Category: Health

NHS Commissioning Board (NHS England) (Health (NHS)): ICO 5 Mar 2015

ICO The complainant has requested information regarding metal on metal (MoM) hip replacements and whether they were still being used within the NHS following press reports that their use had been stopped. NHS England originally said that it did hold information relevant to his request and attempted to explain the position in respect of MoM hip replacements. It also directed the complainant to another body which it believed held information relevant to his request. At the internal review stage NHS England changed its position and now said that it did not hold the requested information. The Commissioner’s decision is that NHS England does not hold any specific record of whether the use of such implants had been banned. The Commissioner does not require the public authority to take any further action in this matter
FOI 1: Not upheld

[2015] UKICO FS50553593
Bailii
Freedom of Information Act 2000
England and Wales

Information, Health

Updated: 06 January 2022; Ref: scu.555231

Re HNL: CoP 19 Nov 2015

Application regarding the payment of a gratuitous care allowance, a payment towards the cost of maintenance of a close relative, who provides care and case management services to someone who is severely incapacitated because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Jush SJ
[2015] EWCOP 77
Bailii

Health, Agency

Updated: 06 January 2022; Ref: scu.554993

Re N: CoP 19 Nov 2015

Application made under section 15 of the 2005 Act for a declaration determining whether it is in the best interests of Mrs. N to receive life sustaining treatment by means of Clinically Assisted Nutrition and Hydration currently provided through a percutaneous endoscopic gastrostomy (PEG) tube. M, her daughter, strongly believes that the continuation of this intervention is contrary to her mother’s best interests.

Hayden J
[2015] EWCOP 76
Bailii
Mental Capacity Act 2005 15

Health

Updated: 06 January 2022; Ref: scu.554994

Re CD: CoP 13 Nov 2015

The court was asked whether it was in the best interests of a 43 year old woman, CD, with paranoid schizophrenia, to have a total abdominal hysterectomy in circumstances where she lacked capacity to make that decision for herself. The object of surgery would be to remove two very large ovarian growths or masses. All the medical experts and all the parties, including the Official Solicitor who represents CD, agreed that it would be in her interests to have this operation. CD herself strongly expressed the wish to me to have the operation.

Mostyn J
[2015] EWCOP 74
Bailii

Health

Updated: 06 January 2022; Ref: scu.554664

Re RG: CoP 13 Oct 2015

Application by Northamptonshire County Council for the court to revoke an Enduring Power of Attorney and to appoint a professional deputy to manage the donor’s property and affairs in place of the attorney.

Lush SJ
[2015] EWCOP 66
Bailii

Health, Agency

Updated: 06 January 2022; Ref: scu.554597

Kennedy and Another v The Lord Advocate: SCS 5 Feb 2008

These petitions were raised by the relatives of two people, who died after they had become infected with the Hepatitis C virus. That infection occurred whilst they were under the care of the National Health Service in Scotland. The Lord Advocate refused to hold Fatal Accident Inquiries into the deaths of the deceased. The petitioners seek the judicial review of those decisions. The petitioners also seek review of the refusal of the Scottish Ministers to set up public inquiries into those deaths.

Lord Mackay of Drumadoon
[2008] ScotCS CSOH – 21
Bailii
Scotland

Coroners, Health

Updated: 06 January 2022; Ref: scu.264109

Whyte and Mandatory v Clark and Others: SJC 20 Mar 1817

Impartial and intelligent witnesses having sworn that they considered a person capable of managing his own affairs, and having supported their opinion by particular facts; found that he was not to be considered an ‘idiot’ or ‘fatuous and incapable of understanding business,’ though other witnesses swore that they considered him so.

[1817] ScotJCR 1 – Murray – 233, (1817) 1 Murray 233
Bailii

Scotland, Health

Updated: 05 January 2022; Ref: scu.554098

W, X, Y and Z, Regina (on The Application of) v The Secretary of State for Health and Others: CA 14 Oct 2015

The claimants challenged the guidance given by the respondent for the implementation of the 2011 Regulations, and in particular for the recovery of sums said to be overpaid.

Lord Dyson MR, Briggs, Bean LJJ
[2015] EWCA Civ 1034
Bailii
National Health Service (Charges to Overseas Visitors) Regulations 2011, Immigration Rules
England and Wales

Health, Immigration, Benefits

Updated: 04 January 2022; Ref: scu.553442

Nicklinson and Lamb v The United Kingdom: ECHR 23 Jun 2015

ECHR Article 8-1
Respect for private life
Ban on assisted suicide and voluntary euthanasia: inadmissible
Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered locked-in syndrome following a stroke. The second applicant was paralysed following a car accident. His condition is irreversible. Both men wish/ed to end their lives but are/were unable to commit suicide without assistance. They unsuccessfully challenged the statutory ban on assisted suicide and the law on murder, which did not recognise voluntary euthanasia as a defence, before the domestic courts. The Supreme Court found, in particular, that such a sensitive issue was for Parliament to resolve.
Law – Article 8
(a) First applicant: In order for the right to respect for private life to be properly secured at domestic level, individuals had to be able to seek to rely on arguments derived from Article 8 in domestic proceedings and to have those arguments considered and, where appropriate, taken into account in the rulings of the domestic courts. The Court’s more recent case-law had often tended to view this ancillary aspect of private-life protection as arising under the so-called procedural aspect of Article 8 itself (see, for example, Koch v. Germany, 497/09, 19 July 2012, Information Note 154; and McCann v. the United Kingdom, 19009/04, 13 May 2008, Information Note 108).
It was well established in the Court’s case-law that Article 13 does not go so far as to guarantee a remedy allowing primary legislation to be challenged before a national authority on the ground of being contrary to the Convention. Where, as here, the case concerned a challenge to primary legislation, rather than, as in Koch and McCann, an individual measure of implementation, it would therefore be anomalous if the procedural aspect of Article 8 extended further than Article 13 so as to require the possibility of challenging primary legislation in cases giving rise to private-life concerns.
However, the Convention was part of the domestic law of the United Kingdom and a procedure existed, under the Human Rights Act, permitting primary legislation to be challenged on the basis of its alleged incompatibility with Article 8. It could therefore be argued that where the State had chosen to provide a remedy in respect of primary legislation, such remedy was subject to the procedural requirements which generally arose under Article 8, and in particular to the requirement set out in Koch as to the need for an examination of the merits of the claim. For the Court, however, there was a fundamental problem with extending the procedural protections of Article 8 in that way. The problem arose from the application of the margin of appreciation available to member States in cases concerning challenges to primary legislation under Article 8. The Contracting States were generally free to determine which of the three branches of government should be responsible for taking policy and legislative decisions which fell within their margin of appreciation and it was not for the European Court to involve itself in their internal constitutional arrangements. However, when it concluded in any given case that an impugned legislative provision fell within the margin of appreciation, it would often be the case that the Court was, essentially, referring to Parliament’s discretion to legislate as it saw fit in that particular area. Thus, in Pretty v. the United Kingdom (2346/02, 29 April 2002) the Court had held that it was for States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were to be relaxed or exceptions created. In the context of the United Kingdom, that assessment had been made by Parliament in enacting the relevant provision of the 1961 Suicide Act, a provision that had been reconsidered several times by Parliament in recent years, having been re-enacted in 2009. If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like the Court, that Parliament was best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arose. For those reasons, the Court did not consider it appropriate to extend Article 8 so as to impose on the Contracting States a procedural obligation to make available a remedy requiring the courts to decide on the merits of a claim such as the one made in the instant case.
In any event, the majority of the Supreme Court judges had dealt with the substance of the first applicant’s claim. They had concluded that she had failed to show that developments since Pretty meant that the ban could no longer be considered a proportionate interference with Article 8 rights. The fact that in making their assessment they had attached great significance to the views of Parliament did not mean that they had failed to carry out any balancing exercise. Rather, they had chosen – as they were entitled to do in light of the sensitive issue at stake and the absence of any consensus among Contracting States – to conclude that the views of Parliament weighed heavily in the balance.
Conclusion: inadmissible (manifestly ill-founded).
(b) Second applicant: Before the Court of Appeal, challenges had been made to both the prohibition on assisted suicide and the law on murder, which made no exception for voluntary euthanasia. However, before the Supreme Court the second applicant had only pursued his complaint about the ban on assisted suicide and not his argument that there should be a judicial procedure to authorise voluntary euthanasia in certain circumstances. It could not be assumed that the Supreme Court would have disposed of the argument concerning voluntary euthanasia in the same way as it disposed of the claim in respect of the prohibition of assisted suicide.
Conclusion: inadmissible (failure to exhaust domestic remedies).

2478/15; 1787/15 – Legal Summary, [2015] ECHR 783
Bailii
European Convention on Human Rights 8-1
Human Rights
Citing:
At HL – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
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 . .

Cited by:
See Also – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Crime

Updated: 04 January 2022; Ref: scu.552391

G v Scottish Ministers and Another: SC 18 Dec 2013

The 2003 Act had been intended to make provision for those who had been in long term mental health carse, but would not need such continued are but were not either ready to survive without continuing support in the community. The claimant had been convicted of serious sexual and violent offences and detained under a restriction order. The review Tribunal had decided he was ready for consideration for release from Carstairs a high security hospitale. He continued to pose some risk of sexual violence towards women and the best way of managing it could only be determined once he had undertaken and completed satisfactorily a course of psychological treatment for sexual offending. The psychology department at Carstairs was best placed to deliver this treatment, and the tribunal was concerned that G was less likely to engage in it in a medium secure hospital. Consequently, there was a significant risk that he would become trapped in the medium secure system. The risk he posed meant he would need to be subject to greater restrictions on his movements in a medium secure hospital than at Carstairs unless and until he completed the necessary treatment, which could take 12 to 18 months. There was a significant risk of consequential mental health problems. The tribunal found that it was of maximum benefit to G that he remain at Carstairs.
Held: His appeal failed. the tribunal was entitled to reach the conclusion that they did and that therefore this appeal must be dismissed. Section 264 created a two stage process where risk remained in issue at both stages. Though the tribunal appeared not to have understood the significance of the first stage, on the facts, the correct decision had been made.

Lady Hale, Deputy President, Lord Wilson, Lord Sumption, Lord Reed, Lord Hodge
[2013] UKSC 79, 2014 SCLR 415, 2014 SC (UKSC) 84, 2014 SLT 247, UKSC 2012/0196
Bailii, Bailii Summary, SC, SC Summary
Mental Health (Care and Treatment) (Scotland) Act 2003 264(2)
Scotland
Citing:
Appeal from – G v Decision of The Mental Welfare Tribunal SCS 23-Aug-2011
The Inner House considered the circumstances in which it may be appropriate, as a matter of law, for the Mental Health Tribunal for Scotland to pronounce no order for arrangements to be made for the transfer of a patient detained in the State . .
Too Strong – Lothian Health Board v BM, Mental Health Tribunal for Scotland ScSf 27-Apr-2007
The availability of accommodation in a medium secure hospital where the patient could be detained in appropriate conditions, including appropriate facilities for treatment, can never be relevant to the question whether an order should be made under . .
Cited – Ashingdane v Department of Health and Social Security 1981
Mr Ashingdane was a Broadmoor patient who was deemed ready for transfer back into his local hospital, but was denied a bed there because the nurses’ trade union operated a ban on taking special hospital patients. He launched proceedings against the . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-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 . .
Cited – City of Edinburgh Council v Secretary of State for Scotland and Another; Same v Same (Conjoined Appeals) HL 31-Oct-1997
The Listed buildings registers are to be read consistently; the trading level is a material consideration in listed buildings consent applications. The weight to be given to a material consideration once identified was a matter of judgment for the . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Cited – MA (Somalia) v Secretary of State for The Home Department SC 24-Nov-2010
The asylum applicant had been found to have lied to exaggerate the risk of persecution if he was returned to Somalia. The Court was now asked as to the relevance of that finding, and as to the legitimacy of an appeal court interfering with the . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 04 January 2022; Ref: scu.552329

Janner, Regina (on The Application of) v The Crown Prosecution Service: Admn 13 Aug 2015

The claimant challenged the decision that he should face trial on charges of historic sexual abuse. He was now elderly and said to be unfit to attend court or instruct his lawyers, suffering Alzheimers. He sought interim relief against being required to attend court.
Held: Article 8 was engaged, but not article 3: ‘Article 8 is a qualified right and must be weighed against other considerations. In this context they include the obvious and strong public interest in ensuring those summoned to court attend when required. Equally, there is a compelling public interest in public justice. The Court must not become a place of avoidable spectacle, but it is very important that the route to justice should be public.
The Defendant was clearly conscious of that, even if the argument before him did not focus on Article 8. Given the nature of the distress feared, and its short duration and that arrangements can minimise the effect on the Claimant, we unhesitatingly conclude that the balance comes down in favour of the Claimant’s attendance, for the brief period required.’

Rafferty LJ, Irwin J
[2015] EWHC B15 (Admin)
Bailii
Crime and Disorder Act 1998 51, European Convention on Human Rights 3 8
Citing:
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
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 . .
Cited – Iovchev v Bulgaria ECHR 2-Feb-2006
To engage article 3, the claimant needs to assert a level of suffering which might be described as ‘intense’. . .
Cited – Gorodnitchev v Russia ECHR 24-May-2007
The applicant complained in particular have suffered at different times of his detention, treatment contrary to Article 3 of the Convention and have not been tried within a reasonable time.
Held: A finding of a breach of Article 3 requires a . .
Cited – Grant and Another v The Ministry of Justice QBD 19-Dec-2011
To establish a breach of Article 3 the Claimant must show he has suffered the ill- treatment he alleges, and that it amounts to a violation of Article 3. The claimant prisoners complained that a lack of in-cell sanitation infringed their human . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Health, Human Rights, News

Updated: 03 January 2022; Ref: scu.552050

Parrillo v Italy: ECHR 27 Aug 2015

The applicant alleged, in particular, that the ban under section 13 of Law no. 40 of 19 February 2004 on donating to scientific research embryos conceived through medically assisted reproduction was incompatible with her right to respect for her private life and her right to the peaceful enjoyment of her possessions guaranteed under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention respectively. She also complained of a violation of freedom of expression guaranteed under Article 10 of the Convention, of which scientific research was, in her submission, a fundamental aspect.
Held: There was not breach of Article 8.

Dean Spielmann, P
46470/11 – Grand Chamber Judgment, [2015] ECHR 755
Bailii
European Convention on Human Rights 8

Human Rights, Health

Updated: 03 January 2022; Ref: scu.552056

Re Z (A Child : Human Fertilisation and Embryology Act : Parental Order): FC 7 Sep 2015

The court was asked whether, in the light of the 1998 Act, section 54(1) of the 2008 Act should be read down so as to allow parental orders to be made in favour of just one person.
Held: It could not.

Sir James Munby P FD
[2015] EWFC 73
Bailii
Human Fertilisation and Embryology Act 2008 54(1), Human Rights Act 1998 3(1)

Children, Health

Updated: 03 January 2022; Ref: scu.552027

London Borough of Southwark v P and Others: CoP 20 Apr 2015

Application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). It concerns P who was born on a date in 1986 and is aged 28 years. There is a dispute as to the extent to which he lacks capacity to litigate and capacity to consent to marriage or sexual relations.

Moor J
[2015] EWCOP 40
Bailii
England and Wales

Family, Health

Updated: 03 January 2022; Ref: scu.551311

Re A: CoP 7 Jul 2015

Application by a professional deputy for an order authorising him to apply approximately 17,000 pounds a year from A’s damages award towards the payment of her brother’s school fees.

[2015] EWCOP 46
Bailii
England and Wales

Health

Updated: 03 January 2022; Ref: scu.551315

Secretary of State for Justice v KC and C Partnership NHS Foundation Trust: UTAA 2 Jul 2015

Mental Health : All
The local authority had sought an order under the 2005 Act seeking a personal welfare order on the basis that it would be in KC’s best interests for him to move to a proposed placement (the Placement) on the terms of a care plan for his care, supervision and management at that community placement. The plan would amount to a deprivation of liberty for KC

Charles J
[2015] UKUT 376 (AAC)
Bailii
Mental Capacity Act 2005
England and Wales
Cited by:
Cited – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprive patient of liberty
Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Health

Updated: 03 January 2022; Ref: scu.550687

L v Bournewood Community and Mental Health NHS Trust: Admn 9 Oct 1997

L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is incapable of giving consent is unlawful in the absence of the hospital following the statutory procedures.

Owen J
Gazette 08-Jan-1998, Times 08-Dec-1997, [1997] EWHC Admin 850, [1998] 2 WLR 764
Mental Health Act 1983 131(1)
England and Wales
Citing:
Cited – Meering v Grahame-White Aviation Co Ltd CA 1919
An unconscious or drugged person may be detained. For the tort of false imprisonment there must be shown a complete restriction in fact on the plaintiff’s freedom to move: ‘any restraint within defined bounds which is a restraint in fact may be an . .
Cited – Regina v Kirklees Borough Council ex parte C (A Minor) CA 12-Apr-1993
A Local Authority may admit a minor in care to a mental hospital for assessment or treatment. Section 131 merely preserves or confirms the common law and previous law. Consent requires proof of conduct and a reasoning capacity. . .
Cited – Black v Forsey HL 20-May-1988
The common law was called in aid to supplement the statutory power of compulsory detention to fill a lacuna which had appeared in the 1984 Act.
Held: The common law could not be invoked for that purpose, because the powers of detention . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .

Cited by:
Cited – L v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
At Admn – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
At Admn – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
At First instance – HL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
At Admn – HL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .
At Admn – L v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .

Lists of cited by and citing cases may be incomplete.

Health, Torts – Other

Updated: 03 January 2022; Ref: scu.137795

Regina v Broadmoor Special Hospital Authority and Secretary of State for Health ex parte ‘S’, ‘H’, ‘D’, ‘L’: Admn 15 Oct 1997

A hospital admitting a patient under the Mental Health Act has the power to search the patient. Each hospital’s policy, however, remains individually assessable for Wednesbury unreasonableness.

Times 05-Nov-1997, [1997] EWHC Admin 875
England and Wales
Cited by:
Appeal from – Regina v Broadmoor Special Hospital Authority and Secretary of State for Department of Health ex parte S, H and D (2) CA 5-Feb-1998
Persons detained under Mental Health Acts could be subject to random non-consensual searches even if this went against medical opinion. The power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 03 January 2022; Ref: scu.137820

E and F (Minors : Blood Transfusion): CA 14 Dec 2021

Appeals brought by two young persons from orders made by judges of the Family Division in which it was declared under the inherent jurisdiction that, although the young persons were competent to decide whether to consent to or refuse medical treatment in the form of blood transfusion, it would nevertheless be lawful for their doctors to administer blood to them in the course of an operation if that became necessary to prevent serious injury or death.

The President of the Family Division,
,
Lord Justice Peter Jackson,
,
And,
,
Lady Justice Nicola Davies
[2021] EWCA Civ 1888
Bailii
England and Wales

Children, Health

Updated: 03 January 2022; Ref: scu.670459

S v Airedale National Health Service Trust: QBD 22 Aug 2002

The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to a locked room under supervision for the protection of others. The fact of seclusion did not add to the fact that he was already and lawfully confined. A self evidently necessary power could be read into the 1983 Act to permit seclusion. Nevertheless a high degree of scrutiny was appropriate to prevent abuse.
Mr Justice Stanley Burnton considered when it might be proper to hear oral evidence on an application for judicial review: ‘It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness’s testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.’

Mr Justice Stanley Burnton
[2003] Lloyd’s Rep Med 21, [2003] MHLR 63, Times 05-Sep-2002, [2002] EWHC 1780 (Admin)
Bailii
Mental Health Act 1983, European Convention on Human Rights 3 5
England and Wales
Citing:
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2) Admn 5-Jul-2002
The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
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 . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .

Cited by:
Appeal from – 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
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 . .
Cited – Shoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .

Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Judicial Review

Updated: 02 January 2022; Ref: scu.174790

Re X (Court of Protection Practice): CA 16 Jun 2015

This appeal concerns the practice and procedure to be adopted in applications to the Court of Protection in deprivation of liberty cases.

[2015] EWCA Civ 599, [2016] 1 FCR 65, [2015] COPLR 582, [2016] 1 WLR 227, [2015] WLR(D) 257, [2016] 1 All ER 533
Bailii
England and Wales

Health, Human Rights, Litigation Practice

Updated: 01 January 2022; Ref: scu.548999

Welsh Ministers v PJ: SC 17 Dec 2018

A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose conditions in a CTO which amount to the deprivation of his liberty within the meaning of article 5 of the European Convention on Human Rights.
Held: There is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty.

Lady Hale (President), Lord Kerr, Lord Wilson, Lady Black, Lord Lloyd-Jones
[2018] UKSC 66, UKSC 2018/0037
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Oct 22 am Video, SC 2018 Oct 22 pm Video
Mental Health Act 1983, European Convention on Human Rights 5
England and Wales
Citing:
Appeal from – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprive patient of liberty
Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
At UTAA – MM v WL Clinic and Another UTAA 23-Nov-2015
Mental Health : All – whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a . .
Cited – The Secretary of State for Justice v RB and Another CA 20-Dec-2011
The court considered and rejected the possibility of the First Tier Tribunal making orders under the 2005 Act which would have the effect of depriving a patient of his liberty. The respondent, now aged 73, suffered a persistent delusional condition . .
Cited – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – Austin and Others v The United Kingdom ECHR 15-Mar-2012
Grand Chamber – The applicants complained that their restriction within a police cordon (a measure known as ‘kettling’) for up to seven hours during the course of a demonstration in central London amounted to a deprivation of their liberty in breach . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – HM Treasury v Ahmed and Others SC 4-Feb-2010
The Court had declared unlawful as ultra vires terrorism related orders made against the several claimants. The court now considered how restrictions imposed by banks should be dealt with.
Held: (Lord Hope dissenting as to the order required) . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
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 . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – In re S-C (Mental Patient: Habeas Corpus) CA 22-Nov-1995
The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 31 December 2021; Ref: scu.631395

Regina v Bournewood Community and Mental Health NHS Trust ex parte Rosling, (By Official Solicitor His Litigation Friend): Admn 8 Jul 1999

[1999] EWHC Admin 651
Bailii
England and Wales
Cited by:
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 31 December 2021; Ref: scu.139915

In re S-C (Mental Patient: Habeas Corpus): CA 22 Nov 1995

The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. In the mental health context, if someone is to be taken out of the community and detained in a hospital there must be clear evidence that the medical condition of a patient justifies such action. A social worker could not make an application for an admission if the nearest relative objected. The correct procedures had not been followed.
Sir Thomas Bingham MR said: ‘As we are all well aware, no adult citizen of the United Kingdom is liable to be confined in any institution against his will, save by authority of law. That is a fundamental constitutional principle, traceable back to chapter 29 of Magna Carta 1297 . . and before that to chapter 39 of Magna Carta 1215.’
and: ‘Powers . . exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be involuntarily admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute. . . Thus we find in the statute a panoply of powers combined with detailed safeguards for the protection of the patient. . . One reminds oneself that the liberty of the subject is at stake in a case of this kind, and that liberty may be violated only to the extent permitted by law and not otherwise.’

Sir Thomas Bingham MR, Neill, Hirst LJJ
[1996] QB 599, QBCOF 95/1657/D, [1996] 2 WLR 146, (1996) 29 BMLR 138, [1996] 1 All ER 532, [1996] Fam Law 210, [1995] EWCA Civ 60, [1996] 2 FCR 692, [1996] 1 FLR 548
Bailii
Mental Health Act 1983, Magna Carta 1297 29, Magna Carta 1215 39
England and Wales
Cited by:
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .

Lists of cited by and citing cases may be incomplete.

Health, Constitutional, Torts – Other

Updated: 31 December 2021; Ref: scu.220474

Modaresi, Regina (on The Application of) v Secretary of State for Health: SC 24 Jul 2013

The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental Health Review Tribunal ‘MHRT’ under section 67(1) of the Mental Health Act 1983 ‘MHA’ in circumstances where the MHRT has unlawfully declined to hear that patient’s application to it under section 66(1)-(2) and where the patient requests that there be a section 67(1) referral?’
Held: The appeal failed. In the particular circumstances, the Secretary of State’s response to the solicitors’ letter of 7 January 2011 was both lawful and reasonable, and ‘A competent tribunal had made a decision on a procedural matter, and the claimant had both a right of appeal and access to solicitor’s advice on its merits. The Secretary of State was under no duty to do the solicitor’s work for him, even if it would have been appropriate for him to second-guess the decision of the tribunal on this point. It had been open to the appellant to ask the tribunal to review its decision, if thought wrong, or to appeal. Failing such a challenge, it is hard to see why the Secretary of State was not entitled to proceed on the basis of that decision of a competent tribunal. In any event the argument does not lead anywhere. If the Secretary of State’s decision were to be set aside solely on the basis that the original application was in fact made in time, it would not help the appellant. Rather it would further undermine her case against the Secretary of State under article 5(4) or analogous common law principles, since it would show that there had been a right of access to the tribunal all along, and therefore no breach by the Secretary of State of any implied duty to provide one under section 67. ‘

Lord Neuberger, President, Lady Hale, Lord Wilson, Lord Sumption, Lord Carnwath
[2013] PTSR 1031, [2013] WLR(D) 309, UKSC 2012/0069, [2013] UKSC 53
Bailii Summary, WLRD, Bailii, SC Summary, SC
Human Rights Act 1998, Mental Health Act 1983 67(1)
England and Wales
Citing:
At first instance – Modaresi, Regina (on The Application of) v Secretary of State for Health and Others Admn 3-Mar-2011
The claimant sought judicial review of her detention under section 2 of the 1983 Act.
Held: The request was rejected. The tribunal had been correct to treat the original application as out of time. The Secretary of State’s decision was neither . .
Cited – Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Appeal from – Modaresi, Regina (on The Application of) v Secretary of State for Health and Others CA 23-Nov-2011
The appellant had been detained under the 1983 Act. Her appeal had been declined as out of time, and she now appealed against rejection of her request for judicial review.
Held: The appeal failed, even though the application to the tribunal . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Pritam Kaur v S Russell and Sons Ltd CA 2-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following.
Held: The appeal succeeded. The writ was . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – Regina (RB) v First Tier Tribunal (Review) UTAA 28-May-2010
The tribunal may review its own decision, where for example a clear error has been made (section 9). . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 31 December 2021; Ref: scu.513676

re HC: CoP 23 Apr 2015

Application by the Public Guardian for an order under section 16(8) of the Mental Capacity Act 2005 revoking the appointment of a deputy because he has behaved in a way that contravenes the authority conferred on him by the court or is not in the best interests of the person for whom he acts as deputy.

Lush SJ
[2015] EWCOP 29
Bailii

Health, Agency

Updated: 30 December 2021; Ref: scu.546279

Leger v Ministre des Affaires sociales, de la Sante et des Droits des femmes: ECJ 29 Apr 2015

ECJ (Judgment) Reference for a preliminary ruling – Public health – Directive 2004/33/EC – Technical requirements relating to blood and blood components – Blood donation – Eligibility criteria for blood donors – Criteria for permanent or temporary deferral – Persons whose sexual behaviour puts them at a high risk of acquiring severe infectious diseases that can be transmitted by blood – Man who has had sexual relations with another man – Charter of Fundamental Rights of the European Union – Articles 21(1) and 52(1) – Sexual orientation – Discrimination – Justification – Proportionality

L. Bay Larsen, P
[2015] EUECJ C-528/13
Bailii
Directive 2004/33/EC

European, Health

Updated: 30 December 2021; Ref: scu.546200

ViiV Healthcare UK Ltd v Teva UK Ltd: ChD 23 Apr 2015

Application for a reference to the European Court of Justice in an action in which the Claimant (ViiV) seeks a declaration as to the proper interpretation of Article 3 of the Regulation in the context of a Supplementary Protection Certificate granted in 2005 in respect of ‘A combination comprising abacavir, optionally in the form of a physiologically functional derivative and lamivudine, optionally in the form of a physiologically functional derivative.’

John Baldwin QC HHJ
[2015] EWHC 1074 (Ch)
Bailii
Regulation (EC) No 469/2009 3
England and Wales

European, health

Updated: 29 December 2021; Ref: scu.545927

Clarke, Regina (on The Application of) v London Borough of Sutton: Admn 23 Apr 2015

The claimant, a 27 year old with severe epilepsy and other mental health and behavioural difficulties had had living care support provided by Enfield. He then became ‘ordinarily resident’ in the defendant’s area and the defendant became responsible for his care. He now challenged the defendant’s decision not to continue to fund the specialist placement formerly funded by Enfield and as to the lawfulness of the assessment as to his needs.

Sycamore HHJ
[2015] EWHC 1081 (Admin)
Bailii

Local Government, Health

Updated: 29 December 2021; Ref: scu.545929

Re CJ: CoP 25 Mar 2015

Reconsideration of a decision made on the papers: (a) revoking the respondent’s appointment as his partner’s deputy for property and affairs; and (b) inviting a panel deputy to apply to be appointed as deputy in his place.

Lush SJ
[2015] EWCOP 21
Bailii
England and Wales

Agency, Health

Updated: 29 December 2021; Ref: scu.544724

Tysiac v Poland: ECHR 20 Mar 2007

The applicant alleged that the circumstances of her case had given rise to violations of Article 8 of the Convention. She also relied on Article 3. The applicant further complained under Article 13 that she did not have an effective remedy at her disposal. She also submitted, relying on Article 14 of the Convention, that she had been discriminated against in realising her rights guaranteed by Article 8. The application concerned the refusal by the gynaecology and obstetrics department of a public hospital in Warsaw to terminate Ms Tysiac’s third pregnancy which involved a risk to her eyesight. Abortion is prohibited in Poland except for therapeutic purposes.

Nicolas Bratza, P
[2007] ECHR 219, (2007) 22 BHRC 155, (2007) 45 EHRR 42, [2007] 1 FCR 666, 5410/03
Bailii
European Convention on Human Rights 3 8 13 14
Citing:
See Also – Tysiac v Poland ECHR 16-Mar-2007
The complainant complained about the failure to afford her an abortion in circumstances where she had an understandable fear that giving birth would lead to her losing her already poor sight, leading to a further six-months of pregnancy and a . .

Cited by:
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – ZH and CN, Regina (on The Applications of) v London Boroughs of Newham and Lewisham SC 12-Nov-2014
The court was asked whether the 1977 Act required a local authorty to obtain a court order before taking possession of interim accommodation it provided to an apparently homeless person while it investigated whether it owed him or her a duty under . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 28 December 2021; Ref: scu.544329

MS v Croatia (No 2): ECHR 19 Feb 2015

Article 5-1-e
Persons of unsound mind
Lack of effective legal representation in proceedings concerning applicant’s confinement in a psychiatric hospital: violation
Article 3
Degrading treatment
Inhuman treatment
Effective investigation
Unnecessary physical restraint for fifteen hours in psychiatric hospital and lack of investigation into alleged ill-treatment: violation
Facts – In 2012 the applicant went to a hospital emergency room complaining of severe lower-back pain. She was diagnosed with lumbago and psychiatric disorders and admitted against her will to a psychiatric clinic where she was forcibly tied to a bed in an isolation room and kept in that position until the next morning. A county court subsequently ordered her continued confinement in the clinic in a decision that was upheld by a three-judge panel, despite the applicant’s request for her discharge and complaints of ill-treatment in the clinic. The applicant was discharged a month after her forced hospitalisation.
Law – Article 3
(a) Procedural aspect – Both the applicant and her sister had complained in writing to the hospital administration of ill-treatment during the applicant’s involuntary confinement and had provided detailed information about the treatment and the pain suffered as a consequence of physical constraint for 15 hours. Their allegations, supported by medical documentation, had raised an arguable claim of ill-treatment, which had in turn triggered the authorities’ obligation to conduct an effective official investigation. However, the complaints had not been examined by the domestic courts or forwarded to other competent authorities for further investigation.
Conclusion: violation (unanimously)
(ii) Substantive aspect – Developments in contemporary legal standards on seclusion and other forms of coercive and non-consensual measures against patients with psychological or intellectual disabilities in hospitals and all other places of deprivation of liberty required that such measures be employed as a matter of last resort and when their application is the only means available to prevent immediate or imminent harm to the patient or others. The use of such measures must be commensurate with adequate safeguards against abuse, providing sufficient procedural protection, and capable of demonstrating sufficient justification that the requirements of ultimate necessity and proportionality have been complied with and that all other reasonable options failed to satisfactorily contain the risk of harm to the patient or others. It must also be shown that the measure was not prolonged beyond the period strictly necessary for that purpose.
In the instant case, the applicant’s medical records did not suggest that she posed any immediate or imminent harm to herself or others or that she had been aggressive in any way. The fact that she may have given incoherent information about her health issues could not in itself justify the use of measures of physical restraint. Nor had it been shown that any alternative means had been tried, that physical restraint had been used as a matter of last resort, or that the measure had been necessary and proportionate in the circumstances. Lastly, the Court was not satisfied that the applicant’s condition while restrained had been effectively and adequately monitored. Therefore, the ill-treatment the applicant had been subjected to had amounted to inhuman and degrading treatment.
Conclusion: violation (unanimously)
Article 5 – 1 (e): The county court had appointed a legal aid lawyer to represent the applicant in the involuntary confinement proceedings. However, he did not meet the applicant, provide her with legal advice or make submissions on her behalf and acted as a passive observer during the hearing. The mere appointment of a lawyer, without him or her actually providing legal assistance, could not satisfy the requirements of necessary ‘legal assistance’ for persons confined on the ground of ‘unsound mind’. Effective legal representation of persons with disabilities required an enhanced duty of supervision of their legal representatives by the competent domestic courts. Although aware of the lawyer’s omissions, the domestic authorities had failed to take appropriate measures to secure the applicant’s effective legal representation. Furthermore, although the judge conducting the proceedings had visited the applicant in hospital, he had made no appropriate adjustments to secure her effective access to justice, such as informing her of her rights or considering the possibility for her to participate in the hearing. In this respect, there had been no valid justification for the applicant’s exclusion from the hearing. In view of several shortcomings in the procedure for the applicant’s involuntary hospitalisation, the Court concluded that the domestic authorities had failed to meet the necessary procedural requirements under Article 5.
Conclusion: violation (unanimously)
Article 41: no claim made in respect of damage.

75450/12 – Legal Summary, [2015] ECHR 236
Bailii
European Convention on Human Rights 5-1-e

Human Rights

Updated: 28 December 2021; Ref: scu.543766

Worcestershire County Council -v- Secretary of State for Health and Social Care: CA 22 Dec 2021

dispute about which of two local authorities should pay for care services, in this case after-care services pursuant to s.117(3) of the Mental Health Act 1983

Lord Justice Coulson,
Lady Justice Carr,
And,
Lord Justice William Davis
[2021] EWCA Civ 1957
Bailii, Judiciary
England and Wales

Health, Local Government

Updated: 28 December 2021; Ref: scu.670716

Re SB: CoP 12 Feb 2015

Application to revoke a Lasting Power of Attorney for property and financial affairs (‘LPA’) because the attorneys have behaved in a way that contravenes their authority and is not in the donor’s best interests.

Lush SJ
[2015] EWCOP
Bailii

Health, Agency

Updated: 27 December 2021; Ref: scu.542508

AJ (Deprivation of Liberty Safeguards): CoP 10 Feb 2015

The case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty, and in particular the choice of an independent mental capacity advocate.

Baker J
[2015] EWCOP 5
Bailii
Mental Capacity Act 2005, Mental Health Act 2007

Health

Updated: 27 December 2021; Ref: scu.542477

The Mental Health Trust and Others v DD and Another: CoP 4 Feb 2015

DD, a 36 year old woman with Autistic Spectrum Disorder with additional low IQ, a probable history of abuse, and complex obstetric history. She was in a long term relationship with a man with lower IQ and also some autism. She had had 5 children, and the court had considered already a further sixth pregnancy. The court was now asked: ‘i) DD’s capacity to litigate in these proceedings
ii) DD’s capacity to consider, and make decisions concerning, long-term contraception and/or therapeutic sterilisation, and
iii) If lacking the relevant capacity, to determine whether it is in DD’s best interests to receive long-term contraception or sterilisation, and if so, which specific therapeutic intervention.’

Cobb J
[2015] EWCOP 4
Bailii
Mental Capacity Act 2005

Health

Updated: 27 December 2021; Ref: scu.542246

Nottingham University Hospitals NHS Trust v M (by his Children’s Guardian) and Others: FD 2 Jul 2021

Application for a declaration that it is lawful and in the best interests of M to be deprived of his liberty whilst an inpatient of the Trust, and for his conveyance to and from Trust premises. The application was made as M has the right to liberty and cannot be deprived of his liberty save in accordance with a procedure prescribed by law (per Article 5(1) ECHR), and without coming to court for authorisation of his deprivation of liberty, having regard to the particular facts of this case.

Mrs Justice Lieven
[2021] EWHC 3380 (Fam)
Bailii
European Convention on Human Rights 5(1)
England and Wales

Health, Human Rights

Updated: 25 December 2021; Ref: scu.670682

An NHS Trust v Child B and Others: FD 1 Aug 2014

Emergency application brought by An NHS Trust concernig B, a very young child who sustained injuries in an accident. B sustained severe burns to several parts of his body in an accident which was dealt with very expeditiously by his mother. Both parents were Jehovah’s witnesses, and the Trust wished to supply a blood transfusion.

Moylan J
[2014] EWHC 3486 (Fam)
Bailii
England and Wales

Family, Health

Updated: 24 December 2021; Ref: scu.539460

The Secretary of State for Justice v MM: CA 29 Mar 2017

Power of FTT to deprive patient of liberty

Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Held: The orders made by the UT were set aside. There is no ‘umbrella’ power that can be exercised by the tribunal to authorise a patient’s deprivation of liberty outside hospital. It is accordingly inappropriate for a tribunal to do so, whether by direct or indirect means (for example, by the use of declarations to provide for an asserted lacuna in the statutory scheme). There is no lacuna in the scheme. However practicable and effective it may be to provide for a tribunal to have such a power, for example to improve access to justice to a specialist and procedurally appropriate adjudication, Parliament has not provided for the same.

Sir James Munby, President, Lady Justice Gloster, Vice-President, and Sir Ernest Ryder, Senior President
[2017] EWCA Civ 194, [2017] WLR(D) 235, [2017] 1 WLR 4681
Bailii, WLRD
Mental Health Act 1983
England and Wales
Citing:
Cited – Secretary of State for Justice v KC and C Partnership NHS Foundation Trust UTAA 2-Jul-2015
Mental Health : All
The local authority had sought an order under the 2005 Act seeking a personal welfare order on the basis that it would be in KC’s best interests for him to move to a proposed placement (the Placement) on the terms of a care . .
Cited – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Appeal from – MM v WL Clinic and Another UTAA 23-Nov-2015
Mental Health : All – whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a . .
Cited – Secretary of State for the Home Department, Regina (on the Application of) v Mental Health Review Tribunal Admn 20-May-2002
The Court considered the meaning of ‘discharge’ from a mental health hospital. Elias J held that it meant ‘discharge from detention in hospital’, so that there could be a discharge on condition of residence in another hospital: but he also held that . .

Cited by:
Appeal from – Secretary of State for Justice v MM SC 28-Nov-2018
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 . .
Appeal from – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Health, Human Rights

Updated: 24 December 2021; Ref: scu.581298

The Secretary of State for Justice v RB and Another: CA 20 Dec 2011

The court considered and rejected the possibility of the First Tier Tribunal making orders under the 2005 Act which would have the effect of depriving a patient of his liberty. The respondent, now aged 73, suffered a persistent delusional condition and was a ‘restricted patient’.

Maurice Kay LJ VP, Arden, Moses LJJ
[2011] EWCA Civ 1608, (2012) 124 BMLR 13, [2012] 1 WLR 2043, [2012] AACR 31, [2012] MHLR 131, [2011] WLR (D) 379
Bailii, WLRD
Mental Health Act 1983
England and Wales
Cited by:
Cited – Secretary of State for Justice v MM SC 28-Nov-2018
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 . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Health, Criminal Sentencing

Updated: 24 December 2021; Ref: scu.450118

MM v WL Clinic and Another: UTAA 23 Nov 2015

Mental Health : All – whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a deprivation of the patient’s liberty.
Held: there was power to impose a condition of compliance with a care package, provided that the patient had the capacity to consent to it and did consent

Charles J
[2015] UKUT 644 (AAC), [2016] MHLR 198
Bailii
European Convention on Human Rights 5
England and Wales
Cited by:
Appeal from – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprive patient of liberty
Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
At UT – Secretary of State for Justice v MM SC 28-Nov-2018
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 . .
At UTAA – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 24 December 2021; Ref: scu.556086