient admission at [this hospital] was available to the panel. There was ample evidence before the panel that the patient is floridly psychotic and in our view the evidence satisfied the criteria for detention. We refused the request for an adjournment.' ... The grounds of appeal argue that the reports before the First-tier Tribunal gave very little information about the patient' s previous placement, nor about the reasons for the transfer, nor about any previous trials with clozapine. The application for an adjournment was made with a view to persuading the First-tier Tribunal to recommend a transfer under section 72(3), which was not possible without further information. This was especially important because the First-tier Tribunal proceedings were by way of reference and the patient was unlikely to appeal himself 'and may remain inappropriately placed for a further three years'. I agree with these grounds and also note that the application to adjourn was not made by or on the instructions of the patient but by an experienced specialist solicitor who had herself been appointed by the tribunal and felt that there was inadequate evidence before the tribunal (which, to an extent, the tribunal itself acknowledged). ... [T]he refusal to adjourn amounted to a breach of the rules of natural justice and fair procedure and for these reasons this appeal is allowed." | 2017‑03‑17 21:59:36 | 2017 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, Upper Tribunal decisions, 2017 cases
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| * Testamentary capacity White v Philips [2017] EWHC 386 (Ch) — "The claimant, Linda Anne White is the testator's widow. They had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contends that at the time he gave instructions and when he signed his will Mr White lacked testamentary capacity with the result that the will is invalid and, since there was no prior will, his estate should be distributed in accordance with the rules relating to intestacy. A pleaded claim to the effect that the execution of the will was obtained by undue influence is no longer being pursued. The only matter for determination therefore is whether at the time Mr White had testamentary capacity." | 2017‑03‑06 22:02:49 | 2017 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Testamentary capacity cases, Judgment available on Bailii, 2017 cases
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| * Fluctuating capacity to appoint/instruct representative PI v West London Mental Health NHS Trust [2017] UKUT 66 (AAC) — "The issue in this appeal was how the First-tier Tribunal (Mental Health) should react when, during the course of a tribunal hearing, it appeared that the patient no longer had capacity to appoint or instruct his solicitor. The Appellant patient criticised the tribunal for (a) refusing to review his capacity during the hearing and, in particular, after he left the hearing and (b) failing to give adequate reasons for its refusal to review his capacity during the hearing. I have concluded that the tribunal erred in law by failing to give adequate reasons for its decision not to review the patient’s capacity to give instructions to his legal representative during the hearing. However I do not set that decision aside because the patient was neither disadvantaged by either the representation he then received nor by the process the tribunal followed having refused to review his capacity." The Tribunal panel must keep the patient’s capacity in relation to Tribunal rule 11 under review during the hearing, and an appointment may be made for a patient with fluctuating capacity who had previously appointed his own representative. | 2017‑02‑23 21:49:05 | 2017 cases, Cases, Judgment available on Bailii, MHT capacity cases, Pages using DynamicPageList3 parser function, Upper Tribunal decisions, Judgment available on Bailii, 2017 cases
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| * DOL in NI Belfast Health and Social Care Trust v PT [2017] NIFam 1 — "The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ensure that PT does not cause harm to himself. ... In accordance with the requirements of Article 5 (4) the Court order must provide for adequate review at reasonable intervals. The Trust seeks an order of 12 months duration. I find that this is a reasonable interval to review the order as the Care Plan and Guardianship are reviewed annually. To accord with the requirements of Article 5(4) the Order should also a include liberty to apply at short notice provision. The review provisions must also ensure that there is sufficient medical evidence before the court to enable it to review whether there still persists an unsoundness of mind of a degree or kind to warrant PT’s compulsory confinement. In addition it is necessary to build other safeguards into the Order including PT’s right to legal representation." | 2017‑02‑23 21:22:02 | 2017 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Northern Irish cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2017 cases
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| * Solicitor struck off - imaginary expert reports Victoria Wadsworth (strike off) [2017] MHLO 51 (SDT) — 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 of law and the proper administration of justice), Principle 2 (which requires a solicitor to act with integrity) and Principle 6 (which requires a solicitor to behave in a way that maintains the trust the public places in him and in the provision of legal services). The mitigation related to Proceeds of Crime Act 2002 proceedings, financial hardship, and caring responsibilities for her severely disabled adult son. She was struck off the roll of solicitors and ordered to pay the agreed costs of £21,864.10. | 2017‑02‑11 21:38:18 | 2017 cases, Cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, SRA decisions, Transcript, 2017 cases
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| * Immigration detention R (ASK) v SSHD [2017] EWHC 196 (Admin) — "The issue in this case concerns an allegation that in 2013 the Claimant - 'ASK' - was unlawfully detained in an Immigration Removal Centre pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts. The case raises a number of issues. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19M and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45B. In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained? Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law? Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends? Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 what is meant by'"`UNIQ--nowiki-0000013D-QINU`"'prompt'"`UNIQ--nowiki-0000013E-QINU`"' transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee? Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports." | 2017‑02‑09 21:04:48 | 2017 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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| * HRA time limit AP v Tameside MBC [2017] EWHC 65 (QB) — "The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. ... In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. ... For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant." | 2017‑02‑02 19:55:25 | 2017 cases, Cases, Deprivation of liberty, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Unlawful detention cases, Judgment available on Bailii, 2017 cases
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| * Strike out - no capacity to make application R (OK) v FTT [2017] UKUT 22 (AAC) — The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. Detailed summary available on case page. | 2017‑01‑27 23:58:57 | 2017 cases, Cases, Judgment available on Bailii, MHT capacity cases, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, 2017 cases, Judgment available on Bailii
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| * Inquests and state detention R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 — "On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. Applying Strasbourg case law, Maria was not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West and Chester Council v P [2014] UKSC 19, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a jury. That result would be costly in terms of human and financial resources." | 2017‑01‑26 15:20:11 | 2017 cases, Cases, Deprivation of liberty, ICLR summary, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2017 cases, Judgment available on Bailii
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| * Immigration ARF v SSHD [2017] EWHC 10 (QB) — Unlawful immigration detention. | 2017‑01‑22 21:20:58 | 2017 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2017 cases
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Article titles
The following 50 pages are in this category.
A
D
J
M
P
R
- R (ASK) v SSHD (2017) EWHC 196 (Admin)
- R (Brady) v Lord Chancellor (2017) EWHC 410 (Admin)
- R (CXF) v Central Bedfordshire Council (2017) EWHC 2311 (Admin)
- R (Ferreira) v HM Senior Coroner for Inner South London (2017) EWCA Civ 31
- R (Gourlay) v Parole Board (2017) EWCA Civ 1003
- R (JF) v London Borough of Merton (2017) EWHC 1519 (Admin)
- R (Liverpool City Council) v SSH (2017) EWHC 986 (Admin)
- R (M) v FTT and CICA (2017) UKUT 95 (AAC)
- R (OK) v FTT (2017) UKUT 22 (AAC)
- R (Silvera) v HM Senior Coroner for Oxfordshire (2017) EWHC 2499 (Admin)
- R (YZ) v Oxleas NHS Foundation Trust (2017) EWCA Civ 203
- R v Bala (2017) EWCA Crim 1460
- R v Joyce and Kay (2017) EWCA Crim 647
- R v Kitchener (2017) EWCA Crim 937
- Re D (A Child) (2017) EWCA Civ 1695
- Re FX (2017) EWCOP 36
- Re SW (2017) EWCOP 7
- Re SW (No 2) (2017) EWCOP 30
- Richards v Worcestershire County Council (2017) EWCA Civ 1998
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