Category: Health

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 initiated. County courts have a general power under section 38 of the 1984 Act to make interim orders and the hospital managers or local social services authority may rely upon an interim order appointing an acting nearest relative in order to admit or receive the patient.
Times 23-Mar-1999, Gazette 14-Apr-1999, [1999] QB 1260, [1999] EWCA Civ 988
Bailii
Mental Health Act 1983 3 29, County Courts Act 1984 34
England and Wales
Citing:
Appeal from – Regina v Central London County Court and Managers of Gordon Hospital ex parte Ax London Admn 12-Mar-1997
. .

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 – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.145903

Pountney v Griffiths: QBD 1975

A mental patient sought damages for assault from a nurse. The nurse replied that the proceedings were a nullity since the patient had not first obtained permission to commence proceedings.
Held: Lord Widgery CJ said: ‘Although no point was taken under this section in the course of the hearing in the court below, it is now contended on behalf of the applicant that the proceedings brought against him were criminal proceedings in respect of an act purporting to be done in pursuance of the Mental Health Act 1959. It is common ground that the consent of the High Court was not obtained to the institution of the proceedings, and it is further common ground that if such permission was necessary in the circumstances of this case the proceedings below were a nullity and the order can be quashed. The sole question therefore is whether these proceedings came within the ambit of s.141(1) so as to make the leave of the High Court necessary.’
Lord Widgery CJ
Unreported, 1975
Mental Health Act 1959
England and Wales
Cited by:
Cited – Patel and others v London Borough of Brent CA 25-May-2005
Application for return of deposit made to secure commencement of road works on development. . .
Appeal from – Pountney v Griffiths; Regina v Bracknell Justices, Ex parte Griffiths HL 1976
The applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to ‘come on’ and allegedly punched him on the shoulder. The patient brought . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.226023

Regina (Brady) v Ashworth Hospital Authority: 2000

Force feeding of the applicant, a convicted murderer and detained mental patient, was lawful since it was reasonably administered as part of the medical treatment given for the mental disorder from which Ian Brady was suffering. By virtue of section 63 of the 1983 Act consent was not needed for such treatment.
Maurice Kay J
(2001) 58 BMLR 173, [2000] Lloyd’s Med R 355;
Mental Health Act 1983 63
Cited by:
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.231647

Law Hospital NHS Trust v Lord Advocate and Another: IHCS 20 May 1996

The patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, she remained alive only because feeding and hydration were provided to her artificially and because of the nursing care she received in a hospital. Medical experts said her case was useless and that there were no useful avenues of treatment to explore. The patient was unable to consent to treatment ceasing and her family agreed with the experts that the treatment should stop. The hospital raised an action, concluding for declarator that the proposed course of terminating nutrition and hydration and all other life sustaining treatment to the patient would not be unlawful.
Held: Treatment of an insensate patient may be withdrawn where it was not in the patient’s interests. Lord Hope: ‘It may be helpful if I were to describe at the outset what I consider to be the function of the Court in a case of this kind. It belongs to a group of cases which have been recurring with increasing frequency in recent years where the courts are being asked to give their authority to actions to be taken by medical practitioners which raise acute questions of moral or ethical principle. Medical science has now advanced to such a degree that many techniques are now possible which only a generation ago would have been unthinkable. The ability to prolong life by artificial means has reached such a stage that it is possible to nourish the body and preserve it from disease so that life in the clinical sense may be continued indefinitely. Invasive techniques such as those of sterilisation are also possible without the slightest risk of any other physical injury than that which is to be inflicted deliberately. Where the patient is of full age and capable of understanding and consenting to the procedures which on medical advice are for his or her benefit, or decides to refuse medical treatment, the right of self determination provides the solution to all problems, at least so far as the court is concerned. It is not in doubt that a medical practitioner who acts or omits to act with the consent of his patient requires no sanction or other authority from the court. The patient’s consent renders lawful that which would otherwise be unlawful. It is not for the court to substitute its own views as to what may or may not be in the patient’s best interests for the decision of the patient, if of full age and capacity.’
The Lord President, Lord Hope
Times 20-May-1996, 1996 SC 301
Scotland
Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Cited – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.82960

Boso v Italy: ECHR 5 Sep 2002

The applicant was married. In 1984 his wife, who was pregnant, decided to have an abortion despite his opposition. Her pregnancy was terminated on 10 October 1984.
On 8 November 1984 the applicant brought an action against his wife in the San Dona di Piave magistrate’s court, seeking compensation for the infringement of his rights as a potential father and of the unborn child’s right to life. The applicant further challenged the constitutionality of Law no. 194 of 1978, arguing that it contravened the principle of equality between spouses as enshrined in Articles 29 and 30 of the Italian Constitution in that it left it entirely to the mother to decide whether to have an abortion and took no account of the father’s wishes.
The applicant’s wife maintained that she had acted in accordance with section 5 of Law no. 194 of 1978, by which she alone had the right to decide whether to undergo an abortion.
In an order (no. 389) of 31 March 1988 the Constitutional Court declared the constitutionality issue manifestly ill-founded on the ground that the Law complained of was based on a policy decision to grant the mother full responsibility for an abortion, and that that decision was not illogical, especially as the effects of pregnancy, both physical and mental, were felt primarily by the mother.
50490/99, [2002] ECHR 846
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.263105

King v The Wright Roofing Company Ltd: QBD 7 Aug 2020

The Court was asked whether the defendant’s admitted tort has deprived the claimant of capacity to litigate and manage his own finances. The claimant was a roofer by trade. He suffered a severe head injury, and other serious injuries, falling from a roof in March 2016.
Kerr J
[2020] EWHC 2129 (QB)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.653080

A Local Authority v AW: CoP 20 May 2020

Reasoning in reaching conclusions in a case which has the characteristics of many which come before the Court of Protection: namely, where the subject of the application is believed to have capacity in making decisions in relation to certain aspects of their life, but not in others; where there are, in such cases, inevitably ‘grey areas’ in between. It recognises the importance of treating each capacity issue as decision-specific and time-specific
[2020] EWCOP 24
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.650858

In Re T (Adult: Refusal of Treatment): CA 30 Jul 1992

Appeal with regard to a right as to how the claimant should live.
[1992] EWCA Civ 18, [1992] 3 WLR 782, [1992] 2 FCR 861, [1992] 3 Med LR 306, [1992] 4 All ER 649, [1992] 2 FLR 458, [1993] Fam Law 27, [1993] Fam 95
Bailii
England and Wales
Cited by:
Cited – Jenkins, Regina (on The Application of) v HM Coroner for Portsmouth and South and Others Admn 11-Dec-2009
The deceased had contracted gangrene, but not sought treatment, and he died of it. The claimant challenged the narrative verdict saying that it was perverse and that the only proper verdict was unlawful killing by his partner, a nurse who had . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.276294

A v The Scottish Ministers: PC 15 Oct 2001

(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate contravention of that person’s human rights. Article 5(1) made no reference either to the purpose of detention, or any requirement that the condition should be susceptible to treatment, even though it made explicit exceptions. There was nothing in the Convention which gave the rights of the detainee who was a danger to society a priority over the rights of other citizens to live in peace and security. The Convention exists to protect the fundamental rights and freedoms of each and every individual.
Orse: Anderson and Others v Scottish Ministers and Another
Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde, Lord Hutton and Lord Scott of Foscote
Times 29-Oct-2001, [2002] 1 WLR 1460, [2001] UKPC D5, [2003] 2 AC 602, [2002] UKHRR 1, [2002] HRLR 6, 2001 SLT 1331, 2002 SC (PC) 63, 2001 GWD 33-1312
PC, Bailii
Mental Health (Public Safety and Appeals) (Scotland) Act 1999 1, European Convention on Human Rights Art 5(1)
Scotland
Citing:
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Appeal from – Karl Anderson, Brian Doherty, and Alexander Reid v The Scottish Ministers and the Advocate General for Scotland IHCS 16-Jun-2000
Where a person had been detained under mental health legislation on one ground, but then came to be seen to be somebody from whom protection was needed by the population on another ground, it was not a breach of his human rights to detain him on the . .

Cited by:
Cited – Regina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Appealed to – Karl Anderson, Brian Doherty, and Alexander Reid v The Scottish Ministers and the Advocate General for Scotland IHCS 16-Jun-2000
Where a person had been detained under mental health legislation on one ground, but then came to be seen to be somebody from whom protection was needed by the population on another ground, it was not a breach of his human rights to detain him on the . .
Cited – Whaley and Another v Lord Advocate HL 28-Nov-2007
The House considered claims that the 2002 Act, which set out to make unawful the hunting of wild mammals with dogs unlawful, infringed the claimants’ human rights, in that it contravened international treaties requiring the support for traditional . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Local Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
Cited – References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills Outwith their Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.174562

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: The court considered the requirements as to capacity for patients to refuse consent to treatment. A foetus in utero and until birth has no independent legal rights or interests. Butler-Sloss LJ said: ‘Best interests are not limited to medical interests’ and ‘A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when:
(a) The patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
(b) The patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.’
Did the court have power to compel a woman of competent decision-making power to have a caesarean in order to save her unborn child. The Court rejected the existence of such a power, saying forcibly: ‘The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though, as we have already stated, the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarian section operation. The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.’
Otherwise ‘In Re MB (Caesarian Section)’
Butler-Sloss, Saville, Ward LJJ
Times 18-Apr-1997, [1997] 2 FLR 426, [1997] EWCA Civ 3093, [1997] 8 Med LR 217, [1997] Fam Law 542, [1997] 2 FCR 54, (1997) 38 BMLR 175
Bailii
England and Wales
Citing:
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 . .
Cited – Re T (An Adult) (Consent to Medical Treatment) CA 1993
The patient who was pregnant had been involved in a car accident and during hospital treatment required a blood transfusion.
Held: Lord Donaldson MR said: ‘Doctors faced with a refusal of consent have to give very careful and detailed . .
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 by:
Cited – Ms B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
Cited – PS, Regina (on the Application of) v Responsible Medical Officer, Dr G and others Admn 10-Oct-2003
The claimant had been compulsorily detained under the Act. He complained that the detention and compulsory medication infringed his rights, and amongst other things breached his religious beliefs.
Held: This was an exceptional case requiring . .
Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Cited – Regina (Burke) v General Medical Council Admn 30-Jul-2004
The applicant, suffering a life threatening disease, wanted to ensure his continued treatment and revival in the circumstance of losing his own capacity. He said the respondent’s guidelines for doctors were discriminatory and failed to protect his . .
Cited – 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 . .
Distinguished – 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 – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – 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 – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – 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 – N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA 24-Jul-2009
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.141757

RR v Poland: ECHR 26 May 2011

The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not until the 23rd week that, with the help of a sympathetic doctor, she was able to gain access to a hospital by subterfuge and have appropriate tests, the results of which were only available two weeks later. She was then told that the foetus had Edwards’ syndrome, but was refused an abortion on the basis that it was now too late, after the 24-week stage. As a result, she had to carry the baby to term, and deliver it. The legislation providing for abortion expressly, and unequivocally entitled a pregnant woman to ‘unimpeded access to prenatal information and testing’. The applicant was in a situation of great vulnerability and deeply distressed by the information that the foetus could be malformed. The services not provided to her had been available, and she had been shabbily treated and, as the Polish Supreme Court had also found, humiliated
Held: The Convention does not require a state to make abortion services generally available, still less to make them free of charge, but, once it decides to make them available, whether free of charge or otherwise, the state must devise a framework for access to them which accords with Convention obligations
27617/04, [2011] ECHR 828, (2011) 53 EHRR 31
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.440212

Re PW (Jehovah’s Witness: Validity of Advance Decision): CoP 22 Sep 2021

The patient, a Jehovah’s Witness, suffered a tumour induced fatal condition. If treated she might live a further 5 or more years. She had signed an advance decision refusing treatment by blood transfusion, a necessary part of her treatment. In conversations about her treatment when being assessed as to capacity, she seemed to have given conflicting responses.
Mr Justice Poole
[2021] EWCOP 52
Bailii, Judiciary
Mental Capacity Act 2005
England and Wales

Updated: 26 September 2021; Ref: scu.668184

Paton v British Pregnancy Advisory Service Trustees: QBD 1979

Sir George Baker P said: ‘The case put to me finally by Mr. Rankin . . is that while he cannot say here that there is any suggestion of a criminal abortion nevertheless if doctors did not hold their views, or come to their conclusions, in good faith which would be an issue triable by a jury (see Reg. v. Smith (John) [1973] 1 W.L.R. 1510) then this plaintiff might recover an injunction. That is not accepted by Mr. Denny. It is unnecessary for me to decide that academic question because it does not arise in this case. My own view is that it would be quite impossible for the courts in any event to supervise the operation of the Abortion Act 1967 . . . That does not now arise in this case. The two doctors have given a certificate. It is not and cannot be suggested that the certificate was given in other than good faith and it seems to me that there is the end of the matter in English law.’
Sir George Baker P
[1979] QB 276
Abortion Act 1967
England and Wales
Cited by:
Distinguished – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.668235

Jepson v Chief Constable of West Mercia Police: Admn 2003

An abortion had been carried out of a foetus which was of more than 24 weeks’ gestation. The foetus had been diagnosed as suffering from a bilateral cleft lip and palate. The abortion was carried out pursuant to section 1(1)(d) of the 1967 Act. The claimant was a Church of England curate who was herself born with a significant facial impairment, which had been successfully treated. She was opposed in principle to abortion. She considered that a cleft lip and palate could not amount to a ‘serious handicap’ within the meaning of section 1(1)(d) and that, accordingly, the abortion must have been unlawful.
Held: Permission was granted; a cleft lip and palate could not be a serious handicap within the meaning of section 1(1)(d)
Rose LJ and Jackson J
[2003] EWHC 3318 (Admin)
Abortion Act 1967 1(1)(d)
England and Wales
Cited by:
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.668233

A Health and Social Care Trust v B: FDNI 26 May 2021

Application for declaratory relief brought by the Health and Social Care Trust in relation to a young person who is now aged 16.5. The court is being asked to make a declaration that the young person may be treated with hormone blocking treatment (GnRH analogues).
[2021] NIFam 17
Bailii
Northern Ireland

Updated: 23 September 2021; Ref: scu.667772

BB v Cygnet Health Care: Admn 4 Mar 2008

Application for a Writ of Habeas Corpus ad Subjiciendum directed to the hospital managers of the defendant. The application relates to the detention of the claimant since 30 January 2008 at the Cygnet Wing Blackheath purportedly authorised under section 3 of the Mental Health Act 1983
[2008] EWHC 1259 (Admin)
Bailii
England and Wales

Updated: 22 September 2021; Ref: scu.375615

JG v Secretary of State for Work and Pensions (BB): UTAA 28 Jul 2021

The Mental Health Review Tribunal for Wales erred in law in finding that it lacked jurisdiction to determine a restricted patient’s application once he had become a different type of restricted patient. The tribunal retained jurisdiction and was required to determine the patient’s application. The individual became a different type of restricted patient as a result of the Court of Appeal quashing a sentence of imprisonment for public protection.
[2021] UKUT 194
Bailii
England and Wales

Updated: 17 September 2021; Ref: scu.667697

Lothian Health Board v BM, Mental Health Tribunal for Scotland: ScSf 27 Apr 2007

The availability of accommodation in a medium secure hospital where the patient could be detained in appropriate conditions, including appropriate facilities for treatment, can never be relevant to the question whether an order should be made under section 264, and can only be raised by way of an application for the recall of the order under section 267.
Sheriff Principal Brian A Lockhart
[2007] ScotSC 15, 2007 SCLR 478
Bailii
Mental Health (Care and Treatment) (Scotland) Act 2003 264(2) 267
Scotland
Cited by:
Too Strong – G v Scottish Ministers and Another SC 18-Dec-2013
The 2003 Act had been intended to make provision for those who had been in long term mental health carse, but would not need such continued are but were not either ready to survive without continuing support in the community. The claimant had been . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.253077

DH, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust: CA 3 Dec 2008

This appeal, from an order dismissing the Appellant’s claim for judicial review, raises a short but important point as to the effect of a hospital order made under section 37 of the Mental Health Act 1983: does such an order cease to have effect if the offender who is the subject of the order is not admitted to the hospital named in the order within the period of 28 days from the date of the making of the order, as stipulated by it? The importance of the point is all the greater if the offender is sufficiently dangerous for a restriction order to have been made under section 41, since a restriction order has no effect if there is not an effective hospital order.
[2008] EWCA Civ 1354, [2008] MHLR 376, [2009] PTSR 547-2, [2009] 2 All ER 792, [2009] PTSR 547, [2009] ACD 40
Bailii
England and Wales

Updated: 14 September 2021; Ref: scu.278409

In re Briggs (Incapacitated Person): 2018

[2018] Fam 63
England and Wales
Cited by:
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 September 2021; Ref: scu.667575

Vanbraekel and Others v Alliance nationale des mutualites chretiennes Case C-368/98 (Judgment): ECJ 12 Jul 2001

The applicant was insured under the national health insurance scheme, but received treatment in another member state, he was entitled to be re-imbursed the higher cost even though it might be higher than the amount he would have been entitled to have claimed in his own country. To hold otherwise would discourage free supply of services through member states.
C-368/98, [2001] EUECJ C-368/98, C-368/98
Bailii
EC Treaty Article 234
European

Updated: 07 September 2021; Ref: scu.162732

N v ACCG and Others: SC 22 Mar 2017

The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not had the jurisdiction sought. This was a public law issue challengeable only by judicial review. The CoP had only the ability to choose between the options offered.
Held: The appeal failed: ‘This was not a case in which the court did not have jurisdiction to continue with the planned hearing. It was a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do. In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.’
‘the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself. It is not to be equated with the jurisdiction of family courts under the Children Act 1989, to take children away from their families and place them in the care of a local authority, which then acquires parental responsibility for, and numerous statutory duties towards, those children. There is no such thing as a care order in respect of a person of 18 or over. Nor is the jurisdiction to be equated with the wardship jurisdiction of the High Court. Both may have their historical roots in the ancient powers of the Crown as parens patriae over people who were then termed infants, idiots and the insane. But the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court.’
The issue is not one of jurisdiction in the usual sense of whether the court has jurisdiction to hear the case. After all, the Court of Protection made the orders which it was asked to make in this case and no-one has suggested that it had no jurisdiction to do so. It was seized of an application properly made by the authorities responsible for providing services for MN. The context was a care order giving the local authority parental responsibility for him which was about to come to an end. No doubt if there had been no dispute with the family about his care, there would have been no need to make an application. Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the ‘deprivation of liberty safeguards’ in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case. The court clearly has jurisdiction to make any of the orders or declarations provided for in the Act. The question is not strictly one of jurisdiction but of how the case should be handled in the light of the limited powers of the court.
Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes
[2017] UKSC 22, [2017] 2 WLR 1011, [2017] WLR(D) 202, UKSC 2015/0238, (2017) 155 BMLR 1, [2017] COPLR 200, (2017) 20 CCL Rep 133, [2017] 3 All ER 719, [2017] AC 549
Bailii, SC, SC Summary, SC Summary Video, SC 161214 am Video, SC 161214 pm Video, SC 161215 am Video, WLRD
Mental Capacity Act 2005
England and Wales
Citing:
At CoP – ACCG and Another v MN and Others CoP 20-Nov-2013
Application for order under the 2005 Act restricting contact between the young adult child with disabilities and his family. Eleanor King J described his condition saying he had: ‘severe learning and physical disabilities together with autism and an . .
Cited – A v Liverpool City Council HL 1981
Though the child was subject to a care order in favour of the local authority, a wardship order was sought.
Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which . .
Leave to Appeal CA – ACCG and Another v MN CA 25-Jun-2014
Two renewed applications for permission to appeal from a judgment of the CoP regarding provision of support for home visits for a young adult with severe health difficulties and the scope of the power of the CoP to make provisions. . .
Cited – 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 – AN v Lithuania ECHR 31-May-2016
Where the court cited article 12 of the Convention (para 69) and held that where a measure of protection is necessary, it should be proportionate to the degree of incapacity and tailored to the individual’s circumstances and needs . .
Cited – St Helens Borough Council v PE and Another FD 29-Dec-2006
The court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote a vulnerable adult’s welfare and interests. The inherent jurisdiction of the High Court encompasses situations in which the necessity . .
Cited – KC and Another v City of Westminster Social and Community Services Dept. and Another; Westminster City Council v C and others CA 19-Mar-2008
A ‘marriage’ though valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not, on grounds of public policy, entitled to recognition in English law.
The 2005 Act has not abolished . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Cited – XCC v AA and Another (Rev 3) CoP 26-Jul-2012
The scope of the declarations which may be made by the Court of Protection under section 15 may be narrower than the scope of those which may be made in the High Court . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Mcdonald v The United Kingdom ECHR 20-May-2014
Decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being of the country. . .
Cited – Re MN (Adult) CA 7-May-2015
The parties disputed the care of MN, a young adult without capacity.
Held: Munby P gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to . .
Cited – KD and Another v London Borough of Havering CoP 19-Oct-2009
The court may determine a case summarily of its own motion, but their power ‘must be exercised appropriately and with a modicum of restraint’. . .
Cited – Gard And Others v The UK ECHR 13-Jun-2017
ECHR Decision . .
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .
Cited – W v M and Others CoP 28-Sep-2011
Baker J pointed out that ‘there is a spectrum of minimal consciousness extending from patients who are only just above the vegetative state to those who are bordering on full consciousness.’
Orse W (by her litigation friend, B) v M (by her . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Lambert And Others v France ECHR 5-Jun-2015
The applicants alleged, in particular, that the withdrawal of Vincent Lambert’s artificial nutrition and hydration would be in breach of the State’s obligations under Article 2 of the Convention, would constitute ill-treatment amounting to torture . .
Cited – KU (A Child) v Liverpool City Council CA 27-Apr-2005
The solicitor appealed an order which made the success fee payable different at diferent stages of the court action.
Held: The court had no power to make such an order. To the extent that the CPR might suggest otherwise they were wrong. . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – S, In re (hospital patient: court’s jurisdiction) FD 1995
Hale J said: ‘ . . what is sought in this case is the preservation of the status quo while proper inquiries are made. The appropriate way to achieve this is obviously by way of an interlocutory injunction … if the position is not yet known, then . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.581028

W v M and Others: CoP 28 Sep 2011

Baker J pointed out that ‘there is a spectrum of minimal consciousness extending from patients who are only just above the vegetative state to those who are bordering on full consciousness.’
Orse W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and S and A NHS Primary Care Trust
Baker J
(2011) 122 BMLR 67, [2011] EWHC 2443 (COP), [2011] EWCOP 2443, (2011) 14 CCL Rep 689, [2012] 1 FLR 495, [2012] 1 FCR 1, [2012] 1 All ER 1313, [2012] COPLR 222, [2011] Med LR 584, [2012] 1 WLR 1653, [2012] PTSR 1040, [2011] Fam Law 1330
Bailii, Bailii
England and Wales
Cited by:
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.449752

Glass v The United Kingdom: ECHR 9 Mar 2004

The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The hospital administered morphine, and marked on his notes that he was not to be resuscitated. There were violent confrontations between the family and staff and the police. He recovered.
Held: The hospital had clearly interfered in the applicant’s right to respect for private life. Despite the awareness of the need for a court order, none had been sought. The hospital should have sought an order itself. It was wrong to override the mother’s wishes. The hospital had a duty to involve the patient in decisions relating to her treatment.
Hudoc ‘The true position is that the court does not ‘authorise’ treatment that would otherwise be unlawful. The court makes a declaration as to whether or not proposed treatment, or the withdrawal of treatment, will be lawful. Good practice may require medical practitioners to seek such a declaration where the legality of proposed treatment is in doubt. This is not, however, something that they are required to do as a matter of law.’
61827/00, Times 11-Mar-2004, [2004] 1 FLR 1019, [2004] ECHR 102, [2004] Lloyds Rep Med 76, [2004] ECHR 103, (2004) 39 EHRR 15, [2003] ECHR 719
Worldlii, Bailii, Bailii
European Convention on Human Rights 8, Council of Europe’s Convention on Human Rights and Biomedicine
Human Rights
Citing:
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 . .
Appeal from – Regina v Portsmouth Hospitals NHS Trust (ex parte Glass) CA 21-Jul-1999
The courts can not intervene between a parent and her child’s doctors to control future medical care of the child. Such decisions must be made as they presented themselves. In such cases the child’s best interests took precedence over strict . .

Cited by:
Cited – Wyatt v Portsmouth NHS Trust and Another FD 21-Apr-2005
Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed . .
Explained – 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 . .
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 – Re OT (A Child) CA 14-May-2009
Parents sought leave to challenge a decision made on the request of their child’s doctors to discontinue treatment to avoid a more painful but inevitable death. The parents alleged a defect in the procedure applied by the hospital.
Held: . .
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 – 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 – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .
See also – Glass v The United Kingdom ECHR 14-Sep-2011
. .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.194340

S, In re (hospital patient: court’s jurisdiction): FD 1995

Hale J said: ‘ . . what is sought in this case is the preservation of the status quo while proper inquiries are made. The appropriate way to achieve this is obviously by way of an interlocutory injunction … if the position is not yet known, then as long as there is a serious question to be tried (in accordance with the principles laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396), it may well be just and convenient to preserve the status quo while it is determined.’
Hale J
[1995] Fam 26, [1995] 1 All ER 449, [1995] 2 WLR 38
England and Wales
Cited by:
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.667578

Optident Ltd and Another v Secretary of State for Trade and Industry and Another: HL 2 Jul 2001

The claimants manufactured a dental bleaching product. It contained hydrogen peroxide at levels in excess of the limit. It sought to distribute it under licence as a medical product on prescription. The defendant sought to control its distribution under the cosmetics directive. It was held that the two regimes were distinct, and the medicines directive was specifically disapplied to cosmetics. The central purpose of the product was to improve the appearance of teeth, and that fell squarely within the cosmetics directive, and the product had been properly regulated.
Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Times 02-Jul-2001, [2001] UKHL 32, (2001) 61 BMLR 10, [2001] 3 CMLR 1
Bailii, House of Lords
Council Directive 93/42/EEC the Medical Devices Directive
England and Wales

Updated: 03 September 2021; Ref: scu.84471

W v M S and Others: CoP 28 Sep 2011

Orse – In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment)
The case concerned a woman in a minimally conscious state, Baker J expressed the view that ‘all decisions about the proposed withholding or withdrawal of ANH from a person in a persistent vegetative state or minimally conscious state should always be brought to the court.’ Such decisions ‘must’ be referred to court. He considered that ‘the legal position has been clear since the decision in the Bland case’ and, in so far as there was any difference between the Code (which might have suggested that applications to court were not necessary unless the doctor’s assessment of the patient’s best interests was disputed) and the position set out in Practice Direction 9E, it was the Practice Direction which reflected the law.
Baker J
[2011] EWHC 2443 (Fam), [2011] Fam Law 1330, [2011] Med LR 584, [2012] 1 WLR 1653, (2011) 122 BMLR 67, [2012] 1 FCR 1, , [2011] EWHC 2443 (Fam), (2011) 122 BMLR 67, [2012] 1 FCR 1, [2012] 1 All ER 1313, (2011) 14 CCL Rep 689, [2012] 1 FLR 495, [2012] COPLR 222, [2012] PTSR 1040
Bailii, Judic
England and Wales
Cited by:
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.444733

SCC v MSA and Another: CoP 20 Sep 2017

Orse In re M (Incapacitated Person: Withdrawal of Treatment)
The court was concerned with the withdrawal of CANH from a woman who was suffering from Huntington’s disease and was in a minimally conscious state. Her family, her clinicians, and a specialist from whom a second opinion had been sought, were agreed that it was in her best interests not to continue with treatment, notwithstanding that that would result in her death, and a declaration was made to that effect.
Bellamy HHJ
[2017] EWCOP 18, [2018] 1 WLR 465
Bailii
Mental Capacity Act 2005
England and Wales
Cited by:
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.598420

Aintree University Hospitals NHS Foundation Trust v James: SC 30 Oct 2013

The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit? The patient had now died.
Held: Jackson J’s decision at first instance was correct: ‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be. ‘
The Court of Appeal had reached the right conclusions but for the wrong reasons.
Baroness Hale interpreted the Bland decision: ‘the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.’
. . And as to withholding further life sustaining treatment in the context of a patient lacking capacity, observed that while: ‘the starting point is a strong presumption that it is in a person’s best interests to stay alive . . this is not absolute. There are cases where it will not be in a patient’s best interests to receive life-sustaining treatment’
and . . ‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Carnwath, Lord Hughes
[2013] UKSC 67, [2014] 1 All ER 573, [2014] Med LR 1, [2014] 1 AC 591, (2014) 135 BMLR 1, [2013] BUS LR 1199, [2013] WLR(D) 421, [2014] 1 FCR 153, [2013] 3 WLR 1299, (2013) 16 CCL Rep 554, UKSC 2013/0134
Bailii, Bailii Summary, WLRD, SC Summary, SC
Mental Capacity Act 2005
England and Wales
Citing:
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – W v M and Others CoP 28-Sep-2011
Baker J pointed out that ‘there is a spectrum of minimal consciousness extending from patients who are only just above the vegetative state to those who are bordering on full consciousness.’ . .
Appeal from – Aintree University Hospitals NHS Foundation Trust v James and Others CA 1-Mar-2013
The patient had been found to lack capacity to litigate and make decisions as to his medical treatment. The Hospital appealed against rejection of its request for a declaration that it would be lawful to withhold treatment in the case of clinical . .
At COP – An NHS Trust v DJ and Others CoP 6-Dec-2012
DJ was severely ill and incapacitated. He was completely dependent on artificial ventilation and required regular tube suction. The hospital trust issued proceedings seeking declarations (1) that he lacked capacity to consent to or refuse treatment . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – In re J (a Minor) (Wardship: Medical treatment) CA 1-Oct-1990
J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
Cited – Regina v Cambridge Health Authority ex parte B CA 10-Mar-1995
The claimant challenged a refusal by the Authority to provide medical care of the sort requested.
Held: Lord Bingham said: ‘I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – In Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
Cited – W Healthcare NHS Trust v KH CA 17-Sep-2004
The patient was a lady aged 59, suffering multiple sclerosis. She had lost mental capacity to make her own decisions many years before. She appealed against a refusal of an order allowing the doctors to bring her life to an end.
Held: The . .
Cited – Wyatt v Portsmouth NHS Trust and Another FD 21-Apr-2005
Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .

Cited by:
Cited – A NHS Foundation Trust v Ms X (By Her Litigation Friend, The Official Solicitor) CoP 8-Oct-2014
X suffered both severe anorexia and alcoholism. She had in the past been repeatedly and compulsorily admitted to hospital for treatment, but her doctors considered that whilst this might be life extending treatment it had proved ineffective and . .
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 – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.517230

Briggs v Briggs and Others (EWCOP 48): CoP 24 Nov 2016

The Court considered whether the disagreement about whether it was in the best interests of Mr B for him to be given clinically assisted nutrition and hydration, was one which could be determined
Charles J
[2016] EWCOP 48, [2016] WLR(D) 634
Bailii, WLRD
Mental Capacity Act 2005
England and Wales
Cited by:
Appeal from – Director of Legal Aid Casework and Others v Briggs CA 31-Jul-2017
Orse In re Briggs (Incapacitated Person) . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.572012

J T v The United Kingdom: ECHR 30 Mar 2000

The applicants case was struck out after a friendly settlement under which the UK government undertook to seek to amend Mental Health legislation. Current law did not provide an opportunity for a detained person to apply to court to have substituted some other person for the ‘nearest relative’ initially appointed, and in this case to substitute a social worker. Certain persons would also be excluded from the class of potential nearest relatives.
Hudoc Judgment (Struck out of the list) Struck out of the list (arrangement)
Times 05-Apr-2000, 26494/95, [2000] ECHR 133
Worldlii, Bailii
Mental Health Act 1983, European Convention on Human Rights
Human Rights
Cited by:
Cited – Regina (M) v Secretary of State for Health QBD 16-Apr-2003
In the J T case the UK government had reached a friendly settlement under which it accepted that the United Kingdom law under sections 26 and 29 of the 1983 Act was an infringement of a patients human rights. It had been accepted that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.165842

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 competently given, provided the treatment was a necessity and did no more than was reasonably required in the best interests of the patient.
The parent of a mentally-disabled adult had no power at common law to consent to a medical operation on her behalf.
Lord Brandon said: ‘The application of the principle which I have described means that the lawfulness of a doctor operating on, or giving other treatment to, an adult patient disabled from giving consent, will depend not on any approval or sanction of a court, but on the question whether the operation or other treatment is in the best interests of the patient concerned. That is, from a practical point of view, just as well, for, if every operation to be performed, or other treatment to be given, required the approval or sanction of the court, the whole process of medical care for such patients would grind to a halt.’ and ‘although in the case of an operation of the kind under discussion involvement of the court is not strictly necessary as a matter of law, it is nevertheless highly desirable as a matter of good practice.’ and
‘a doctor can lawfully operate on, or give other treatment to , adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients. The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health.’
Lord Goff of Chieveley: ‘every person’s body is inviolate.’ Lord Goff discussed the doctrine of necessity within the context of the law of tort: ‘That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man’s property in the public interest – for example (in the days before we would dial 999 for the fire brigade) the destruction of another man’s house to prevent the spread of catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another’s property to save his own person or property from imminent danger – for example, when he entered upon his neighbour’s land without his consent, in order to prevent the spread of fire onto his own land.’
As to the court’s jurisdiction to make declaratory judgments: ‘indeed there is authority in the English cases that a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument . . . In the present case, however, none of these objections exists. Here the declaration sought does indeed raise a real question; it is far from being hypothetical or academic. The plaintiff has a proper interest in the outcome, so that it can properly be said that she is seeking relief . . . The matter has been fully argued in court . . . I wish to add that no question arises in the present case regarding future rights: the declaration asked relates to the plaintiff’s position as matters stand at present.’
Lord Brandon, Lord Goff of Chieveley
[1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ER 545, CA and HL(E)
Bailii
Mental Health Act 1983
England and Wales
Cited by:
Cited – Ms B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
Cited – Airedale NHS Trust v Bland FD 19-Nov-1992
The patient had suffered catastrophic injuries in 1989, leaving him in a persistent vegetative state (PVS). The doctors sought leave to discontinue life maintaining treatment and medical support. The inevitable result would be his death. The . .
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 – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – 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 . .
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: . .
Followed – 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 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 – 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. . .
Cited – In re a local authority (Inquiry: restraint on publication); A Local Authority v A Health Authority and A FD 27-Nov-2003
The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain . .
Cited – An Hospital NHS Trust v S (By her Litigation Friend the Official Solicitor) And DG (S’s Father) and SG (S’s Mother) FD 6-Mar-2003
The hospital sought a declaration that it had no obligation to provide a kidney transplant to an eighteen year old youth who had had very severe disabilities since birth. It was argued that his mental condition meant that he would be unable to cope . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
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 – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
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 . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – 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 – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 August 2021; Ref: scu.180314

Re K (Enduring Powers of Attorney), In re F: ChD 1988

The court allowed an appeal against the decision of the Master of the Court of Protection refusing registration to an enduring power of attorney on the ground that the donor, although capable of understanding the nature of the power, was herself incapable by reason of mental disorder of managing her property and affairs at the time that she executed the power. For a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act. In the context of litigation, the test to be applied is: ‘whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.’ There is no logical reason why a person who understands that something needs to be done, but who does not have the requisite understanding to do it for himself, should not confer on another the power to do what needs to be done.
Hoffmann J said: ‘there is no logical reason why, though unable to exercise her powers, [the donor] could not confer them upon someone else by an appropriate juristic act. The validity of that act depends on whether she understood its nature and effect and not on whether she would hypothetically have been able to perform all the acts which it authorised.’ and
‘I do not think that it would be sufficient if he realised only that it gave Cousin William power to look after his property. Mr Rawson [counsel instructed by the Official Solicitor] helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power. First (if such be the terms of the power) that the attorney will be able to assume complete authority over the donor’s affairs. Secondly (if such be the terms of the power) that the attorney will in general be able to do anything with the donor’s property which he himself could have done. Thirdly, that the authority will continue if the donor should be or become mentally incapable. Fourthly, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. I do not wish to prescribe another form of words in competition with the explanatory notes prescribed by the Lord Chancellor, but I accept Mr Rawson’s summary as a statement of the matters which should ordinarily be explained to the donor (whatever the precise language which may be used) and which the evidence should show he has understood.’
Hoffmann J
[1988] Ch 310
England and Wales
Cited by:
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – 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 – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.219623

DA v Central and North West London NHS Foundation Trust: UTAA 23 Apr 2021

On an application under s.75 by a conditionally discharged restricted patient who has to date been subject to conditions there is nothing intrinsically irrational in removing the conditions while maintaining the liability to recall: R(SH) v MHRT [2007] EWHC 884 (Admin) and R(SC) v MHRT [2005] EWHC 17 (Admin) applied. Nor was there anything irrational in the particular circumstances of this case where the First-tier Tribunal retained liability to recall as a safety net and (though the point was not fully argued) dispensed with the conditions with a view to the patient strengthening his case before a subsequent tribunal. However, the First-tier Tribunal’s reasons failed to meet the legal standard of adequacy, lacking findings as to the likelihood of the appellant becoming unwell and failing to explain why a less restrictive option supported by evidence in some detail from the treating professionals was rejected.
[2021] UKUT 101 (AAC)
Bailii
England and Wales

Updated: 12 August 2021; Ref: scu.666402

DB v Betsi Cadawaldr University Health Board: UTAA 3 Mar 2021

If the evidence shows that a patient is not receiving any significant component of their treatment in hospital, this may indicate that it is not appropriate for the patient to be detained for treatment, even if the discipline of recall is considered necessary in order to ensure compliance.
[2021] UKUT 53 (AAC)
Bailii
England and Wales

Updated: 10 August 2021; Ref: scu.666397

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.
Woolf J
[1984] QB 581
England and Wales
Cited by:
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. . .
At first instance – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.259911

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.
Eveleigh, Fox and Parker L.JJ
[1985] 2 WLR 413
England and Wales
Citing:
Appeal From – 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. . .

Cited by:
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.259912

NHS Trust v Baby X and Others: FD 30 Jul 2012

Baby X suffered a catastrophic accident. The doctors now sought to remove him from life support which would lead inevitably to his death. The parents resisted saying that there were signs of responsiveness, that there had been an improvement and that removing the care would run contrary to their religious views.
Held: A declaration was granted: ‘the desire to preserve life as the proper starting point to which I add that X is very probably unaware of any burden in his continued existence. Against that, secondly, I have set both his unconsciousness or unawareness of self, others or surroundings and the evidence that any discernible improvement is an unrealistic aspiration. Thirdly, I have acknowledged his ability to continue for some time yet on ventilation but have balanced that with the risk of infection or other deterioration and the desire to avoid death in isolation from human contact. Fourthly, having accepted that treatment serves no purpose in terms of improvement and has no chance of effecting it, I have taken into account its persistent, intense and invasive nature. Fifthly, I have noted the treating consultant’s view that X shows no desire to live or capacity to struggle to survive which are the conventional marks of a sick child; although I think that observation as such is correct, I would not want that to have significant let alone decisive weight in this balance. ‘ X’s welfare requires his removal from ventilation on to palliative care.
A life from which others may recoil can yet be precious.
Hedley J
[2012] EWHC 2188 (Fam)
Bailii
England and Wales
Cited by:
Cited – Aintree University Hospitals NHS Foundation Trust v James and Others CA 1-Mar-2013
The patient had been found to lack capacity to litigate and make decisions as to his medical treatment. The Hospital appealed against rejection of its request for a declaration that it would be lawful to withhold treatment in the case of clinical . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.463345

Bailey v Warren: CA 7 Feb 2006

The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought by the claimant without a litigation friend and judgment was entered in accordance with the compromise for damages to be assessed subject to the 50% reduction for contributory negligence. The issue then arose whether the claimant had been a patient at any material time. The trial judge found that the claimant was a patient as at the date when judgment was entered giving effect to that compromise but that he was not a patient when the agreement was made. It was now sought to re-open the settment reached.
Held: The test of mental capacity was issue-specific and that it had to be applied in relation to the particular transaction in respect of which the question falls to be decided.
Hallett LJ said: ‘the issue was the issue of liability and the piece of business done was the compromise of the issue of liability not the conduct of the whole of the litigation.’
Arden LJ said: ‘It seems to me that the right approach must be to ask as a matter of common sense whether the individual steps formed part of a larger sequence of events which should be seen as one, or whether they were in fact self-contained steps which were not connected with each other.
the relevant transaction for the purposes of a compromise made at a time when legal proceedings are in contemplation should be treated in the same way as a compromise made in the course of those proceedings . . The logical time for solicitors to consider the capacity of their client to litigate must surely be before the letter before action is sent not after it is sent and immediately before the proceedings are issued. In that event they could find that the client had no capacity to bring the proceedings that he had threatened without the intervention of a litigation friend . . an individual can only properly evaluate an offer to settle a claim if he has some idea of what would follow from his rejection. So the individual must therefore have some capacity to understand what might happen in the course of the contemplated litigation. So some at least of the issues involved in the decision to litigate are also involved in the decision to compromise a claim which would otherwise have to be litigated . . there is no doubt that where a compromise is made in the course of litigation the test is whether the individual has capacity to conduct those proceedings . . I prefer the conclusion that the appropriate test in this case is whether the client had capacity to start proceedings. That would include the question whether he would have capacity for the purposes of an offer of compromise. I would add that, in my judgment, where a client seeks damages for personal injury because he has suffered a brain injury, capacity is a question that ought in general routinely to be considered by those representing him.
The assessment of capacity to conduct proceedings depends to some extent on the nature of the proceedings in contemplation. I can only indicate some of the matters to be considered in accessing a client’s capacity. The client would need to understand how the proceedings were to be funded. He would need to know about the chances of not succeeding and about the risk of an adverse order as to costs. He would need to have capacity to make the sort of decisions that are likely to arise in litigation. Capacity to conduct such proceedings would include the capacity to give proper instructions for and to approve the particulars of claim, and to approve a compromise. For a client to have capacity to approve a compromise, he would need insight into the compromise, an ability to instruct his solicitors to advise him on it, and an understanding of their advice and an ability to weigh their advice. So far as Mr Bailey was concerned, the receipt of damages could have a substantial impact upon him. He would need to know what he was giving up and what would happen if he refused to accept the offer of compromise.’
Ward LJ said: ‘I consider that the answer is provided by the terms of Part 21 itself and the several references in the rules . . to the purpose to be served by having a litigation friend, namely having someone able properly to conduct the proceedings on behalf of the patient. That is the capacity which the patient lacks. Thus the enquiry should be focused on the capacity to conduct the proceedings as Arden L.J. describes in paragraph 126. This it seems to me is totally consistent with Masterman-Lister.
If, as it seems to me, the relevant capacity is capacity to conduct proceedings, then the client must be able to understand all aspects of those proceedings and take an informed decision, with the help of such explanation as he is given, which bears upon them. It cannot be judged piecemeal. If he has the ability to understand what is meant by a 50/50 split of liability but lacks the capacity to understand the concept of damages which results from that division of liability, then he lacks true capacity to conduct the proceedings . . all of this makes much more sense . . where one is considering the capacity to conduct the proceedings at the moment when they are instituted and thereafter during their continuance and it makes less sense to consider the matter in the run up to the litigation even if litigation is a possible outcome in default of a fully successful settlement of the claim.’
Ward, Arden, Hallett LJJ
[2006] EWCA Civ 51, [2006] CP Rep 26
Bailii
England and Wales
Citing:
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Cited by:
Cited – Dunhill v Burgin CA 3-Apr-2012
The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2021; Ref: scu.525975

Bell and Another v The Tavistock and Portman NHS Foundation Trust: Admn 1 Dec 2020

Claim for judicial review of the practice of the defendant through its Gender Identity Development Service and the first and second Interveners (the Trusts) of prescribing puberty-suppressing drugs to persons under the age of 18 who experience gender dysphoria.
Dame Victoria Sharp P., Lord Justice Lewis, Lieven J.
[2020] EWHC 3274 (Admin), [2020] WLR(D) 655, [2021] PTSR 593
Bailii, WLRD
England and Wales

Updated: 05 August 2021; Ref: scu.656781

Dunhill v Burgin: CA 3 Apr 2012

The claimant had been severely injured in a road traffic accident, and had settled her claim for damages. It was not appreciated at the time that she lacked capacity to make such a decision. The court was now asked what it should consider on considering an action to re-open such a case.
Held: The appeal succeeded. The judge had not explored the correct issues having said: ‘when the court is considering if the consent order might be set aside on grounds of lack of capacity, the fundamental question for the court when considering this issue of capacity historically, is confined to examining the decisions in fact required of the claimant in the action as drafted.’
The proper question, as settled by Masterman-Lister and Bailey, was whether the claimant had the necessary capacity to conduct the proceedings or, to put it another way, the capacity to litigate. He was not to concentrate merely in the terms of the proposed compromise, and: ‘capacity to conduct proceedings includes . . the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know . . what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase. If the litigation had been conducted properly, it would have been conducted differently.’
Ward LJ concluded: ‘Since capacity to conduct proceedings includes . . . the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know . . . what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase.’
Ward, Lewison LJJ, Sir Mark Potter
[2012] EWCA Civ 397
Bailii
England and Wales
Citing:
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Bailey v Warren CA 7-Feb-2006
The appellant had been severely injured in a road traffic accident. He settled his claim for damages before action, but his solicitors failed to make proper arrangements to allow for his lack of mental capacity. A claim for damages was then brought . .
Appeal from – Dunhill v Burgin QBD 7-Mar-2011
The claimant asked that a settlement of her personal injuries claim be set aside on the basis that it had been made at a time when she lacked capacity, and that the agreement had required approval by the court which was not sought. The parties were . .

Cited by:
At CA – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.459677

Dunhill v Burgin (No 2): QBD 9 Nov 2012

The Court was asked whether CPR 21.10 has any application ‘where the claimant has brought a claim in contravention of CPR 21.2, so that in the eyes of the defendant and the court she appeared to be asserting that she was not under a disability?’
Held: Where a civil claim is issued, the Civil Procedure Rules are incorporated into any agreement made to settle the case and that CPR 21.10(1) required that this settlement be approved by the court irrespective of how matters appeared at the time. Hence the settlement was void, the court order should be set aside and the case should go for trial.
Leave to appeal direct to the Supreme Court as given.
Bean J
[2012] EWHC 3163 (QB), [2012] WLR(D) 321, [2012] 1 WLR 3739
Bailii, WLRD
England and Wales
Cited by:
At First Instance (2) – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.465699

Ward v Commissioner of Police for the Metropolis and others: HL 5 May 2005

The claimant had been taken under warrant to a mental hospital, but was found not to be suffering any mental illness. She complained that the arrest was unlawful, since the police officer had not been accompanied by the people named on the warrant. The House was asked whether a magistrate being requested to issue a warrant under the 1983 Act for a place of safety order, had the power to require the police officer executing the warrant to be accompanied by a named social worker or mental health worker.
Held: The intention under the 1983 Act had been to reduce the requirements for a warrant. The issue was not what was implied into the constable’s power to execute the warrant, but what was implied into the magistrate’s power to grant it. The attachment of the names was outdated, and was simply a nullity without vitiating the warrant. ‘Far from its being necessary to limit the powers granted by the warrant in this way, that purpose is more likely to be achieved if the powers are not cut down by insisting that named people be present, or by allowing the magistrate to impose other limitations, however ‘sensible’ they may seem at the time.’ The arrest had therefore been lawful though unaccompanied, and the action failed. The warrant request had been completed ineptly. There was nothing to indicate that the magistrate had applied his mind to the names shown on the request. The use of the procedure was severly circumscribed by the Act. The claimant’s distress was understandable, but his claim failed.
Lord Steyn, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
[2005] UKHL 32, Times 09-May-2005, [2006] 1 AC 23, [2005] 2 WLR 1114
Bailii, House of Lords
Mental Health Act 1983 135, Mental Deficiency Act 1913 15(2)
England and Wales
Citing:
Cited – Attorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .
Appeal From – Ward v The Commissioner of Police for the Metropolis and Epsom and St Helier NHS Trust CA 30-Jul-2003
The claimant sought damages for the circumstances of her having been taken into custody. A magistrate had issued a warrant to require her to be removed to a place of safety. The warrant named a social worker and doctor to accompany the officer. The . .
Cited – Bodden v Commissioner of Police of the Metropolis 1990
A magistrate’s power to order the detention of someone who wilfully interrupted the proceedings of the court includes ‘all incidental powers necessary to enable the court to exercise the jurisdiction in a judicial manner’, and specifically in this . .
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 by:
Appealed to – Ward v The Commissioner of Police for the Metropolis and Epsom and St Helier NHS Trust CA 30-Jul-2003
The claimant sought damages for the circumstances of her having been taken into custody. A magistrate had issued a warrant to require her to be removed to a place of safety. The warrant named a social worker and doctor to accompany the officer. The . .
Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.224576

White v Fell: 12 Nov 1987

The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a person’s mental capacity: ‘The expression ‘incapable of managing her own affairs and property’ must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided . . . It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice . . . Secondly, having identified the problem it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately . . . Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive.’
Boreham J
Unreported, 12 November 1987
England and Wales
Cited by:
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – 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 – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.219085

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 court under section 29 for the functions of the nearest relative to be exercised by an approved social worker rather than the mother. This, by section 29(4) extended the period of detention until that application was disposed of. At the mother’s request, the Secretary of State then exercised his power under section 67 to refer the case to the tribunal, which heard the case but declined to discharge her. She now said that section 29 was
Held: The House ‘decline[d] to hold that either section 2 or section 29(4) is incompatible with article 5(4) of the Convention in the respects identified by the Court of Appeal’, because ‘article 5(4) does not require that every case be considered by a court. It requires that the person detained should have the right to ‘take proceedings’. The wording is different from article 5(3), ‘ and ‘while judicial review and/or habeas corpus may be one way of securing compliance with the patient’s article 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State’s reference under section 67. Either way, however, the means exist of operating section 29(4) in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.’
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] UKHL 60, Times 25-Oct-2005, [2006] 1 AC 441, [2005] 4 All ER 1311, [2005] 3 WLR 867
Bailii, House of Lords
Mental Health Act 1983 2 29(4)
England and Wales
Citing:
Cited – Lewis v Gibson and Another CA 19-May-2005
Appeal against order displacing applicant as best friend of mental health patient. . .
Cited – HL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte Ax London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – 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 – 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 – 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 – Rakevich v Russia ECHR 28-Oct-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Violation of Art. 5-4 ; Non-pecuniary damage – financial award ; Costs and expenses – claim rejected
Even the judicial review of every . .
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 – X v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order 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 by:
Cited – Modaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.231239

Attorney General v X: 5 Mar 1992

(Supreme Court of Ireland) Refusal of abortion following a rape
[1992] IESC 1, [1992] 1 IR 1
Bailii
England and Wales
Cited by:
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.666175

Family Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety: CANI 8 Oct 2004

A termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term
Sheil LJ
[2004] NICA 37
Bailii
Northern Ireland
Cited by:
Cited – The Attorney General for Northern Ireland and Another v The Northern Ireland Human Rights Commission CANI 29-Jun-2017
Appeal by the Attorney General and Department of Justice against an Order declaring that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with Article 8 of ECHR insofar as it is an offence:
(i) to procure a . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.219558

Simms, PA v Simms (Acting By the Official Solicitor As Litigation Friend), an NHS Trust (Acting By the Official Solicitor As Guardian Ad Litem), an NHS Trust: FD 11 Dec 2002

‘In a situation where there is no application to the court, and the patient does not have capacity to make a decision about medical or surgical treatment, the doctor has, in my judgment, two duties. First he must act at all times in accordance with a responsible and competent body of relevant professional opinion, generally described as the ‘Bolam test’. . . That is the professional standard set for those who make such decisions. There is a second duty. In re A (Male Sterilisation) [2000] 1 FLR 549 I said at page 555 ‘The doctor, acting to that required standard, has, in my view, a second duty, that is to say, he must act in the best interests of a mentally incapacitated patient.’ and ‘In a case where an application is made to the court . . ..it is the judge, not the doctor, who makes the decision that it is in the best interests of the patient that the operation be performed or the treatment be given.’
Dame Elizabeth Butler-Sloss, P
[2002] EWHC 2734 (Fam), [2003] 2 WLR 1465, [2003] Fam 83
Bailii
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 – Re A (Male Sterilisation) CA 2000
The court considered the duties of a doctor, asking whether a procedure should be undertaken for a patient without the capacity to consent: Dame Elizabeth Butler-Sloss said: ‘The doctor, acting to that required standard, has, in my view, a second . .

Cited by:
Cited – An Hospital NHS Trust v S (By her Litigation Friend the Official Solicitor) And DG (S’s Father) and SG (S’s Mother) FD 6-Mar-2003
The hospital sought a declaration that it had no obligation to provide a kidney transplant to an eighteen year old youth who had had very severe disabilities since birth. It was argued that his mental condition meant that he would be unable to cope . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.178562

Re JW: CoP 2 Dec 2015

Application by a family member to be appointed as a joint deputy for property and affairs with the existing deputy, East Sussex County Council. When it became apparent that the Council was unwilling to act jointly with him, the applicant revised his application and asked the court to remove the Council as deputy and to appoint him in its place.
[2015] EWCOP 82
Bailii
Mental Capacity Act 2006
England and Wales

Updated: 18 July 2021; Ref: scu.558195

Re V, (Out of Hours: Reporting Restriction Order): CoP 2 Dec 2015

Reasons for granting a time limited extension for a reporting restrictions order (RRO) in this case.
Theis J
[2015] EWCOP 83
Bailii
England and Wales
Citing:
See Also – V v Associated Newspapers Ltd and Others CoP 9-Dec-2015
The court heard applications reating to anonymity orders made in the Court when a hearing was to be in public and the continuation of an injunction. . .

These lists may be incomplete.
Updated: 18 July 2021; Ref: scu.558197

Anam v Secretary of the State for the Home Department: Admn 13 Oct 2009

The claimant said that his detention pending deportation was unlawful being in his case in breach of the respondent’s policy of not detaining those with mental health problems. He had committed various offences but was receiving a treatment which would not be available to him for his paranoid schizophrenia if returned to Bangladesh.
Cranston J
[2009] EWHC 2496 (Admin)
Bailii
England and Wales
Citing:
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – A, Regina (on the Application of) v Secretary of State for the Home Department CA 30-Jul-2007
The applicant had had his application for asylum rejected. Pending deportation, he had been held in custody. The court had found his detention unlawful.
Held: The Home Secretary’s appeal succeeded. The power to detain in such circumstances had . .

These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.376015

Veselibas Ministrija (Social Security – Authorisation To Receive Treatment Outside The Member State of Residence – Opinion) C-243/19: ECJ 29 Oct 2020

Reference for a preliminary ruling – Social security – Regulation (EC) No 883/2004 – Article 20, paragraph 2 – Directive 2011/24 / EU – Article 8, paragraphs 1 and 5 as well as paragraph 6, sub d) – Health insurance – Hospital care provided in a Member State other than the Member State of affiliation – Refusal of prior authorization – Hospital treatment which can be effectively provided in the Member State of affiliation – Article 21 of the Charter of Fundamental Rights of the European Union – Difference in treatment based on religion
[2020] EUECJ C-243/19, ECLI:EU:C:2020:872
Bailii
England and Wales
Citing:
Opinion – Veselibas Ministrija (Social Security – Authorisation To Receive Treatment Outside The Member State of Residence – Opinion) C-243/19 ECJ 30-Apr-2020
(Opinion) Reference for a preliminary ruling – Social security – Medical insurance – Regulation (EC) No 883/2004 – Article 20(2) – Authorisation to receive treatment outside the Member State of residence -Authorisation granted where the treatment is . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.660822

Veselibas Ministrija (Social Security – Authorisation To Receive Treatment Outside The Member State of Residence – Opinion) C-243/19: ECJ 30 Apr 2020

(Opinion) Reference for a preliminary ruling – Social security – Medical insurance – Regulation (EC) No 883/2004 – Article 20(2) – Authorisation to receive treatment outside the Member State of residence -Authorisation granted where the treatment is among benefits provided for by the legislation of Member State of residence and where person cannot be given such treatment within a time limit which is medically justifiable – Directive 2011/24/EU – Article 7 – Article 8(5) – Reimbursement of cross-border healthcare -Medical expenses incurred in another Member State – Refusal – Charter of Fundamental Rights of the European Union – Article 10(1) and Article 21(1) – Article 56 TFEU
[2020] EUECJ C-243/19_O, ECLI:EU:C:2020:325
Bailii
European
Cited by:
Opinion – Veselibas Ministrija (Social Security – Authorisation To Receive Treatment Outside The Member State of Residence – Opinion) C-243/19 ECJ 29-Oct-2020
Reference for a preliminary ruling – Social security – Regulation (EC) No 883/2004 – Article 20, paragraph 2 – Directive 2011/24 / EU – Article 8, paragraphs 1 and 5 as well as paragraph 6, sub d) – Health insurance – Hospital care provided in a . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.660160

An NHS Trust ‘A’ v ‘M’: FD 25 Oct 2000

Applications by two hospital trusts seeking declarations to enable hospitals managed by them to discontinue artificial nutrition and hydration provided to two patients, M and H.
Butler-Sloss D P
[2000] EWHC B2 (Fam), [2001] Fam Law 501
Bailii
England and Wales

Updated: 09 July 2021; Ref: scu.469802

University Hospital Birmingham NHS Foundation Trust v AI and K: CoP 26 May 2021

the Court was asked as to AI, a 48 year old man, who is approaching the end of his life and in respect of whom the applicant Trust seek a declaration that it will be both lawful and in his best interests to discontinue any further attempts to provide dialysis.
Mr Justice Hayden
[2021] EWCOP 37
Bailii, Judu=iciary
England and Wales

Updated: 07 July 2021; Ref: scu.662829

E (Vaccine): CoP 20 Jan 2021

This application concerns Mrs E, who is aged 80 years. The issue before the Court is whether Mrs E should receive a vaccination for Covid-19. Mrs E has a diagnosis of dementia and was diagnosed with schizophrenia around 20 years ago.
Mr Justice Hayden
[2021] EWCOP 7
Bailii
England and Wales

Updated: 20 June 2021; Ref: scu.659228

A v AG and CI (No 2): CoP 22 Jan 2021

Whether AG lacks capacity to make decisions as to:
a. The conduct of litigation.
b. Her place of residence.
c. Her care and support.
d. Her contact with other people.
e. Management of her property and affairs including termination of her tenancy.
f. Engagement in sexual relations.
g. Marriage.
Mr Justice Poole
[2021] EWCOP 5
Bailii
England and Wales

Updated: 19 June 2021; Ref: scu.659227

Regina v Newman; Regina v Buckland: CACD 18 Jan 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 second serious offence. The case should be looked at in the light of section 2, and the purpose of the Act. Attempted robbery was not a serious offence within the Act but a firearms offence involving an imitation firearm was.
Times 03-Feb-2000, [2000] 1 WLR 1262, [2000] EWCA Crim 1, [2000] 1 All ER 907, [2000] 2 Cr App Rep (S) 217, [2000] Crim LR 307, [2000] 1 Cr App Rep 471
Bailii
England and Wales
Cited by:
Cited – S, Regina v CACD 25-Feb-2002
Appeal against sentence for rape, as the result of a reference by the Criminal Cases Review Commission. Life sentence imposed because of historic serious violence. The court was asked what were ‘exceptional circumstances’ so as to allow a non-life . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.158651

Optident Limited; Ultradent Products Inc v Secretary of State for Trade and Industry and Secretary of State for Health: CA 1 Jul 1999

Bodies set up to decide upon the regulation of medical devices did not have competence to decide whether an article was itself a medical device rather than a cosmetic. That issue is for the national courts. They could only decide upon the issues provided for by the Directive, and not whether the Directive applied.
Times 28-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Civ 1737
Council Directive 93/42/EEC on Medical Devices
England and Wales

Updated: 14 June 2021; Ref: scu.146652

Barker v Barking Havering and Brentwood Community Healthcare NHS Trust (Warley Hospital) Dr Taylor: CA 30 Jul 1998

A person who is liable to be detained in a hospital by virtue of an application or order under that Act may either be actually detained or given leave of absence. While on leave of absence it may well be that the patient’s disorder is not such that he needs to be detained in hospital. But he remains liable to be detained, and may be recalled to hospital, unless and until the application or order authorising his detention lapses or he is discharged.
[1999] 1 FLR 106, [1998] EWCA Civ 1347
Bailii
Mental Health Act 1983
England and Wales
Cited by:
Cited – Khadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .

These lists may be incomplete.
Updated: 31 December 2020; Ref: scu.144826

Bennington v Peter; Regina v Swaffham Justices ex parte Peter: QBD 1984

The applicant held a heavy goods vehicle licence. He became diabetic. The licensing authority refused to renew his licence. He appealed.
Held: The justices had used the wrong test, saying he could not be said not to be likeley to suffer a hypoglycaemis attack. The test should be whether the disability was likely to cause the driver’s actions so as to be a danger. They had no jurisdiction to extend the effect of the licence, but since they had made a decision wrong in law, and the matter was to be remitted, the licence would stay in effect until they reached their decision.
References: Times 11-Feb-1984, [1984] RTR 383
Judges: Woolf J
Statutes: Road Traffic Act 1972 118(2), Heavy Goods Vehicle (Drivers’ Licences) Regulations 1977 (1977 No 1309) 3
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Griffin v Westminster City Council CA 28-Jan-2004
    The claimant sought emergency rehousing saying that he was a vulnerable person within section 189. The court at first instance had overturned the rejection of his claim by the authority.
    Held: The test set out in the statute was to be followed . .
    (Times 04-Feb-04, , [2004] EWCA Civ 108, Gazette 11-Mar-04, [2004] HLR 32)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192637