In re W (EEM): 1971

It would be for the ‘benefit’ of the patient to exercise the powers conferred by section 95(1) of the 1983 Act so as to enable there to be done something which the patient would have wished to do if he had been able to act for himself.

Judges:

Mr Justice Ungoed-Thomas

Citations:

[1971] Ch 123

Jurisdiction:

England and Wales

Cited by:

Cited – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Health, Trusts

Updated: 06 May 2022; Ref: scu.223513

Black v Forsey: HL 20 May 1988

The common law was called in aid to supplement the statutory power of compulsory detention to fill a lacuna which had appeared in the 1984 Act.
Held: The common law could not be invoked for that purpose, because the powers of detention conferred upon hospital authorities under the 1984 Act were intended to be exhaustive. The plaintiff mental patient, who had originally been detained under section 26 had then been unlawfully detained when on the expiry of that admission order, the hospital purported to detain him under a further section 26 order notwithstanding that the Act specifically prohibited successive periods of detention under section 26.

Citations:

1988 SC (HL) 28

Statutes:

Mental Health (Scotland) Act 1984

Jurisdiction:

Scotland

Cited by:

Cited – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
Distinguished – 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 – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 06 May 2022; Ref: scu.218829

Carter v Canada (Attorney General): 15 Jun 2012

Supreme Court of British Columbia – [1] The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.
[2] Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.
[3] I will summarize, in brief, my findings of fact and legal reasoning.
[4] Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).
[5] Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.
[6] Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.
[7] Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.
[8] The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.
[9] Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.
[10] The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.
[11] I turn to the legal issues.
[12] The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.
[13] Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided. Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.
[14] Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter. Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.
[15] The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
[16] The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness. That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.
[17] The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
[18] The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.
[19] The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.

Judges:

The Honourable Madam Justice Lynn Smith

Links:

Canlii

Commonwealth, Health, Health Professions, Crime, Human Rights

Updated: 06 May 2022; Ref: scu.551081

England and Wales

Health, Family

Updated: 05 May 2022; Ref: scu.347811

Finlayson v HM Advocate: 1978

Citations:

1978 SLT (Notes) 60

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health

Updated: 05 May 2022; Ref: scu.180316

M, Petitioner: OHCS 11 Jul 2002

The petitioner challenged his detention and treatment as a mental patient under the 1984 Act, claiming that his human rights to a fair trial had been infringed. It was argued that since the Act automatically dispensed with his common law right to refuse treatment, he had had denied to him the chance to have this issue determined by a court.
Held: The Act created a class of people, membership of which gave certain rights and took others away. He had rights to challenge his membership of that class, but he now sought to challenge the consequences of that membership. The attempt was misplaced under article 6. Under article 8, he questioned whether the interference in his rights was necessary. Given the acceptance that some limitation was permissible, it was a question of degree. It was not shown that the provisions were so far out of line with other states as to justify affirmation that the legislation was disproportionate.

Judges:

Lord Eassie

Citations:

Times 26-Aug-2002

Statutes:

Mental Health (Scotland) Act 1984, European Convention on Human Rights 1 6 8

Jurisdiction:

Scotland

Citing:

Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 05 May 2022; Ref: scu.174738

Unreported, 1962

Jurisdiction:

England and Wales

Cited by:

Health

Updated: 04 May 2022; Ref: scu.259608

Manches v Trimborn: 1946

The answer to the question whether the mental capacity necessary in order to render the consent of the party concerned a real consent was present in any particular case would depend on the nature of the transaction.

Judges:

Hallett J

Citations:

(1946) 115 LJKB 305

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

Health, Litigation Practice

Updated: 04 May 2022; Ref: scu.443296

Re E Enduring Power of Attorney: CoP 18 Feb 2000

Citations:

[2000] EWHC 1561 (COP)

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 02 May 2022; Ref: scu.431216

In re S (F G) (Mental Health Patient): 1973

The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act on the one hand and rules of court providing for the appointment of a next friend or guardian ad litem for a person under disability on the other.
Held: Persons under disability under the rules of court, may include some incapable of managing and administering their property and affairs who were not ‘patients’ for the purposes of the Mental Health Act. The rules of court did not contain or impose the requirement of judicial satisfaction after the consideration of medical evidence. There is no reason why the test of mental capacity, when applied to the power to pursue or defend legal proceedings, should necessarily lead to the same conclusion as it will when applied in order to determine whether the same person is or is not a patient within the Mental Health Act.

Judges:

Ungoed Thomas J

Citations:

[1973] 1 WLR 178

Statutes:

Mental Health Act 1959 101

Updated: 30 April 2022; Ref: scu.221443

Re T and E (proceedings: conflicting interests): 1995

Where a court had to recincile conflicting interests involving children, the court must normally undertake a balancing exercise to achieve the situation of least detriment.

Citations:

[1995] 1 FLR 581

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 . .

Appealed to – In re C (a Child) (Immunisation: Parental Rights); In re F (a Child) (Immunisation: Parental rights) FD 13-Jun-2003
In each case fathers not married to the mother of the child, but with parental responsibility sought to have the child immunised. The mothers opposed the treatment saying they believed it unsafe.
Held: The children should be immunised. Article . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 29 April 2022; Ref: scu.185873

In re B (A Minor) (Wardship: Sterilisation): HL 1987

Paramount Consideration in Wardship Application

The House considered a case involving the sterilisation of a girl just under 18, who suffered from mental disability.
Held: A court exercising wardship jurisdiction, when reaching a decision on an application to authorise an operation for sterilisation of the ward, was concerned with only one primary and paramount consideration, the welfare of the child: ‘There is no doubt that, in the exercise of its wardship jurisdiction the first and paramount consideration is the well being, welfare, or interest (each expression occasionally used, but each, for this purpose, synonymous) of the human being concerned.’

Judges:

Lord Hailsham of St Marylebone LC

Citations:

[1988] AC 199, [1987] 2 All ER 206, [1987] 2 WLR 1213, Gazette 13-May-1987

Jurisdiction:

England and Wales

Cited by:

Health, Children

Updated: 28 April 2022; Ref: scu.180670

In re Quinlan: 1976

Protecting the privacy rights of incompetent dying patients.

Citations:

(1976) 355 A2d 647

Cited by:

Health

Updated: 28 April 2022; Ref: scu.180672

In re C (A Minor) (Wardship: Medical Treatment): CA 1989

Citations:

[1989] 2 All ER 782, [1989] 3 WLR 240, [1990] Fam 26

Jurisdiction:

England and Wales

Citing:

See also – Re C (Wardship: Medical Treatment) (No 2) CA 1989
The court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the . .

Cited – Re O (A minor) (Medical Treatment) FD 12-Apr-1993
The local authority applied for a care order in relation to the child, on the ground that there was an urgent and continuing need for medical treatment which included blood transfusions. The court considered the legal effect of a parent’s belief (as . .

Cited by:

Cited – In Re T (A Minor) (Wardship: Medical Treatment) CA 24-Oct-1996
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the . .
Cited – LA v SB and Others CA 12-Jul-2010
The local authority had applied for a care order under the court’s inherent wardship jurisdiction in connection with a family where three children suffered a potentially life threatening disease, Rasmussens’s encephalitis. The parents were said to . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 28 April 2022; Ref: scu.78854

Centre For Legal Resources on behalf of Valentin Campeanu v Romania: ECHR 17 Jul 2014

ECHR Grand Chamber – Article 34
Locus standi
Standing of non-governmental organisation to lodge application on behalf of deceased mental patient
Article 2
Positive obligations
Failure to provide adequate care for HIV positive mental patient: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to take general measures to ensure independent representation for the mentally disabled
Facts – The application was lodged by a non-governmental organisation, the Centre for Legal Resources (CLR), on behalf of a young Roma man Mr Campeanu, who died in 2004 at the age of 18. Mr Campeanu had been placed in an orphanage at birth after being abandoned by his mother. When still a young child he was diagnosed as being HIV-positive and as suffering from severe mental disability. On reaching adulthood he had to leave the centre for disabled children where he had been staying and underwent a series of assessments with a view to being placed in a specialised institution. After a number of institutions had refused to accept him because of his condition, he was eventually admitted to a medical and social care centre, which found him to be in an advanced state of psychiatric and physical degradation, without any antiretroviral medication and suffering from malnutrition. A few days later, he was admitted to a psychiatric hospital after displaying hyper-aggressive behaviour. The hospital concerned had previously said that it did not have the facilities for patients with HIV. There he was seen by a team of monitors from the CLR who reported finding him alone in an unheated room, with a bed but no bedding and dressed only in a pyjama top. Although he could not eat or use the toilet without assistance, the hospital staff refused to help him for fear of contracting HIV. He was refusing food and medication and so was only receiving glucose through a drip. The CLR monitors concluded that the hospital had failed to provide him with the most basic treatment and care. Mr Campeanu died that same evening.
According to a 2004 report by the CPT,* in the winters of 2003 and 2004 some 109 patients died in suspicious circumstances at the psychiatric hospital in question, the main causes of death being cardiac arrest, myocardial infarction and bronchopneumonia, and the average age of the patients who died being 56, a number of whom were under 40. The CPT found that some of the patients were not given sufficient care. It also noted a lack of human and material resources at the hospital as well as deficiencies in the quality and quantity of the food and a lack of heating.
Law – Article 34: The Court dismissed the Government’s preliminary objection that the CLR had no standing to lodge the application. It accepted that the CLR could not be regarded as a victim of the alleged Convention violations as Mr Campeanu was indisputably the direct victim while the CLR had not demonstrated a sufficiently ‘close link’ with him or established a ‘personal interest’ in pursuing the complaints before the Court to be considered an indirect victim. However, in the exceptional circumstances of the case and bearing in mind the serious nature of the allegations, it had to have been open to the CLR to act as Mr Campeanu’s representative, even though it had no power of attorney to act on his behalf and he had died before the application was lodged.
In so finding, the Court noted that the case concerned a highly vulnerable young Roma man suffering from severe mental disabilities and HIV infection who had spent his entire life in State care and died in hospital through alleged neglect. In view of his extreme vulnerability, he had been incapable of initiating proceedings in the domestic courts without proper legal support and advice. At the time of his death Mr Campeanu had no known next-of-kin. Following his death, the CLR had brought domestic proceedings with a view to elucidating the circumstances of his death. It was of considerable significance that neither its capacity to act nor its representations on Mr Campeanu’s behalf before the domestic medical and judicial authorities were questioned or challenged in any way. The State had not appointed a competent person or guardian to take care of his interests despite being under a statutory obligation to do so. The CLR had become involved only shortly before his death – at a time when he was manifestly incapable of expressing any wishes or views regarding his own needs and interests, let alone on whether to pursue any remedies. Finding that the CLR could not represent Mr Campeanu in these circumstances carried the risk that the respondent State would be allowed to escape accountability through its own failure to comply with its statutory obligation to appoint a legal representative. Moreover, granting CLR standing to act as Mr Campeanu’s representative was consonant with the Court’s approach in cases concerning the right to judicial review under Article 5 – 4 of the Convention in the case of ‘persons of unsound mind’ (Article 5 – 1 (e)). In such cases, it was essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. The CLR thus had standing as Mr Campeanu’s de facto representative.
Conclusion: preliminary objection dismissed (unanimously).

Article 2: The decisions regarding Mr Campeanu’s placements were mainly based on which establishment was willing to accommodate him rather than on where he would be able to receive appropriate medical care and support. Mr Campeanu was first placed in a medical and social care centre which was not equipped to handle patients with mental health problems. Ultimately he was admitted to a psychiatric hospital, despite the fact that it had previously refused to admit him because it did not have facilities to treat HIV. The transfers from one unit to another had taken place without any proper diagnosis and aftercare and in complete disregard of Mr Campeanu’s actual state of health and most basic medical needs. Of particular note was the authorities’ failure to ensure he received antiretroviral medication. He had mainly been treated with sedatives and vitamins and no meaningful examination had been conducted to establish the causes of his mental state, in particular his sudden aggressive behaviour.
The Court underlined that for his entire life Mr Campeanu had been in the hands of the authorities, which were therefore under an obligation to account for his treatment. They had been aware of the appalling conditions in the psychiatric hospital, where a lack of heating and proper food and a shortage of medical staff and medication had led to an increase in the number of deaths in the winter of 2003. Their response had, however, been inadequate. By deciding to place Mr Campeanu in the that hospital, notwithstanding his already heightened state of vulnerability, the authorities had unreasonably put his life in danger, while the continuous failure of the medical staff to provide him with appropriate care and treatment was yet another decisive factor leading to his untimely death. In sum, the authorities had failed to provide the requisite standard of protection for Mr Campeanu’s life.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of the procedural limb of Article 2 for failure to carry out an effective investigation into the circumstances surrounding his death and a violation of Article 13 in conjunction with Article 2 on account of the failure to secure and implement an appropriate legal framework that would have enabled Mr Campeanu’s allegations relating to breaches of his right to life to have been examined by an independent authority.
Article 46: Recommendation that Romania envisage general measures to ensure that mentally disabled persons in comparable situations are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body.
Article 41: No claim made in respect of damage.

Citations:

47848/08 – Grand Chamber Judgment, [2014] ECHR 789, 47848/08 – Legal Summary, [2014] ECHR 865, [2014] ECHR 972

Links:

Bailii, Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 28 April 2022; Ref: scu.535691

Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others: Admn 5 Nov 2021

The claimants challenged what they said was the Defendants’ failure to protect residents of care homes in England from the risk of serious harm or death from COVID during the first wave of the pandemic between March and June 2020.

Judges:

Lord Justice Bean

Citations:

[2021] EWHC 2946 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative

Updated: 28 April 2022; Ref: scu.669257

Times 18-Oct-2005, [2005] UKHL 58, [2005] 2 WLR 695, [2006] 2 AC 148, [2006] Lloyds Rep Med 1, [2006] 4 All ER 736, [2005] MHLR 276, [2005] HRLR 42, (2005) 86 BMLR 84

Links:

House of Lords, Bailii

Statutes:

Mental Health Act 1983, European Convention on Human Rights 3 5 8 A6 A5(1)(e)

Jurisdiction:

England and Wales

Citing:

Appeal from – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
At First Instance – Regina v Ashworth Hospital Authority, Ex parte Munjaz (No 2) Admn 5-Jul-2002
The court dismissed the claimant’s complaint that the seclusion policies operated at Ashworth Special Hospital infringed his human rights. The Special Hospitals operated policies for seclusion which differed from the Code of Practice laid down under . .
Cited – Hutchison Reid v Secretary Of State For Scotland and Another HL 5-Feb-1998
(Scotland) A detention in hospital which was capable of preventing the deterioration of a psychopathic disorder in a patient was sufficient to bring his detention within the requirement for treatment which might alleviate a condition, which phrase . .
Cited – Regina v Broadmoor Special Hospital Authority and Secretary of State for Department of Health ex parte S, H and D (2) CA 5-Feb-1998
Persons detained under Mental Health Acts could be subject to random non-consensual searches even if this went against medical opinion. The power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient . .
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 – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Miller v The Queen 1985
(Canadian Supreme Court) In a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘prison within a prison’: it is capable of constituting a . .
No longer authoritative – 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 – Bollan v United Kingdom ECHR 1998
(Admissibility) The claimant was a prisoner who had been confined to her cell, unlawfully it was said, for some two hours. The evidence was that she was a heroin addict who objected to that restriction on her residual liberty.
Held: ‘It is . .
Cited – Regina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
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 – Regina v Islington Borough Council Ex Parte Rixon QBD 17-Apr-1996
The local authority regarded lack of resources or facilities as an insuperable obstacle to any further attempt to make provision under the 1970 Act.
Held: A Local Authority should allow for non-statutory guidance in assessing a disabled . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
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 – Nowicka v Poland ECHR 3-Dec-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Violation of Art. 8 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – . .
Cited – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
Cited – 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 – Van Der Ven v The Netherlands ECHR 4-Feb-2003
The applicant’s complaint was that the detention regime to which he was subjected in a maximum security prison, including the use of intrusive strip searches, constituted inhuman and/or degrading treatment and infringed his right to respect for his . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
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 – 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 – A v United Kingdom ECHR 1-Oct-1998
The beating of a child aged 9, by his father, with a cane repeatedly, and so as to leave bruising, was inhuman or degrading treatment or punishment, and was not capable of being reasonable chastisement. UK law failed properly to protect the child’s . .
Cited – Dhoest v Belgium ECHR 14-May-1987
The Commission considered the conditions of detention in solitary confinement in a mental institution.
Held: In assessing whether a measure may fall within the ambit of article 3 in a given case, regard must be had to the particular . .
Cited – Silver v United Kingdom ECHR 1980
(Commission) Complaint was made as to the censorship of prisoners’ correspondence. The censorship of prisoners’ correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to . .
Cited – Hewitt and Harman v United Kingdom ECHR 1991
(Commission) When asking whether an action about which complaint is made is ‘according to law’, it is the quality of the law that matters rather than the form it takes which matters. As to the case of Malone, it ‘elucidated the concept of . .
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 – Adlard and Others, Regina (on the Application Of) v Secretary of State for Transport, Local Government and Regions and others CA 24-Apr-2002
It was argued that the Secretary of State should have called in a planning application so as to avoid the risk of the local planning authority acting incompatibly with article 6.
Held: The court considered the obligations of the Secretary of . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .
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 – Adlard, Regina (on the Application of) v Secretary of State for the Environment, Transport and the Regions and others Admn 17-Jan-2002
The court dismissed a claim for judicial review of the refusal by the Secretary of State to call in, and establish a public inquiry to consider, certain applications for planning permission and listed building and conservation area consents which . .
See Also – Regina v Ashworth Special Hospital Trust, ex parte Munjaz 10-Oct-2000
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 . .

Cited by:

Cited – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Cited – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Cited – 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 – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
At House of Lords – 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. . .
At House of Lords – 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 . .
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
Cited – Hemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .
Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Bailii

Jurisdiction:

England and Wales

Human Rights, Health

Updated: 27 April 2022; Ref: scu.634239

SR v A Local Authority and Another: CoP 6 Jun 2018

Judges:

H.H.Judge Kate Buckingham

Citations:

[2018] EWCOP 36

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health, Agency

Updated: 27 April 2022; Ref: scu.634169

Cited – Regina v Birch CACD 1989
Even where there is culpability, a hospital order with a restriction order may well be the appropriate way to deal with a dangerous and disordered person.
Mustill LJ discussed the effect of a restriction order: ‘In marked contrast with the . .
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 – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Cited – Daniel MNaghtens Case HL 1843
Daniel M’Naghten suffered from a mental disorder under which he believed that he was being persecuted by various bodies in authority, including the Tory Party. He sought to kill the Tory Prime Minister Sir Robert Peel, but shot and killed instead . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .
Cited – Regina v Drew HL 8-May-2003
The defendant was mentally ill. He had been convicted of a second serious offence, and now appealed the life sentence imposed. Psychiatrists had recommended a hospital order, but such an order could not now be made by virtue of the 2000 Act save in . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
See Also – Henderson v Dorset Healthcare University NHS Foundation Trust QBD 19-Dec-2016
. .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, . .
Cited – Browning v War Office CA 1962
The plaintiff had been a technical sergeant in the United States Air Force; his pay had been $450 per month and after his injuries caused by the negligence of the defendants’ driver he received only a ‘veteran’s benefit’ of $217 per month
Cited – Hounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Crime, Health

Updated: 25 April 2022; Ref: scu.620605

Re RD (Deprivation or Restriction of Liberty): FC 28 Jun 2018

Health, Litigation Practice

Updated: 24 April 2022; Ref: scu.142416

PW v Chelsea and Westminster Hospital NHS Foundation Trust and Others: CA 11 May 2018

Citations:

[2018] EWCA Civ 1067

Links:

Bailii

Statutes:

Mental Capacity Act 2005 4

Jurisdiction:

England and Wales

Health

Updated: 22 April 2022; Ref: scu.616334

Akopyan v Ukraine: ECHR 5 Jun 2014

The applicant complained as to the system under which she had been detained in a mental hospital.

Judges:

Mark Villiger, P

Explanation of Medical Risks essential

The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
However, where a patient does not ask as to the risks, Lord Diplock said: ‘we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient’s physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.’ and ‘a doctor’s duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all.’ .’
Lord Scarman said: ‘Damage is the gist of the action of negligence’

Judges:

Lord Templeman, Lord Diplock, Lord Scarman, Lord Keith

Citations:

[1985] 1 All ER 643, [1985] 2 WLR 480, [1985] AC 871, [1985] UKHL 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .

Cited by:

Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
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 – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Followed – 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 . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. 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 – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Powell and Another v Boldaz and others CA 1-Jul-1997
The plaintiff’s son aged 10 died of Addison’s Disease which had not been diagnosed. An action against the Health Authority was settled. The parents then brought an action against 5 doctors in their local GP Practice in relation to matters that had . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
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: . .
Applied – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010
Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. She said that she had been advised a cesarian birth for her child, but the doctors had not . .
Cited – NM v Lanarkshire Health Board SCS 23-Jan-2013
Inner House – The pursuer and reclaimer sought reparation for son after grave injury sustained at his birth in a maternity hospital run by the defenders and respondents. She attributes that injury to negligence in a consultant obstetrician. . .
Criticised – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – 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 – Freeman v Home Office (No 2) CA 1984
A prisoner brought an action in battery against a prison doctor for administering drugs to him by injection. He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody. . He failed at trial.
Held: . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Negligence

Leading Case

Updated: 19 April 2022; Ref: scu.180380

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, as the ward in which he was placed was a closed ward, he was unable to receive visitors except with the agreement of the staff, special permission was required for him to make telephone calls and for persons outside the hospital to get into contact with him and he was under almost constant surveillance.
Held: It did not follow that the case fell within the ambit of article 5. The restrictions that were imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in article 5(1). He was not detained as a person of unsound mind so as to bring the case within paragraph (e). He was there at the request of his mother, as to whom there was no evidence of bad faith. ‘It should be observed at the outset that family life in the Contracting States incorporates a broad range of parental rights and responsibilities in regard to the care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorize others to impose, various restrictions on the child’s liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules, which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities is reconsidered by the [ECHR] in particular by article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life’

Citations:

[1988] ECHR 23, 10929/84, (1988) 11 EHRR 175, (1988) 11 EHRR 175

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5(1)

Jurisdiction:

Human Rights

Cited by:

Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 19 April 2022; Ref: scu.165025

RK v BCC and Others: CA 20 Dec 2011

A young woman aged 17 suffered from autism, attention deficit hyperactivity disorder and severe learning difficulties, as well as epilepsy. She had been looked after at home for nearly 16 years but was then accommodated by the local authority under section 20 of the Children Act 1989 in a private care home. In proceedings brought by her mother in the Court of Protection, the Official Solicitor raised concerns that her living arrangements might amount to a deprivation of liberty. Mostyn J held: first, that the provision of accommodation under section 20 could never amount to a deprivation of liberty because the parents must have agreed to it; and second, that in any event the restrictions authorised by her parents did not amount to a deprivation of liberty.
Held: In relation to the first, the Court of Appeal upheld the consensus reached at the Bar: ‘that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However, restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child.’
However, the Court of Appeal went on to hold that the restrictions imposed did not amount to a deprivation of liberty: they ‘were no more than what was reasonably required to protect RK from harming herself or others within her range’

Judges:

Thorpe, Gross LJJ, Baron J

Citations:

[2011] EWCA Civ 1305, [2012] COPLR 146

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .

Cited by:

At First Instance – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 18 April 2022; Ref: scu.451908

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 pending suitable arrangements being made for his care. His carers wished him to be returned to them, and the local authority thought not.
Held: The absence of procedural safeguards to protect informal mental patients against the arbitrary deprivation of liberty on grounds of necessity violates article 5(1): the Court was struck by the lack of any fixed procedural rules governing the admission and detention of compliant incapacitated persons, contrasting this dearth of regulation with the extensive network of safeguards applicable to psychiatric committals under the 1983 Act. ‘It is recalled that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (the Winterwerp judgment, at para 39).’

Citations:

45508/99, (2004) 40 EHRR 761, [2004] ECHR 720

Links:

Bailii, Bailii

Statutes:

Eurpopean Convention on Human Rights 5(1)

Jurisdiction:

Human Rights

Citing:

At First instance – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
At Court of Appeal – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
At House of Lords – 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 . .
See Also – HL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .

Cited by:

Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
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 – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Leading Case

Updated: 18 April 2022; Ref: scu.231147

Surrey County Council v MB and Others: FD 9 Oct 2007

The MCA 2005 had specifically codified the approach and principles previously recognised and applied under the inherent jurisdiction

Judges:

Charles J

Citations:

[2007] EWHC 3085 (Fam)

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 18 April 2022; Ref: scu.347374

Schmidt v Schmidt: ECJ 16 Nov 2016

Avoidance of gift of land for lack of capacity

ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) No 1215/2012 – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Scope – First subparagraph of Article 24(1) – Exclusive jurisdiction in matters relating to rights in rem in immovable property – Article 7(1)(a) – Special jurisdiction in matters relating to a contract – Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership

Citations:

ECLI:EU:C:2016:881, [2016] EUECJ C-417/15, [2016] WLR(D) 607

Links:

Bailii, WLRD

Statutes:

Regulation (EU) No 1215/2012 7(1)(a) 24(1)

Jurisdiction:

European

Cited by:

Cited – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Land, Health

Updated: 18 April 2022; Ref: scu.571775

Birmingham City Council v D: CoP 21 Jan 2016

D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and education.

Judges:

Keehan J

Citations:

[2016] EWCOP 8, [2016] PTSR 1129, [2016] WLR(D) 143

Links:

Bailii, WLRD

Statutes:

Human Rights Act 1998, Mental Capacity Act 2005 2(5)

Jurisdiction:

England and Wales

Citing:

Cited by:

Appeal from – Re D (A Child) CA 31-Oct-2017
The court considered an order effectively depriving child D of his liberty. . .
At First Instance – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
At CoP – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 18 April 2022; Ref: scu.559422

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security: HL 17 Oct 1985

Lawfulness of Contraceptive advice for Girls

The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the advice infringed her rights as a parent, and would lead to what would be an unlawful assault.
Held: ‘It is abundantly plain that the law recognises that there is a right and duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment.’ Nevertheless, the policy was capable of being lawful. A court could correct unlawful advice given by a government department. A doctor could give such advice to a girl under 16 where she would understand it, where she could not be persuaded to involve her parents, she was likely to have sex irrespective of advice, her health was at risk, and it was in her nest interests. A parent’s rights of control over a child diminished as that child’s understanding grew approaching adulthood.

Judges:

Lord Fraser of Tullybelton, Lord Scarman, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Templeman

Citations:

[1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, [1985] UKHL 7, [1986] 1 FLR 229

Links:

lip, Bailii

Statutes:

National Health Service (Family Planning) Act 1967 1, National Health Service Reorganisation Act 1973 4, National Health Service Act 1977 5(1)(b), Family Law Reform Act 1969 8(1)

Jurisdiction:

England and Wales

Citing:

Applied – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Reversed – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – In re P (A Minor) 1981
. .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
At first instance – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security QBD 1984
The court refused an injunction and a declaration requested by the plaintiff against the respondents as to the possibiliity of contraceptive advice and treatment being offered to her daughters under 16 without the plaintiff’s express consent. . .
Appeal from – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security CA 1985
The court granted to the claimant a declaration as to the unlawfulness of guidance to Health Authorities that it was possible to provide contraceptive advice and treatment to her daughters when under 16 and without her express consent. . .

Cited by:

Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
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 – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
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 – 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 . .
Binding – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
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 – 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 – AVS v A NHS Foundation Trust and Another CA 17-Jan-2011
The claimant contracted sporadic Creutzfeldt Jakob’s Disease disease. He executed a Lasting Power of Attorney in favour of his brother, expressing to him that he should do whatever was possible to protract his life. The brother now sought treatment . .
Cited – Equality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
Cited – Re D (A Child) CA 26-Mar-2014
F appealed against the removal of his parental responsibility for his son. M and F were not married, but F had been named on the birth certificate. He had later been convicted of sexual assaults against two daughters of M by an earlier relationship. . .
Cited – Jogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had directed the jury that he . .
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Children, Administrative

Leading Case

Updated: 18 April 2022; Ref: scu.178638

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 male, again without capacity, also complained as to the arrangements for his care, and the lack of restraint on the deprivation of his liberty. The Court now considered the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.
Held: (Lord Clarke of Stone-cum-Ebony, Lord Carnwath and Lord Hodge JJSC dissenting) A person suffering a mental incapacity has no lesser rights to personal freedom than someone with capacity. The appeals of P and Q succeeded. An arrangement which would amount to a deprivation of liberty for a person with capacity is equally a deprivation of liberty of someone without. Any system providing such restrictions must include periodic and independent checks to verify that any such restriction remained necessary and in their personal best interests.
The phrase ‘deprivation of liberty’ when used to apply to living arrangements for a person without capacity was to be construed as providing the same protection as Article 5 of the Convention. Though each case was to be decided as a matter of the particular facts.
Otherwise: Surrey County Council v P; Cheshire West and Chester Council v P

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge

Citations:

[2014] UKSC 19, (2014) 17 CCL Rep 5, [2014] HRLR 13, [2014] 2 WLR 642, [2014] 2 All ER 585, [2014] WLR(D) 140, [2014] 2 FCR 71, [2014] PTSR 460, [2014] COPLR 313, UKSC 2012/0068, [2014] AC 896, (2014) 137 BMLR 16, [2014] Med LR 321

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Statutes:

Mental Capacity Act 2005 64(5), European Convention on Human Rights 5

Jurisdiction:

England and Wales

Citing:

At CoP – 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 . .
See Also – Cheshire West and Chester Council v P CA 18-Nov-2011
. .
Appeal from – Cheshire West and Chester Council v P CA 9-Nov-2011
The claimant, a disabled adult with cerebral palsy and Downs, asserted that the care plan set out in an order of the Court of Protection involved a contravention of his human rights since it involved a deprivation of his liberty. He was incontinent . .
See Also – Cheshire West and Chester Council v P and Another COP 14-Jun-2011
The patient, an adult without capacity and with Down’s syndrome and cerebral palsy complained of his treatment, when in order to prevent his habit of eating his nappy, they dressed him in an adult babygrow costume. The court was asked whether the . .
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 . .
Adopted – 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 by:

Applied – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Cited – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprive patient of liberty
Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Cited – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Human Rights

Leading Case

Updated: 18 April 2022; Ref: scu.522603

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Updated: 12 April 2022; Ref: scu.166550

Regina v Central London County Court and Managers of Gordon Hospital ex parte Ax London: Admn 12 Mar 1997

Citations:

[1997] EWHC Admin 250

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 12 April 2022; Ref: scu.137195

England and Wales

Human Rights, Prisons, Health

Updated: 10 April 2022; Ref: scu.89107

Regina v Newcastle Upon Tyne City Council ex parte Dixon: QBD 21 Oct 1993

Council may impose additional clauses with economic requirements, on Registered Nursing Homes in contracts for care provision.

Citations:

Times 26-Oct-1993, Independent 21-Oct-1993

Health, Local Government

Updated: 09 April 2022; Ref: scu.87423