The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion. Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not obligatory, but following it would generally ensure that a patient’s rights were not infringed. It recognised … Continue reading Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested;: CA 16 Jul 2003
Explanation of Medical Risks essential The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised. Held: The appeal failed. A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or … Continue reading Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital: HL 21 Feb 1985
Lawfulness of Contraceptive advice for Girls The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the advice infringed her rights as a parent, and … Continue reading Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security: HL 17 Oct 1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of … Continue reading Ashingdane v The United Kingdom: ECHR 28 May 1985
Effect of insanity on making of contract (New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind. Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by the … Continue reading Hart v O’Connor: PC 22 Apr 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to answer the question whether the court discerns a wrongness in … Continue reading G v G (Minors: Custody appeal): CA 1985
(New Zealand Court of Appeal) The Board reversed the decision which had rescinded an agreement for the sale of land by a vendor aged eighty-three years and of unsound mind. In rejecting a submission that the transaction constituted an unconscionable . .
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The tribunal considered the approach to be taken by the First-tier Tribunal (the FTT) and other decision makers under the Mental Health Act 1983 (the MHA) when treatment and authorisation of a deprivation of liberty of the relevant patient might be given under the Mental Capacity Act 1985. [2013] UKUT 365 (AAC) Bailii Mental Health … Continue reading AM v South London and Maudsley NHS Foundation and Another: UTAA 6 Aug 2013
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our judgment, establish that a contract made by a person actually … Continue reading McLaughlin v Daily Telegraph Newspaper Co. Ltd: 15 Jul 1904
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years. Held: The 1985 Act did not limit its effects to adults. A minor may … Continue reading Royal Borough of Kingston Upon Thames v Prince and Another: CA 2 Dec 1998
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in court, but the plaintiff said that his wife had known the true position. He … Continue reading J v S T (Formerly J): CA 21 Nov 1996
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, his sister sought an order for his return to F, his carer … Continue reading G v E and Others: CA 16 Jul 2010
Criminality of Assisting Suicide not Infringing The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to prosecutions of those who are alleged to have assisted a … Continue reading Nicklinson and Another, Regina (on The Application of): SC 25 Jun 2014
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The parents, devout Roman Catholics, resisted. Held: The parents’ views were subject to the overriding … Continue reading In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation): CA 22 Sep 2000
Procedures on Withdrawal of Life Support Treatment The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court of Appeal permitting the action. Held: The appeal failed. … Continue reading Airedale NHS Trust v Bland: HL 4 Feb 1993
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.’ However the capacity must be commensurate with the gravity of the decision purported to … Continue reading In re T (Adult: Refusal of Treatment): CA 1992
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as suffering for the purpose of the order or application authorising his … Continue reading B, Regina (on the Application of) v Ashworth Hospital Authority: HL 17 Mar 2005
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She asserted that his retention in care was an unlawful detention. Judges: Munby … Continue reading Re DE, JE v DE, Surrey County Council and EW: FD 29 Dec 2006
Though the child was subject to a care order in favour of the local authority, a wardship order was sought. Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which was in any sense attractive. It could either make a … Continue reading A v Liverpool City Council: HL 1981
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had. Held: The term ‘patient’ in this context had a meaning specific … Continue reading Bailey v Warre: CA 7 Feb 2006
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might be prescribed by a doctor, but this had been rejected. Held: The appeals failed. There was no over-arching principle … Continue reading Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004): CACD 27 May 2005
Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called in the Lord Chancellor’s medical visitor and asked that her children settle … Continue reading In re F (Enduring power of Attorney): ChD 2 Apr 2004
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants. Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal … Continue reading Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another: SC 23 Jan 2013
A party who objected to the registration of an enduring power of attorney on the basis that the donor had not had the mental capacity to sign it, had the burden of proving that assertion. Held: Hostility between the donee of a power and other family members was not a reason to invalidate a power. … Continue reading In Re W (Enduring Power of Attorney): CA 9 Jan 2001
Canada – ‘The contract of a lunatic is voidable not void: see York Glass Co. v. Jubb, Courts of equity will not interfere if a contract with a lunatic is made in good faith without any knowledge of the incapacity of the lunatic and no advantage is taken. If the contract is fair and the … Continue reading Hardman v Falk: 1955
Trustee’s duties in relation to investments Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. Held: The same principles applied to pension funds … Continue reading Cowan v Scargill and Others: ChD 13 Apr 1984
The defendant denied liability under contract, after the vendor brought an action against against the committee of his estate as a person of unsound mind. He said that the fact that he was of unsound mind was known to vendor, and later that the vendor knew that he was infirm of mind and body and … Continue reading York Glass Co Ltd v Jubb: 1924
Towards the end of a substantial May Day demonstration on the streets of London, police surrounded about 3,000 people in Oxford Circus and did not allow them to leave for seven hours. The claimant who was present, but not involved in any of the organisation sought damages. Held: Police have powers to act out of … Continue reading Austin and Saxby v Commissioner of the Police for the Metropolis: QBD 23 Mar 2005
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as agreed under a forfeiture clause. Held: The jury having found … Continue reading Pearce v Brooks: 1866
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act. Held: The House allowed the Hospital’s appeal. The policy was lawful. Seclusion was to be seen as … Continue reading Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz: HL 13 Oct 2005
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state. Held: The doctors sought permission to act in accordance with recommended medical practice. Agreement was universal that there was no prospect of the patient’s improvement, nor any purpose in continued treatment. The … Continue reading Airedale NHS Trust v Bland: CA 9 Dec 1992
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, and whether his parents could give consent for it. Held: (LL Carnwath and Lloyd-Jones … Continue reading In re D (A Child): SC 26 Sep 2019
The vendor sought to enforce a contract. The court had rejected the defendant’s plea first that the vendor knew of his incapacity, and that therefore the contract was void, and that second, the contract should not be enforced in equity because of his incapacity. Held: The appeal failed. The contract was valid at law because … Continue reading York Glass Co Ltd v Jubb: CA 1925
Standing to Claim under A1P1 ECHR The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable harm for the purposes of an action of damages for personal injury. Held: The insurers’ appeals failed. … Continue reading AXA General Insurance Ltd and Others v Lord Advocate and Others: SC 12 Oct 2011
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security. Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs Watts was a beneficiary of the Charity, her occupation was that of tenant at will of the … Continue reading Watts v Stewart and Others: CA 8 Dec 2016
These proceedings raise, for the first time in the courts of the United Kingdom, the question how the concepts of sufficiency and infringement are to be applied to a patent relating to a specified medical use of a known pharmaceutical compound. Four issues arose: (i) the construction of the claims (in particular, Claim 3 as … Continue reading Warner-Lambert Company Llc v Generics (UK) Ltd (T/A Mylan) and Another: SC 14 Nov 2018
The buyer of annuities from a company was of unsound mind. The company had acted in its normal course of business. Held: The court asked ‘whether the mere fact of unsoundness of mind, which was not apparent, is sufficient to vacate a fair contract executed by the grantee, by payment of the consideration money, and … Continue reading Molton v Camroux: CEC 2 Jan 1848
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted protecting her and her child until the child was 18. She now … Continue reading X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd: QBD 21 May 2003
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. He then lived in two care homes … Continue reading Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council: SC 8 Jul 2015
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access. Held: A contract made by a person of insufficient mental capacity was voidable at his option not only if the other party knew of or ought … Continue reading Archer v Cutler: 1980
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged. Held: The court referred to the argument that a plea of insanity would not prevail unless the other contracting party knew of it, and said: ‘We … Continue reading Molton v Camroux: CExC 1848
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose from risks which it was no part of … Continue reading BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel): SC 22 Mar 2017
Capacity for Litigation The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the time to accept the offer. Held: There is no definition … Continue reading Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1): CA 19 Dec 2002
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a conditional release. He said that that was discriminatory. Held: (Lord Hughes dissenting) The appeal failed. The … Continue reading Secretary of State for Justice v MM: SC 28 Nov 2018
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley). Held: ‘The rule that this court must always follow a decision of the House of Lords and, … Continue reading James, Regina v; Regina v Karimi: CACD 25 Jan 2006
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless (including in the case of the charterer its ‘Affiliates’) in relation … Continue reading Farstad Supply As v Enviroco Ltd: SC 6 Apr 2011
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations. Held: The prisoners’ appeals were allowed. Lord Bingham stated: ‘While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are … Continue reading Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals): HL 27 Jan 2005
Right to Life Did Not include Right to Death The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not the antithesis of the right … Continue reading Pretty v The United Kingdom: ECHR 29 Apr 2002
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; whether time ran from the date of the first breach, whether want of proportionality is … Continue reading Somerville v Scottish Ministers: HL 24 Oct 2007
Fairness on Division of Family Capital The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital. Held: The 1973 Act gives only limited guidance on … Continue reading Miller v Miller; McFarlane v McFarlane: HL 24 May 2006
Rule Against Appeal was Ultra Vires W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only remedy was in an appeal. Held: The appeal … Continue reading CS v ACS and Another: FD 16 Apr 2015
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order could properly be made, and said that in any event it should be discharged. Held: … Continue reading Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order: HL 17 Jun 2009
Lack of Capacity – Effect on Proceedings The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the proceedings for her)? Second, what … Continue reading Dunhill v Burgin: SC 12 Mar 2014
Professional to use Skilled Persons Ordinary Care Negligence was alleged against a doctor. Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the … Continue reading Bolam v Friern Hospital Management Committee: QBD 1957
Contract without Capacity – Voidable not Void A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict against … Continue reading Imperial Loan Co v Stone: CA 1892
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section 29(2)(a)(ii) of, and Schedule 3, paragraph 2, to the Land Registration Act 2002. Held: The … Continue reading Scott v Southern Pacific Mortgages Ltd and Others: SC 22 Oct 2014
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings. Held: The standard of care required was that: ‘the barrister must conduct himself in his professional work with … Continue reading McFaddens (A Firm) v Platford: TCC 30 Jan 2009
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. V who had charge of the bookkeeping came to want to register the power, but … Continue reading C v V: CoP 25 Nov 2008
The court heard an appeal as to care directions given under the 2005 Act, and in particular whether they infringed the patient’s human rights. The judge of the Family Division took the view that a decision of the Court of Appeal was ultra vires.
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority . .
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