Category: Health

Regina (Burke) v General Medical Council: Admn 30 Jul 2004

The applicant, suffering a life threatening disease, wanted to ensure his continued treatment and revival in the circumstance of losing his own capacity. He said the respondent’s guidelines for doctors were discriminatory and failed to protect his human right to life. He sought judicial review of the guidelines.
Held: The rules were inadequate. Doctors were experts as to the medical interests of a patient, but such decisions involved wider considerations as to which doctors have no special expertise. Where a patient was competent or had provided an advance directive, his wishes could be followed. Otherwise a decision had to be made for him. There was a strong presumption in favour of prolonging life. A doctor accepting the care of a patient but disagreeing as to his treatment has a duty to continue care until other medical help is found. He had to act in the best interests of the patient including non-medical interests. The patient’s rights of personal autonomy, self-determination and dignity were protected under the Convention. Where non-medical issues arose, the doctor should refer the issue to a court.

Munby J
Times 06-Aug-2004, [2004] EWHC 1879 (Admin), [2004] 2 FLR 1121, [2005] 2 WLR 431, [2005] QB 424
Bailii
European Convention on Human Rights 3 8
England and Wales
Citing:
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
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 . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
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 – NHS Trust A v H FD 17-May-2001
The two sets of guidelines on the meaning of and criteria for diagnosing ‘permanent vegetative state’ contained conflicts. Those issued by the Royal College of Physicians, and those issued in an International Working Party Report on Persistent . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
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: . .
Cited – B (A Child); Re C (Welfare of Child: Immunisation) CA 30-Jul-2003
The father sought a specific issue order for the immunisation of his child in particular with the MMR vaccine. The mother opposed all immunisation.
Held: Whether a child was to be refused immunisation was an issue on which both parents should . .

Cited by:
Cited – Portsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .
Cited – In Re Z (Local Authority: Duty) FD 3-Dec-2004
Mrs Z suffered a terminal disease, and sought to travel to Switzerland supported and assisted by her husband, so that she could terminate her life. She appealed an injunction obtained by the authority to prevent her leaving.
Held: The . .
Appeal from – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
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 . .
Cited – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 23 December 2021; Ref: scu.199922

Cushnie, Regina (on The Application of) v Secretary of State for Health: Admn 5 Nov 2014

The claimant challenged by judicial review regulation 11(c) of the 2011 Regulations, which excluded some asylum applicants from NHS care free of charge. He said that this amounted to discrimination for his disability.

Singh J
[2014] EWHC 3626 (Admin)
Bailii
National Health Service (Charges to Overseas Visitors) Regulations 2011 11(c)

Health, Benefits

Updated: 23 December 2021; Ref: scu.538311

Manchester University NHS Foundation Trust v Fixsler and Others: FD 6 Oct 2021

[2021] EWHC 2664 (Fam)
Bailii, Judiciary
England and Wales
Citing:
See Also – Manchester University NHS Foundation Trust v Fixsler and Others FD 28-May-2021
Application for declaration as to child’s best interests. Hospital wanting to provide only palliative care – family wanting life support . .
See Also – Fixsler and Another v Manchester University NHS Foundation Trust and Another CA 9-Jul-2021
Whether to withdraw life sustaining treatment for a little girl with catastrophic brain injuries. . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 22 December 2021; Ref: scu.669916

McDonald, Regina (on The Application of) v Royal Borough of Kensington and Chelsea: CA 13 Oct 2010

The claimant said that the wihdrawal of overnight support to her at home was unlawful.
Held: The claim failed. Her requirement was a need to urinate safely at night, which was satisfied by the new arrangement.

Rix, Wilson LJJ, Sir David Keene
[2010] EWCA Civ 1109, (2010) 13 CCL Rep 664, [2011] ACD 40
Bailii
European Convention on Human Rights 8, Disability Discrimination Act 1995
England and Wales
Citing:
Appeal From – McDonald, Regina (On the Application of) v London Borough Of Kensington and Chelsea Admn 5-Mar-2009
The claimant, a former ballerina, challenged the respondent’s decision limiting the care package provided to her in the form of overnight toileting assistance. She said that the change violated her Article 8 rights . .

Cited by:
Appeal from – McDonald, Regina (on The Application of) v Royal Borough of Kensington and Chelsea SC 6-Jul-2011
The claimant, a former prima ballerina, had suffered injury as she grew old. She came to suffer a condition requiring her to urinate at several points during each night. The respondent had been providing a carer to stay with her each night to . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health, Human Rights

Updated: 21 December 2021; Ref: scu.425190

Manchester Airports Holdings Ltd, Regina (on The Application of) v Secretary of State for Transport and Another: Admn 20 Jul 2021

Lord Justice Lewis and Mr Justice Swift
[2021] EWHC 2031 (Admin), [2021] WLR(D) 404
Bailii, WLRD
Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021, Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 2) Regulations 2021
England and Wales

Transport, Health

Updated: 21 December 2021; Ref: scu.666453

University Hospitals Bristol and Weston NHS Foundation Trust v Godfrey and Another: FD 29 Jan 2021

Application, pursuant to the inherent jurisdictional powers of the High Court for a declaration that it is lawful and in Danny’s best interests to discontinue mechanical ventilation. The likely consequence of this will be to bring Danny’s life to an end.

The Honourable Mr Justice Hayden
[2021] EWHC 163 (Fam)
Bailii
England and Wales

Children, Health

Updated: 21 December 2021; Ref: scu.657655

Sandwell and West Birmingham Hospitals Nhs Trust v CD and Others: CoP 1 Aug 2014

Application by the Trust for declarations as to AB’s capacity to make decisions about serious medical treatment and as to her best interests in respect of whether she should receive life sustaining treatment such as cardio-pulmonary resuscitation and other intensive treatment, should such treatment become necessary.

Theis DBE J
[2014] EWCOP 23
Bailii

Health, Health Professions

Updated: 18 December 2021; Ref: scu.535649

Whapples, Regina (on The Application of) v Birmingham Crosscity Clinical Commissioning Group and Another: Admn 30 Jul 2014

The claimant, suffereing a severe medical condition, sought an order requiring the defendant to include as part of her healthcare package, the provision of a suitably adapted accomodation.
Held: The claim failed. It would require special circumstances to support a finding that a clinical commissioning group had acted unlawfully or irrationally in deciding that the accommodation needs of an individual could and should be met through other avenues involving means-tested state provision, and not out of its own NHS budget.

Sales J
[2014] EWHC 2647 (Admin), [2014] WLR(D) 347
Bailii, WLRD
National Health Service Act 2006 6

Health

Updated: 18 December 2021; Ref: scu.535538

GW v A Local Authority and Another: CoP 31 Jul 2014

A 48 year old woman, suffering Huntington’s Disease appealed against a decision in the Court of Protection, raising two issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the 2005 Act which had the effect of depriving GW of her liberty.

Baker J
[2014] EWCOP 20
Bailii
Mental Capacity Act 2005 48
England and Wales

Health

Updated: 18 December 2021; Ref: scu.535428

Hart v O’Connor: PC 22 Apr 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 same standards as a contract by a person of sound mind, and is not voidable by the lunatic or his representatives by reason of ‘unfairness’ unless such unfairness amounts to equitable fraud which would have enabled the complaining party to avoid the contract even if he had been sane.
Lord Brightman: ‘In the opinion of their Lordships it is perfectly plain that historically a court of equity did not restrain a suit at law on the ground of ‘unfairness’ unless the conscience of the plaintiff was in some way affected. An unconscionable bargain in this context would be a bargain of an improvident character made by a poor or ignorant person acting without independent advice which cannot be shown to be a fair and reasonable transaction. ‘Fraud’ in its equitable context does not mean, or is not confined to, deceit; ‘it means an unconscientious use of power arising out of the circumstances and conditions’ of the contracting parties; Earl of Aylesford v Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances.’
To accept the proposition enunciated in Archer v. Cutler that a contract with a person ostensibly sane but actually of unsound mind can be set aside because it is ‘unfair’ to the person of unsound mind in the sense of contractual imbalance, is unsupported by authority, is illogical.

Lord Brightman, Lord Scarman, Lord Bridge of Harwich, Sir Denys Buckley
[1985] 1 AC 1004, [1985] UKPC 1
England and Wales
Citing:
Cited – Molton v Camroux CEC 2-Jan-1848
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 . .
Cited – Molton v Camroux CExC 1848
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 . .
Cited – Archer v Cutler 1980
(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 . .
Cited – Earl of Aylesford v Morris 1873
One party to a contract knew of the other’s insanity.
Held: The contract of a lunatic is voidable not void. ‘Fraud’ in equity does not mean, and nor is it confined to, deceit; ‘it means an unconscientious use of power arising out of the . .
Cited – Imperial Loan Co v Stone CA 1892
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 . .
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(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 . .
Cited – York Glass Co Ltd v Jubb 1924
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 . .
Cited – York Glass Co Ltd v Jubb CA 1925
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 . .
Cited – Hardman v Falk 1955
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 . .
Cited – Tremills v Benton 1892
A lunatic who appeared to be sane, entered into a contract. His representatives sought to set aside deeds of gift by the lunatic to the defendants. The administrator sought to set aside the deeds on the ground that their execution was obtained by . .

Cited by:
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
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 . .

Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth, Health

Updated: 18 December 2021; Ref: scu.186684

The Mental Health and The Acute Trust v DD and Another: CoP 25 Jun 2014

The court was asked as to DD, a woman in her mid thirties with diagnoses of autistic spectrum disorder and borderline learning disabilities: (a) Whether DD lacks capacity to make decisions in relation to her healthcare and, in particular, lacks capacity to consent to a placental localisation scan and an ante natal assessment;
(b) Whether it is in her best interests to undergo such a scan and assessment;
(c) Whether the Applicants should be authorised to take such necessary and proportionate steps so as to give effect to the ‘best interests’ declaration to include forced entry, restraint and sedation.

Pauffley J
[2014] EWCOP 8
Bailii

Health Professions, Health

Updated: 18 December 2021; Ref: scu.535422

Liverpool City Council v SG and Others: CoP 18 Jun 2014

The court was asked: ‘Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended)?’

Holman J
[2014] PTSR D20, [2014] EWCOP 10
Bailii
England and Wales

Health

Updated: 18 December 2021; Ref: scu.535421

Charles Harwood v Maria Baker: PC 1840

The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the testator may strengthen certain presumptions which arise against the will in a case where the will is contrary to the previously expressed intentions of the testator as to his testamentary dispositions.
‘in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property.’ and
‘Now if their Lordships had found from the other evidence that Mr Baker had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness under which he dies; and that during that illness he had acted upon that previous intention, and executed a Will in question, – less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the Will propounded really did contain the expression of the mind and will of the deceased.’
Erskine J said: ‘Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity.’
and ‘that in all cases the party propounding the Will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose.’

Erskine J
(1840) 3 Moores PCC 282, [1840] EngR 1087, (1840) 3 Moo PC 282, (1840) 13 ER 117
Commonlii
England and Wales
Cited by:
Cited – Ewing v Bennett CA 25-Feb-1998
The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
Approved – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
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 . .
Cited – Kostic v Chaplin and others ChD 15-Oct-2007
The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, . .
Cited – Judy Ledger v Wootton and Another ChD 2-Oct-2007
A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 18 December 2021; Ref: scu.181900

Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1): CA 19 Dec 2002

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 of mental capacity of universal application, but rather the issue of capacity must be looked at in the context of each decision to be made. A person may be capable in law of one kind of decision, but not of another. There was no precedent case dealing with the capacity to conduct and settle proceedings. A person may have that capacity but not necessarily the capacity to administer an award once received. A medical expert asked to advise, should answer against the particular background issue. The issue might be properly addressed in the court forms.
Capacity should be judged in a common sense way, bearing in mind the need to allow people the right to manage their own affairs. The test under the Civil Procedure Rules provided the need for a party to be able to understand the issues, with such professional assistance as was appropriate. A person is not to be regarded as incapable of managing his affairs because, in order to do so, he will need to take advice, or because he may not take it, when given, or because he is vulnerable to exploitation, or at risk of taking rash or irresponsible decisions.
Kennedy LJ said: ‘What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White’s case [White v Fell (unreported) 12th November 1987), capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere.’
Chadwick LJ said: ‘English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself . .
The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained . .
The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test of mental capacity is issue-specific: that, as Kennedy LJ has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation . .
For the purposes of Order 80 – and, now, CPR Pt 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend).’

Lord Justice Potter, Lord Justice Kennedy, Lord Justice Chadwick
Times 28-Dec-2002, [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2003) 73 BMLR 1, [2003] Lloyds Rep Med 244, [2003] PIQR P20, [2003] WTLR 259, [2003] CP Rep 29, [2003] 3 All ER 162, (2004) 7 CCL Rep 5
Bailii
Civil Procedure Rules 21, Rules of the Supreme Court 80, Mental Health Act 1983
England and Wales
Citing:
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 – Re Cumming CA 1852
Knight Bruce LJ said: ‘It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
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: . .
Cited – Re C (Adult: Refusal of Treatment) FD 1994
C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an injunction to prevent the amputation of his gangrenous foot without his written consent. The . .
Cited – White v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator 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 – W v L CA 1974
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the . .
Cited – Kirby v Leather CA 1965
The plaintiff crashed into a van whilst riding his moped and suffered serious brain damage. An inquiry as to a party’s competence to conduct a case had to focus on his capacity to conduct the proceedings. In this case the plaintiff ‘was not capable . .
Cited – Ball v Mallin HL 1829
A person must have the necessary mental capacity if he is to execute a voluntary deed. The House upheld a direction to the jury that what was required was that a person ‘should be capable of understanding what he did by executing the deed in . .
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Molton v Camroux CExC 1848
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 . .
Cited – Durham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) 1885
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties . .
Cited – Imperial Loan Co v Stone CA 1892
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 . .
Cited – Manches v Trimborn 1946
The answer to the question whether the mental capacity necessary in order to render the consent of the party concerned a real consent was present in any particular case would depend on the nature of the transaction. . .
Cited – In re Estate of Park (deceased), Park v Park CA 2-Jan-1953
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was . .
Cited – Gibbons v Wright 1954
(High Court of Australia) Sir Owen Dixon discussed the principle that mental capacity at law varied with the transaction at issue: ‘the mental capacity required by the law in respect of any instrument is relative to the particular transaction which . .
Cited – Mason v Mason 1972
The court considered the mental capacity required of somebody to give their consent to a decree of divorce. . .
Cited – In Re Beaney deceased ChD 1978
A gift made inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the . .
Cited – Re K (Enduring Powers of Attorney), In re F ChD 1988
The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself . .
Cited – Beall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .
Cited – Hart v O’Connor PC 22-Apr-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 . .
Cited – In Re CAF 1962
When considering a person’s capacity to manage and administer his property and affairs, it is necessary to have regard to the complexity and importance of that person’s property and affairs. . .
Cited – In re S (F G) (Mental Health Patient) 1973
The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act . .

Cited by:
Cited – Phillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
See Also – Masterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
Cited – A v The Archbishop of Birmingham QBD 30-Jun-2005
Assessment of damages following child abuse by Catholic priest.
Held: General damages of andpound;50,000 were in line with Coxon and were approved. A had not been shown to be, and is not, incapable of managing his affairs. The court differed . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Bailey v Warre CA 7-Feb-2006
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.
Applied – Lindsay v Wood QBD 16-Nov-2006
The claimant suffered severe brain injury in a crash. The parties sought guidance form the court as to his legal capacity.
Held: The fact that a party may be particularly susceptible to exploitation was a relevant element when considering his . .
Cited – S v Floyd, Equality and Human Rights Commission CA 18-Mar-2008
The court considered the relationship between the two Acts. The assured tenant had fallen into arrears, and was subject to an order for possession. He claimed that his disability required the court not to make an order for possession against her, . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
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: . .
Cited – Haithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
Cited – Dunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
Cited – Bailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
Cited – CS v ACS and Another FD 16-Apr-2015
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 . .
Cited – Dunhill v Burgin SC 12-Mar-2014
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 . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice, Civil Procedure Rules

Leading Case

Updated: 18 December 2021; Ref: scu.178553

Ewing v Bennett: CA 25 Feb 1998

The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the solicitor had twice seen her alone to check his instructions and had confirmed her capacity. The judge had correctly applied the law, and this was in essence an appeal on the facts.

Lord Justice Hirst Lord Justice Ward Lord Justice Chadwick
[1998] EWCA Civ 342
England and Wales
Citing:
Cited – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited – Wintle v Nye HL 1959
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Updated: 18 December 2021; Ref: scu.143820

Banks v Goodfellow: QBD 6 Jul 1870

Test for Capacity to Execute Will

The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.’
Held: The will was effective. English law gives testators ‘absolute freedom’ in the disposal of their property. However the court pointed to ‘a moral responsibility of no ordinary importance . . the instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection.’ To disappoint reasonable expectation of this kind is to ‘shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law’. English law ‘leaves everything to the unfettered discretion of the testator’ on the assumption that ‘the instincts, affections and common sentiments of mankind may safely be trusted to secure, on the whole, a better disposition of the property of the dead’ than stereotyped and inflexible rules. The court considered the test for testamentary capacity.
Cockburn CJ said: ‘It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

Cockburn CJ
(1870) LR 5 QB 549, [1870] UKLawRpKQB 74, (1869-1870) LR 5 QB 549
Commonlii
England and Wales
Citing:
Approved – Greenwood v Greenwood 1776
‘If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.’ . .
Approved – Charles Harwood v Maria Baker PC 1840
The Board emphasised the importance that the Court of Probate should be satisfied that a testatrix had the necessary capacity when she executed the will if the evidence showed that she had lost capacity shortly afterwards. The infirmity of the . .
Cited – Den v Vancleve 1819
When asking as to the capacity of a testator, the court should ask: ‘was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?’ and ‘By the terms ‘a sound and disposing mind . .
Cited – Burdett v Thompson 1878
. .

Cited by:
Cited – Ewing v Bennett CA 25-Feb-1998
The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Billington (By Billington Her Next Friend) Billington, Warburton v Blackshaw CA 16-Dec-1997
The court had set aside a conveyance at an undervalue by a mother to one of her children. There was evidence to doubt her capacity at the time.
Held: There was evidence of senile dementia, and the presumption applied. The judge had dealt . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
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 . .
Cited – Kostic v Chaplin and others ChD 15-Oct-2007
The deceased had for several years suffered a delusional disorder. The validity of his last two wills was challenged. In one had had left his entire estate to the Conservative Party.
Held: The wills were invalid. It was clear that when made, . .
Cited – Judy Ledger v Wootton and Another ChD 2-Oct-2007
A grant of probate was challenged, the claimant stating that, at the time of the will, the deceased had lacked testamentary capacity.
Held: The deceased had a history of mental health difficulties. It was for the person proposing a will to . .
Cited – Boughton v Knight 1873
The jury found that the testator had not been of sound mind, memory and understanding when he made the will propounded by the plaintiffs.
Held: The court contrasted a person of ‘sound mind’ with one suffering from ‘delusions’. The amount and . .
Cited – Carr and others v Beaven and others ChD 29-Oct-2008
The parties contested the validity of a will on the basis of incapacity.
Held: The golden rule was for a solicitor to obtain a doctor’s opinion as to the testator’s capacity, but bemoaning the absence of one is crying over spilled milk. At the . .
Cited – Scammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
Cited – Zorbas v Sidiropoulous (No 2) 10-Jul-2009
Austlii (Supreme Court of New South Wales – Court of Appeal) SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had . .
Cited – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
Cited – Hawes v Burgess and Another CA 19-Feb-2013
The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
Cited – Schrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .
Cited – Ram and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Health

Leading Case

Updated: 18 December 2021; Ref: scu.181899

O v The Secretary of State for The Home Department: CA 17 Jul 2014

The court was asked whether the Secretary of State for the Home Department could continue lawfully to hold the appellant, O, in immigration detention notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community.
Held: Her appeal failed. For most of that earlier period, namely until 28 April 2010, O had been the subject of unlawful detention but was entitled only to nominal damages in respect of it and that for the remainder of that earlier period she had not been the subject of unlawful detention at all.

Arden, Underhill, Floyd LJJ
[2014] EWCA Civ 990, [2014] WLR(D) 327
Bailii, WLRD
England and Wales
Cited by:
Appeal from – O, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .

Lists of cited by and citing cases may be incomplete.

Health, Immigration

Updated: 17 December 2021; Ref: scu.534420

In Causa West Lothian Council A Local Authority, In Respect of LY The Adult: SCSf 23 Jun 2014

Application under the 2000 Act to have the Council’s Chief Social Work Officer appointed as guardian to an adult, LY, in which they sought various ‘welfare’ powers.

Douglas A Kinloch
[2014] ScotSC 20
Bailii
The Local Government Scotland Act 1994, Adults with Incapacity (Scotland) Act 2000

Scotland, Health

Updated: 16 December 2021; Ref: scu.534216

In Re T (A Minor) (Wardship: Medical Treatment): CA 24 Oct 1996

A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the baby should undergo surgery. The prospects of success were good whilst without transplantation the expectation of life was just over 2 weeks. The baby at the age of 3 weeks had undergone surgery which had caused much pain and distress and been unsuccessful. The parents refused to consider a liver transplant but this was ordered.
Held: A loving parents’ decision not to treat a child who suffered from a life threatening disease stood, and was not to be interfered with as their assessment of what was in the child’s best interests. The court must consider the paramount welfare of the child and not whether the parents might be unreasonable. There was a presumption in favour of prolonging life, but that was not the sole objective and to require that at the expense of other considerations might not be in a child’s best interests. The facts were unusual. This case involved a devoted caring mother who was well informed with major invasive surgery. It was not in the best interests of the child to order a course of treatment with which she did not agree and the child’s welfare required that future treatment be left for the parents to decide.
Butler-Sloss LJ discussed the existing case law and said: ‘All these cases depend on their own facts and render generalisations – tempting though they may be to the legal or social analyst – wholly out of place. It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is genuine scope for a difference of view between parent and judge. In both situations it is the duty of the judge to allow the court’s own opinion to prevail in the perceived paramount interests of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature.’ Butler Sloss: ‘The first argument of Mr Francis that the court should not interfere with the reasonable decision of a parent is not one that we are able to entertain even if we wish to do so. His suggestion that the decision of this mother came within that band of reasonable decisions within which a court would not interfere would import into this jurisdiction the test applied in adoption to the refusal of a parent to consent to adoption. It is wholly inapposite to the welfare test and is incompatible with the decision in In Re Z.’

Waite LJ, Butler-Sloss LJ, Roch LJ
Times 28-Oct-1996, Gazette 13-Nov-1996, [1997] 1 FLR 502, [1997] 1 WLR 242, [1997] 8 Med LR 166, (1997) 35 BMLR 63, [1997] 1 All ER 906, [1997] 2 FCR 363
Bailii
England and Wales
Citing:
Cited – Camden London Borough Council v R (A Minor) (Blood Transfusion); in Re R (A Minor)(Blood Transfusion) FD 8-Jun-1993
Child A’s doctors considered that she would need treatment over the following two years and that this could involve the need for blood transfusions at any time. The parents were Jehovah’s Witnesses and refused consent.
Held: The order allowing . .
Cited – Re O (A minor) (Medical Treatment) FD 12-Apr-1993
The local authority applied for a care order in relation to the child, on the ground that there was an urgent and continuing need for medical treatment which included blood transfusions. The court considered the legal effect of a parent’s belief (as . .

Cited by:
Cited – A and D v B and E FD 13-Jun-2003
In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
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 . .
Cited – B (A Child); Re C (Welfare of Child: Immunisation) CA 30-Jul-2003
The father sought a specific issue order for the immunisation of his child in particular with the MMR vaccine. The mother opposed all immunisation.
Held: Whether a child was to be refused immunisation was an issue on which both parents should . .
Approved – LA v SB and Others CA 12-Jul-2010
The local authority had applied for a care order under the court’s inherent wardship jurisdiction in connection with a family where three children suffered a potentially life threatening disease, Rasmussens’s encephalitis. The parents were said to . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Leading Case

Updated: 15 December 2021; Ref: scu.82224

In re J (a Minor) (Wardship: Medical treatment): CA 1 Oct 1990

J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop serious spastic quadriplegia, would be blind and deaf and was unlikely ever to be able to speak or to develop even limited intellectual abilities. It was, however, likely that he would feel pain to the same extent as a normal baby. His life expectancy was uncertain but he was expected to die before late adolescence, although he could survive for a few years. He had been ventilated twice for long periods when his breathing stopped, that treatment being both painful and hazardous. The medical prognosis was that any further collapse which required ventilation would be fatal. However he was neither on the point of death nor dying. The question thus arose as to whether, if he suffered a further collapse, the medical staff at the hospital where he was being cared for should re-ventilate him in the event that he stopped breathing.
Held: The court could, exercising its wardship jurisdiction, authorise the withholding of medical treatment from a child which would result in the child’s life being threatened, provided that any continued life for the child with treatment would be intolerable. The court identified three preliminary steps. The first was that welfare is the court’s paramount consideration. ‘Secondly, the court’s high respect for the sanctity of human life imposes a strong presumption in favour of taking all steps capable of preserving it, save in exceptional circumstances. The problem is to define those circumstances. Thirdly, and as a corollary to the second principle, it cannot be too strongly emphasised that the court never sanctions steps to terminate life. That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life.’ (Taylor LJ) and ‘I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child. I say ‘to that child’ because the test should not be whether the life would be tolerable to the decider. The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable.’
The court could not ‘require the [health] authority to follow a particular course of treatment. What the court can do is to withhold consent to treatment of which it disapproves and it can express its approval of other treatment proposed by the authority and its doctors.’
Lord Donaldson of Lymington MR: ‘Re B seems to me to come very near to being a binding authority for the proposition that there is a balancing exercise to be performed in assessing the course to be adopted in the best interests of the child.
This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but even excepting the ‘cabbage’ case to which special considerations may well apply, it is not irrebuttable. As this court recognised in In re B., account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself. B was probably not a borderline case and I do not think that we are bound to, or should, treat Templeman LJ’s use of the words ‘demonstrably so awful’ or Dunn LJ’s use of the word ‘intolerable’ as providing a quasi-statutory yardstick.
. . we know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life. As explained, this formulation takes account of this and also underlines the need to avoid looking at the problem from the point of view of the decider, but instead requires him to look at it from the assumed point of view of the patient. This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child’s, and mankind’s, desire to survive.
I make no apology for having spent time on the generality of the problem which faces doctors and the court in cases of this nature. The Official Solicitor invited us to do so and if we can succeed in achieving any degree of clarification, it will be worthwhile in terms of assisting those who have to make these very difficult decisions at short notice and in distressing circumstances. However, I now turn to the instant appeal.
The issue here is whether it would be in the best interests of the child to put him on a mechanical ventilator and subject him to all the associated processes of intensive care, if at some future time he could not continue breathing unaided.’

Lord Donaldson of Lymington MR
(1991) Fam 33, [1990] 3 All ER 930, [1991] 2 WLR 140, Times 03-Oct-1990, [1992] 1 FLR
England and Wales
Citing:
Considered – In Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
Considered – Re C (Wardship: Medical Treatment) (No 2) CA 1989
The court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the . .

Cited by:
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
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 . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
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 . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
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 . .
Cited – Portsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
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 . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 13 December 2021; Ref: scu.180089

Re X (A Child): FD 3 Jun 2020

whether it is in X’s best interests to be treated by way of a blood transfusion in circumstances where X’s mother, Ms W, and indeed X herself do not give their consent for that treatment, by reason of their belief as committed and conscientious Jehovah’s Witnesses.

[2020] EWHC 1630 (Fam)
Bailii
England and Wales

Children, Health

Updated: 13 December 2021; Ref: scu.657622

GJ v The Foundation Trust and Another: FD 20 Nov 2009

The statutory provisions of the 2007 Act for review of standard authorisations were matters that the Court of Protection should take into account in determining whether it should make an order authorising the deprivation of P’s liberty, and if so the extent and period of such an authorisation having regard to the authorities relating to the need for review of a deprivation of liberty based on the exercise of the inherent jurisdiction. One of the jurisdictional issues remaining unresolved as ‘what, if any, inherent jurisdiction the Court of Protection has and whether the High Court retains its inherent jurisdiction in this area or whether it has been suspended by the MCA.’

Charles J
[2009] EWHC 2972 (Fam), [2010] 1 FLR 1251, [2010] Fam Law 139, (2009) 12 CCL Rep 600, [2010] Fam 70, [2010] 3 WLR 840
Bailii
Mental Health Act 2007, Mental Capacity Act 2005
England and Wales
Citing:
Applied – 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 . .

Cited by:
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 12 December 2021; Ref: scu.381751

Independent News and Media Ltd and Others v A: FD 12 Nov 2009

A, an adult and severely disabled, still had remarkable gifts. The newspapers wished to attend and report on proceedings before the Court of Protection.
Held: Proceedings in the Court fell within the range of recognised exception for open justice. It was for an applicant to demonstrate good reason why the article ten rights should be engaged. Article 10 rights were not engaged simply by an application under rule 91. A two stage approach was required. First a good reason needed to be stablished for publicity. Then the court would balance the patient’s privacy rights (article 8) against the media’s article 10 rights. In this case the application passed both tests.
Hedley J decided that ‘the proceedings . . are within the exceptions to the open justice principle and are therefore not immediately subject to it. Accordingly I conclude that the institution of such proceedings does not engage the article 10 rights of the media. That is, of course, not to say that they have no rights as they clearly have a right to apply under rule 91 and PD 13 A. Once they apply they undertake to demonstrate ‘good reason’ for the order. In my judgment that is not synonymous with the immediate engagement of article 10 rights and the court undertaking the conventional balancing exercise between the respective article 8 and article 10 rights. However once ‘good reason’ is established then that balance does indeed have to be undertaken.’

Hedley J
[2009] EWHC 2858 (Fam), Times 17-Nov-2009, [2010] WTLR 55, [2010] 1 FLR 916, [2010] Fam Law 357
Bailii
European Convention on Human Rights 10, Mental Capacity Act 2005, Court of Protection Rules (SI 2007 No 1744) 90
England and Wales
Cited by:
Appeal from – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .

Lists of cited by and citing cases may be incomplete.

Health, Media, Human Rights

Updated: 12 December 2021; Ref: scu.377905

Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order): FD 19 Apr 2011

The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because of payments going beyond reasonable expenses.
Held: The order was made because it was clearly in the best interests of the child to do so. As to the making of an order under the Regulations as to the acquisition of British nationality under the Regulations, the practice has been first to give notice to the Home Office of the application. It need not always be the practice in these applications, because by necessity the Border Agency would normally have had some involvement already.

Hedley J
[2011] EWHC 921 (Fam), [2011] Fam Law 695, [2011] 2 FLR 646
Bailii
Human Fertilisation and Embryology Act 2008 54, Human Fertilisation and Embryology (Parental Orders) Regulations 2010
England and Wales
Citing:
Cited – In re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
Cited – Re W (A Minor) (Adoption: Non-Patrial) CA 1986
W was born in China to Chinese parents. His aunt came to Britain and acquired citizenship. He came to live with her while studying, and she applied to adopt him. The judge refused saying that the primary intention was to obtain citizenship.
Cited – In re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .

Cited by:
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 12 December 2021; Ref: scu.439589

A Local Authority v MA and others; Re SA (Vulnerable Adult with Capacity: Marriage): FD 15 Dec 2005

Munby J discussed the court’s inherent powers to make orders to protect the welfare of a vulnerable adult: ‘It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests . . The particular form of order will, naturally, depend upon the particular circumstances of the case.’ As to the development of the power: ‘New problems will generate new demands and produce new remedies’ and ‘Just as there are, in theory, no limits to the court’s powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court’s powers when exercising the inherent jurisdiction in relation to adults.’
The jurisdiction ‘is, in substance and reality . . [and] for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children’.

Munby J
[2005] EWHC 2942 (Fam), [2006] 1 FLR 867, [2007] 2 FCR 563, [2006] Fam Law 268, (2007) 10 CCL Rep 193
Bailii
England and Wales
Cited by:
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .

Lists of cited by and citing cases may be incomplete.

Health, Children, Litigation Practice

Updated: 06 December 2021; Ref: scu.239293

Dh Nhs Foundation Trust v Ps: FD 26 May 2010

Proceedings brought in the Court of Protection and instituted by the DH NHS Foundation Trust (the Trust) against PS (by her litigation friend, the Official Solicitor) designed to ensure that PS undergoes necessary surgery.

Sir Nicholas Wall,,
The President of the Family Division
[2010] EWHC 1217 (Fam), [2010] Fam Law 927, [2010] 2 FLR 1236, [2010] Med LR 320
Bailii
England and Wales

Health

Updated: 06 December 2021; Ref: scu.417778

Beall v Smith: CA 6 Dec 1873

Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by inquisition, and therefore incapable of invoking the protection of the Court, that protection may in proper cases, and if and so far as may be necessary and proper, be invoked by any person as his next friend.
It is not by reason of the incompetency, but notwithstanding the incompetency, that the Court of Chancery entertains the proceedings.’
Otherwise Beal v Smith

Lord Justice James
(1873) LR 9 Ch App 85, [1873] UKLawRpCh 117, (1873-1874) LR 9 Ch App 85
Commonlii
England and Wales
Cited by:
Cited – Lee-Parker v Izzett (1) ChD 1971
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
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 . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health

Updated: 05 December 2021; Ref: scu.259623

Queen-Empress v Ademma: 1886

(Appellate Criminal Court of Madras) A prosecution had been brought under section 312 of the Indian Penal Code, it being an offence ‘voluntarily [to] cause a woman with child to miscarry’. The trial judge had held that the defendant, who had only been pregnant for one month, could not be said to have been ‘with child’, for ‘according to the evidence, what came away was only a mass of blood’ and ‘there was nothing which could be called even a rudimentary foetus or child’.
Held: Setting aside the acquittal, and directing a re-trial, the appellate court said: ‘The term miscarriage is not defined in the Penal Code. In its popular sense it is synonymous with abortion, and consists in the expulsion of the embryo or foetus, ie., the immature product of conception. The stage to which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial. Section 312 requires proof that the woman is ‘with child,’ but it is enough if the fact of pregnancy and the intentional expulsion of the immature contents of the uterus are established. The words ‘with child’ mean pregnant, and it is not necessary to show that ‘quickening’, ie., perception by the mother of the movements of the foetus has taken place or that the embryo has assumed a foetal form.’

Muttusami Ayyar and Brandt JJ
(1886) ILR 9 Mad 369
England and Wales
Cited by:
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 04 December 2021; Ref: scu.223713

G v E (Deputyship and Litigation Friend): CoP 11 Oct 2010

Baker J considered the common law doctrine of necessity as it applied to the medical treatment of adults without mental capacity and the 2005 Act.
Held: As to section 5: ‘These provisions do not amount to a general authority to act on behalf of P. Rather, they merely provide a defence in the event that an action carried out for P is subsequently challenged. In this respect, the statutory provisions are similar to the previous law which was derived not from statute but from common law under the so-called ‘principle of necessity’: see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1. Prior to the passing of the MCA, the Law Commission in its report entitled ‘Mental Incapacity’ (Law Com no. 231) had proposed that there should be a ‘general authority’ providing legal authorisation for acts connected with the care of P, provided such acts were reasonable in the circumstances. The Law Commission’s draft bill included provision for such a ‘general authority’. In the event, following criticism from various quarters, the ‘general authority’ was not included in the MCA as ultimately passed, and instead the law is cast in section 5 as set out above in the form of a defence.’

Baker J
[2010] EWCOP 2512, [2010] COPLR Con Vol 470
Bailii
Mental Capacity Act 2005
Cited by:
See Also – G v E CoP 11-Oct-2010
. .
Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 03 December 2021; Ref: scu.524782

In re P: CoP 11 Dec 2013

Application made by an NHS Trust for the benefit of a thirty-six year old woman who is currently heavily pregnant and about to deliver her fourth child concerning the situation that might arise if Mrs. P (as I will call her) should get into difficulties during the course of her labour, which is expected to be induced shortly after this hearing. It is said that because of mental health difficulties Mrs. P is unable to make decisions about her own medical treatment at the moment and that this would particularly be the case during the course of labour if it ran into difficulties.

Peter Jackson J
[2013] EWCOP 4581, [2013] EWHC 4581 (COP)
Bailii
England and Wales

Health

Updated: 03 December 2021; Ref: scu.524717

An NHS Foundation Trust v M and K: CoP 24 May 2013

Appliation by a health authority for directions as to the care of a young man with a rare progressive and ultimately fatal condition and whether: ‘to what extent should M be treated in Intensive Care or be given cardio-pulmonary resuscitation (‘CPR’) in the event that there is a further deterioration in his condition. There is no question of M having the capacity himself to make any of these decisions. The family and treating physicians, whilst they have worked well together over the years, have been unable to reach a consensus, and it therefore falls to this court to make declarations as to what serious medical treatment is lawful and in M’s best interests.’

Eleanor King DBE J
[2013] EWCOP 2402
Bailii

Health

Updated: 03 December 2021; Ref: scu.524698

Nottinghamshire Healthcare NHS Trust v RC: CoP 1 May 2014

RC had been born to Jehovah’s Witness parents but taen into care and brought up outsid ethe faith. He was very troubled and practised self-harming, being eventually admitted into psychiatric care. He embraced the faith, and, after badly slashing his wrists, refused a blood transfusion. The Trust asked for declarations as to his cpaacity to refuse treatment with blood products.

Mostyn J
[2014] EWCOP 1317
Bailii

Health, Human Rights.

Updated: 03 December 2021; Ref: scu.524687

Committal for Contempt of Court (Practice Guidance – Supplemental): CoP 4 Jun 2013

[2013] EWCOP B7
Bailii
Citing:
See Also – Committal for Contempt of Court (Practice Guidance) COP 3-May-2013
The court gave guidance on the practice to be followed on applications for committal for contempt of court in the Court of Protection, particularly as to the requirements for decisions to be made in public. . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Health

Updated: 03 December 2021; Ref: scu.524702

A Local Authority v TZ (No 2): CoP 1 Apr 2014

The court had already decided that the subject of the case had capacity for purposes of consenting to and engaging in sexual relations. The Court was now asked as to his capacity (1) to make decisions as to his contact with other people, and (2) to make decisions as to his care needs.

Baker J
[2014] EWHC 973 (COP), [2014] EWCOP 973
Bailii, Bailii
Mental Capacity Act 2005
England and Wales

Health

Updated: 02 December 2021; Ref: scu.523649

Josife v Summertrot Holdings Ltd: Admn 4 Apr 2014

The claimant sought to avoid liability under a banking guarantee, saying that he had lacked mental capacity to grant it.
Held: The appeal failed. The judge had correctly applied the law. The execution of the guarantee had been especially reported and noted by independent solicitors, and: ‘the Guarantee was drawn up at the offices of Clifford Harris and Co immediately after a meeting, that the idea of a certificate at the end of the Guarantee had been that of Summertrot’s solicitor, but that it had been contemplated that the relevant advice would be given by Mr Clifford Harris. If there was something in the files of Clifford Harris which threw doubt on this then this was available to Christopher Josife and it would have been adduced before the Deputy Registrar. It is inherently unlikely (and unreasonable to expect evidence) that Clifford Harris would have noted that Christopher Josife was to all appearances incapable of giving instructions but that the solicitor had nonetheless continued to act.’

Norris J
[2014] EWHC 996 (Ch)
Bailii
Citing:
Cited – Imperial Loan Co v Stone CA 1892
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 . .

Lists of cited by and citing cases may be incomplete.

Banking, Health

Updated: 02 December 2021; Ref: scu.523450

Christian Concern, Regina (on The Application of) v Secretary of State for Health and Social Care: CA 25 Sep 2020

In proceedings for judicial review the appellant challenged the ‘Approval of a Class of Places’ within the Abortion Act 1967 as amended made by the Secretary of State on 30 March 2020. This approves the ‘home of a pregnant woman’ as being a place which is authorised for the purpose of section 1 of the 1967 Act where the treatment for early medical abortion may be carried out. The Approval was made under sections 1(3) and (3A) of the 1967 Act. It is time limited until either the date when the temporary provisions of the Coronavirus Act 2020 expire or two years, whichever is the earlier.

Lady Justice Nicola Davies
[2020] EWCA Civ 1239
Bailii
Abortion Act 1967, Coronavirus Act 2020
England and Wales

Health Professions, Licensing, Health

Updated: 30 November 2021; Ref: scu.654037

Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust: QBD 5 Feb 2014

The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, a supervening incapacity even if intermittent, automatically frustrates and thereby terminates a contract of retainer.
Held: The Conditional Fee Agreement remained effective. The termination of a solicitor’s authority by reason of mental incapacity did not, in itself, frustrate the underlying contract of retainer.

Phillips J
[2014] EWHC 168 (QB), [2014] 2 Costs LR 320, (2014) 138 BMLR 30, [2014] 1 WLR 2683, [2014] 2 All ER 1104, [2014] WLR(D) 14
Bailii, WLRD
Legal Aid, Sentencing and Punishment of Offenders Act 2012 44(6)
England and Wales
Citing:
Applied – Lauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .

Cited by:
Appeal from – Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Health, Contract

Updated: 29 November 2021; Ref: scu.521121

Walford, Regina (on The Application of) v Worchestershire County Council: Admn 10 Feb 2014

The Claimant challenged the decision of the Respondent to uphold its reversal of a previous decision to disregard a property, Sunnydene, Astley Burf, Stourport-on-Severn owned by the Claimant’s elderly mother, in calculating her mother’s ability to pay care home charges.
Held: The decision was quashed and returned for reconsideration. While the Council had rightly believed that the claimant had to establish that it was her main home, it had wrongly believed that she could not do so unless she established that she was in ‘actual occupation’ of it and/or that it was her ‘permanent residence’: ”home’ is a place to which a person has a degree of attachment both physical and emotional. It is also agreed that physical presence is neither necessary nor sufficient. What is important is the degree of occupation and the nature of the occupation. Ultimately whether a person occupies premises as their home is determined by a test which is both qualitative and quantitative.’ A person could in principle ‘occupy’ a property as his or her home even if they did not live there all the time, or even the majority of the time.
The Council had erred in also considering only the situation at the tiem when the patient had gone into long term care: ‘ there is no basis for limiting the power of review to the circumstances prevailing at the time of the original assessment. I accept the submissions made on behalf of the Secretary of State and the Claimant that a decision whether or not to disregard property can be reviewed whenever there is a change in circumstances. The opening words of section 7.003 of [the Guidance] require the focus of the inquiry to be on the present, not the past, position.’

Supperstone J
[2014] EWHC 234 (Admin), [2014] WLR(D) 65, [2014] PTSR 968
Bailii, WLRD
National Assistance Act 1948 22, National Assistance (Assessment of Resources) Regulations 1992
England and Wales
Cited by:
Appeal from – Walford v Worcestershire County Council CA 27-Jan-2015
The claimant had, on her mother going into long term care, sought to avoid an order for the sale of the mother’s house saying that it was also the claimant’s home. The Council now appealed against a finding that it had to take into account . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health

Updated: 29 November 2021; Ref: scu.521115

Aster Healthcare Ltd v Shafi (Estate of): QBD 24 Jan 2014

The defendant executor appealed from summary judgment in favour of the claimant in respect of outstanding care home fees.

Andrews DBE J
[2014] EWHC 77 (QB), [2014] PTSR 888, [2014] WLR(D) 42
Bailii, WLRD
Mental Capacity Act 2005, National Assistance Act 1948, National Health Service and Community Care Act 1990
England and Wales

Contract, Health, Local Government

Updated: 29 November 2021; Ref: scu.520897

L, Regina (on The Application of) v West London Mental Health NHS Trust and Others: CA 29 Jan 2014

The court considered the narrow but important question in this appeal concerns the requirements of the common law principles of procedural fairness in cases where a convicted offender is detained under section 37 as mentally ill and is being considered for transfer from conditions of medium security to conditions of high security.

Moses, Patten, Beatson LJJ
[2014] EWCA Civ 47, [2014] 1 WLR 3103, (2014) 137 BMLR 76, [2014] WLR(D) 44
Bailii, WLRD
Mental Health Act 1983 37
England and Wales
Citing:
Appeal from – L, Regina (on The Application of) v West London Mental Health NHS Trust Admn 13-Nov-2012
. .

Lists of cited by and citing cases may be incomplete.

Health, Natural Justice

Updated: 29 November 2021; Ref: scu.520804

K B and Others, Regina (on the Application of) v Mental Health Review Tribunal and Another: Admn 13 Feb 2003

The claimants were entitled to damages for their detention as mental patients, where this had been found to be wrongful as an infringement of their human rights. The court considered the appropriate level of damages.
Held: There was no clear guidance in existence on the proper level of damages. An English court should be no lower than would be awarded for a comparable tort, an in line with general awards in this jurisdiction. It was wrong to compare such a detention with wrongful imprisonment since that would often be accompanied by feelings of humiliation and otherwise arising from the deliberately wrongful intention of the act in question. The court should compensate the injured party for his injury. It should not be lower because it was an human rights award. Even for mentally ill claimants not every feeling of distress would give rise to an award.

Mr Justice Stanley Burnton
Times 05-Mar-2003, [2003] EWHC 193 (Admin), Gazette 10-Apr-2003, [2004] QB 936, [2003] 3 WLR 185
Bailii
England and Wales
Cited by:
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .

Lists of cited by and citing cases may be incomplete.

Health, Damages, Human Rights

Updated: 29 November 2021; Ref: scu.179102

Secretary of State for Justice v RB: UTAA 20 Dec 2010

‘The premise for exercise of the tribunal’s powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. The next step is to devise the conditions. At that stage, it is hard to see why the question whether the conditions would amount to detention for the purposes of article 5 should come into it. Even if they do amount to such detention, there will be no breach of article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by article 5. The tribunal’s concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. We see no reason why Parliament should have wished them to concern with themselves with the fine distinctions which may arise under the Strasbourg case law on detention.’

Lord Justice Carnwath SPT
[2010] UKUT 454 (AAC), [2011] MHLR 37
Bailii
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 29 November 2021; Ref: scu.433613

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 the crucial question was whether the conditions amounted to detention, which was not permitted.
Otherwise: Regina (Secretary of State for the Home Department) v Mental Health Review Tribunal, PH as interested party

Elias J
[2002] EWHC 1128 (Admin), [2002] MHLR 241
Bailii
England and Wales
Cited by:
Cited – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprivie 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.
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 29 November 2021; Ref: scu.251514

Regina v South Thames Mental Health Review Tribunal (ex parte M ): Admn 3 Sep 1997

An application to a Tribunal made by a patient detained for assessment under section 2 remained effective on his becoming detained for treatment under section 3 and had to be heard by the Tribunal.

Andrew Collins J
[1997] EWHC Admin 797, [1998] COD 38
Bailii
England and Wales
Cited by:
Distinguished – SR, Regina (on the Application of) v Mental Health Review Tribunal Admn 14-Dec-2005
The patient had been detained under section 3. He applied to challenge his detention, but before the hearing, he was accepted on to a programme for supervision following his intended release the day before the hearing. His solicitors notified the . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 29 November 2021; Ref: scu.137742

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.
Held: Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation. The Court defined the conditions to be met before the detention of a person may be justified on grounds of mental illness: ‘In the Court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.’ but ‘it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation . . . Mental illness may entail restricting or modifying the manner of the exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.’

[1979] 2 EHRR 387, [1979] ECHR 4, 6301/73
Bailii
European Convention on Human Rights 5 6 8
Human Rights
Cited by:
Cited – A v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Regina v Secretary of State for the Home Department and Another ex parte IH HL 13-Nov-2003
The appellant had been found unfit to plead after assaulting his son, and he had been detained under the 1964 Act. He alleged his detention was in breach of his right to a fair trial. His release had been authorised subject to the appointment of a . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
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: . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
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 . .
Cited – Ward v Commissioner of Police for the Metropolis and others HL 5-May-2005
The claimant had been taken under warrant to a mental hospital, but was found not to be suffering any mental illness. She complained that the arrest was unlawful, since the police officer had not been accompanied by the people named on the warrant. . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
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 . .
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 – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
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 . .
See Also – Winterwerp v The Netherlands ECHR 27-Nov-1981
Hudoc Judgment (Just satisfaction) Struck out of the list (friendly settlement) . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
Cited – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – G v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
Cited – G v E and Others CA 16-Jul-2010
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, . .
Cited – Sherry v The Queen PC 4-Mar-2013
Discretion as to credit for remand time
(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his . .
Cited – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Cited – 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 . .
Cited – The Health Service Executive of Ireland v PA and Others CoP 3-Jun-2015
hsen_paCoP201506
The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an . .
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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Leading Case

Updated: 29 November 2021; Ref: scu.164887

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 conditional release. He said that that was discriminatory.
Held: (Lord Hughes dissenting) The appeal failed. The MHA does not permit either the FtT or the Secretary of State to order a conditional discharge of a restricted patient subject to conditions which amount to detention or a deprivation of liberty. The Secretary of State has complete control over the conditions imposed on restricted patients and whether the patient should be recalled to hospital.

Lady Hale, President, Lord Kerr, Lord Hughes, Lady Black, Lord Lloyd-Jones
[2018] UKSC 60
Bailii, Bailii Summary
Mental Health Act 1983, European Convention on Human Rights 5
England and Wales
Citing:
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 . .
At UT – 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 . .
Appeal from – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprivie 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.
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 – Secretary of State for the Home Department v Mental Health Review Tribunal for Mersey Regional Health Authority Admn 1986
the interpretation of section 73(2) (and section 42(2)) may depend, in part at least, on what is meant by ‘discharge’.
Held: Mann J said that it meant ‘discharge from hospital’, so that a condition could not be imposed that the patient reside . .
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 – 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 – 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 – Stanev v Bulgaria ECHR 17-Jan-2012
. .
Cited – Storck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .
Cited – Secretary of State for Justice v RB UTAA 20-Dec-2010
‘The premise for exercise of the tribunal’s powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of . .
Cited – Robertson v The Balmain New Ferry Company Ltd PC 10-Dec-1909
High Court of Australia – The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of . .
Cited – Herd v Weardale Steel Coal and Coke Co Ltd HL 30-Jun-1914
The claimant, a miner, said that his work was dangerous, and threw down his tools. He now sought damages saying that his employer had falsely imprisoned him by failing to bring him to the surface until the end of his shift.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Health, Human Rights

Updated: 29 November 2021; Ref: scu.630739

Secretary of State for the Home Department v Mental Health Review Tribunal for Mersey Regional Health Authority: Admn 1986

the interpretation of section 73(2) (and section 42(2)) may depend, in part at least, on what is meant by ‘discharge’.
Held: Mann J said that it meant ‘discharge from hospital’, so that a condition could not be imposed that the patient reside in another hospital, even if not under conditions of detention.

Mann J
[1986] 1 WLR 1170
Mental Health Act 1986 73(2) 42(2)
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 29 November 2021; Ref: scu.670118

Baker Tilly (A Firm) v Makar: QBD 27 Mar 2013

The claimant accountants had represented the defendant in a dispute with former employees. They sought payment of their costs, but the claim was stayed until the defendant had the opportunity to to seek representation by a MacKenzie friend after the taxing master became concerned for her health and as to her ability to conduct proceedings. They now appealed against that stay.
Held: Sir Raymond Jack saaid: ‘the Master put more weight on the incident of 18th July than it could bear and that he should have taken into account Miss Makar’s appearances before other judges. I also bear in mind that I have a more complete description of the incident than was before the Master. In all the circumstances he should not have concluded that it was established that Miss Makar lacked capacity and he should not have stayed the assessment pending the appointment of a litigation friend for Miss Makar. There is then no bar to Baker Tilly’s application for an interim costs certificate

Sir Raymond Jack
[2013] EWHC 759 (QB), [2013] 3 Costs LR 444
Bailii
Mental Capacity Act 2005 2, Civil Procedure Rules 21
Citing:
Cited – Carmarthenshire County Council v Lewis CA 16-Dec-2010
Renewed application for leave to appeal against tenancy possession order. The respondent argued that as a result of his suffering Asperger’s syndrome, the court should have adjourned the proceedings to see whether he was a protected party in need of . .

Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Health

Updated: 28 November 2021; Ref: scu.519762

TAQ v AA: CA 19 Dec 2013

Application for permission to appeal against a decision of dismissing the Appellant’s application under section 21A 2005 Act challenging the lawfulness of a Standard Authorisation made under Schedule A1 of the MCA authorizing the deprivation of his son’s, the first respondent’s liberty.

Moses, Black, Gloster LJJ
[2013] EWCA Civ 1661, [2014] 1 WLR 3773
Bailii
Mental Capacity Act 2005 21A
England and Wales
Citing:
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 28 November 2021; Ref: scu.519324

Rance v Mid-Downs Health Authority: 1991

A child is born alive: ‘if, after birth, it exists as a live child, that is to say, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother.’

Brooke J
[1991] 1 QB 587
England and Wales
Cited by:
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 28 November 2021; Ref: scu.211404