Category:2019 cases
This year's cases have all been entered into the new database: see 2019 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 |
|---|---|---|
| * Capacity and sexual relations A Local Authority v JB [2019] EWCOP 39 — "Distilled to its essence, the question which it is said remains unanswered is this: does the "information relevant to the decision" within section 3(1) of the Mental Capacity Act 2005 include the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity?" | 2021‑04‑14 20:54:03 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Deprivation of liberty during conditional discharge Birmingham City Council v SR [2019] EWCOP 28 — (1) Both patients supported but lacked capacity in relation to the proposed care plans, which involved deprivation of liberty concurrently with a conditional discharge, and those plans were in their best interests. (2) Obiter, the division in the MOJ's post-MM guidance (MCA DOL for incapacitous patients whose risk is to themselves, but MHA s17 leave for incapacitous patients whose risk is to others and for capacitous patients) did not withstand scrutiny as it is in patients' best interests to be kept "out of mischief" and therefore out of psychiatric hospital. | 2020‑10‑17 09:00:36 | 2019 cases, Cases, Deprivation of liberty, Discharge conditions cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Article 2 inquests and community patients Re Lee [2019] MHLO 73 (Coroner) — 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. | 2020‑07‑30 14:41:12 | 2019 cases, Cases, Inquest cases, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript, 2019 cases
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| * Article 2 inquests and community patients R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin) — The coroner had decided that Article 2 was not engaged in this case, which involved the death of a community patient who was not subject to the MHA. (1) In relation to the operational duty, the coroner's decision had focussed almost exclusively on the question of responsibility rather than the "threefold factors of assumed responsibility, vulnerability and risk" set out in the Rabone case. The matter was remitted to the coroner for reconsideration. (2) The grounds which related to systemic failures were unarguable. | 2020‑07‑30 14:19:53 | 2019 cases, Cases, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Habitual residence Re QD [2019] EWCOP 56 — QD, who had dementia, was living in Spain with his second wife when adult children from his first marriage flew him to England by stealth. The children unsuccessfully argued that: (a) he was now habitually resident in England, so the MCA applied in the usual way; (b) removal was justified under the common law doctrine of necessity; (c) jurisdiction was established on grounds of urgency; (d) even if QD were habitually resident in Spain, orders could be made under the inherent jurisdiction. The judge therefore made a protective measures order under sch 3 MCA 2005 pending a determination by the national authorities in Spain on what should happen next. | 2020‑07‑08 14:10:31 | 2019 cases, Cases, Foreign protective measure cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Foreign representative powers Re GED [2019] EWCOP 52 — "[T]hree broad issues have been identified: (1) Is a foreign power of attorney capable of constituting a ‘protective measure’? (2) Is there a capacity threshold to the Court’s jurisdiction? (3) Where there is a valid and operable foreign power of attorney in place, is the jurisdiction of the Court of Protection under section 16 of the Mental Capacity Act 2005 limited?" | 2020‑06‑20 20:55:08 | 2019 cases, Cases, Foreign protective measure cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Disclosure of documents Re Z [2019] EWCOP 55 — "This is an application by JK, who is a son of Z, for the disclosure to him of certain documents which have been filed by the other parties in the course of these proceedings and prior to the making of the [court's] order." | 2020‑06‑20 20:39:52 | 2019 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, 2019 cases
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| * Secure accommodation and inherent jurisdiction A City Council v LS [2019] EWHC 1384 (Fam) — "Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is 'no'." | 2020‑04‑02 15:08:26 | 2019 cases, Cases, ICLR summary, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Overlap between different decisions, sex B v A Local Authority [2019] EWCA Civ 913 — (1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations. | 2020‑04‑02 13:29:07 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Lay advocates in public law family proceedings Re C (Lay Advocates) [2019] EWHC 3738 (Fam) — "In my judgment that there is no material difference between the services provided by an interpreter, an intermediary or a lay advocate insofar as they each enable and support parties and witnesses to communicate and understand these proceedings. HMCTS routinely pay for the services of interpreters and intermediaries, I cannot see any principled reason why it should not also pay for the services of lay advocates in an appropriate case. ... Accordingly, I will appoint a lay advocate for the mother and a lay advocate for the father. They cost £30 per hour which I consider to be entirely reasonable. I have assessed the likely number of hours of work on this for the lay advocates to be 50 hours." | 2020‑03‑13 22:08:53 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Force feeding under s63 MHA 1983 JK v A Local Health Board [2019] EWHC 67 (Fam) — "In my view his refusal to contemplate any alternative paths, and his rigid belief that refusing to eat is his only way forward, is a consequence of his autism and as such falls within s63. The proposed force feeding is therefore certainly capable of being treatment for the manifestation of his mental disorder. However, that does not mean that I by any means accept that force feeding JK would be in his best interests, or critically would be "treatment" that falls within the definition in s.145(4) of the MHA, as being "to alleviate or prevent a worsening of the disorder…". It is apparent that force feeding is a highly intrusive process, which involves sedating the patient whilst the naso-gastric tube is inserted and potentially having to restrain the patient for fairly prolonged periods. This process would be extremely upsetting for any patient, but for JK with his ASD and his aversion to eating in front of other people, the process would be even more traumatic. JK said in oral evidence that he viewed the possibility as abhorrent, and it was clear from that response how incredibly upsetting for all concerned having to go through that process would be. If it came to that stage close consideration would necessarily have to be given to the terms of article 3 ECHR and the caselaw such as Herczegfalvy v Austria [1993] 15 EHRR 437 and the test of medical necessity." | 2020‑03‑13 11:40:52 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2019 cases
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| * Charitable status of foundation trusts Derby Teaching Hospitals NHS Foundation Trust v Derby City Council [2019] EWHC 3436 (Ch) — Seventeen NHS foundation trusts argued that, as foundation trusts, they were entitled under s43(5) Local Government Finance Act 1988 to the four-fifths reduction in non-domestic rates because they were charities and the relevant properties were wholly or mainly used for charitable purposes. The High Court answered the preliminary question "Whether the Lead Claimant is a charity for the purposes of section 43(6) of the Local Government Finance Act 1988?" in the negative. | 2020‑03‑04 22:11:56 | 2019 cases, Cases, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Sentencing and mental health R v PS [2019] EWCA Crim 2286 — "These three cases, otherwise unconnected, raise issues about proper approach to sentencing offenders who suffer from autism or other mental health conditions or disorders." | 2020‑03‑03 09:13:41 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sentence appeal cases, Judgment missing from Bailii, 2019 cases
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| * Abortion Re AB (Termination of Pregnancy) [2019] EWCA Civ 1215 — "The requirement is for the court to consider both wishes and feelings. The judge placed emphasis on the fact that AB's wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB's feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB's feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes. ... [I]n my judgement, she clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB's rights represented by the non-consensual termination of this advanced pregnancy." | 2020‑02‑25 11:10:15 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Abortion An NHS Foundation Trust v AB [2019] EWCOP 26 — "This is an application by the NHS Trust for an order in respect of a 24 year old woman AB who is 22 weeks pregnant and, who the Trust say lacks capacity and in whose best interests it is said to have a termination of pregnancy. ... I would like to record my unhappiness about the lateness of this application. AB is now estimated to be 22 weeks pregnant and therefore the cut-off date under the Abortion Act 1967 of 24 weeks is imminent. ... I am acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive and certainly interferes with her Article 8 rights. ... In my view the balance in terms of AB's best interests lies in her having the termination." | 2020‑02‑25 10:55:18 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Vulnerable witnesses Re C (Female Genital Mutilation and Forced Marriage: Fact Finding) [2019] EWHC 3449 (Fam) — Paragraphs 14-18 deal with "Assessing the Evidence of Vulnerable Witnesses", including the following: "Despite my very considerable sympathy for witnesses with significant vulnerabilities such as the mother in this case, my clear view is that there is one standard of proof which applies without modification irrespective of the characteristics of witnesses, including vulnerable witnesses to whom Part 3A and PD3AA apply. I observe that many vulnerable witnesses are just as likely as anyone else either to tell the truth or to lie deliberately or misunderstand events. It would be unfair and discriminatory to discount a witness's evidence because of their inherent vulnerabilities (including mental and cognitive disabilities) and it would be equally wrong in principle not to apply a rigorous analysis to a witness's evidence merely because they suffer from mental, cognitive or emotional difficulties. To do otherwise would, in effect, attenuate the standard of proof when applied to witnesses of fact with such vulnerabilities. ... Having said that, I offer the following observations, none of them particularly novel, which might assist in assessing the evidence of vulnerable witnesses, particularly those with learning disabilities. First, it is simplistic to conclude that the evidence of such a witness is inherently unreliable. Second, it is probably unfair to expect the same degree of verbal fluency and articulacy which one might expect in a witness without those problems. Third, it is important not to evaluate the evidence of such a witness on the basis of intuition which may or may not be unconsciously biased. Finally, it is important to take into account and make appropriate allowances for that witness's disability or vulnerability, assisted by any expert or other evidence available." | 2020‑02‑22 23:44:52 | 2019 cases, Cases, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment missing from Bailii, 2019 cases
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| * Reconsideration of Parole Board decision Joseph, Application for Reconsideration by [2019] PBRA 43 — Unsuccessful application by prisoner with mental health background for reconsideration on basis of irrationality and procedural unfairness of Parole Board oral hearing panel's decision not to direct release on licence. | 2020‑02‑19 22:52:21 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Prison law cases, Judgment available on Bailii, 2019 cases
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| * ECHR and subordinate legislation RR v SSWP [2019] UKSC 52 — (1) There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act 1998. (2) On the facts of this case, the public authority should disobey Regulation B13 of the Housing Benefit Regulations 2006 and retrospectively apply the Supreme Court's decision in R (Carmichael) v SSWP [2016] UKSC 58B that the "bedroom tax" was an unjustified discrimination on the ground of disability where there was a transparent medical need for an additional bedroom. | 2020‑02‑10 21:24:00 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Testamentary capacity Todd v Parsons [2019] EWHC 3366 (Ch) — "The claim was opposed by the third defendant, challenging that will on the grounds of lack of testamentary capacity, want of knowledge and approval and undue influence. ... The traditional test for capacity is that laid down in Banks v Goodfellow (1870) LR 5 QB 549 ... In James v James [2018] WTLR 1313, I held that the traditional test still applied, and had not been replaced by that contained in the Mental Capacity Act 2005. Neither party argued before me that the test should now be that contained in the 2005 Act, although the third defendant reserved the right to argue otherwise on appeal. ... In my judgment the 2008 will is valid." | 2019‑12‑14 23:57:03 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Testamentary capacity cases, Judgment available on Bailii, 2019 cases
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| * Proceeding in absence of solicitor and patient DA v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 348 (AAC) — 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 likely than not that the tribunal decided it was impractical to carry out an examination. (2) The tribunal had not considered making an appointment under rule 11(7), but this was unnecessary as there was no indication that the patient had withdrawn her instructions or lacked capacity. (3) When the solicitor departed, it was incumbent upon the tribunal to make a fresh assessment under rule 39(1) as to whether it was in the interests of justice to proceed with the hearing. Its reasons did not mention the departure and it was unlikely that the tribunal had carried out such an assessment; even if it had done so, the lack of any explanation would have rendered the reasons inadequate. (4) The matter was remitted to the First-tier Tribunal for a re-hearing by a differently-constituted panel. | 2019‑11‑18 14:48:18 | 2019 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Powers, Transcript, Upper Tribunal decisions, Judgment available on Bailii, 2019 cases
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| * Inherent jurisdiction or s48 interim order CD v London Borough of Croydon [2019] EWHC 2943 (Fam) — (1) Cobb J discussed the inherent jurisdiction, setting out the following summary: (a) first the inherent jurisdiction may be deployed for the protection of vulnerable adults, (b) secondly in some cases a vulnerable adult may not be incapacitated within the meaning of the 2005 Mental Capacity Act but may nevertheless be protected under the inherent jurisdiction; (c) third that in some of those cases capacitous individuals may be of unsound mind within the meaning of article 5(i)(e) of the European Rights Convention; (d) fourth, in exercising my powers under the inherent jurisdiction I am bound by the European Convention and the case law under the convention and must only impose orders that are necessary and proportionate and at all times have proper regard to the personal autonomy of the individual; and (e) fifth and finally, that in certain circumstances it may be appropriate for a court to take or maintain interim protective measures while carrying out all necessary investigations. (2) In the end he made an interim order under MCA 2005 s48 enabling the Local Authority to gain access to CD's accommodation in order to provide appropriate care and make it safe for human habitation. (3) CD was a vulnerable adult but the order was made under the MCA because the judge was "satisfied that it is more appropriate, where statute provides a route, that the statute is used". | 2019‑11‑03 23:42:40 | 2019 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Withdrawal of life-sustaining treatment - transfer to Italy Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 (Admin) — This judgment related to: (a) the child's (Tafida's) judicial review of the Trust's decision not to agree to transfer her to an Italian hospital; (b) the Trust's application for a specific issue order under s8 Children Act 1989, and for an inherent jurisdiction declaration, that it was in the child's best interests for life-sustaining treatment to be withdrawn. Both applications were dismissed, with the effect that one of the hospitals had to continue life-sustaining treatment and, there being no justification for interfering with Tafida's right (under Article 56 Treaty for the Functioning of the European Union) to receive treatment in another EU state, it was anticipated that the transfer would take place. The judgment provides guidance on dealing with a request by parents of an EU citizen child for transfer for medical treatment in another Member State. | 2019‑10‑17 22:42:09 | 2019 cases, Cases, Deprivation of liberty - children, Inherent jurisdiction cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Sentence appeal - s45A R v Yuel [2019] EWCA Crim 1693 — (1) The appellant accepted that the s45A hybrid order was reasonable in the circumstances. The court discussed the mental health sentencing regime (including s45A and restricted hospital orders) at paragraphs 44-47. (2) The trial judge's sentence was 11 years' imprisonment for each of six rapes and three years for breach of a Sexual Harm Prevention Order, to be served concurrently.On appeal this was increased to 14 years with a five-year extended licence period. | 2019‑10‑17 22:09:58 | 2019 cases, Cases, Hybrid order cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Inherent jurisdiction prevents elderly man from living with son Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) — "The essence of his vulnerability is, in fact, his entirely dysfunctional relationship with his son ... Mr Meyers, I am satisfied, is entirely capable of and has the capacity ... for determining where he wishes to reside and with whom. ... I instinctively recoil from intervening in the decision making of a capacitious adult ... Here Mr Meyers' life requires to be protected and I consider that, ultimately, the State has an obligation to do so. Additionally, it is important to recognise that the treatment of Mr Meyers has not merely been neglectful but abusive and corrosive of his dignity. To the extent that the Court's decision encroaches on Mr Meyers' personal autonomy it is, I believe, a justified and proportionate intervention. The preservation of a human life will always weigh heavily when evaluating issues of this kind. ... The objective here ... is that Mr Meyers be prevented from living with his son, either in the bungalow or in alternative accommodation. I do not compel him to reside in any other place or otherwise limit with whom he should live. ... The impact of the Court's intervention is to limit Mr Meyers's accommodation options but it does not deprive of his physical liberty which is the essence of the right guaranteed by Article 5. ... It is also necessary to restrict the extent of Mr Meyers's contact with his son in order to keep him safe. ... To the extent that this interferes with his Article 8 rights it is, again as I have indicated above, a necessary and proportionate intervention. ... The ideal solution here, it seems to me, would be for Mr Meyers to return to his bungalow with a suitable package of support, his son having been excluded from the property." | 2019‑10‑08 18:43:20 | 2019 cases, Cases, Inherent jurisdiction cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Claimant not told value of settlement DXW v PXL [2019] EWHC 2579 (QB) — "In the Application Notice seeking approval of the settlement, the Claimant also sought what has been called an "EXB Order" after the judgment of Foskett J in EXB v FDZ and others [2018] EWHC 3456 (QB)M. In that case, Foskett J made what was a novel form of order to the effect that it was not in the best interests of the claimant to know the amount of a settlement of his personal injuries action in circumstances where the court had also determined that the claimant lacked capacity to decide whether or not he should know the amount of the settlement." | 2019‑10‑05 21:24:52 | 2019 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Validity of will Parsonage v Parsonage [2019] EWHC 2362 (Ch) — " The validity of the 2011 Will is challenged by D1 on the grounds that BP lacked capacity (1) to know and understand the nature and effect of the 2011 Will, (2) to know and understand the size of her estate, and/or (3) to know and appreciate the claims to which she ought to give effect. The underlying factual basis of the challenge is the severity or extent of BP's dementia and the circumstances in which the 2011 Will was prepared and executed." | 2019‑09‑16 22:39:37 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Testamentary capacity cases, Judgment available on Bailii, 2019 cases
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| * Pregnancy - OS out-of-hours representation Guy's and St Thomas' NHS Foundation Trust v X [2019] EWCOP 35 — (1) Official Solicitor's lack of out-of-hours service: "... I invite the Official Solicitor to urgently review this position and consider putting in place arrangements that will ensure appropriate representation out of normal court hours for those individuals who are the subject of urgent applications that potentially involve serious medical treatment. ... [E]very effort must be made to issue such applications during normal court hours." (2) Pregnancy: "Having considered the submissions of the parties there is, in my judgment, in accordance with s 48 Mental Capacity Act 2005, reason to believe that X lacks capacity in relation to the matter, namely the medical intervention that may be necessary for X to give birth to a baby who is safe and well. On the evidence the court has from Dr Y, which I accept, his assessment is X is unable to reconcile her conflicting beliefs (on the one hand of wanting a natural birth and also wanting a live, well and safely born baby) in a way that she is able to balance the pros and cons. Additionally, there is, in my judgment, a real risk the position is unlikely to change and is more likely to deteriorate. He concluded X showed limited insight in relation to her previous mental ill- health. I have carefully considered the submissions on behalf of the Official Solicitor regarding capacity but looking at all the evidence and information available to the court I am satisfied the interim declaration should be made." | 2019‑08‑19 23:28:47 | 2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Non-legal research by judge JG v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 187 (AAC) — Judicial summary from gov.uk website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair." | 2019‑08‑01 23:25:11 | 2019 cases, Bias cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, 2019 cases, Judgment available on Bailii
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| * Oral tribunal decision PAA v SSHD [2019] UKUT 13 (IAC) — The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above. | 2019‑07‑26 21:46:00 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2019 cases
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| * Reinstatement JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC) — (1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties." | 2019‑07‑17 10:54:45 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Powers, Upper Tribunal decisions, Judgment available on Bailii, 2019 cases
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| * Immigration detention R (ASK) v SSHD [2019] EWCA Civ 1239 — "These appeals raise important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the United Kingdom. In each case, the Appellant is a foreign national who satisfied the statutory criteria for detention pending removal, but who suffered from mental illness such that it is said that, for at least some of the period he was detained, he was not only unfit to be removed and/or detained in an immigration removal centre ("IRC"), but did not have mental capacity to challenge his detention and/or engage with the procedures to which he was subject as a detainee. As a result, it is submitted that, in detaining each Appellant, the Secretary of State acted unlawfully in one or more of the following ways. ..." | 2019‑07‑17 10:17:55 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment missing from Bailii, 2019 cases
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| * Death - wishes and feelings Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21 — "I am being asked to take today an irreversible decision that will lead inevitably to death sooner rather than later and probably within minutes or seconds of the tube being removed. I am being asked to do so in the face of what I find are the wishes and feelings of TG. ... I have come to the clear decision that it is in the patient's best interests that intubation should continue. I recognise that this places a huge burden on the treating team. It is against their advice and their wishes and of course also those of Dr Newman but I remind myself constantly, this is her life and her wishes as I have found them to be and nobody else's. It may be that if the position were to remain the same in six months' time or no successful tracheostomy had been carried out that different considerations might apply but I am not looking at the future, I am looking at things as they are now and for those reasons I reach my decision and refuse the application." | 2019‑07‑08 22:29:31 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Jehovah's Witness - blood transfusion Manchester University NHS Foundation Trust v DE [2019] EWCOP 19 — "The only issue during the hearing was the degree to which DE's wishes and feelings would be overborne by a decision to allow a blood transfusion, in the light of her being a Jehovah's Witness; and therefore whether there was a disproportionate interference in DE's article 8 rights. However, the evidence even at the oral hearing was that although DE described herself as a Jehovah's Witness she was not someone for whom those beliefs were central to her personality or sense of identity. During the oral hearing I did not get any sense that she would feel deeply upset if an order was made in the form sought, or that she would feel a deep conflict with her religious beliefs. As such she was someone who was in a quite different decision from B in Jackson J's decision, where his religious beliefs were fundamental to B's sense of who he was. The other stark contrast with that case is that DE had been completely clear that she did not want to die. She is also significantly younger than was B." | 2019‑07‑08 22:16:16 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Litigation friend LJ v Mercouris [2019] EWHC 1746 (QB) — "The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs." | 2019‑07‑06 22:29:26 | 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Summary of MH sentencing guidance - life sentence replaced with s37/41 R v Fisher [2019] EWCA Crim 1066 — Having summarised the Sentencing Council's Definitive Guideline for Manslaughter (in force 1/11/18) and the relevant available disposals under the MHA, the Court of Appeal revoked sentences of imprisonment and replaced the life sentence with a s37/41 restricted hospital order. | 2019‑07‑04 22:52:10 | 2019 cases, Cases, Judgment available on Bailii, Life sentence cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * MHT/Parole Board delay LV v UK 50718/16 [2019] MHLO 32 (ECHR) — LV, a s47/49 patient, had argued that there had been a delay, in breach of Article 5(4), in securing her release, in particular because of the two-stage process involving both the Mental Health Tribunal and Parole Board. She accepted the government's offer of £2,500 in settlement of her claim. | 2019‑06‑17 13:00:24 | 2019 cases, Cases, Deprivation of liberty, Judgment available offline, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, 2019 cases
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| * Costs in s21A case BP v London Borough of Harrow [2019] EWCOP 20 — "The relevant circumstances of the adjournment of the January hearing are that the Respondent, the London Borough of Harrow, offered at the hearing a trial of BP returning home. ... For the Applicant, it is submitted that this is a case where it is appropriate to depart from the usual costs rule and to order the costs of the January hearing be paid by the Respondent because of the Respondent's consistent failure to offer a trial period at home before the start of and for the duration of the proceedings, and its decision to do so only after the January hearing had commenced. ... Overall, I can see the basis on which the Applicant considers an application for costs to be justified. However, this was a finely balanced case on the Applicant's own submissions in position statements, in particular that of 15 June 2018. I bear in mind the authorities on which the parties rely, in particular the Applicant's reliance on the comments of Hooper LJ in the Court of Appeal. I note the circumstances of Manchester City Council v. G, E and F [2010] EWHC 3385 were quite different. On balance and considering the circumstances as a whole, I am not persuaded that it is appropriate to depart from the general rule on this occasion. I decide this based on the chronological position of the parties set out above and all the circumstances. The Respondent's conduct falls short, to what degree is immaterial, of the necessary test. This case does not represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in the Manchester case (paraphrased slightly)." | 2019‑06‑15 22:57:39 | 2019 cases, COP costs cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Withdrawal of CANH A Clinical Commissioning Group v P [2019] EWCOP 18 — "Having given anxious consideration to this very sad case, and with profound regret, for the reasons set out above I am satisfied this court should declare that P lacks capacity to make decisions regarding CANH. Further, in circumstances where I have concluded that P lacks capacity to decide for herself whether or not to continue to receive CANH, I am satisfied that it is in P's best interests to consent on her behalf to the withdrawal of that treatment, a step that I acknowledge will result in her death. ... In all the circumstances, I am satisfied that the sanctity of P's life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014." | 2019‑05‑29 21:45:45 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Police use of force Gilchrist v Greater Manchester Police [2019] EWHC 1233 (QB) — "I recognise that this was a challenging situation for the police officers. They were faced with an individual who presented as very angry, covered in blood and with whom they were unable to communicate. Prior to Andrew Gilchrist's explanation, their assumption that Michael Gilchrist was an aggressor who, probably, had assaulted someone and needed to be detained, was reasonable. In those circumstances, their initial actions to attempt to bring him under control using CS gas and Taser were justified, reasonable and proportionate. However, once they were appraised of his vulnerability as an autistic man, and his behaviour suggested that he was defensive rather than aggressive, a more cautious approach should have been adopted. The further use of Taser, which had already proved to be ineffective, and following the use of CS gas, was inappropriate. The alternative course mandated by PS Morris, namely, using the force of the officers available to take Mr Gilchrist to the ground and restrain him without using weapons was a reasonable and proportionate response." | 2019‑05‑20 12:45:21 | 2019 cases, Cases, Judgment available on Bailii, Miscellaneous cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Capacity to consent to sex with husband London Borough of Tower Hamlets v NB [2019] EWCOP 17 — "There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband [AU] and, on occasion, initiates sexual relations. This appears consistent with Ms Wilson's observations as long ago as 1996. The primary issue before the Court is whether NB truly has the capacity to consent to sexual relations. ... Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no Judgment delivered. A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant Local Authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison. He has left the party's flat and disengaged with these proceedings. ... [Mr Bagchi for the OS] submits it is a 'general' or 'issue-specific' test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific. ... As I said on the last occasion, these issues are integral to the couple's basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. ... Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB's capacity may be different. ... I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the 'person specific approach'. I am reserving my Judgment ..." | 2019‑05‑15 22:02:33 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Capacity and ability to communicate Patel v Arriva Midlands Ltd [2019] EWHC 1216 (QB) — "Dr Fleminger's assessment was: 'Whether or not he can understand what information he is given and use and weigh this information in the balance to make decision, he is unable to communicate any decision he has made. Whether or not he regains capacity in the future depends on the outcome of his conversion disorder'. I am satisfied on the balance of probabilities that Dr Fleminger's capacity assessment was made on the basis of incorrect information gleaned from the Claimant's presentation and from what he was told by Chirag Patel of the Claimant's disabilities, namely that the Claimant was unable to communicate any decision he has made. ... In addition ... I do accept Dr Schady's opinion [that there is no conversion disorder]. Once again that leaves the Claimant with a presumption of capacity. ... To summarise: (i) The Claimant is presumed to have capacity. (ii) The court finds that the Claimant has been fundamentally dishonest in respect of his claim, and his litigation friend Chirag Patel has participated in this dishonesty. (iii) The entirety of the claim is dismissed, the court being satisfied that no substantial injustice would be caused in so doing. The court assesses damages for the 'honest part' of the claim at £5750." | 2019‑05‑15 21:46:03 | 2019 cases, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Inquest and DOLS R (Maguire) v HM's Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin) — "First, the claimant contends that the defendant erred in law by determining at the end of the evidence that article 2 no longer applied under Parkinson, thereby prejudging a matter that should have been left to the jury. Secondly, the Coroner erred in law by determining that the jury should not be directed to consider whether neglect should form part of their conclusion. ... That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the "paradigm example" of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under article 2. ... We agree that a person who lacks capacity to make certain decisions about his or her best interests - and who is therefore subject to DOLS under the 2005 Act - does not automatically fall to be treated in the same way as Lord Dyson's paradigm example. In our judgment, each case will turn on its facts. ... [The Coroner] properly directed himself as to the appropriate test to apply to the issue of neglect and having done so declined to leave the issue to the jury." | 2019‑05‑15 21:35:39 | 2019 cases, Cases, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Diminished responsibility medical evidence R v Hussain [2019] EWCA Crim 666 — "The single judge has referred the application for leave to appeal against conviction [for murder] and the extension of time application to the full court. The application for leave to appeal raises again the issue of what a trial judge should do when the sole issue to be determined at trial is the partial defence of diminished responsibility provided by section 2 of the Homicide Act 1957 (as amended) and there is unanimity amongst the psychiatric experts as to the mental health of the killer at the time of the killing." | 2019‑05‑10 21:49:38 | 2019 cases, Cases, Diminished responsibility cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * HBSO, colonoscopy, deception University Hospitals of Derby and Burton NHSFT v J [2019] EWCOP 16 — "[Anne] is the subject of an application brought by the [Trust] for declarations that it is in Anne's best interests to undergo a hysterectomy and bilateral salpingo-oophorectomy and a colonoscopy, and that, in order to enable those to be undertaken, it is in her best interests for a transfer plan to be implemented which will involve her sedation and a level of deception to ensure her presence at hospital for the procedures to be undertaken. The application arises because it is said that Anne lacks capacity. ... It is entirely right that cases such as this, where medical decisions and the plan for their implementation impact so profoundly on P's personal autonomy, bodily integrity and reproductive rights, should be considered by the Court of Protection at High Court level, and as this case demonstrates, once in the hands of the court and the Official Solicitor they can be dealt with rapidly. I therefore have no hesitation in declaring that it is in Anne's best interests to undergo HBSO and colonoscopy (and associated surgical procedures) and for the care plan to be implemented in its final amended form." | 2019‑05‑10 21:41:37 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Suicide burden of proof at inquests R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire [2019] EWCA Civ 809 — "This appeal involves questions of importance concerning the law and practice of coroners' inquests where an issue is raised as to whether the deceased died by suicide. The questions can be formulated as follows: (1) Is the standard of proof to be applied the criminal standard (satisfied so as to be sure) or the civil standard (satisfied that it is more probable than not) in deciding whether the deceased deliberately took his own life intending to kill himself? (2) Does the answer depend on whether the determination is expressed by way of short-form conclusion or by way of narrative conclusion? Those are the questions falling for decision in this case; but to an extent they have also required some consideration of the position with regard to unlawful killing. ... I conclude that, in cases of suicide, the standard of proof to be applied throughout at inquests, and including both short-form conclusions and narrative conclusions, is the civil standard of proof." | 2019‑05‑10 21:35:22 | 2019 cases, Cases, Inquest cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Marriage, prenuptial agreement, information about extent of assets, etc PBM v TGT [2019] EWCOP 6 — "... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto." | 2019‑05‑10 21:29:22 | 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Residence and care Harrow CCG v IPJ [2018] EWCOP 44 — "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. | 2019‑05‑10 21:18:53 | 2019 cases, Best interests, Cases, Judgment available on MHLO, Judgment missing from Bailii, Pages using DynamicPageList3 parser function, Transcript, 2019 cases
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| * Capacity to conduct proceedings TB v KB [2019] EWCOP 14 — "Law applicable to the court's determination of the question of whether P lacks capacity to conduct proceedings is well settled. ... Having regard to that analysis, I am clear that P does lack that capacity. This leaves the question of P's participation in these proceedings." | 2019‑05‑09 12:28:53 | 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * LPA witnessed by attorney Re BGO: Office of the Public Guardian v PGO [2019] EWCOP 13 — "Some time later one of the financial institutions to which the registered property and affairs LPA was sent noticed that BGO’s signature on the instrument had been witnessed by one of the attorneys (MAB), which is contrary to the requirements of Regulations. ... The Public Guardian applied to the Court for a determination as to whether or not the requirements for creation of an LPA were met, and directions as to whether the Public Guardian should cancel the registration of the instrument. ... The wording of paragraph 18 of Schedule 1 is mandatory. Because the requirements of execution have not been met, I must direct the Public Guardian to cancel the registration of BGO’s LPAs. ... For many donors, the failure of their LPA because of a defect in execution can be overcome by the relatively simple step of granting fresh powers, taking care to ensure that the requirements are met – an irritation perhaps and an expense but not an insurmountable hurdle. However, that option is not open to BGO. Sadly, before this defect was identified, BGO’s capacity had deteriorated to the point where she is unable to execute fresh LPAs. ... In the absence of attorneys to manage her property and affairs, the Court may appoint a deputy or deputies. ... In respect of health and welfare, the Court may also appoint a deputy or deputies if considered appropriate, although it does so much more rarely. However, pursuant to section 20(5) of the Mental Capacity Act 2005, a deputy cannot be given powers to refuse consent to the carrying out or continuation of life-sustaining treatment. In her welfare instrument, BGO had ticked the box to confirm that she wanted to give her attorneys this power. On the failure of her LPA, there is no means for the Court to give effect to her wishes in this respect. ... The Respondents are invited to make an application for appointment as property and affairs deputies for BGO. ... If the Respondents, or any of them, seek the appointment of a welfare deputy or deputies for BGO, they should also file at Court within 28 days a COP24 statement which sets out any welfare issues which require decisions to be made, why (having regard to s5 of the Mental Capacity Act 2005) an order is needed and why (having regard to section 16(4) of the Act) the decisions should be taken by a deputy rather than the Court." | 2019‑04‑25 22:04:21 | 2019 cases, Cases, Judgment available on Bailii, LPA cases - formalities, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Death Hounslow Clinical Commissioning Group v RW [2019] EWCOP 12 — "This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect." | 2019‑04‑19 22:50:27 | 2019 cases, Best interests, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Amputation East Lancashire Hospitals NHS Trust v PW [2019] EWCOP 10 — "This is an application by East Lancashire NHS Trust for orders under the Mental Capacity Act 2005 that PW lacks capacity "to make a decision regarding whether to undergo the leg amputation surgery to address his high risk of sepsis"; and that it is lawful to carry out that surgery having regard to his best interests. Before dealing with the substantive issues in this case I will deal with the timing of the application." | 2019‑04‑19 22:41:55 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Appointment of property and affairs deputy NKR v The Thomson Snell And Passmore Trust Corporation Ltd [2019] EWCOP 15 — "The application before the Court is for the discharge of the appointment of an existing professional property and affairs deputy, and the appointment of another instead. The discharge of the current deputy is agreed but there is an issue as to who should be appointed instead. ... In the matter of Re AS; SH v LC [2012] MHLO 113 (COP), [2013] COPLR 29 at paragraph 22 Senior Judge Lush set out "generally speaking" an order for preference of various candidates for appointment as deputy. A panel deputy is included "as deputy of last resort," after "a professional adviser, such as the family's solicitor or accountant." ... I am not aware of any previous appointments of a barrister as professional deputy (as distinct from a family member who just happens to be a barrister by profession but is appointed on the usual non-remunerated basis of a family member). Not being considered by the Bar Council as 'a legal service', discharge of the functions of deputyship is apparently not subject to the Bar Council's full regulatory force. However, the risk of property and affairs deputyship lies chiefly in misappropriation of funds. It seems to me beyond debate that misappropriation of MBR's funds whilst acting as deputy would count as "behaviour which diminishes trust and confidence" in Ms. Sood individually and her profession generally, and so Ms. Sood's holding of deputyship appointment would be subject to some professional regulation. ... On the information presently available to me, I am willing to accept that Ms. Sood is personally and professionally a suitable person to hold a deputyship appointment. Her appointment is however not the only option before the Court. A panel deputy has also been identified as willing to act ... Taking all matters into consideration, I conclude that it is in the best interests of MBR for Mr. Kambli to be appointed as replacement deputy upon discharge of the appointment of TSPTC." | 2019‑04‑18 22:29:35 | 2019 cases, Cases, Deputyship cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Injunction against publication of video Southern Health NHS Foundation Trust v AB [2019] EWCOP 11 — "This is an application to prevent publication of a video of a patient, AB, in her treating hospital. ... At times she is catatonic and lies in a foetal position on the floor. She has a history during these periods of self-harm, and for that reason she wears protective headgear at all times. In the light of AB's condition and the difficulties in accommodating her appropriately, the Trust has had to adapt the room in which she has been living urgently, and it is true to say that the condition of the room therefore looks somewhat poor. ... On about 20 January 2019, AB's son, W, who is the second respondent, took a video recording of his mother in her room. ... I am clear that it is appropriate in these circumstances to make the order. First of all, having seen the video, it is apparent that AB can be identified, even if pixilated, and would be identifiable from the information that Mail Online intend to publish. ... Secondly, it is clear from Dr Marlowe's statements that AB does not currently have capacity ... Thirdly, I have no doubt, having watched it, that the video would be an interference with AB's privacy and her private life. ... The draft order provides for W being able to apply to the court at a full hearing if he wishes to do so to seek to lift the injunction, and argue that it is in her interests to publish the video. Further, according to Dr Marlowe, AB may well regain capacity herself relatively shortly, i.e. within a matter of weeks, and if she then wishes for publication, that will be a matter for her." | 2019‑03‑23 17:33:15 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Reporting restriction order cases, Judgment available on Bailii, 2019 cases
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| * Retrospective authorisation of DNA swab sample DCC v NLH [2019] EWCOP 9 — "I concluded it would be appropriate to make a declaration (1) that NLH lacked capacity (a) to make decisions as to the provision of buccal swab samples, the testing of such samples and the profiling of his DNA and (b) to conduct these proceedings, and further (2) that it was lawful for the local authority to arrange for the taking of buccal swabs from NLH for the purposes of performing DNA paternity testing in respect of the child. I further concluded it would be appropriate to make an order, by consent, that the court consented on NLH's behalf for the swab sample to be taken and tested and so that his DNA could be profiled to establish whether he was the father of the child. Shortly before the order was made, however, it emerged that a member of staff from the DNA testing company, Lextox, had already attended at the nursing home and taken the sample, with the agreement of NLH's family, but without either the formal consent of NLH (who lack capacity to provide consent) or the approval of the court. ... I therefore agreed to prepare this short judgment to remind practitioners, carers and those involved in taking samples in these circumstances that, where the patient lacks capacity and an application has been made to the Court of Protection for an order authorising the taking of a sample, it will be unlawful for the sample to be taken without the Court's permission. All practitioners and professionals working in this field ought to be aware that there is always a judge of the Family Division on duty available to sit in the Court of Protection twenty-four hours a day, seven days a week, every day of the year, to deal with urgent applications, usually by telephone. Consequently, there is no excuse for any failure to comply with the obligations to obtain the court's permission in circumstances such as these. As stated, no harm arose on this occasion, but any infringement in future will run the risk not only of attracting severe criticism from the Court but also potentially incurring liability for damages if a breach of human rights were to be established." | 2019‑03‑20 20:45:21 | 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Whether child had "sufficient understanding" to conduct appeal without Guardian CS v SBH [2019] EWHC 634 (Fam) — "Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state. (iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role. (v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. ... (vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. ... (vii) The court's assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child's appreciation of the risks of harm." | 2019‑03‑19 22:00:58 | 2019 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Residence, contact, tenancy London Borough of Hackney v SJF [2019] EWCOP 8 — "SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into." | 2019‑03‑18 22:38:32 | 2019 cases, Best interests, Cases, Judgment available on Bailii, Other capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Medical treatment case King's College Hospital NHS Foundation Trust v FG [2019] EWCOP 7 — "[T]he King's College Hospital NHS Foundation Trust seeks an order in the following terms in relation to FG: (a) a declaration that FG lacks capacity to make decisions regarding the medical treatment for his physical health conditions; (b) that it is lawful and in FG's best interests for him to undergo an operation to repair his right shoulder fracture/dislocation; and (c) that it is in his best interests to receive any sedation and anaesthesia his clinicians think necessary to allow the operation to be done. The matter has come in front of me today as urgent applications judge." | 2019‑03‑15 21:01:36 | 2019 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Unfair summary disposal of DOL/residence case CB v Medway Council [2019] EWCOP 5 — "The simple issue is whether the Judge had sufficient information before her to discount, at this stage, any real possibility of CB returning to her home, supported by the extensive and expensive care package that is being mooted. The language of the Judgment itself, to my mind, answers this question in phrases such as “I very much doubt…. I am very sceptical…. The practicalities are…. likely to be extremely difficult….” I share the Judge’s scepticism and I also very much doubt that even with an extensive package of support a return home will be in CB’s best interest. I note too that Dr Ajiteru expressed himself in cautious terms (see para 10 above). However, scepticism and “doubt” is not sufficient to discount a proper enquiry in to such a fundamental issue of individual liberty. ... It is easy to see why the Judge took the course she did and I have a good deal of sympathy with her. She will have recognised, as do I, that the effluxion of time has had its own impact on the viability of the options in this case. However, what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases." | 2019‑03‑15 20:56:19 | 2019 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Litigation capacity DM v Dorset County Council [2019] EWCOP 4 — Unsuccessful challenge to a finding that DM lacked litigation capacity. | 2019‑03‑14 14:26:53 | 2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019 cases
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| * Social media and sexual relations Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3 — "By this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss B’s life, including her capacity: (i) To litigate in these proceedings...; (ii) To manage her property and affairs...; (iii) To decide where she resides...; (iv) To decide on her package of care...; (v) To decide with whom she has contact...; (vi) To use the internet and communicate by social media; (specifically, it is agreed that the question is ‘whether Miss B has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others’)...; (vii) To consent to sexual relations... It is clear that the information relevant to the decision in this area includes: (i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act; (ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy; (iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse. (iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections; (v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom." | 2019‑02‑23 12:12:34 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Social media and internet use Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 — "I have reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online ‘contact’ is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact. ... It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is as follows: (i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know , without you knowing or being able to stop it; (ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below]; (iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below]; (iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly; (v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm; (vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; [see paragraph below]. With regard to the test above, I would like to add the following points to assist in its interpretation and application: ..." | 2019‑02‑23 12:01:31 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases, Judgment available on Bailii, 2019 cases
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| * Litigation friends for children in immigration tribunal proceedings R (JS) v SSHD [2019] UKUT 64 (IAC) — The Upper Tribunal provided mainly age-based guidance on whether a child applicant in immigration proceedings requires a litigation friend, and on the role of the litigation friend. | 2019‑02‑21 14:41:38 | 2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii, 2019 cases
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| * Settlement of property on trust LCN v KF [2019] EWCOP 1 — "This is an application under section 18(1)(h) of the Mental Capacity Act 2005 for the settlement of CJF's property on trust. ... By the time of the hearing it was expected that CJF would die in a matter of days. As noted earlier in this judgement, CJF died the following week. ... LCN [CJF's deputy] made an application on 20th November 2018 for the settlement of CJF's assets including his property at 1AY on revocable trust for himself during his lifetime and thereafter for 1AY to pass to EH [CFJ's daughter] and AH [EH's husband] and the residue of CJF's estate to pass to KF [CFJ's mother]. ... By the rules of intestacy, CJF's estate would be divided equally between KF and CJF's biological father, stated by KF to be BJF. This is subject to section 18 of the Family Law Reform Act 1987 which raises a rebuttable presumption that BJF pre-deceased CJF as his name did not appear on CJF's birth certificate. KF was able to contact BJF, but only through social media. That contact was sufficient, in my view, to rebut the presumption. If the court did not approve the settlement of CJF's property, it would be divided equally between KF and BJF with nothing passing to EH and AH. It would be open to EH and AH to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, but the outcome of such an application was uncertain. ... In this case, I consider that there were exceptional circumstance justifying proceeding without BJF being notified. These circumstances were his complete lack of involvement in CJF's life and care and his denial of paternity. There was a genuine urgency and balancing the prejudice of proceeding in the absence of BJF with the prejudice to EH and AH of not proceeding, I considered that the hearing had to take place despite the lack of service on BJF. It was agreed between the parties, and I ordered, that attempts should be made after the hearing to locate BJF and serve him with a copy of the final order so that it would be open to him to apply to set aside or vary it. ... The parties agree, and I find, that the authorities on the making of a statutory will apply to the settlement of CJF's estate in this case. I was advised by Miss Hughes that between 1925 and 1959 the Court had no power to make a statutory will and so would have approved settlement trusts as an alternative. ... All agreed that 1AY should pass to EH and AH and that the residue of the estate should pass to KF. I take that agreement into account and see no reason to depart from it. ... The question remains whether AH and EH should be effectively liable for some of the Inheritance Tax liability or whether the liability should all be borne by the estate, and in effect KF. ... I do not consider that it would be in CJF's best interests for there to be any risk to the security and stability of EH's and AH's home and therefore I consider that they should inherit 1AY effectively free of Inheritance Tax." | 2019‑02‑05 13:34:25 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Statutory will cases, Judgment available on Bailii, 2019 cases
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| * Aggravated damages following MCA breaches Esegbona v King’s College Hospital NHS Foundation Trust [2019] EWHC 77 (QB) — "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 her care or treatment; and further that if the defendant reasonably believed that Mrs Esegbona lacked capacity whether it would be in her best interests for any act in connection with her care or treatment to be done; and to take steps to obtain a court order or the relevant authorisation under schedule A1 to the Act before depriving Mrs Esegbona of her liberty. The claimant says the defendant acted in breach of these duties." | 2019‑02‑04 23:30:49 | 2019 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Unlawful detention cases, 2019 cases, Judgment available on Bailii
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| * Dishonest solicitor Maitland-Hudson v SRA [2019] EWHC 67 (Admin) — "The Appellant appeals against findings of misconduct and dishonesty made against him by ... the Solicitors Disciplinary Tribunal ... Pursuant to those findings, on 2 May 2018 the Appellant was struck off the Roll of Solicitors and ordered to pay the SRA's costs, including £300,000 by way of interim payment. The Tribunal found the Appellant to have been guilty of misconduct "at the highest level", characterised as "deliberate, calculated and repeated… over a number of years". It was aggravated by the Appellant's dishonesty and attempts to defend his conduct. The appeal is based on grounds of alleged procedural unfairness, specifically that the Appellant, a litigant in person, was substantially impaired in his ability to defend himself, to the extent that he admitted himself to hospital. Despite the fact that consultant psychiatrist experts on both sides found that the Appellant was unable to represent himself, the Tribunal refused to dismiss the proceedings on the basis of "incurable unfairness" or even to stay or adjourn their remainder." | 2019‑02‑01 09:02:50 | 2019 cases, Cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function, SRA decisions, Judgment available on Bailii, 2019 cases
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| * Damages for unlawful immigration detention R (Adegun) v SSHD [2019] EWHC 22 (Admin) — "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." | 2019‑01‑12 22:58:23 | 2019 cases, Cases, Judgment available on Bailii, No summary, Pages using DynamicPageList3 parser function, Repatriation cases, Transcript, Judgment available on Bailii, 2019 cases
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Article titles
The following 78 pages are in this category.
A
B
C
D
- DA v Kent and Medway NHS and Social Care Partnership Trust (2019) UKUT 348 (AAC)
- DCC v NLH (2019) EWCOP 9
- Derby Teaching Hospitals NHS Foundation Trust v Derby City Council (2019) EWHC 3436 (Ch)
- Derbyshire Healthcare NHS Foundation Trust (17 012 839a) (2019) MHLO 44 (LGSCO)
- DM v Dorset County Council (2019) EWCOP 4
- DXW v PXL (2019) EWHC 2579 (QB)
E
G
J
L
M
N
P
R
- R (Adegun) v SSHD (2019) EWHC 22 (Admin)
- R (ASK) v SSHD (2019) EWCA Civ 1239
- R (JS) v SSHD (2019) UKUT 64 (IAC)
- R (Lee) v HM Assistant Coroner for Sunderland (2019) EWHC 3227 (Admin)
- R (Maguire) v HM's Senior Coroner for Blackpool and Fylde (2019) EWHC 1232 (Admin)
- R (Maughan) v Her Majesty's Senior Coroner for Oxfordshire (2019) EWCA Civ 809
- R v Fisher (2019) EWCA Crim 1066
- R v Hussain (2019) EWCA Crim 666
- R v PS (2019) EWCA Crim 2286
- R v Yuel (2019) EWCA Crim 1693
- Raqeeb v Barts NHS Foundation Trust (2019) EWHC 2531 (Admin)
- Re A (Capacity: Social Media and Internet Use: Best Interests) (2019) EWCOP 2
- Re AB (Termination of Pregnancy) (2019) EWCA Civ 1215
- Re B (Capacity: Social Media: Care and Contact) (2019) EWCOP 3
- Re BGO: Office of the Public Guardian v PGO (2019) EWCOP 13
- Re C (Female Genital Mutilation and Forced Marriage: Fact Finding) (2019) EWHC 3449 (Fam)
- Re C (Lay Advocates) (2019) EWHC 3738 (Fam)
- Re D (A Child) (2019) UKSC 42
- Re GED (2019) EWCOP 52
- Re Lee (2019) MHLO 73 (Coroner)
- Re QD (2019) EWCOP 56
- Re Z (2019) EWCOP 55
- Rooman v Belgium 18052/11 (2019) ECHR 105
- Rotherham Doncaster & South Humber NHS Foundation Trust (18 010 101a) (2019) MHLO 43 (LGSCO)
- Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG (2019) EWCOP 21
- RR v SSWP (2019) UKSC 52
S
T
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