Category: Health

A Local Authority v JB: SC 24 Nov 2021

The LA sought a declaration as to JB’s lack of capacity to consent to sexual relations.

Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, Lady Rose
[2021] UKSC 52
Bailii, Bailii Press Summary, Bailii Issues and Facts
Mental Capacity Act 2005
England and Wales
Citing:
Appeal from – A Local Authority v JB CA 11-Jun-2020
The LA sought a declaration as to the capacity of JB to consent to sexual relations. . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 26 November 2021; Ref: scu.670057

In re B (A Child): CA 13 Nov 2013

The mother had a long term history of severe mental health. The local authority took steps to begin care proceedings so that the child might be taken from her at birth. Hearing of these plans, she moved first to a different area, and then to Sweden. She and the child returned to visit the maternal grandmother, and then when the authority began its steps, she resisted saying that since they were now ordinarily resident in Sweden, the court had no jurisdiction. She now appealed against rejection of that claim.
Held: The matter was governed by Brussells II.

McFarlane, Gloster, Floyd LJJ
[2013] EWCA Civ 1434, [2014] 2 WLR 1384, [2013] WLR(D) 461
Bailii, WLRD
European Council regulation No. 2201/2003
England and Wales

Children, Health

Updated: 25 November 2021; Ref: scu.517647

W Healthcare NHS Trust v KH: CA 17 Sep 2004

The patient was a lady aged 59, suffering multiple sclerosis. She had lost mental capacity to make her own decisions many years before. She appealed against a refusal of an order allowing the doctors to bring her life to an end.
Held: The appeal failed: ‘The judge came to the conclusion was that in KH’s present state he was unable to say that life prolonging treatment would provide no benefit, and that death by, in effect, starvation would be even less dignified than the death which she will face in due course if kept artificially alive for more weeks or months or possibly years.’, and as a cort of appeal it was not proper to inrterfere with his assessment of the facts.

Brooke LJ VP, Clarke LJ, Maurice Kay J
[2004] EWCA Civ 1324, [2005] 1 WLR 834
Bailii
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 23 November 2021; Ref: scu.517240

Re A: FD 1992

The law treats death as meaning brain stem death.
The Court made a declaration that a 19 month old child was ‘dead for all legal, as well as medical, purposes.’ In doing so, Johnson J held that, in consequence of the conclusion as to the child’s death, it was not possible for the court to exercise the inherent jurisdiction that it would have over a live child either as a ward of court or otherwise. He did, however, hold that the court retained jurisdiction to make a declaration as to death and to declare that it would not be unlawful for the ventilator to be disconnected.

Mr Justice Johnson
[1992] 3 Med LR 303
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: 23 November 2021; Ref: scu.223696

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 interference with a fertilised egg, if it leads to the loss of the egg, involves the procuring of a ‘miscarriage’ within the meaning of the 1861 Act, even – and this is the important point – if the interference takes place before the egg has implanted in the wall of the womb.’ ‘The Court of King’s Bench, or its modern incarnation the Administrative Court, is no longer custos morum of the people. ‘ The 1861 Act was an ‘always speaking’ Act, and was to be interpreted according to our understanding now, not as in 1861. Also the word ‘miscarriage’ is an ordinary word and is not to be given a technical meaning. On current understanding, pregnancy began once the blastocyst had implanted in the endometrium. The morning after pill operated before that time, and was not an abortifacient. The Regulations were not unlawful. ‘There would in my judgment be something very seriously wrong, indeed grievously wrong with our system – by which I mean not just our legal system but the entire system by which our polity is governed – if a judge in 2002 were to be compelled by a statute 141 years old to hold that what . . . millions, of ordinary honest, decent, law abiding citizens have been doing day in day out for so many years is and always has been criminal. I am glad to be spared so unattractive a duty. ‘

Mr Justice Munby
Times 02-May-2002, Gazette 30-May-2002, [2002] EWHC 610 (Admin), [2002] EWHC 886 (Admin), (2002) 2 FLR 146
Bailii, Bailii
Offences against the Person Act 1861 58 59, Prescription Only Medicines (Human Use) Amendment (No 3) Order 2000 (SI 2000 No 3231), Abortion Act 1967, Human Fertilisation and Embryology Act 1990 2(3) 27
England and Wales
Citing:
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Attorney-General v Edison Telephone Company of London 1880
The 1869 Act gave the Postmaster-General a monopoly of transmitting telegrams. Telegrams were defined as messages transmitted by telegraph. A telegraph was defined to include ‘any apparatus for transmitting messages or other communications by means . .
Cited – Chard v Chard (otherwise Northcott), Haye, Winstanley, Lord and Norris FD 1956
If a person has not been heard of for seven years by those who would be likely to hear from them then, if proper inquiries have been made and there is no evidence to the contrary, the person is presumed to be dead. However, the mere fact of a seven . .
Cited – Duport Steels Ltd v Sirs HL 3-Jan-1980
Judiciary must Interpret, not Remedy the Law
The House emphasised the need for courts to be even handed in interpreting statutes dealing with industrial relations. Where the words of the statute are plain and unambiguous, the Court ought to give effect to that plain meaning.
Lord Diplock . .
Cited – Sulaiman v Juffali FD 9-Nov-2001
A talaq pronounced in England as between parties who were Saudi nationals was not to be recognised in English law as a valid extra judicial overseas divorce, even though it otherwise complied with Sharia law. Section 44(1)(a) provides that no . .
Cited – Harris v Harris; Harris v Attorney General FD 21-May-2001
The applicant had been committed for ten months for contempt, being in breach of family court injunctions. He applied to be released after two months on the basis that the unserved balance of the sentence be suspended. The court held that it had the . .
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 – 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 – 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 – Re A FD 1992
The law treats death as meaning brain stem death.
The Court made a declaration that a 19 month old child was ‘dead for all legal, as well as medical, purposes.’ In doing so, Johnson J held that, in consequence of the conclusion as to the . .
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
Mentioned – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd QBD 1995
A British consortium looked for assistance in providing a hydro-electric project on the Pergau river. One interested government department advised that it was not economical and an abuse of the overseas aid programme, but the respondent decided to . .
Mentioned – H v Norway ECHR 1992
Whether fertilised ovum has a right to life under Article 2. . .
Mentioned – Open Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
Mentioned – Regina v Commissioner for Local Administration ex parte Croydon London Borough Council QBD 1989
Delay in application.
Held: The commissioner’s powers cannot depend upon whether the complaint is well founded. He could only act where a complainant did not otherwise have an action at law for a remedy.
As long as no prejudice is . .
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
Cited – Regina v Criminal Injuries Compensation Board Ex Parte A HL 11-Mar-1999
A police doctor’s statement in a contemporary medical report that her findings were consistent with the claimant’s allegation had not been included in the evidence before the CICB when it rejected her claim for compensation.
Held: The decision . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
Cited – Rex v Phillips 1811
That a woman had not conceived could not afford a defence to the offence under section II. . .
Cited – Regina v Dhingra CC 1991
(Crown Court at Birmingham) A doctor who had fitted a patient, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Cited – Sutherland v Stopes HL 1925
Dr Marie Stopes failed in her attempt to reverse the verdict against her in libel proceedings she had brought in relation to a book which criticised what it called her ‘monstrous campaign of birth control’ and opined, looking back to the events of . .
Cited – Rex v Scudder 1828
. .
Cited – Rex v Goodhall 1846
Proof of pregnancy was unnecessary to establish an offence under the Act of procuring a miscarriage. . .
Cited – Bradlaugh v The Queen 1877
Charles Bradlaugh and Mrs Annie Besant were prosecuted for publishing a treatise on contraceptive methods entitled the Fruits of Philosophy which had originally been published in the United States of America in 1832. They were prosecuted for . .
Cited – Bradlaugh v The Queen CA 1878
Conviction for publishing an obscene libel (abortion manual) overturned. . .
Cited – In Re Besant ChD 18-May-1878
Mrs Besant had been prosecuted for publishing an obscene libel in the form of a book on abortion.
Held: The publication of the book was in itself sufficient grounds for removing Mrs Besant’s seven year old daughter from her mother’s custody. . .
Cited – In Re Besant CA 9-Apr-1879
The appellant challenged an order removing her children after she had been prosecuted for publishing an obscene libel, in the form of a book on abortion.
Held: The appeal was dismissed. The court removed the daughter of Annie Besant and the . .
Cited – Regina v Dhingra CC 1991
(Crown Court at Birmingham) A doctor who had fitted a patient, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case . .
Cited – Regina v Dhingra CC 1991
(Crown Court at Birmingham) A doctor who had fitted a patient, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case . .
Cited – Firth v Firth 25-Jun-1941
Langton J said: ‘[Counsel] said that it was a matter of common knowledge that young people, for a period, at any rate, after their marriage had intercourse only with the intervention of contraceptives. On this part of his common knowledge I can only . .
Cited – Baxter v Baxter PC 1947
The House considered whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a).
Held: She was not, for a marriage may be . .
Cited – 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 . .
Cited – The Attorney General (ex rel The Society for the Protection of Unborn Children Ireland Ltd) v Open Door Counselling Ltd and Dublin Wellwoman Centre Ltd 1988
(High Court in Ireland) Hamilton P said: ‘Sections 58 and 59 of the Offences Against the Person Act 1861 protected and protect the foetus in the womb and having regard to the omission of the words ‘Quick with child’ which were contained in the . .
Cited – Open Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
Cited – Regina v Price (Herbert) CACD 1989
A woman went to consult the defendant, a doctor, as she thought she was pregnant and did not wish to have the child. It was common ground that she told the defendant she thought she was some three months pregnant, that she desired not to have the . .
Cited – Regina v Trim 1943
(Supreme Court of Victoria) Section 62 of the Crimes Act 1928 made it an offence to do certain acts ‘with intent to procure the miscarriage of any woman’, specifically in the context of an argument (rejected by the court) that it was a defence if . .
Cited – Munah Binti Ali v Public Prosecutor 1958
(Court of Appeal of Malaya) Thomson CJ: ‘it is quite clear that the expression ’causes a woman with child to miscarry’ means to cause her to lose from the womb prematurely the products of conception and . . therefore there can be no offence under . .
Cited – Thompson v Nixon QBD 1966
The court felt bound to follow the interpretation of the meaning of bailee in the 1916 Act from Matthews, even if, given the freedom to do so it would have interpreted it differently: ‘the present case falls four square within the decision in Reg v . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Attorney-General v Edison Telephone Company of London 1880
The 1869 Act gave the Postmaster-General a monopoly of transmitting telegrams. Telegrams were defined as messages transmitted by telegraph. A telegraph was defined to include ‘any apparatus for transmitting messages or other communications by means . .
Cited – King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines HL 28-Feb-2002
Psychiatric Injury under Warsaw Convention
The applicants were passengers who claimed damages for psychiatric injury, after accidents in aircraft.
Held: The Convention created strict liability on air carriers, but explicitly restricted damages to be payable for ‘bodily injury’. That . .
Cited – Regina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
Cited – King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines HL 28-Feb-2002
Psychiatric Injury under Warsaw Convention
The applicants were passengers who claimed damages for psychiatric injury, after accidents in aircraft.
Held: The Convention created strict liability on air carriers, but explicitly restricted damages to be payable for ‘bodily injury’. That . .
Cited – Preston-Jones v Preston-Jones HL 1951
There are some medical matters of which the court has judicial knowledge, such as the normal period of human gestation. At common law the presumption of legitimacy could only be rebutted by proof beyond reasonable doubt. Proof of adultery in . .
Cited – Birmingham City Council v Oakley HL 29-Nov-2000
When considering if premises fell within the section, and were ‘in such a state as to be prejudicial to health’, the court must consider some feature of the premises which was in itself prejudicial. An arrangement of rooms which was unsatisfactory . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .

Cited by:
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .

Lists of cited by and citing cases may be incomplete.

Crime, Health

Updated: 23 November 2021; Ref: scu.170211

A Local Authority v JB: CA 11 Jun 2020

The LA sought a declaration as to the capacity of JB to consent to sexual relations.

Sir Andrew McFarlane P, Singh, Baker LJJ
[2020] EWCA Civ 735, [2020] WLR(D) 336, [2020] 3 WLR 1014, (2020) 23 CCL Rep 449, [2020] COPLR 550, [2021] Fam 37, [2021] 1 All ER 1103, (2020) 175 BMLR 52, [2021] 1 FLR 264
Bailii, WLRD
Mental Capacity Act 2005 3(1)
England and Wales
Cited by:
Appeal from – A Local Authority v JB SC 24-Nov-2021
The LA sought a declaration as to JB’s lack of capacity to consent to sexual relations. . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 25 November 2021; Ref: scu.651713

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

[2021] EWHC 1426 (Fam), [2021] WLR(D) 339, [2021] 4 WLR 95
Bailii, Judiciary, WLRD
England and Wales
Cited by:
Appeal from – 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. . .
See Also – Manchester University NHS Foundation Trust v Fixsler and Others FD 6-Oct-2021
. .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 25 November 2021; Ref: scu.663811

Winch v Jones: CA 1986

The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: ‘section 139 protects the defendant unless and until the applicant obtains leave. This in itself is an added protection of considerable value [over and above the ordinary strike out provisions]. As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of the process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the [Mental Health] Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed.’ and ‘To be more specific, there are two fundamental difficulties. First, mental patients are liable, through no fault of their own, to have a distorted recollection of facts which can, on occasion, become pure fantasy. Second, the diagnosis and treatment of mental illness is not an exact science and severely divergent views are sometimes possible without any lack of reasonable care on the part of the doctor.’

Sir John Donaldson MR
[1986] QB 296
Mental Health Act 1983 8139
England and Wales
Cited by:
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – Johnston v Chief Constable of Merseyside Police QBD 20-Nov-2009
The proposed claimant sought leave under the 1983 Act to bring an action for assault and false imprisonment, and further a disapplication of the limitation period to allow a claim out of time. The defendant said that the proposed claimant had been . .
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .

Lists of cited by and citing cases may be incomplete.

Health, Litigation Practice

Updated: 25 November 2021; Ref: scu.226022

AM v South London and Maudsley NHS Foundation and Another: UTAA 6 Aug 2013

The tribunal considered the approach to be taken by the First-tier Tribunal (the FTT) and other decision makers under the Mental Health Act 1983 (the MHA) when treatment and authorisation of a deprivation of liberty of the relevant patient might be given under the Mental Capacity Act 1985.

[2013] UKUT 365 (AAC)
Bailii
Mental Health Act 1983, Mental Capacity Act 1985

Health

Updated: 22 November 2021; Ref: scu.516780

Nicklinson and Another, Regina (on The Application of) v A Primary Care Trust: CA 31 Jul 2013

The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia was murder, and as to whether the doctrine of necessity provided a defence was long and clearly established in law, and it was not proper to depart from it by judcial law making under the guise of article 8.
Nevertheless, the Director of Public Prosecutions’ policy failed adequately under article 8 to make clear whether a helper would be prosecuted in cases where the helper had no close or emotional connection with the victim.
Lord Dyson MR and Elias LJ (majority) held: ‘Para 43(14) is particularly problematic. How does it apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In our view, the Policy should give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care. In short, we accept the submission of Mr Havers that the Policy does not provide medical doctors and other professionals with the kind of steer . . that it provides to relatives and close friends acting out of compassion’.
Lord Judge CJ, dissenting, said: ‘ . . it seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance.
Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy . . deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle . . are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable AM, or anyone who assists him, to make an informed decision about the likelihood of prosecution.’

Lord Judge CJ, Lord Dyson MR, Elias LJ
[2013] EWCA Civ 961, [2013] WLR(D) 326
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Citing:
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 – 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 – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Appeal from – Nicklinson, Regina (on The Application of) v Ministry of Justice Admn 16-Aug-2012
The claimants each suffered ‘locked in syndrome’ after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
See Also – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited by:
Appeal from – 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 . .
At CA – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .
Cited – Kenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .

Lists of cited by and citing cases may be incomplete.

Crime, Health, Human Rights

Updated: 18 November 2021; Ref: scu.514242

Regina (on the Application IH) v Nottinghamshire Healthcare NHS Trust and Others: Admn 5 Dec 2001

Whether the 1983 Act, and in particular its provisions governing the conditional discharge and deferral of conditional discharge of ‘restricted patients’, are compatible with Article 5 of the European Convention on Human Rights.

[2001] EWHC Admin 1037
Bailii
Mental Health Act 1983, European Convention on Human Rights
England and Wales
Citing:
Appealed to – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .

Cited by:
Appeal from – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 17 November 2021; Ref: scu.167344

Regina (Kenneally) v Snaresbrook Crown Court: Admn 27 Nov 2001

That a mentally disturbed defendant may cause embarrassment by his behaviour in court was no reason for him not to be brought to court to be present when an order detaining him under the Act was to be made. The words of section 51(5) must be construed restrictively, and it was not to be applied where all that was involved was possible inconvenience for the court and distress for the detainee. The court has power to quash an order made by the Crown court where it is made without jurisdiction and there is no alternative remedy. The word ‘inappropriate’ must be construed restrictively: ‘A high degree of disablement or relevant disorder must be present. The section does not apply in a situation in which all that is involved is possible inconvenience for the court and inevitable distress for the defendant and others likely to be concerned in a trial, if a trial is held.’

Lord Justice Pill, Mrs Justice Rafferty and Mr Justice Tomlinson
Times 17-Dec-2001, [2001] EWHC Admin 968, [2002] QB 1169, [2002] 2 WLR 1430, [2002] MHLR 53, [2002] ACD 46,
Bailii
Mental Health Act 1983 51
England and Wales
Cited by:
Cited – Regina (Crown Prosecution Service) v Guildford Crown Court QBD 4-Jul-2007
The defendant had been convicted of rape. The judge had decided that an extended sentence was appropriate, and added four years to the seven year sentence under section 227. However the judge had no jurisdiction to do so, he retired on the same day . .
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 . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Health

Updated: 17 November 2021; Ref: scu.167113

A Hospital NHS Trust v LP and Another: FD 25 Jul 2019

‘welfare of a thirteen-year-old boy called P. Yesterday, very sadly, P was involved in a very serious road traffic accident in which he sustained multiple injuries which are life threatening, those injuries are set out in the report of one of his treating doctors that is before the court.
I am required to decide on an urgent basis whether it is in P’s best interest, should his condition deteriorate suddenly, to be treated by way of blood or products in circumstances where consent for such treatment cannot be forthcoming either from P, by reason of him being in an induced coma, or from his mother and father, who are committed and conscientious Jehovah’s Witnesses. The parents are aware that the application is being made and have attended this hearing by telephone from the hospital.’

Mr Justice MacDonald
[2019] EWHC 2989 (Fam)
Bailii
England and Wales

Health

Updated: 16 November 2021; Ref: scu.648642

An NHS Foundation Trust v AB and Others: FD 21 Oct 2020

‘application by an NHS Foundation Trust for a declaration that AB by reason of her minority lacks capacity to consent to or refuse cataract surgery and associated care and treatment, and an order that is in AB’s best interests for her to undergo cataract surgery in both eyes, and that to the extent that admitting AB to the hospital for the surgery and consequential care is against her wishes and constitutes a deprivation of her liberty, such deprivation is lawful.’

Mrs Justice Lieven DBE
[2020] EWHC 3221 (Fam)
Bailii
England and Wales

Health

Updated: 16 November 2021; Ref: scu.656329

Wyatt v Portsmouth NHS Trust and Another: FD 21 Apr 2005

Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed improvements. They sought a revocation of the order.
Held: Charlotte had survived and made some small progress. Her doctors still however expected her to die. A doctor appointed by her family asserted that she might be treated, though still with very substantial difficulties. This amounted to a fundamental clash of philosophies of the doctors. In this case and after careful and anxious consideration, the judge was convinced by the majority medical opinion, and declined to make the order sought. Applying Glass, it would be wrong to await developments. The declaration should continue.
Hedley J said: ‘The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests’

Hedley J
[2005] EWHC 693 (Fam)
Bailii
England and Wales
Citing:
See Also – 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 – Re L (a child) (Medical Treatment: Benefit) FD 1-Nov-2004
(Date) . .
Cited – Regina v Portsmouth Hospitals NHS Trust (ex parte Glass) CA 21-Jul-1999
The courts can not intervene between a parent and her child’s doctors to control future medical care of the child. Such decisions must be made as they presented themselves. In such cases the child’s best interests took precedence over strict . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .

Cited by:
Appeal from – 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 . .
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 . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 15 November 2021; Ref: scu.224516

Re L (a child) (Medical Treatment: Benefit): FD 1 Nov 2004

(Date)

Dame Elizabeth Butler Sloss
[2004] EWHC 2713 (Fam), [2005] 1 FLR 491
England and Wales
Citing:
Approved – 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 by:
Cited – Wyatt v Portsmouth NHS Trust and Another FD 21-Apr-2005
Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed . .
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.

Children, Health

Updated: 15 November 2021; Ref: scu.226136

Radu v Germany (Legal Summary): ECHR 16 May 2013

ECHR Article 5-1-a
After conviction
Applicant’s continued placement in psychiatric hospital after expiry of his prison term: no violation
Facts – In 1995 the applicant was convicted of homicide and sentenced to eight and a half years’ imprisonment and placement in a psychiatric hospital on grounds of diminished responsibility. In making the order for the applicant’s placement, the sentencing court relied on expert evidence indicating that the applicant suffered from a serious personality disorder characterised by violent outbursts and diminished capability to control his acts and was likely to kill again if he found himself in a similar conflict situation. No appeal was lodged against that order, which therefore became final. After spending four years in prison, the applicant was transferred to a psychiatric hospital in 1998. However, in subsequent proceedings for review of the applicant’s detention, the medical director of the hospital concluded that the applicant’s placement was wrongful as, although he had an ‘accentuated personality’ and was very likely to reoffend if released, the applicant was not in fact suffering from a persisting pathological mental disorder and lacked the motivation to complete a course of therapy. The court dealing with the execution of sentences then ordered his return to prison, where he served the remainder of his prison sentence. In the meantime, however, the court of appeal upheld a decision by the regional court not to declare the applicant’s placement in a psychiatric hospital terminated, despite further expert psychiatric evidence confirming the medical director’s view that the applicant had not been suffering from a serious personality disorder diminishing his criminal responsibility at the time the offence was committed. The court of appeal considered that even though the sentencing court’s order for the applicant’s placement in a psychiatric hospital was the result of an erroneous legal qualification, that qualification could not be corrected by the courts dealing with the execution of sentences as to do so would violate the constitutional principle of the finality of judicial decisions. Accordingly, after completing his prison sentence in October 2003 the applicant was transferred to a psychiatric hospital. The domestic courts came to a like conclusion on a further review of the applicant’s psychiatric placement in 2006 and the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
In his application to the European Court, the applicant complained that his continued confinement in a psychiatric hospital had violated his right to liberty. His detention had been prolonged despite the fact that it had been established that he did not suffer and had in fact never suffered from a condition diminishing or excluding his criminal responsibility.
Law – Article 5-1 (a): The Court firstly had to establish whether there was a sufficient causal connection between the applicant’s conviction by the sentencing court in 1995 and his continuing deprivation of liberty from 2006 onwards. In that connection, it noted that both the sentencing court and the courts dealing with the execution of sentences agreed that the applicant suffered from a personality disorder and was likely to commit further offences if released. Further, even though they disagreed on the legal qualification of that disorder, the courts dealing with the execution of sentences had accepted that the classification by the sentencing court had acquired legal force and could not be changed. In that, connection, the Court noted that a court’s reliance on the findings in a final judgment of a criminal court to justify a person’s detention, even if such findings were or may have been wrong, did not, as a rule, raise an issue under Article 5-1: a flawed conviction would render a detention unlawful only if the conviction were the result of a flagrant denial of justice, which was not the case here. Given that the courts dealing with the execution of sentences had pursued the aims of protecting the public and providing treatment for the applicant’s personality disorder, the Court was satisfied that their decision not to release the applicant had been based on grounds consistent with the aims pursued by the sentencing court when ordering his detention in a psychiatric hospital. There therefore remained a sufficient causal connection for the purposes of sub-paragraph (a) of Article 5-1 between the applicant’s conviction in 1995 and his continuing detention in a psychiatric hospital. Such continuation of the applicant’s detention had a legal basis in domestic law, which under the domestic jurisprudence had been foreseeable in his case. Furthermore, the domestic courts had given detailed reasons for their decisions and their interpretation of the applicable provision of domestic law was aimed at protecting the finality of the sentencing court’s judgment, which could not be seen as contravening as such the purpose of Article 5. Finally, the applicant had not been arbitrarily deprived of his liberty since the domestic courts’ application of the domestic law did not render his release impossible as soon as it could be concluded that he would not commit any further unlawful acts. As the applicant had not yet met that condition, the execution of the detention order against him had not been suspended. Therefore, the order for the applicant’s continued confinement in a psychiatric hospital was ‘lawful’ and ‘in accordance with a procedure prescribed by law’, as required by Article 5-1.
Conclusion: no violation (five votes to two).

20084/07 – Legal Summary, [2013] ECHR 604
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Radu v Germany ECHR 3-Jul-2012
. .

Cited by:
Summary – Radu v Germany ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Health

Updated: 15 November 2021; Ref: scu.512073

CM v The Executor of The Estate of EJ and Others: FD 14 Jun 2013

CM, a medical doctor stoppd in the street and atended a woman who had fallen from a building, and later died. In caring for her, she had contact with the lady’s blood. Her own hands had broken skin, anf being afraid of blood borne disease sought an order for blood to be taken for analysis.
Held: Granted

Cobb J
[2013] EWHC 1680 (Fam)
Bailii
Human Tissue Act 2004
England and Wales

Coroners, Health

Updated: 14 November 2021; Ref: scu.510875

Evans v United Kingdom: ECHR 7 Mar 2006

The claimant had entered into fertilisation treatment with her boyfriend. They both signed an agreement under which the fertilised sperm were only later to be implanted with the agreement of both. The couple separated, and the potential father withdrew his consent to the treatment, and the woman was refused implantation. She complained of interference with her article 8 rights.
Held: Her claim failed. The Court will generally allow the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.
The 1990 Act had been passed after detailed consideration and consultation. It had been explained to the applicant that the completion of the treatment depended upon the continuing consent of her partner, and she had signed to agree to this. An embryo did not itself have a right to life. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted.

C.L. Rozakis, P
Times 17-Mar-2006, 6339/05, [2006] ECHR 200, [2007] ECHR 264, [2007] ECHR 265, (2008) 46 EHRR 34, [2007] 2 FCR 5, [2007] 1 FLR 1990, (2007) 95 BMLR 107, [2007] Fam Law 588, 22 BHRC 190
Worldlii, Bailii, Bailii, Bailii PR
European Convention on Human Rights 8, Human Fertilisation and Embryology Act 1990
Human Rights
Cited by:
See Also – Evans v The United Kingdom ECHR 22-Nov-2006
. .
See Also – Evans v United Kingdom ECHR 10-Apr-2007
The claimant said that the English law on assisted conception infringed her right to family life. She had began treatment with her partner, and was given a cycle of in-vitro fertilisation before her cancerous condition required removal of her . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Health

Leading Case

Updated: 12 November 2021; Ref: scu.239579

Regina v C: HL 30 Jul 2009

Consent to Sex Requires Capacity

The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction restored. The case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to ‘weigh [that information] in the balance to arrive at [a] choice’.
However the 2003 Act ‘puts the matter beyond doubt. A person is unable to refuse if he lacks the capacity to choose whether to agree to the touching ‘whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason’.
Provided that the inability to refuse is ‘because of or for a reason related to a mental disorder’, and the other ingredients of the offence are made out, the perpetrator is guilty.
The words ‘for any other reason’ are clearly capable of encompassing a wide range of circumstances in which a person’s mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it.’
and ‘Once it is accepted that choice is an exercise of free will, and that mental disorder may rob a person of free will in a number of different ways and in a number of different situations, then a mentally disordered person may be quite capable of exercising choice in one situation but not in another. The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself on 27 June 2007. The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant.’

Lord Hope of Craighead, Lord Rodger of Earlsferr, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance
[2009] UKHL 42, Times 07-Aug-2009, [2010] 1 Cr App R 7, [2010] Crim LR 75, [2009] 4 All ER 1033, [2009] 1 WLR 1786
Bailii
Sexual Offences Act 2003 30(2)(b)
England and Wales
Citing:
Appeal from – C, Regina v CACD 2008
The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder . .
Cited – X City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .
Cited – NHS Trust v T (adult patient: refusal of medical treatment) FD 28-May-2004
The patient had a history of self harming leading to dangerously low haemoglobin levels. She knew that if she refused a blood transfusion she might die; nevertheless she believed that her blood was evil and that the healthy blood given her in a . .
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 – 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 – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .

Lists of cited by and citing cases may be incomplete.

Crime, Health

Updated: 11 November 2021; Ref: scu.368924

X City Council v MB and others; re MAB: FD 13 Feb 2006

The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married.

Munby J
[2006] EWHC 168 (Fam), [2006] 2 FLR 968.
Bailii
England and Wales
Citing:
Cited – Regina v Linekar CACD 21-Oct-1994
L appealed against his conviction for rape. His victim was a woman working as a prostitute. He said that he had simply made off afterwards without payment. He was convicted on the basis that he had procured the act by a false pretence by him that he . .
Cited – Baxter v Baxter PC 1947
The House considered whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a).
Held: She was not, for a marriage may be . .

Cited by:
Cited – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .
Applied – C, Regina v CACD 2008
The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder . .
Cited – Regina v C HL 30-Jul-2009
Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction . .
Cited – D Borough Council v AB CoP 28-Jan-2011
The court was asked whether A, an adult male with learning disability had capacity to consent to sexual relations, and in particular what test was to be applied. . .

Lists of cited by and citing cases may be incomplete.

Health, Family

Leading Case

Updated: 11 November 2021; Ref: scu.245699

Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care: Admn 23 Sep 2021

Foetus has no Established Human Rights

The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the readiness to abort foetuses with identified Down’s genes – more than 50% were aborted.
Held: Section 1(1)(d) does not interfere with the Claimants’ Article 8 rights nor did it fall within the ambit of Article 8 for the purposes of Article 14.
There is no positive decision of the European Court of Human Rights (or even the former Commission) which decides that a foetus is protected by the Convention rights, including in particular Article 3. In accordance with the Ullah principle, the domestic courts must follow the clear and constant jurisprudence in Strasbourg but, in the present context, the clear and constant jurisprudence is not in favour of the submission made

Lord Justice Singh and Mrs Justice Lieven
[2021] EWHC 2536 (Admin), CO/2066/2020
Bailii, Judiciary Summary, Judiciary
Abortion Act 1967 1(1)(d), European Convention on Human Rights, Infant Life Preservation Act 1929 1, UN Convention on the Rights of Persons with Disabilities 2006, Convention on the Elimination of Discrimination Against Women 1979, Congenital Disabilities (Civil Liability) Act 1976
England and Wales
Citing:
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
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 – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Boso v Italy ECHR 5-Sep-2002
The applicant was married. In 1984 his wife, who was pregnant, decided to have an abortion despite his opposition. Her pregnancy was terminated on 10 October 1984.
On 8 November 1984 the applicant brought an action against his wife in the San . .
Cited – RR v Poland ECHR 26-May-2011
The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not . .
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – SC, CB and 8 Children, Regina (on The Application of) v Secretary of State for Work and Pensions and Others SC 9-Jul-2021
The Supreme Court was asked to decide whether the ‘two child limit’, a provision of primary legislation which restricts payment of amounts of subsistence benefit for children to the first two children in a family, is incompatible with the . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – The Northern Ireland Human Rights Commission, Re Judicial Review QBNI 30-Nov-2015
The Court concludes that in Northern Ireland:
(i) There is no general right to abortion whether under the common law or under statute.
(ii) The Northern Ireland Human Rights Commission (‘the Commission’) has legal standing under the . .
Cited – Jepson v Chief Constable of West Mercia Police Admn 2003
An abortion had been carried out of a foetus which was of more than 24 weeks’ gestation. The foetus had been diagnosed as suffering from a bilateral cleft lip and palate. The abortion was carried out pursuant to section 1(1)(d) of the 1967 Act. The . .
Distinguished – Paton v British Pregnancy Advisory Service Trustees QBD 1979
Sir George Baker P said: ‘The case put to me finally by Mr. Rankin . . is that while he cannot say here that there is any suggestion of a criminal abortion nevertheless if doctors did not hold their views, or come to their conclusions, in good faith . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Carson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
Cited – Aksu v Turkey ECHR 15-Mar-2012
Dangers of negative sterotyping . .
Cited – McConnell and Another, Regina (on The Application of) v The Registrar General for England and Wales CA 29-Apr-2020
Whether the First Appellant, Alfred McConnell (whose name was at one time anonymised to TT), a transgender man and holder of a gender recognition certificate, is entitled to be registered as the ‘father’, or otherwise ‘parent’ or ‘gestational . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 11 November 2021; Ref: scu.668232

Gross v Switzerland: ECHR 14 May 2013

gross_switzerlandECHR2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for private life
Lack of clear legal guidelines regulating the prescription of a drug to enable individual not suffering from a terminal illness to commit suicide: violation
Facts – For many years, the applicant had expressed the wish to end her life as she was becoming increasingly frail with the passage of time and was unwilling to continue suffering the decline of her physical and mental faculties. She was found to be able to form her own judgement. Following a failed suicide attempt, she decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. However, four medical practitioners declined to issue the requested prescription. At least two of them declined her request on the grounds that they considered they were prevented from doing so by the medical practitioners’ code of conduct or feared lengthy judicial proceedings and, possibly, negative professional consequences. The administrative courts rejected the applicant’s appeal.
Law – Article 8: The applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life fell within the scope of her right to respect for her private life under Article 8 of the Convention. The case primarily raised the question whether the State had failed to provide sufficient guidelines defining whether medical practitioners were authorised to issue a medical prescription to a person in the applicant’s condition and, if so, under what circumstances.
In Switzerland inciting and assisting suicide were punishable only where the perpetrator of such acts was driven to commit them by ‘selfish motives’. Under the case-law of the Swiss Federal Supreme Court, a doctor was entitled to prescribe sodium pentobarbital in order to allow his patient to commit suicide, provided that specific conditions laid down in the Federal Supreme Court’s case-law were fulfilled. The Federal Supreme Court, in its case-law on the subject, had referred to the medical ethics guidelines on the care of patients at the end of their life, which had been issued by a non-governmental organisation and did not have the formal quality of law. Furthermore, the guidelines only applied to patients whose doctor had arrived at the conclusion that a process had started which, as experience had indicated, would lead to death within a matter of days or a few weeks. As the applicant was not suffering from a terminal illness, her case clearly did not fall within the scope of application of those guidelines. The Government had not submitted any other material containing principles or standards which could serve as guidelines. This lack of clear legal guidelines was likely to have a chilling effect on doctors who would otherwise have been inclined to provide someone such as the applicant with the requested medical prescription. The uncertainty as to the outcome of her request in a situation concerning a particularly important aspect of her life must have caused the applicant a considerable degree of anguish. This state of anguish and uncertainty would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners were authorised to issue the requested prescription in cases where an individual had come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death was not imminent as a result of a specific medical condition. The Court acknowledged that there may be difficulties in finding the necessary political consensus on such controversial questions with a profound ethical and moral impact. However, these difficulties were inherent in any democratic process and could not absolve the authorities from fulfilling their task therein. The foregoing considerations were sufficient to conclude that Swiss law, while providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, did not provide sufficient guidelines ensuring clarity as to the extent of this right.
As regards the substance of the applicant’s request to be granted authorisation to acquire a lethal dose of sodium pentobarbital, it was primarily up to the domestic authorities to issue comprehensive and clear guidelines. Accordingly, the Court confined itself to the conclusion that the absence of clear and comprehensive legal guidelines had violated the applicant’s right to respect for her private life under Article 8 of the Convention, without in any way taking up a stance on the substantive content of such guidelines.
Conclusion: violation (four votes to three).

67810/10 – Chamber Judgment, [2013] ECHR 429, 67810/10 – Legal Summary, [2013] ECHR 580, [2014] ECHR 1362
Bailii, Bailii, Bailii
European Convention on Human Rights 8-1
Cited by:
See Also – Gross v Switzerland ECHR 30-Sep-2014
ECHR Relying on Article 8 of the Convention, the applicant alleged, in particular, that her right to decide how and when to end her life had been breached. . .
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.

Human Rights, Health

Updated: 11 November 2021; Ref: scu.511075

Evans v Amicus Healthcare Ltd and others: CA 25 Jun 2004

The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked within a strict statutory framework. His task was to calculate the application of that law, and then to check its compliance with Human Rights law. The 1990 Act said that the embryos could only be stored or used with the consent of both parties. Once mutuality is required at the point where treatment services are being provided, the requirement of continuing consent is inescapable. The refusal of treatment was an interference with the right to private life of the applicant, but nevertheless it was proportionate. There are two pillars in the 1990 Act, the interests of the child and the consent of the two persons who are to be the parents of the child and consent to be treated together or to the use of their genetic material. The appeal failed.

Lord Justice Sedley Lord Justice Thorpe Lady Justice Arden
[2004] EWCA Civ 727, Times 30-Jun-2004, [2004] Fam Law 647, [2004] 2 FLR 766, [2004] 2 FCR 530, [2004] 3 All ER 1025, (2004) 78 BMLR 181, [2005] Fam 1, [2004] 3 WLR 681
Bailii
Human Fertilisation and Embryology Act 1990, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Evans v Amicus Healthcare Ltd and others; Hadley v Midland Fertility Services Ltd and Others FD 1-Oct-2003
The claimants and their former partners had undergone fertility treatment resulting in frozen embryos being kept pending possible implantation. The relationship had in each case failed, and the potential fathers had refused consent, but the . .
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 F (In Utero) 1988
A foetus prior to the moment of birth does not have independent rights or interests. . .
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
Cited – In re R (Parental responsibility: IVF baby) CA 19-Feb-2003
The mother and father of the child were not married, but had consented to the terms of their infertility treatment. The father donated his sperm, but the mother was only inseminated after they had separated. The mother appealed a declaration of . .
Cited – U v Centre for Reproductive Medicine CA 24-Apr-2002
The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said . .
Cited – Carltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Quintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
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 – Regina (P) v Secretary of State for the Home Department, Regina (Q) v Same QBD 1-Jun-2001
The Prison Service’s policy of refusing to allow children over the age of eighteen months to stay with their mother in prison was lawful. The impairment of family life was an inevitable and inherent part of the imposition of a sentence of . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – In Re W and B (Children: Care Plan) In Re W (Child: Care Plan) CA 7-Jun-2001
Courts should take additional powers under the Act for the management and implementation of care plans made in care proceedings. In these cases, an order had been made on the basis of a care plan which subsequently proved impossible to implement, . .

Cited by:
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.198405

Re X (A Child): FD 29 Oct 2020

Limited transfusion against young adults wishes

The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the basis of her belief and the fact that, recently, she was baptized in accordance with the teachings and the beliefs of her church.
Held: Though the opportunity to consider the issue properly was limited by its urgency, an order was made to allow a limited transfusion. ‘ in the final analysis, there may be situations, particularly where serious risk to health or life itself is concerned, where the duty of the court, although having regard to the views of a Gillick competent child, is to decline to give effect to them.
The overriding obligation of the court is to act in the best interests of X . . in the final analysis, the court has to take its own decision as to what is in the best interests of a young person and that, in an appropriate case, even if that young person is Gillick competent, it may be appropriate for the court to decide, with regret, but nonetheless firmly, not to give effect to the strongly held views and the strongly held religious beliefs of that young person. That is something the court is very slow to do. It is something the court is very reluctant to do and it will do it only – I put the matter descriptively rather than definitively – where there is clear evidence of a serious risk to health or possible death if the court does not intervene.

Sir James Munby
[2020] EWHC 3003 (Fam)
Bailii
England and Wales
Citing:
No longer reflects the law – Re W (a minor) (medical treatment: courts jurisdiction) CA 1992
An application was made for a declaration allowing a hospital to treat a girl aged 16 years suffering from anorexia nervosa against her wishes.
Held: The order was made. It is a feature of anorexia nervosa that it is capable of destroying the . .
No longer reflects the law – In Re R (A Minor) (Wardship: Consent to Treatment) CA 1992
A doctor may not operate without on a child the consent of the person apparently legally able to give consent: ‘It is trite that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that . .
Cited – Re T (Minors) (Custody: Religious Upbringing) CA 1975
(From 1975) Scarman LJ discussed the way courts should allow for religious beliefs (here the Jehovah’s Witnesses) in the context of a child’s welfare, saying that they deserved respect where they were not ‘immoral or socially obnoxious’ and: ‘there . .
Cited – AC v Manitoba (Director of Child and Family Services) 26-Jun-2009
(Supreme Court of Canada) Constitutional law – Charter of Rights – Liberty and security of person – Fundamental justice – Medical treatment – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from . .
Cited – In re G (Children) (Education: Religious Upbringing) CA 4-Oct-2012
The parents, both once ultra orthodox Jews disputed the education of their children after their separation, and after the mother, though still Orthodox, ceased to be a member of the Chareidi community. . .

Lists of cited by and citing cases may be incomplete.

Children, Health, Human Rights

Updated: 11 November 2021; Ref: scu.656334

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 patient’s persecutory delusions might have prevented him from weighing the information relevant to having his leg amputated because of gangrene, which he was perfectly capable of understanding, but they did not.
Held: A person may have capacity to manage his affairs notwithstanding that he has schizophrenia, and did in this case.
Thorpe J said: ‘For the patient offered amputation to save life, there are three stages to the decision (1) to take in and retain treatment information, (2) to believe it and (3) to weigh that information, balancing risks and needs.’ and ‘the question to be decided is whether it has been established that C’s capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation.’ and ‘Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.’

Thorpe J
[1994] 1 WLR 290, [1994] 1 All ER 819
Mental Health Act 1983 Part III
England and Wales
Cited by:
Cited – London Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
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 – Regina v C HL 30-Jul-2009
Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction . .

Lists of cited by and citing cases may be incomplete.

Health

Leading Case

Updated: 11 November 2021; Ref: scu.258858

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 the antithesis of the right to life but the corollary of it, and the state has a positive obligation to protect both.
Held: The article reflected the sanctity of life, and cannot be interpreted as including a right to die. Some Convention rights have been interpreted to confer rights not to do that which is the antithesis of what there is an express right to do, but there was not a right not to experience the opposite of what the articles guarantee for articles 3, 4, 5 and 6. It was an impermissible step to proceed to the assertion that the state has a duty to recognise a right to be assisted to take one’s own life. The prohibition of assisted suicide is inconsistent with the Convention. ‘[Article 3] may be described in general terms as imposing a primary negative obligation on States to refrain from inflicting serious harm upon persons within their jurisdiction.’
‘As the court has had previous occasion to remark, the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . It can sometimes embrace aspects of an individual’s physical and social identity . . Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8 . . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world . . Though no previous case has established as such any right to self-determination as being contained in article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.’
‘The court would observe that the ability to conduct one’s life in a manner of one’s own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned.’

M Pellonpaa P
2346/02, (2002) 35 EHRR 1, [2002] ECHR 427, (2002) 66 BMLR 147, 12 BHRC 149, [2002] Fam Law 588, [2002] 2 FCR 97, [2002] All ER (D) 286 (Apr), [2002] 2 FLR 45
Worldlii, Bailii
European Convention on Human Rights 2 3 8 9 14, Suicide Act 1961 2(1)
Human Rights
Citing:
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
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 . .
At HL – 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 by:
Cited – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Cited – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
Applied – Regina (T) v the Secretary of State for the Home Department; similar CA 23-Sep-2003
The claimant asylum seeker had been refused benefits having failed to declare his application on entry. The Secretary now appealed a finding that the decision was flawed. Was the treatment of the applicant inhuman or degrading?
Held: No simple . .
Cited – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Zehnalova and Zehnal v Czech Republic ECHR 14-May-2002
The applicants were husband and wife and the wife was physically handicapped. They complained that their Article 8 rights were infringed because, in breach of Czech law, the authorities had failed to install facilities that would enable her to gain . .
Cited – N v the Secretary of State for the Home Department CA 16-Oct-2003
The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be . .
Cited – Regina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Cited – 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 . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another QBD 29-Oct-2008
The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 29-Oct-2008
The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Cited – AB, Regina (On the Application of) v Secretary of State for Justice and Another Admn 4-Sep-2009
The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the . .
Cited – N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA 24-Jul-2009
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . .
Cited – MAK and RK v The United Kingdom ECHR 23-Mar-2010
mak_ukECHR10
When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Nicklinson and Another, Regina (on The Application of) v A Primary Care Trust CA 31-Jul-2013
The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
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 . .
Cited – Janner, Regina (on The Application of) v The Crown Prosecution Service Admn 13-Aug-2015
The claimant challenged the decision that he should face trial on charges of historic sexual abuse. He was now elderly and said to be unfit to attend court or instruct his lawyers, suffering Alzheimers. He sought interim relief against being . .
Cited – Kenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .
Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Crime, Health

Leading Case

Updated: 10 November 2021; Ref: scu.170322

Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland: ECJ 23 Dec 2015

ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative restrictions – Measures having equivalent effect – Minimum price of alcoholic drinks calculated according to the alcoholic strength of the product – Justification – Article 36 TFEU – Protection of human life and health – Assessment by the national court
‘I consider that the existence of a CMO covering the wine sector does not prevent the national authorities from taking action in the exercise of their competence in order to adopt measures to protect health and, in particular, to combat alcohol abuse. However, where the national measure constitutes a breach of the principle of the free formation of selling prices that constitutes a component of the single CMO Regulation, the principle of proportionality requires that the national measure must actually meet the objective of the protection of human health and must not go beyond what is necessary in order to attain that objective.
As the commission suggests, I consider that the examination of the proportionality of the measure must be undertaken in the context of the analysis that must be carried out by reference to article 36 TFEU.
Consequently, I propose that the answer to the first question should be that the single CMO Regulation must be interpreted as meaning that it does not preclude national rules, such as those at issue, which prescribe a minimum retail price for wines according to the quantity of alcohol in the product sold, provided that those rules are justified by the objectives of the protection of human health, and in particular the objective of combating alcohol abuse, and do not go beyond what is necessary in order to achieve that objective.’
‘A barrier to the free movement of goods may be justified on one of the public interest grounds set out in article 36 TFEU or in order to meet overriding requirements. In either case, the restrictions imposed by the member states must none the less satisfy the conditions laid down in the court’s case law as regards their proportionality. In that regard, in order for national rules to comply with the principle of proportionality, it is necessary to ascertain not only whether the means which they implement are appropriate to ensure attainment of the objective pursued, but also that those means do not go beyond what is necessary to attain that objective: Berlington Hungary Tanacsado es Szolgaltato kft v Magyar Allam (Case C-98/14) [2015] 3 CMLR 45, para 64.
Although the words generally used by the court seem most frequently to result in only two different stages of the control of proportionality being distinguished, the intellectual exercise followed in order to determine whether a national measure is proportionate is generally broken down into three successive stages.
The first stage, corresponding to the test of suitability or appropriateness, consists in ascertaining that the act adopted is suitable for attaining the aim sought.
The second stage, relating to the test of necessity, sometimes also known as the ‘minimum interference test’, entails a comparison between the national measure at issue and the alternative solutions that would allow the same objective as that pursued by the national measure to be attained but would impose fewer restrictions on trade.
The third stage, corresponding to the test of proportionality in the strict sense, assumes the balancing of the interests involved. More precisely, it consists in comparing the extent of the interference which the national measure causes to the freedom under consideration and the contribution which that measure could secure for the protection of the objective pursued.’

R. Silva de Lapuerta, P
ECLI:EU:C:2015:845, [2015] EUECJ C-333/14, [2016] 1 WLR 2283, [2015] WLR(D) 544
Bailii, WLRD
Regulation (EU) No 1308/2013, TFEU 34
European
Citing:
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
Cited – Commission v Italy (Free Movement Of Goods) ECJ 10-Feb-2009
ecJ Failure of a Member State to fulfil obligations Article 28 EC Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ Prohibition on mopeds, motorcycles, motor tricycles and . .

Cited by:
At ECJ – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
At ECJ – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .

Lists of cited by and citing cases may be incomplete.

Commercial, Health

Updated: 10 November 2021; Ref: scu.565749

British Pregnancy Advisory Service v Secretary of State for Health: Admn 14 Feb 2011

The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical abortions in part self-administered.
Held: The request was refused. Parliament had passed the Act aware that future medical developments might allow medical rather than surgical abortions.
Section 1(3A) refers to treatment consisting primarily in the ‘use’ of medicines; it is not limited to the prescription of medicines. Furthermore the section does make clear Parliament’s decision that it is the Secretary of State, not the medical profession, who has the responsibility for approval of the place where the treatment may take place.

Supperstone J
[2011] EWHC 235 (Admin), [2011] 3 All ER 1012, [2011] 3 FCR 541, [2011] Med LR 191, (2011) 118 BMLR 172, [2012] 1 WLR 580
Bailii
Abortion Act 1967 1, Human Fertilisation and Embryology Act 1990
England and Wales
Citing:
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Janaway v Salford Area Health Authority HL 1-Feb-1988
The plaintiff took work as a secretary at a health centre, but objected to having to type out letters referring patients to an abortion clinic, saying that she conscientiously objected to participation in the process.
Held: Her appeal was . .
Cited – Boss Holdings Ltd v Grosvenor West End Properties and others HL 30-Jan-2008
The tenant sought to enfranchise the property under the 1967 Act. The freeholders replied that it was not a ‘house’ within the Act at the time of the notice. It had been built in the eighteenth century as a house, but the lower floors had been . .
Cited – Isle of Anglesey County Council and Another v The Welsh Ministries and others CA 20-Feb-2009
The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make . .

Cited by:
Main Judgment – British Pregnancy Advisory Service v Secretary of State for Health Admn 18-Mar-2011
. .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – British Pregnancy Advisory Service, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 5-Jun-2019
Abortion Time Limit statement was correct.
The Court considered ‘ the correct interpretation of the words, ‘the pregnancy has not exceeded its twenty-fourth week’ in s.1(1)(a) of the Abortion Act 1967 ‘ The guidance was challenged as the calculations. The date of the beginning of the . .

Lists of cited by and citing cases may be incomplete.

Health, Health Professions

Updated: 10 November 2021; Ref: scu.429679

Nicklinson v Ministry of Justice and Others: QBD 12 Mar 2012

The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Held: The case was arguable and should be allowed to proceed: ‘However, the point that the common law and the application of its principles is capable of development and change by the courts on a case by case basis does not mean that the courts should so develop or change the law, particularly when it is settled, and involves issues of policy and ethical issues on which there are differing and strongly held views.’

Charles J
124 BMLR 191, [2012] Med LR 383, (2012) 15 CCL Rep 427, [2012] WLR(D) 75, (2012) 124 BMLR 191, [2012] HRLR 16, [2012] EWHC 304 (QB)
WLRD, Bailii
Human Rights Act 1998 1 6
England and Wales
Citing:
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment) (No 2) CA 15-Nov-2000
The failure by the Official Solicitor to pursue an appeal where leave had been granted, in a case of an application to the court for leave to separate conjoined twins, which separation would lead to the death of one of them, would not of itself . .
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 – 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 – 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 – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL 11-Mar-1993
The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – In Re F (Adult: Court’s Jurisdiction) CA 25-Jul-2000
The local authority sought a declaration as to its rights to control the daily activities of an eighteen year old, who was incapable of managing her own affairs but was not subject to mental health legislation.
Held: There remained an inherent . .
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 – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .

Cited by:
See Also – Nicklinson, Regina (on The Application of) v Ministry of Justice Admn 16-Aug-2012
The claimants each suffered ‘locked in syndrome’ after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
See Also – Nicklinson and Another, Regina (on The Application of) v A Primary Care Trust CA 31-Jul-2013
The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia . .
See Also – 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, Crime, Human Rights

Updated: 10 November 2021; Ref: scu.451883

In Re D (Statutory Will); VAC v JAD and Others: ChD 16 Aug 2010

The protected person’s deputy sought authority for making a statutory will for her. An earlier Enduring Power had been found to be a forgery, and a later will was also doubted. The deputy had been appointed. A statutory will had been refused because the master said one was appropriate only where no will existed, and it was not a procedure to be used to challenge existing wills for doubt as to capacity or undue influence.
Held: The application succeeded: ‘Under section 4 (6)(a), one of the relevant factors to be considered by the Court in determining the protected person’s best interests are that person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity). A previous will is obviously a relevant written statement which falls to be taken into account by the Court. But the weight to be given to it will depend upon the circumstances under which it was prepared; and if it were clearly to be demonstrated that it was made at a time when the protected person lacked capacity, no weight at all should be accorded to it. Moreover, Parliament has rejected the ‘substituted judgment’ test in favour of the objective test as to what would be in the protected person’s best interests. Given the importance attached by the Court to the protected person being remembered for having done the ‘right thing’ by his will, it is open to the Court, in an appropriate case, to decide that the ‘right thing’ to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. ‘

Hodge QC J
[2010] EWHC 2159 (Ch), [2011] 1 All ER 859, [2010] WTLR 1511
Bailii
Mental Capacity Act 2005 4(6)(a)
England and Wales
Citing:
Cited – In re P (Statutory Will) ChD 9-Feb-2009
A request was made for a statutory will.
Held: The 2005 Act marked a radical departure from previous practice. A decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring . .
Cited – In re M; ITW v Z and Others (Statutory Will) FD 12-Oct-2009
The court considered a request for a statutory will under the 2005 Act.
Held: the Court of Protection has no jurisdiction to rule on the validity of any will. However, Munby J made three points: (1) that the 2005 Act laid down no hierarchy as . .

Lists of cited by and citing cases may be incomplete.

Health, Wills and Probate

Updated: 10 November 2021; Ref: scu.421525

Regina v Manchester City Council, ex parte Stennett etc: HL 25 Jul 2002

The applicants were former mental patients who had been admitted to hospital compulsorily under section 3. On their release they were to be given support under section 117. The authorities sought to charge for these services, and appealed a decision that the services should be free.
Held: Section 117 imposed a clear and free standing duty to provide support. The section was not a mere request to the authority to provide services under other provisions. Such patients might have greater needs and also have imposed on them restrictions. It was not inappropriate that support should be free.

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Steyn Lord Hutton Lord Millett
Times 29-Aug-2002, Gazette 17-Oct-2002, [2002] UKHL 34, [2002] BLGR 557, (2002) 5 CCL Rep 500, [2002] 4 All ER 124, [2002] 3 WLR 584, (2002) 68 BMLR 247, [2002] 2 AC 1127
House of Lords, Bailii
Mental Health Act 1983 3 117
England and Wales
Citing:
Appeal From – Regina v Richmond London Borough Council, Ex Parte Watson; Regina v Redcar and Cleveland Borough Council, Ex Parte Armstrong etc Admn 15-Oct-1999
. .

Cited by:
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
k_centralQBD2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – Stojak, Regina (on The Application of) v Sheffield City Council Admn 22-Dec-2009
The deceased had been detained as a mental patient and supported after her release, by her family financially. Her representatives now said that the respondent had failed in its obligation to provide support for no charge. The authority said that . .

Lists of cited by and citing cases may be incomplete.

Health, Benefits, Local Government

Leading Case

Updated: 10 November 2021; Ref: scu.174394

Petrova v Latvia: ECHR 24 Jun 2014

pterova_latviaECHR2007

ECHR Article 8-1
Respect for private life
Removal of organs for transplantation without knowledge or consent of closest relatives: violation
Facts – In 2002 the applicant’s adult son died in a public hospital in Riga as a result of serious injuries sustained in a car accident. The applicant subsequently discovered that her son’s kidneys and spleen had been removed immediately after his death without her knowledge or consent. Her complaint to the Prosecutor General was dismissed on the grounds that the organs had been removed in accordance with domestic law. The applicant had not been contacted because the hospital had no contact details and, as the law then stood, medical practitioners were only obliged to actively search and inform close relatives of possible organ removal if the deceased was a minor.
Law – Article 8: The applicant complained that she had not been informed about the possible removal of her son’s organs for transplantation purposes and had therefore been unable to exercise certain rights established under domestic law. Latvian law at the relevant time explicitly provided close relatives of the deceased, including parents, with the right to express their wishes regarding the removal of organs. The point at issue was therefore whether or not the law was sufficiently clear. The Government argued that when close relatives were not present at the hospital, national law did not impose an obligation to make specific inquiries with a view to ascertaining whether there was any objection to organ removal and that, in such cases, consent to removal could be presumed. However, the Court found that the way in which this ‘presumed consent system’ operated in practice in cases such as the applicant’s was unclear: despite having certain rights as the closest relative she was not informed – let alone provided with any explanation – as to how and when those rights could be exercised. The time it had taken to carry out medical examinations to establish the compatibility of her son’s organs with the potential recipient could have sufficed to give her a real opportunity to express her wishes in the absence of those of her son. Indeed, even the Minister of Health had expressed the opinion that the applicant should have been informed of the planned transplantation. Moreover, amendments had since been made to the relevant domestic law. The Court accordingly found that Latvian law as applied at the time of the death of the applicant’s son had not been formulated with sufficient precision or afforded adequate legal protection against arbitrariness.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

4605/05 – Chamber Judgment, [2014] ECHR 647, 4605/05 – Legal Summary, [2014] ECHR 805
Bailii, Bailii
European Convention on Human Rights 6 8-1

Human Rights, Health, Health Professions

Updated: 10 November 2021; Ref: scu.535176

TF, Regina (on the Application of) v Secretary of State for Justice: CA 18 Dec 2008

The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with an order as he left the prison. The court had said that there was no evidence to sugest that he could receive any treatment which might alleviate his condition, but allowed a discretionary inclusion of later acquired evidence to support this.
Held: The appeal was allowed. At the time of the decision, the respondent did not have the requirements set down by the statute. The reports later produced were from interviews which were not recent.

Waller LJ VP, Thomas LJ, Aikens LJ
[2008] EWCA Civ 1457, Times 06-Feb-2009
Bailii
Mental Health Act 1983 47
England and Wales
Citing:
Cited – Regina v Secretary of State for Home Office ex parte Gilkes Admn 21-Jan-1999
The prisoner challenged a decision to have her transferred to a mental hospital under scetion 47.
Held: It had not been reasonable for the Secretary of State to rely on one of the two medical reports she relied on. However since if the . .
Cited – Eshugbayi Eleko v Office Administering the Government of Nigeria HL 24-Mar-1931
The claimant sought a writ of habeas corpus.
Held: Lord Atkin said that in a habeas corpus case, ‘no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality . .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Cited – Murray v Ministry of Defence HL 25-May-1988
The plaintiff complained that she had been wrongfully arrested by a soldier, since he had not given a proper reason for her detention.
Held: The House accepted the existence of an implied power in a statute which would be necessary to ensure . .
Cited – Regina v Secretary of State for the Home Department ex parte Cheblak CA 1991
Because of the importance placed on the swift and efficient determination of lawfulness of the restraint, habeas corpus applications are given priority in the organisation of the business of the court.
In order to be permitted to present a . .
Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .

Lists of cited by and citing cases may be incomplete.

Health, Prisons

Updated: 10 November 2021; Ref: scu.278951

Z, Re (Recognition of Foreign Order): FD 8 Apr 2016

The court considered the exercise of the court’s powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union.
Held: The orders made by the Irish court were to stand as orders of the High Court of England and Wales

Baker J
[2016] EWHC 784 (Fam), [2016] WLR(D) 178, [2016] 3 WLR 791, [2016] Fam 375, [2016] Fam Law 684, [2017] 1 FLR 1236
Bailii, WLRD
England and Wales

Children, European, Health

Updated: 10 November 2021; Ref: scu.562141

MC (Algeria), Regina (on The Application of) v Secretary of State for The Home Department: CA 31 Mar 2010

The claimant challenged his detention under the 1971 Act, now appealing against refusal of judicial review. His asylum claims had been rejected, and he had been convicted of various offences, including failures to answer bail. He had failed to report as required to comply with the deportation requirements. He had been transferred to a prison because of his disruptive behaviour. A psychiatric report said he suffered from a personality disorder.
Held: Though there were doubts about the claimant’s treatment, and inexcusable delays, they were not fundamental, and proper treatment was now being arranged and his appeal failed. The breaks in detention and intervening offences meant that the claimant could not have it treated as one unbroken detention. The claimant’s behaviour warranted some form of detention, and his medical condition fell short of being a mental illness.

Sullivan LJ
[2010] EWCA Civ 347
Bailii
Immigration Act 1971 Sch 3
England and Wales
Citing:
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – Roberts v Chief Constable of Cheshire Constabulary CA 26-Jan-1999
The claimant had been detained at 11.25pm. His detention was not reviewed by an inspector until 7.45am the next morning, although it had been considered in the interim at 1.45am by an officer of junior rank. The plaintiff sued for unlawful . .
Cited – Abdi, Regina (on the Application of) v Secretary of State for the Home Department Admn 22-May-2009
The applicant had spent 30 months in administrative detention pending removal but was described as having ‘a long history of criminal offending. His convictions variously include two counts of indecent assault, robbery, burglary, assault on a police . .

Lists of cited by and citing cases may be incomplete.

Immigration, Prisons, Health

Updated: 10 November 2021; Ref: scu.406678

National Aids Trust v National Health Service Commissioning Board (NHS England): Admn 2 Aug 2016

NHS to make drug available

The claimant charity said that drugs (PrEP) prophylactic for AIDS / HIV should be made available by the defendant and through the NHS. The respndent said that the responsibility for preventative medicine for sexual health lay with local authorities.
Held: The claim succeeded. NHS England had misdirected itself in law when it concluded that it had no power to commission PrEP: ‘when the NHSA 2006 is considered both as a whole but also by reference to its specific provisions it has the following broad characteristics and purposes; First, it imposes broad duties and powers on NHS England to secure the provision of health services to the entirety of the population and nation wide; second, the duty includes all aspects of preventative medicine; third it exercises its powers and duties concurrently with other providers of services which includes the Secretary of State, CCGs and local authorities; fourth these services are to be provided comprehensively and in an integrated manner; fifth, the service is to be provided efficiently and so as to avoid inequalities of provision or outcome.’

Green J
[2016] EWHC 2005 (Admin), CO/2979/2016
Bailii, Judiciary
National Health Service Act 2006, National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, Local Authorities (Public Health Functions etc.) Regulations 2013
England and Wales
Citing:
Cited – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .
Cited – UBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
Cited – Harvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .
Cited – Solar Century Holdings Ltd and Others v Secretary of State for Energy and Climate Change Admn 7-Nov-2014
The court considered the admissibility of pre-legislative material as evidence to support the interpretation of a statute. . .
Mentioned – Solar Century Holdings Ltd and Others v Secretary of State for Energy and Climate Change CA 1-Mar-2016
This judicial review appeal concerns the legality of decisions by the respondent, the Secretary of State for Energy and Climate Change (‘the SoS’), to bring to a premature close, subject to certain periods of grace, a statutory scheme supporting the . .
Cited – Attorney-General v Mersey Railway Co HL 1906
The power to make by-laws encompasses not only a company’s principle activity, but also all incidental and ancillary activities. The incidental power cannot be used to expand the company’s activities, in this case by extending its business by . .
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .

Lists of cited by and citing cases may be incomplete.

Health, Local Government, News

Updated: 10 November 2021; Ref: scu.567876

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 disabillities including functioning at the equivalent age of 13. The man had a serious record of sexual violence. Nevertheless the issue on whether she could marry was only whether she understood the marriage contract and its nature and duties. Whether others would make the same choice in wisdom was not the issue. The doctrine of necessity has no place in relation to marriage, which depended exclusively upon consent. A persons’ best interests were not at issue. Questions of capacity are always issue specific.
Munby J said: ‘An adult either has capacity [in relation to a particular matter] or he does not. If he does, then, at least in relation to that issue, the Family Division cannot exercise its inherent declaratory jurisdiction, because it is fundamental that this jurisdiction can be exercised only in relation to those who lack the relevant capacity.’ and ‘There is, so far as I can see, no hint in any of the cases on the point – and I have gone through them all – that the question of capacity to marry has ever been considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In all the cases, as we have seen, the question has always been formulated in a general and non-specific form: Is there capacity to understand the nature of the contract of marriage?’ and ‘In relation to her marriage the only question for the court is whether E has capacity to marry. The court is not concerned – has no jurisdiction – to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage to S in particular.’

Munby J
Times 20-Jan-2005, [2005] 2 WLR 953, [2004] EWHC 2808 (Fam), [2005] 1 FLR 965
Bailii
England and Wales
Citing:
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 – 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 – 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 . .
Distinguished – 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 – In Re S (Adult Patient: Sterilisation) CA 26-May-2000
The court should decide what is in the best interests of a patient where she was unable to give consent herself. The test of whether what was proposed was within the range of what reasonable and competent medical practitioners might propose, got the . .

Cited by:
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 – D Borough Council v AB CoP 28-Jan-2011
The court was asked whether A, an adult male with learning disability had capacity to consent to sexual relations, and in particular what test was to be applied. . .
Cited – PC and Another v City of York Council CA 1-May-2013
It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as . .
Cited – AMDC v AG and Another CoP 18-Nov-2020
Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the . .
Applied – PH v A Local Authority CoP 30-Jun-2011
The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment. . .

Lists of cited by and citing cases may be incomplete.

Family, Health

Leading Case

Updated: 10 November 2021; Ref: scu.231165

Francis, Regina (on The Application of) v The Secretary of State for Health and Social Care: Admn 1 Dec 2020

Self-Isolation Regulations within SS powers

The claimant challenged the regulations requiring self-isolation following a positive test for Coronavirus.
Held: The request for judicial review was rejected. The term ‘self-isolation’ was not used in its general sense, but with the particular meanings set out in the Regulations, and the law which might apply to a general usage did not apply here. Similarly, the term ‘detention’ would normally import a specific element of imprisonment, which again could not be said to be imported into the term as used in the Regulations. The restrictions imposed had several relaxations which operated to reduce the severity of the effect of compliance.
The 1984 Act was passed to comply with world wide WHO Regulations, and granted the powers necessary to fulfil the obligations imposed, including for example a power to remove an infected person to a suitable hospital..

Lord Justice Hickinbottom, Mr Justice Whipple
[2020] EWHC 3287 (Admin), [2020] WLR(D) 662
Bailii, WLRD
Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, Public Health (Control of Disease) Act 1984, European Convention on Human Rights
England and Wales

Administrative, Health, Human Rights

Updated: 10 November 2021; Ref: scu.656790

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 application to for confirmation of a compulsory psychiatric placement under Schedule 3 to the 2005 Act the court should itself carry out a review in oder to be satisfied that an order would comply with the Convention and so in that (i) the Winterwerp criteria were met and (ii) that the individual’ would have an effective right to regular reviews of the detention and to challenge it in court if necessary.

Baker J
[2015] EWCOP 38, [2015] WLR(D) 243
Bailii, WLRD
Mental Capacity Act 2005 63 Sch 3, European Convention on Human Rights , Hague Convention on the International Protection of Adults 2000 1 3
Citing:
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 – 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.

International, Children, Health, Human Rights

Updated: 09 November 2021; Ref: scu.548027

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 provide the assistance neceesary to access the commode. The claimant now appealed against the failure of her challenge to the withdrawal of that help. She asserted a breach of her article 8 rights.
Held: The appeal failed. The local authority are under a duty to make an assessment of needs under section 47(1)(a) of the 1990 Act and in doing so may take account of their resources. Assessed in the light of the guidance, the Council had in fact assessed the claimants needs as required. Nor could the particular decision be characterised as a policy which might be tested as discriminatory. Lady Hale would have allowed the appeal.

Lord Walker, Lady Hale, Lord Brown, Lord Kerr, Lord Dyson
[2011] UKSC 33, [2011] PTSR 1266, [2011] 4 All ER 881, (2011) 121 BMLR 164, (2011) 14 CCL Rep 341
Bailii, Bailii Summary, SC Summary, SC
Disability Discrimination Act 1995, European Convention on Human Rights 8, National Health Service and Community Care Act 1990 47, National Assistance Act 1948 29(1), Chronically Sick and Disabled Persons Act 1970 2(1)(a)
England and Wales
Citing:
At first instance – 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 – Regina v Gloucestershire County Council and Another, Ex Parte Barry HL 21-Mar-1997
The House considered the need when assessing community care provision to include considerations of the cost and resources for care. The case concerned a question about the relevance of cost and arose in the context of a duty to make certain . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Bernard, Regina (on the Application of) v London Borough of Enfield Admn 25-Oct-2002
The claimants were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. In breach of their duty under section 21(1)(a) of the 1948 Act, the respondent council failed for some 20 months to provide the . .
Appeal from – 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. . .

Cited by:
Cited – KM, Regina (on The Application of) v Cambridgeshire County Council SC 31-May-2012
The respondent had assessed the claimant’s annual care needs. He challenged the calculations. The authority had a system which calculated the average needs for support adding a sum to reflect particular critical need. An independent expert had . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health, Human Rights

Updated: 09 November 2021; Ref: scu.441501

Yearworth and others v North Bristol NHS Trust: CA 4 Feb 2009

The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them providing future samples. They appealed a finding that they they had no losses, based on the suggestion that the 1990 Act so circumscribed the management of the samples as to deny any assertion of a proprietary interest in the samples. They claimed psychological injury and losses.
Held: The appeal was allowed. The hospital owed the claimants a duty of care. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. The men owned the specimens. The Act itself required expicit consent from the donors for various acts, and this itself acknowledged rights. Doodward was framed as an exception to the common law rule, and was not a good basis for the modern law. The common law needed re-examination.
The court considered and set out the law of bailment as it might apply to the case. The defendants were bailees.

Lord Judge CJ, Sir Anthony Clarke MR, Wilson LJ
[2009] EWCA Civ 37, Times 10-Feb-2009, [2009] WLR (D) 34, (2009) 107 BMLR 47, [2009] LS Law Medical 126, [2009] 2 All ER 986, [2009] 3 WLR 118, [2010] 1 QB 1
Bailii
Human Fertilisation and Embryology Act 1990
England and Wales
Citing:
Cited – Walkin v South Manchester Health Authority CA 3-Jul-1995
A claim for damages for an unwanted pregnancy occurring after a failed sterilisation. The plaintiff claimed damages for her economic losses. She issued only four years after the birth.
Held: The limitation period ran from the date of . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
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 – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Cited – Doodeward v Spence 1908
(High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued . .
Cited – Regina v Kelly; Regina v Lindsay CACD 21-May-1998
Kelly was an artist allowed to draw anatomical specimens at the hospital, and Lindsay was a technician. They removed body parts from the hospital, and now appealed their convictions for theft.
Held: There is an exception to the traditional . .
Cited – Bentham, Regina v HL 10-Mar-2005
In the course of a theft, the defendant had held his fingers in his pocket so as to suggest that he had a gun. He appealed conviction for possessing an imitation firearm.
Held: ‘Rules of statutory construction have a valuable role when the . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Coggs v Bernard 1703
The defendant had care of the plaintiff’s cask of brandy. He broke the cask and spilt the brandy.
Held: A bailment can exist notwithstanding that it is gratuitous, i.e. without consideration passing from the bailor to the bailee. The . .
Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – Midland Silicones Ltd v Scruttons Ltd QBD 1959
A bailment arises when, albeit on a limited or temporary basis, the bailee acquires exclusive possession of the chattel or a right thereto. . .
Cited – Midland Silicones Ltd v Scruttons Ltd CA 1960
. .
Cited – Gilchrist Watt and Sanderson Pty Ltd v York Products Pty Ltd PC 1970
(New South Wales – Australia) The defendants were stevedores who had lost two cases of clocks that they had received as sub-bailees of the shipowners, who in turn owed a duty to deliver them to the plaintiffs under the bills of lading.
Held: . .
Cited – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – Port Swettenham Authority v T W Wu and Co (M) Sdn Bhd PC 19-Jun-1978
A gratuitous bailee assumes a duty to take reasonable care of the chattel: ‘This standard, although high, may be a less exacting standard than that which the common law requires of a bailee for reward [but] the line between the two standards is a . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Attia v British Gas CA 26-Jun-1987
The defendant set the plaintiff’s house on fire when installing central heating. She claimed damages for the shock she suffered on hearing of the fire.
Held: The plaintiff could recover damages for psychiatric injury she suffered when the . .
Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Lists of cited by and citing cases may be incomplete.

Health, Damages, Personal Injury, Agency

Updated: 09 November 2021; Ref: scu.280434

A Primary Care Trust v P and Others: Misc 21 Dec 2009

(Court of Protection) The court was asked whether, if P could be found to lack mental capacity where he should live, where there was an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18-plus years standing on the other, and further issues in relation both to Articles 8 and 5 of the European Convention of Human Rights.
Held: P did indeed lack capacity.
It was in P’s best interests to live in independent living accommodation, with his contact with his mother restricted. The court acknowledged that these arrangements amounted to a deprivation of P’s liberty within Article 5(1) of the ECHR, taking 5 factors into account:
1) The degree of control to be exercised by the staff.
2) The constraint on P leaving if it was his intention to go back to AH.
) The power of the staff to refuse a request from AH for the discharge of P to her care.
4) Necessary restraints on contact between P and AH.
5) It involved a fairly high degree of supervision and control within the placement.

Hedley J
[2009] EW Misc 10 (EWCOP), [2011] 1 FLR 287, [2010] MHLR 281, (2010) 13 CCL Rep 636
Bailii
European Convention on Human Rights 5 8, Mental Capacity Act 2005 16(2)(a)
England and Wales
Cited by:
At CoP – 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 . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.427418

TW v London Borough of Enfield and Another: QBD 8 May 2013

The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does have any effect on the Applicant’s rights under Article 6 read together with Article 14, that effect was plainly justified, and ‘the protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective’ was a conclusive answer to the Article 14 claim.
As to the allegation of failing to cosult under section 11, a consultation with TW’s father was expected in the profesional judgment of the social worker in this case only to have been a likely further source of distress to TW, and a consultation was not therefore practicable.

Bean J
[2013] EWHC 1180 (QB)
Bailii
Mental Health Act 1983 3 11, European Convention on Human Rights 6 14
England and Wales
Citing:
Cited – Kjeldsen, Busk Madsen and Pedersen v Denmark ECHR 7-Dec-1976
The court discussed the meaning of ‘other status’ under article 14, saying: ‘Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by . .
Cited – Winch v Jones CA 1986
The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: ‘section 139 protects the defendant unless and until the applicant obtains leave. This . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Seal v United Kingdom ECHR 7-Dec-2010
The court considered a procedural filter which prevented the bringing of a claim relating to the exercise of powers under the 1983 Act without the leave of the court.
Held: ‘The Court notes at the outset that the Applicant pursued his . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – In Re D (Mental Patient: Habeas Corpus) Admn 2000
. .
Cited – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – WC, Regina (On the Application of) v South London and Maudsley NHS Trust and Another Admn 25-Oct-2001
The claimant challenged his detention under section 3 of the 1983. He suffered from paranoid schizophrenia. He said that the social worker had consulted his wife and not, as he said was correct, his mother.
Held: . .
Cited – GD v Hospital Managers of the Edgware Community Hospital and Another Admn 27-Jun-2008
The claimant sought a writ of habeas corpus, by way of a challenge to his detention under section 3 of the 1983 Act, saying that it had been unlawful because the social workers had failed to consult his father.
Held: Burnett J said: ‘The duty . .
Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 02 November 2021; Ref: scu.509119

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 interim guardianship order had been made by the Sheriff. When the sisters made the current application for an order, the now guardian Scottish local council said that she was now habitually resident in Scotland and that the present court had no jurisdiction.
Held: The matter was governed by section 83 of the 2005 which incorporated the 2000 Convention.

Sir James Munby P
[2013] EWHC 3932 (COP), [2013] EWCOP 3932, [2013] WLR(D) 495, [2014] COPLR 62, [2014] 1 Fam 197, [2014] 3 WLR 453, [2014] WTLR 337
Bailii, WLRD
Mental Capacity Act 2005 63, 2000 Hague Convention on the International Protection of Adults
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 – In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
Cited – Re MN (Recognition and Enforcement of Foreign Protective Measures) FD 2010
An elderly woman, MN, habitually resident in California, had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her.
Cited – 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 . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Health, Scotland, Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.518978

YL v Birmingham City Council and Others: HL 20 Jun 2007

The House was asked whether a private care home when providing accommodation and care to a resident under arrangements with a local authority the 1948 Act, is performing ‘functions of a public nature’ for the purposes of section 6(3)(b) of the Human Rights Act 1998 and as such a ‘public authority’ subject to Convention rights under section 6(1) of that Act.
Held: There is no one test of whether a body carries out a public function. In this case the duties exercised by the care homes were similar to those formerly conducted by the council, but were undertaken for a different purpose, and not under any statutory duty. That was sufficient to mean that the care home was not exercising a function of a public nature.
Lord Scott said: ‘it cannot be enough simply to compare the nature of the activities being carried out at privately owned care homes with those carried out at local authority owned care homes. It is necessary to look also at the reason why the person in question, whether an individual or corporate, is carrying out those activities. A local authority is doing so pursuant to public law obligations. A private person, including local authority employees, is doing so pursuant to private law contractual obligations. The nature of the function of privately owned care homes, such as those owned by Southern Cross, no different for section 6 purposes from that of ordinary privately owned schools or privately owned hospitals (nb some schools and hospitals may have special statutory powers over some pupils and patients eg reformatories in the olden days and mental hospitals these days), seems to me essentially different from that of local authority care homes.’
Lord Neuberger said: ‘The fact that Birmingham, as a core public authority, could have provided care and accommodation for Mrs YL in a care home which it ran itself seems to me to be a factor which assists the contention that Southern Cross is performing a function of a public nature, but only to a limited extent. It is certainly not a sufficient condition: indeed, it appears to me to be more like a necessary condition. While it would be wrong to be didactic in this difficult area, I suspect that it would be a relatively rare case where a company could be performing a ‘function of a public nature’ if it was carrying on an activity which could not be carried out by any core public authority. On the other hand, I would not accept that the mere fact that a core public authority, even where it is the body funding the activity, could carry out the activity concerned must mean that the activity is such a function. Apart from anything else, there must scarcely be an activity which cannot be carried out by some core public authority’.

Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Mance, Lord Neuberger of Abbotsbury
[2007] UKHL 27, Times 21-Jun-2007, [2008] AC 95, [2007] 3 All ER 957, [2007] 3 WLR 112
Bailii
National Assistance Act 1948 21 26, European Convention on Human Rights
England and Wales
Citing:
Cited – Regina (Heather and Another) v Leonard Cheshire Foundation CA 21-Mar-2002
The appellants appealed rejection of their application for judicial review. They were long term residents in a nursing home, which the respondents had decided to close.
Held: Though the respondent did exercise some public functions, and its . .
Appeal from – Johnson and others v London Borough of Havering and others CA 30-Jan-2007
The claimants were residents of old people’s homes run by the council and maintained under s21 of the 1948 Act. They objected to the transfer of the homes into the private sector saying that it would infringe their rights to family life, and that . .
Cited – Johnson and others v London Borough of Havering and others CA 30-Jan-2007
The claimants were residents of old people’s homes run by the council and maintained under s21 of the 1948 Act. They objected to the transfer of the homes into the private sector saying that it would infringe their rights to family life, and that . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .

Cited by:
Cited – Weaver, Regina (on the Application of) v London and Quadrant Housing Trust Admn 24-Jun-2008
An assured tenant sought to challenge a possession order made for rent arrears. He said that as a public body the landlord had a duty under human rights law to pursue all posssible alternate solutions before seeking possession.
Held: The . .
Cited – Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
Cited – Boyle, Regina (On the Application of) v Haverhill Pub Watch and Others Admn 8-Oct-2009
The claimant had been banned from public houses under the Haverhill Pub Watch scheme. He now sought judicial review of a decision to extend his ban for a further two years. The Scheme argued that it was not a body amenable to judicial review, and . .
Cited – Virgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .
Cited – Scott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.253518

British Pregnancy Advisory Service, Regina (on The Application of) v Secretary of State for Health and Social Care: Admn 5 Jun 2019

Abortion Time Limit statement was correct.

The Court considered ‘ the correct interpretation of the words, ‘the pregnancy has not exceeded its twenty-fourth week’ in s.1(1)(a) of the Abortion Act 1967 ‘ The guidance was challenged as the calculations. The date of the beginning of the pregnancy was usually taken from the date of the end of the woman’s last menstruation, even though the child might not be conceived until two weeks later.
Held: The request as to the construction of the terms failed: ‘the correct construction of the words ‘the pregnancy has not exceeded its 24th week’ in s.1(1)(a) of the 1967 Act is that a woman will have exceeded her 24th week of pregnancy once she is 24 weeks + 0 days pregnant, or in other words, from midnight on the expiration of her 24th week of pregnancy, as stated in the Decision Letter.’
Since there was o duty to consult over the decision letter, since it was proposing a statement of law.

Supperstone J
[2019] EWHC 1397 (Admin)
Bailii
England and Wales
Citing:
Cited – Dickenson v Fletcher 1873
A penal statute should receive a strict or restrictive interpretation. Brett J said: ‘Those who contend that a penalty may be inflicted must show that the words of the Act distinctly enact that it shall be incurred under the present circumstances. . .
Cited – Pinner v Everett HL 1969
The House was asked whether or not a person was ‘driving or attempting to drive’ a motor vehicle when he had been stopped by the police in connection with the illumination of his rear number plate, and the driver got out of the car and started to . .
Cited – Baker, Regina (on the Application of) v Devon County Council CA 21-Dec-1992
The plaintiffs appealed against orders dismissing claims for judicial review. They had challenged the intended closure of residential homes for old people. The plaintiffs said that there had been inadequate consultation, and the Councils argued that . .
Cited – Bhatt Murphy (a firm), Regina (on the application of) v The Independent Assessor CA 9-Jul-2008
The appellants each challenged alterations to the scheme for compensation of the victims of miscarriages of justice.
Held: Laws LJ emphasised the special nature of the promise or practice which was necessary to give rise to a substantive . .
Cited – Isle of Anglesey County Council and Another v The Welsh Ministries and others CA 20-Feb-2009
The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make . .
Cited – British Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – LH, Regina (on The Application of) v Shropshire Council CA 4-Apr-2014
Appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre. . .

Lists of cited by and citing cases may be incomplete.

Health, Administrative

Updated: 02 November 2021; Ref: scu.638162

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 and responsibilities created, and was free of morbid delusions on the subject.
Sir James Hannen P said that marriage involves ‘protection on the part of the man, and submission on the part of the woman’

Sir James Hannen P
[1885] 10 PD 10, 1 TLR 338
England and Wales
Cited by:
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 . .
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.

Family, Health

Leading Case

Updated: 02 November 2021; Ref: scu.223064

Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others: CA 30 Nov 2005

Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the AandE department. From there he escaped and jumped into and drowned in the Thames.
Held: The claim succeeded.
Sir Anthony Clarke MR said: ‘Article 2 is engaged in the sense that it gives rise to certain obligations on the part of the state whenever a person dies in circumstances which give reasonable grounds for thinking that the death may have resulted from a wrongful act of one of its agents. ‘The coroner accepted that the events at the hospital were relevant, but it was not clear how they could have been dismissed without a fuller enquiry.
As to the summoning of the jury: ‘The coroner has a duty to summon a jury under the subsection if it appears to him that the death occurred in circumstances the continuation or possible recurrence of which is prejudicial to the health or safety of the public (our emphasis). Quite apart from the precise language, the purpose of the provision seems to us to be to stop similar risks to the health and safety of the public in the future. If the coroner is satisfied that because of steps taken since the relevant events there is no such risk, we can see no reason why the coroner should summon a jury under section 8(3)(d). ‘ The inquest verdict would be set aside. The coroner should judge whether a jury was appropriate in the light of the circumstances prevailing.
Sir Anthony Clarke MR said: ‘We do not accept Mr Fitzgerald’s submission that the principles in the custody cases, which have been analysed in some detail in the Amin . . and Middleton . . cases, apply here because Mr Takoushis would have been detained if the hospital had been aware that he was about to leave the hospital. In our opinion there is an important difference between those who are detained by the state and those who are not. Mr Takoushis was not.’

Sir Anthony Clarke MR, Chadwick, Moore-Bick LJJ
[2006] 1 WLR 461, [2005] EWCA Civ 1440, Times 08-Dec-2005
Bailii
Coroners Act 1988 8(3)(d), European Convention on Human Rights 2
England and Wales
Citing:
Cited – Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson QBD 12-Jul-1993
northhumberside_jamiesonCA1993
A prisoner had hanged himself after being left unsupervised in a single cell. He was a known suicide risk, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A coroner was free not to . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Regina v Coroner for Western District of Sussex Ex Parte Homberg Roberts and Mannerss QBD 27-Jan-1994
A Coroner’s enquires should be as to ‘how’ the death arose, and not into all the circumstances contributing to the death.
Simon Brown LJ said: ‘It is clear that the coroner’s over-riding duty is to inquire ‘how’ the deceased came by his death . .
Cited – Regina v Her Majesty’s Coroner at Hammersmith ex parte Peach CA 1980
A coroner was obliged to sit with a jury under the section 13(2) of the 1926 Act where the deceased, who was watching a demonstration, was struck a violent blow on the back of his head from which he died.
Bridge LJ said: ‘The key to the nature . .
Cited – Regina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
Cited – Erikson v Italy ECHR 26-Oct-1999
The court described part of the state’s obligation under article 2 as including ‘the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical . .
Cited – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
Cited – Salman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .
Cited – Regina (Wright) v Secretary of State for the Home Department Admn 2001
A serving prisoner suffered a severe asthmatic attack in his cell and died. An inquest was held at which the family of the deceased were present, but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Calvelli And Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Goodson v HM Coroner for Bedfordshire and Luton Admn 17-Dec-2004
A patient had died in hospital following an operation. The NHS Trust submitted that ‘There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing . .
Cited – Sieminska v Poland ECHR 29-Mar-2001
The applicant’s husband died in hospital, but she later complained that the ambulance had not been equipped with the necessary resuscitation devices. Under Polish law she had a right to appeal against decisions of the prosecuting authorities not to . .
Appeal from – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London Admn 16-Dec-2004
A patient suffering schizophrenia had been a voluntary patient. He was allowed to visit another unit within the hospital grounds, but then left altogether and was next found preparing to jump from Tower Bridge. He was taken by ambulance to Hospital . .

Cited by:
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – Cameron and others v Network Rail Infrastructure Ltd QBD 18-May-2006
The claimant sought damages from the defendant after the death of her father in the Potters Bar rail crash. The defendant applied for summary judgment saying that English law did not recognise a claim by a family member of a deceased save through . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Savage v South Essex Partnership NHS Foundation Trust QBD 21-Dec-2006
The claimant’s daughter had died after walking out of a mental health ward and being knocked down. She sought damages alleging negligence and in infringement of her daughter’s right to life.
Held: Negligence amounting to a breach of the right . .
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
k_centralQBD2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
Cited – Tyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .

Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights, Health

Leading Case

Updated: 02 November 2021; Ref: scu.235462

Eisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners): CA 1 May 2008

The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made in order to assess the appropriatenmess of the use of certain drugs, but had not disclosed the mathematical basis of the calculations, and therefore had made it impossible for the companies to see how the answers had been obtained.
Held: The pharmaceutical companies’ appeal was allowed. In this context there is a ‘need for a very high degree of transparency in the process, with an exceptional degree of disclosure and consultation. ‘ The provision of read only models disabled much of the testing which companies would be entitled to carry out.
After citing ex parte Coughlan, Richards LJ said: ‘The mere fact that information is ‘significant’ does not mean that fairness necessarily requires its disclosure to consultees . . nevertheless the degree of significance of the undisclosed material is obviously a highly material factor.
What fairness requires depends on the context and the particular circumstances; see for example, R v Secretary of State for Education, ex-parte M [1996] ELR 162, at pp. 2006-2007, where Simon Brown LJ emphasised the need to avoid a mechanistic approach to the requirements of consultation . . The fact that the material in question comes from independent experts is plainly relevant to the overall assessment, but it was a combination of factors – including the requirement of a high degree of fairness . . the crucial nature of the advice, the lack of good reason for non-disclosure, and the impact on the applicants- which led to what was on the facts a fairly obvious conclusion . .’ and
‘even if one accepts the possibility that release of the fully executable version would add two to three months to the appraisal process, that has to be viewed in the context of an already lengthy process . . I do not think that either the additional time or the additional cost to NICE should weigh heavily in the balance in deciding whether fairness requires release of the fully executable version. If fairness otherwise requires release of the fully executable version, the court should in my view be very slow to allow administrative consideration of this kind to stand in the way of its release . . procedural fairness does require release of the fully executable version of the model. It is true that there is already a remarkable degree of disclosure and of transparency in the consultation process; but that cuts both ways, because it also serves to underline the nature and importance of the exercise being carried out. The refusal to release the fully executable version of the model stands out as one exception to the principle of openness and transparency that NICE has acknowledged as appropriate in this context. It does place consultees . . at a significant disadvantage in challenging the reliability of the model. In that respect it limits their ability to make an intelligent response in something that is central to the appraisal process’

Tuckey LJ, Jacob LJ, Richards LJ
[2008] EWCA Civ 438, Times 07-May-2008
Bailii
England and Wales
Citing:
Cited – Regina v Secretary of State for Education and Employment and Another Ex Parte Morris and Others QBD 15-Dec-1995
There was no need for consultation before a school can be closed as a failing school. Simon Brown LJ emphasised the need to avoid a mechanistic approach to the requirements of consultation. . .
Appeal From – Eisai Ltd v The National Institute for Health and Clinical Excellence Admn 10-Aug-2007
The company sought to challenge the decision of the respondent not to approve its drug for use for the treatment of patients with Alzheimer’s disease.
Held: In requiring all patients to have a certain MMSE score in order to qualify for funding . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Bushell v Secretary of State for the Environment HL 7-Feb-1980
Practical Realities of Planning Decisions
The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the . .
Cited – Regina v Secretary of State for Health, ex parte United States Tobacco International Inc CA 1991
The applicant company produced oral snuff. It had opened a factory in the United Kingdom after the Government, on advice, had negotiated an agreement with it to restrict the marketing of the product. The committee, basing itself not on new evidence . .
Cited – S, Regina (on the Application of) v Secretary of State for Education CA 15-Jul-1994
. .
Cited – Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd CA 23-Jun-1999
. .
Cited – Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd CA 23-Jun-1999
. .
Cited – Regina (Bedford) v London Borough of Islington 2003
. .

Cited by:
Cited – Savva, Regina (on The Application of) v Royal Borough of Kensington and Chelsea Admn 11-Mar-2010
The claimant challenged the defendant’s policies on caring for elderly people within the community saying that it provided insufficient funds, and the procedures for review were inadequate and infringed her human rights. . .
Cited – AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
Cited – Save Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .
Distinguished – Easyjet Airline Co Ltd, Regina (on The Application of) v Civil Aviation Authority CA 15-Dec-2009
The claimant appealed against rejection of its challenge to the respondent’s decision on charging structures for the use by airline of Gatwick airport, and in particular the alleged lack of adequate consultation by the respondent. After its own . .

Lists of cited by and citing cases may be incomplete.

Health, Administrative

Leading Case

Updated: 02 November 2021; Ref: scu.267386

Re MRJ JT and KT (Reconsideration of Order): CoP 10 Apr 2014

re_mjtCoP0414

The court had made an order transferring responsibility for MRJ’s affairs from the appointed attorney to the local authority. The order had been made on the papers, and the court now heard an application for it to be reconsidered.
Held: The orders made were confirmed. The court recognised that the interference in a person’s choice of attorney was an interference in their right to private and family life under article 8 of the Convention, and must only be allowed where fully warranted. The evidence now before the court established even more clearly the mismanagement of the patient’s affairs by the agent.

Lush LJ
[2014] EWHC B15 (COP)
Bailii
Mental Capacity Act 2005, Court of Protection Rules 2007, European Convention on Human Rights 8
Citing:
Cited – Re S and S CoP 2008
Hazel Marshall QC J described the system of reconsideration under the 2007 Rules: ‘ Such a reconsideration is not an appeal. The processes in the Court of Protection are intended to give the court wide flexibility to reach a decision quickly, . .
Cited – Re Harcourt CoP 2013
Unless warranted under Article 8.2, the revocation by the Court of Protection an LPA, which a donor executed when they had capacity and in which they chose a family member to be their attorney, would be a violation of their Article 8.1 right to . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Litigation Practice, Agency

Updated: 02 November 2021; Ref: scu.523650

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 proceedings for her)? Second, what happens if legal proceedings are settled or compromised without it being recognised that one of the parties lacked that capacity’
Held: Whether a party has capacity to conduct proceedings under CPR Pt 21 depended upon his capacity to conduct the claim or cause of action which the claimant in fact had, rather than any claim formulated for her by her lawyers. A consent order based on the settlement of a claim by a claimant who did not have capacity but remained without a litigation friend was not valid whether or not she was legally represented.
Held: The test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has, rather than to conduct the claim as formulated by her lawyers. Judged by that test, it is common ground that Mrs Dunhill did not have the capacity to conduct this claim.

Lady Hale, Deputy President, Lord Kerr, Lord Dyson, Lord Wilson, Lord Reed
[2014] COPLR 199, [2014] UKSC 18, [2014] 2 All ER 364, [2014] WLR(D) 122, (2014) 17 CCL Rep 203, [2014] 1 WLR 933, (2014) 137 BMLR 1, [2014] RTR 16, [2014] PIQR P13, UKSC 2012/0136, UKSC 2012/0257
Bailii, Bailii Summary, WLRD, SC Summary (1), SC (1), SC Summary (2), SC (2)
Mental Capacity Act 2005, Civil Procedure (Amendment) Rules 2007 21.1(2)(c)
England and Wales
Citing:
Cited – Hart v O’Connor, O’Connor O’Connor PC 22-May-1985
(New Zealand Court of Appeal) The Board reversed the decision which had rescinded an agreement for the sale of land by a vendor aged eighty-three years and of unsound mind. In rejecting a submission that the transaction constituted an unconscionable . .
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 – 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 . .
At First Instance (1) – Dunhill v Burgin QBD 7-Mar-2011
The claimant asked that a settlement of her personal injuries claim be set aside on the basis that it had been made at a time when she lacked capacity, and that the agreement had required approval by the court which was not sought. The parties were . .
At CA – 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 . .
At First Instance (2) – Dunhill v Burgin (No 2) QBD 9-Nov-2012
The Court was asked whether CPR 21.10 has any application ‘where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability?’
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 – Dietz v Lennig Chemicals Limited HL 1969
Before proceedings, the plaintiff widow accepted the defendants’ offer to settle her and her infant son’s Fatal Accidents Acts claim ‘subject to the approval of the court’. A summons was then issued for the court to approve that settlement. The . .
Cited – Drinkall (A Minor Who Sues By Her Mother and Litigation Friend) v Whitwood CA 6-Nov-2003
The claimant, a child, had sought damages. An agreement was made to compromise the claim. Later the child sought to withdraw from it.
Held: No court order had been made to approve the compromise, and therefore no binding arrangement existed. . .
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 – 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 – Tameside and Glossop Acute Services NHS Trust v Thompstone and others CA 17-Jan-2008
The court set out the legal principles applying when making a Periodical Payments Order in an award of damages for serious personal injury. The periodical payments payable to the claimant in respect of his care costs should be calculated by . .
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 – In re Grosvenor Hotel, London (No 2) CA 1964
Lord Denning MR said that the Rules Committee ‘can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence.’ Public policy protects against disclosure any documents which relate to . .

Cited by:
Cited – 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.

Health, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.522382

Milner, Regina (on The Application of) v South Central Strategic Health Authority: Admn 11 Feb 2011

The claimant sought to challenge the way the defendant had reached its decision to add flouride to the water supply, in having failed to comply with the requirements for consultation.
Held: The claim failed. The Regulations as enacted differed from the draft, and did not require the Authroitys to act only on approval by a majority of those replying to a consultation exercise. Whatever the governments policy had been in the earlier stages of its development, that element did not remain present at its conclusion. There could be no argument that an Authority had a duty to go behind the guidance and regulations to investigate the parliamentary history. No challenge had been made to the procedures adopted durimg the consultations.
‘ A regulation which expressly requires a SHA to have ‘regard to the extent of support’ is simply not consistent with a policy that a scheme should not be introduced unless it can be shown that the local population is in favour. That is simply to replace the requirement in the regulation to have regard, with a test of the balance (however ascertained) of the opinion of the local population, which is inconsistent with the regulation and which the ministers themselves eschewed (they expressly rejected a head count alone or referendum).’ and
‘ it is not the law that fluoridation can only occur when a majority of the local population agree. Parliament has firmly entrusted area-specific decision making to the relevant SHA.’

Holman J
[2011] EWHC 218 (Admin)
Bailii
Water Act 2003, Water Industry Act 1991 87, The Water Fluoridation (Consultation) (England) Regulations 2005
England and Wales
Citing:
Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .
Cited – Unison, Regina (on The Application of) v Monitor and Others Admn 9-Dec-2009
Cranston J referred to ‘the danger of resorting to [Hansard] except when it is absolutely required under Pepper v Hart’ and gave examples of the reasons why. . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .

Lists of cited by and citing cases may be incomplete.

Health, Administrative, Utilities

Updated: 02 November 2021; Ref: scu.428672

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

Frances Patterson QC J
[2009] EWHC 1582 (Admin), (2009) 12 CCL Rep 421
Bailii
Disability Discrimination Act 1995, European Convention on Human Rights 8
England and Wales
Cited by:
At first instance – 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 . .
Appeal From – 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. . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health, Human Rights

Updated: 02 November 2021; Ref: scu.377553

D Borough Council v AB: CoP 28 Jan 2011

The court was asked whether A, an adult male with learning disability had capacity to consent to sexual relations, and in particular what test was to be applied.

Mostyn J
[2011] EWCOP 101, [2012] Fam 36, [2010] Med LR 499, [2011] 2 FLR 72, [2011] 3 WLR 1257, [2011] 3 All ER 435, [2011] 3 FCR 62
Bailii
Citing:
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 . .
Cited – X City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .

Lists of cited by and citing cases may be incomplete.

Health

Updated: 01 November 2021; Ref: scu.524742

In re J (Enduring Power of Attorney): ChD 12 Mar 2009

(Court of Protection) The donor executed a document purporting to appoint his wife to be his attorney, with an alternative. The document was based on a published precedent. The Public Guardian (PG) thought this provision of an alternative invalid.
Held: The Act required the use of the form set out, but then allowed variations to it which did not contradict any provision of the Act, and did allow successive attorneyships. The PG said that paragraph 20 required any multiple appointment to be either joint or joint and several. Such appointments were not in fact prohibited, and would give rise to no greater complexity than might arise through the use of multiple and successive deeds which were clearly allowed. The Act should be construed so as to allow people to make the arrangements they felt suitable and without creating technical traps for them. The power was valid.

Lewison J
[2009] EWHC 436 (Ch)
Bailii
Enduring Powers of Attorney Act 1985, Enduring Powers of Attorney (Prescribed Form) Regulations 1990
England and Wales
Citing:
Cited – Scottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
Cited – X v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .

Lists of cited by and citing cases may be incomplete.

Agency, Health

Updated: 01 November 2021; Ref: scu.317986

RF v Secretary of State for Work and Pensions: Admn 21 Dec 2017

Psychlogical condition no bar to benefits claim

The claimant challenged the exclusion of psychological distress as a ground for payment of certain personal Independence Payments.
Held: The claim was allowed. This was direct discrimination which was not objectively justified.

Mostyn J
[2017] EWHC 3375 (Admin), [2017] WLR(D) 861, [2018] PTSR 1147
Bailii, WLRD
Social Security (Personal Independence Payment) (Amendment) Regulations 2017 2(4), European Convention on Human Rights 14
England and Wales

Health, Benefits, Human Rights

Updated: 01 November 2021; Ref: scu.602595

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 proceedings held in private.
Held: Their appeal against the order allowing access failed. The normal rule is that such proceedings must be private. The court could deviate from this only for ‘good reason’.
The real question was whether and how the respondent’s article 10 right could be engaged and weighed. It would be difficult to find a case which might better demonstrate the proper workings of the Court of Protection. An appeal court sould interfere with a judge’s exercise of a discretion only where it was clearly wrong. ‘The fact that we take a different view from the judge (to whom Atkinson, Matky and Tarsasag were not cited) cannot possibly mean that his decision was flawed. If he had concluded that article 10 was engaged at an earlier stage than he concluded, it would, at best, have reinforced his view that the media had shown ‘good reason’ at the first stage of his two stage process (although, as explained above, we very much doubt that it would have affected his thought processes in any way.)’

Judge LCJ, Neuberger MR, Sir Mark Potter
[2010] EWCA Civ 343, (2010) 113 BMLR 162, [2010] 3 All ER 32, [2010] 1 WLR 2262, [2010] 2 FLR 1290, [2010] Fam Law 705, [2010] 2 FCR 187
Bailii, Times
Mental Capacity Act 2005, Administration of Justice Act 1960 12, European Convention on Human Rights 8 10, Human Rights Act 1998 12(4)
England and Wales
Citing:
Appeal from – 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 . .
Approved – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Atkinson and Crook and The Independent v United Kingdom ECHR 3-Dec-1990
(European Commission of Human Rights) The Commission answered a question as to admissibility, namely whether the sentencing of a convicted criminal defendant in private infringed article 10. The complainants were two freelance journalists.
Cited – Tarsasag A Szabadsagjogokert v Hungary ECHR 13-Nov-2008
The Hungarian Civil Liberties Union sought access to details of a legal challenge filed by a Hungarian parliamentarian in the Hungarian Constitutional Court concerning the constitutionality of legislative amendments to the Hungarian Criminal Code. . .

Cited by:
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another CA 25-Oct-2011
The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the . .
Cited – Kennedy v Charity Commission CA 20-Mar-2012
The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .

Lists of cited by and citing cases may be incomplete.

Media, Contempt of Court, Health, Human Rights

Updated: 01 November 2021; Ref: scu.406622

Dennison, Regina (on The Application of) v Bradford Districts Clinical Commissioning Group: Admn 23 Jul 2014

The claimant, for the estate of his mother, said that before her death she had been charged for nursing care when, had her assessment been made, the costs would have been met by the respondent.
Held: As to part of the period, there was no basis for review, but as to others, there was, and the assessment for th erequisite period was to be re-examined and detrmined accordingly.

William Davis J
[2014] EWHC 2552 (Admin)
Bailii
England and Wales

Health, Benefits

Updated: 01 November 2021; Ref: scu.535256

MJ (Angola) v Secretary of State for The Home Department: CA 20 May 2010

The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the appellant notwithstanding that he was still subject to orders under sections 37 and 41 of the MHA; and it was not irrational to commence and continue with the deportation process. ‘There is no express statutory limitation on the SSJ’s discretionary power to discharge and, in my judgment, there is no warrant for holding that such a limitation exists by necessary implication. The protection for the patient lies in the fact that the power must be exercised rationally and in such a way as will not breach his Convention rights.
In particular, the SSJ must respect the patient’s rights under article 3 and 8 of the Convention. If the discharge by the SSJ of a patient for the sole purpose of his being escorted to the place of embarkation from where he will be deported will injure his mental health, the discharge is likely to violate the patient’s Convention rights. By the same token, a decision by the SSHD to deport a person who is detained in a hospital is also likely to be in breach of those rights if his deportation will injure his health.
The appeal ducceeded on human rights grounds: ‘What the AIT did was to balance the appellant’s right to respect for his private life against the rights of others to be protected from the risk of his re-offending and to conclude that the former was outweighed by the latter. In performing the balancing exercise, which they found ‘very difficult’, they undoubtedly took into account the fact that the appellant had resided in the UK for a lengthy period and arrived here as an adolescent: see para 66. But there is nothing to indicate that they appreciated that the fact that (i) the appellant had lived in the UK since he was 12 years of age, (ii) most of his offending had been committed when he was under the age of 21 and (iii) he had no links with Angola meant that very serious reasons were required to justify the decision to deport him.’

Waller LJ VP, Dyson JSC, Leveson LJ
[2010] EWCA Civ 557, [2010] WLR (D) 132
Bailii, WLRD
Immigration Act 1971 3(5)(a), Mental Health Act 1983 37 41, European Convention on Human Rights 8
England and Wales
Citing:
Cited – Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson CA 11-Jul-1997
Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker . .
Cited – Regina v Secretary of State for the Home Department, Ex parte X CA 9-Jan-2001
An asylum seeker had come to be detained under the Mental Health Act. The Home Secretary, having refused the asylum application, ordered him to be repatriated.
Held: Though the Secretary of State could only exercise his powers of removal under . .
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – JO (Uganda) and JT (Ivory Coast) v Secretary of State for The Home Department CA 22-Jan-2010
When considering an order for the deportation of a non-EU national on completion of a term of imprisonment, the actual weight to be placed on the criminal offending must depend on the seriousness of the offence(s) and the other circumstances of the . .

Cited by:
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .

Lists of cited by and citing cases may be incomplete.

Immigration, Health, Human Rights

Updated: 01 November 2021; Ref: scu.415968

TTM v London Borough of Hackney and Others: CA 14 Jan 2011

The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the restriction on compensation under the 1983 Act contravened the ECHR.
Held: The detention was otherwise than provided for and was unlawful. Later acts by the Authority could not cure that unlawfulness. Section 139 provided that the Authority should be free of having to pay compensation. This was in contrast to the claimant’s Human Rights and the section must be read down accordingly. In order to be Convention-compliant section 139 is to be read as though it had added at the end the words ‘or is otherwise unlawful, for example because of a contravention of s 11(4).
There had been a change in the way public law approached the consequences of non-compliance with a procedural requirement in the exercise of a statutory power, and the approach now is more flexible.
Toulson LJ said ‘Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty . . There may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification.’

Sir Kenneth May P, Toulson, Jackson LJJ
[2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873
Bailii
Mental Health Act 1983 3 6(3) 12(2) 139, European Convention on Human Rights 5, Magna Carta 1297 29
England and Wales
Citing:
Cited – Regina v Managers of South Western Hospital and Another, Ex Parte M QBD 24-Mar-1993
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient’s mother as her nearest relative. However, the patient’s mother was not ordinarily resident in the UK, and, according . .
Cited – Davidson v Chief Constable of North Wales Police and Another CA 31-May-1993
A store detective said the plaintiffs had stolen from the store. He was wrong. The plaintiffs sought damages from the defendant for false imprisonment.
Held: If the police use their own discretion to arrest a suspect, an informer is not liable . .
Appeal from – TTM v London Borough of Hackney and Others Admn 11-Jun-2010
The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The . .
Cited – In re S-C (Mental Patient: Habeas Corpus) CA 22-Nov-1995
The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte AX London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – New Zealand Institute of Agriculture Science Inc v Ellesmere County 1976
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and . .
Cited – Project Blue Sky Inc v Australian Broadcasting Authority 28-Apr-1998
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of . .
Cited – Society Promoting Environmental Conservation v Canada (Attorney-General) 2003
(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Director of Public Prosecutions of the Virgin Islands v Penn PC 8-May-2008
(British Virgin Islands) The Board considered a case about a failure to comply with the statutory provisions for the empanelling of jurors to try a criminal case. Lord Mance said: ‘The modern tendency is no longer to seek to identify or distinguish . .
Cited – The Montreal Street Railway Company and Another v Roch Normandin PC 23-Jan-1917
(Quebec) . .
Cited – Director of Public Prosecutions of the Virgin Islands v Penn PC 8-May-2008
(British Virgin Islands) The Board considered a case about a failure to comply with the statutory provisions for the empanelling of jurors to try a criminal case. Lord Mance said: ‘The modern tendency is no longer to seek to identify or distinguish . .

Cited by:
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Cited – Commissioner of Police of The Metropolis v Copeland CA 22-Jul-2014
The defendant appealed against the award of damages for assault, false imprisonment and malicious prosection, saying that the question posed for the jury were misdirections, and that the jury’s decision was perverse. The claimant was attending the . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Damages, Torts – Other

Updated: 01 November 2021; Ref: scu.428028

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 against the creditor, who appealed.
Held: A contract made by a person who lacked the capacity to make it was not void, but could be avoided by that person provided that the other party to the contract knew (or, as is now generally accepted, ought to have known) of his incapacity.
The submission that there was no authority that a man could be sued and made liable on an executory contract which he had made when of unsound mind, except in the case of a contract for necessaries was rejected. Lord Esher MR: ‘I shall not try to go through the cases bearing on the subject; but what I am about to state appears to me to be the result of all the cases. When a person enters into a contract, and afterwards alleges that he was so insane at the time that he did not know what he was doing, and proves the allegation, the contract is as binding on him in every respect, whether it is executory or executed, as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding what he was about.’
Fry LJ said: ‘It thus appears that there has been grafted on the old rule the exception that the contracts of a person who is non compos mentis may be avoided when his condition can be shown to have been known to the plaintiff. So far as I know, that is the only exception.’
Lopes LJ said: ‘In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other of the contracting parties. A defendant who seeks to avoid a contract on the ground of his insanity, must plead and prove, not merely his incapacity, but also the plaintiff s knowledge of that fact, and unless he proves these two things he cannot succeed.’

Lord Esher MR, Fry LJ, Lopes LJ
[1892] 1 QB 599
England and Wales
Cited by:
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.
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 – 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 – 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 – 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 – 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 . .
Cited – 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 . .
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.

Contract, Health

Leading Case

Updated: 01 November 2021; Ref: scu.238883

Alder Hey Children’s NHS Foundation Trust v Evans and Others: FD 11 Apr 2018

Care Plan for dying child approved

The parents of a baby boy sought to re-open an order that because of the very severe health condition, and very limited hope of any recovery (disputed by the parents), care beyond palliative care should be withdrawn with the effect that he would be likely to die: ‘the terrible reality was that almost the entirety of A’s brain had been eroded, leaving only water and Cerebral Spinal Fluid. Even by the end of February, the connective pathways within the white matter of the brain, which facilitate rudimentary sensation – hearing, touch, taste and sight, had been obliterated. They were no longer even identifiable on the MRI scan.’. The parties having been unable to agree a care plan, the matter was now returned to the court.
Held: The care plan set out by the hospital was approved and order made for its implementation.

Hayden J
[2018] EWHC 818 (Fam)
Bailii
England and Wales
Citing:
See Also – Alder Hey Children’s NHS Foundation Trust v Evans and Another FD 20-Feb-2018
Application made on behalf of the Alder Hey Children’s NHS Foundation Trust seeking a declaration that continued ventilatory support is not in A’s best interests and in the circumstances it is not lawful that such treatment continue. . .

Cited by:
See Also – Alder Hey Children’s NHS Foundation Trust v Evans and Another FD 24-Apr-2018
The child was in a very severe state of health. The doctors at the hospital proposed withdrawal of life support which would lead to is death. The parents opposed this. A certificate the grant of Italian nationality was produced and the family . .
See Also – Evans and Another v Alder Hey Children’s NHS Foundation Trust and Another CA 16-Apr-2018
Parents’ appeal from directions as to withdrawal of life supporting treatment for their child, the parents now applying for habeas corpus. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 01 November 2021; Ref: scu.609102

Nataliya Mikhaylenko v Ukraine (LS): ECHR 30 May 2013

ECHR Civil proceedings
Article 6-1
Access to court
Lack of access to court for person seeking restoration of her legal capacity: violation
Facts – In 2007 the applicant was deprived of her legal capacity on the grounds that she was suffering from a serious mental illness. Gradually, her mental health improved. In 2009 her guardian applied for her legal capacity to be restored, but the application was dismissed without being considered on the merits owing to the guardian’s repeated failure to appear in court. In 2010 the applicant herself lodged an application for her legal capacity to be restored. However, both it and her subsequent appeals were dismissed on the grounds that the Code of Civil Procedure did not provide her with the right to lodge such an application.
Law – Article 6-1: Under the domestic legislation it was for the applicant’s guardian or the guardianship authority to raise the issue of restoration of her legal capacity before a court. However, the guardian’s application had been dismissed without being considered on the merits as the guardian had not appeared before the court. The applicant had had no procedural status in those proceedings and could not influence them. Her subsequent personal application for restoration of her legal capacity was not considered either because the Code of Civil Procedure did not afford her the right to lodge such an application. However, the Code did not indicate that a declaration of legal incapacity was subject to any automatic judicial review and the duration for which that measure had been ordered in respect of the applicant had not been limited in time. Thus, by virtue of clear and foreseeable rules of domestic law, the applicant could not personally apply to a court for restoration of her legal capacity.
Restrictions on the procedural rights of persons deprived of their legal capacity could be justified to protect their own or others’ interests or for the proper administration of justice. However, the approach pursued by the domestic law in the instant case, according to which incapacitated persons had no right of direct access to a court with a view to having their legal capacity restored, was not in line with the general trend at European level. Moreover, as regards the situation in Ukraine, the general prohibition on direct access to a court by that category of individuals did not leave any room for exception. Nor did the domestic law provide safeguards requiring the matter of restoration of legal capacity to be reviewed by a court at reasonable intervals. Lastly, it had not been shown that the domestic authorities had effectively supervised the applicant’s situation, including the performance of the guardian’s duties, or taken the requisite steps to protect her interests. Therefore, the applicant’s inability to directly seek the restoration of her legal capacity had resulted in that matter not being examined by the courts. The absence of judicial review of that issue, which had seriously affected many aspects of the applicant’s life, could not be justified by the legitimate aims underpinning the limitations on access to a court by incapacitated persons. The situation in which the applicant had been placed had amounted to a denial of justice as regards the possibility of securing a review of her legal capacity.
Conclusion: violation (unanimously).
Article 41: EUR 3,600 in respect of non-pecuniary damage.
(See also Stanev v. Bulgaria [GC], no. 36760/06, 17 January 2012, Information Note no. 148)

49069/11 – Legal Summary, [2013] ECHR 576
Bailii
European Convention on Human Rights 6-1
Human Rights
Cited by:
Legal Summary – Nataliya Mikhaylenko v Ukraine ECHR 30-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 01 November 2021; Ref: scu.511076

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 reason of frustration when she subsequently lost capacity, so that it did not govern the continued conduct of the proceedings by a receiver/deputy appointed by the Court of Protection to act on her behalf. Phillips Jhad held in a clear and cogent judgment that the CFA was not frustrated.
Held: The court now gave its reasons for dismissing the appeal. ‘ . . whatever the general position, the parties must have contemplated in the particular circumstances of this case that the claimant might suffer from a further period of incapacity in which she would be unable to give instructions personally but they could be given by a litigation friend or a receiver/deputy or on her behalf. I accept Mr Spearman’s submissions on that point . . The fact that supervening incapacity prevented the claimant from giving instructions personally did not render the contract of retainer impossible of performance; it simply gave rise to a short period of delay pending appointment of a receiver/deputy who could continue the conduct of the proceedings on the claimant’s behalf and give instructions to the solicitors for that purpose.’

Richards, McCombe, Sharp LJJ
[2015] EWCA Civ 18
Bailii
England and Wales
Citing:
Appeal from – 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, . .
Cited – 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 – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Drew v Nunn CA 1879
The supervening mental incapacity of a principal has the effect of terminating the actual authority of his agent: ‘The actual authority of an agent whether conferred by deed or not and whether expressed to be irrevocable or not, is determined by 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 – Yonge v Toynbee CA 1910
Solicitors conducted a whole series of interlocutory applications in the course of an action in ignorance of the fact that their client had been certified as being of unsound mind.
Held: When the action was ultimately aborted, they were held . .
Cited – The Fore Street Warehouse Company Ltd v Durrant and Co 1883
A writ had been served on the lunatic defendant’s business manager. The Court Rules provided: ‘When a lunatic or person of unsound mind not so found by inquisition is a defendant to the action, service on the committee of the lunatic, or on the . .
Cited – Donsland Limited v Nicholas Van Hoogstraton CA 2002
Once a transaction in respect of which the solicitor was retained is completed, the retainer comes to an end, and with it the fiduciary relationship between client and solicitor. . .
Cited – Findley v Motor Insurers’ Bureau and Another SCCO 13-Jan-2009
‘I find, therefore, that as from [the date the Claimant lost mental capacity] the Claimant was no longer able to give instructions, and the contract was at that point frustrated.’ . .
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.

Legal Professions, Contract, Health

Updated: 01 November 2021; Ref: scu.541911

A Local Authority v K: COP 15 Feb 2013

ala_kCoP2013

K was a young lady llivng amid her family with Downs syndrome. The family were thought too want her to be sterilised. The local authority applied to the court to determine whether this should be prevented. It was agreed that she was not currently sexually active and that there was no health condition requiring it.
Held: K would not have capacity to understand and weigh up the immediate medical issues, she lacks capacity in this regard and the court therefore considered making a decision in her best interests.
Cobb J said: ‘it is my judgment that sterilisation would be a disproportionate (and not the least restrictive) step to achieve contraception for K in the future (absent significant change in her circumstances). Plainly risk management is better than invasive treatment, it is less restrictive. Moreover, I am persuaded . . that there are less restrictive methods of achieving the purpose of contraception than sterilisation, and that in the event of a need for contraception, these ought to be attempted.’

Cobb J
[2013] EWHC 242 (COP)
Bailii
Mental Capacity Act 2005, European Convention on Human Rights 8
Citing:
Applied – A Local Authority v A and Another CoP 24-Jun-2010
Bodey J set out the test of capacity as to whether a woman of low intelligence could herself decide whether to use contraception. The test for capacity to be applied to ascertain a woman’s ability to understand and weigh up the immediate medical . .
Cited – R-B v Official Solicitor: Re A (Medical Sterilisation) 1999
. .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 01 November 2021; Ref: scu.470992

Bostridge v Oxleas NHS Foundation Trust: CA 10 Feb 2015

The claimant had been detained as a mental patient, but it was accepted that that detention had been unlawful as to over 400 days. The respondent argued that since he might have been detained in any event under other powers, he should receive only nominal damages. He now appealed asking for substantial damages.
Held: The appeal failed. ‘The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages. The identity of the route by which this same result might have been achieved is unlikely to be significant.’ Nor was human rights law of assistance to the claimant.

Sir Terence Etherton Ch
[2015] EWCA Civ 79
Bailii
England and Wales
Citing:
Cited – Christie v Leachinsky HL 25-Mar-1947
Arrested Person must be told basis of the Arrest
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the . .
Cited – Kuchenmeister v Home Office QBD 1958
The plaintiff, a German national landed at Heathrow airport en route to Dublin. The immigration officers, instead of refusing him leave to land (as they had been instructed to do), detained him at the airport until it was too late for him to catch . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .

Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Damages

Updated: 01 November 2021; Ref: scu.542438

French Republic v United Kingdom of Great Britain And Northern Ireland: ECJ 11 Jul 2013

ECJ Appeal – Action for annulment – Protection against transmissible spongiform encephalopathies – Regulation (EC) No 746/2008 – Regulation authorising less restrictive measures of surveillance and eradication than those previously laid down – Precautionary principle – Level of protection of human health – New elements capable of altering the perception of the risk – Failure to state reasons – Distortion of the facts – Error of law

C-601/11, [2013] EUECJ C-601/11
Bailii
Regulation (EC) No 746/2008
European

European, Health, Agriculture

Updated: 01 November 2021; Ref: scu.512342

RM v The Scottish Ministers: SC 28 Nov 2012

The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the appropriate Regulations.
Held: The appeal succeeded: ‘the Ministers’ failure to exercise their power to make the necessary regulations under section 268(11) and (12) of the 2003 Act by 1 May 2006, or since that date, has had the result that, although sections 268 to 271 are technically in force, they have no more practical effect today than they had on the date, more than nine years ago, when the 2003 Act received Royal Assent. The Ministers’ failure to make the necessary regulations has thus thwarted the intention of the Scottish Parliament. It therefore was, and is, unlawful.’

Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 58, 2012 GWD 40-774, [2012] 1 WLR 3386, [2012] WLR(D) 365, UKSC 2011/0212
Bailii, Bailii Summary, SC Summary, SC
Mental Health (Care and Treatment) (Scotland) Act 2003, Interpretation Act 1978, Interpretation and Legislative Reform (Scotland) Act 2010
Scotland
Citing:
Outer House – RM v The Scottish Ministers SCS 27-Aug-2008
The petitioner, a detained mental patient challenged the validity of orders made by the Mental Health Tribunal established under the 2003 Act. He said that, the respondents having not passed regulations providing complete processes for the . .
Appeal from – RM, Re Judicial Review SCS 21-Mar-2012
The applicant was detained in a mental hospital. After losing a challenge to being moved to a higher security section he found that he was unable to appeal because the Scottish Parliament had not passed Regulations proving the structure for an . .
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Cited – Singh (Pargan) v Secretary of State for the Home Department HL 10-Mar-1993
An issue arose as to whether the Secretary of State was required by section 18 of the Immigration Act 1981 to make regulations concerning the giving of notice of a decision for the purposes of appeal. if regulations were not made, the right of . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Regina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA 10-Nov-1994
The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
Cited – Nokes v Doncaster Amalgamated Collieries Ltd HL 1948
A Contract of Service is not a form of property
The employee coal miner was prosecuted for absenting himself from work. He was found liable by the justices and appealed. The basis of the appeal was that he had formerly been employed by the Hickleton Mining Company Limited. That had become . .
Cited – Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd CA 1951
Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the . .
Cited – Usher v Barlow CA 1952
A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Health

Updated: 01 November 2021; Ref: scu.466370

Hussain, Regina (on The Application of) v Secretary of State for Health and Social Care: Admn 21 May 2020

No interim relief for Mosque Services

The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities allowed.
Held: Interim relief was refused: ‘even accounting for the use of social distancing measures such as those that the Claimant proposes, it is possible to recognise a qualitative difference in terms of the risk of transmission of the virus between a situation such as a religious service where a number of people meet in an enclosed space for a period of an hour or more, and the transitory briefer contact likely in a setting such as that of shopping in a garden centre.’

Swift J
[2020] EWHC 1392 (Admin)
Bailii
European Convention on Human Rights 9 13, Health Protection (Coronavirus Restrictions) (England) Regulations 2020
England and Wales
Citing:
Cited – Smith v Inner London Education Authority CA 1978
Lord Denning MR doubted the applicability of the criteria in American Cynamid to public law proceedings. It is appropriate at the interface of public law and private law for the public interest to be taken into account as one of the factors in the . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 21-May-2010
The claimant challeged as unlawful the respondent’s policies as to expedited removals of persons from the United Kingdom. . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 01 November 2021; Ref: scu.651138

Lall, Regina v: CACD 19 Mar 2021

Choice of mental Health Sentencing Options

On conviction of manslaughter by reason of diminished responsibility, the judge imposed a hospital order and a restriction, without limit of time, under sections 37 and 41 of the Mental Health Act 1983. The AG appealed it as too lenient, suggesting imprisonment for life with a limitation restriction under s 45A of the 1983 Act.
Held: The reference of the sentence was refused, even though the judge had no followed the opinion of three experts: ‘each case turns on its own facts, including the question of which regime offers greater protection to the public. The judge referred in her sentencing remarks to the need to consider all available options including a s 45A order and to consider the importance of a penal element in the sentence taking into account the level of responsibility assessed at Step 1. She did not spell out in so many words why she considered that a sentence with a penal element was inappropriate. However, that explanation can be discerned without difficulty from the findings she made, in particular: (a) it is highly unlikely that Mr Lall would have committed the offence if he had remained in compliance with medication; (b) this non-compliance was attributable to the illness itself; (c) mental illness was therefore the significant driver for the offence; (d) the level of retained responsibility was ‘low’ though ‘at the upper end of the lower category’; (e) the unanimous view of the three psychiatrists who had given evidence was that public protection could best be achieved in this case by a section 37/41 order, in particular because, in the event of Mr Lall ever being released, mental health specialists were more likely than probation officers to pick up subtle signs of relapse, and under the s 37/41 regime recall can take place as quickly as within two hours.’

Lord Justice Bean
[2021] EWCA Crim 404
Bailii
Mental Health Act 1983 37 41 45A
England and Wales
Citing:
Cited – Vowles and Others, Regina v CACD 5-Feb-2015
The court considered appeals by prisoners subject to indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) passed between 1997 and 2008, where there had been medical evidence before the court suggesting the . .
Cited – Edwards, Regina v CACD 27-Mar-2018
The court considered issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment.
As to the release provisions relating to those subject to an order under ss 37/41 and those made subject to a s 45A order, . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Health

Updated: 01 November 2021; Ref: scu.659857

Bensaid v The United Kingdom: ECHR 6 Feb 2001

The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed that his article 3 and 8 rights would be infringed if he were removed to Algeria. His claim focused both on the medical treatment in the UK of which he would be deprived and the lack of such treatment in Algeria.
Held: His case under article 3 was not made out: the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria was ‘speculative’. ‘Private life is a broad term not susceptible to exhaustive definition . . Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.’

44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, [2001] INLR 325, 11 BHRC 297
Bailii
European Convention on Human Rights 3 8
Human Rights
Citing:
Appeal from – Regina and H M Immigration Officer v Bensaid CA 17-Jul-1998
Renewed application for leave to seek judicial review of the Chief Immigration Officer’s decision of 24 March 1997 to refuse the applicant leave to enter the United Kingdom . .
See Also – Regina v H M Immigration Officer ex parte Bensaid CA 21-Jul-1997
Application for leave to seek judicial review of the Chief Immigration Officer’s decision of 24 March 1997 to refuse the applicant leave to enter the United Kingdom. . .

Cited by:
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – N v the Secretary of State for the Home Department CA 16-Oct-2003
The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-May-2003
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted . .
Cited – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
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 – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – IM (Medical Facilities, Bensaid) Kosovo IAT 17-Jul-2002
. .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA 24-Jul-2009
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.166023

N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust: CA 24 Jul 2009

The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom to smoke does not engage article 8(1) of the Convention. The appeal failed: ‘We reject the argument that the right to smoke was an aspect of the ‘right to establish and develop relationships with other human beings and the outside world’, which Lord Hope placed ‘ to a certain degree’, within the scope of the protection of article 8 . . We accept the submission . . that, although there is some evidence that smoking in a hospital like Rampton had some elements of social interaction, it was very limited because it could only take place in small smoking rooms with few if any others being present at the same time.’ The Secretary of State had successfully justified the difference of treatment between mental health units and prisons. The Exemption Regulations did not go beyond what was contemplated in the 2006 Act. They were intra vires and were both reasonable and proportionate.

Lord Clarke of Stone Cum Ebony MR, Keene LJ, Moses LJ
[2009] EWCA Civ 795, Times 10-Aug-2009, [2009] HRLR 31, [2010] PTSR 674
Bailii
Smoke-Free (Exemption & Vehicles) Regulations 2007 10, European Convention on Human Rights 8 1, Mental Health Act 1983 3, Health Act 2006
England and Wales
Citing:
Cited – Bruggeman and Scheuten v Federal Republic of Germany ECHR 12-Jul-1977
(Commission) The applicants complained at restrictions on the termination of unwanted pregnancies.
Held: Article 8(1) secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Raninen v Finland ECHR 16-Dec-1997
The complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity.
Held: The application was rejected The . .
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 – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Kjeldsen, Busk Madsen and Pedersen v Denmark ECHR 7-Dec-1976
The court discussed the meaning of ‘other status’ under article 14, saying: ‘Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by . .
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 – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .

Lists of cited by and citing cases may be incomplete.

Health, Prisons

Updated: 01 November 2021; Ref: scu.361455

Stojak, Regina (on The Application of) v Sheffield City Council: Admn 22 Dec 2009

The deceased had been detained as a mental patient and supported after her release, by her family financially. Her representatives now said that the respondent had failed in its obligation to provide support for no charge. The authority said that the case brought by way of judicial review was brought out of time.
Held: The authority had sought out people to whom such support should have been given but had failed to find the deceased. However the claimant had initially failed to pursue the matter by way of judicial review, wrongly awaiting the outcome of a Local Government Ombudsman’s report, and time to claim should not be extended.

Grenfell S P
[2009] EWHC 3412 (Admin)
Bailii
Mental Health Act 1983 117
England and Wales
Citing:
Cited – Regina v Education Committee of Blackpool Borough Council ex parte Taylor 1999
The court emphasised that a party considering challenging by way of a judicial review a local government decision should not first await the outcome of a reference to the Local Government Ombudsman, since he has no power to set aside the decision. . .
Mentioned – Regina v Richmond London Borough Council, Ex Parte Watson; Regina v Redcar and Cleveland Borough Council, Ex Parte Armstrong etc Admn 15-Oct-1999
. .
Cited – Regina v Manchester City Council, ex parte Stennett etc HL 25-Jul-2002
The applicants were former mental patients who had been admitted to hospital compulsorily under section 3. On their release they were to be given support under section 117. The authorities sought to charge for these services, and appealed a decision . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health, Judicial Review

Updated: 31 October 2021; Ref: scu.384461

AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening: Admn 25 May 2010

The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not routinely funded.’
Held: The claim for judicial review failed. There was no general medical concensus to contradict the policy stance taken. The defendants had been correct not to treat the claimant’s case as exceptional, since the symptoms were not severe. As to the points proposed by the interveners: ‘the Defendants had due regard to the need to eliminate discrimination against transsexuals and to the need to promote equality of opportunity between transsexuals and non-transsexuals. Their gender dysphoria policy was drafted with great care and after extensive consultation.’

Bean J
[2010] EWHC 1162 (Admin), (2010) 116 BMLR 125, [2010] ACD 75, [2010] Med LR 281
Bailii
Gender Recognition Act 2004
England and Wales
Citing:
Cited – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
Cited – Regina v Cambridge Health Authority ex parte B CA 10-Mar-1995
The claimant challenged a refusal by the Authority to provide medical care of the sort requested.
Held: Lord Bingham said: ‘I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
Cited – North West Lancashire Health Authority v A D and G CA 29-Jul-1999
A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful . .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
Cited – A, Regina (on the Application of) v West Middlesex University Hospital NHS Trust Admn 11-Apr-2008
A sought judicial review of the decision of the defendants not to provide him with free medical care. The defendants had relied on National Guidance. He was an asylum applicant with temporary admission but claimed that he was ordinarily resident in . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – Eisai Ltd v The National Institute for Health and Clinical Excellence Admn 10-Aug-2007
The company sought to challenge the decision of the respondent not to approve its drug for use for the treatment of patients with Alzheimer’s disease.
Held: In requiring all patients to have a certain MMSE score in order to qualify for funding . .
Cited – Eisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
Cited – Baker and Others, Regina (on the Application of) v Secretary of State for Communities and Local Government and Others CA 28-Feb-2008
Dyson LJ considered the interaction between race relations law and planning permission in the context of gypsy encampments. He looked at section 71 of the 1976 Act and said: ‘In my judgment, it is important to emphasise that the section 71(1) duty . .
Cited – Kaur and Another, Regina (on the Application of) v London Borough of Ealing and Another Admn 29-Jul-2008
The applicants, representatives of the Black Sisters, challenged the implementation of a policy allocating grants. The authority required the services sponsored to provise services irrespective of race. The Black Sisters said this would impact . .

Lists of cited by and citing cases may be incomplete.

Health, Discrimination, Human Rights

Updated: 31 October 2021; Ref: scu.416116

C v V: CoP 25 Nov 2008

The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. V who had charge of the bookkeeping came to want to register the power, but C objected. After conflicting expert reports, the Court considered that something needed to be done and appointed V deputy (on her application), rather than an independent person, using his powers under the 2005 Act.
Held: The appeal succeeded. The decision had failed to take proper account of the parents’ expressed wishes: ‘the learned judge was wrong to dismiss as non-existent the implications from the EPAs’ having been joint appointments of the two daughters and not joint and several appointments. The difference between those two regimes is clearly spelled out in the notes on the form itself, and it must be assumed was appreciated and intended by Mr and Mrs S. On that basis, it was an almost inescapable inference that they, as donors of the powers, wanted relevant decisions either to be joint, or to be made by neither appointee, and did not want their affairs to be dealt with by the sole decision of one appointee alone.’
Both experts had recommended an independent professional as deputy, and ‘the possible disadvantages of having an impersonal Deputy managing their affairs at a formal level rather than V have been sufficiently conveyed to Mr and Mrs S as to mean that even the later expressions of their preferences are not invalidated, and should not be downgraded in weight on that account.’ As occasion allowed in due course the parents should be consulted as to whether this was working.
Marshall QC described the situation under the new Act: ‘there has been a whole sea change in the attitude of the law to persons whose mental capacity is impaired’ and ‘Two major changes are therefore embodied in the statute. The first is official recognition that capacity is not a blunt ‘all or nothing’ condition, but is more complex, and is to be treated as being issue specific. A person may not have sufficient capacity to be able to make complex, refined or major decisions but may still have the capacity to make simpler or less momentous ones, or to hold genuine views as to what he wants to be the outcome of more complex decisions or situations.
The second change is the emphasis throughout the Act on the ascertainment of the actual or likely wishes, views and preferences of the person lacking full capacity, and on involving him in the decision making process. This approach underlies s.1(2) (presumption of capacity), s 1(3) (duty to help P to make his own decision if he can), 1(4) (recognition that a person’s capacity, and therefore right, to make decisions does not depend on how objectively ‘wise’ those decisions are), s1(6) (P’s rights and freedom of action should be restricted as little as practicable), and s 4(4) (duty on decision maker to involve P in decisions), and it is the only conceivable reason for imposing the duty to consider P’s wishes or likely wishes (s 4.(6)) and to take trouble to ascertain them s (4 (7)).’

Marshall QC J
[2008] EWHC B16 (COP), [2008] EWHC B16 (Fam), [2009] LS Law Medical 97, [2009] WTLR 315
Bailii, Bailii
Mental Capacity Act 2005 1
England and Wales
Citing:
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Cited – Asiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .

Lists of cited by and citing cases may be incomplete.

Health, Agency

Updated: 31 October 2021; Ref: scu.431218

Seal v United Kingdom: ECHR 7 Dec 2010

The court considered a procedural filter which prevented the bringing of a claim relating to the exercise of powers under the 1983 Act without the leave of the court.
Held: ‘The Court notes at the outset that the Applicant pursued his complaints under Article 6 (1) of the Convention through four tiers of the domestic courts, which gave considered and detailed judgments. In contrast, the issues arising under Article 14 taken in conjunction with Article 6 (1) have never been raised before the domestic courts. The applicant has failed to explain in any detail why he considered that domestic proceedings were effective in respect of his Article 6 (1) complaint but would be ineffective in respect of his Article 14 complaint.’
The Court noted that: ‘that the restriction in section 139(2) of the 1983 Act was in the form of an additional procedural requirement before the commencement of a civil claim, and did not grant any immunity from civil proceedings. Further, any request for leave was considered by an independent High Court Judge, and would be granted in the case of a well-founded claim.’
Lech Garlicki, P
[2010] ECHR 1976, 50330/07, [2011] MHLR 1, (2012) 54 EHRR 6
Bailii
European Convention on Human Rights, Mental Health Act 1983 139(2)
Citing:
See Also – Seal v United Kingdom ECHR 18-May-2009
The applicant complained that, as a mental patient, he was bound to obtain permision before beginning legal proceedings. . .

Cited by:
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.509111

Mrs P v Rochdale Borough Council and Another: CoP 18 Jul 2016

Final hearing in relation to matters concerning the deprivation of liberty of Mrs P and her care arrangements. In this particular case the issues of her welfare and residence are inextricably linked with the appointment of a deputy that is managing her property and finances.
Matharu DJ
[2016] EWCOP B1
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.568154

Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others: CA 28 Jun 2002

The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as unreasonable, and detained him further under 5(3).
Held: If the hospital authority considered the tribunal’s decision unreasonable, it must first apply for judicial review, rather than detain the patient. A second tribunal had since decided how should not be released in any event, but the principle was important. The procedure should be by way of judicial review under rule 54.10. A judicial review decision did re-write history, in setting aside a decision, and therefore the fact that events following the decision had been concluded was no bar. It was therefore equally possible to order a stay under the same procedure.
Dyson L.J. stated that the purpose of a stay in judicial review is clear: ‘It is to suspend the ‘proceedings’ that are under challenge pending the determination of the challenge. It preserves the status quo. This will aid the judicial review process and make it more effective. It will ensure so far as possible, that, if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success. In Avon, Glidewell LJ said that the phrase ‘stay of proceedings’ must be given a wide interpretation so as to apply to administrative decisions. In my view it should also be given a wide interpretation so as to enhance the effectiveness of the judicial review jurisdiction. A narrow interpretation, such as that which appealed to the Privy Council in [Minister of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Ltd. [1991] 1 W.L.R. 550] would appear to deny jurisdiction in case A [i.e. where the tribunal ordered discharge, but the order had not yet taken effect because the tribunal directed that the discharge was to be deferred to a specific future date]. That would indeed be regrettable and, if correct, would expose a serious shortcoming in the armoury of powers available to the court when granting permission to apply for judicial review . . [It] is common ground that ‘proceedings’ includes not only the process leading up to the making of the decision itself. The Administrative Court routinely grants a stay to prevent the implementation of a decision that has been made but not yet carried into effect, or fully carried into effect. A good example is where a planning authority grants planning permission and an objector seeks permission to apply for judicial review. It is not, I believe, controversial that, if the court grants permission, it may order a stay of the carrying into effect of the planning permission.’
Dyson LJ also discussed the effect of the lack of resources on litigation: ‘I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.’
Simon Brown LJ based his reasoning on the rule of law, stating: ‘. . the tribunal’s view must prevail; the authority cannot simply overrule the discharge order. Court orders must be respected – the rule of law is the imperative here.’
Lord Justice Simon Brown, Lord Justice Mummery and Lord Justice Dyson
Times 10-Jul-2002, Gazette 01-Aug-2002, Gazette 05-Sep-2002, [2002] EWCA Civ 923, [2003] 1 WLR 127, 70 BMLR 40
Bailii
Mental Health Act 1983 3 5(3), Civil Procedure Rules 54.10
England and Wales
Cited by:
Cited – Paterson v Commissioner of Police of the Metropolis EAT 23-Jul-2007
EAT PART TIME WORKERS
A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government Admn 16-Dec-2010
Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was . .
Cited – T, Regina (on The Application of) v Legal Aid Agency and Others Admn 26-Apr-2013
In care proceedings, an order had been made for the preparation of an expert report. The legally aided children applied to the defendant for assistance. It allowed a sum less than the minimum figure set by the expert company as a fee for doing the . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.174112

KW and Others v Rochdale Metropolitan Borough Council: CA 20 Oct 2015

The court heard an appeal as to care directions given under the 2005 Act, and in particular whether they infringed the patient’s human rights. The judge of the Family Division took the view that a decision of the Court of Appeal was ultra vires.
Held: Lord Dyson MR stated: ‘An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (Lunn) v Governor of Moorland Prison [2006] 1 WLR 2870, para 22; Serious Organised Crime Agency v O’Docherty [2013] CP Rep 35, para 69. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1994] 1 AC 377, 423; Isaacs v Robertson [1985] AC 97, 101-103.’
Lord Dyson MR, Black, Underhill LJJ
[2016] CP Rep 6, [2016] 2 All ER 181, [2015] EWCA Civ 1054, [2016] 1 WLR 198, [2015] WLR(D) 425, [2016] 1 FCR 604, [2016] COPLR 77, (2015) 18 CCL Rep 744
Bailii, WLRD
Mental Capacity Act 2005, Europeaan Convention on Human Rights
England and Wales
Cited by:
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.553684

Regina v Ashworth Special Hospital Authority and Another, ex parte N: QBD 26 Jun 2001

A secure hospital charged with caring for patients considered to be at high risk, imposed rules for monitoring 100 per cent of the telephone calls of high risk prisoners, and a random ten per cent of lower risk patients. Privileged calls were not intercepted. It was held that although this was an infringement of the right to respect for his correspondence, the steps were taken balanced against an understanding of the high risks of escape and other damage which might be suffered. The interceptions took place in accordance with policies approved by the Home Secretary. The interceptions were lawful.
Times 26-Jun-2001
Human Rights Act 1998
England and Wales

Updated: 26 October 2021; Ref: scu.88371

Regina (on the Application of Hunter) v Ashworth Hospital Authority: Admn 30 Oct 2001

The court described the regime imposed at Ashworth Hospital as ‘inevitably intense for safety and security reasons. All high risk patients and newly-admitted patients are subject to a high degree of observation at all times. Regular checks are made on all occupants. A patient is allowed time in communal areas of the hospital with other patients only with close observation and after a detailed risk assessment. ‘
Sir Christopher Bellamy QC J
[2001] EWHC Admin 872
Bailii
England and Wales
Cited by:
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.167253

Regina (on the Application of E) v Ashworth Hospital Authority: Admn 19 Dec 2001

The applicant had been detained under the Act. He sought to be allowed to wear women’s clothing.
Held: There is an implied power for hospital authorities to exercise control over what inmates wore. Here, the power was being exercised for both the purpose of detention and treatment. The decision to impose the restrictions was a rational one.
Times 17-Jan-2002, [2001] EWHC Admin 1089
Bailii
Mental Health Act 1983
England and Wales

Updated: 26 October 2021; Ref: scu.167371