Category: Health

Regina v Cannons Park Mental Health Review Tribunal, Ex Parte A: QBD 24 Aug 1993

It was unlawful to detain a psychopath for treatment where in fact his condition was untreatable.

Citations:

Times 24-Aug-1993, Independent 01-Sep-1993

Statutes:

Mental Health Act 1983 3(2)

Cited by:

Appeal from – Regina v Cannons Park Mental Health Review Tribunal, Ex Parte A CA 2-Mar-1994
It was not unlawful for a patient to be detained for treatment, even though he was untreatable, and unwilling to be treated. A Mental Health tribunal appeal was to be allowed where patient was re-admitted. . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 09 April 2022; Ref: scu.86291

R v Newman: CACD 13 Feb 2000

The fact that a defendant had, at the time of committing an offence, been suffering from an acute mental illness, was not sufficient reason to count as an exceptional reason allowing a judge not to pass a life sentence for a subsequent serious offence. The case should be looked at in the light of section 2, and the purpose of the Act.

Citations:

Gazette 13-Feb-2000

Statutes:

Crime (Sentences) Act 1997

Jurisdiction:

England and Wales

Criminal Sentencing, Health

Updated: 09 April 2022; Ref: scu.85426

Regina v Secretary of State for Health and Others, Ex Parte Imperial Tobacco Ltd and Others etc: ECJ 10 Oct 2000

A ban on tobacco advertising had been reached on the wrong legal basis under the Treaty, and was accordingly invalid. The Directive had been adopted under article 100a, but that was concerned only with measures to support harmonisation of member legal systems. The true aim of the directive was to improve health levels, but article 129(4) explicitly prevented this from being a purpose for measures under article 100a. There was no element which sought to promote the free movement of goods. There was no absence of free movement of goods, nor distortion of markets between member states to justify the need for the Directive under the article.

Citations:

Times 10-Oct-2000, C-376/99, C-74/99

Statutes:

ECTreaty Art 100a, Directive 98/43/EC on the approximation of laws relating to the advertising and sponsorship of tobacco products

Jurisdiction:

European

Media, European, Commercial, Health

Updated: 09 April 2022; Ref: scu.85479

Regina v Secretary of State for Health and others, Ex Parte Imperial Tobacco Ltd and Co: QBD 16 Nov 1999

A European Directive which claimed to be one approximating laws, could still be a health measure, and it was therefore outside the scope of the European Parliament and Council to regulate the activity. The aim of the Directive was clear, even if mis-stated, and the imposition of regulations before a decision of the European Court would cause substantial economic harm.

Citations:

Times 16-Nov-1999

Statutes:

Council Directive 98/43/EC

European, Health

Updated: 09 April 2022; Ref: scu.85480

Regina v London South West Region Mental Health Review Tribunal, Ex Parte Moyle: QBD 10 Feb 2000

An application for the discharge of a mental patient under section 72, was to be based on the same criteria as would found the original decision to authorise detention under section 3. The criteria would mirror each other save that the burden of proof was reversed. It was correct to take account of the possibility of a relapse if a patient ceased to take medication.

Citations:

Times 10-Feb-2000

Statutes:

Mental Health Act 1983 72 3

Cited by:

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

Health

Updated: 09 April 2022; Ref: scu.85374

Optident Ltd and Another v Secretary of State and Industry and Another: QBD 9 Oct 1998

Where a product was recognised in one EU country as being a medicine, but was treated here as a cosmetic, the right approach was to treat it as a medicine until the decision that it was such was set aside. The two regimes are mutually exclusive.

Citations:

Times 09-Oct-1998

European, Health

Updated: 09 April 2022; Ref: scu.84470

NHS Trust A v H: FD 17 May 2001

The two sets of guidelines on the meaning of and criteria for diagnosing ‘permanent vegetative state’ contained conflicts. Those issued by the Royal College of Physicians, and those issued in an International Working Party Report on Persistent Vegetative State, had different groupings of criteria which led to difficulties in applying the criteria within both medical and legal professions. The guidelines should be reviewed.

Citations:

Times 17-May-2001, [2001] Fam 349

Cited by:

Cited – Regina (Burke) v General Medical Council Admn 30-Jul-2004
The applicant, suffering a life threatening disease, wanted to ensure his continued treatment and revival in the circumstance of losing his own capacity. He said the respondent’s guidelines for doctors were discriminatory and failed to protect his . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 09 April 2022; Ref: scu.84290

Nhs Trust A v M; NHS Trust B v H: FD 29 Nov 2000

A decision made according to established principles to withdraw life support treatment when a patient was in a persistent vegetative state, was not a breach of the patient’s human rights. In the absence of a duty on the state to continue to provide treatment, a duty which was not recognised in other jurisdictions, it was in accordance with democratic principles. Whilst the family context was important, such a decision was not an interference with the right to family life, and since the patient was insensate, there was no element of inhuman or degrading treatment.

Citations:

Times 29-Nov-2000

Health, Human Rights

Updated: 09 April 2022; Ref: scu.84291

In Re D (Medical Treatment: Consent): FD 26 Nov 1997

The patient had long established mental instability, and drug dependencies which combined to make it impossible for him to sustain the course of treatment. His mental condition meant he would not be able to give or withhold consent.
Held: A court can grant declaration to allow the withholding of medical treatment which would prolong life where the weight of medical opinion was that treatment would be wrong or intrusive and even though the patient was not able to consent.

Citations:

Times 14-Jan-1998, Gazette 17-Dec-1997

Health

Updated: 08 April 2022; Ref: scu.81828

AMDC v AG and Another: CoP 18 Nov 2020

Guidance for Expert Witnesses on Capacity

The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the following:
a. An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction.
b. The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.
c. It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005.
d. In cases where the expert assesses capacity in relation to more than one decision,
i. broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision;
ii. experts should ensure that their opinions in relation to each decision are consistent and coherent.
e. An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed.
f. If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed.
g. The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included.
h. If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a ‘brick wall’ with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 ss 1(3) and 3(2).’

Judges:

Poole J

Citations:

[2020] EWCOP 58

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
Cited – LBL v RYJ and Another CoP 22-Sep-2010
Whether RYJ lacked capacity to litigate.
Held: For such capacity the person must understand the salient information but not necessarily all the peripheral detail. . .
Cited – 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 – PH v A Local Authority CoP 30-Jun-2011
The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment. . .
Cited – London Borough of Tower Hamlets v NB (Consent to Sex) CoP 16-Jul-2019
The Court considered the capacity of the patient to consent to sexual relations.
Held: The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which . .
Cited – London Borough of Tower Hamlets v PB CoP 3-Jul-2020
Whether PB had capacity to litigate.
Held: Hayden J gave guidance as to the general approach to be taken by the court when determining an issue of capacity: ‘i. The obligation of this Court to protect P is not confined to physical, emotional . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health

Updated: 07 April 2022; Ref: scu.656017

PH v A Local Authority: CoP 30 Jun 2011

The Court was asked whether PH, a forty-nine year old man, suffering from Huntingdon’s Disease had capacity to make decisions about his residence, care and treatment.

Judges:

Baker J

Citations:

[2011] EWHC 1704 (COP)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – 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 by:

Cited – AMDC v AG and Another CoP 18-Nov-2020
Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 07 April 2022; Ref: scu.449751

Sinclair Collis Ltd, Regina (on The Application of) v The Secretary of State for Health: CA 17 Jun 2011

The claimants sought to challenge the validity of rules brought in under the 2009 Act as to the placement of cigarette vending machines in retail outlets. They said it was a a national measure restricting the free movement of goods. The justification put forward was the protection of public health. The issue was whether the measure was necessary, or whether the objective might have been achieved by a less restrictive measure.
Held: The Court considered the general considerations governing proportionality and treated them as relevantly identical under EU and Convention law

Judges:

Lord Neuberger MR, Laws, Arden LJJ

Citations:

[2011] EWCA Civ 437, [2012] QB 394, [2012] 2 WLR 304, [2012] Eu LR 50, [2011] 3 CMLR 37, (2012) 123 BMLR 36, [2011] ACD 98, [2011] LLR 592

Links:

Bailii

Statutes:

Protection from Tobacco (Sales from Vending Machines) Regulations 2010, Health Act 2009 22 23

Jurisdiction:

England and Wales

Citing:

Appeal from – Sinclair Collis Ltd v Secretary of State for Health and Another Admn 1-Dec-2010
. .

Cited by:

Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
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 – Secretary of State for Work and Pensions v Gubeladze SC 19-Jun-2019
The claimant had come from Latvia to the UK in 2008, but not registered under the Worker Registration Scheme until 2010. She now sought state pension credit. The SS appealed from a judgment that it was to calculate her entitlement to include her . .
Lists of cited by and citing cases may be incomplete.

Health, Administrative, Human Rights, European

Updated: 06 April 2022; Ref: scu.440850

Kings College Hospital NHS Foundation Trust v Haastrup and Others (No 2) (Permission To Appeal and for Stay): FD 31 Jan 2018

Citations:

[2018] EWHC 147 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Kings College Hospital NHS Foundation Trust v Haastrup (Withdrawal of Medical Treatment) FD 29-Jan-2018
Application for permission to withdraw medical treatment of seriously ill child. . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 05 April 2022; Ref: scu.605713

Re SL: CoP 31 Mar 2017

Application for order approving a care regime involving deprivation of liberty where lack of capacity not conclusively established.

Judges:

Glentworth DJ

Citations:

[2017] EWCOP 5

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 05 April 2022; Ref: scu.588176

Mitocariu and Another, Regina (on The Application of) v Central and North West London NHS Foundation Trust: Admn 31 Jan 2018

These proceedings raise points of principle in respect of the powers of NHS Foundation Trusts pursuant to the National Health Service Act 2006 (‘the 2006 Act’) regarding financial assistance to patients whilst they are detained pursuant to hospital orders made under the Mental Health Act 1983 (‘the 1983 Act’). In essence they raise a question about the powers or duties of NHS Foundation Trusts in circumstances where the patient receiving mental health care is or appears to be unable, for whatever reason, to fund occasional expenses.

Citations:

[2018] WLR(D) 61, [2018] EWHC 126 (Admin)

Links:

WLRD, Bailii

Jurisdiction:

England and Wales

Health, Health Professions

Updated: 04 April 2022; Ref: scu.604750

K v LBX and Others: CA 8 Feb 2012

The court was asked whether or not ECHR Art 8 respect for family life requires the court in determining issues under the inherent jurisdiction or the Mental Capacity Act 2005 to afford a priority to placement of an incapacitated adult in their family or whether family life is simply one of ‘all the relevant circumstances’ which under MCA 2005 S4 the court must consider.

Judges:

Thorpe, Black, Davis LJJ

Citations:

[2012] EWCA Civ 79

Links:

Bailii

Statutes:

Mental Capacity Act 2005, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 03 April 2022; Ref: scu.450976

PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others: Admn 10 Oct 2003

The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring attendance of the doctors to allow the testing of their evidence. The administration of anti-psychotic medication to PS would not reach the threshold of engaging Article 3 in the light of the possible benefits to him and the limited adverse consequences. The court accepted a submission that: ‘the decision to administer anti-psychotic medication has to be considered in the context that the medication is likely to lead to the claimant being rehabilitated rather than remaining subject to long-term incarceration.’

Judges:

The Honourable Mr Justice Silber

Citations:

[2003] EWHC 2335 (Admin), [2004] 1 MHLR 1

Links:

Bailii

Statutes:

Mental Health Act 1983 37, European Convention on Human Rights 3

Jurisdiction:

England and Wales

Citing:

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 – 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 (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
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 – Grare v France ECHR 1991
The Commission rejected as manifestly unfounded a complaint arising from a course of treatment which had distressing side effects for the applicant, who was a voluntary patient in a psychiatric hospital. The Commission’s brief reasoning is that even . .
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 – Selmouni v France ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 3; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Orhan v Turkey ECHR 18-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 2; Violation of Art. 3 in respect of applicant; Violation of Art. 5; Violation of Art. 8 and P1-1 in respect of applicant and brothers; Violation of . .
Cited – Re W (Enduring Power of Attorney) 2000
The law allows those with capacity to take treatment decisions which on any objective view are reasonable. A power of an attorney to make gifts of the donor’s property is extremely limited and without the authorisation of the court does not extend . .
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 – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

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

Health, Human Rights

Updated: 02 April 2022; Ref: scu.186714

Watts, Regina (on the Application of) v Bedford Primary Care Trust and others: Admn 1 Oct 2003

The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced the waiting time to four months. She sought judicial review, and to recover the cost of the treatment.
Held: The claimant had no remedy in domestic law. The respondent could refuse the certificate which would allow her to recover the cost for lack of medical necessity only if the the same treatment could be offered locally without an undue waiting time. In this case, the one year wait was unreasonable, but the four months was not undue, and a certificate had been properly refused. Though the claimant failed on the particular facts, her argument was correct.

Judges:

Munby J

Citations:

Times 03-Oct-2003, [2003] EWHC 2228 (Admin), [2003] EWHC 2401 (Admin), Gazette 16-Oct-2003, [2006] 1 QB 667

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Applied – Geraets-Smits v Stichting Ziekenfonds VGZ Peerbooms v Stichting CZ Groep Zorgverzekeringen ECJ 12-Jul-2001
Where a member of a sickness scheme sought treatment in another member state, it was proper to require prior authorisation, but any conditions imposed had to be justifiable and proportionate. In this case the scheme required the recognition of the . .
Cited – Muller-Faure v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA, van Riet v Onderlinge Waarborgmaatschappij ZAO Zorgverzekeringen ECJ 13-May-2003
Europa Freedom to provide services – Articles 59 of the EC Treaty (now, after amendment, Article 49 EC) and 60 of the EC Treaty (now Article 50 EC) – Sickness insurance – System providing benefits in kind – . .
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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Health, European, Human Rights

Updated: 02 April 2022; Ref: scu.186551

Richards v Worcestershire County Council and Another: CA 12 Dec 2017

Appeal by two public authorities against a refusal to strike out the claimant’s claim as an abuse of process. The principal point of law which arises for decision is whether (following O’Reilly v Mackman [1983] 2 AC 237) the claimant was entitled to proceed under Part 7 of the Civil Procedure Rules rather than by way of judicial review.

Judges:

Rupert Jackson, Lewison, Hamblen LJJ

Citations:

[2017] EWCA Civ 1998

Links:

Bailii

Statutes:

Mental Health Act 1983

Jurisdiction:

England and Wales

Health, Judicial Review

Updated: 02 April 2022; Ref: scu.601142

The Health Service Executive of Ireland v IM and Another: CoP 26 Oct 2020

Determination of where IM, now aged 92 years, is habitually resident. She is presently living in Ireland, having moved there in September 2018. Prior to that move, she had been resident in Kent for over 55 years. If, as the Applicant contended, IM remained habitually resident in this jurisdiction, then issues as to her health and welfare were matters for the Court of Protection. If she was now habitually resident in Ireland as both Respondents contended, then such matters would fall within the jurisdiction of the High Court in Ireland.

Judges:

Mrs Justice Knowles

Citations:

[2020] EWCOP 51

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction, Health

Updated: 01 April 2022; Ref: scu.655597

Salford Royal NHS Foundation Trust v P and Another: CoP 30 Oct 2017

Application to declare the best interests of a 72 year old woman who, following a fall in December 2016, now lacks the mental capacity to communicate her own wishes and feelings in respect of life sustaining medical treatment.

Judges:

Hayden J

Citations:

[2017] EWCOP 23

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 01 April 2022; Ref: scu.598423

DM v Y City Council: CoP 15 Jun 2017

Application on behalf of an incapacitous man under Section 21(A) of the 2005 Act. It is nominally by way of a challenge to a Standard Authorisation authorising the deprivation of DM’s liberty at a care home [‘the Home’] for six months expiring on 2nd August 2017. The underlying issue, however, is: (a) whether DM, who is currently an abstinent alcoholic, should continue to reside and be cared for at the Home, a care home which forbids alcohol, or (b) whether he should be moved, as he wishes to be, to a home which does allow the consumption of alcohol.

Citations:

[2017] EWCOP 13

Links:

Bailii

Statutes:

Mental Capacity Act 2005and 21(A)

Jurisdiction:

England and Wales

Health, Local Government

Updated: 30 March 2022; Ref: scu.595868

NHS Foundation Trust v QZ: CoP 6 Jun 2017

Application by an NHS Foundation Trust, seeking an order permitting a hysteroscopy and endometrial biopsy under general anaesthetic, with the objective of identifying the cause of a patient’s postmenopausal bleeding, in a patient without capacity.

Citations:

[2017] EWCOP 11

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 30 March 2022; Ref: scu.595869

Alder Hey Children’s NHS Foundation Trust v Evans and Another: FD 20 Feb 2018

Application made on behalf of the Alder Hey Children’s NHS Foundation Trust seeking a declaration that continued ventilatory support is not in A’s best interests and in the circumstances it is not lawful that such treatment continue.

Judges:

Hayden

Citations:

[2018] EWHC 308 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Alder Hey Children’s NHS Foundation Trust v Evans and Others FD 11-Apr-2018
Care Plan for dying child approved
The parents of a baby boy sought to re-open an order that because of the very severe health condition, and very limited hope of any recovery (disputed by the parents), care beyond palliative care should be withdrawn with the effect that he would be . .
See Also – Evans and Another v Alder Hey Children’s NHS Foundation Trust and Another CA 16-Apr-2018
Parents’ appeal from directions as to withdrawal of life supporting treatment for their child, the parents now applying for habeas corpus. . .
See Also – Alder Hey Children’s NHS Foundation Trust v Evans and Another FD 24-Apr-2018
The child was in a very severe state of health. The doctors at the hospital proposed withdrawal of life support which would lead to is death. The parents opposed this. A certificate the grant of Italian nationality was produced and the family . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 30 March 2022; Ref: scu.605715

The Public Guardian v VT: CoP 10 Dec 2014

Application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs on the ground that the donee of the power has behaved in a way that contravenes her authority or is not in the donor’s best interests.

Citations:

[2014] EWCOP 52

Links:

Bailii

Jurisdiction:

England and Wales

Health, Agency

Updated: 29 March 2022; Ref: scu.539820

YA (F) v A Local Authority: FD 2 Sep 2010

The son of the family who lacked capacity and required a high degree of assistance in his care was taken to hospital, but then removed from there and placed for care without his mother being told where he was. Having grown up he complained of the Local Authority’s actions. The LA now argued that the coP did not have jurisdiction.
Held: ‘ the Court of Protection has jurisdiction (a) to deal with arguments raised on behalf of the son (and so, in general Court of Protection terms, P), which rely on breaches of Convention rights of which he (P) is a victim, and (b) to grant declaratory relief in respect of them.’

Judges:

Charles j

Citations:

[2010] EWHC 2770 (Fam), [2011] 1 WLR 1505, [2011] 1 FLR 2007, [2011] Fam Law 143

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 28 March 2022; Ref: scu.592365

JF, Regina (on The Application of) v The London Borough of Merton: Admn 30 Jun 2017

By his litigation friend and mother, the claimant challenged the decision of the defendant Council to change his residential provision without a lawful statutory assessment of his needs.

Judges:

Anne Whyte QC

Citations:

[2017] EWHC 1519 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Local Government, Health

Updated: 27 March 2022; Ref: scu.588883

Novartis Europharm v Commission: ECJ 28 Jun 2017

ECJ (Approximation of Laws Public Health : Judgment) Appeal – Medicinal products for human use – Marketing authorisation – Regulation (EEC) No 2309/93 – Centralised procedure at European Union level – Development of a medicinal product that was the subject of a marketing authorisation for other therapeutic indications – Separate marketing authorisation and new trade name – Directive 2001/83/EC – Second subparagraph of Article 6(1) and Article 10(1) – Concept of a ‘global marketing authorisation’ – Regulatory data protection period

Citations:

C-629/15, [2017] EUECJ C-629/15

Links:

Bailii

Jurisdiction:

European

Health

Updated: 27 March 2022; Ref: scu.588733

Djaba v West London Mental Health Trust and Another: CA 28 Jun 2017

The claimant appealed against rejection of his request for release from liability to be detained for medical treatment.

Judges:

Arden, McCombe, Sales LJJ

Citations:

[2017] EWCA Civ 436

Links:

Bailii

Statutes:

Mental Health Act 1983, European Convention of Human Rights 5 8

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 27 March 2022; Ref: scu.588320

Great Ormond Street Hospital v Yates and Others: FD 11 Apr 2017

Baby Gard suffered an overwhelming and life threating condition. The Hospital considered that his welfare wa sbest served by withdrawal of life support. His parents could not agree. The Hospital now sought a declaration from the court as to the baby’s best interests.
Held: A declaration was made that the Hospital may lawfully withdraw all treatment, save for palliative care, to permit Charlie to die with dignity: ‘Charlie suffers from the RRM2B mutation of MDDS. No one in the world has ever treated this form of MDDS with nucleoside therapy, although patients with a different strain, TK2, have received nucleoside therapy with some recorded benefit. In mouse models, the benefit to TK2 patients was put at about 4% of life expectancy. There is no evidence that nucleoside therapy can cross the blood/brain barrier which it must do to treat RRM2B, although the US doctor expressed the hope that it might cross that barrier.
There is unanimity among the experts from whom I have heard that nucleoside therapy cannot reverse structural brain damage. I dare say that medical science may benefit objectively from the experiment, but experimentation cannot be in Charlie’s best interests unless there is a prospect of benefit for him.’

Judges:

Francis J

Citations:

[2017] EWHC 972 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .

Cited by:

Cited – Re Gard (A Child) FD 24-Jul-2017
The baby boy suffered life threatening conditions. Doctors at the hospital sought directions to allow the withdrawal of life support. His parents wanted him to be given the chance of experimental treatment in the US. In April a declaration had been . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 27 March 2022; Ref: scu.588142

Servier Laboratories Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence and others: Admn 19 Feb 2009

The claimant challenged the failure of the defendant to list its drug strontium ranelate for prescription within the UK. They said that NICE failed to act fairly and with transparency by their failure to supply or disclose to Servier and the other consultees the economic model and underlying data upon which the conclusions of NICE and the FADs are based. NICE say that they would wish to have disclosed it but were bound by an undertaking of confidence to the owner of the essential data, that NICE failed during their appraisal properly to take into account data submitted by, and relied upon by, Servier (a post hoc analysis of the TROPOS trial) and/or that the non-acceptance by NICE of that data is insufficiently reasoned, and that the final, revised recommendations of NICE unlawfully discriminate against certain categories of disabled patient, contrary to the Disability Discrimination Act 1995.

Judges:

Holman J

Citations:

[2009] EWHC 281 (Admin), [2009] LS Law Medical 163, (2009) 108 BMLR 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .

Cited by:

At First Instance – Servier Laboratories Ltd, Regina (On the Application of) v National Institute for Health and Clinical Excellence and Another CA 28-Jul-2009
Permission to appeal given. . .
Appeal from – Servier Laboratories Ltd v National Institute for Health and Clinical Excellence and Another CA 31-Mar-2010
The company appealed against refusal of its challenge to the defendant’s decision not to recommend its drug Protelos, saying that another regulatory board, (EMA) had recommended its use. The judge had found the defendant not bound by EMA’s . .
Lists of cited by and citing cases may be incomplete.

Licensing, Health

Updated: 25 March 2022; Ref: scu.295118

Liverpool City Council and Another, Regina (on The Application of) v The Secretary of State for Health: Admn 2 May 2017

Four English councils challenged what they describe as the government’s ‘ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime’.

Judges:

Garnham J

Citations:

[2017] EWHC 986 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Local Government, Health

Updated: 24 March 2022; Ref: scu.582160

SAD and Another v SED: CoP 4 Nov 2016

This application raises issues in relation to a Lasting Power of Attorney for property and affairs (an LPA) under which SAD and ACD (the Applicants) were appointed attorneys by their mother, SED (the Respondent).

Judges:

Glentworth DJ

Citations:

[2017] EWCOP 3

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Health

Updated: 24 March 2022; Ref: scu.581700

Re TL: CoP 18 Jan 2017

Proceedings in the Court of Protection concern a 41-year-old woman, hereafter referred to as ‘TL’, who has a learning disability and some features of autism.

Judges:

Baker J

Citations:

[2017] EWCOP 1

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 24 March 2022; Ref: scu.581701

YZ, Regina (on The Application of) v Oxleas NHS Foundation Trust and Another: CA 29 Mar 2017

Challenge by way of judicial review to the decision made by a psychiatrist at Oxleas, the first respondent, which operates a Medium Secure Unit for psychiatric patients in Dartford, Kent, to seek to transfer the claimant to Broadmoor Hospital and the decision of Broadmoor to accept him.

Judges:

Lord Thomas of Cwmgiedd, CJ, Hallett, Underhill LJJ

Citations:

[2017] EWCA Civ 203

Links:

Bailii

Jurisdiction:

England and Wales

Health, Prisons

Updated: 24 March 2022; Ref: scu.581300

Regina v Fairley: CACD 2003

A section 37 order is not available to a court where a defendant has been found unfit to plead, with an additional finding fo fact that he had committed the act. That finding was not a finding of guilt.

Citations:

[2003] EWCA Crim 1625

Statutes:

Mental Health Act 1983 37

Jurisdiction:

England and Wales

Cited by:

Cited – A, Regina (on the Application of) v Harrow Crown Court and others Admn 14-Aug-2003
The applicant sought his release from detention in hospital, correction of records at the Crown Court, and confirmation that his detention had infringed his human rights. He had been accused of two assaults, but was found unfit to plead under . .
Lists of cited by and citing cases may be incomplete.

Crime, Health

Updated: 23 March 2022; Ref: scu.185684

Westminster City Council v National Asylum Support Service: HL 17 Oct 2002

The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were infirm and whose infirmity was not a consequence of their destitution, had not been excluded. Only able bodied destitute asylum seekers were excluded from benefit, and they had to rely upon the respondent. The House considered the value of the Explanatory notes now published with Acts: ‘Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have.’ Lord Steyn: ‘The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.’

Judges:

Steyn, Slynn, Hoffmann, Millett and Rodger LL

Citations:

Times 18-Oct-2002, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23

Links:

House of Lords, Bailii

Statutes:

National Assistance Act 1948 21, Immigration and Asylum Appeals Act 1999 95 116

Jurisdiction:

England and Wales

Citing:

Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – River Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Robinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .
Cited – Regina v Westminster City Council ex parte A, London Borough of Lambeth ex parte X and similar CA 17-Feb-1997
This was an appeal from orders of certiorari quashing the decisions of three local authorities refusing to provide accommodation for the respondents, four asylum seekers, whose applications for asylum were presently being considered by the Secretary . .
Cited – Regina v Wandsworth London Borough Council, Ex Parte O; Leicester City Council, Ex Parte Bhikha CA 7-Sep-2000
The applicants were immigrants awaiting determination of their applications for exceptional leave to remain, and who came to suffer from serious illness. Each applied for and was refused assistance from their local authority.
Held: The . .
Cited – Wahid v London Borough of Tower Hamlets CA 7-Mar-2002
Gilliatt The appellant suffered from schizophrenia. He was refused permission to apply for judicial review and for orders requiring the local authority not just to provide suitable accommodation but better . .
Appeal from – Westminster City Council v National Asylum Support Service CA 10-Apr-2001
. .
At first instance – Westminster City Council v National Asylum Support Service Admn 27-Feb-2001
. .

Cited by:

Cited – Regina (on the Application of Mani) v London Borough of Lambeth CA 9-Jul-2003
Where a destitute and disabled asylum seeker had a clear need for care and attention, the local authority had a duty to provide it. The claimant was an asylum seeker, with impaired mobility and a history of mental halth difficulties. At first he was . .
Cited – Regina (on the Application of A) v National Asylum Support Service, London Borough of Waltham Forest CA 23-Oct-2003
A family of asylum seekers with two disabled children would be destitute without ‘adequate’ accommodation. What was such accommodation?
Held: The authority was under an absolute duty to house such a family. In satisfying such duty, it was . .
Cited – Regina, ex parte O v The London Borough of Haringey, The Secretary of State for the Home Department CA 4-May-2004
The court considered the duties of local authorities to support infirm asylum seekers with children.
Held: The authority had an obligation to support the adult, but the responsibility for the children fell on the National Asylum Support . .
Applied – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Attorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
Cited – Regina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Phillips v Rafiq and Motor Insurers Bureau (MIB) CA 13-Feb-2007
The MIB appealed from a judgment making it liable for an award of damages to the estate of the deceased who had been a passenger in a vehicle which he knew to be being driven without insurance. The estate had not sued the MIB directly, but first . .
Cited – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Cited – M, Regina (on the Application of) v Slough Borough Council HL 30-Jul-2008
The House was asked ‘whether a local social services authority is obliged, under section 21(1)(a) of the 1948 Act, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only . .
Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Cited – Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Cited – Rollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Horton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Cited – Hutchings, Re Application for Judicial Review SC 6-Jun-2019
The appellant, a former army officer challenged proceedings against him as to the death of a civilian shot in Northern Ireland in 1974. His trial had been certified for trial by judge alone, and without a jury under section 1 of the 2007 Act.
Lists of cited by and citing cases may be incomplete.

Local Government, Health, Immigration, Benefits, Human Rights

Leading Case

Updated: 23 March 2022; Ref: scu.177452

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 be not co-operating with the medical team. The authority now sought permission to withdraw its application.
Held: The application was approved. Wall LJ took the opportunity to revisit the guidelines in re T.
It was important to note that in this case there was no lis between the parents and their medical team: this was an application by the local authority, and ‘the Children Act 1989 . . has placed a sharp and clear division between the functions of courts and local authorities. It is properly within the court’s province to decide whether or not MB and his siblings should be the subject of care orders: it is plainly not the court’s function to decide issues which are the responsibility of others or outside the ambit of its proper role. The court cannot control the activities of social services or any other of the departments of local authorities, nor should it attempt to do so. Not only is the issue of surgery for MB not before me, therefore, but as presently constituted it is not an issue for the court.’

Judges:

Sir Nicolas Wall P FD

Citations:

[2010] EWCA Civ 1744

Links:

Bailii

Statutes:

Children Act 1989 100

Jurisdiction:

England and Wales

Citing:

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 – Camden London Borough Council v R (A Minor) (Blood Transfusion); in Re R (A Minor)(Blood Transfusion) FD 8-Jun-1993
Child A’s doctors considered that she would need treatment over the following two years and that this could involve the need for blood transfusions at any time. The parents were Jehovah’s Witnesses and refused consent.
Held: The order allowing . .
Approved – 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 . .
Lists of cited by and citing cases may be incomplete.

Children, Health, Local Government

Updated: 06 February 2022; Ref: scu.420686

Z v Y: FD 9 Aug 2019

Application made by mother for a specific issue order that A undergo brain surgery to alleviate epileptic seizures.

Judges:

The Honourable Mrs Justice Gwynneth Knowles

Citations:

[2019] EWHC 2255 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Health

Updated: 05 February 2022; Ref: scu.648661

Sheffield Teaching Hospitals NHS Foundation Trust v AB and Another: FD 16 Jun 2020

Urgent application brought pursuant to the inherent jurisdiction, concerning Z, an infant of 8 weeks of age. The application by the Trust is for a declaration that it is in his best interests to discontinue intensive care and to commence palliative care. This decision is predicated on their conclusion that intensive care is now futile and there are no other procedures or treatments available. Moreover, it is considered that intensive care treatment is now placing an unbearable burden on Z.

Judges:

Mr Justice Hayden

Citations:

[2020] EWHC 1606 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Health

Updated: 03 February 2022; Ref: scu.655262

Kings College Hospital NHS Foundation Trust v Haastrup (Withdrawal of Medical Treatment): FD 29 Jan 2018

Application for permission to withdraw medical treatment of seriously ill child.

Judges:

MacDonal D

Citations:

[2018] EWHC 127 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Kings College Hospital NHS Foundation Trust v Haastrup and Others (No 2) (Permission To Appeal and for Stay) FD 31-Jan-2018
. .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 03 February 2022; Ref: scu.605714

Local Authority X v MM and Another; re MM (An Adult): FD 21 Aug 2007

The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does not . . Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific.’
Munby J observed: ‘The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’

Judges:

Munby J

Citations:

[2007] EWHC 2003 (Fam), [2009] 1 FLR 443, [2008] Fam Law 213, (2008) 11 CCL Rep 119, [2008] 3 FCR 788

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Citing:

Cited – X City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .

Cited by:

See Also – Local Authority X v MM and Another (No. 2) FD 16-Nov-2007
. .
Applied – C, Regina v CACD 2008
The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder . .
Cited – Regina v C HL 30-Jul-2009
Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction . .
Cited – 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 – PC and Another v City of York Council CA 1-May-2013
It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 03 February 2022; Ref: scu.262185

Evans v Amicus Healthcare Ltd and others; Hadley v Midland Fertility Services Ltd and Others: FD 1 Oct 2003

The claimants and their former partners had undergone fertility treatment resulting in frozen embryos being kept pending possible implantation. The relationship had in each case failed, and the potential fathers had refused consent, but the claimants sought to be allowed to have the eggs implanted.
Held: Permission was refused. The father’s consent was required to be continuing, and that was absent. Treatment was to a couple ‘together’. The Act gave an unconditional right for either party to withdraw consent, and that right continued until implantation. The consents originally given were no longer valid. There was no breach of the claimants’ article 8 rights, since the act served a legitimate purpose. The male was not given a veto, but each had equal rights, and no estoppel could be established.

Judges:

Wall J

Citations:

Times 02-Oct-2003, [2003] EWHC 2161 (Fam), Gazette 16-Oct-2003, [2004] 2 WLR 713

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 1990 12, European Convention on Human Rights 8 12 14

Jurisdiction:

England and Wales

Cited by:

Appeal from – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 03 February 2022; Ref: scu.186529

Re SG (adult mental patient: abortion): FD 1991

Her GP and a consultant gynaecologist had recommended a termination for a pregnant, severely mentally handicapped 26 year old woman. Following Re F, her father sought a formal declaration of the court was required before any termination.
Held: Termination of a pregnancy was already closely regulated by statute which provided ‘fully adequate safeguards for doctors who are to undertake this treatment.’ It was therefore not necessary to seek the specific approval of the High Court before the termination of a pregnancy, provided the 1967 Act was complied with. The court noted that this was ‘a developing branch of the law’ and referred to the the Law Commission’s work on the general issue of mental incapacity, saying ‘it may be that further guidelines will be issued by the Medical Ethics Committee of the British Medical Association, in addition to recommendations which may be made by the Law Commission. For the time being, however, I express my view that a formal declaration is not required in this case.’

Judges:

Sir Stephen Brown

Citations:

[1991] 2 FLR 329

Statutes:

Abortion Act 1967 1

Jurisdiction:

England and Wales

Citing:

Followed – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .

Cited by:

Cited – An NHS Trust v D (Medical Treatment: Consent: Termination) FD 28-Nov-2003
The defendant had been admitted to hospital under the 1983 Act and found to be pregnant. The doctors sought an order permitting an abortion. An order had been made, but the parties invited the court to say whether a court order was required at all. . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 03 February 2022; Ref: scu.188389

An NHS Trust v D (Medical Treatment: Consent: Termination): FD 28 Nov 2003

The defendant had been admitted to hospital under the 1983 Act and found to be pregnant. The doctors sought an order permitting an abortion. An order had been made, but the parties invited the court to say whether a court order was required at all.
Held: Where there is any doubt as to either capacity or best interests, an application to the court should be made. The following circumstances would ordinarily warrant the making of an application: (i) a dispute as to capacity, or a realistic prospect that the patient will regain capacity ii) a lack of unanimity between the doctors (iii) the Abortion Act procedures were not followed (iv) the abortion was opposed by the patient, her family, or the father or (v) other exceptional circumstances.

Judges:

Coleridge J

Citations:

[2003] EWHC 2793 (Fam), [2004] 1 LR 1110

Links:

Bailii

Statutes:

Abortion Act 1967

Jurisdiction:

England and Wales

Citing:

Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Re SG (adult mental patient: abortion) FD 1991
Her GP and a consultant gynaecologist had recommended a termination for a pregnant, severely mentally handicapped 26 year old woman. Following Re F, her father sought a formal declaration of the court was required before any termination.
Held: . .
Cited – Re SS (an adult: medical treatment) 2002
The court considered a request for permission to abort the pregnancy of a woman receiving treatment as an in-patient at a mental hospital: ‘Pregnant patients in psychiatric hospital are not unusual. The issue of the termination of pregnancies in . .
Cited – Re GF (medical treatment) FD 1992
It was not necessary for doctors to apply to the court for a declaration authorising a sterilisation procedure for an inpatient in a mental hospital, if two medical practitioners are satisfied that (1) the procedure is necessary for therapeutic . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – In Re 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 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 by:

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 . .
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Health

Updated: 03 February 2022; Ref: scu.188330