The claimant a 35 year old woman with severe learning disabilities caused by cerebral palsy brought the proceedings to challenge the decision of the Lincolnshire Health Authority to cease to provide long stay care for her at Long Leys,
David Pannick QC
[2001] EWHC Admin 685
Updated: 28 July 2022; Ref: scu.347087
The court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote a vulnerable adult’s welfare and interests. The inherent jurisdiction of the High Court encompasses situations in which the necessity doctrine does not arise, because there is no tort to which a defence is required, but there is still jurisdiction to declare whether something is, or is not, in a person’s best interests.
[2006] EWHC 3460 (Fam), [2007] 2 FLR 1115
England and Wales
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2022; Ref: scu.263393
The Court of Protection was concerned with an 82-year old woman, whom I shall refer to as ‘KK’, who is currently living in a nursing home, hereafter called ‘STCC’. All the evidence suggests that she is being looked after very well. But KK says that she wants to go home to the bungalow where she lived before she was admitted to STCC.
[2012] EWHC 2136 (COP)
England and Wales
Updated: 26 July 2022; Ref: scu.464680
[2003] EWHC 3467 (Admin)
England and Wales
Updated: 26 July 2022; Ref: scu.344027
Cox DBE J
[2008] EWHC 2912 (Admin), [2008] MHLR 361
England and Wales
Updated: 26 July 2022; Ref: scu.343950
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as suffering for the purpose of the order or application authorising his detention.
Held: The words of section 63 mean what they say. They authorise a patient to be treated for any mental disorder from which he is suffering, irrespective of whether this falls within the form of disorder from which he is classified as suffering in the application, order or direction justifying his detention. The condition for which his detention was originally detained did not preclude treatment for any supervening orders.
Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell
Times 18-Mar-2005, [2005] 2 WLR 695, [2005] UKHL 20
England and Wales
Appeal from – B, Regina (on the Application of) v Ashworth Hospital Authority CA 15-Apr-2003
B having been made subject to a court hospital order classifying him as suffering from a mental illness, complained when he was later detained under section 63 as subject to a personality disorder.
Held: At all times, B was classified as . .
Cited – Pountney v Griffiths; Regina v Bracknell Justices, Ex parte Griffiths HL 1976
The applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to ‘come on’ and allegedly punched him on the shoulder. The patient brought . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
Cited – B v Croydon Health Authority CA 30-Nov-1994
The feeding by tube of a mental patient who was unable and unwilling to consent can remain treatment, and within the decision of the doctors. In the context of whether the force-feeding an anorexic was authorised by section 63, the Court of Appeal . .
Cited – W v L CA 1974
For civil patients, it matters a great deal whether the classification of their condition is ‘severe subnormality’ or just ‘subnormality’ or whether it is ‘mental illness’ or ‘psychopathic disorder’. Lawton LJ discussed the construction of the . .
Cited – 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 – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Aerts v Belgium ECHR 30-Jul-1998
A person detained as a person of unsound mind should not be kept in a prison, but if the institution concerned is within the appropriate category, there is no breach of Article 5. While measures depriving a person of his liberty often involve an . .
Cited – Herczegfalvy v Austria ECHR 24-Sep-1992
The applicant was detained in an institution for mentally deranged offenders. While so detained he was subjected to the forcible administration of food and neuroleptics and to handcuffing to a security bed. He complained of violation of his Article . .
Cited – J and others v Switzerland ECHR 5-Apr-1995
Even relatively minor medical treatment, if compulsory, may engage article 8. . .
Appealed to – B, Regina (on the Application of) v Ashworth Hospital Authority CA 15-Apr-2003
B having been made subject to a court hospital order classifying him as suffering from a mental illness, complained when he was later detained under section 63 as subject to a personality disorder.
Held: At all times, B was classified as . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2022; Ref: scu.223639
Request for reconsideration of revocation of power of attorney and appointment of local authority to stand appointed instead.
Lush SJ
[2015] EWCOP 33
England and Wales
Updated: 25 July 2022; Ref: scu.546451
The parties disputed the care of MN, a young adult without capacity.
Held: Munby P gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it; second, it should not embark upon such an enquiry in order to provide a platform or springboard for possible future proceedings in the administrative court; third, such an exercise runs the risk of confusing the different perspectives and principles governing the exercise by the Court of Protection of its functions and the exercise by a public authority of its functions; and fourth, it would risk exposing the public authority to impermissible pressure.
Sir James Munby P pointed out that ‘the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate’
Sir James Munby P FD, Treacy, Gloster LJJ
[2015] EWCA Civ 411, [2015] COPLR 505, [2016] Fam 87, [2015] Med LR 287, [2015] 3 WLR 1585, [2015] WLR(D) 208, (2015) 18 CCL Rep 521
England and Wales
At CoP – ACCG and Another v MN and Others CoP 20-Nov-2013
Application for order under the 2005 Act restricting contact between the young adult child with disabilities and his family. Eleanor King J described his condition saying he had: ‘severe learning and physical disabilities together with autism and an . .
Cited – A v Liverpool City Council HL 1981
Though the child was subject to a care order in favour of the local authority, a wardship order was sought.
Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which . .
Leave – ACCG and Another v MN CA 25-Jun-2014
Two renewed applications for permission to appeal from a judgment of the CoP regarding provision of support for home visits for a young adult with severe health difficulties and the scope of the power of the CoP to make provisions. . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.546455
Application for order under the 2005 Act restricting contact between the young adult child with disabilities and his family. Eleanor King J described his condition saying he had: ‘severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death. A nurse has to be available at all times to administer emergency drugs to MN if the need arises. MN had poor muscle tone and uses a wheelchair. He is doubly incontinent. MN has the cognitive ability of a child aged less than 1 year. He has no speech but can express his feelings by facial expression, sounds and gestures. MN needs help with feeding as he is vulnerable to choking; he requires 2:1 care with his personal care and accessing the community. Overall MN has to have his carers nearby at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him.’
Held: ‘If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care. The care providers . . may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with MN’s mother. MN with capacity would have the following options: (i) accept the conditions of residence at the care provider’s establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care. What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers . . to agree to his mother coming into their facility and ‘assisting’ with his intimate care.’
Eleanor King DBE J
[2013] EWHC 3859 (COP), [2013] EWCOP 3859
Mental Capacity Act 2005 16(2)(a)
England and Wales
At CoP – ACCG and Another v MN CA 25-Jun-2014
Two renewed applications for permission to appeal from a judgment of the CoP regarding provision of support for home visits for a young adult with severe health difficulties and the scope of the power of the CoP to make provisions. . .
At CoP – Re MN (Adult) CA 7-May-2015
The parties disputed the care of MN, a young adult without capacity.
Held: Munby P gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to . .
At CoP – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.518977
The scope of the declarations which may be made by the Court of Protection under section 15 may be narrower than the scope of those which may be made in the High Court
[2012] EWHC 2183 (COP), [2012] EWCOP 2183, [2013] 2 All ER 988
England and Wales
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.464682
The court may determine a case summarily of its own motion, but their power ‘must be exercised appropriately and with a modicum of restraint’.
Horowitz QC
(2009) 12 CCL Rep 671, [2010] Fam Law 244, [2010] WTLR 69, [2009] EW Misc 7 (EWCOP), [2010] 1 FLR 1393
England and Wales
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.406661
Her Honour Judge Marshall QC
[2009] EWHC B30 (Fam)
England and Wales
Updated: 25 July 2022; Ref: scu.381749
Challenge to proposed treatment of young boy with severe major neurone disorder.
Bennett J
[2007] EWHC 1611 (Admin)
England and Wales
Updated: 24 July 2022; Ref: scu.331107
Hale LJ
[2000] EWCA Civ 3028
England and Wales
Updated: 24 July 2022; Ref: scu.330955
Application for permission to appeal against removal of applicant as designated nearsest relative of his son.
[2000] EWCA Civ 3025
England and Wales
Updated: 24 July 2022; Ref: scu.330957
[2000] EWCA Civ 3029
England and Wales
Updated: 24 July 2022; Ref: scu.330961
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She asserted that his retention in care was an unlawful detention.
Munby J
[2006] EWHC 3459 (Fam), (2007) 10 CCL Rep 149, [2008] Fam Law 118, [2007] MHLR 39, [2007] 2 FLR 1150
Human Rights Act 1998 7, European Convention on Human Rights 5 8
England and Wales
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Nielsen v Denmark ECHR 28-Nov-1988
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, . .
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 Bournewood Community and Mental Health NHS Trust ex parte Rosling, (By Official Solicitor His Litigation Friend) Admn 8-Jul-1999
. .
Cited – Storck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .
Cited – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – HM v Switzerland ECHR 26-Feb-2002
. .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Applied – GJ v The Foundation Trust and Another FD 20-Nov-2009
The statutory provisions of the 2007 Act for review of standard authorisations were matters that the Court of Protection should take into account in determining whether it should make an order authorising the deprivation of P’s liberty, and if so . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.249183
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was said that the policy of only providing Herceptin in exceptional cases only was unlawful as arbitrary.
Held: The Authority had made it clear that cost was not the issue. Some authorities had decided to fund all women in the eligible group: ‘Many people will think that the more generous policy of authorities such as those listed . . . above is a better one than Swindon’s. Which is the better policy is a matter for political debate, but it is not an issue for a judge. The question for me is whether Swindon’s policy is irrational and thus unlawful. I cannot say that it is. ‘ It had not been shown that the policy was contrary to any guidance, nor was it unlawful under English or human rights law.
Bean J
[2006] EWHC 171 (Admin)
National Health Service Act 1977 1 2 3
England and Wales
Cited – Regina v Secretary of State for Social Services ex parte Hincks 1980
The respondent’s duties under s3 of the 177 Act are not absolute. . .
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 – 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 – Regina v Cambridge and Huntingdon Health Committee Ex Parte B CA 10-Mar-1995
A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests . .
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 – 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 – Sharp v Wakefield HL 1891
Lord Halsbury LC considered the power of the duty of magistrates to consider the wants or needs of the neighbourhood and the nature of discretion: ‘discretion means, when it is said that something is to be done within the discretion of the . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
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 – Nitecki v Poland ECHR 21-Mar-2002
The applicant was an elderly man suffering from a life-threatening condition known as amyotrophic lateral sclerosis (ALS). He was prescribed the drug Rilutek to treat the disease but could not afford to pay for it.
Held: His complaints to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.238528
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 broadcast, and she wished to criticise her care.
Held: An injunction was refused. ‘If Pamela has capacity then, just as in the case of a ‘Gillick competent’ child, her wishes are determinative. The court cannot exercise the inherent jurisdiction and, unless Pamela herself wishes to apply for an injunction (and she does not), it follows that the court equally cannot grant any injunction.’ The applicant had first to establish lack of capacity. The 2005 Act, whilst not yet in force applied many common law principles. The claimants had not established that it was likely that they would be able to establish lack of capacity to consent at trial. Obiter, te claimant had failed also to establish that it was not in the patient’s best interests for the film to be shown.
Munby J
[2005] EWHC 1144 (Fam)
England and Wales
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 – Presidents Practice Direction (Applications for Reporting Restriction Orders) 2005
. .
Cited – Practice Note (Official Solicitor: Deputy Director of Legal Services: Cafcass: Applications for Reporting Restriction Orders) 2005
. .
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 – 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 – In re a local authority (Inquiry: restraint on publication); A Local Authority v A Health Authority and A FD 27-Nov-2003
The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain . .
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 – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
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 – S v McC; W v W HL 1972
The distinction between the court’s ‘custodial’ and ‘protective’ jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter . .
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 – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
Cited – In Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
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 – Re A (Male Sterilisation) CA 2000
The court considered the duties of a doctor, asking whether a procedure should be undertaken for a patient without the capacity to consent: Dame Elizabeth Butler-Sloss said: ‘The doctor, acting to that required standard, has, in my view, a second . .
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 – 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 – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that 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 – Nottingham City Council v October Films Ltd FD 21-May-1999
There is a need to protect children from exploitation by the media. Film makers who sought to persuade vulnerable children to participate in filming could be required to provide undertakings to the court not further to do so.
Sir Stephen Brown . .
Cited – CF v Secretary of State for the Home Department FD 30-Jan-2004
The court considered the choice or procedures arising in relation to a baby ward of court living with its mother in prison. The sentence to be served would take the child beyond the maximum age provided for in mother and baby units. . .
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 – Practice Direction (Family Proceedings: Court Bundles) 10-Mar-2000
There should at be lodged with the court a summary of the background to the hearing; a statement of the issue or issues to be determined; a summary of the order or directions sought by each party; a chronology; and skeleton arguments. . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.228569
[2004] NIQB 19
Northern Ireland
Updated: 24 July 2022; Ref: scu.195148
[2009] EWHC 491 (Admin)
Health and Social Services and Social Security Adjudications Act 1983 17
England and Wales
Updated: 23 July 2022; Ref: scu.323731
‘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.’
[2009] EWHC 90130 (Costs)
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.
Updated: 23 July 2022; Ref: scu.316663
[2008] EWHC 3383 (Admin)
England and Wales
Updated: 23 July 2022; Ref: scu.293961
The petitioner challenged the decision of the respondents to flouridate the water supply, claiming that it was damaging to her health. Her challenge was on four gounds, namely: (1) ultra vires, (2) nuisance, (3) breach of the Water (Scotland) Act 1980, and (4) breach of the Medicines Act 1968.
Lord Jauncey
[1983] ScotCS CSOH – 2, [1984] JPL 351, 1983 SC 225, 1983 SLT 616
Medicines Act 1968, Water (Scotland) Act 1980
Scotland
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2022; Ref: scu.279524
Mr Justice Leveson
[2004] EWHC 533 (Admin)
England and Wales
Updated: 21 July 2022; Ref: scu.195019
The Commission declared admissible a complaint from a Broadmoor patient who had been secluded for five weeks after a fire. A friendly settlement was reached, without admission of liability but on the basis that new guidelines for the use of seclusion would be issued, as indeed they were.
(1980) 3 EHRR 131
Human Rights
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.185209
The claimant was detained iin a secure mental hospital. He complained of being held in seclusion for a long period, and as to the hospital’s policy.
Held: The hospital’s policy, by reducing the frequency of review of a patient’s seclusion below that provided for in the Code of Practice, was unlawful and was not justified by the fact that the hospital was a maximum secure hospital. In particular, the failure after the third day of seclusion to have twice-daily medical reviews of the continuation of seclusion was not justified.
The Code of Practice for Seclusions issued under the Act was directed at all seclusions, including those lasting more than three days. A departure would be lawful only if justified by ‘a good reason arising from the particular circumstances at Ashworth hospital. There was no justification for abandoning the requirement that one of the nurses reviewing the seclusion was not involved in the original decision to seclude, which should apply ‘where practicable’. The policy of reducing medical reviews to one per day was too great a departure from the Code but twice daily reviews after the patient had been secluded for three days would be appropriate. He granted a declaration that ‘a. the Ashworth Special Hospital Authority Seclusion Procedure is unlawful in that it does not require one of the nurses who carries out the 2 hourly review to be independent from the initial decision to seclude, and that it reduces the frequency of review by a doctor after a patient has been secluded for more than 24 hours b. the Ashworth Special Hospital Authority Seclusion Guidance at paragraph 6.8.1. is unlawful for the reasons set out at Part 3 of the judgment.’
Jackson J
[2000] MHLR 183
England and Wales
See Also – 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 . .
See Also – Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2) Admn 5-Jul-2002
The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under . .
See Also – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
First case – C Munjaz v United Kingdom ECHR 20-Mar-2008
The applicant complained of his seclusion whilst being detaned at a secure mental hospital.
Held: The court referred several questions back to the parties to be answered. . .
First case – Munjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.185206
[2015] NIFam 8
Northern Ireland
Updated: 21 July 2022; Ref: scu.567191
Application for declarations that the respondent health Board had improperly interfered with the claimant’s right to family life in associating with his wife.
Held: The application failed: ‘Mrs B did not want to see her husband or want him to be involved in her care. In short, she wanted to end her relationship with him. These were her wishes. There was no undue influence. She had capacity at the time.2
Moor J
[2013] EWHC B23 (COP), [2013] EWCOP B23
England and Wales
Updated: 21 July 2022; Ref: scu.518976
The court heard a dispute between the local authority and members of TC’s family as to his future care. TC suffered dementia and had been given notice to leave his nursing home, and was in hospital.
McFarlane J
[2007] EWHC 2640 (Fam)
England and Wales
Updated: 21 July 2022; Ref: scu.279033
The claimant had sought fertility treatment with her husband. Now, after his death, she sought an order to declare lawful the continued use of the stored gametes.
Held: The request failed. Without explicit consent, the court had no power to make an order anticipating the decision of the Authority respondent. Any rights of the claimant would arise only on the Authority’s decision.
Charles J
[2008] EWHC 2149 (Fam)
Human Fertilisation and Embryology Act 1990 24(4)
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278558
A Court reviewing a decision of the Medicines Control Agency does not decide whether the product is a medicine, but whether the decision had been properly reached.
Collins J
Times 29-Jul-1997, [1997] EWHC Admin 674
England and Wales
Appeal from – Regina v Medicines Control Agency ex parte Pharma Nord Ltd CA 10-Jun-1998
Once the Medicines Control Agency has decided that a product is a medicinal product and licensable as such, the courts should not seek to substitute their own judgment. Residuary discretion for declaration not used. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.87315
Hedley J
[2006] EWHC 319 (Fam)
England and Wales
See Also – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.279016
Mummery, Richards, Stanley Burton LJJ
[2008] EWCA Civ 1112, [2008] MHLR 306
England and Wales
Updated: 19 July 2022; Ref: scu.277309
[2008] EWHC 2315 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.277011
Maurice Kay J
[2003] EWHC 1094 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.185317
Morgan J did not think it a relevant consideration when setting the terms of a statutory will under the 2005 Act, that the patient should be remembered for having done the right thing. Under the new arrangements of the Act, the making of the gift and/or the terms of the will are not being made by P but by the court. Furthermore, insofar as there is a dispute between family members, the unsuccessful members are not likely to think that he had done the right thing.
Morgan J
[2011] WTLR 231
England and Wales
Cited – NT v FS and Others CoP 26-Mar-2013
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 July 2022; Ref: scu.510002
[2013] UKUT 320 (AAC)
England and Wales
Updated: 19 July 2022; Ref: scu.514380
[2011] EWHC 3321 (COP)
England and Wales
Updated: 19 July 2022; Ref: scu.452489
[2008] EWHC 2356 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.276989
Application for judicial review of decision to limit funding for drug for care of cancer patients.
Burnett J
[2008] EWHC 1908 (Admin)
England and Wales
Updated: 19 July 2022; Ref: scu.272757
The patient had been detained under section 3. He applied to challenge his detention, but before the hearing, he was accepted on to a programme for supervision following his intended release the day before the hearing. His solicitors notified the tribunal of his change in status, but now appealed their refusal to decide his application.
Held: The hearing had been cancelled properly. The evidence required would be different for what would now be a different hearing. A new application was required in respect of his new status as a patient subject to supervised discharge.
Stanley Burnton J
[2005] EWHC 2923 (Admin), Times 04-Jan-2006
Mental Health (Patients in the Community) Act 1995, Mental Health Act 1983 3
England and Wales
Distinguished – Regina v South Thames Mental Health Review Tribunal (ex parte M ) Admn 3-Sep-1997
An application to a Tribunal made by a patient detained for assessment under section 2 remained effective on his becoming detained for treatment under section 3 and had to be heard by the Tribunal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 July 2022; Ref: scu.236655
[2013] ScotSC 12
Adults With Incapacity (Scotland) Act 2000
Scotland
Updated: 18 July 2022; Ref: scu.513818
The claimant, a detained mental patient said that his continued detention in a higher security unit was not required.
Platts HHJ
[2012] EWHC 521 (QB)
England and Wales
Updated: 18 July 2022; Ref: scu.519779
The adult patient TB suffered both physical and mental delusional disabilities. The carers felt that community support and treatment having failed, only intensive residential reatment would help. She resisted this proposed detention.
Held: The court considered its powers under the 1983 and the 2005 Act, and ‘if by operation of section 16A (2) (b) above TB is ineligible to be deprived of her liberty under this Act the only potential option for detaining her lawfully would be under the MHA 1983. But if I were to take that jurisdictional route she could not, for the reasons earlier adverted to, be detained at V.’
Wood J
[2009] EWHC 1737 (Fam)
Mental Capacity Act 2005 4A, Mental Health Act 1983
England and Wales
Updated: 18 July 2022; Ref: scu.349069
The claimant a patient in Rampton hospital sought disclosure of a report prepared on him for the hospital.
Cranston J
[2008] EWHC 1934 (QB)
Updated: 18 July 2022; Ref: scu.271334
The court considered the place of human rights considerations in local authority decisions regarding the care and placement of incapacitated adults.
Held: The situation should be reviewed at least annually and at shorter intervals as circumstances required.
Munby J
[2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, [2008] Fam Law 997, [2008] MHLR 274, (2008) 11 CCL Rep 467
England and Wales
See Also – Salford City Council v BJ (Incapacitated Adult) FD 11-Dec-2009
. .
Cited – P and Q v Surrey County Council CA 28-Feb-2011
The appellant sisters, both with substantial learing disabilities appealed against a declaration that the arrangements made for their care by the respondent did not amount to a deprivation of their liberty. In either case, they would only be allowed . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 July 2022; Ref: scu.270961
[2003] EWHC 3152 (Admin)
England and Wales
Updated: 17 July 2022; Ref: scu.193692
The defendant sought to use the sperm of her deceased husband for her insemination. The deceased had apparently withdrawn his consent to the use of his sperm posthumously. His widow claimed that he had been influenced to change the form, by an implied threat that the treatment would not continue.
Held: the case of re T established that for undue influence it must be shown that the patients will was overborne. That was not the case here.
The President
[2002] EWHC 36 (Fam)
Human Fertilisation and Embryology Act 1990
England and Wales
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 – In re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
Appeal from – Mrs U v Centre for Reproductive Medicine CA 2002
The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.167528
Proceedings which invoked the jurisdiction of the High Court to grant declarations as to the best interests of incapacitated adults were civil proceedings to which the Civil Procedure Rules applied. Although not assigned to any division, having regard to their nature and the issues raised within them, such proceedings were more suitable for hearing in the Family Division.
Accordingly, those proceedings should be commenced, and would be determined, as follows:
Dame Elizabeth Butler-Sloss, President of the Family Division
Times 04-Jan-2002, [2002] 1 WLR 325
England and Wales
Cited – Practice Note: Declaratory proceedings: Medical and welfare decisions for adults who lack capacity 2001
. .
Cited – A (a Patient) v A Health Authority and Others; In re J (a Child); Regina (S) v Secretary of State for the Home Department and Another CA 24-Jan-2002
The case asked how cases involving disputes as to the care of children, and of the treatment of adults claimed to be mentally incompetent. Where the issues were solely ones of public law, then they should be heard by way of judicial review in the . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 July 2022; Ref: scu.167325
[1997] EWHC Admin 174
England and Wales
Updated: 17 July 2022; Ref: scu.137119
Order as regards proposed medical procedure on child.
[2019] EWHC 1244 (Fam)
England and Wales
Updated: 17 July 2022; Ref: scu.639756
[2019] EWHC 1671 (Fam)
England and Wales
Updated: 17 July 2022; Ref: scu.639760
The court considered the extent of a Mental Health Review Tribunal’s powers to attach conditions to a direction to discharge a restricted patient from the hospital where he is detained.
[2002] EWCA Civ 1868, [2003] MHLR 202, (2003) 6 CCL Rep 319
England and Wales
Updated: 17 July 2022; Ref: scu.270478
Silber J
[2004] EWHC 56 (Admin)
England and Wales
Updated: 15 July 2022; Ref: scu.192143
C, an unqualified social worker, had complained of his listing as a person unsuitable to work with children. The SS now appealed from his success on that complaint.
Scott Baker J
[2002] EWHC 1381 (Admin)
Protection of Children Act 1999 1 3
England and Wales
Updated: 15 July 2022; Ref: scu.175118
Appeal against order for removal – overstayer – suffering HIV and receiving active and successful treatment.
[2008] EWCA Civ 510
England and Wales
Updated: 15 July 2022; Ref: scu.267894
Medical treatment, may well be experienced as degrading by a patient who is subjected to it against his will, but ‘A measure which is therapeutically necessary from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading’
52515/99, [2008] ECHR 379, (2008) 49 EHRR 534
European Convention on Human Rights
Cited – Herczegfalvy v Austria ECHR 24-Sep-1992
The applicant was detained in an institution for mentally deranged offenders. While so detained he was subjected to the forcible administration of food and neuroleptics and to handcuffing to a security bed. He complained of violation of his Article . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.267641
The court considered issues arising on the making of hospital orders by criminal courts: ‘ the intention of the section is that someone made the subject of a hospital order should take up a place at a hospital or other unit specified in the court order within 28 days of the order. The broad issue that arises for consideration in this case is the legal status of someone who a court intends should be received into a particular hospital or unit pursuant to such an order within 28 days of the order, but in fact is not received into that hospital or unit until after the expiration of that period with no additional authority by the court having been given. Does that result in the court’s order becoming frustrated and of no further effect such that the continued detention of the patient thereafter is unlawful? Or does the order still have effect and the continued detention fall to be treated as being authorised by the order of the court?’
Foskett J
[2008] EWHC 986 (Admin), [2008] MHLR 139, [2008] LS Law Medical 359
England and Wales
Updated: 14 July 2022; Ref: scu.267584
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 the UK.
Held: The review was successful. It was not correct to say that somebody could not become ordinarily resident here because their asylum application had been turned down.
Mitting J
[2008] EWHC 855 (Admin), Times 11-May-2008
National Health Service (Charges to Overseas Visitors) Regulations 1989 (SI/1989/306)
Still good law – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 July 2022; Ref: scu.267084
Application by an NHS Trust for declarations in relation to the best interests of a boy known in the proceedings as KH. The Trust seeks approval of a medical treatment plan which comes before the court because there are some matters that are not agreed and because the treatment plan involves the withholding of life-sustaining treatment in the event of a serious deterioration in KH’s condition.
Peter Jackson J
[2012] EWHC B18 (Fam), [2013] Med LR 70, [2013] Fam Law 34
England and Wales
Updated: 13 July 2022; Ref: scu.464868
application for permission to appeal – whether applicant had capacity.
[2001] EWCA Civ 2057
England and Wales
Updated: 13 July 2022; Ref: scu.218595
The applicant had been a detained mental patient. He was granted a deferred order for his release. He challenged the delay of the respondent and his refusal to allow release under section 17 for overnight stays out of the hospital.
Held: The secretary of state had a duty to act with reasonable speed. The department had chosen in practice to rely upon section 43 to control a patients behaviour in this situation, but that was wrong, and the proper section to act under was section 17. The 1983 Act could be read so as not to deny the applicant’s human rights.
Mr Justice Crane
Times 05-Sep-2002
England and Wales
Updated: 13 July 2022; Ref: scu.174789
Appeals raising important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the United Kingdom.
[2019] EWCA Civ 1239
England and Wales
Updated: 13 July 2022; Ref: scu.639659
McCombe, King, Peter Jackson LJJ
[2019] EWCA Civ 1215, [2019] WLR(D) 390
Abortion Act 1967, Mental Capacity Act 2005
England and Wales
Updated: 13 July 2022; Ref: scu.639658
[2007] NIQB 104
Northern Ireland
Updated: 12 July 2022; Ref: scu.263308
Sir James Munby P FD
[2016] EWHC 1330 (Fam)
Human Fertilisation and Embryology Act 2008
England and Wales
See Also – Re N FD 8-Jun-2016
The parties who had undertaken fertility treatment leading to the birth of the child, but where the clinic had failed to carry out the necessary admministrative procedures sought ratification of their status as the legal parents. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.565534
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 for the drug Aricept to treat dementia, NICE failed to have due regard to its anti-discrimination duties because of the particular effects of Alzheimer’s disease on atypical groups.
Dobbs J DBE
[2007] EWHC 1941 (Admin)
Appeal From – 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 – 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. . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 July 2022; Ref: scu.258826
Beatson J
[2007] EWHC 1697 (Admin)
Updated: 11 July 2022; Ref: scu.254614
Appeal against refusal of viability order for child – admission of fresh evidence.
[2007] EWCA Civ 392
England and Wales
Updated: 11 July 2022; Ref: scu.251763
he parents of H objected to the vaccination of their young baby. They now appealed from care and placement orders made as a consequence. They had also declined to register the birth saying that the authorities had no jurisdiction. As to vaccination there had been conflicting first instance decisions.
Lady Justice King, Lord Justice McCombe and Lord Justice Peter Jackson
[2020] EWCA Civ 664, [2020] 3 WLR 1049, [2021] Fam 133, [2020] 2 FLR 753, [2020] 2 FCR 683, [2021] 2 All ER 288
England and Wales
Updated: 11 July 2022; Ref: scu.650938
[2019] EWCOP 18
England and Wales
Updated: 10 July 2022; Ref: scu.638766
Heatson J
[2007] EWHC 776 (Admin)
Updated: 10 July 2022; Ref: scu.250701
An assessment for community care need not to be set according to the services available.
Times 15-Aug-1996, [1996] EWHC Admin 25, (1998) 1 CCL Rep 141, [1997] COD 64, (1997) 33 BMLR 71, (1997-98) 1 CCL Rep 141
National Health Service and Community Care Act 1990 47(1)
England and Wales
Updated: 10 July 2022; Ref: scu.136573
[2019] EWCOP 22
England and Wales
Updated: 10 July 2022; Ref: scu.638768
‘This application for judicial review concerns alleged failures of the London Borough of Islington to make provision according to law for the social, recreational and educational needs of the applicant . . who is now 25 and suffers from Seckels syndrome. He is blind, microcephalic, practically immobile, doubly incontinent and largely unable to communicate. He suffers from severe deformities of the chest and spine, a hiatus hernia and a permanent digestive disorder. His size and weight are those of a small child, but his helplessness and dependency are those of a baby. He is reliant on the devoted care of his mother and of others who assist her.’
Sedley J
[1996] EWHC 399 (Admin), (1996) 32 BMLR 136, (1997-98) 1 CCL Rep 119, [1997] ELR 66
England and Wales
Updated: 10 July 2022; Ref: scu.566421
[2007] EWHC 2902 (QB)
England and Wales
Updated: 09 July 2022; Ref: scu.263253
It can be lawful to restrain a mental health patient mother while she was giving birth.
Ind Summary 26-Feb-1996
England and Wales
Updated: 09 July 2022; Ref: scu.89701
The court was asked: ‘Whether there is jurisdiction for the injunctions sought by the Claimant to be made under the court’s inherent jurisdiction in relation to vulnerable adults or under s 222 Local Government Act 1972’ on certain facts.
Theis DBE J
[2011] EWHC 1022 (Fam)
Mental Capacity Act 2005, Local Government Act 1972 222
England and Wales
Updated: 09 July 2022; Ref: scu.441417
The court may intervene to decide on the care of a mentally handicapped adult where there is a risk of harm to that adult if no care arrangements are made.
Ind Summary 14-Aug-1995
England and Wales
Updated: 09 July 2022; Ref: scu.85896
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 between the various factors listed in section 4 which had to be borne in mind, beyond the overarching principle that what was determinative was the judicial evaluation of what was in the protected person’s ‘best interests’; (2) that the weight to be attached to the various factors would, inevitably, differ depending upon the individual circumstances of the particular case; and (3) that in any particular case, there might be one or more features or factors which were of ‘magnetic importance’ in influencing or even determining the outcome.
He went on to say that the protected person’s wishes and feelings would always be a significant factor to which the Court must pay close regard; the weight to be attached to the protected person’s wishes and feelings would always be case-specific and fact-specific; and in considering the weight and importance to be attached to the protected person’s wishes and feelings, the Court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances, including (but not limited to) (a) the degree of the protected person’s incapacity; (b) the strength and consistency of the views being expressed by the protected person; (c) the possible impact on the protected person of knowledge that her wishes and feelings were not been given effect to; (d) the extent to which the protected person’s wishes and feelings were, or were not, rational, sensible, responsible, and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which the protected person’s wishes and feelings, if given effect to, could properly be accommodated within the Court’s overall assessment of what was in his best interests.
Munby J
[2009] EWHC 2525 (Fam), (2009) 12 CCL Rep 635, [2009] WTLR 1791, [2011] 1 WLR 344
England and Wales
Approved – 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 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 . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – NT v FS and Others CoP 26-Mar-2013
An application was made for a statutory will for the patient. The court considered how it should approach competing suggestions as to the provisions to be included.
Held: The 2005 Act had changed the basis for such wills fundamentally. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.377902
The Court was asked whether or not it was in the best interests that intubation should continue or should not continue to be provided to a patient TG, who is an inpatient in the critical care unit
[2019] EWCOP 21
England and Wales
Updated: 08 July 2022; Ref: scu.638764
[2015] EWCOP 57
England and Wales
Updated: 08 July 2022; Ref: scu.552731
[2012] EWHC 1990 (COP)
England and Wales
Updated: 08 July 2022; Ref: scu.464681
Challenge to care plan.
[2006] EWHC 2365 (Admin)
Updated: 08 July 2022; Ref: scu.246752
Application for an order with regard to a mental health patient’s property.
[1985] 1 WLR 245
England and Wales
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.
Lists of cited by and citing cases may be incomplete.
Updated: 07 July 2022; Ref: scu.238882
Appeal against refusal of community leave of absence for mental patient.
Silber J
[2006] EWHC 1903 (Admin)
Updated: 07 July 2022; Ref: scu.243382
[2006] ScotSC 55
Scotland
Updated: 07 July 2022; Ref: scu.243215
JB challenged his detention under the 1983 Act.
Held: The judicial review procedure afforded a sufficient appeal procedure for a detainee.
Auld LJ, Scott Baker LJ, neuberger LJ
[2006] EWCA Civ 961, [2006] HRLR 40
England and Wales
Cited – T-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 July 2022; Ref: scu.243063
The applicants were husband and wife who wanted infertility treatment by IVF. Mr Dickson as a prisoner, and they complained that the refusal of facilities was an interference in their right to family life as a refusal to fulfil a positive obligation.
Held: No breach was established. The requirements for compliance with article 8 were not clear cut, and facilities varied widely through the EU. The policy was to allow IVF for serving prisoners in exceptional circumstances, and was justified by welfare concerns and the maintenance of public confidence. The application had been carefully considered and could not be shown to be arbitrary or unreasonable.
44362/04, Times 16-May-2006, [2006] ECHR 430, [2007] ECHR 17, [2011] ECHR 1662
Worldlii, Bailii, Bailii, Bailii
European Convention on Human Rights 8
Human Rights
Cited – Regina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
See Also – Dickson and Another v United Kingdom ECHR 15-Dec-2007
(Grand Chamber) The complainants were husband and wife. They had been married whilst the husband served a sentence of life imprisonment. They had been refused suport for artificial insemination treatment.
Held: The claim succeeded. The refusal . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 July 2022; Ref: scu.242614
The Court considered the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision.
Sir Terence Etherton MR, Lady Justice King and Lord Justice Leggatt
[2019] EWCA Civ 913
England and Wales
Updated: 06 July 2022; Ref: scu.638194
Appeal against findings of fact as to commission of offences of sexual assault in a minor – defendant unfit to plead.
Held: Further evidence of no assistance.
Sir Brian Leveson P QBD, Openshaw, Dove JJ
[2014] EWCA Crim 2647
Criminal Procedure (Insanity) Act 1964
England and Wales
Updated: 06 July 2022; Ref: scu.541564
Claim that transactions void for lack of mental capacity.
Lindsay J
[2007] EWHC 2240 (Ch)
England and Wales
Updated: 06 July 2022; Ref: scu.259665
ECJ Social security – National health system funded by the State – Medical expenses incurred in another Member State – Articles 48 EC to 50 EC and 152(5) EC – Article 22 of Regulation (EEC) No 1408/71.
[2006] EUECJ C-372/04
European
Updated: 06 July 2022; Ref: scu.241705
Moses J
[2004] EWHC 1029 (Admin)
England and Wales
Updated: 06 July 2022; Ref: scu.241525
[2005] EWHC 2791 (Admin)
England and Wales
Updated: 06 July 2022; Ref: scu.241530
The claimants had sought court orders against the hospital to secure continuing life-supporting treatment for their daughter who had been born very severely disabled. The Trust now sought their costs from the various actions.
Held: The parents should pay nothing: ‘We are very conscious of the fact that W continues to be treated by the Trust. It would, in our view, be an aggravating factor in the relationship between Mr and Mrs W and the Trust were they to be engaged in ongoing litigation over costs’ and ‘the whole exercise set out in this judgment could have been avoided if the parties had taken proper note of Laws LJ’s observations set out in paragraph 11 above. The point should not have been contentious. Whether or not the Trust succeeds against the Legal Services Commission is not a matter for this court, nor is it of any personal financial interest to Mr. and Mrs. W. Instead of a sensible recognition that, in a case of this nature, the Trust was entitled to ask that the LSC reimburse it a relatively small proportion of the costs it has expended on this case overall, we have had a plethora of skeleton arguments and a full hearing.’
Laws LJ, Wall LJ, Lloyd LJ
Times 08-Jun-2006, [2006] EWCA Civ 529, [2006] 5 Costs LR 742
Access to Justice Act 1999 11(1)
England and Wales
See Also – 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 – Regina (Gunn) v Secretary of State for the Home Department Regina (Kelly) v Same Regina (Zahid Khan) v Same CA 14-Jun-2001
The new Regulations and court rules expressly reserved to a costs judge the decision about whether a costs order should be made against the Legal Services Commission. The former practice of the trial judge making this decision must no longer apply. . .
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 . .
Cited – In re T (A Child), (Order for Costs) CA 21-Mar-2005
The court re-affirmed what were described as the ‘well-established principles’ relating to costs in private law applications. . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – In Re O (A Minor) (Costs:Liability of Legal Aid Board); orse Re O (A Minor) (Legal Aid Costs) CA 25-Nov-1996
Grandparents should have conceded at an early stage in the Court of Appeal that an order made by the judge in proceedings relating to their grandchild had been made without jurisdiction.
Held: The court considered the procedures for applying . .
Cited – Floyd and Another v Legal Services Commission QBD 28-Apr-2010
The claimant had succeeded in an action against her legally aided opponent, but then delayed in making her claim for costs against the respondent. The costs judge said that the CPR did not apply, and that he had no discretion to extend the time . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 July 2022; Ref: scu.241409
Mr Justice MacDonald
[2020] EWFC 93
England and Wales
Updated: 06 July 2022; Ref: scu.657309
Appeal against an order refusing to grant a writ of habeas corpus in respect a person who lacks capacity to make relevant decisions for himself within the meaning of the Mental Capacity Act 2005 and who was at all material times detained under Section 3 of the Mental Health Act 1983
Lord Justice Ryder
[2014] EWCA Civ 1332, [2014] WLR(D) 443, [2015] PTSR 287
Mental Health Act 1983 3, Mental Capacity Act 2005
England and Wales
Updated: 05 July 2022; Ref: scu.537981