Category: Health

The Health Service Executive of Ireland v Moorgate: CoP 11 Mar 2020

Consideration of whether the necessary criteria are met for the recognition and enforcement of protective measures contained in an order made by the Irish High Court on 4th February 2020. The order was made by the President of the Irish High Court on the application of the Health Service Executive of Ireland (‘HSE’). The order authorised the transfer for treatment of SM, a 19-year-old Irish girl, to Ellern Mede Moorgate (‘Ellern Mede’), a specialist hospital with a high dependency unit in the North-East of England. The consensus before the Irish Court was that SM requires a placement which can stabilise her general mental health before treating her underlying condition.

Judges:

Mr Justice Hayden

Citations:

[2020] EWCOP 12

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 25 November 2022; Ref: scu.650605

Mundell v Name 1: CoP 18 Sep 2019

‘The issue I have to decide is whether I have reason to believe that (name 1) lacks the relevant capacity to enter into marriage with (name 2) this coming Saturday, 21 September 2019. ‘

Citations:

[2019] EWCOP 50, [2019] WLR(D) 603, [2019] 4 WLR 139

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Health, Agency, Family

Updated: 25 November 2022; Ref: scu.642851

Scotch Whisky Association and Others v The Lord Advocate and Another: SC 15 Nov 2017

The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum pricing was a proportionate way of achieving a legitimate aim. From the outset, concern about the health and social harms resulting from extremely heavy drinking in deprived communities was an element of targeted thinking behind the 2012 Act. The Policy Memorandum also discounted a straightforward increase in excise tax as it ‘would impact on high price products as well as cheap ones and so would have a proportionately greater effect on moderate drinkers than a minimum price’.
The Court of Session had made a judgment it was entitled to reach on the information before it.
The effect of the ECJ judgment was that, where a national court examines national legislation in the light of the justification relating to the protection of health under article 36 TFEU it is bound to examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO.

Judges:

Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hodge

Citations:

[2017] UKSC 76, 2017 GWD 37-566, [2017] UKSC 76, [2018] LLR 198, 2018 SCLR 102, [2018] 2 CMLR 6, 2017 SLT 1261, UKSC 2017/0025

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Jul 24am Video, SC 2017 Jul 24pm Video, SC 2017 ul25am Video, SC 2017 ul25pm Video

Statutes:

Alcohol (Minimum Pricing) (Scotland) Act 2012, Directive 92/84/EEC

Jurisdiction:

Scotland

Citing:

See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
At ECJ – Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland ECJ 23-Dec-2015
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative . .
Cited – Commission v Italy (Free Movement Of Goods) ECJ 10-Feb-2009
ecJ Failure of a Member State to fulfil obligations Article 28 EC Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ Prohibition on mopeds, motorcycles, motor tricycles and . .
Cited – Berlington Hungary And Others v Magyar Allam ECJ 11-Jun-2015
ECJ Judgment – Reference for a preliminary ruling – Freedom to provide services – Games of chance – National taxes on the operation of slot machines in amusement arcades – National legislation national . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
Cited – Commission v France C-434/97 ECJ 24-Feb-2000
(Rec 2000,p I-1129) Judgment) Action for failure to fulfil obligations – Directive 92/12/EEC – Specific tax levied on beverages with a high alcohol content
The Court summarised the difference between VAT and excise as being that the former is . .
Cited – Bernard Keck and Daniel Mithouard (Rec 1993,p I-6097) (SV93-431) (Judgment) ECJ 24-Nov-1993
Free movement of goods – Prohibition of resale at a loss. A national law is fair if the rules it applies deal equally to imported and home goods.
Europa Free movement of goods – Quantitative restrictions – . .
Cited – Groupement National des Negociants en Pommes de Terre de Belgique Belgapom) v ITM Belgium SA and Vocarex SA ECJ 11-Aug-1995
European Community quantitative restrictions on import not relevant to every states legislation. Measures applying equally to all traders within a member state were not discriminatory.
Trade between Member States is not likely to be impeded, . .
Cited – Transportes Jordi Besora, SL v Tribunal Economico Administrativo Regional De Cataluna ECJ 27-Feb-2014
Indirect taxes – Excise duties – Directive 92/12/EEC – Article 3(2) – Mineral oils – Tax on retail sales – Concept of ‘specific purpose’ – Transfer of powers to the Autonomous Communities – Financing – Predetermined allocation – Health-care and . .
Cited – Tallinna Ettevotlusamet v Statoil Fuel and Retail ECJ 5-Mar-2015
ECJ Judgment – Reference for a preliminary ruling – Indirect taxation – Excise duties -Directive 2008/118/EC – Article 1(2) – Liquid fuel subject to excise duty – Sales tax – Concept of ‘specific purpose’ – . .
At IHCS – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
Lists of cited by and citing cases may be incomplete.

Licensing, Health, European

Updated: 25 November 2022; Ref: scu.599383

University Hospitals Bristol NHS Foundation Trust v RR: CoP 9 Aug 2019

The Court was asked to make declarations in relation to a young man specifically in relation to easing his passing. Specifically, his capacity to make decisions around his care for himself; and, secondly, if he lacks capacity, to consider and, if appropriate, approve a palliative care plan to allow him to die, (which is likely to be in the next few days), with the minimum of pain and stress.

Citations:

[2019] EWCOP 46

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health, Agency

Updated: 25 November 2022; Ref: scu.642849

MH, Regina (on the Application of) v Secretary of State for the Department of Health: CA 3 Dec 2004

The patient had been detained under the Act and was incapable of making an application for her freedom.
Held: There was a duty on the state to ensure that mechanisms were made available to a patient to apply to review her continued detention where she was herself incompetent to make such an application. Having been originally detained, the patient’s detention had been extended, and application made to remove her mother as ‘nearest relative’ The result was to leave her with no effective way of exercising her rights.

Judges:

Lord Justice Buxton Mr Justice Lindsay Lord Justice Wall

Citations:

[2004] EWCA Civ 1690, Times 08-Dec-2004, [2004] EWCA Civ 1609, [2005] RPC 14, [2005] 1 WLR 1209

Links:

Bailii, Bailii

Statutes:

Mental Health Act 1983 29(4), European Convention on Human Rights 5

Jurisdiction:

England and Wales

Citing:

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

Health, Human Rights

Updated: 24 November 2022; Ref: scu.219919

Symm v Fraser: 1863

The common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary.

Judges:

Cockburn CJ

Citations:

(1863) 3 F and F 859

Jurisdiction:

England and Wales

Cited by:

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

Health, Torts – Other

Updated: 24 November 2022; Ref: scu.218833

Scott v Wakem: 1862

If it could be shown to be necessary to protect him from harming himself, the common law gave power for a man to be detained.

Judges:

Baron Bramwell

Citations:

(1862) 3 F and F 328

Jurisdiction:

England and Wales

Cited by:

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

Torts – Other, Health

Updated: 24 November 2022; Ref: scu.218832

London Borough of Tower Hamlets v A and Another: CoP 23 Apr 2020

‘This issues for determination in this matter at this point are:
a. whether A presently has capacity to decide for herself where she lives (it being agreed that she lacks capacity to decide how she is cared for); and
b. if she lacks capacity to decide where she lives, is a trial period of returning to live at home with a care package in her best interests?’

Judges:

Her Honour Judge Hilder

Citations:

[2020] EWCOP 21

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 24 November 2022; Ref: scu.650611

VE v AO and Others: CoP 5 May 2020

Application in the Court of Protection by VE for an order that it is in her mother, AO’s best interests to be allowed to leave the care home, ‘TO’, in which she is currently living and move to live with her daughter and her family.

Citations:

[2020] EWCOP 23

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 24 November 2022; Ref: scu.650614

Serious Medical Treatment, Guidance: CoP 17 Jan 2020

Practice – Court of Protection – Serious medical treatment – When necessary to seek court authorisation for treatment – Guidance on procedure to be followed – Mental Capacity Act 2005 (c 9), ss 5, 6, 15, 16

Judges:

Hayden J

Citations:

[2020] EWCOP 2, [2020] 1 WLR 641, [2020] WLR(D) 30

Links:

Bailii, WLRD

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 24 November 2022; Ref: scu.650597

In re DML: ChD 1965

The Court considered provisions in Section 102 of the Mental Health Act 1959. This section empowered the judge to secure (the doing of all such things as appear necessary . . ) ‘(b) for the maintenance or other benefit of members of the patient’s family; or (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered.’
In considering the difference between ‘family’ in the first sub-section and other persons in the second Cross J said: ‘The contrasting language of sub-clauses (b) and (c) suggests to my mind that the legislature considered that the word ‘family’ consisted of persons for all of whom the patient might prima facie be expected to make some provision. This, I think, indicates that the word does not include collateral relatives.’

Judges:

Cross J

Citations:

[1965] Ch 1133

Statutes:

Mental Health Act 1959 102

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Health

Updated: 23 November 2022; Ref: scu.223512

Barker v Barking Havering and Brentwood Community Healthcare NHS Trust (Warley Hospital) and Anorther: 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.

Citations:

(1999) 47 BMLR 112, [1999] 1 FLR 106, [1998] EWCA Civ 1347, [1999] Lloyds Rep Med 101, (1999) 2 CCL Rep 5

Links:

Bailii

Statutes:

Mental Health Act 1983

Jurisdiction:

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

Health, Torts – Other

Updated: 23 November 2022; Ref: scu.144826

BP v Surrey County Council and Another: CoP 25 Mar 2020

‘This is an urgent application made on behalf of BP who is 83 years of age. BP was diagnosed with Alzheimer’s disease in December 2018. He is deaf but is able to communicate through a ‘communication board’. Today’s emergency application, brought by BP’s litigation friend, his daughter FP, seeks to achieve his discharge from the care home where he is presently living and a declaration that it is in his best interest to be returned to his home with an appropriate package of support.’

Judges:

Mr Justice Hayden

Citations:

[2020] EWCOP 17

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 22 November 2022; Ref: scu.650604

Sunderland City Council v AS and Others: CoP 20 Mar 2020

Sunderland City Council seeks section 15 (ibid.) declarations in relation to AS’s capacity to make a range of relevant decisions, and (subject to my determination on capacity) various best interests’ determinations; it further seeks authority to deprive AS of his liberty at his accommodation and in the community.

Judges:

The Honourable Mr Justice Cobb

Citations:

[2020] EWCOP 13

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 22 November 2022; Ref: scu.650608

University Hospitals Bristol NHS Foundation Trust v ED: CoP 26 Mar 2020

Application made by the University Hospitals Bristol NHS Foundation Trust for declarations that it is lawful, if there is a deterioration in the condition of the First Respondent, Ms ED, (a) not to provide CPR or any other resuscitative measure and (b) not to admit her to the ICU Unit or provide an ICU level of care, even if, absent this order, she would meet the criteria for ICU admission.

Judges:

Moor J

Citations:

[2020] EWCOP 18

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 22 November 2022; Ref: scu.650609

Re SF: CoP 25 Mar 2020

‘SF is a married woman, aged 45 years old. Her husband, AF, is significantly older than her, and is retired. The couple live together. SF suffers from mild learning disability, type 2 diabetes, depression, and frontal lobe dementia; her presentation has been described as ‘extremely complex’. SF has difficulty communicating and expressing herself, and has difficulty in understanding language.
SF is the subject of proceedings which were issued in the Court of Protection in March 2019 by a Local Authority in Yorkshire (the ‘Local Authority’) by which it seeks declarations in relation to SF’s capacity in a number of areas of SF’s life, as a prelude, as appropriate, to court-determined best interests’ decisions. ‘

Judges:

The Honourable Mr Justice Cobb

Citations:

[2020] EWCOP 15

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health

Updated: 22 November 2022; Ref: scu.650607

A Clinical Commissioning Group v AF and Others: CoP 27 Mar 2020

Whether AF has the capacity to decide whether to continue to receive CANH[1] via a PEG tube[2] inserted into his stomach. All are agreed that he does not, and I also agree. He suffers from a grossly incapacitated mind resulting from a stroke

Judges:

Mr Justice Mostyn

Citations:

[2020] EWCOP 16

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 22 November 2022; Ref: scu.650603

ACC and Others (Property and Affairs Deputy ; Recovering Assets Costs for Legal Proceedings): CoP 27 Feb 2020

The common issue in each matter is whether, and in what circumstances, the deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings.

Judges:

Her Honour Judge Hilder

Citations:

[2020] EWCOP 9

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Health, Costs

Updated: 22 November 2022; Ref: scu.650599

NHS Trust v JP: CoP 18 Jun 2019

application brought by the NHS Trust for declarations whether it is in JP’s best interests to: i) Deliver her baby via a Caesarean section under general anaesthetic ii) To be transferred to hospital from her home in accordance with the transfer plan iii) Not inform her of the outcome of these proceedings.

Judges:

Mr Justice Williams

Citations:

[2019] EWCOP 23

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 22 November 2022; Ref: scu.642839

Regina on the Application of A l v Secretary of State for the Home Department: CA 20 Jan 2005

The claimant complained of his recall to hospital. He had in 1991 been foundf not guilty of murder by reason of his insanity, and had been detained in a secure hospital, but then released conditionally. He said the recall on medical grounds was improper where the condition now complained of was not that under which he had originally been admitted.
Held: It was not necessary to show that the defendant suffered the same condition. He had been recalled where ther had been perceived to be a potentially very serious and imminent risk to others. A further medical report then said no mental ill health could be found though there was some psycopathy, and he complained at his continued detention. Ashworth said a patient could only be treated compulsorily for the mental disorder for which he had been detained. Having been detained under the insanity procedure there was no mechanism for establishing just what mental condition required his detention. With no classification of the disorder for which he was detained, the case failed.

Judges:

Lord Justice Keene Lord Justice Brooke Lord Justice Parker

Citations:

[2005] EWCA Civ 2, [2006] 1 WLR 88

Links:

Bailii

Statutes:

Mental Health Act 1983 42(3)

Jurisdiction:

England and Wales

Citing:

Distinguished – B, Regina (on the Application of) v Ashworth Hospital Authority CA 15-Apr-2003
B having been made subject to a court hospital order classifying him as suffering from a mental illness, complained when he was later detained under section 63 as subject to a personality disorder.
Held: At all times, B was classified as . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 22 November 2022; Ref: scu.221719

HM v Switzerland: ECHR 26 Feb 2002

Citations:

39187/98, [2002] ECHR 157, [2002] 38 EHRR 314, (2004) 38 EHRR 17, [2002] MHLR 209

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 5(1)

Jurisdiction:

Human Rights

Cited by:

Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Shtukaturov v Russia ECHR 27-Mar-2008
The applicant had been placed in a locked facility, tied to his bed, given sedative medication and not permitted to communicate with the outside world. He had given no consent, which might have prevented those measures from being a deprivation of . .
Cited – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 20 November 2022; Ref: scu.167675

Regina v Powys County Council ex parte Hambridge: CA 2 Jul 1998

Statutory extensions of the council’s duty to provide new kinds of care, did not take away the authority’s power to charge for services given under the original section. The council may charge for community care services in the home provided to disabled person. Subsection (2) states that the section applies to services provided under a number of listed enactments, and it also applies to services provided under the 1970 Act even though the 1970 Act is not specifically listed.

Citations:

Times 20-Jul-1998, Gazette 26-Aug-1998, [1998] EWCA Civ 1143, [1998] 1 CCLR 458

Statutes:

Health and Social Services and Social Security Adjudications Act 1983, Chronically Sick and Disabled Persons Act 1970

Jurisdiction:

England and Wales

Cited by:

Cited – Spink, Regina (on the Application Of) v Wandsworth Borough Council Admn 20-Oct-2004
Parents requested the local authority to make provision for their severely disabled children. The local authority wished when deciding whether to provide adaptations of the house to make allowance for the parents’ financial resources.
Held: . .
Lists of cited by and citing cases may be incomplete.

Health, Benefits, Local Government

Updated: 20 November 2022; Ref: scu.144622

Sessay, Regina (on The Application of) v South London and Maudsley Nhs Foundation Trust and Another: QBD 13 Oct 2011

The issue that arises in this case concerns non-compliant incapacitated patients, that is those who are not willing to be admitted and do not have the capacity to consent to admission, to psychiatric hospitals pending the making of an application for their compulsory admission to hospital for assessment under section 2 Mental Health Act 1983

Judges:

Mr Justice Supperstone

Citations:

[2011] EWHC 2617 (QB), [2012] 2 WLR 1071, [2012] MHLR 94, [2012] PTSR 742, [2012] QB 760, [2012] Med LR 123

Links:

Bailii

Statutes:

Mental Health Act 1983 2

Jurisdiction:

England and Wales

Health

Updated: 20 November 2022; Ref: scu.445454

Regina v Medicines Control Agency ex parte Pharma Nord Ltd: CA 10 Jun 1998

Once the Medicines Control Agency has decided that a product is a medicinal product and licensable as such, the courts should not seek to substitute their own judgment. Residuary discretion for declaration not used.

Judges:

Woolf MR, Morritt, Robert Walker LJJ

Citations:

Times 10-Jun-1998, [1998] EWCA Civ 891

Statutes:

Medicines for Human Use (Marketing Authorisations etc.) Regulations 1994 (SI 1994/3144)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Medicines Control Agency Ex Parte Pharma Nord Ltd QBD 11-Jul-1997
A Court reviewing a decision of the Medicines Control Agency does not decide whether the product is a medicine, but whether the decision had been properly reached. . .
Lists of cited by and citing cases may be incomplete.

Health, Licensing

Updated: 19 November 2022; Ref: scu.87316

Regina v Riverside Mental Health Trust ex parte Huzzey: QBD 18 May 1998

Managers considering an application by relatives for discharge of patient were not bound by the doctor’s report, but could go outside the criteria set out in the section to see whether it was safe to release the patient.

Citations:

Times 18-May-1998

Statutes:

Mental Health Act 1983 3

Jurisdiction:

England and Wales

Health

Updated: 18 November 2022; Ref: scu.87633

Claes v Belgium: ECHR 10 Jan 2013

ECHR Article 3
Degrading treatment
Structural problems resulting in prisoner suffering from mental disorders being held for more than fifteen years in prison psychiatric wing with no hope of change or appropriate medical care: violation
Facts – In February 1978 a Criminal Court judgment ruled that the applicant, who had raped his underage sisters, was not criminally responsible for his actions. After committing a series of sexual assaults the applicant, who has an intellectual disability, was held continuously in the psychiatric wing of a prison from 1994 onwards, with the exception of a single period of twenty-two months outside prison following a decision of the Mental Health Board.
Law – Article 3: Apart from access to the prison psychiatrist or psychologist, no specific treatment or medical supervision had ever been prescribed for the applicant. Starting in 2002, he had been able to participate in the activities offered by an association and in September 2005 the prison’s psychosocial unit, backed up by the Mental Health Board, had observed an improvement in his condition and had raised the possibility of his situation being reviewed. However, he had remained in the psychiatric wing until 2009 since no facility had been found that was prepared to accept him. This long-lasting situation, which had continued since 1994, had clearly had a detrimental effect on the applicant’s psychological state. He had suffered distress owing to the lack of any prospect of having his situation reviewed; in addition, he had not come any closer to understanding his problems and required individual and intense supervision.
The Court did not underestimate the efforts made within the prison to improve the support provided to persons in compulsory confinement. Nevertheless, the applicant’s allegations were corroborated by unanimous findings at both national and international level with regard to the unsuitability of psychiatric wings for the detention of persons with mental health problems because of widespread staff shortages, the poor standard and lack of continuity of care, the dilapidated state of premises, overcrowding and a structural shortage of places in psychiatric facilities outside prison. Likewise, the Court did not underestimate the steps taken by the authorities on a regular basis from 1998 onwards to find the applicant a place in an external facility geared to dealing with his disorder. However, the applicant’s situation stemmed in reality from a structural problem. The support provided to persons detained in prison psychiatric wings was inadequate and placing them in facilities outside prison often proved impossible either because of the shortage of places in psychiatric hospitals or because the relevant legislation did not allow the mental health authorities to order their placement in external facilities. Accordingly, the national authorities had not provided the appropriate treatment for the applicant’s condition in order to prevent a situation contrary to Article 3 from arising in his case. His continued detention in the psychiatric wing without the appropriate medical care and over a significant period of time, without any realistic prospect of change, therefore constituted particularly acute hardship causing distress which went beyond the suffering inevitably associated with detention. Whatever obstacles may have been created by the applicant’s own behaviour, they did not dispense the State from its obligations in his regard by virtue of the position of inferiority and powerlessness typical of patients confined in psychiatric hospitals and even more so of those detained in a prison setting. Hence, the applicant had been subjected to degrading treatment on account of his continued detention over a significant period under the conditions referred to above.
Conclusion: violation (unanimously).
The Court further found a violation of Article 5 ss 1 (e) since the applicant’s confinement in prison in breach of Article 3 had also severed the requisite link between the aim of detention and the conditions in which it was effected. It also found a violation of Article 5 ss 4 with regard to the review of lawfulness that could be conducted by the Mental Health Board.
Article 41: EUR 16,000 in respect of non-pecuniary damage. The applicant’s transfer to an institution geared to his needs constituted the most appropriate form of redress.

Citations:

43418/09 – Legal Summary, [2013] ECHR 286

Links:

Bailii

Statutes:

European Convention on Human Rights 3

Human Rights, Health

Updated: 14 November 2022; Ref: scu.472437

An NHS Trust v DJ and Others: CoP 6 Dec 2012

The patient, a 68 year old man did not have mental capacity to make decisions as to his treatment. The family and hospital had long-standing disagreements about his care. The hospital now sought an order to allow his non-resuscitation in the event of a serious further deterioration of specified sorts. He now suffered cancer of the colon.
Held: ‘In relation to DJ’s medical condition and his prospects, the experience of the doctors is persuasive. The family’s hope is for a miracle, but where medical matters are concerned, the court must have regard to the unanimous expert advice. In particular, the evidence of the burdens of this kind of treatment must carry heavy weight.
Even so, that advice is bound to be based on an assessment of probabilities, and there will be a very small number of cases where the improbable occurs. Moreover, the assessment of best interests of course encompasses factors of all kinds, and not medical factors alone, and reaches into areas where doctors are not experts. ‘

Judges:

Peter Jackson J

Citations:

[2012] EWHC 3524 (COP)

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Health

Updated: 14 November 2022; Ref: scu.472023

A County Council v E and Others: CoP 9 Jul 2012

E and K were two adults with learning difficulties. Upon their mother marrying, the local authority had removed E and K from the care of their mother and her new husband. Though both E and K were able to indicate their preferences, this was in a manner for K particularly which was not consistent.

Judges:

Eldergill, DJ

Citations:

[2012] EWHC 4161 (COP)

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Health

Updated: 14 November 2022; Ref: scu.472018

L, Regina (on the Application of) v Secretary of State for the Home Department and Another: Admn 23 Apr 2004

Judges:

Collins J

Citations:

[2004] EWHC 1025 (Admin), [2005] MHLR 7

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (C) v Mental Health Review Tribunal and Others QBD 17-Jan-2005
C applied for judicial review of the refusal by the respondent to order his absolute discharge, and the continuation of the restriction order. He said the tribunal had taken account of earlier reporst referring to a psychopathic personality . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 14 November 2022; Ref: scu.241524

Taylor, Regina (on the Application of) v Haydn-Smith and Another: Admn 27 May 2005

Whether a detained mental patient could be obliged to receive treatment in the form of antipsychotic medication without his consent.

Judges:

Collins J

Citations:

[2005] EWHC 1668 (Admin)

Links:

Bailii

Statutes:

Mental Health Act 1983 63 58(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina (B) v Haddock Admn 20-May-2005
Judicial review of continued detention of claimant under hospital order . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 14 November 2022; Ref: scu.229294

Regina v Broadmoor Special Hospital Authority and Secretary of State for Department of Health ex parte S, H and D (2): CA 5 Feb 1998

Persons detained under Mental Health Acts could be subject to random non-consensual searches even if this went against medical opinion. The power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient flowing from a power of detention for treatment.’

Judges:

Auld LJ

Citations:

Gazette 26-Feb-1998, Times 17-Feb-1998, [1998] EWCA Civ 160

Statutes:

Mental Health Act 1983

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Broadmoor Special Hospital Authority and Secretary of State for Health ex parte ‘S’, ‘H’, ‘D’, ‘L’ Admn 15-Oct-1997
A hospital admitting a patient under the Mental Health Act has the power to search the patient. Each hospital’s policy, however, remains individually assessable for Wednesbury unreasonableness. . .

Cited by:

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 – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 14 November 2022; Ref: scu.143638

Hammond v West Lancashire Health Authority: CA 13 Feb 1998

A Health Authority which destroyed x-ray evidence after three years, even though it knew of the negligence claim against it, and to which the x-rays might relate, had great difficulty in pleading prejudice from delay in prosecution of action by the Plaintiff.

Citations:

Gazette 08-Apr-1998, Times 05-Mar-1998, [1998] EWCA Civ 238

Jurisdiction:

England and Wales

Litigation Practice, Health

Updated: 14 November 2022; Ref: scu.81210

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 deterioration, in particular the making of a ‘Do not attempt to Resuscitate’ instruction.
Held: The appeal had been granted, and the court now gave its reasons. There had been a set of tentative recoveries interrupted by recurrent infections leading to lowering of his blood pressure, septic shock and multiple organ failure. Every setback placed him at further disadvantage. He had sadly become a chronic carrier of the pseudomonas organism.
Sir Alan Ward said: ‘to answer the question whether the proposed treatment would be futile one has to ask what result the treatment seeks to produce. Futility is an ethically controversial concept because what is worthwhile can only be assessed relative to its goal. Thus the crucial question is to determine what the proper goal is for life-sustaining treatment, defined in s. 4(10) of the Act to be ‘treatment which in the view of the person providing healthcare for the person concerned’ (and by necessary extension, the view of the court which is called upon to sanction that treatment) ‘is necessary to sustain life.”
The court must pursuant to s. 4(6) consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings, his beliefs and values and the other factors he would be likely to consider if he were able to do so. The court must take into account the views of those caring for DJ as to what would be in his best interest and particularly what they consider to be his real wishes and feelings.

Judges:

Laws, Arden LJJ, Sir Alan Ward

Citations:

[2013] EWCA Civ 65, [2013] PTSR D22, [2013] 4 All ER 67, [2013] Med LR 110, (2013) 131 BMLR 124

Links:

Bailii

Statutes:

Mental Capacity Act 2005 1(5) 4(2) 4(6)

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
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 – 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 . .
Appeal from – 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 by:

Appeal from – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 14 November 2022; Ref: scu.471297

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 with the stress and changes involved in the operation.
Held: ‘When considering the best interests of a patient, it is, as is set out in Thorpe LJ’s judgment above, the duty of the court to assess the advantages and disadvantages of the various treatments and management options, the viability of each such option and the likely effect each would have on the patient’s best interests and . . . his enjoyment of life.’ The present treatment should continue with further treatments decided upon as necessary, with nothing excluded.

Judges:

The President

Citations:

[2003] EWHC 365 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 12 November 2022; Ref: scu.179547

P, Regina (on the Application of) v Secretary of State for the Home Department: Admn 11 Dec 2003

The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
Held: There is no necessary breach of the requirement of a speedy hearing caused by the provision of successive hearings by a mental health review tribunal and (if that results in discharge from MHA detention) a Discretionary Lifer Panel. Individual delays can be judged on their own facts. The fact that the claimant had no right to have his case considered by the Parole Board until after his discharge from detention under the MHA did not infringe his rights under Article 5.4.

Judges:

Stanley Burnton J

Citations:

[2003] EWHC 2953 (Admin), Times 29-Dec-2003

Links:

Bailii

Statutes:

European Convention on Human Rights , Mental Health Act 1983 49

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
Cited – Regina (D) v Secretary of State for the Home Department QBD 19-Dec-2002
The applicant had been a discretionary life prisoner. His minimum period of detention had passed, but he continued to be detained under a transfer order for his treatment as mental health patient.
Held: The absence of any means for him to . .
Cited – In re De Wilde, Ooms and Versyp v Belgium (No 1) ECHR 18-Nov-1970
The applicants had been detained under Belgian vagrancy laws. An earlier decision had found that their rights had been infringed because of the lack of effective means for them to challenge their detention. The Belgian government said that the . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Megyeri v Germany ECHR 12-May-1992
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
Cited – Regina v East London and the City Mental Health NHS Trust and Another ex parte Von Brandenburg (Aka Hanley) HL 13-Nov-2003
The patient was ordered to be discharged and released from hospital. The tribunal making the order had not accepted the medical recommendations. His release was deferred pending the finding of accommodation, but in the meantime, a social worker . .
Cited – Regina (C) v London South and West Region Mental Health Review Tribunal CA 2001
A standardised period before a hearing to review a patient’s detention that does not vary with the facts of each case may involve a breach of the Convention right. . .
Distinguished – Regina (Noorkoiv) v Secretary of State for the Home Department and Another CA 30-May-2002
The claimant was a prisoner. He became entitled to be considered for release on parole, but was not released because the Parole Board had not made a decision.
Held: The system for consideration of the release of discretionary and life . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Regina v Offen; Regina v McGuillard; Regina v McKeown; Regina v Okwuegbunam; Regina v Saunders (Stephen) CACD 15-Nov-2000
For the purposes of the Act, where a defendant faced a compulsory life sentence following two convictions for certain offences, a finding by the judge that the defendant did not pose a serious risk to society, could be an exceptional circumstance . .
Cited – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn 23-Apr-2002
Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Health, Human Rights

Updated: 12 November 2022; Ref: scu.188745

Tracey, Regina (on The Application of) v Cambridge University Hospital NHS Foundation and Others: Admn 19 Dec 2012

The claimant sought judicial review of the decisions by the respondent as to the care of his late wife, particularly as to the use of ‘ Do Not Attempt Cardio-Pulmonary Resuscitation’ orders.

Judges:

Nicola Davies DBE J

Citations:

[2012] EWHC 3670 (Admin)

Links:

Bailii

Statutes:

Mental Capacity Act 2005 37, Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 4

Jurisdiction:

England and Wales

Health, Human Rights

Updated: 12 November 2022; Ref: scu.467202

SR v The Netherlands (Dec): ECHR 18 Sep 2012

ECHR Article 5
Article 5-4
Review of lawfulness of detention
Supreme Court decision declaring appeal inadmissible but nevertheless addressing the merits: inadmissible
Article 5-1-e
Persons of unsound mind
Court order for admission to psychiatric hospital for observation owing to concerns about applicant’s mental state: inadmissible
Facts – In July 2006 a public prosecutor submitted a request, supported by a psychiatric report, for provisional authorisation for the applicant’s committal to a psychiatric hospital. The Regional Court rejected that request and made an observation order instead, pursuant to which the applicant was admitted to a psychiatric hospital. The applicant appealed to the Supreme Court on points of law, inter alia, on the grounds that she had not been heard by the Regional Court before the observation order was issued and that Article 5 – 1 (e) of the Convention did not permit the detention of persons purely for observation for the purposes of determining whether they were of unsound mind. She left hospital three weeks after her admission. The Supreme Court subsequently declared her appeal inadmissible for lack of interest as the observation order had already lapsed. However, in view of the relevance of the legal questions raised, it nonetheless addressed the merits of a number of her grounds of appeal.
Law – Article 5 – 1: A medical report drawn up by a qualified practitioner not involved in the applicant’s existing treatment had been available to the Regional Court and the Court was not disposed to doubt that it reflected genuine concerns that the applicant’s mental state was such as to justify at least her detention for a limited period so as to make sure. The fact that the applicant was released after three weeks’ observation and that her mental condition was never determined to be dangerous could not be decisive. The Court had previously interpreted Article 5-1 (e) so as to allow the detention of persons who had abused alcohol and whose resulting behaviour gave rise to genuine concern for public order and for their own safety. The same applied to persons in respect of whom there was sufficient indication that they may be of unsound mind.
Conclusion: inadmissible (manifestly ill-founded).
Article 5-4: In the case of S.T.S. v. the Netherlands* the Court had noted that a former detainee might well have a legal interest in the determination of the lawfulness of his detention even after his release, for example, in relation to his ‘enforceable right to compensation’, so that by declaring his appeal on points of law inadmissible as having become devoid of interest, the Supreme Court had deprived the proceedings for deciding the lawfulness of his detention of effect, in breach of Article 5-4.
In the instant case, however, while it was true that the Supreme Court had declared the applicant’s claim inadmissible (as the order appealed against could no longer be overturned), it was not thereby prevented from ruling on the lawfulness of the applicant’s detention. Although it did not accept the applicant’s complaints as regards the legality of her detention, it did actually express itself in her favour on the complaint that she had not had a proper opportunity to argue her case against the delivery of an observation order as distinct from a provisional order. Had the applicant brought proceedings to obtain compensation for damage, the court seized of the case would have found the Supreme Court’s opinion impossible to ignore. Accordingly, the Supreme Court’s decision did not have the effect of depriving the applicant of a decision on the merits of her appeal on points of law. Nor was it established that the applicant had been prevented from enjoying the effects of that decision in so far as it was favourable to her position. S.T.S. distinguished.
Conclusion: inadmissible (manifestly ill-founded).

Citations:

13837/07 – CLIN, [2012] ECHR 2020

Links:

Bailii

Statutes:

European Convention on Human Rights 5

Jurisdiction:

Human Rights

Human Rights, Health, Torts – Other

Updated: 12 November 2022; Ref: scu.467005

Re L: CA 2 Dec 1997

difficult issues which could have a far reaching effect on the present approach to the reception, care and treatment of many mentally disordered patients – order fro the detention of L in a mental hospital – whether authorised in law.

Judges:

Lord Woolf MR, Phillips, Chadwick LJJ

Citations:

[1997] EWCA Civ 2879, [1998] 1 All ER 634, [1998] 2 WLR 764, (1997-98) 1 CCL Rep 201

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 12 November 2022; Ref: scu.143278

GS and EO (Article 3 – Health Cases) India: UTIAC 24 Oct 2012

UTIAC (i) The fact that life expectancy is dramatically shortened by withdrawal of medical treatment in the host state is in itself incapable of amounting to the highly exceptional case that engages the Article 3 duty.
(ii) There are recognised departures from the high threshold approach in cases concerning children, discriminatory denial of treatment, absence of resources through civil war or similar human agency.
(iii) Article 8 cases may also require a different approach and will do so where health questions arise in the context of obstacles to relocation.
(iv) Any extension of the principles set out in N v SSHD [2005] UKHL 31 and N v United Kingdom (2008) 47 EHRR 39 will be for the higher courts.

Judges:

Blake J P, Grubb, Kebede UTJJ

Citations:

[2012] UKUT 397 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Health

Updated: 09 November 2022; Ref: scu.466456

Regina v East Riding of Yorkshire Council and Kingston Upon Hull City Council ex parte Bogdal: CA 7 Oct 1997

The applicant appealed a refusal of leave to apply for judicial review of a cancellation of the registration of her former nursing home.
Held: Since the registrant herself no longer intended to operate a nursing home the application must inevitably fail. Review refused.

Citations:

[1997] EWCA Civ 2435

Statutes:

Registered Homes Act 1984 10 11

Jurisdiction:

England and Wales

Health, Licensing

Updated: 09 November 2022; Ref: scu.142833

L, Regina (on The Application of) v West London Mental Health NHS Trust: Admn 13 Nov 2012

Citations:

[2012] EWHC 3200 (Admin)

Links:

Bailii

Cited by:

Appeal from – L, Regina (on The Application of) v West London Mental Health NHS Trust and Others CA 29-Jan-2014
The court considered the narrow but important question in this appeal concerns the requirements of the common law principles of procedural fairness in cases where a convicted offender is detained under section 37 as mentally ill and is being . .
Lists of cited by and citing cases may be incomplete.

Health, Natural Justice

Updated: 06 November 2022; Ref: scu.465732

South West Care Homes Ltd and Others, Regina (on The Application of) v Devon County Council and Another: Admn 7 Nov 2012

The claimant which ran various residential care and nursing homes challenged the decisions by the respondent as to the rates it would pay to support the care of other patients.

Judges:

Milwyn Jarman QC

Citations:

[2012] EWHC 2967 (Admin)

Links:

Bailii

Statutes:

National Assistance Act 1948, National Health Service and Community Care Act 1990 47, Local Authority Social Services Act 1970 7A, National Assistance Act 1948 (Choice of Accommodation) Directions 1992

Local Government, Health

Updated: 06 November 2022; Ref: scu.465680

Re E (Medical Treatment: Anorexia): CoP 15 Jun 2012

The court considered the propriety of ordering continued compulsory treatment of E where the chance of successful treatment for E (and ‘full recovery’) was considered to be in the region of 20% to 30%. Even that prospect could be achieved only by forcible feeding by nasogastric tube under physical or chemical restraint for at least a year

Judges:

Peter Jackson J

Citations:

[2012] EWHC 1639 (COP), [2012] EWCOP 1639

Links:

Bailii, Bailii

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

Health, Health Professions

Updated: 05 November 2022; Ref: scu.464679

A Local Authority v A and Another: CoP 24 Jun 2010

Bodey J set out the test of capacity as to whether a woman of low intelligence could herself decide whether to use contraception. The test for capacity to be applied to ascertain a woman’s ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment includes consideration of:
(a) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse);
(b) the types available and how each is used;
(c) the advantages and disadvantages of each type;
(d) the possible side-effects of each and how they can be dealt with;
(e) how easily each type can be changed; and
(f) the generally accepted effectiveness of each.

Judges:

Bodey J

Citations:

[2010] EWHC 1549 (COP)

Links:

Bailii

Statutes:

mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

Applied – A Local Authority v K COP 15-Feb-2013
ala_kCoP2013
K was a young lady llivng amid her family with Downs syndrome. The family were thought too want her to be sterilised. The local authority applied to the court to determine whether this should be prevented. It was agreed that she was not currently . .
Lists of cited by and citing cases may be incomplete.

Health

Updated: 05 November 2022; Ref: scu.431232

A Local Authority v A and Another: FD 24 Jun 2010

Interim application made in the context of ‘capacity’ and ‘best interests’ proceedings in the Court of Protection, a Local Authority seeks Declarations (i) that a young married woman whom I will call ‘Mrs A’ lacks capacity to decide whether to use contraception and (ii) that it would be in her interests for her to be required to receive it.

Judges:

Mr Justice Bodey

Citations:

[2010] EWHC 1549 (Fam), [2011] Fam 61, [2011] PTSR 435, (2010) 13 CCL Rep 536, [2011] 2 WLR 878, [2011] 1 Fam 61, [2010] Fam Law 928

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 05 November 2022; Ref: scu.424941

Regina v Human Fertilisation and Embryology Authority ex parte DB: CA 6 Feb 1997

At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially inseminated. There was no written permission as required by the Act.

Judges:

Lord Woolf MR

Citations:

Times 07-Feb-1997, [1997] 2 WLR 806, [1999] Fam 151, [1997] EWCA Civ 4003, [1997] 2 CMLR 591, [1997] COD 261, [1997] 2 FCR 501, [1997] Eu LR 370, [1997] 2 FLR 742, [1997] 2 All ER 687, [1997] Fam Law 401, (1997) 35 BMLR 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .

Cited by:

Cited – The Centre for Reproductive Medicine v U FD 24-Jan-2002
The defendant sought to use the sperm of her deceased husband for her insemination. The deceased had apparently withdrawn his consent to the use of his sperm posthumously. His widow claimed that he had been influenced to change the form, by an . .
Appealed to – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
Cited – L v the Human Fertilisation and Embryology Authority FD 3-Oct-2008
The claimant had sought fertility treatment with her husband. Now, after his death, she sought an order to declare lawful the continued use of the stored gametes.
Held: The request failed. Without explicit consent, the court had no power to . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Lists of cited by and citing cases may be incomplete.

Health, European

Updated: 05 November 2022; Ref: scu.141342

Laboratoires CTRS v Commission (Medicinal Products For Human Use): ECFI 4 Jul 2012

ECFI Medicinal products for human use – Marketing authorisation for the medicinal product Orphacol – Letter informing the applicant of the Commission’s intention to refuse authorisation – Application for a declaration of failure to act – Definition of position by the Commission – Inadmissibility – Application for annulment – Adoption of a new decision – No need to adjudicate

Judges:

S. Papasavvas, P

Citations:

T-12/12, [2012] EUECJ T-12/12

Links:

Bailii

Jurisdiction:

European

Health, Licensing

Updated: 04 November 2022; Ref: scu.463236

Calvert v Clydesdale Bank Plc and Others: CA 27 Jun 2012

The widow and personal representative of the chargor challenged the enforcement proceedings taken by the bank under a guarantee. The chargor had begun to suffer Alzheimers disease. She now sought leave toappeal saying that to enforce the guarantee, the bank should have applied to appointed receivers under the 1983 Act.
Held: Leave to appeal was refused. The bank had instead appointed receivers under section 109 of the 1925 Act, and ‘as with other cases of agency created by way of or in connection with the giving of security over assets, it does not come to an end on the incapacity of the mortgagor and it does not depend on any act of the mortgagor other than the original creation of the authority. So it does not require the mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. ‘

Judges:

Lloyd LJ

Citations:

[2012] EWCA Civ 962

Links:

Bailii

Statutes:

Mental Health Act 1983, Law of Property Act 1925 109

Jurisdiction:

England and Wales

Citing:

Cited – Sowman v David Samuel Trust ChD 1978
When considering a mortgage created by a corporate debtor, the rights under the debenture are not the property of the mortgagor but that of the mortgagee. It was a case where a company which had created the debenture equivalent to the mortgage had . .
Lists of cited by and citing cases may be incomplete.

Banking, Health

Updated: 04 November 2022; Ref: scu.463148

RM, Re Judicial Review v The Scottish Ministers: SCS 15 Mar 2011

The reclaimer, detained under the 1995 Act, sought judicial review of the respondent’s failure to lay regulations as required before an appeal could be made.

Citations:

[2011] ScotCS CSIH – 19, [2011] CSIH 19, 2011 GWD 12-268, 2012 SC 397, 2011 SLT 787

Links:

Bailii

Statutes:

Criminal Procedure (Scotland) Act 1995

Jurisdiction:

Scotland

Prisons, Health

Updated: 04 November 2022; Ref: scu.430619

Regina (W) v Doncaster Metropolitan Borough Council: Admn 13 Feb 2003

The claimant sought damages for false imprisonment. The mental health tribunal had ordered his release, but the respondent had delayed that release.
Held: False imprisonment is established on proof of imprisonment without lawful authority. An authority might commit both the tort of false imprisonment and infringe a patient’s human rights, but not all infringements of a patient’s article 5 rights would involve a breach of domestic law. It was not therefore possible to equate an infringement of article 5 with a domestic tort, and the section did not apply. The Mental Health Act should be read down so as not to protect authorities against breaches of the convention.

Judges:

Stanley Burton J

Citations:

Times 12-Mar-2003, [2003] EWHC 192 (Admin ), (2003) 6 CCL Rep 301

Links:

Bailii

Statutes:

Mental Health Act 1983 139(1), European Convention on Human Rights 5 8

Jurisdiction:

England and Wales

Citing:

Cited – Johnson v The United Kingdom ECHR 24-Oct-1997
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal . .
Dicta Doubted – Regina v Ealing District Health Authority, ex parte Fox 1993
A patient’s conditional discharge had been ordered by a tribunal. One of the conditions imposed by the tribunal was the appointment by the health authority of a responsible medical officer to provide psychiatric supervision of the patient in the . .
Cited – Regina v Mental Health Review Tribunal; Torfaen County Borough Council and Gwent Health Authority ex parte Hall Admn 23-Apr-1999
The tribunal had ordered the conditional discharge of the patient, subject to conditions to be satisfied by the local health authority. The authority had failed to make the arrangements which would have satisfied the relevant conditions, and as a . .
Cited – Regina (on the application of K) v Camden and Islington Health Authority CA 21-Feb-2001
The duty of a local authority to seek to provide resources to care for a mental patient after release into the community, is not absolute, and is subject to the limitations of the availability of a sufficient budget. A continued detention in . .
Cited – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .

Cited by:

Appeal from – W v Doncaster Metropolitan Borough Council CA 6-May-2004
The claimant had been detained by the respondent under the Act. A trubunal had ordered his release subject to proper arrangements for his support in the community. In the absence of such arrangements being made, he complained at his continued . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Human Rights, Health

Updated: 03 November 2022; Ref: scu.179929

In re T (a Minor): CA 24 Oct 1996

C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver transplant. The parents now appealed.
Held: The appeal succeeded.
Butler-Sloss LJ said: ‘it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court’s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent. ‘
The court below had unquestioningly accepted the advice of three consultants but had failed to ‘consider . . the evidence of Dr P and his strong reservations to the effect of coercing, (as Dr P put it) this mother into playing the crucial and irreplaceable part in the aftermath of major invasive surgery not just during the post-operative treatment of an eighteen month old baby but also throughout the childhood of her son. She would inevitably be the primary carer, (no-one suggested that this baby should be taken into care) and would be expected to care for him for many years through surgery and continuing treatment while she, on her present view, believed that this course was not right for her son.’
and ‘The welfare of the child is the paramount consideration and I recognise the ‘very strong presumption in favour of a course of action which will prolong life’ and the inevitable consequences for the child of not giving consent. But to prolong life, as Lord Donaldson MR recognised in somewhat different circumstances, is not the sole objective of the court and to require it at the expense of other considerations may not be in a child’s best interests. I would stress that, on the most unusual facts of this case with the enormous significance of the close attachment between the mother and baby, the court is not concerned with the reasonableness of the mother’s refusal to consent but with the consequences of that refusal and whether it is in the best interests of C. for this Court in effect to direct the mother to take on this total commitment where she does not agree with the course proposed.’
Roch LJ said: ‘the judge mislead himself by categorising the parents’ decision as being ‘unreasonable’. I can see nothing to justify the judge’s conclusion that the child’s mother is deluding herself that with her care the child miraculously will survive beyond that period of time forecast by the doctors, or that the parents have failed to grasp the improvements in operating technique and subsequent treatment which have taken place in the field of liver transplantation in recent years, particularly in view of Dr P’s evidence of the protracted and thorough discussions he has had with the mother.
If the proper stance for parents is that whenever there is a treatment which may prolong the life of their child, then that treatment should be accepted, a decision not to accept that treatment would be unreasonable. But in my opinion that cannot be and will not be the answer in every case. Nor are such decisions to be taken solely with medical factors in mind. The presumption in favour of the sustaining of life is not irrebuttable and perhaps has less weight where the issue is whether to prolong or not to prolong life by means of organ transplantation.’

Judges:

Butler-Sloss, Waite, Roch LJJ

Citations:

[1997] 1 WLR 242, [1996] EWCA Civ 805

Links:

Bailii

Statutes:

Children Act 1989 10093)

Jurisdiction:

England and Wales

Citing:

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 – In re J (a Minor) (Wardship: Medical Treatment) CA 1986
The court referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. The child suffered a condition which included the likelihood of periodic respiratory . .
Cited – In re Z (A Minor) (Identification: Restrictions on Publication) CA 31-Jul-1995
The court was asked whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.
Held: The court refused to . .
Cited – In re B (A Minor) (Wardship: Sterilisation) HL 1987
Paramount Consideration in Wardship Application
The House considered a case involving the sterilisation of a girl just under 18, who suffered from mental disability.
Held: A court exercising wardship jurisdiction, when reaching a decision on an application to authorise an operation for . .
Cited – Re W (a minor) (medical treatment: courts jurisdiction) CA 1992
An application was made for a declaration allowing a hospital to treat a girl aged 16 years suffering from anorexia nervosa against her wishes.
Held: The order was made. It is a feature of anorexia nervosa that it is capable of destroying the . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 01 November 2022; Ref: scu.140672